Annual Report of Securities Commission now available



Today the Securities Commission presented their Annual Report to the House.

The report can be read online and/or downloaded as a pdf file here >>>

The Orb: Report Online Crimes


A new website has been launched for New Zealanders to report various kinds of online crimes: the Orb.

The Orb has been developed by NetSafe to offer all New Zealanders a simple and secure way to report their concerns about online incidents. The Orb works with partner agencies to direct your reports through to the organisation best able to investigate or advise you on various types of online incidents such as scams and frauds, spam messages, objectionable material, privacy breaches and problems whilst shopping online.

Partners include: New Zealand Police, the Department of Internal Affairs, the Privacy Commissioner, the Ministry of Consumer Affairs, the Commerce Commission, the Centre for Critical Infrastructure Protection and the New Zealand Customs Service.

The Orb enables us to ‘report online crimes, online’

Strictly speaking, not all internet based incidents are crimes under New Zealand law and not all our partner are law enforcement agencies.

The Orb has been set up to handle:

  • objectionable material;
  • online traders;
  • breaches of privacy;
  • scams or frauds;
  • computer attacks;
  • spam;
  • offending against children.

If it is not clear to you which category fits your incident, there is a separate “Other, don’t know” section, while child pornography can be reported via the ECPAT’s Child Altert Hotline section.

If you are a regular user of the internet, I suggest you go and have a look so you know where to go or where to refer another to when in need of assistance.

Complaints posted to the site would be reviewed by Netsafe and passed on to appropriate agencies, including police, Customs, the Serious Fraud Office, privacy commissioner and the Commerce Commission.

When complaints did not fit the criteria of the main enforcement agencies, they would be passed on to other corporate or government agencies, such as banks or organisations such as Trade Me

Source STUFF

Proposed Changes to Employment Law in New Zealand


John Key and Kate Wilksinson announced a number of changes to employment law recently.  While the information is publicly available it is somewhat scattered over various government web sites.  The draft Bill relating to these changes will be subject to public submission once it has been referred to the relevant Select Committee.

