Legal Lowdown Newsletter#34

ISSUE

34 May /June 2016

COMMUNITY LEGAL SERVICES SOUTH TRUST

LEGAL LOWDOWN

MUSIC & COPYRIGHT 1. Detection of alleged file sharing The copyright owner can contact the Internet Service Provider (ISP) of an account holder to issue a Detection Notice. The ISP is then legally required to act on the copyright owners behalf and issue infringement notices where appropriate.

May is New Zealand music month where we get to celebrate our county’s renowned and upcoming music artists and composers.

It is also an appropriate time to inform our communities about the legal restrictions and protections that are offered to music artists (amongst others) to protect their musical works.

2. Issuing a Detection Notifications An ISP can issue up to three notices which set the alleged infringement and the consequences of any further breaches. It will also provide details of how an account holder can challenge a notice.

Copyright The law of copyright is set out in the Copyright Act 1994.

3. Challenging a Detection Notification An account holder can challenge a notification by completing a form and returning it to the ISP who will forward it to the copyright owner. If the copyright owner does not respond, the notice will be cancelled.

Copyright is a right exclusively granted to the author (or commissioner) of original works (including music). Copyright stops others from copying original works but does not prevent a person or entity from independently producing the same work.

4. Copyright Tribunal Where the infringement is sever or remains unremedied, the copyright owner can make a claim to the Copyright Tribunal which can hear claims of up to $15,000.

There is no formal registration of copyright in New Zealand as copyright applies automatically and will usually last for 50 years. Copyright protection is also free.

This means that before you use, perform or play an artists music in public, you need to first seek their permission and consent.

If you do not have the appropriate clearance form the copyright owner then they or their company may take legal action against you for breach of copyright.

4. Appeals Either party can appeal a decision to the District Court or apply for a rehearing with the Copyright Tribunal within 28 days of an order or agreed settlement. the account holder or the copyright

File Sharing

For more information, please see the following links and resources:

File Sharing is where original works are being shared illegally without the owner’s permission. An example of this is illegally downloading, streaming and sharing a music track.

New Zealand Intellectual Property Office: www.iponz.govt.nz/about-ip/copyright/file-sharinginfringement/

The Copyright Act 1994 sets out a three notice process for dealing with file sharing infringements.

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MEDIATION Community Mediation

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DOMESTIC VIOLENCE

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BRIEFCASE Disability Sector

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EMPLOYMENT LAW & CONVICTIONS

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In May 2016 our lawyer Wi Pere Mita attended a Mediation Training course in Christchurch with the Resolution Institute . Wi Pere was fortunate enough to receive a scholarship to attend the training and participate in the week long practical workshop.

MEDIATION TRAINING

Wi Pere is now an accredited mediator through Resolution Institute. We are currently in the process of setting up a Community Mediation service and hope to have this up and running soon.

DAYS OBSERVED YOUTH WEEK

VOLUNTEER WEEK

Youth week was observed from 21-29 May. The theme of Youth Week 2016 was “aroha mai, aroha atu giving back is giving forward”.

National Volunteer Week was observed from 19—25 June 2016. The theme of Volunteer Week 2016 was “thanks for making time”.

SAMOAN LANGUAGE WEEK

WORLD REFUGEE DAY

Samoan Language Week was observed from 29 May - 4 June 2016.

World Refugee Day is observed every year on 20 June.

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DOMESTIC VIOLENCE New Zealand has some of the worst rates of domestic violence in the developed world. This is something that the media, the New Zealand Herald in particular, has been focusing on. What can be done to address this issue? This article will focus on the law’s response to the issue of domestic violence.

Firstly, what does the law regard as domestic violence?

There must be a domestic relationship and there must be violence. People often think that the violence needs to be physical but in actual fact the violence can also take other forms - including verbal and psychological abuse such as intimidation and harassment.

