Tenancy conditions and how CLWHV can help

In recent news there have been calls for all rental properties to meet a set of minimum standards. This was highlighted because of a coroner’s finding that the poor condition of a state house had attributed to a toddler’s illness and subsequent death. Moe mai rā e te puawai purotu.

In April this year, the Māori Development Minister Te Ururoa Flavell voiced his concerns about the substandard state of some rental homes in Ōtautahi during his visit to the quake stricken region. The Minister spent time with different whānau who are putting up with unacceptable housing situations because they feel fortunate to have a home during a time where rental properties are in high demand and don’t want to rock the boat.

Community Law Wellington and Hutt Valley (Community Law) was interviewed by Māori Television to provide our view on the Minister’s comments. We emphasised the importance of tenant’s raising their concerns with their landlord directly and then visiting their nearest Community Law Centre if the issues remain unresolved[1]. Community Law are able to help by informing tenants of their rights and advising on the best avenue to pursue, whether that be meeting with the landlord kanohi-ki-te-kanohi, writing to the landlord or by making an application to the Tenancy Tribunal.

Many Community Law clients are vulnerable members of our community who find it difficult to communicate with their landlords, let alone complain to or about them. At Community Law, we advise clients of their rights under the Residential Tenancies Act 1986 (the Act). Common areas we advise on include: ending a fixed-term tenancy agreement early, rent arrears, bond disputes, breaches of quite enjoyment, lack of reasonable repair and/or cleanliness of a property and how to prepare for Tenancy Tribunal proceedings. Community Law has advised and assisted clients who are Housing New Zealand tenants, Wellington City Council tenants, tenants of private landlords and boarding house tenants, however we do not provide legal advice or assistance to landlords.

Damage and repairs

The Act provides legal protections for tenants and places legal obligations on both tenants (when damage is caused) and landlords (when repairs are needed). The tenant is responsible for repairing any damage they have caused (or caused by another person whom the tenant allowed in the property)[2] if the damage was caused intentionally or through carelessness[3].  However, the tenant cannot be held liable for damage that arises because of normal “wear and tear”[4].

The landlord must keep the property in a reasonable state of repair[5] and comply with all building and health and safety requirements[6]. If any repairs are required, the tenant must first contact the landlord, and if no action is taken by the landlord a 14 day notice should be issued[7]. If it is an urgent repair for something the tenant did not cause (for example, if the plumbing fails), and the tenant made a reasonable attempt to contact the landlord, the tenant can get it fixed and the landlord must reimburse the tenant[8]. The majority of clients Community Law advises do not have the income to fund these repairs and have to put up with the situation until the landlord voluntarily takes action or is required to by the Tenancy Tribunal.

The Minister also acknowledged that due to the housing shortage in Christchurch, tenants have become reluctant to enforce their legal rights as they do not want to inflame the situation and risk losing their rental home. If a landlord reacts to the tenant enforcing their legal rights by issuing notice to terminate the tenancy, the tenant may apply to the Tenancy Tribunal for an order declaring that the notice is of no effect on the ground that, in giving the notice, the landlord was motivated by the tenant exercising their rights under the tenancy agreement or the Act.[9] This is referred to as retaliatory notice.[10]

Uninhabitable properties

If a property has been so seriously damaged that it is unfit to live in, the rules for ending the tenancy are the same whether the tenancy is for an indefinite period (referred to as a periodic tenancy) or for a fixed-term (where there is a specific end date to the tenancy). After a property has become uninhabitable[11], either the landlord[12] or the tenant[13] can give notice to end the tenancy[14].

If the property is partially uninhabitable, the landlord or the tenant can apply to the Tenancy Tribunal for an order ending the tenancy. If it is considered by Tenancy Tribunal that it is reasonable for the landlord to fix the property or for the tenant to stay at the property at a lowered rent rate, the Tribunal may not make an order ending the tenancy.[15] This could potentially cover situations where tenants would like to stay at the property at a lowered rent rate to make up for living in a property that requires repairs.

How Community Law can help

Many problems arise because tenants and landlords are unaware of their legal rights and obligations under the Act. We encourage tenants to contact their nearest Community Law Centre so that they are informed of their legal rights and supported in making the best decision for themselves and their whānau.

Community Law will be interested to see what the Government will unveil next month to implement a minimum standards scheme for all rented properties and what that will mean for Community Law’s clients.

