Make sure your landlord respects your rights

Recent deaths of state housing tenants have resulted in anger and uproar about poor conditions of rental housing in New Zealand. This has exacerbated the policy debate about how strictly New Zealand’s rental market should be regulated to ensure that houses are safe enough to inhabit has been exacerbated. According to a 2013 report from Statistics New Zealand, one-third of New Zealanders live in homes they consider “cold, damp, or overcrowded. These factors have been blamed for New Zealand’s high rates of asthma, skin infections, and winter deaths”.

In response, a group is advocating for the development of warrants of fitness for rental properties, because even though a largely forgotten 1947 law requires homes to be “free of damp,” Tenancy Tribunals today often side with landlords, even when dampness inflicted serious health problems on tenants. For example, because there is currently no explicit requirement for rental properties to have insulation or efficient heating, the Tribunal declined to grant a Wellington family any compensation after members had to be admitted to hospital after developing breathing problems and infections of the liver and urinary tract within two months of moving into a leaky, damp residence. While the government has spent millions insulating state homes and subsidizing insulation in the private housing market, it has yet to “[commit] to minimum standards for rental homes.” Warrants of fitness would establish such minimum standards.

Besides inadequate housing conditions, housing shortages in Auckland, Wellington, and Christchurch allow landlords and leasing agents to act with impunity. For example, although it is illegal for landlords to demand money from potential tenants in exchange for allowing them to apply for a rental, this practice is becoming increasingly common in Auckland. So severe is the housing crisis that “the market is becoming a tale of two cities. There are the haves, those who can afford a piece of the property pie, and the have-nots, renters trying to find liveable, affordable places”.

Recently passed legislation aimed at strengthening the Residential Tenancies Act will place more legal obligations on landlords to ensure that tenants, especially low-income ones, have safer, drier, and warmer homes.  First, in an effort to hold landlords accountable and stop them from operating with impunity, new tenancy laws grant the government power to sue landlords for committing major breaches of the Residential Tenancies Act. The first deadline landlords must meet under the new legislation is next year, by the end of which all rental properties are required to have smoke detectors. Further, the Government estimates that 280,000 rental properties fall short of the insulation standards established in 1978. The new tenancy legislation gives landlords until mid-2019 to insulate all their properties so that they meet those decades-old minimum requirements. However, it should be noted that 100,000 of the 280,000 properties will be exempt from the new insulation laws because they are so close to the ground or lack the ceiling space for adequate insulation. The government argues that the exemptions are preferable to exacerbating the current housing shortage by removing these 100,000 properties from the rental market. It is expected that renters will pay an extra $3.20 per week to account for the installations of smoke alarms and ceiling and floor insulation which many people argue is worth the cost, especially because the insulation could result in lower heating costs.

Though the recent legislation is largely cost effective and is indeed a victory for tenant rights, critics contend that the laws remain inadequate since they do not mandate the installation of modern heating systems. Advocates argue that such a measure is the only way to stop making renters unnecessarily vulnerable to respiratory disease and other complications.

By Laura Faas

How the headlines happen

Caring for children after a separation is complicated enough. Add international travel into the mix and things can get really messy, really quickly. At least 120 Kiwi children get caught up in international custody disputes each year. In many cases, the parent, who is often from overseas, does not initially intend to permanently remove the child from New Zealand. Others decide to take the child and worry about the consequences later. The prohibitively expensive cost of court action and the restrictions on legal aid can make fleeing to another country seem like the only option even when they know that doing so is unlawful.

The Hague Convention on the Civil Aspects of International Child Abduction puts measures in place among member nations to ensure that a child who has been abducted internationally by one parent will be swiftly and smoothly returned to their home country. It can be exceedingly difficult and expensive for this process to occur when one or more of the countries involved is not a member of the Convention. One controversial aspect of the Hague Convention is that it does not take into account whether a child would ultimately be better off with the parent who has abducted them in the country to which they have been removed. Whether that should change is currently the subject of wide debate.

