REA Investigations Manual v2017.pdf

Investigations Manual

Title
Investigations Manual
Person Responsible
Manager - Investigations
Date Last Updated
November 2017
Status
Released

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Investigations Manual
Introduction
Purpose
1.
This manual sets out the Real Estate Agents Authority’s approach to the investigation
of complaints, allegations and offences.
Context
2.
The Real Estate Agents Authority (the Authority) was established under the Real Estate
Agents Act 2008 (the Act) and came into being on 17 November 2009.
3.
The Authority works to achieve increased public confidence in the real estate industry
and to having empowered consumers who participate more effectively in real estate
transactions.
4.
The main goals of the Authority are to:
•
better inform consumers,
•
raise standards of behaviour for licensees and
5.
The  Authority  licences  real  estate  professionals  and  provides  consumers  with  free
access  to  a  complaints  process  where  they  can  have  concerns  about  a  real  estate
agent’s behaviour heard by an independent Complaints Assessment Committee (CAC),
or the Real Estate Agents Disciplinary Tribunal (the Tribunal).
Use of this manual
6.
This manual is intended for use by
•
New Investigators or employees of the Authority,
•
Established Investigators employed by the Authority,
•
External  Investigators  and  contractors  operating  on  behalf  of  the  Authority
during the conduct of an investigation,
•
Legal advisors and other staff as may be required from time to time.
7.
This manual is not intended for publication, use or reference outside of the Authority.
8.
This manual will from time to time be updated  with new guidance, information, job
roles, purpose, documents, templates and procedure as required.
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Format of this manual
9.
This manual is comprised of general principles and information along with processes
supporting the operation of the Investigations Team.
10.  The  general  principles  outlined  in  this  manual  are  not  expected  to  change  with  any
great  frequency.  However,  the  processes  included  in  Appendices  may  from  time  to
time be reviewed in order to bring them into line with best practice.
The Authority’s approach to regulation
11.  The Authority is a compliance agency  with a consumer protection focus.   It can take
legal  action  against  licensees,  or  other  persons  involved  in  real  estate  agency  work,
through disciplinary action or by taking court cases against them.
12.  The  Authority’s  approach  to  regulation  is  focussed  on  providing  consumers  with  an
efficient and effective service that provides both a medium to air their complaint and
to respond to their complaint appropriately.
13.  We do not treat every complaint the same way and we do not attempt to put every
complaint in front of a Complaints Assessment Committee (CAC).
14.  The Authority achieves this through providing information, issuing compliance advice
where it can assist agents to comply with their obligations, bring parties together for
alternative dispute resolution and, where necessary, taking enforcement action.  We
operate these interventions in line with the concept of the compliance pyramid (see
figure one below).
HIGH
Have decided not
Use full force
to comply
of the law
C
Don’t want to
L
o
e
Deter by
m
comply
ve
p
pliance
l
detection
l

i
o
a
f
n
C
ce
o

m
St
p
r
l
a
i
Try to, but don’t
a
te
n
g
c
Assist to
y
always succeed
e
Attitude to Com
C
comply
osts
Willing to do
Make it
the right thing
easy
Create pressure
down to support
voluntary
LOW
15.
compliance

Figure 1
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The role of an Investigator
16.  From the Authority’s perspective, the role of the Investigator is to gather and evaluate
information.
17.  A  successful  investigation  necessitates  the  application  of  technical  skills  to  identify
what the issues are; to plan how to gather the relevant facts and admissible evidence
to place before a CAC, the Real Estate Agents Disciplinary Tribunal (READT) or court in
order for an outcome to be reached.
18.  The  investigator  reports  the  issues,  facts  and  evidence  generally  to  a  CAC  who  will
make their decision.
19.  It is not considered appropriate for Investigators to recommend one party’s evidence
is  more  credible  than  another.  In  practice,  however,  it  would  be  acceptable  for  an
Investigator  to  highlight  to  a  CAC  credibility  is  an  issue  and  to  comment  on  where
there is inconsistency in a party’s evidence. It is then a matter for the CAC to make its
own  decision  on  credibility,  having  regard  for  the  evidential  inconsistencies  pointed
out.
20.  Investigators should not recommend outcomes to a CAC. CACs must be free to reach
their own conclusions. Having recommendations in a report raises the possibility that
Investigators  will  be  seen  by  the  Tribunal  or  Court  as  having  put  themselves  in  the
position of decision maker.
21.  Again,  as  with  the  issue  of  credibility,  much  can  be  achieved  without  making  a
recommendation.  The  report  of  an  Investigator  identifies  the  issues  raised  by  a
complaint, the possible breaches of the Act, regulations and rules that arise, and how
the  evidence  relates  to  the  issues.  It  is  then  a  matter  for  the  CAC  to  make  their
determination on the evidence.
22.  If there is clear evidence of a breach, it can be referred to, but an Investigator’s report
should not go further than that.
Purpose of investigations
23.  The key purpose of any investigation undertaken is to assist the CAC or the Tribunal as
the case may be, to make a decision about an enforcement case.  In order to achieve
this, an investigation should:
•  clarify the key issues of the complaint
•  for each issue identify the:
a.  section(s) of the Act, Regulations and/or Rules that apply
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b.  evidence  required  to  prove  or  disprove  the  behaviour  of  the
respondent is in breach
•  collect and analyse the evidence in order to support decisions about whether
the  breach(es)  can  be  proved  or  disproved,  including  making  any  required
evidence-based comments about the credibility of the parties to the concern
•  provide  information  to  support  penalty  decisions,  to  be  considered  together
with submissions on orders received from the parties to the concern
•  enable a CAC to maintain its autonomy and independence of decision making
Key stages of the investigation process
•  Authorisation and scoping:
•  Identification of offence or offences:
•  Planning:
•  Information gathering and analysis:
•  Assessment of truth and validity:
•  Establishment of facts:
•  Decision-making:

The attributes of an investigator
•  open  mindedness  -  Don't  make  assumptions  or  jump  to  conclusions,  be
curious, ask why (and ask it a lot); a helpful problem solving technique is to ask
‘why’ four times e.g.
•  thoroughness - Be prepared to treat all evidence as tentative until it is tested
•  ethical  behaviour  -  Don't  be  judgmental  -  you  will  come  into  contact  with
witnesses,    licensees  and  other  parties  you  may  not  like  -  don't  show  your
personal feelings and avoid being judgmental; be mindful of the language used
in your communications and final report
•  integrity
•  sound judgement
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•  discretion
•  fortitude - remember the complaint isn't finished until the paperwork is done


Instigating an investigation
24.  An investigation may be carried out by the Authority in response to:
•
a complaint made to the Authority
•
any  information  the  Authority  obtains  that  indicates  or  appears  to  indicate,
unsatisfactory conduct or misconduct on the part of a licensee,
•
any reports by licensees of misconduct or unsatisfactory conduct under clause 7
of the Real Estate Agents Act (Professional Conduct and Client Care) Rules 2009,
•
information the Authority receives about possible offences under the Act or any
other enactments relevant to the real estate industry
Natural justice
25.  Section 84 of the Real Estate Agents Act 2008 provides that the CAC must exercise its
powers and perform its duties and functions in a way that is consistent with the rules
of  natural  justice;  natural  justice  means  fairness,  and  in  particular,  fairness  of
procedure.
26.  There are three broad principles supporting the rules of natural justice as they apply
to the Authority’s complaints and disciplinary process:
•
a licensee should know the nature of any complaint or allegation made against
them
•
the process should be fair, open and transparent for the parties to the complaint
•
the disciplinary body considering the complaint or allegation should act without
bias
27.  In practice, this means a licensee must be given notice of any complaint or allegation
along with the opportunity to consider and respond to all the material considered by
the disciplinary body in reaching their decision.
28.  Similarly, the complainant should also be given the chance to consider and comment
on all the relevant material.
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The complaints process
Overview