[1] Find your local community law centre at www.communitylaw.org.nz.
[2] Residential Tenancies Act 1986, s 41 (2).
[3] Ibid, s 40 (2)(a).
[4] Ibid, s 40 (4).
[5] Ibid, s 45 (1)(b).
[6] Ibid, s 45(1)(c).
[7] A template 14 day notice is available at www.tenancy.govt.nz.
[8] Residential Tenancies Act 1986, s 45(1)(d).
[9] Ibid, s 54(1).
[10] Ibid, s 54.
[11] The term uninhabitable is not defined in the Act. See Watkin v Brazier Property Investments Ltd [2012] DCR 186.
[12] When a landlord gives notice of termination under this section, the period of notice is not less than 7 days, 59A (4).
[13] When a tenant gives notice of termination under this section, the period of notice is not less than 2 days, 59A (5).
[14] Residential Tenancies Act 1986, s 59 (1)(b).
[15] Ibid, s 59 (4)(b).

By Kahureremoa Aki, Rōia Hapori

When horseplay becomes forced play

Stop bullying happening at work

What has become known as “ponytail-gate” roused two general categories of opinion: the first group considered the incident as one of innocent banter, while the second group viewed it as an serious case of workplace harassment. It stimulated a high level of discussion over what ultimately constitutes workplace bullying or harassment, and how such transgressions can be dealt with.

Last year, WorkSafe, New Zealand’s workplace health and safety regulator, released a new document, titled “Preventing and Responding to Workplace Bullying.” As the first document of its kind in New Zealand, the report offers a clear definition of workplace bullying and advice to employers and employees on responding to these issues. According to WorkSafe, “Workplace bullying is repeated and unreasonable behaviour directed towards a worker or a group of workers that creates a risk to health and safety. Repeated behaviour is persistent and can involve a range of actions over time. Unreasonable behaviour means actions that a reasonable person in the same circumstances would see as unreasonable. It includes victimising, humiliating, intimidating or threatening a person.” WorkSafe is clear that although a single instance cannot be defined as bullying, but that such experiences can escalate quickly and thus should not be ignored.

A separate development related to workplace harmony occurred in April 2015, when Standards New Zealand passed the world’s first standard set of requirements that organizations must meet in order to be recognised as inclusive and safe workplaces for people of diverse sexual orientation and gender identity. Titled “NZS 8200:2015 Rainbow-inclusive workplaces: A standard for gender and sexual diversity in employment,” it also asserts that employees are most productive when they feel free to openly express their respective identities, rather than suppress them.

By Laura Faas

Unsafe relationships

According to Are You OK, more than half of all reported violent crime in New Zealand is family violence. 75% of serious assaults, 45% of abductions, kidnappings, and threatening behaviour, and 33% of sexual assaults fall into the category of family violence. In 2013, police recorded 95,101 family violence investigations, and it is estimated that they respond to a report of family violence every five and a half minutes, even though approximately only 20-25% of incidents are reported. While 14% of youths report being intentionally physically harmed by an adult, children are also more generally present at 63% of family violence incidents where police are present.

In November 2014, police in Nelson announced their support for White Ribbon Day, which is a New Zealand campaign that melds Canada’s White Ribbon Day movement with the UN’s day devoted to the international Elimination of Violence Against Women. Held on 25 November each year, White Ribbon Day encourages everyone to pledge to “never commit, condone or remain silent about violence towards women.” The police are major advocates of White Ribbon Day and believe its primary goal is to raise awareness of domestic violence so that people know that standing up and saying something can save lives. It is worth noting, however, that even though men do comprise 84% of those arrested for domestic violence, women comprise the remaining 16%. In short, men can be victims of domestic violence, too.

In advice of White Ribbon Day in 2014, Nelson police showcased their family violence unit’s focus on prevention of future violence. According to Constable Kyle Bruning, if police only focused on victims, the male would never change, just go from one victim to the other. Now it’s about looking after the victim but also how to stop creating another victim.” An umbrella term, “family violence” covers everything from a verbal altercation that a neighbour overhears, all the way to someone going to jail for killing their partner. The family violence unit also holds a weekly family violence interagency response meeting, which includes several local organizations and government agencies dedicated to stopping family violence.