Secondly, when does the law recognise a domestic relationship? Section 4 of the Domestic Violence Act 1995 outlines domestic relationships can exist between spouses, partners, family members, or household members, someone who has a close personal (but not necessarily sexual) relationship with the person. If the children of the household are hit or subjected to seeing and hearing an adult being hit then that is considered domestic violence against the child.

Protection orders can contain a variety of conditions. Some conditions are standard such as non-violence conditions, non-contact conditions, conditions requiring the person against whom the order is being sought (‘the respondent’) attend non-violence classes, and preventing that respondent from possessing firearms or other weapons.

In addition, special conditions may be sought to restrict the respondent from certain places or to protect an applicants right to any accommodation that might be shared with the respondent. Occupation orders can be made to temporarily give an applicant exclusive rights in a property even though the respondent may be the sole owner, forcing the respondent to move out and ensuring the claimant has somewhere to stay immediately following the issuing of an order. Tenancy orders are similar and can be made in regards to tenancy agreements, these orders can make a claimant the sole tenant in a property and remove the respondent - even if the respondent was the only named tenant on the tenancy agreement.

The purpose of having a protection order is to put the other party on notice that they must act per the conditions of the order. The police have the ability to arrest people simply for breaching a protection order, an offence which is punishable by up to three years’ imprisonment.

Protection orders can be temporary or final, and may be granted for with or without prior notice to the other party. If the Family Court is satisfied that the applicant is no longer at risk from the defendant then they may cancel the order.

If the police believe that domestic violence has or might occur then they also have the power to issue a Police Safety Order (PSO) directly. A police officer has the power to issue a PSO on the spot. The order can last up to 5 days. The expiry time and date are listed on the order. No criminal conviction results from the issuing of a PSO. If you are a migrant woman, and would have been eligible to become a resident through a relationship but leave that relationship due to domestic violence, then there is a special domestic visa category under which you may apply for a visa.

Currently, when a defendant appears before the Family Court on a domestic violence charge, the judge can see only the criminal history of the defendant. The criminal history refers specifically to convictions that the defendant has on their record. The Family Courts in Porirua and Christchurch are currently running a pilot programme which involves a judge being given a defendant’s police history of family violence. This history includes call outs to the house, protection orders and breaches, involving the current partner and any history pertaining to previous relationships.

The pilot program is due to be extended and supporters of the programme say that the approach is having a positive impact - allowing judges to make better informed decisions.

If you need further information or assistance with regard to the information above please contact your local Community Law Centre who will either be able to assist you or refer you to the appropriate place for help.

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BRIEFCASE Cooper v Wisecare Ltd 22 April 2016 [2016] NZERA Auckland 122 Through ‘Briefcase’, we show our readers some of our client success stories. This month we bring you the case of Ms Lynette Cooper who was unjustifiably dismissed from her employment. We represented Ms Cooper through the Employment Relations Authority and provide a summary of her case, below.

We represented Ms Cooper in relation to her employment dispute against Wisecare Limited (“Wisecare”).

Employment Relations Authority The Employment Relations Authority found that: 

Ms Cooper had been unjustifiably constructively dismissed because Wisecare put her in a position where it was untenable to continue in the employment.

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The Authority held that Wisecare had breached the duties of an employer and breached their good faith obligations to Ms Cooper, and therefore she was entitled to remedies.

Ms Cooper raised a personal grievance, claiming she had been constructively dismissed, however, Wisecare failed to engage in the full resolution process, including a failure to appear at Mediation and the Employment Relations Authority (“ERA”) investigation meeting. As a result, a the ERA made a determination in favour of Ms Cooper.

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Wisecare adopted a “cavalier attitude” to the payment of wages by failing to pay the minimum wage and failing to pay holiday pay by deducting the non -taxable allowance on a unilateral basis. Furthermore Wisecare unilaterally changed the nature of Ms Cooper’s shifts so it effectively halved her income.

Ms Cooper had worked for Wisecare for 10 months, where she was getting paid well below the minimum wage on her sleep-over shifts. She claimed that Wisecare made it impossible for her to continue working because of her minimum entitlement breaches.