Receiving a Complaint
29.  When a new complaint is received, the issues associated with the concern may not be
entirely  clear  or,  as  is  the  case  from  time  to  time,  there  may  be  a  large  volume  of
information provided with the complaint.
30.  It is a part of the Facilitator’s role to clarify the issues of a complaint. In doing so, the
most  appropriate  way  in  which  to  deal  with  a  complaint  will  become  apparent  -,
consumer  information,  compliance  advice,  alternative  dispute  resolution  or
enforcement.
31.  Regardless of the choices made by the Authority the final decision on whether or not a
complaint  is  submitted  to  the  CAC  rests  with  the  complainant.  If  the  complainant
elects  to  have  their  complaint  considered  by  the  CAC,  even  though  an  alternative
resolution was suggested, the complaint must be forwarded to the CAC
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Triage Presentations
32.  Triage meetings provide the opportunity for Facilitators to present the specific details
of  a  complaint  to  other  members  of  the  Authority  to  seek  approval  for  their
recommended  course  of  action,  or  in  some  cases,  guidance  on  what  might  be  a
suitable method by which to deal with a complaint.
33.  To  assist  their  presentation,  the  Facilitator  completes  a  Triage  Presentation  form,
which provides the key issues of the complaint, summary of facts and relevant rules
and sections of the Act.

Pre-Investigations
34.  Occasionally Triage will be presented with a complaint where it is not entirely obvious
what action should be taken in order to deal with the complaint.
35.  When this happens, Triage will request a pre-investigation. This will not be a general
mandate to investigate; it will be specific instructions or a request to obtain particular
information to enable Triage to make a decision about what to do with the complaint.
36.  Instructions  issued  by  Triage  will  take  the  form  of  a  file  note  provided  by  the  Case
Manager.
37.  Pre-investigations are expected to be relatively short, discreet pieces of work that can
be reported back to Triage using a File Note.
38.  An Investigator may be required to report their pre-investigation findings to Triage in
person, but generally this duty falls to the Facilitator.
Post-Triage meeting
39.  In deciding to refer a matter for enforcement, Triage may set up a meeting between
the Facilitator, Investigator and Legal Counsel. This usually happens when a complaint
is  considered  serious,  complex,  and  sensitive  or  is  one  that  may  result  in  media  or
other public interest.
40.  The purpose of the meeting is to clarify and validate the issues of concern, consider
and commence pre-investigation or to draft an investigation plan.
41.  The outcome of the meeting will be summarised in a file note by the Facilitator. This,
together with any pre-investigation file notes, will be submitted to CAC to aid in their
decision making process.
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42. If, subsequently, a decision to inquire is made by the CAC the Investigator who took
part in the Post-Triage meeting will complete any further inquiries on behalf of the
CAC.

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Referring a complaint to CAC
43.  If  the  outcome  of  Triage  or  Pre-investigation  is  Enforcement  the  complaint  will  be
referred  to  CAC.  The  Case  Administrator  will  complete  an  Initial  Referral  Form.  This
provides  CAC  with  a  précis  of  information  taken  from  the  complaint  together  with
notes on their reading of the issues, the supporting evidence and the outcome sought
by the complainant.
44.
Decision to inquire
45.  When  the  CAC  makes  a  decision  to  inquire  into  a  complaint  the  relevant  Case
Administrator  will  allocate  the  complaint  to  the  Investigations  Support  Officer  (ISO)
using the ‘Investigator’ field on the Concern/Enquiry screen of CRM. This indicates the
complaint has been handed over to the Investigations team.
46.  All information is to be updated within three working days.
47.  The  ISO  will  remind  licensee  via  email  that  their  response  to  complaint  is  due.  A
reminder  will  be  sent  two  working  days  prior  to  the  due  date  of  the  licensee’s
response. The reminder email will be stored in the appropriate CRM folder.
48.  If a licensee’s response becomes overdue, the ISO will ensure the Case Manager has
not granted an extension of time for the licensee’s response before sending a follow
up email to the licensee, which explains their response to a complaint is overdue and
should be provided by close of business.
Timeliness in conducting investigations
49.  The  Authority’s  Statement  of  Intent  (SOI)  sets  out  an  end  to  end  process  time  of  6
months for completion of 75% of the complaints handled by the Authority.
50.  To meet this requirement, investigations that follow a CAC’s decision to inquire should
be completed at the earliest opportunity after being assigned to an Investigator, it is
anticipated most investigations should be capable of completion within three months
of being allocated to an investigator.
51.  There  no merit in receiving and investigating an allegation of an offence against the
Act  that  details  a  historic  or  an  aging  offence.  There  must  be  a  realistic  prospect  of
completing an investigation of the offence  and allowing the prosecutor a reasonable
time to review and comment on the case.
52.  Complaints about aged or already out of time allegations should be accepted on the
basis  that  they  are  for  information  and  intelligence  only.  No  formal  action  will  be
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taken  in  respect  of  these  complaints.  However, an  information  or  compliance  letter
may be used to bring the issue to the attention of the respondent of the complaint.