How the police deal with a family violence situation depends on what happened. If there is not enough evidence to arrest and charge the perpetrator, the police can issue a Police Safety Order (PSO,) which prohibits people coming together for a specific period of time, and acts as a protection order that supersedes any other agreement, be it tenancy of parental. After a PSO is issued, the police in Nelson work with an organization called the Male Room, which offers a room to men for the first night of the PSO. After this first night, the Male Room can provide several follow-up referrals for the male party so that he can get the assistance he requires. The man is not required to use the free service, but each man does receive an automatic phone call following a PSO, and it provides men with a change to talk about what happened. The Male Room aims to prevent issues from escalating further. The organization also welcomes men who are victims.

In early January 2015, police in Manawatu announced that they had launched of a family violence safety team targeting high-risk victims and offenders back in December 2014 for a three-month trial. The announcement followed a particularly violent holiday season, which police attributed to financial struggles and alcohol consumption. It was said that the team’s goal was to be in close contact with victims and offenders in order to make sure that everyone had access to the best support services available. The team was to work closely with Manawatu Abuse Intervention Network, which provides services to families affected by domestic violence. At the same time, the Manawatu Women’s Refuge also anticipated an especially busy post-holiday period, with the Refuge’s general manager stating that January is the Refuge’s busiest time of year because the holidays were a period “women decided enough was enough. “

In early March of this year, the government announced that it would increase the security for the homes of domestic violence victims (400 women with a total of 600 dependent children) by installing alarms, strengthening windows, replacing locks, installing security lights, and replacing glass doors with solid ones. This program, called the National Home Safety Service, awarded the National Collective of Independent Women’s Refuges a $3.6m contract in exchange for carrying out this work, which was set to begin 1 July. Justice Minister Amy Adams said that these measures were necessary because “Too many people continue to be re-victimised, even when a protection order is in place.”

By Laura Faas

Renting? It’s more than just a flat

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

International Child Abduction

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 schemers, scams and shams

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

Ponytail-gate

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

Anti-terror laws and homelessness

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.

 

When Leaving a Violent Partner Will Make You “Unlawful”

Domestic violence affects every community in New Zealand. People remain with abusive partners for many reasons, including fear, isolation, lack of support, lack or resources, and their cultural or religious values. This article discusses an option for clients when immigration status appears to be a reason to stay in a violent relationship.

Community Law Wellington and Hutt Valley (“CLWHV”) includes a specialist Refugee and Immigration Legal Advice Service (“RILAS”). RILAS assists former refugees with family reunification, as well as running drop-in sessions for general assistance with immigration enquiries. An April 2013 Wellington Family Courts’ Association session with Judge Bill Hastings examined the difficult interactions between immigration law and family law relating to relocation. Recently RILAS has assisted a number of clients in cases involving immigration law and domestic violence. The RILAS team and CLWHV recognise that this is a high need area. We hope that together with migrant communities and support groups we can effectively address the needs of our most vulnerable migrants, such as women and children in relationships involving domestic violence.

Refugee and migrant women are often very isolated, having left their family support back in their home country. Further, for many migrants mainstream New Zealand culture is very different to their ethnic culture and accordingly support from the appropriate agencies is not always easily understood and accessed. Many do not speak English. Often the abusive partner will forbid access to education and/or their ethnic community to seek support. This disempowerment is further exacerbated if the women do not have permanent residence status in New Zealand.

In general, the migrant women we see whose immigration status can incentivise them to stay in an abusive relationship are either:

1. in a relationship with a partner who is a New Zealand citizen or residence visa holder; or
2. in a relationship with a partner who is a holder of a temporary visa such as a work or student visa.

In both of the above categories, women may stay in abusive relationships to retain their immigration status in New Zealand or to meet immigration requirements for a temporary or residence visa. When migrant women leave their partners in New Zealand, they could become “unlawful”, as often their visa in New Zealand is linked to that of their partner. Further, if they end the relationship, it is likely their New Zealand partner may remove their support. Thus, women leaving such relationships need to obtain a legal immigration status in New Zealand in their own right with little or no financial support, and often with limited opportunities for obtaining employment due to childcare arrangements, lack of English language or appropriate education.

Immigration New Zealand has a special category for victims of domestic violence (“special visas”) whose partner is a New Zealand citizen or resident visa holder. The special visas are available to the first category of women stated above.

Special visas allow women to apply without the support of their partner and, if they meet the requirements, be granted an independent legal immigration status in New Zealand. Special visas include temporary work visas (and resident visas in some circumstances).

For the purposes of these special visas, “domestic violence” is defined broadly. A sole violent act may amount to domestic violence, as may a series of apparently trivial violent acts. Violence includes physical abuse, sexual abuse and psychological abuse.[1] The primary victim is the applicant in an application for a special visa.

