Legal Lowdown Newsletter#32

ISSUE

32 March 2016

COMMUNITY LEGAL SERVICES SOUTH TRUST

LEGAL LOWDOWN

POLICE COMPLAINTS: IPCA Independent Police Conduct Authority The Independent Police Conduct Authority (IPCA) was established in November 2007, replacing the Police Complaints Authority. The IPCA receives complaints alleging misconduct or neglect of duty by any member of the Police or any Police practice policy or procedure and/or investigate incidents where a member of the Police may have caused death or serious bodily harm while acting in the execution of his/her duties.

If the IPCA are unhappy with the action taken by the police then they must inform the Attorney-General and the Minister of Police.

In a recent Radio New Zealand interview the IPCA stated that "There have been occasionally matters we have referred back to the police where, if we'd had the resource, we might have investigated, including excessive force cases, but the ones that we regard as critical cases and most significant, we do always investigate." In response, Hon Amy Adams, Minister of Justice stated that she believes the IPCA do get enough funding. *

If the IPCA receive a complaint from the public about a police officer’s conduct they will either investigate it themselves or refer it back to the police for investigation with their oversight.

If the IPCA believe the complaint to be very minor or outside their jurisdiction they may decline to take action altogether.

If you wish to make a complaint to IPCA about a police officer’s conduct then you can do so either online or by downloading a form from their website. If you need assistance in filling in the form then you can get assistance from your local Community Law Centre.

The IPCA have the power to summon witnesses and gather evidence. They may make a determination and then make a recommendation to the police about whether or not the officer involved should have disciplinary action or criminal proceedings taken against them.

*Source: Radio New Zealand: http://www.radionz.co.nz/news/ political/296212/ipca-not-enough-money-for-all-complaints

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FEMINIST JUDGEMENT PROJECT

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JURY SERVICE

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PACIFIC ACCESS & SAMOAN QUOTA

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LAW CHANGES Employment Law

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FEMINIST JUDGEMENT PROJECT

International women’s day was marked on 8 March

Judge Fox was one of the judges to sit on the first ever all

2016. Historically this has been a day to agitate for is-

female bench of the Maori Appeal Court.

sues such as equal pay and parental leave.

an honour and privilege to learn from these women.”

In line with International Women's Day our lawyer, Lisa

There will be a distinctly Aotearoa approach taken to some

Fox, attended the Feminist Judgement Project in Wel-

of the judgments. With Mamari Stephens leading the mana

lington. The FJP is an international movement which

wahine strand of the project . They will be asking “what does

takes judgments in the local jurisdiction and re – writes

it mean to be mana wahine?” Taking a tikanga based ap-

them from a feminist perspective. The project has al-

proach to judgment re – writing.

ready taken place in the UK, Ireland, and Australia. This

Participants also had the benefit of practical lessons on how

is the first time the project is taking place in New Zea-

exactly to write a judgment from one of the team who

land. Those taking part in the project range from practi-

teaches judges how to write judgments. The key point was

tioners to academics, to retired judges.

that clarity in writing is an access to justice issue. A further

Broadly speaking the project aims to challenge the sys-

point made was that the structure we use may affect our

temic bias towards male views within judge made law.

thinking and the way in which we decide.

The judgments aim to show that at the time the judg-

Lisa will be re - writing C v Air Nelson which is a case which

ment was made with the material available at the time

involves an employee being dismissed for serious miscon-

the judge or judges could have used different reasoning

duct, one of the grounds being sexual harassment. The dis-

and in some cases come to a different decision.

missed employee was reinstated by the Employment Court.

Participants had the privilege of hearing from five female

Lisa will be co–writing the judgment with a friend who is a

judges from the Supreme Court , Court of Appeal, High

criminal practitioner. Rewriting the judgment will address the

Court, Maori Land Court and Family Court. Caren Fox

issue of sexual harassment in the workplace and the often

was one of the judges present and outlined what it is

masculine lens through which it is viewed and judged.

that the Maori Land Court and the Waitangi Tribunal

The whole day was a fantastic opportunity to learn from, talk

do. In 2015, Justice Christine French sat on the first ever

to and socialise with other members of the profession who

all female Court of Appeal bench.

consider themselves feminists.

Lisa says “It was

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JURY SERVICE

Called for Jury Service?

If you receive a summons for Jury Service you will be required to attend a court trial as a Juror. As a Juror, your role will be to to hear evidence in relation to a court trial hearing and to help decide on a verdict. (outcome of guilt or innocence). You don’t need to have any legal training but you will receive some guidance from the Judge, about the law that the applies to the case you are deciding.

As a juror, your role does not include deciding on a sentence., this is done by the Judge. You also don’t need to be an expert in courtroom processes. Jury service usually lasts for one week and you might participate in more then one trial during this time.

