Month: May 2012

Streets of Laredo – dreamy folk vintage rock magic

Its hard to precisely define the genre of music this band falls within. It is gentle but raw, its dreamy but real, its pure but its dark, its magical and kinda mythical but most of all it is simply epic.  Whilst I’m typically in favour of NZ retaining talent, when it comes to sharing the gift of music transporting talent offshore is an exception to that rule. New York is about to receive some serious kiwi talent – these guys and the lovely lass have an incontestable gift to share.

Follow this link to aural heaven http://socialcam.com/s/VrsB2cnu

Photo taken by Tina Plunkett @ The Whiskey Bar 29 May 2012

Carer’s in Rest Homes

The recent review of Rest Homes is clearly long overdue. Many see Rest Homes as a place where the elderly are simply sent to die. That’s a hospice. Rest Homes care for the elderly who are no longer able to care for themselves without assistance. In effect, they require the comparative care one would expect of a childcare facility. This is not an assertion that the elderly are children, but an affirmation that the care required is considerably more than those running Rest Homes for profit care to give.
I was discussing Rest Home care last night with a friend of mine who is a Carer at a Rest Home. During that conversation I realised that not once did she consider her job to simply consist of ‘wiping bums and nappies’, in fact, not once did she mention that as part of her role. Truly admirable.
The reason I raise that point is that  key discussion around Rest Homes of late has been that Carers are essentially unskilled workers who wipe bums and change nappies for minimum wage. But for this Carer her job was about ensuring that the Residents that she cared for had all the things that they required – not simply those functional things such as food, cleanliness and medication – but also, that they were happy, that they were cared for in a way that didn’t demean them as human beings and that they trusted her. Legend.
I can accept that it is considered unskilled because it carries no ‘formal qualification’ but a formal qualification is not determinative of whether a job requires skills. A formal qualification is simply euro centric elitism that creates poverty by devaluing jobs that cut to the heart of society. I’ll admit that I’m guilty of jumping on the formal qualification train but I have not lost sight of the fact, that some of the most important roles in society are those that are devalued simply because the skill and expertise required is learnt through practical experience and not a textbook written by some intellectual who’ll be proved wrong or at least discredited in the next 5 years.
Carers do more than the gross generalisations placed on them by society. Of course there are residents in these facilities that need assistance with incontinence but to grossly generalise the work of a carer as simply fulfilling this task is not only to undermine the role of the Carer in a Rest Home but is also to attack the dignity of those residents in receipt of that care.
Jo Robertson you make me proud to be your friend!

Steven Price and the law in the Digital Age

This is an interesting read and very relevant article. To check out his blog see details at the bottom. Enjoy!
 
NZLawyer \\ issue 184 \\ 18 May 2012
A heroic – but slightly defective – plan to save the online world
There are times in the life of a mild-mannered reporter (and barrister and blogger) when he must shuck off his civilian garb, don his cape, and save the world. This is one of those times.
There are evil people online. They bully, they defame, they harass, they intimidate, they denigrate, they post naked pictures of their ex on Facebook. Their innocent victims must be protected.
As the Law Commission has amply demonstrated in it issues paper, The News Media meets ‘New Media’: Rights, Responsibilities and Regulation in the Digital Age (NZLC IP 27, December 2011), these harms are real. Netsafe says it gets 75 calls a month from desperate punters facing this sort of problem. They are often frustrated by the inability of the police to deal with them; police in turn say there are gaps in the law. Social media sites aren’t always responsive to complaints. The victims can’t afford to go to court, even when legal remedies are available.
What’s to be done? The Law Commission has mooted a Communications Tribunal that could make take-down orders (and orders for damages, rights of reply, or an apology) where a complainant can show that the law is being broken and the breach is causing him or her significant harm. This process would parallel the civil and criminal law, but be quicker, cheaper, and easy to access.
I’ve suggested that this is problematic. Criminal defendants might face an attack on two fronts, with different standards of proof and evidence rules. They’d at least have to make awkward tactical calls that might prejudice their criminal defence. A Tribunal ruling might influence their criminal trial rights. Besides, the Tribunal would have to deal with tricky mens rea issues that ought to be beside the point for the Tribunal.
Parallel civil claims raise different problems. Take defamation. Defamation cases involve a cornucopia of fiddly issues about the meaning of words, the truth of particular imputations, classification as opinion, the existence of reciprocal social or moral interests or duties, and much more. The Courts also exhibit a muscular aversion to injunctions. What would a Tribunal do with all that?
Conscious of some of these problems, the Law Commission proposed an alternative: a Communications Commissioner, with no real powers but an informal role of assisting resolution of online claims. This strikes me as a great idea (particularly if this person were to be able to facilitate resolutions with the big social media organisations), but if push comes to shove, he or she won’t be able to shove very hard.
Here’s where I save the day. I have a plan that solves these problems, while still providing a remedy for our innocent victims.
But first, a confession. This plan is pretty similar to the Law Commission’s two plans rolled together. They’ve done the hard work here. And my plan also has its problems. At this point, it’s a bit half-baked. What’s more, it won’t stop a determined and savvy online abuser. But then, I’m not sure what will. The best we can hope for is a cheap and quick way of having harmful material removed where that’s possible, with care taken to ensure free speech rights aren’t trampled on.
Here’s the gist. A claimant would have to provide evidence of four things:
  1. Material is published online in relation to the claimant (who must be a natural person);