A woman whose relationship ended due to domestic violence may apply for a special work visa valid for six months. If an application for residence is also lodged, the work visa can be extended for a further three months while Immigration New Zealand considers the residence visa application.

The basic requirements for the special visas are as follows:

  1. the applicant is living in New Zealand;
  2. the applicant was previously in a partnership with a New Zealand citizen or residence visa holder, and that partnership ended due to domestic violence; and
  3. the applicant intended to seek residence in New Zealand on the basis of that partnership.

The applicant must provide evidence of the past partnership with a New Zealand residence visa holder or citizen, including evidence that they were living with their partner and evidence of domestic violence. The applicant will also have to provide financial evidence, such as bank statements, to show that they need to work to support themselves.

With their application for a special work visa, the applicant may also submit a special residence visa application under the category for victims of domestic violence. Unlike the special work visa, this residence visa also requires the applicants to prove that they cannot reasonably return to their home country as they would face abuse or exclusion from their community or be unable to financially support themselves. If successful, the applicant and their children can live and work in New Zealand indefinitely.

When a parent applies for the special visas, their children can also be included in the application. The application for the special visas is confidential and Immigration New Zealand will not notify the former partner.

It is important that the applicant contact Immigration New Zealand as soon as practicable to state that the partnership has ended due to domestic violence and that the applicant intends to apply for the special work or residence visa for victims of domestic violence.

The special visas only apply to victims of domestic violence whose former partners are New Zealand residents or citizens. If the partner is in New Zealand on a temporary visa such as the work or student visa, the special visas do not apply. Please contact us if you require assistance. We are happy to work alongside family lawyers dealing with protection and care of children issues for their clients.

Inna Zadorozhnaya, Community Lawyer, Refugee and Immigration Legal Advice Service, Community Law Wellington and Hutt Valley


[1] Domestic Violence Act 1995, section 3.

The Legend of Community Law: A speech by Hannah Northover

This is a written transcript of a speech given by Hannah Northover on behalf of Community Law Wellington Hutt Valley in 2013.

The Wellington Community Law Centre was founded in 1981, and, as I mythologise it, it was founded as a counter-cultural force, counter to the prevailing legal culture. I use the word “mythologise” intentionally. Facts about the early days of the Law Centre are easily accessible, because of amazing people like lawyer Margaret Powell, who was involved in the Community Law Centre when it began and is still involved as a regular volunteer. But it is not those facts which have the greatest influence on the current staff of our community law centre.

Instead, it is the legend of the law centre’s early days. CLWHV is also home to the Wellington region Māori legal service, which in past years has existed in various forms, including TRT and Ngā Kaiwhakamārama i ngā Ture, operating on kaupapa set down by heroes like Moana Jackson. We are proud of our heritage and what the earlier law centres accomplished as critics of the legal system – they give us legitimacy as a grass-roots organisation working for systemic change, and they give us the legend of a shoestring organisation of radical but practical people, publishing Lesbians and the Law, making videos about Youth Rights with the Police, and – best of all – apparently hated by the WDLS. Now, today we value our relationship with the NZLS, but I am still proud of our history as a group which was a challenge to “the system”. They were a bunch of law students and young lawyers who wanted to make legal help more accessible to people who couldn’t buy it. And the Law Society was horrified. Good! That makes it sound to me like they were doing it right.

Desire to continue to make change like the first CLCs did – and why can’t we?

Now CLCs are MOJ-funded, we have clients referred to us by all manner of government entities, we are very much part of the system. So how do we do justice to the legend and history of CLCs? How do we make sure that future community law centre people are proud of what the law centre was in 2013? (Or that what they mythologise about us is something we would want to be proud of?)

Why is it that law students around the country continue to set up groups designed to allow them to critique and improve the justice system? Are CLCs not providing that forum for idealistic and enthusiastic students? We work alongside those groups, and their members volunteer with us, but it seems there is still room for additional fora for their desire to make change.

There’s a well-known quote often attributed to Margaret Mead, which goes something like this: “Never doubt that a small group of thoughtful, committed people can change the world. Indeed, it is the only thing that ever has.” True, you say? “Yes, but those small groups of people have all been driven idealogs, right, not service providers meeting contracts!”