There may be circumstances where it is not suitable for you to attend jury service. If you receive a summons for jury duty and you are:    

a practising member of a religious sect or order that is opposed to jury service, are 65 years of age or more, have attended or carried out jury service in the previous two years, or have been excused from jury service for a period that has not yet expired,

you can apply in writing to be excused from service.

Even if none of the above reasons apply to you, you still may need to defer or be excused from jury service. You can apply to defer or be excused from jury service if:   

your occupation or business may need you to work because of special commitments, you have a physical disability, or your health, family commitments, or other personal circumstances do not allow you to attend.

2,595

2,195

2,004

The number of new Jury Trial cases in the year ending June 2015*

The number of Jury Trial case disposals in the year ending June 2015*

The number of active Jury Trials cases in the year ending June 2015*

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PACIFIC ACCESS & SAMOAN QUOTAS O le vaega faapitoa lenei o le Legal Lowdown e talanoina ai mataupu faaletulafono o loo aafia ai tagata Pasefika i le siosiomaga inei Niu Sila.

O lenei masina o lo’o faatauaina ai mataupu faale tulafono e faatatau i femalagaiga. E faapitoa le faasoa i lenei lomiga i aiaiga o le Samoan Quota (e mo na’o tagatā nuu Samoa) poo le Pacific Access Category (mo tagatā nuu Kiripati, Tonga ma Tuvalu). Ua faasalalau foi igoa o tagata na manuia i lenei tausaga i le se’i i le website a le Matagaluega o Femalagaiga (Immigration New Zealand).

If your name is successfully pulled from the ballot then you, your partner and dependent children will be eligible to apply for a residence visa.

DATES FOR REGISTRATION Registrations are open from 1 April to 29 April 2016 for the Pacific Access Quota and the Samoan Quota.

NUMBER OF SPOTS AVALIABLE Samoan Quota is 1,100 citizens The Pacific Access Category is 250 citizens of Fiji, 250 citizens of Tonga, 75 citizens of Tuvalu and 75 citizens of Kiribati

ELIGIBILITY CRITERIA 

Need to be a citizen of Samoa, Fiji, Tonga, Tuvalu or Kiribati to be eligible to apply; and



Aged between 18 and 45 inclusive at the registration closing date.

HOW TO APPLY A form is available on the Immigration New Zealand (INZ) website. This form needs to posted or couriered to INZ and needs to be received by INZ no later than 29 April.

A certified copy of the person applying and their immediate family’s birth certificates needs to be included.

Make sure you plan ahead and send the form in time for it to be received.

ONCE SUCCESSFUL The main applicant needs to apply for a residence visa within 3 months of being successfully drawn from the ballot. Application for residence for the family needs to be made 12 months after being successfully drawn.

If you are not already in New Zealand lawfully you will be issued with a visitor visa to enable you to secure employment but you cannot work on a visitor visor (you’ll need a work visa for this). You must secure employment before a residence visa will be granted.

You are unable to register for the ballot if you are in New Zealand unlawfully.

FEES There is no fee for entering the ballot for Samoan Quota but there is a $75 registration fee for Pacific Access Category (For a first year’s registration) and $30 registration fee for second and subsequent registrations. You will however need to pay the relevant residence application fee. The fee varies. In order to see the amount of the fee that will apply to you visit the INZ website.

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EMPLOYMENT LAW CHANGES

During March there was a lot of discussion about employment issues. A lot of this discussion centered around the Employment Standards Bill which has now passed its third reading, the changes of which will come into effect on 1 April 2016. Key changes to the minimum standards are minimum wage increase, parental leave increase, the abolition of zero hour contracts, notification of shift cancellations. Finally, this month it has become clear that a number of large employers are paying holiday pay incorrectly, a discussion of holiday pay calculation is on the next page.

PARENTAL LEAVE INCREASE 

Increase from 16 weeks to 18 weeks.



More people are eligible for parental leave including casual, seasonal, and employees with more than one employer.



People taking permanent care of children 6 years and under including whāngai and home for life parents.



Premature babies that are born before 37 weeks are entitled to up to 13 additional weeks.

MINIMUM WAGE INCREASE 

The adult minimum wage rate will increase .50 cents to $15.25 on 1 April 2016.



The starting-out and training minimum wage will increase .40 cents to $12.20.

There are three minimum wage rates. The adult minimum wage, the starting-out wage and the training minimum wage

Days observed: International Women’s Day, 8 March Neighbours Day, 19-20 March 2016 Race Relations Day, 21 March 2016

What is a minimum wage?

A minimum wage is the amount of money (wages) that must be paid by employers to all employees aged 16 or over. The minimum wage rates are reviewed and usually adjusted each year on 1 April.

SHIFT CANCELLATIONS An employer must give reasonable notice of a shift cancellation. If they fail to give reasonable notice then the employer must pay the employee for the shift.