A case dating back to 2012 involved a father, based in New Zealand, who filed a claim of abduction against his now-estranged wife for not returning their young daughter from Denmark. Back in March 2012, the father was awaiting a decision from the Supreme Court to have the custody hearing held in New Zealand, where his daughter was born, instead of in Denmark, where his daughter was taken. Despite the Supreme Court’s impending ruling, Denmark still planned to move forward with its local custody hearing. The frustrated father, who had spent an exorbitant amount of money travelling back and forth between Denmark and New Zealand over the few years prior, alleged that while New Zealand may have upheld its obligations under the Hague Convention, Denmark had not, and should have been doing more. He stated, “The abduction was proven, [the daughter’s] residence was proven, and the only other thing that needed to be proven…proved inconclusive. Denmark should be following up on this. They need to uphold their obligations.”

A different case dating back to 2013, involved a teenaged girl from New Zealand who went to Australia on her own accord. As Australia deemed the matter a civil issue, the father felt powerless to get his daughter back, since she had no desire to return to New Zealand. The father was simply shocked that his daughter was so easily able to leave New Zealand in the first place, and believed that legal structures should be in place to prevent a minor from leaving New Zealand without parental consent or accompaniment.

If you have an interest in learning about how custody battles can spiral into international child abductions and become major news stories, come to the Wellington Central Library for our Law for Lunch seminar on Wednesday 12 August at 12:30pm to learn what you can do to avoid this situation.

If you are concerned your child may be at risk of being abducted overseas by another parent, or if your child has been abducted to a Hague Convention country, you can contact the Central Authority at the Ministry of Justice or a lawyer for assistance to make an application for the return of the child. Contact the Ministry by phone at 04-918 8800 (+64-4-918 8800 if you are outside New Zealand,) or email Patricia Bailey, the Ministry’s contact person.

If your child was abducted to a non-Hague Convention country, you will likely need to employ an overseas lawyer. The Ministry of Foreign Affairs may be able to provide you a list of lawyers in the overseas country.

By Laura Faas

Online scams currently cost New Zealanders upwards of $400m each year. The internet has allowed scammers from overseas to easily maintain anonymity and operate with impunity. NetSafe, an NGO that promotes safe use of online technologies, says that most people do not report falling victim to a scam. Even so it receives 20 to 30 reports each day.  The amount of money stolen from each scam can be as high as $7m. Once the money has been transferred overseas, it can scarcely ever be retrieved. Scammers employ a wide range of tactics to trick victims into handing over their personal details and money.

Some scams begin over the telephone. The scammer poses as an employee for a telecommunications company. They then work on convincing the victim to hand over bank account information or allow the caller to have remote access to the victim’s computer to install antivirus software. At this point they completely lock the victim out of the computer until the victim agrees to pay the scammer a certain sum of money. You can best avoid falling victim to these scams by requesting the caller’s name and telling them you will call them back. Then dial the organization or company’s official number and ask for them to connect you with the person who just called you. People can also go into their local BNZ branch and pick up a copy of a brochure called Scamsavvy, which provides key advice on how to deal with questionable phone calls and potential scammers. It is also worth noting that phone scammers have been targeting the elderly at increasing rates.

Other scams make victims into accomplices. On an online dating site a “suitor” builds an online rapport with a target, eventually asking the target to allow goods to be shipped to their residence, claiming that doing so is less expensive or more convenient. The suitor then covers the cost of shipping all these goods from the victim to themselves. The catch? All the goods have been purchased with stolen credit cards, and the victim has unknowingly helped facilitate the crime.

A Tiffany earring scam recently ensnared a Christchurch woman when she paid $32 online for a $450 pair of earrings. The ad for the earrings actually came from counterfeiters in the global market. The victim thought the ad was legitimate because she could easily pay online by credit card.

Another online scam cost a Rotorua businesswoman $1,500 when she put a 50% deposit down on an overseas home for a family holiday. After signing and returning a rental agreement and communicating via email with someone claiming to be the property manager, she wired the money to the UK. Somehow, the woman’s correspondence with the property’s real owner had been intercepted by a scammer.

The best advice for avoiding phishing scams such as those listed above includes speaking with property owners by phone rather than by email, being cautious when handing over your address, and never sending money overseas unless you have spoken with someone by phone to confirm that a booking or order is legitimate.

Strong and varied passwords, two-step authentication, software updates, and secure Wi-Fi networks are just a few ways to protect your online identity and finances.