Conducting an investigation
The principles of investigation
53.  Any investigation carried out by the Authority should observe the following principles:
•
The  process  of  investigation  involves  consideration  of  the  sources  of  evidence
relevant to the complaint, allegation or offence under investigation
•
The prospect of an accurate assessment of the complaint, allegation or  offence
under investigation increases with speed of response
•
The Investigator collects evidence and must allow the facts to reveal the truth of
a complaint, allegation or offence under investigation
•
Direct evidence from individuals can be affected by their perception of events.
Every  effort  should  be  made  to  obtain  corroboration  of  substantiation  of  a
person’s evidence
•
A  mental  note  is  good;  if  the  information  is  meaningful  then  it’s  advisable  to
make a written note of it
•
Confidentiality, sensitivity and privacy must be carefully considered
Investigation Process
54.  New process is to send out the decision to inquire letter and do that within 5 days of a
complaint being allocated
55.  Use  the  investigation  plan,  activity  log  and  job  sheets  if  necessary  to  track
investigation  work  and  contact  with  parties  to  the  complaint;  include  all  telephone
calls, meetings, interviews, emails and letters.
56.  Seek  comment  from  the  complainant  on  the  licensee’s  response.  There  is  no
requirement to disclose the licensee’s response in full during the active portion of an
investigation,  and  in  fact,  experience  has  shown  that  disclosing  the  licensee’s  full
response at an early stage in the investigation is likely to result in a lengthy response
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from the complainant, much of which reiterates the original complaint - with little by
way of new factual information or evidence.
57.  It is preferable to contact the complainant directly to clarify specific points of interests
or  ambiguity.  A  record  of  the  conversation  should  be  made  and  a  file  note  created,
which summarises the salient points of the conversation. It may be appropriate to give
the complainant opportunity to confirm the content of any file notes.
58.  If  the  complainant  raises  new  information,  it  will  be  necessary  to  put  this  new
information  to  the  licensee.  This  step  may  be  repeated  if  the  licensee in  turn  raises
new information. Again keep a log of the contact with complainants and licensees in
the investigation plan activity log.
59.  Conduct the  required background searches e.g. licensing, QV, Terranet, Trade Me as
appropriate.  Complete  the  particular  requests  for  information,  documentation  or
actions requested by the CAC.
60.  Referring to the list of witnesses required to be interviewed in the investigation plan,
plan interviews using the PEACE Model. Use the 9-square; 4-square and wants analysis
to note topics that must be covered during the  interview. See the detailed guidance
on conducting PEACE Model interviews.
61.  Conduct interviews by phone or in person. Any evidence that is requested or supplied
by  an  interviewee  must  be  handled  in  accordance  with  the  Evidence  Management
Procedure. See the detailed guide on Evidence Management.
62.  When a witness statement is required following a telephone interview, use interview
notes or an audio recording to prepare a statement for the witness, using the witness
statement template. Send a copy of the statement to the witness for them to provide
feedback on any incorrect or missing information.  When the statement is complete,
ask the witness to sign and return a copy of the statement.  See the detailed guide on
the PEACE Model and Witness Statements.
63.  When  a  witness  statement  is  required  following  a  face-to-face  interview,  prepare  a
statement  for  the  witness  by  handwriting  or  typing  the  statement  on-site  using  the
witness statement template. When the statement is complete ask the witness to sign
the  statement.  It  is  also  acceptable,  but  not  desirable,  to  follow  the  guide  for
telephone interviews when conducting a face-to-face interview. See the detailed guide
on the PEACE Model and Witness Statements.
64.  When  a  licensee  interview  is  required,  use  a  digital  audio  recorder  to  record  any
telephone  or  face-to-face  interview.  Follow  the  PEACE  Model  when  setting  the
parameters for the interview, including management of legal representatives. Arrange
for transcription of the interview record. There is no need to seek confirmation of the
interview record, it acceptable to provide a copy of the interview to the licensee upon
their request to do so.
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65.  On occasion, a party to a complaint may refuse to provide documents or information.
If  that  is  the  case,  the  CAC  has  the  option  to  request  the  information  or
documentation using the provisions of Section 85 of the Real Estate Agents Act 2008.
66.  To use a Section 85 notice to further an investigation, the Investigator should initially
speak  with  the  Chair  of  the  CAC,  explain  what  has  been  requested  and  that  the
request has been refused. If the Chair of the CAC is in agreement with the issue of a
Section  85  notice,  the  Investigator  should  produce  a  notice  using  the  appended
template. The completed notice should then be forwarded by email to the Chair of the
CAC for signature.

Practice Note: Requesting information from Licensees
during an investigation under sections 83 and 85
This  Practice  Note  is  intended  to  assist  REAA’s  investigators  in  collecting information  from
Licensees. It is not intended to be prescriptive or comprehensive. The provisions of the Real
Estate Agents Act 2008 and associated Regulations will always prevail over the content of
this Note.
1
What powers do investigators have to request information from Licensees? What
are the limits on these powers?
A section 83 notice
1.1
Under section 83 of the Real Estate Agents Act 2008 (REA Act), a Committee has the
power to issue a written notice requesting a licensee to supply certain information to
the Committee in writing.
1.2
An investigator that has been authorised by a Committee under section 82(2) of the
REA Act to assist it with its inquiry may exercise this section 83 power.
1.3
Any request for information by an investigator on behalf of a Committee must
directly relate to the subject matter of the Committee’s Decision to Inquire.  Section
83 must not be used to obtain wholly irrelevant material from Licensees.
1.4
A section 83 notice permits the Committee to request a very broad range of
information from Licensees. The notice may request the Licensee to provide papers,
documents, records or things, in respect of which a section 85 notice may follow if
the Licensee fails to comply (as discussed below). Additionally, the section 83 notice
may request the Licensee to provide specified information in the form of answers to
questions (which cannot be the subject of a section 85 notice).
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1.5
A section 83 notice should stipulate a reasonable time frame within which the
requested information should be provided.
A section 85 notice
1.6
A section 85 notice may be issued if the Licensee fails to comply with the section 83
notice within a reasonable time (and the other requirements of section 85 can be
complied with).
1.7
Section 85 permits the Committee to require the production of papers, documents,
records or things by any person.
1.8
Unlike a notice issued under section 83, section 85 only permits the Committee to
require the production of specified categories of material (namely, papers,
documents, records, or things). “Things” is clearly intended to include tangible items
such as CDs, or hard drives, and cannot be interpreted more broadly than that. It
does not permit the Committee to use the notice to ask questions of the Licensee.
1.9
Section 85 only applies if:
(a)
The person has failed to comply with a previous request for the information
(such as, in the case of a Licensee, a notice under section 83) within a
reasonable time; and
(b)
The Committee members believe on reasonable grounds that:
(i)
Requiring the person to produce information to the Committee is
necessary to enable the Committee to carry out its inquiry; and
(ii)
It is not reasonably practicable to obtain the required information
from another source OR it is necessary to obtain the required
information to verify or refute information from another source.
1.10
Having considered these matters, the Committee should record in writing (signed
and dated by the Committee’s Chairperson) its belief that the matters in section 85
are satisfied in the particular circumstances, as well as its decision to issue the
section 85 notice in writing.
1.11
A section 85 notice must stipulate the manner and time frame within which the
information must be provided (the timeframe should be reasonable, and must be
not less than 10 working days from the date the notice is issued to the Licensee).
1.12
The notice must be delivered to the individual in one of the following ways:
(a)
In person;
(b)
At the individual’s usual or last known residence or business;
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(c)
By post;
(d)
By email, provided the following requirements are met:
(i)
The recipient must have consented to receiving information of this
kind in electronic form. Inferred consent is sufficient, meaning that if
the Committee or investigator has communicated with the individual
by email prior to the notice being sent, without any objection by the
individual, consent can be inferred. If no previous correspondence has
been sent and received from the recipient by email, the recipient
should be specifically asked if they consent to receiving a notice under
the REA Act by email. If consent is specifically declined or retracted,
obviously the notice should be sent in another way.
(ii)
The notice must be readily accessible for subsequent reference.
Sending a PDF by email is acceptable and other formats may be
appropriate, but a format where the information subsequently expires
or cannot be accessed after a certain period will not be acceptable.
1.13
The following templates are attached as an appendix to this note:
(a)
Template wording which investigators may use to inform the Committee that
the investigator believes a section 85 notice is warranted; and
(b)
A template section 85 notice.
1.14
Please note that these are templates only and should be amended appropriately to
take account of the particular circumstances in which the notice is being considered
or issued.
2
Are there other limits on the ability to request information from a Licensee?
2.1
Rule 9.17 of the Real Estate Agents Act (Professional Conduct and Client Care) Rules
2012 restricts the circumstances in which a Licensee may disclose confidential client
information. The Privacy Act also restricts the circumstances in which personal
information may be disclosed.
2.2
If a request for information from a Committee includes personal information about
other people, such as a Licensee’s clients, a Licensee may be reluctant to provide
that information to the Committee if they perceive there to be a risk that doing so
may breach the Rules or the Privacy Act.
2.3
However, the Rules provide that a Licensee may disclose confidential client
information if they are required by law to do so. The Privacy Act provides that any
restriction on disclosure of information contained in the Privacy Act will be trumped
by any other statutory provision authorising or requiring disclosure.
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2.4
REAA recognises that compliance with the REA Act, the Rules, and the Privacy Act is
ultimately a matter for the Licensee. We discuss below the steps that should be
taken if a Licensee is reluctant to respond to a section 83 notice, one of which may
include asking the Committee whether it wishes to follow up with a section 85
notice.  Under section 86(1), a person who receives a section 85 notice must comply
with the notice.
3
What happens if a Licensee fails to respond to a section 83 or section 85 notice?
3.1
A Licensee may be reluctant to provide certain information in response to a section
83 notice, including if he or she is concerned about potentially breaching the Privacy
Act (as discussed above). Licensees who are reluctant to respond to the section 83
request should be informed that:
(a)
While the Act does not require the Licensee to respond, it may be in the
Licensee’s best interests to provide the information sought, as it will help to
inform the Committee’s investigation.
(b)
If the Licensee does not respond, the Committee may elect to issue a notice
under section 85 of the Act.
3.2
If a Licensee fails to respond within the stipulated timeframe (which should be
reasonable), or refuses to respond, to a section 83 notice, the Committee may:
(a)
Complete its investigation without the requested information; or
(b)
Consider whether to issue a section 85 notice (provided the requirements of
section 85 (set out in paragraph 1.9 above) can be met); or
(c)
Consider whether the Licensee’s non-compliance with the section 83 request
warrants an own-motion inquiry into that conduct.
3.3
If a Licensee fails to respond to a section 85 notice within the time frame stipulated
in the notice, and does not have a reasonable excuse for doing so, that person
commits an offence under section 148 of the REA Act.  Depending on the
circumstances, disciplinary action for failure to comply with the notice may be an
option as well.
4
Where should an investigator go for more information?
4.1
Any questions about the content of this Practice Note should be directed to REAA’s
legal team at [email address].
4.2
If you are in any doubt about the exercise of your powers to request/compel the
production of information by a Licensee in the context of a specific investigation,
please approach the legal team for advice.

