Legal Lowdown Newsletter #37

ISSUE

COMMUNITY LEGAL SERVICES SOUTH TRUST

37 October 2016

LEGAL LOWDOWN

DAMAGE TO RENTAL PROPERTIES (a) The landlord applied to the Tenancy Tribunal seeking compensation from the tenant for the costs to repair the damage.

DAMAGE TO RENTAL PROPERTIES: WHO PAYS? A recent Tenancy Tribunal decision in the case of Tekoa Trust vs Stewart, Amanda has led the New Zealand government to review the laws relating to rental properties.

The Tenancy Tribunal found that the tenant was not liable for the costs to repair the damage because:

The Building and Housing Minister, Dr Nick Smith has proposed changes to tenancy laws that would make tenants liable for damage caused by carelessness or negligence, up to the value of four week’s rent.

(a) The landlord failed to prove that the damage was caused intentionally; and

In the Tekoa Trust case:

(c) The landlord was insured for such damage.

(a) The parties agreed to a “no-pets” clause in the tenancy agreement;

The Tekoa Trust has appealed the decision to the District Court.

(b) The tenant failed to adhere to the abovementioned

We will keep an eye on any developments in this area.

(b) The tenant’s actions did not amount to a imprisonable offence; and

clause. Consequently a dog gained entry to the rented property and caused $3,000 worth of damage to the property carpet;

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BOOKS FOR PRISONS Raising Literacy Levels

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MĀORI LEGAL Whāngai

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TRANS-TASMAN LAW CLCs Australia

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CONSUMER LAW Consumer Guarantees1

BOOKS FOR PRISONS BOOKS FOR PRISONS: Increasing the literacy and numeracy levels of inmates.

CLSST has been delivering legal education services to local prison services since 2015. Over this time we have worked with prison staff and community groups to develop ways in which we can collectively raise the literacy and numeracy levels of those within prisons. Recent statistics show that approximately 90% of prison populations have low literacy levels.

In this respect, the project was fortunate to receive donations of te reo Māori resources from local community groups to assist prisoners with developing and enhancing their te reo Māori proficiencies.

“approximately 90% of the New Zealand prison population has low literacy levels”

Earlier this year CLSST teamed up with the Māori Justice Network and Hāpai Te Hauora Tāpui, a Māori public health provider, on a project called “Books for Prisons” - a book appeal.

The aim of the project was to seek donations of books from the community, to gift to local prisons. Over 100 new and preloved books were donated by local community members and organisations.

CLSST would like to take the opportunity to thank all those who donated books to the “Books for Prisons” project.

Special thanks also to the project partners the Māori Justice Network and Hāpai te Hauora Tāpui.

“Over 100 books and resources donated”

Recent statistics show that Māori make up over 50% of New Zealand’s prison population. Given the current Māori prison population, the project placed particular focus on sourcing Māori language books and resources.

The project was also fortunate to receive donations of legal textbooks and law resources from local law firms.

These legal resources will assist CLSST in delivering its preventative legal education services to its local prison.

“Nāu te rourou, nāku te rourou, e ora ai te iwi - with your contributions and my contributions the people will prosper”.

We will be looking to hold another book appeal next year and welcome any support from our local community members and organisations.

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MAORI LEGAL INTERESTS Mr Minhinnick argued that he was unjustifiably disadvantaged because his whāngai brother was a blood relative and that New Zealand Steel Limited had granted bereavement leave to other employees for stepparents and nieces.

WHANGAI WHĀNGAI & BEREAVEMENT LEAVE A recent Employment Relations Authority case Minhinnick v New Zealand Steel Limited (“Minhinnick Case”) has reignited discussions on the status of “whāngai” within the law. Whāngai is the concept of customary adoption in accordance with tikanga Māori (Māori customs).

Case Summary In the Minhinnick Case the Employment Relations Authority found that New Zealand Steel Limited were unjustified in refusing to grant Awa Minhinnick three days bereavement leave to attend the funeral of his whāngai brother.

New Zealand Steel Limited argued that the Adoption Act 1955 provides that “no adoption in accordance with Māori custom shall be of any force or effect” and that “whāngai” fell outside of the definition of an immediate family member under the company collective employment agreement.

The Employment Relations Authority relied on the “natural and ordinary” definition of the term “brother” which is “a man or boy in relation to other sons and daughters of his parents” and concluded that the whāngai was definitely considered the son of his whāngai parents. This was supported by the fact that the whāngai son’s name was included on Mr Minhinnick’s father’s headstone.

Ultimately the Employment Relations Authority awarded: (a) That Mr Minhinnick’s full bereavement leave be instated; and (b) That New Zealand Steel Limited pay Mr Minhinnick a compensatory sum of $1,000 for hurt and humiliation. (c) Costs reserved.