  1. 90 day trial period extended to all employers regardless of size of the business.
    This will require prior agreement by the parties. Certain criteria will need to be met before employers can dismiss people within this period.
  2. Employer is to provide employees with a signed employment agreement.
    Where the agreement is not signed, the employer will have to provide an unsigned copy.  This proposal is designed to clarify uncertainties caused by case law.
  3. Amendments to the justification test(103A of the Employment Relations Act 2000).  This will require the Employment Relations Authority to look at what a hypothetical fair and reasonable employer could have done in all the circumstances at the time the dismissal or action occurred. On that basis a dismissal or action by an employer may be deemed justified.
  4. Substance over Form Changes are looking at having overall fairness prevail over the process as is currently the case under the Employment Relations Act 2000.
    Changes proposed include: taking into account employer’s resources, avoiding unnecessary scrutiny on process and a stronger focus on the key elements of fairness (proper investigation, communicating with the employee, giving the employee a reasonable opportunity to respond to concerns, fair and open minded consideration of employee’s explanations, verify whether or not the employee has been treated unjustly).  In essence the changes are a codification of case law requirements.
  5. A Code of Employment Practice relating to disciplinary and dismissal procedures.  Finally I would almost say.
  6. Easier access to Alternative Dispute Resolution (mediation).
    Theoretically this should assist employers and employees in risk assessment at an early stage and avoid costly litigation.
  7. Allow the Employment Relations Authority to give priority to mediated cases.
    An incentive for mediation of course. Sometimes however cases simply are not (or no longer) suitable for mediation and this amendment could cause prejudice to parties or force them to undertake a mediation knowing that it will not succeed.
  8. Allow the Employment Relations Authority to advise when mediation is impractical or inappropriate.
    This could tackle the issues identified under 7.
  9. Allow mediators and Authority members to make recommendations to parties about how the problem may be solved.
    Parties have 7 days to decide whether or not they agree and if they agree the recommendation(s) become binding.
  10. Allow the Employment Relations Authority to dismiss vexatious or frivolous claims. There will be is a right of appeal.
  11. Allow the Employment Relations Authority to penalise parties who do not attend investigation meetings and who file late claims without good reason.    The first change I get, but the second proposed change I do not.  Would it not be easier to just dismiss a late claim altogether?
  12. Removing reinstatement as a primary remedy as reinstatement is rarely practicable or reasonable. Reinstatement will still be available though, but where appropriate.
  13. Treating personal grievances which are not actively progressed as withdrawn.
    As long as notice is given by the ERA of such intention this seems a good move that should assist in clearing backlogs of dormant claims.
  14. Developing a code of professional ethics for employment advocates.
  15. Union access to workplaces after consent by the employer
    Consent however cannot be unreasonably withheld and would have to be for a lawful reason.
  16. Employers allowed communicating directly with staff during bargaining, including about terms of any settlement offer.
    I guess individual bargaining will still be prohibited.
  17. Cash for holiday time allowed for a week of holiday.
    Only employees will be able to request the change and although employers may decline the request without giving a reason, they can’t force an employee to accept cash in exchange for annual leave.
  18. Simplifying the way payment for sick leave, bereavement leave, public holidays and alternative holidays is calculated for employees that work irregular hours.
    The proposal is for the pay rate to be calculated by averaging the gross earnings for the preceding year or less.
  19. Allowing employers and employees to agree to transfer the observance of public holidays to another identified working day.
    This would enable people of non Christian faiths to take days off to enable them to observe different holy days.
  20. Proof of sickness or injury within 3 consecutive days of an employee taking sick leave, so long as the employee’s reasonable costs are covered.
    The employer would no longer need reasonable grounds to make the request.  I could foresee this causing practical problems.
  21. Increase (doubling) of penalties to $10,000 for individuals and $20,000 for employers who do not comply with the Holidays Act.
  22. Making the Employment Relations Authority more accountable and judicial in its conduct and decisions.
  23. Formalising the conduct of Authority investigations.
  24. Search and freeze orders to be issued by the Employment Court only.
  25. Allowing the Employment Relations Authority to remove matters to the Employment Court of its own motion as opposed to when a party requests such a move only.
  26. Right to cross examine witnesses during Authority investigations.
    This will make the Authority much more like a court, cases will inevitably take longer and will encourage more legal representation.  Effective cross examination will require professional involvement but at the same time I see it as a good thing that will end up serving justice.
  27. Allowing the Authority to consider whether minimum legal entitlements could be bargained away before they refer a matter to mediation.
  28. Preventing minimum entitlements being negotiated away in mediations. Entitlements such as minimum wage or holiday entitlements will still be allowed to be the subject of negotiation but not reduced below the legal minimum.  27 and 28 are related changes.
  29. Allowing a party to withdraw a claim in the Employment Court without affecting the claims of another party in the same proceeding.
  30. Allowing people between 16 and 18 to enter into binding agreements with their employers.
    Such agreements are currently subject to approval by a court.
  31. Giving legal definition to the role of Labour Inspectors to give them greater powers to manage complaints and support businesses to achieve compliance.
  32. Allowing Labour Inspectors to enter into enforceable agreements with employers so as to allow willing employers to avoid legal proceedings.
  33. Allowing Labour Inspectors to issue Improvement Notices similar to the notices of Health and Safety Inspectors.
  34. Allow for penalties and interest to be awarded in the case of long-standing and repeated non compliance with a demand notice(s) that require employers to comply with their obligations to pay wages and allowances.
  35. Allowing Labour Inspectors to seek a penalty action from the Authority where the employer has failed to provide a copy of an employment agreement.
  36. Increasing penalties.
    Double the maximum penalties to $10,000 for individuals and $20,000 for employers who do not comply with the requirements of the Employment Relations Act.
  37. Allowing the Employment Court to deal with pre-proceeding discovery regardless of whether the matter is or is intended to be brought before Authority or Employment Court.
    Discovery lies at the core of the justice system and this change is applauded as it stimulates better assessment of the strength of cases and justice on the basis of the facts.

Overall, I guess these changes can be applauded for they have the potential to bring back a balance that has been lost under labour and have to potential of more efficient and effective justice.

Wear and tear used to deny ACC claims | Stuff.co.nz


Bodily wear and tear is being used as a reason by ACC to turn down genuine claims, surgeons and legal advocates say.A 21-year-old Timaru woman is among an increasing number of people being told their injuries are not the result of accidents, but of pre-existing conditions, and therefore would not be covered.However, ACC said the number of people being turned down has increased only because ACC was assessing claims more carefully.Wellington orthopaedic surgeon Robert Kusel said he and his colleagues at Boulcott Hospital’s orthopaedic clinic had noticed an increase in the number of patients being denied ACC cover for surgery, many on the basis of “degeneration” in the injured joint.”They’re now using the age-degenerative reason to decline more people that really have a pretty bona fide case.” ….

…. An ACC spokesman said the corporation was turning down a slightly greater number of surgery claims but that was because it was looking more closely at claims.

“A lot of them aren’t wholly or substantially due to an accident.”

The number of disputed claims upheld in ACC’s favour had remained steady at 70 to 75 per cent.

“When you’re talking about a couple of hundred being wrong out of 57,000 [a year], that’s not a bad batting average.”

via Wear and tear used to deny ACC claims | Stuff.co.nz.

COMMENT

In all fairness, there will probably have been claims in the past that should probably have been denied. But at the same time, serious question marks can be placed before the stated statistics of the ACC spokesman. How many denied claimants end up “fighting” the decision of a denied claim? Experience is telling me that people very often rather walk away and find a way to get medical treatment funded themselves than to go against the big machine that that may need in the past. Involvement in mediation and tribunal cases tells me that more than once the evidence to support ACC’s decisions is thin if there is any evidence at all. General statistics to me do not count as such an that was recently confirmed again.