  2. The ongoing availability of the material is causing the claimant significant harm;

  3. The claimant has made reasonable attempts to have it removed, but has failed;

  4. The material features one or more of the following characteristics:

(a) It is false or misleading;
(b) It contains sensitive personal information (including an image);
(c) It breaches an obligation of confidentiality;
(d) It denigrates the claimant by reason of race, religion, sexual orientation, etcetera;
(e) It claims, without authority, to represent the claimant;
(f) It encourages others to abuse the claimant.
These latter elements obviously have much in common with the law: item (a) echoes defamation law, (b) the tort of invasion of privacy, etcetera. But they strip away the complexities, and – I hope – reduce the clash with the criminal law.
That’s enough to get a claim up and running. After that happens, the Tribunal would have a discretion to make a take-down order. But it could only do so after considering a range of statutory factors, and only if it concludes that a take-down order is demonstrably justified. (That last bit is intended to magic away the obvious clash with the New Zealand Bill of Rights Act 1990).
What are the factors? Well, for a start, obvious ones like the degree of harm likely to be caused, the breadth, nature, and understanding of the likely audience, whether an order would be futile, and the importance of the right to freedom of expression, including anonymous expression, and the inherent dangers of censorship.
I’d also throw in a series of other factors designed to reflect the principles of the law, but avoid their complexity. So the Tribunal would have to factor in, where relevant:
  • The extent to which the material is accurate;

  • The extent to which the material is recognisable as opinion;

  • The extent to which the material is recognisable as humour or satire;

  • The extent to which the material contributes to a discussion of a matter of importance to its audience;

  • Whether a right of reply has been offered, whether it has been taken up, and whether it is likely to be effective in addressing the harm.

These factors are designed to reflect defamation defences; different factors may need to apply in privacy cases, for example.
Notice what’s not covered. This plan doesn’t deal with harassing emails or texts; it doesn’t relate to copyright, contempt of court, or hate speech against groups (there are remedies elsewhere for these); it wouldn’t cover the mainstream media (if they have signed up to the single regulator that’s also being proposed by the Law Commission); and it wouldn’t be available to corporate bodies (unless the material reflected particularly on a natural person – an attack on a small family firm, for example).
But I’m just laying down a possible framework. I think there’s room for debate about the content.
What about the complaints process? I have in mind a two-stage process, with a role for a Communications Commissioner at the beginning.
A complaint would be lodged (with a small filing fee, I think). The Commissioner would check that the four elements discussed above were covered, and would filter frivolous or vexatious complaints. He or she would have a duty to try to ensure the respondent is provided with details of the claim (perhaps via an ISP) and given information about how a response can be made (perhaps even anonymously).
The Commissioner could then decide to take a range of actions:
  • Provide information to the parties;

  • Help the complainant deal with social media organisations;

  • Merely warn the respondent of laws that may apply;

  • Try to mediate/settle;

  • Intervene on behalf of the complainant;

  • Refer the case to the Tribunal;

  • Refer it to the Tribunal for fast-track consideration.