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Preparing the investigation report for CAC
67.  When all CAC instructions have been carried out, inquiries completed and statements
prepared - an investigation report can be compiled. Depending upon the complexity of
the investigation itself, two report formats are available. Use the long format report
for the more involved investigations and the shorter format report for cases in which
the licensee’s response addresses the complaint with little or no further investigation
having been required.
68.  Ensure all the documentation associated with the investigation is saved in CRM. Print
the documentation, refer to each document as an appendix in the report and add it to
case paper file.
69.  If a report is complex or contains novel circumstances or issues, the Investigator may
choose to submit the report to a colleague for peer review.
70.  Submit the completed case paper file to the Investigations Manager for sign off.

Full disclosure to all parties
71.  Prepare the covering letters and documentation to disclose to the parties. See the
detailed procedure on Full Disclosure.

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Management of investigation issues
72.  If an investigation goes off track, an Investigator must:
•
Acknowledge  the  problem  as  soon  as  possible;  raise  the  problem  with  the
Manager Investigations. This may additionally include notifying anyone that has
been  unfairly  prejudiced  as  a  consequence  of  the  problem  unless  this  would
exacerbate the problem or compromise the investigation
•
Fix the specific problem if at all possible
•
Fix the general problem; in any case where an investigation has gone wrong due
to a procedural issue, action must be taken to rectify that issue across the board.
•
Excessive  delay,  claims  of  excessive  delay  may  come  from  either  party  to  a
complaint  or  may  be  identified  by  the  Manager  Investigations,  Manager
Complaints Assessment Committees or some other source. However the delay is
identified  -  the  Manager  Investigations  will  arrange  appropriate  action  which
may include:
-
Investigation of the reason for the delay,
-
Review of the investigation plan to see if it can be streamlined,
-
Notification of the delay to the CAC chair,
-
Notification of all parties to the complaint,
-
A revised timetable for completion of the investigation, including:
-
Monitoring and supervision of the investigation to closure.
-
Appointment of a new Investigator or further Investigator.

•
Investigations  that  become  complex;  if  an  Investigator  feels  out  of  their  depth
due  to  the  complex  nature  of  an  investigation,  they  should  acknowledge  it,
check the investigation plan and seek advice or extra resource from the Manager
Investigations.
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•
Rectifying  an  investigation  that  has  gone  off  track;  it  may  be  possible  for  an
investigation  to  be  brought  back  on  track  by  getting  the  Investigator  and  the
Manager  Investigations  to  revisit  the  investigation  plan  to  identify  where  and
why  the  investigation  lost  direction.  If  the  investigation  is  beyond  the
competence or capability of the current Investigator, formal training or coaching
may be required. In exceptional circumstances, it may be  necessary to  replace
the Investigator.
•
Failure to abide by the principles of procedural fairness;  This can sometimes be
remedied by backtracking and affording the procedural fairness (natural justice)
that has been denied. This can most obviously be achieved before a complaint is
referred back to the CAC for determination. If an issue arises after a matter has
been referred back to the CAC, the issue is most likely to result in an appeal to
the READT.


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Authority investigations
Investigation of allegations
73.  Authority initiated investigations are a function of the Authority in sections 12(j) and
12(k)  Real  Estate  Agents  Act  2008.    They  are  similar  in  process  to  a  CAC  initiated
investigation.
74.  It  should  be  noted  that  the  Authority  does  not  have  an  express  power  to  require
attendance  at  or  participation  in  interviews  when  conducting  an  Authority
investigation  and  there  is  no  equivalent  to  a  Section  85  notice  in  Authority
investigations.
75.  On completion of an Authority investigation, the completed report will be reviewed by
the internal and external legal teams.
76.  On completion of any review, the Investigator will lay a charge, as formulated by the
external legal team, with the District Court.

Unlicensed trading
77.  Each  year  the  Authority  receives  dozens  of  allegations  of  unlicensed  trading.
Generally, these allegations are made by licensed real estate agents. The Authority is
in the process of establishing a benchmark for cases that warrant action for unlicensed
trading.
78.  Each case must be considered on its own individual merits, but there are a handful of
cases that give an indication of what might be considered unlicensed trading.
79.  The  case  of  Ewan  McLeod  is  one  such  case.  McLeod  was  found  guilty  of  unlicensed
trading after he gave more than general advice; attending open homes; giving his own
name as point of contact; charging a fee and thus undertaking real estate work.
80.  Contrast this with the business of Home Sell who only market properties, for a fee.
81.  Unlicensed  trading  will  not  be  discussed  at  a  Triage  meeting;  they  will  be  referred
directly to investigations.
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82.  Allegations, of unlicensed trading or alike, must be dealt with in such a way as to allow
a  charge  to  be  laid  with  the  court  within  5  years  of  the  date  of  commission  of  any
alleged offence.

Property Finders
83.  Act on instructions from a client to assist them in finding properties for a fee. It is not
considered unlicensed trading if the intention of the property finder is solely to locate
and shortlist properties for their client.
84.  However,  if  a  property  finder  views  properties, negotiates  price  or  carries  out  some
other element of real estate work, whilst acting on behalf of a buyer, in order to bring
about a transaction - the property finder may well be guilty of unlicensed trading.
85.  As to the question of fees; if a fee was not charged, would it make a difference? This is
dependent  on  the  individual  circumstances  of  each  allegation.  One  point  is  clear  it
does not matter how a fee is charged - it doesn’t have to be a commission - “In Trade”
means any type of charge.