Although not recognised under the Adoption Act, whāngai does have legal status under the Te Ture Whenua Māori Act 1993 for the purposes of dealing with Māori land.

In any event, the above case highlights that the legal status of whāngai, in an employment context must be considered on a case-by-case basis looking at the blood connection of the whāngai to his or her whāngai parents.

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TRANS-TASMAN PARTNERSHIP Community Legal Centres Australia Servicing the most vulnerable members of society. A Trans-Tasman partnership.

Earlier this month our lawyer, Wi Pere Mita, travelled to Sydney, Australia to meet with the team at the Public Interest Advocacy Centre Limited (“PIACL”). PIACL is a member of the Community Legal Centres movement, Australia’s equivalent to New Zealand’s Community Law Centres.

PIACL shared with us how its centre works and some of its access to justice programmes such as: (a) Pro-bono lawyer referrals; (b) Homeless Persons’ Legal Services;

CLSST shared some of its projects including: (a) Marae based legal services; (b) kaupapa Māori legal services; and (c) CLC operations and governance.

The exchange was beneficial to both centres who will be looking to implement services based on the new found knowledge shared at the exchange.

“servicing the most vulnerable members of our community”

(c) National Aboriginal and Torres Strait Islander Legal Services; (d) Governance and Management structures; and (e) Funding systems.

PIACL and CLSST will now work together on projects of mutual benefit and look to forge partnerships with other Community Legal Centres throughout Australia.

You can find more information about PIACL services via its website at www.piac.asn.au

More information about the National Aboriginal and Torres Strait Islander Legal Services can be found via its website at: www.natsils.org.au More information about Community Legal Centres in Australia can be found at www.naclc.org.au

PIACL also shared with us information about what other Community Legal Centres are doing across Australia.

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CONSUMER ISSUES In recognition of the recent celebration of the Niuean language week, a big Fakalofa lahi atu and warm Pacific greetings to you all.

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Samsung has recently recalled their latest Samsung Galaxy Note7 phone due to a serious fault with the battery. After numerous reported incidents of overheating smartphones worldwide, Samsung made the unprecedented decision to recall every single one of the Galaxy Note 7 smartphones sold. This incident is a timely reminder to be familiar with our rights under the Consumer Guarantees Act.

If the goods do not comply with these guarantees then the Act outlines what your rights are.

The product is the same as any demonstration model, sample, or description of it. Mail-order goods must match their photographs in the catalogue.

Your rights under the Consumer Guarantees Act will depend on whether the fault is minor or serious. If it’s minor then you must give the supplier the opportunity to fix the fault.

If it is serious you can take the product back and ask for it to be fixed or choose a replacement of the same type of similar value or ask for a full refund of the amount you purchased it for. The Samsung Galaxy Note 7 phones were arguably unsafe and are an example of a serious fault.

What can you do if the business refuses to do anything?

You have a couple of options: Complain to the Commerce Commission who is responsible for enforcing the Fair Trading Act which prohibits suppliers misleading consumers about their rights.

If you buy a product for your own personal or household use from a supplier and there’s a problem with it, you have rights under the Consumer Guarantees Act. Consumer Guarantees Act. Under this Act whenever you buy a product, be it a chocolate bar, microwave oven or a car, the seller guarantees that:

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It has the right to sell the product.

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The product is of an "acceptable quality". It must be fit

Take your own action The Consumer Guarantees Act is self-enforcing, which means you can take your own action. If a guarantee is not met, you have the right to insist that the seller puts it right.

You can find out more about your rights under the Consumer Guarantees Act on the Consumer Protection website.

for all purposes it might commonly be used for, have an acceptable appearance and be safe and durable.

If you haven't been able to resolve the problem directly with the seller, the Disputes Tribunal can be an inexpensive, informal and private way to help you reach an agreement or may make a decision about what is fair.

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Visit: www.justice.govt.nz for more information.

It also has to be free of minor defects, unless you are

told about these first.

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The product must do what the seller says it will. If you

are told a watch is fit for diving and then find it lets in water, the retailer is in breach of the Act, because the watch is not fit for its purpose.

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OUR CASEWORK

September 2016

139 LEGAL EDUCATION PARTICIPANTS

LEGAL REPRESENTATION: 4% LEGAL ADVICE: 47% LEGAL ASSISTANCE: 49%

PRACTICE AREAS

SERVICE USERS

Administrative Law: 34.5%

Pacific Island: 55%

Civil Law: 31%

Māori: 17.5%

Family Law: 21.5%

European: 13.5%

Criminal Law: 12%

Asian: 11%

Māori Legal: 1%

Other: 3% 6

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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