Are CLCs now so bound by their contracts, that they can no longer change the world? Are we so focused on doing what our funders require in order to keep funding us that we start to lose sight of community need and the infirmities of the justice system? I think we are at risk of that happening. But I think that contracts are only part of the picture. There are other factors holding us back from meeting our clients’ needs in a more enduring way.

What change do clients need?

The brief for this talk asks: what do our clients need? That is a difficult question because what our clients need immediately is usually advocacy in the face of a powerful person or entity: they need us to call their landlord or help us to make an application to the Tenancy Tribunal. They need us to help them to write a personal grievance to their employer. They need us to help them to deal with CYF. Or they need us to help them to call a power company. Those are immediate needs, and it is very easy for us to spend our whole working day trying to meet those needs. But we might be able to make more change for more people – we might ultimately be able to meet more of their needs – if we make more time to work on less immediate change to the system.

We are well aware of many of the bigger picture needs of our clients. We know that our clients need warm, dry, affordable, secure housing; they need the ability to go straight on to the benefit without a stand-down period if they are fired during a 90-day trial period; we need a child protection agency which parents are not afraid to call, but which instead allows parents to be confident that the person they speak to will have the time and the understanding to work alongside them to help their children to thrive; we need immigration policy which does not create a disincentive for a woman to leave a violent partner; we need a speedy way to challenge schools’ suspension and expulsion decisions;
we need a way to find welfare guardians for those who can no longer make decisions for themselves but have no family; and I’m sure you could all add to the wishlist for change.

“Equal access to Blind Justice”

In relation to justice system – and I’ll mostly talk about the criminal justice system here – the brief for this talk asks whether we have “Equal access to Blind Justice” in NZ. I am confident that the answer is “no”. Two times “no”. The access is unequal and the justice is at least partially sighted.

Access to our justice system is not equal. For one thing, almost everyone needs professional help to navigate the court system. And professional help costs. If you can afford that help, you will find it easier to access the justice system. Better still, you will be able to choose the navigator – the lawyer – of your choice. We frequently see clients who intend abandoning legal claims or defences because they do not want to – or cannot – meet the high costs of that claim or defence.

The system is also more easily accessible if you are highly literate in English, if you have a phone and access to a good internet connection and a printer, and if you are culturally comfortable in a Pakeha system.

And blind justice? No. In Moana Jackson’s 1988 report on Maori and the Criminal Justice System (He Whaipainga Hou) he pointed out the systemic bias against Maori at every stage of the process. And the statistics continue to show it: if you are Māori you are more likely to have an adverse outcome at every step along the justice system path. That’s the blatant bit: our justice system is not colour blind.

Less blatant bias also exists. Recent figures comparing the impact of benefit fraud with the impact of tax evasion, and comparing the relative sentences, show a class bias in our justice system. Do we really penalise most harshly those who commit the most harmful acts in our society? Or are we keener to penalise further those already on the fringes of society?

But do we want “Equal access to blind justice?” No. we want better justice.

In any case, I am absolutely confident in stating that we do not enjoy equal access to blind justice.

A more interesting question is whether that is what we want. Equal access? Yes, I see no reason not to want equal access. But blind justice I am less certain about. Do we want our courtrooms, our police officers, our prosecutors and our policy makers to treat everyone in the same way? Increasingly, my answer is no. I think that a justice system should not be blind to the context of the dispute it is trying to resolve or the wrong it is trying to right. Our justice system should not be blind to its outcomes. When we see how few rapes result in convictions, we need to change the justice system to address that. A recent VUW book, From Real Rape to Real Justice, addresses that concern. We need to act on that. And when we see the disproportionate number of Maori in prison, we need to address that. Moana Jackson’s 1988 report tells us how. We need to act on that.

We need to be ready to criticise our justice system and ready to change it.

RJ is a bit better.

In that vein of change, like I said, CLWHV has recently been awarded a new contract to deliver RJ conferences in the P,W and HV DCs. Who knows what RJ is? (let someone else answer this) I was relying on an answer from someone else, but in short an RJ conference is when two people (a victim and an offender) get together and have a facilitated, supported, conversation. It seems to be a bit magical. Amazing stories come from these conferences. Offenders who for the first time see a victim as a real person, and see the harm they have caused, rather than focussing on injustices against them. Victims who see the desperate situation of the person who offended against them, or who feel the catharsis of being able to tell an offender how they have been affected, and to receive a genuine apology from someone who has heard and understood the victim. RJ conferences offer some things our traditional justice system just can’t. CLWHV will be providing mostly pre-sentence RJ, but programmes like PF’s Sycamore Tree also provide RJ for people in prison.