Property Traders
86.  Buy and on sell of properties at a profit by way of contemporaneous sale.
87.  The facts will determine if there is sufficient evidence to prosecute a property trader
for unlicensed trading. But, in principal there is nothing wrong with someone buying
15 properties on an unconditional contract with the intention to sell them on.
88.  A problem may arise if there is any deception by the property trader involved e.g. if a
person places an advertisement offering assistance to find a property for purchase but
the buyer/client is not told that the property sold to them belongs to the advertiser.
This was an issue in the HomeBuyers case. Deception is key, if there is no deception
then there may well be no issue; there is  nothing wrong  with on selling property as
long as there is no deception involved.
89.  Alternatively, a charge under the Fair Trading Act may be an option. This may provide
a means of dealing with property traders accused of unlicensed trading.
90.  A  charge  might  follow  from  a  concern  about  how  a  sale  is  explained  e.g.  an
advertisement that says – “Are you looking to become a property Investor?”, when in
fact the properties are owned by the advertiser, a fact not declared beforehand.

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Charges - READT

92.  New process in place now that we can quote here
93.  Once the legal review of the file is complete, the legal team will send the legal advice
and draft charges to the Case Manager.
94.  The  Case  Manager  forwards  these  documents  and  a  prepopulated  “CAC  Decision  to
refer matter to Disciplinary Tribunal” (the Decision) to the CAC for their approval (All
three panel members have to agree). These emails are saved in CRM.
95.  Upon approval, the Case Manager affixes the Chairperson’s electronic signature to the
Decision and Charges and saves the file as a PDF in CRM. The Case Manager:
•
identifies an approved Process Server to serve the documents,
•
gets in touch with the service provider and obtains a cost estimate,
•
then prepares an expenditure approval form.
96.  The Case Manager prepares the documentation for the Complainant:
•
Cover letter
•
CAC Decision to refer to Tribunal
•
Charges
97.  The Case Manager prepares the documentation for the Licensee:
•
Cover letter
•
CAC Decision to refer to Tribunal
•
Draft charges
•
Response to Charge
98.  The Case Manager prepares the documentation for the Registrar:
•
Cover letter and copies of:
-
Copy of the decision to refer to READT
-
Copy of the Charges
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-
Copies of cover letters to the Complainant and the Licensee
-
The Case Manager prepares the documentation for the Process Server:
-
Cover letter with contact details of the Licensee.
99.  The Case Manager couriers the documents to the respective parties
100.  The copy to the READT is hand delivered by the Compliance Administrator
101.  A scanned copy of documents to be delivered to the Registrar is saved in CRM. A copy
is emailed to the legal team and the Investigator.
102.  The Case Manager updates CRM
•
Status:

In appeal period
•
Investigation:
Complete
•
Determination:  Referred to READT
103.  The READT will send an “Acknowledgement of charges”.
104.  On  receipt  of  the  statement  of  service  from  the  Process  Server,  the  Case  Manager
send the following documentation to the identified Case Manager at the READT:
•
Statement of service
•
Updated contact details (including email if possible) for the Licensee
•
Licence detail (of the licensee at the time of conduct).




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Relevant Legislation
Real Estate Agents Act 2008
96 Protection and privileges of witnesses
Every person has the same privileges and immunities as a witness has in a court of law in
relation to—
(a) the giving of information to a Committee; and
(b) the giving of evidence to, or the answering of questions put by, the Committee;
and
(c) the production of papers, documents, records, or things to the Committee.

Privacy
Information about the act and how we administer it

Evidence Act
30 Improperly obtained evidence
(1) This section applies to a criminal proceeding in which the prosecution offers or proposes
to offer evidence if—
(a)  the  defendant  or,  if  applicable,  a  co-defendant  against  whom  the  evidence  is
offered  raises,  on  the  basis  of  an  evidential  foundation,  the  issue  of  whether  the
evidence was improperly obtained and informs the prosecution  of the grounds for
raising the issue; or
(b) the Judge raises the issue of whether the evidence was improperly obtained and
informs the prosecution of the grounds for raising the issue.
(2) The Judge must—
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(a) find, on the balance of probabilities, whether or not the evidence was improperly
obtained; and
(b)  if  the  Judge  finds  that  the  evidence  has  been  improperly  obtained,  determine
whether or not the exclusion of the evidence is proportionate to the impropriety by
means of a balancing process that gives appropriate weight to the impropriety but
also takes proper account of the need for an effective and credible system of justice.
(3) For the purposes of subsection (2), the court may, among any other matters, have regard
to the following:
(a) the importance of any right breached by the impropriety and the seriousness of
the intrusion on it:
(b) the nature of the impropriety, in particular, whether it was deliberate, reckless,
or done in bad faith:
(c) the nature and quality of the improperly obtained evidence:
(d) the seriousness of the offence with which the defendant is charged:
(e) whether there were any other investigatory techniques not involving any breach
of the rights that were known to be available but were not used:
(f)  whether  there  are  alternative  remedies  to  exclusion  of  the  evidence  which  can
adequately provide redress to the defendant:
(g) whether the impropriety was necessary to avoid apprehended physical danger to
the Police or others:
(h) whether there was any urgency in obtaining the improperly obtained evidence.
(4)  The  Judge  must  exclude  any  improperly  obtained  evidence  if,  in  accordance  with
subsection (2), the Judge determines that its exclusion is proportionate to the impropriety.
(5) For the purposes of this section, evidence is improperly obtained if it is obtained—
(a) in consequence of a breach of any enactment or rule of law by a person to whom
section 3 of the New Zealand Bill of Rights Act 1990 applies; or
(b)  in  consequence  of  a  statement  made  by  a  defendant  that  is  or  would  be
inadmissible if it were offered in evidence by the prosecution; or
(c) unfairly.
(6)  Without  limiting  subsection  (5)(c),  in  deciding  whether  a  statement  obtained  by  a
member  of  the  Police  has  been  obtained  unfairly  for  the  purposes  of  that  provision,  the
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Judge must take into account guidelines set out in practice notes on that subject issued by
the Chief Justice.
S 60 Privilege against self-incrimination
(1) This section applies if—
(a) a person is (apart from this section) required to provide specific information—
(i) in the course of a proceeding; or
(ii) by a person exercising a statutory power or duty; or
(iii) by a police officer or other person holding a public office in the course of
an investigation into a criminal offence or possible criminal offence; and
(b) the information would, if so provided, be likely to incriminate the person under
New Zealand law for an offence punishable by a fine or imprisonment.
(2) The person—
(a) has a privilege in respect of the information and cannot be required to provide it;
and
(b)  cannot  be  prosecuted  or  penalised  for  refusing  or  failing  to  provide  the
information,  whether  or  not  the  person  claimed  the  privilege  when  the  person
refused or failed to provide the information.
(3) Subsection (2) has effect—
(a)  unless  an  enactment  removes  the  privilege  against  self-incrimination  either
expressly or by necessary implication; and
(b)  to  the  extent  that  an  enactment  does  not  expressly  or  by  necessary  implication
remove the privilege against self-incrimination.
(4) Subsection (2) does not enable a claim of privilege to be made—
(a) on behalf of a body corporate; or
(b)  on  behalf  of  any  person  other  than  the  person  required  to  provide  the
information (except by a legal adviser on behalf of a client who is so required); or
(c) by a defendant in a criminal proceeding when giving evidence about the matter
for which the defendant is being tried.
(5) This section is subject to section 63.
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New Zealand Bill of Rights Act 1990
24 Rights of persons charged
Everyone who is charged with an offence—
(a)  shall  be  informed  promptly  and  in  detail  of  the  nature  and  cause  of  the
charge; and
(b)  shall  be  released  on  reasonable  terms  and  conditions  unless  there  is  just
cause for continued detention; and
(c) shall have the right to consult and instruct a lawyer; and
(d) shall have the right to adequate time and facilities to prepare a defence; and
(e) shall have the right, except in the case of an offence under military law tried
before a military tribunal, to the benefit of a trial by jury when the penalty for
the offence is or includes imprisonment for more than 3 months; and
(f) shall have the right to receive legal assistance without cost if the interests of
justice so require and the person does not have sufficient means to provide for
that assistance; and
(g) shall have the right to have the free assistance of an interpreter if the person
cannot understand or speak the language used in court.