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The Authority were satisfied it was reasonably foreseeable that Ms Cooper has no choice but to repudiate the employment agreement.

Background In December 2014 Ms Cooper was forced to resign because she “felt used” and Wisecare had “consistently ignored her legal rights”. She also claimed there was breach of good faith by Wisecare.

When Ms Cooper raised her employment issues with her employer she was told “I don’t pay people to sleep”.

She worked unsociable hours and was not normally given a opportunity to take a break during 8+ hours shifts. Ms Cooper was initially only paid $50 per 8 hour overnight shift before finally received the minimum rate for the shifts (2 weeks prior to the end of her employment).

NB: The full case can be accessed via the Ministry of Business, Innovation and Employment website: http:// employment.govt.nz/workplace/determinations/ PDF/2016/2016_NZERA_Auckland_66.pdf

As a result Ms Cooper was awarded  $5,000 for compensation;  $14,502 in wages;  $6,800 in non-taxable allowances;  $1,160.16 in unpaid holiday pay and  $7,500 as a result of not being able to find work for 3 months.

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EMPLOYMENT & CONVICTIONS SHOULD AN EMPLOYEE DISCLOSE CRIMINAL CHARGES TO AN EMPLOYER?

ASG raised a personal grievance on the basis that the suspension and the warning were unjust.

ASG v Hayne [2016] NZCA 203 – Harrison, Wild and Kos JJ – 16 May 2016

The Employment Relations Authority found that the suspension was justified however the final written warning was not.

Facts: The appellant is referred to as ASG. The respondent is the Vice-Chancellor of the University of Otago (in his capacity as ASG’s employer). ASG worked for Campus Watch at the University of Otago in a security role to protect students on campus.

In 2013, ASG pleaded guilty to one charge of wilful damage and one of assaulting a female.

At sentencing, ASG was discharged without conviction on both charges as the judge believed that the consequence of conviction be out of proportion to the gravity of the offending. Judge Flatley remarked that, taking ASG’s role into consideration, there was an “extremely strong likelihood that you would lose your job” (proportionality being the test required by s 107 of the Sentencing Act 2002).

Judge Flatley also made a name suppression order, pursuant to s 200 of the Criminal Procedure Act 2011.

The Deputy Proctor of the University was sitting in the public gallery while the judge delivered his oral decision.

The Deputy made enquires as to whether or not the suppression order prevented him from discussing the charges with the appropriate people within the University. The University’s lawyer advised the Deputy that the “Court’s suppression order did not extend to the bare communication of information to genuinely interested people on a person-to-person basis”, the genuinely interested people being those within the University who needed to know for the purposes of deciding whether or not to investigate the charges.

ASG was suspended pending the University’s investigation. ASG’s union advised him not to participate as the process was based on the University breaching the Court’s suppression order. The University continued with the investigation process, despite ASG’s nonparticipation, resulting in ASG being issued with a final written warning.

Both parties appealed to the Employment Court. The case was then appealed to the Court of Appeal.

The Court of Appeal found that under the duty of good faith contained at s 4 of the Employment Relations Act 2000, ASG was “required to disclose the charges he faced to the University as his employer”. The Deputy Proctor’s disclosure, that ASG had pleaded guilty, was simply a proxy for ASG failing to tell the University himself. The University had a genuine interest in the information and the Deputy Proctor only told those who needed to know for the purposes of the disciplinary action.

LESSONS The lesson for employees arising out of this case is that if you are charged with an offence which could impact on your role then acting in good faith requires you should disclose that to your employer. Keep in mind that not all charges will be relevant to an employer; only those which are related to an employee’s role and responsibilities as an employee need be disclosed. In this case, the employee was a security guard so the fact that he pleaded guilty to an assault charge would be relevant to his employment.