So the Tribunal would only come into play if the Commissioner was unsuccessful. It too would be required to seek and consider the respondent’s response (if possible). It could make interim orders in very serious cases after fast-track consideration, perhaps applying a higher threshold.
The consideration of the complaint would usually be done on the papers, fairly informally, perhaps with provision for a hearing in rare cases. The Broadcasting Standards Authority has operated successfully this way. The Tribunal could make final orders after an exchange of submissions. I wouldn’t be inclined to give it power to order damages. Let the Courts handle that.
There should be a right of appeal on the merits. And it should be an offence to disobey a take-down notice, to repost the material, or to post something substantially similar.
The Tribunal would probably need powers to make take-down orders against website hosts and ISPs where the respondent can’t be found or won’t comply, suppress the names of claimants on occasion, order disclosure of the respondent’s identity where necessary, make declarations of inaccuracy, and order rights of reply. We’d probably want a provision that the evidence and outcome at the Tribunal couldn’t be used in court proceedings.
There. Problem solved. Now, how about world hunger…?
Not so fast, you say. And you’re right. You’ve noticed that my plan suffers from some of the same defects as the Law Commission’s one as to the dangers of parallel proceedings. And my plan too creates a fairly complex task for the Tribunal. In addition, it presents greater danger of abuse. The Tribunal has a very broad discretion to censor online material. My proposal plainly authorises suppression beyond the edges of current laws.
I’m sure you can think of your own objections. I hope you do. This is a debate worth having. The government is likely to be forced to take some action on these issues in the near future, and the harder we’ve thought about what that action should be, the lower the chances of us screwing it up.

Steven Price is a Wellington barrister specialising in media law. He writes a blog at www.medialawjournal.co.nz.

Hearsay and Maori

I’m curious about the law of evidence particularly ‘hearsay statements’ and tikanga Maori and in fact cultures in general with a history of oral traditions. What I find interesting is that ‘hearsay evidence’ is generally inadmissible (s17) yet  many cultures including Maori rely on oral traditions. To clarify, a hearsay statement is a statement made by a person other than a witness in court and is offered as evidence to prove the truth of what it asserts (s4). But I’m interested in the question of reliability in determining whether a hearsay statemnt is admissible, since it is construed in a context that is contrary to those oral traditions. Maori typically relied on oral accounts as relaible statements yet the Evidence Act doesn’t seem to take into consideration this cultural phenomena. In effect, then it indirectly discriminates against cultures who would typically rely on oral statements as truth. Any ideas?

UPDATE: I put the query to my Lecturer and he responded as follows –

“The Evidence Act doesn’t exclude oral hearsay statements as evidence but it does subject them to a reliability assessment via s 18. Whether the assessment of reliability currently practiced in NZ courts comports with the assessments that might be made by individual cultures is hard to know. It’s all a question of “how do you know what you know” – and different groups may see that question differently and be more or less skeptical of evidence accordingly. I would hope that, if the issue ever came up in NZ courts, that NZ judges would be sensitive as to how Maori assess the reliability of their oral history and what they accept as reliable evidence based on that history. However, ultimately, those judges would have to assess reliability on their own – and that could bring in conflicts between how cultural groups make such assessment and how they are made in a court system applying Anglo-American principles of evidence and other laws”.

Student Debt

Student debt – apparently a National Party objective is to reduce student debt to assist in reaching their 2014-2015 surplus target. Joke. By reducing the number of persons entitled to student allowances reduces only the amount that the taxpayer contributes to assist students while they study. Reality – more students are forced to take out the ‘living costs component’ of the student loan scheme to cover the cost of living while they study, which means larger loans and consequently – larger student debt. The government then forces students to payback the loan at a higher rate, noting that with the student allowance and a student loan at a 10% payback rate is manageable but when a student is forced to payback 12% of their earnings on a larger loan this becomes unmanageable – the debt lasts for longer because the loan is bigger. The government is effectively saying ‘we know we’re making you borrow more (thereby increasing student debt), so to attain our 2014-2015 target we’re also going to make you payback more! Notwithstanding that students signed binding contracts of a 10% payback rate and relied on that in their undertaking of a student loan. The government is not reducing student debt, instead it is reducing the amount of money it is willing to put into tertiary education and forcing students to take out larger loans to pay for their own living costs, so increasing the actual student debt bill. Noting, that these are people willing to upskill to and attain work, while many of the unemployed retain their unemployment benefits without that tenacity to upskill. National complain about the ‘brain drain’ in NZ with so many leaving for better opportunities and wages overseas, particularly Australia. But it is unlikely their policies on student debt are going to retain the knowledge the economy so desperately requires. Graduates are already struggling to find work – there is none. And if they are unable to continue on to Post-Graduate studies (on the basis that they have to borrow more) to beef up their chances then where to from there?