25 Minimum standards of criminal procedure
Everyone  who  is  charged  with  an  offence  has,  in  relation  to  the  determination  of  the
charge, the following minimum rights:
(a) the right to a fair and public hearing by an independent and impartial court:
(b) the right to be tried without undue delay:
(c) the right to be presumed innocent until proved guilty according to law:
(d) the right not to be compelled to be a witness or to confess guilt:
(e) the right to be present at the trial and to present a defence:
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(f)  the  right  to  examine  the  witnesses  for  the  prosecution  and  to  obtain  the
attendance  and  examination  of  witnesses  for  the  defence  under  the  same
conditions as the prosecution:
(g) the right, if convicted of an offence in respect of which the penalty has been
varied between the commission of the offence and sentencing, to the benefit of
the lesser penalty:
(h) the right, if convicted of the offence, to appeal according to law  to a higher
court against the conviction or against the sentence or against both:
(i) the right, in the case of a child, to be dealt with in a manner that takes account
of the child's age.


Offences the Authority prosecutes

The Authority predominantly takes prosecutions under the Act.  However, we can also take
prosecutions against licensees under the Fair Trading Act. The individual offences that the
Authority can prosecute are,

Offence
Relevant act
Detail
Unlicensed trading
s141, REA Act*
The Authority is the primary
prosecutor for these offences.
Holding out as a real estate agent
s142, REA Act
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Employing an unlicensed person to
s143, REA Act
undertake real estate agency work
Providing false or misleading
s144, REA Act
information
Failure to notify change in
s145, REA Act
circumstance
Failure to give possession of
s146, REA Act
documents when required
Failure to provide financial records
s147, REA Act
when required
Failure to provide information or
s148, REA Act
document under s85 notice
Failure to pay money to a person
s149, REA Act
lawfully entitled
Failure to hold money for 10 days
s150, REA Act
Failure to disclosure conflict of interest  s151, REA Act
Rendering false accounts
s152, REA Act
Resisting, obstructing or misleading the  s153, REA Act
This applies where someone is
Authority
trying to exercise any power or
perform a function under the
Act.
Misleading and deceptive conduct
s9, FTA**

False Representations and misleading
s14, FTA

conduct
* REA Act – Real Estate Agents Act 2008
** FTA – Fair Trading Act 1986
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Glossary of Authority terms