The Court noted that: “Ultimately, any decision about the consequences for employment of a prosecution with or without conviction of an employee will be for the person’s employer.” EC judgement at [30]. In other words, in the employment context it is not for the court to make decisions on behalf of the employer.

If an employer doubts whether or not its proposed use of information breaches a suppression order then they should apply to the court for a variation of the order.

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BOOKS BOOK FORAPPEAL: PRISONS 2016 Help us increase literacy and numeracy levels of prisoners.

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HIDDEN HOMELESSNESS Over the last couple of weeks, the plight of homeless families has been highly publicised in the media. The term ‘hidden homelessness’ has been used to refer to those who live in their cars, or in houses which are extremely overcrowded. While these people are not living on the street, they are effectively still homeless. Jenny Salesa, MP for Manukau East, has been one of the vocal people drawing attention to the issues many are facing as a result of the dire housing shortage.

By the start of 2016, Auckland’s housing market had risen to tie as the fourth least-affordable amongst 87 major markets.

As a result of the shortage of affordable housing, more and more families are renting garages to live in. These are nonconverted garages; garages designed to house cars. In one of the most astounding examples reported by Jenny Salesa MP, a family of two adults and two young children were renting a garage for $380 per week. There are also significant issues of overcrowding with reports of families of up to 17 living in three-bedroom houses.

Those who were unaware of people living in these situations may ask “How is this possible in a country like ours?” The Salvation Army has released a report explaining: “Over the past three years, Auckland’s population has grown by over 63,000 people, yet just over 10,000 new dwellings have been built— meaning that the city is short over 10,000 houses.” Further, the report finds “Housing is too expensive for up to a quarter of all households to afford without Government assistance.”

With a shortfall of 10,000 houses in only the past three years, it is little wonder that families are being forced to live in garages, cars and extremely over-crowed houses. The significant shortage in the housing supply is one of the key factors driving up house prices. Until more housing becomes available, singleincome families with multiple children are going to find it difficult to find affordable, healthy housing.

It was further revealed by the media that WINZ was providing emergency housing by lending people money to stay in motels. These motels cost up to $1400 a week. As a result of increasing public pressure, WINZ has agreed to a one-week grant for motels in emergency situations where the cost does not need to be repaid to WINZ. The one week could be extended at WINZ’s discretion.

The public response to the crisis has been swift. Te Puea Memorial Marae in Mangere Bridge has opened its doors to provide emergency housing. They currently have an appeal running for koha putea (monetary donations), nonperishable foodstuffs, warm winter clothing and blankets.

If you wish to donate, their drop off days are Monday, Wednesday and Friday between 9am and 5pm. Contact by e-mail: tepueamemorialmarae@gmail.com A further response to the crisis has been Park Up For Homes, an event which started recently in Mangere. On 16 June, 700 people parked up in solidarity with those being forced to live in their cars. On Saturday 25 June, Park Up For Homes happened in Otara and also in Wellington.

The Park Up For Homes Otara was attended by one of our lawyers, Lisa Meto Fox. The event was well-attended by around 200 members of the community - despite the heavy rainfall throughout the day.

“There was a real sense of community spirit with families with children, people on their own and all age groups attending. Shining a light on what was once a hidden issue.” http://www.salvationarmy.org.nz/research-media/socialpolicy-and-parliamentary-unit/general-election/theunfolding-housing-crisis

Cold, damp living conditions cause respiratory illnesses. Overcrowding is known to increase a house being damp and cold. It goes without saying that garages and cars will also be cold and damp. The respiratory diseases caused by these living conditions can and do kill. In 2015, the Coroner issued a report stating that the cold, damp house toddler Emma-Lita Bourne lived in was a direct cause of her death. The house Emma-Lita lived in was a Housing New Zealand house located in Otara.

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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

Maori Land Clinic Manurewa Marae 81 Finlayson Ave Manurewa Manurewa Manurewa Marae 81 Finlayson Ave Manurewa

Appointments available: First Wednesday of every month

Appointments available: Wednesday

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