Tune-in to our legal information radio sessions: Planet FM: Kiribati Voice, from 1:00pm Radio 531pi: Pacific Drive Time, from 2:00pm

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NO MORE ZERO-HOUR CONTRACTS NO MORE ZERO HOUR CONTRACTS Zero hour contracts have been outlawed. Zero hour contracts were where an employee was guaranteed no hours of work but had to be available to work at any time, and therefore their ability to secure secondary employment is limited.

There must be a genuine reason for the employee needing to make themselves available and the employee must be reasonably compensated for making themselves available.

DEDUCTIONS FROM WAGES Employers are barred from making unreasonable deductions from people’s wages. For example, deducting money from a petrol attendant’s wages due to a customer driving off without paying for their petrol.

Ordinarily, an employer is required to pay you the higher of average weekly pay or ordinary weekly pay. A common mistake was employers failing to do both calculations and simply calculating AWP.



Average weekly pay is gross earnings for the 12 months immediately before the end of the last pay period before the annual holiday, divided by 52.



Ordinary weekly pay is what you are paid ordinarily.

If you cannot establish your ordinary weekly pay (due to having large variations in the amount you are paid throughout the year) then you go to the 4 weeks preceding when you took a holiday and divide it by 4.

Note there are exceptions to the general rule, if you are employed on a regular permanent basis but employment ends prior to having been employed for 12 months your holiday pay should be 8% of gross earnings.

WHERE TO GET HELP Ring 0800 20 90 20. This is a phone line provided by the Ministry of Business Innovation and Employment.

If your work is intermittent or irregular your holiday pay should be paid on a pay as you go basis. Pay as you go is where the employer pays you 8% on top of your normal pay.

CALCULATING HOLIDAY PAY Be aware that a large scale practice of employers (or their pay roll systems) failing to correctly calculate holiday pay has been uncovered.

MBIE has released a new Product Recalls web tool.

The website is dedicated to improving public access to product safety recall information. You can view the website via the link below: www.recalls.govt.nz Food recalls are available on the MPI website: http:// www.mpi.govt.nz/food-safety/food-safety-forconsumers/food-recalls/ 6

MAORI LEGAL INTERESTS The TPPA & its effect on Māori Intellectual Property

Generally speaking, performer rights can be divided into three categories, as follows:

On 9 March 2016 the Ministry of Business, Innovation and Employment released a consultation document that described the proposed changes to intellectual property laws and regulations that are required under the Trans-Pacific Partnership Agreement (TPPA).

(a) Moral rights: these rights include being identified as the performer and the right to object to derogatory treatment of their performance and records of such.

Some of these changes include:

    

a more extensive regime for performers’ rights patent term extensions to compensate for any unreasonable delays in the granting of the patent patent term extensions to compensate for any unreasonable delay as a result of Medsafe’s marketing approval process a revised regime for the protections of technological protection measures new powers for Customs to detain goods that are suspected of infringing copyright or trade marks.

The following proposed changes will affect Māori: PERFORMERS’ RIGHTS REGIME Under a new performers’ rights regime, performers (including kapa haka) will be given additional rights relating to the communication of their performances in public, the recording of their performances and the exploitation of such recordings.

(b) Property rights: these rights include being able to authorise the reproduction, distribution and rental of sound recordings made form their performances. (c) Non-property rights: these rights include the ability of performers to consent to their performances being recorded or communicated in public by third parties. These rights are not assignable.

In addition to the above proposed changes, there is also a proposal to extend the life of copyright 70 years. Under the current Copyright Act 1994 the law allows copyright to subsist for 50 years.

Submissions on the consultation document closed on 30 March 2016 however you can download a copy of the consultation document via the MBIE website: http:// www.mbie.govt.nz/info-services/business/intellectual-property/ tpp-intellectual-property-chapter/implementation-consultation/ consultation-document.pdf

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Otara CLSST Office 120 Bairds Road Otara Appointments available: Monday – Friday

Manukau Salvation Army 16B Bakerfield Place Manukau Appointments available: Monday-Friday

Papakura Papakura Citizens Advice Bureau 4a Opaheke Road Papakura Appointments available: Thursday

Pukekohe Heartland Services 6a Roulston Street Pukekohe Appointments available: Fortnightly on Tuesday

Manurewa Manurewa Marae 81 Finlayson Ave Manurewa Appointments available: Wednesday

Maori Land Clinic Manurewa Marae 81 Finlayson Ave Manurewa Appointments available: First Wednesday of every month

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183 THE NUMBER OF PARTICIPANTS IN OUR LEGAL EDUCATION SER V IC ES T HI S MONTH

OUR CASEWORK February 2016 LEGAL ASSISTANCE = 56% LEGAL ADVICE = 39% LEGAL REPRESENTATION = 5%

14% THE PERCENTAGE OF MAORI CLIENTS WHO USED OUR SER V IC ES T HI S MONTH

ADMINISTRATIVE LAW = 38% CIVIL LAW = 30% CRIMINAL LAW = 12% FAMILY LAW = 19% MAORI LEGAL = 1%

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