Absolute  liability  refers  to a type  of  offence  where,  in  relation  to  statute,  the  element  of
'intent'  (mens  rea)  is  not  required  to  establish  the  offence,  and  where  a  defence  of  total
absence of fault does not apply.
Accepted is a case status where the Authority considers it has sufficient information to know
what the complainant’s concern is.
Achieve  compliance  or  variant  refers  to  a  compliance  subject  becoming  compliant  and/or
compliance being maintained by a compliance subject, through voluntary compliance and/or
in response to intervention by a compliance organisation or organisations.
Admissible  refers  to  evidence  which  is  probative  and  relevant  and  which  is  not  excluded  by
any rule of law as determined by a judge in a judicial hearing.
Allegation  refers  to  a  concern  raised  with,  and  investigated  by,  the  Authority  that  does  not
meet the requirements of Regulation 4 of the Real Estate Agents (Complaints and Discipline)
Regulations 2009.
Alternative Disputes Resolution … and mediation, negotiation, conciliation
Appreciation  (or  ‘an  appreciation’)  is  the  act  of  logically  considering  a  given  problem  by
assessing  relevant  factors  and  limitations  and  coming  up  with  a  workable  plan  by  choosing
among or between the courses open.
Approved means the applicant is a “fit and proper person” and meets licensing requirements.
Breach - See 'non-compliance'.
Complaints  Assessment  Committees’  (CACs’)  decisions  include:  unsatisfactory  conduct,
charge, and no further action.
Unsatisfactory conduct
A  CAC  determination,  finding  the  licensee  guilty  of  unsatisfactory  conduct.  This
determination is of a lesser charge than the determination of misconduct but is still likely
to  involve  orders  for  disciplinary  actions  on  the  licensee.  An  Unsatisfactory  Conduct
determination means the CAC will publish on the public register, their decision and any
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disciplinary actions against the licensee.
Charge (misconduct, referred to Tribunal)
This is a determination made by the CAC of a charge of misconduct against the licensee.
This  charge  is  then  referred  to  the  Real  Estate  Agents  Disciplinary  Tribunal  and  notice
must be given to both the complainant and the licensee.
No further action
The CAC may make a determination of no further action where the complaint does not
amount  to  either  unsatisfactory  conduct  or  misconduct  by  the  licensee,  or  if  the
complaint relates to an inconsequential matter.
Case  management  system  refers  to  the  system that  is  established  to  plan,  manage,  record,
report, and review a case.
Complaint  refers  to  a  concern  raised  with  the  Authority  about  a  licensee  that  meets  all  the
requirements of Regulation 4 of the Real Estate (Complaints and Discipline) Regulations 2009.
A concern may be  placed ‘on  hold’ until it meets these requirements.  Legally the Authority
must refer every complaint to a Complaints Assessment Committee.
Complainant refers to a person who raises a concern.
Compliance (role of) refers to the role, in a public sector organisation, of assessing compliance
subjects’ levels of adherence with regulatory requirements and carrying out any appropriate
intervention.
Compliance  auditing  refers  to  planned  and  systematic  examination  of  compliance  subject
processes and practices in terms of how they demonstrate and/or support compliance.
Compliance  advice  is  a  formal  advice  to  a  person  that  their  actions  and/or  omissions  may
amount  to  non-compliance  and  which  may  or  may  not  include  mention  of  the  possible
consequences of continued or repeated non-compliance.
Compliance  environment  refers  to  the  physical, social,  economic,  political,  and  geographical
environment that a public sector organisation’s compliance role is carried out in.
Compliance  investigation  refers  to  the  process  of  gathering  and  assessing  information  to
determine facts and, thereby, to determine degree of compliance or otherwise.
Compliance organisation for the purpose of this Guide, refers to a public sector organisation
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that carries out a compliance role or roles.
Compliance subject refers to a natural person or an entity subject, in a particular compliance
context, to being regulated.
Consumer information refers to information supplied to a consumer who has raised a concern
with the Authority, but for which the Authority will not be taking action.
Contact refers to all contact made with the Authority through any medium on any matter.
Crime  refers  to  an  offence  for  which  the  alleged  offender  may  be  proceeded  against  by
indictment.
Criminal  proceeding  refers  to  a  court-based  proceeding  for  a  breach  of  law  for  which  a
sanction is sought.
Elements  (of  offences)  are  the  underlying  factors  which  are  common  or  rudimentary  to  any
offence.  They are:
1.  A physical element, called ‘the act’, referred to as actus reus.
2.  A mental element or state of mind, called ‘the intent’, referred to as mens rea.
It is noted that it is not uncommon for compliance practitioners to use the terms ‘elements’
and ‘ingredients’ interchangeably.
Enforcement refers to processes and actions taken to compel statutory compliance.
Evidence refers to information given personally, or drawn from a document or exhibit, which
tends to prove or disprove a fact.
Evidential review …
Exhibit refers to material evidence secured in the course of an investigation.
Field phase (of an investigation) refers to the active or operational phase of an investigation,
and does not preclude an entirely office-based investigation.
Forensic refers to the use of scientific methods in investigations.
General Enquiries refer to contacts that are not concerns or licensing enquiries
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Information  (as  in  ‘an  information‘)  is  the  physical  document,  sworn  before  a  district  court,
used to commence proceedings.
Ingredients refer to the details or components of an offence which are unique to the offence
and which must be proven.  It is noted that it is not uncommon for compliance practitioners to
use the terms ‘elements’ and ‘ingredients’ interchangeably.
Intelligence  is information  to  which  an  interpretation  has  been  applied  following  analysis  of
that  information.  Intelligence  refers  collectively  to  the  functions,  activities,  people,  or
organisations  that  are  involved  in  the  process  of  planning,  gathering,  and  analysing
information that leads to the production of intelligence products which are of potential value
to decision makers.
Interpreter refers to a person who is trained and qualified to carry out interpreting or ‘spoken
translation’.
Intervention refers to any action, or set of actions, taken by a compliance officer to encourage
compliance  or  to  hold  a  compliance  subject  accountable  for  non-compliance.    These  may
include non-sanction interventions as well as sanctions.
Investigation(s) refers to the collection of evidence to support the decision being made about
potential  enforcement  outcomes.      A  case  can  be  ‘under  investigation’  as  an  Authority
investigation or through the direction of a CAC.
Judicial review refers to the review by a court of a decision made or process carried out by a
decision making body.
Legal person may be a natural person or an entity, such as a limited liability company, that is
treated as a person for certain purposes.
Licensee
Non-compliance  refers  to  a  breach  of,  or  failure  to  comply  with,  regulatory  requirements
which  may  or  may  not  amount  to  an  offence.   Regulatory  requirements  may  include
derivatives such as Rules, Bylaws, and licences.
Non-sanction intervention refers to an intervention which is intended to result in compliance,
but  without  use  of  sanction.   It  can  involve  any  of  informing  and  assisting,  deterring,  or
directing a compliance subject.
Offence is a violation or breach of a law or rule.
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Offence Investigation refers to an Authority investigation of alleged unlicensed trading.
If  the  investigation  finds  that  the  respondent  is  unlicensed,  it  will  lay  information  with  the
District Court that the respondent is operating in breach of the Real Estate Agents Act 2008.
Received  refers  to  the  Authority  receiving  a  complaint.  Some  complaints  require  further
information  from  the  complainant  before  being  accepted.  Legally  a  complaint  must  meet
Regulation 4 of the Real Estate Agents (Complaints and Discipline) Regulations (2009).
Regulatory environment refers to the social, political, and regulatory framework within which
compliance organisations operate.
Regulatory model is the model used by an organisation to describe its compliance strategy.
Regulatory theories are theories describing approaches considered effective and efficient for
achieving compliance.
Rule refers to any requirements established by, or derived from, statute.  Examples of derived
rules are Regulations, Bylaws, licences, codes of conduct and other permissions.
Rules of evidence are those rules relating to use, admissibility, and limitations of evidence in a
judicial hearing.
Sanction (noun) is a penalty or other punishment imposed for a breach of the law.
Scene refers to the physical place where an apparent offence is or has been committed and/or
where any physical evidence leading to possible establishment of an offence is located.
Security  and  evidential  requirements  are  the  requirements  adopted  by  a  compliance
organisation to keep information and exhibits secure against unauthorised access or loss, and
to ensure admissibility and reliability in a judicial proceeding.  Evidential requirements are  a
subset of these and relate to admissibility of evidence.
SMEAC  stands  for  situation,  mission,  execution,  administration  including  logistics,  and
commands.  It is a planning framework used to develop and document operational plans.
Standard of Proof
Beyond a reasonable doubt
This standard of proof is satisfied if a court is left with no reasonable doubt that the event in
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question occurred. This is the standard of proof that must be satisfied by the prosecution in
criminal cases.
Balance of probabilities
This  standard  of  proof  is  satisfied  if  a  CAC  considers  the  occurrence  of  an  event  was  more
likely  than  not.  This  is  the  standard  of  proof  in  civil  cases.  It  also  applies  to  the  defence  in
criminal cases.
Strict liability refers to a type of offence where, in relation to statute, the element of ‘intent'
(mens rea) is not required to establish the offence, but where a defence of absence of fault
may apply.
Surveillance refers to maintaining either covert or overt observations on a location, activity, or
person.
Suspect refers to a person suspected of breaching a rule or involved in breaching a rule.  Other
terms  used  for  suspect  may  include  but  are  not  limited  to  –  duty  holder,  potentially  liable
party  (civil  or  criminal),  person  of  interest,  party  who  is  the  focus  of  investigation  or
compliance action, responsible person, respondent, alleged offender.  A person may be a legal
entity such as a company or partnership.
Suspended means the licensee chose to suspend their licence.
Vicarious  liability  is  a term  that  relates  to  a  person  having  liability  through  the  actions  or
omissions of another person.
Victim refers to a person against whom an offence is committed and/or who suffers injury or
loss.  'Victim' may include family members as set out in the Victims' Rights Act 2002.
Voluntary compliance is a reference to compliance achieved through information approaches
and is encouraged by cases where enforcement action has been taken.
Withdrawn refers to a complainant’s request to withdraw a complaint, which can occur at any
stage. However, if the complaint has been referred to a CAC, the CAC may decide to continue
its investigation into the matters of the complaint.