By Laura Faas

Supporting low income workers who experience harassment and bullying

Harassment experienced by low income workers has been in the news recently after the experience of Amanda Bailey became public in what has been dubbed ‘ponytail-gate’. Community Law Wellington and Hutt Valley (CLWHV) sees a wide variety of low income workers. They come to us to discuss the broad range of harassment and bullying they experience at work – from physical harassment by customers to severe psychological bullying from co-workers and bosses.

When your primary income relies on interacting with people who are in a more powerful position than you, if they harass you (are “playful” at your expense) it can be a very difficult situation to be in. For people who have the power in  their employment to safely talk back, complain or easily leave the situation, it’s simple to view a ponytail pull as  harmless, but for people who can’t leave or speak up and who feel uncomfortable, harassed or bullied, it’s an awful situation to be in.

Many of our clients feel trapped and believe that rocking the boat will get them into more trouble than it’s worth. They fear that they’ll be blamed for the harassment and bullying, or that speaking up won’t make a difference.  There are legal protections in place but these are not without personal risk – to reputation, to mental health, to livelihood. Clients must make the tough decision whether enforcing their legal right to a safe working environment is worth the personal blow back. But there are some important steps that can be taken to support clients beyond working on their legal case.

Most low income clients are unable to afford a lawyer to support them to raise issues and negotiate on their behalf before formal legal action begins (and legal aid becomes available). At this preliminary stage, we think it is crucial to support clients to help themselves. At Community Law, we encourage clients to bring a support person to meet with us. The client can take their support person along to a meeting with an employer, and we can help them both prepare. We can assist clients to write up the points they want to raise and ensure they have all the relevant information to give to their employer.

By the stage low income workers are seeking legal support it is often too late for them to join a union. But a union is a great option for preventing legal issues from arising in the future as they are able to provide early support, paid for via union fees. Explaining the right to join a union and the support a union provides can be very helpful to low income clients. If there isn’t a union in the work place, talk to different unions about options for establishing a union.

After a low income worker loses their job or feels forced to resign, they can have difficulties supporting themselves day-to-day and dealing with Work and Income. Leaving your job in a constructive dismissal type situation is not easy to do at the best of times, but becomes more difficult if you are on a low income and aren’t necessarily in a strong financial position. Work and Income can be there to fill the gap. However, if a client leaves a job for ‘no good reason’ or is dismissed due to misconduct, then Work and Income will put them on a 13 week stand down. A constructive dismissal may appear to Work and Income as if the client is leaving for no good reason. To help a client in this situation, write a letter to Work and Income setting out the facts, whether there are legal grounds to raise a personal grievance for constructive dismissal and advise whether the client intends to raise a personal grievance or pursue other legal action. This can allow Work and Income to reduce the 13 week stand down to 1-2 weeks stand down. Encourage clients to apply for benefits early, as the application date can affect when they will begin receiving any benefits they are eligible for.

Finally, simply knowing that harassing and bullying behaviour can result in legal action gives a lot of clients hope. The simple act of listening and letting them know there are protections available can be a source of immense comfort.

The proposed new legislation, the Health and Safety Reform Bill, seeks to expand protections for all sorts of workers. This legislation is based on an Australian model, which appears to provide remedies for severely bullied workers or their families.

Brodie was an Australian waitress who was severely bullied by her manager and co-workers. She had sauce dumped all over her and was often belittled. The owner of the café was aware of this and had told the manager to tone down the behaviour in front of customers – but never stepped in to prevent it. In 2006, Brodie jumped from her apartment and died 3 days later from her injuries. Her co-workers and manager were fined between $10k and $45k, and the company was fined $220k after pleading guilty to failing to take reasonable care for the health and safety of persons and failing to provide and maintain a safe working environment.

While Brodie’s case was a tragedy, it does illustrate the ability of health and safety legislation to take bullying very seriously and recognise the potential harm it represents. We hope this legislation will help ensure employers have an even stronger incentive to take bullying and harassment seriously and protect their workers from such destructive work environments. The ability for an outside organisation to undertake prosecution, Worksafe, can help some workers feel better about coming forward.

It is important to recognise the extremely vulnerable position low income workers who experience harassment and bullying are in, and provide the necessary support to ensure workers are can make their own decisions to protect themselves or take action.