The first party to decide on whether ACC can deny a claim is ACC itself in the mediation. for many going through the process poses a hurdle they’d rather not go through, either all alone or with a representative or support person. You don’t like the decision ACC made and you are left with a tribunal (Dispute Resolution Services) that use to be a part of ACC. After that what is left is the court room.

The fact that a number of denied claims go unchallenged does not mean by any means that ACC was probably right. here are more and more people looking at private insurance as a safety net for ACC and many simply do not want to gp through the ordeal of mediation, tribunal and/or the court. There are other factors at play here that are of equal importance, conveniently left out by the ACC spokesman.

The situation appears to be pretty much like this:

  • ACC denies certain claims as per default almost pointing to general a statistics;
  • A substantial number of claimants take this for granted either because they do not understand the ACC decision or because they do not feel there is any merit fighting it;
  • A smaller number of claimants are willing to fight it, and end up going through the Tribunal. They will see themselves confronted with a number of legal requirements, that will very likely require assistance that needs to be funded. At the same time the options of claiming these costs back when it turns out you are right are getting less and less favorable.
  • SO: going against an ACC decision actually requires an investment that many, especially in the current economic climate can not afford, and it is not that the options of free or very low cost representation are widely advertised (myself included) and in general hiring a lawyer is a costly operation. So people are made to choose to “invest” money in their procedure with a risk of not being successful at all times. That money that could otherwise be used to fund their treatment. (The fact that ACC denies your claim does by no means mean that your pain is not genuine).
  • You may well be required to spend hundreds if not thousands  of dollars on specialist reports with again a limited option in claiming back these costs.

This is the situation up until the tribunal, and does not even cover  a court procedure. This has nothing to do any longer with ACC being right or wrong in their decisions and all with an in my personal opinion unjust system in which your ACC levies are actually very likely funding nothing more or less than a litigation machine. Money that could have been used on treatment.

The almost habitual denial of certain claims is a symptom of an in my view derailed system. I do understand that there are financial troubles for ACC but that should not be a reason to trade in justice for convenience.

S.F. lawyer awarded $7,000 from e-mail spammer


(03-16) 17:27 PDT SAN FRANCISCO — A judge has awarded a San Francisco attorney $7,000 in damages in a rare trial under California’s anti-spam law – $1,000 for each unsolicited, misleading commercial e-mail he received.

via S.F. lawyer awarded $7,000 from e-mail spammer.

Negotiating Cloud Computing Agreements


Cloud computing has been characterized as a paradigm-shifting phenomenon that will change how we purchase IT resources. Though given different names, cloud computing has been around for some time, and the legal lessons learned from experience with traditional software licensing and outsourcing agreements can and should be applied to cloud agreements, but there are new issues which will need new solutions.

Cloud computing is a loose term that describes a variety of data storage, processing, and application services, normally provided by a third party using equipment not located on the customer’s site. These services include providing raw processing power on demand, special purpose applications on a subscription basis, and remote data storage. An early form of cloud computing was Application Service Provider or ASP services, and another is currently known as software as a service or SaaS. Cloud services are normally provided using internet technology, where the customer uses inexpensive hardware and an internet browser to access the service and/or remotely stored data.

The ease of access and simplicity of using cloud applications are part of its attraction. Unfortunately, the same cannot be said for the legal issues related to cloud computing. While traditional software licensing and IT outsourcing agreements can be used as a model for cloud computing, there are new risks and business practices not addressed in those older agreements that must be considered.

OUTSOURCING AGREEMENTS AS A MODEL FOR CLOUD AGREEMENTS

Read the rest via Negotiating Cloud Computing Agreements.

Manslaughter Charge for Michael Jackson’s Doctor – NYTimes.com


LOS ANGELES — Nearly eight months after Michael Jackson died suddenly, his personal physician was charged Monday with involuntary manslaughter for providing him with a powerful anesthetic that was ruled a major factor in his death.Skip to next paragraphThomas Nguyen/European Pressphoto AgencyDr. Conrad MurrayRelatedPress Release: Los Angeles County District Attorney’s Office pdfEnlarge This ImageJason Redmond/Associated PressMichael Jackson fans gathered outside the courthouse where Conrad Murray was expected to appear.Readers’ Comments Share your thoughts. Post a Comment »The filing of the charges capped an investigation that revealed Mr. Jackson’s heavy reliance on narcotics, including propofol, an anesthetic normally used in surgery but administered to Mr. Jackson, 50, as a sleep aid.The doctor, Conrad Murray, a cardiologist with offices in Houston and Las Vegas, had acknowledged giving Mr. Jackson the drug shortly before the singer was found unconscious on June 25 in a rented mansion here, according to police affidavits. The coroner determined that Mr. Jackson had died from “acute propofol intoxication,” combined with other sedatives.Dr. Murray, 56, who arrived in Los Angeles last week trailed by paparazzi, has maintained through his lawyer that nothing he gave Mr. Jackson should have caused his death.

Read the rest of the article via Manslaughter Charge for Michael Jackson’s Doctor – NYTimes.com.

Press Release: Los Angeles County District Attorney’s Office (pdf)