Achieve compliance or variant refers to a compliance subject becoming compliant and/or
compliance being maintained by a compliance subject, through voluntary compliance
and/or in response to intervention by a compliance organisation or organisations.
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Assist, for the purpose of this unit standard, refers to providing help or support to a
compliance subject with the aim of encouraging compliance.
Admiralty Grading System is an internationally accepted method of evaluating the
reliability of the source of information and the validity of the information supplied by that
source. Evaluation in this way enables the Intelligence Analyst to determine the value of the
information to their analysis.
Attributes, for the purpose of this assessment, may include skills.
Calls for service, for the purpose of this assessment, relate to the receipt of information
alleging non-compliance or requesting compliance assistance. Sources of calls for service
may include but are not limited to – a complaint, an internal or external referral, a tip-off,
anonymous information, a request for assistance from compliance subject, an enquiry from
a member of the public.
Case refers to a problem or situation involving non-compliance, alleged non-compliance, or
possible non-compliance requiring a regulatory response.
Civil proceeding refers to a court-based proceeding for a breach of rights or other non-
criminal matter, for the purpose of seeking a remedy by way of damages, injunction, or
other court order.
Clients refer to authorised persons who use intelligence or information, and may include
internal clients including, organisation, business unit, team, computer system and/or
external clients: government agencies, enforcement organisations
Compliance (role of) refers to the role, in a public sector organisation, of assessing
compliance subjects’ levels of adherence with regulatory requirements and carrying out any
appropriate intervention.
Compliance environment refers to the physical, social, economic, political, and geographical
environment that a public sector organisation’s compliance role is carried out in.
Compliance investigation refers to the process of gathering and assessing information to
determine facts and, thereby, to determine degree of compliance or otherwise.
Compliance options may also referred to by alternative terms, such as ‘treatments for
achieving compliance’, ‘tools for achieving compliance’, or ‘strategies for achieving
compliance’.
Compliance subject refers to a natural person or an entity that is subject, in a particular
compliance context, to being regulated.
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Control refers to command or direction of an operation.
Corporate liability, for the purpose of this assessment, may include Crown liability.
Criminal proceeding refers to a court based proceeding for a breach of law for which a
sanction is sought.
Deductive logic refers to the application of logic when the inference is based directly on the
premises.  Thus if the premises are true the inferences must be true.
Elements (of offences) are the underlying factors, which are common or rudimentary to any
offence.  They are:
1.   A physical element, called 'the act', referred to as actus reus.
2.   A mental element or state of mind, called 'the intent', referred to as mens rea.
Incident, for the purpose of this unit standard, refers to a situation that requires an
immediate compliance response.  Examples are – responding to a workplace accident,
responding to a toxic spill, responding to a domestic incident, attending a crime, attending a
crash, responding to poaching.
Inductive logic means the reasoning process by which a conclusion or inference is reached
from a set of propositions or premises.  It involves the application of logic when the
inference goes beyond the premises.
Inference means a statement derived from an assumption based on a logical conclusion or
one that is probable based upon reasoning from known parts or evidence. Inferences may
be a conclusion, hypothesis, estimation, or prediction.
Ingredients refer to the details or components of an offence which are unique to the
offence and which must be proven.
Inform, for the purpose of this assessment, refers to giving information to a compliance
subject with the aim of encouraging compliance.
Information means facts that are known or could be discovered from any source. Examples
may include written or oral reports or documents, description of an event, or an activity,
unevaluated material of every description, at all levels of reliability, and from any sources
from which intelligence can be developed.
Intelligence is information to which an interpretation has been applied following analysis of
that information.
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Intelligence also refers collectively to the functions, activities, people or organisations that
are involved in the process of planning, gathering and analysing information that leads to
the production of intelligence products which is of potential value to decision makers.
Intelligence product refers to the end result of the production step of the intelligence cycle,
in which information is developed into an intelligence product through integration, analysis,
evaluation and interpretation of all available information.
Intelligence analysis process refers to processes undertaken by Intelligence Analysts to
produce intelligence products.
Intervention refers to any action, or set of actions, taken by a compliance officer to
encourage compliance or to hold a compliance subject accountable for non-compliance.
These may include non-sanction interventions as well as sanctions.
Legal person may be a natural person or an entity, such as a limited liability company, that
is treated as a person for certain purposes.
Meaningful to the compliance subject refers to risks and/or benefits not specifically related
to the exercise of compliance in terms of statutory requirements.  Examples of risks in this
regard may be – increased insurance costs, increased absenteeism due to negative health
effects, loss of business reputation, decreased value of a property; and examples of benefits
may be – reduced insurance costs, reduced absenteeism due to health benefits, enhanced
business reputation, maintained or increased value of a property.
Obiter (‘obiter dicta’) refers to guidance or reasoning that does not form part of, or is
broader than, the ratio of the judicial decision.
Offence is a violation or breach of a law or rule.  For the purpose of this unit standard,
offences may incorporate any non-compliance with statute, Regulations, Bylaws, licence
conditions, and other subordinate legislation.
Organisation refers to a public sector organisation, as listed in the Public Sector Directory.
Organisational requirements refer to instructions to staff on organisational policy,
procedures and methodologies, which are documented and are available in the workplace.
These requirements include any legal or ethical requirements relevant to the organisation
and may include but are not limited to – site specific requirements, company quality
management requirements, approved codes of practice and guidelines, and legislative
requirements.
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Others may include but are not limited to colleagues from own and/or other organisations,
contractors, compliance subjects, potential or actual victims, witnesses, members of the
public including any bystanders, and emergency support personnel.
Other organisations refers to other compliance organisations with which one’s own
organisation interacts for compliance purposes and may also refer to any organisation or
service, other than a compliance organisation, which supports own organisation’s
compliance activity. Examples of these are: a university service for expert advice or
witnesses, a forensic computer analyst, a transcribing service, a law firm, a business
consultancy, a process server.
Premise refers to a key point statement or proposition or arguments derived from the
information analysed.
Ratio (‘ration decedendi’) refers to the court’s decision in relation to the point in question
or under appeal.
Regulatory environment refers to the social, political and regulatory framework within
which compliance organisations operate.
Regulatory model is the model used by a compliance organisation to describe its
compliance strategy.
Sanction (noun) is a penalty or other punishment imposed for a breach of the law.
SMEAC stands for situation, mission, execution, administration including logistics, and
commands. It is a planning framework used to develop and document operational plans.
Source is anyone or anything from which information can be obtained and may include but
is not limited to persons, organisations, open or closed (internal/external) sources e.g.
internet (open).
Suspect refers to a person suspected of breaching a rule or involved in breaching a rule.
Other terms used for suspect may include but are not limited to – duty holder, potentially
liable party (civil or criminal), person of interest, party who is the focus of investigation or
compliance action, responsible person, respondent, alleged offender. A person may be a
legal entity such as a company or partnership.
PROBLEM – SOLVING

1.  Identify three problem-solving models. For each model: (9695 1.1 – 1.3)
▪  describe the model
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▪  explain it’s purpose
▪  explain each stage of the model
▪  outline advantages and disadvantages of the model

Model 1:

Click here to enter text.

Model 2:

Click here to enter text.

Model 3:

Click here to enter text.

2.  Outline three problem-solving techniques. These may include creative, analytical and
sequential or any others that are relevant in your work. For each technique: (9695 2.1 –
2.2)
▪  explain its purpose
▪  outline advantages and disadvantages of the technique

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Technique 1: Mind Maps

Click here to enter text.

Technique 2: Story-boarding

Click here to enter text.

Technique 3: Ask Questions
Ask 'Why' a problem is occurring and then ask 'Why' four more times.

For example...

1. Why has the machine stopped?
A fuse blew because of an overload

2. Why was there an overload?
There wasn't enough lubrication for the bearings

3. Why wasn't there enough lubrication?
The pump wasn't pumping enough

4. Why wasn't lubricant being pumped?
The pump shaft was vibrating as a result of abrasion
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5. Why was there abrasion?
There was no filter, allowing chips of material into the pump.

Installation of a filter solves the problem.
The Six Universal Questions
Idea Generators should be aware of a simple universal truth. There are only six questions
that one human can ask another:
What?
Where?
When?
How?
Why?
Who?

Click here to enter text.

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Document templates

Decision to inquire letters
Investigation documents
Reporting documents
CRM information
Template wording for investigators to use to inform Committee that a section 85 notice may
be justified

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