By Kate Scarlet, Community Lawyer

How anti-terror laws promote homelessness in NZ

Barney Wikitera, Kaihāpai Hapori/Community Educator and Advocate, Community Law Wellington and Hutt Valley

You’re homeless. To get a house, you need an income. To get an income from Work and Income, you need a bank account. To get a bank account, you need a residential address. But … you’re homeless.

You see the problem. This article analyses this issue and the recent attempts Community Law has made to support clients faced with this situation.

Struggling to get photo ID

In most cases homeless clients do not have sufficient identification to open a bank account to receive much-needed government assistance.

Work and Income can provide a grant for a birth certificate, which usually takes two weeks to arrive. Work and Income can also provide assistance to get an 18+ card, but the client needs a witness who has photo ID and has known the client for more than a year. Moreover, the client also needs proof of address in order to get an 18+ card. This can be hard for transient clients living on the margins.

Through the eyes of a homeless person, the process can be hugely stressful, particularly without support. Most of our homeless clients are in immediate need of assistance, so all the delays and hoops to jump through can exacerbate already dire situations.

Using an agent

A client can authorise an agent to receive Work and Income benefits on their behalf. They can use an individual, like a friend or a family member, or an approved organisation, such as DCM (formerly Downtown Community Ministry). In the short-term, the use of an agent can be a viable option. However, the importance of being independent and handling your own money should not be dismissed. A recent client felt this strongly. He did not want to use an agent because the idea of having to line up to have government assistance passed to him through a third party was demoralising. His frustration was understandable, given that the barriers were purely administrative and regulatory. He had a driver’s licence, but what prevented him from opening a bank account was that he did not have proof of address.

Anti-Money Laundering and Countering Financing of Terrorism Act of 2009 (AMLCFT Act) – the problem

The AMLCFT Act aims to fulfil the goals in its name while also promoting public confidence in banks and New Zealand’s international cooperation on these matters. Banks are required to get proof of address from new customers (section 15(b)). Providing proof of address goes toward fulfilling the Act’s due diligence requirements, ensuring that customers have been assessed to a certain standard to essentially minimise risk.

We believe our homeless clients do not pose a risk in terms of laundering money or financing terrorism. But how do they provide the bank with proof of an address that they do not have? This is a problem for homeless people around the world. (See for example the House of Commons September 2013 Standard Note “Bank accounts: problems of identification”).

“Socially inclusive banking”

We believe that reasonable proof of homelessness should be adequate. Our client was eventually able to open a bank account and directly receive government assistance. With Community Law’s reassurance that our client was homeless, the bank eventually accepted that he did not have an address. This was on the condition that we kept the bank regularly updated on his progress finding sustainable accommodation. We welcome this socially inclusive banking. However, the bank was clear that this was an exception and it was evident they would not have opened a bank account for our client without the advocacy Community Law was able to provide.

By definition our homeless population do not have a residential address, and we cannot rely on strong advocacy and the good will of individual banks to assist in most situations. Despite our advocacy and the discretion employed by the bank, our client still went without financial assistance for two weeks. A degree of flexibility, anchored in robust law and policy is needed.

The AMLCFT Act refers to “simplified customer due diligence” where some groups, such as government departments, have a lower threshold to reach when opening a bank account. There could be the opportunity to prescribe criteria that can fulfil the legal requirements of due diligence, such as accepting confirmation of homelessness by a community or government organisation.

Work and Income could certify that they believe a client is homeless when an applicant for a bank account is made. In most situations Work and Income case managers are in a good position to make that judgement. There may also be the potential for Work and Income to bridge the gap and deal directly with banks on behalf of our homeless so that limited-accounts (without features such as overdrafts) are accessible. This could provide banks a safe harbour in which to make more flexible decisions around bank accounts for our homeless.

Inevitably our homeless will need some form of support, but that does not have to be at the expense of their independence and self-worth. When someone who is homeless wants to open a bank account, fostering an encouraging environment for that to happen is crucial. Some consistency and permission for banks to be helpful would go a long way towards helping a range of homeless people, from the chronic homeless to those couch-surfing.

We are interested to hear about your ideas and your clients’ experiences. Please contact Barney at barney@wclc.org.nz or 04 894 4490.

Thanks to interns Timo Schrott and Kate Dowdle for research for this article.