But RJ is not the full answer

So I think RJ is great, but it is of course not the full answer. We need something more: contextualised justice, indigenous justice, something that is fair and good for Aotearoa – and of course I don’t know what that is – but I do know some of the things CLWHV is doing to work towards something more like it. As an organisation, we are working towards proper biculturalism. We are also seeking to become more financially independent of the MOJ. We are making some effort (though I think we could do more) to support new lawyers from diverse backgrounds, so that more people using the justice system can come across people who they relate to easily.

Reform is harder work than assistance

But these systemic needs are harder to meet than many immediate practical needs, and I am not even sure I am the right person to be talking to you about this, because I am fairly practical. I come from a family of Presbyterian nurses, and I find it much easier to focus on the smaller changes I can see – on making life immediately better for one person or one family by helping them with their immediate problem. I find it harder to see the big picture and to have confidence in our ability to identify the change we need and to affect that change.

Are we so aware of our privilege that we have lost confidence in our ability to know what is the right change to be seeking? Or do we just lack belief in our ability to truly make a difference?

We have some courage – like I’ve said we are right now trying to make CLWHV truly bicultural, and we take on huge legal information projects like publishing this Community Law Manual annually, but our voice about what is right and wrong needs to be louder.

There are some courageous organisations coming out of NZ law schools at the moment: The Equal Justice Project at Auckland Uni, the CJP at Vic Uni, Law for Change which started in Otago, and JustSpeak, a group campaigning for a better criminal justice system, particularly for young people. These organisations struggle with their own privilege and with trying to create diversity and legitimacy, but none of them let it hold them back. Generally, they recognise their privilege, recognise the issues with privileged people speaking for less privileged, but deem that better than saying nothing – and they have the courage to say something and be criticised for it. What’s better than that? What might be better is to find a way to empower the more marginalised to say what they are thinking. And many of those groups are rising to that challenge too. How different are these groups really from the early WCLC? And where will those student groups and their members be in 30 years? Will they manage to forge paths which allow them to remain critical of an inadequate system? And will they need to articulate their political underpinnings in order to do so?

So how are we going to get the full answer? Are apolitical CLCs going to come up with it?

For CLCs, can our CLC work together – and can CLCs work together and have a loud voice nationally – without identifying the political and ethical underpinnings of our work? We do work together to deliver services – our staff and volunteer lawyers come from all sorts of backgrounds and have all sorts of different motivations. Some are called to their work by God, others are motivated by a secular service ethic, some are required by their employer to spend time at Community Law – one former volunteer who ended up as a board member in fact first came to Community Law as part of a sentence for drink driving. So we know that you don’t need a cohesive political viewpoint in order to be a service provider at Community Law, but I would like Community Law to be more than that. I would like us to affect systemic change. And for that I wonder whether we need to articulate the political views of CLCs. Can we be apolitical and still affect change?

CLCs used to be funded by the MOJ to do a contracted number of law reform hours every year. When we did those hours in an apolitical way, we engaged with community groups to help them to change the laws which were most important to them. For other pieces of work we closely analysed the likely real effect of changes to the laws we work with most often. To do that we had to find a Community Law viewpoint, but in recent years we had often sought an evidence-based, less political viewpoint.

In any case, we are no longer funded to work on law reform in the name of our CLCs and from the CLC’s point of view. Since July the MOJ has decided not to purchase “law reform” hours. So we are no longer funded to find a CLC viewpoint and review draft laws from that point of view. In a way I can understand this – the MOJ no longer wants to pay us to criticise them. But in another sense it is a concern: where is the mechanism to make sure that the communities affected by proposed or existing laws gets parliament to hear their views on these laws? I am not aware of any CLC which has yet sought alternative funding, or committed to volunteering the hours required to do law reform work from a CLC point of view. Perhaps that is what we should be doing.

There are interesting conversations to have about how democratic it is (or isn’t) to have private NGOs like our providing public services, but when the public service is assistance with criticism of the government, it seems right to have that service come from an NGO. Many NGOs engage very effectively with draft laws, and write highly respected submissions, but there is no longer a non- governmental service funded specifically to provide law reform services. I think there should be.

But that sounds like an excuse, and something we can overcome. What else is holding us back from changing the world?

If you want to learn more about community law, or you want to use our services or to help someone

else to, there is more information on the net at www.communitylaw.org.nz.