The Privacy Act 2020 replaced the
Privacy Act 1993, and came into force on 1 December 2020. The exponential
change in the use of technology in society since 1993 together with
globalisation, was a driving force for the necessary change to New Zealand's
The central information privacy principles within the Act regarding how
agencies collect, use, disclose and store personal information, fundamentally
remain the same, with exceptions. However, enforcement of and penalties under
the Act, particularly by the Privacy Commissioner, are now extended and
This article touches on the more salient changes to the Act.
Breach notification - Where an agency (generally a business or organisation)
breaches privacy that causes serious harm to someone or is likely to cause
serious harm, it must notify the Privacy Commissioner immediately and any
persons affected by the breach. Under the 1993 Act, this was not mandatory,
only encouraged. Now, where agencies do not comply, they can be fined up to
$10,000. Online tools are available for agencies to lodge such notifications.
Compliance notices - If an agency is not meeting its obligations under the
Act, the Privacy Commissioner may serve a compliance notice to that agency to
do something or to stop doing something.
Access requests - The Act makes it easier and more efficient for people to
access information about themselves that is held by an agency. Generally,
complaints regarding privacy often arise where an agency refuses to provide
information held about a person, to that person, upon their request. The
Privacy Commissioner can now make binding decisions relating to complaints
such as these.
Information sent overseas - Agencies can only send personal information
overseas provided there are either protections in place that comply with the
Privacy Act 2020, the overseas privacy safeguards are similar to the Privacy
Act 2020, or the relevant individual to which the personal information relates
to, authorises such disclosure.
Overseas businesses may be subject to the Privacy Act even if they do not have
a physical office in New Zealand. There may be exemptions to this depending on
how the personal information is used, i.e. with cloud-based businesses,
however, this is yet to be contested.
Inside this edition
Changes to the Privacy Act
Online harassment: where and how to get help
Virtually witnessed documents
- are they valid?
Changes to sick leave entitlements
Insider's guide to the Disputes Tribunal
Traps when buying a used car
Leaving chattels under a will
124 Queen Street
126 Queen Street
New offences - Four new offences have been introduced under the Act which may
result in a fine of up to $10,000, namely:
1. Impersonating someone or claiming to have someone's authority to obtain
personal information or destroying/altering the personal information.
2. Destroying a document after someone has specifically requested it.
3. Breaching the Privacy Commissioner's compliance order.
4. Failing to report a serious breach notification.
Where you wish to discuss or learn further about your privacy rights as an
individual or your obligations as a business owner, it is suggested to get in
touch with a lawyer.
If you are a business owner and you have not already reviewed your privacy
terms and conditions, now is the time to do this and ensure that you have
protocols in place to provide personal information to customers carefully and
efficiently, if requested.
In an ever-expanding
digital world, we will inevitably find ourselves the victim of some form of
harmful digital communication.
The definition of a harmful digital communication is ever-increasing, no doubt
we have all seen or experienced what is probably the most common form of
online abuse: the 'comments' section of the likes of Facebook, YouTube or your
favourite online newspaper.
However, a harmful digital communication can come in many forms such as
trolling, doxing, bullying, cyberstalking, e-bile, false rumours, deepfake
videos, online sexual harassment, physical threats and revenge pornography. It
is easy to see that any of these types of harmful digital communications could
greatly impact the life of the victim.
There are a variety of ways one can try to handle a harmful digital
communication. Some may find it easy not to read the comments, others may seek
professional help to deal with their emotions or to call out the perpetrators.
But what happens when it goes too far, when we can no longer avoid the
harassment? The first hurdle to overcome, for some people, is the
embarrassment and potential feelings of guilt over their digital harassment.
The second hurdle is the general feeling that there is little to no point in
reporting the issue because there is nothing the law can do to help.
However, things are changing. Born out of an increasing concern to address
harmful digital communications, New Zealand implemented The Harmful Digital
Communications Act 2015. There to deter, prevent and mitigate harmful digital
communications, it has a number of key aspects, one being the appointment of
an approved agency to assist with resolving complaints. This agency is called
A criminal offence is committed where a person posts a digital communication
with the intention of causing harm to their victim, which an ordinary
reasonable person put in the same position as the victim, would also
experience that harm and where the posting of the digital communication does
cause harm. Harm is defined under the Act to be serious emotional distress,
and there are a number of factors that are considered when determining if an
online post has caused harm. These include, but are not limited to, repetition
of the post, the language used and the age and characteristics of the victim.
If the person committing the offence is found guilty, they can expect to
receive a term in prison that does not exceed two years or a fine of no more
So, if you are the victim of an unwanted harmful digital communication you
should not suffer in silence. You can report your incident via the Netsafe
website. Once you have completed the form, it will be reviewed and you will be
contacted with advice. And whilst Netsafe are not an enforcement agency, they
are backed up by new powers given to the District Court who are now able to
make orders in favour of those who experience harm from harmful digital
The more we report what happens to us, the better equipped Netsafe will be to
manage the problem and make changes that matter, resulting in a safer online
world for everyone.
The main purpose of having a witness to
a document is to authenticate that the person signing was in fact the person
noted on the document.
The implementation of electronic signatures was already common practice and
with the advancement of technology, was always likely to increase in use.
In New Zealand, however, law requires that for an electronic signature to be
legitimate, it must comply with the following:
1. The document must identify the signatory.
2. The electronic signature is as reliable as appropriate for the purpose of
the document being signed.
3. A signature is presumed to be 'as reliable as appropriate' if it has been
provided by the signatory with their knowledge and consent. It must be an
accurate signature and the electronic document cannot be changed once it has
4. The person receiving the signature fully permits the use of it in
These requirements are to ensure that electronically signed documents are
correctly executed and that the signatory is fully aware that they are legally
bound to the documents which they electronically sign. Just because the
document was not signed in 'wet ink', does not mean the document or contract
does not exist.
Witnessing serves as a safeguard against forgery and duress, however it has
been argued that face to face interaction is still the best way to achieve
The onset of the Covid-19 pandemic forced businesses and individuals to find
alternative ways to sign documents that required witnessing. In response to
Covid-19, the New Zealand Government implemented multiple immediate
modification orders under section 15 of the Epidemic Preparedness Act 2006
relating to the requirements of signing and witnessing wills, enduring powers
of attorney, deeds, oaths and declarations. These temporary orders modified
the witnessing requirements of specific legislation and allowed for certain
documents to be witnessed virtually through the use of platforms such as Zoom,
Skype and FaceTime.
Many banks and commercial institutions in New Zealand are now allowing
electronic signatures and virtual witnessing, provided that a clause is
inserted into each document which specifies that the documents were virtually
witnessed and the signatory has been adequately identified in accordance with
Anti-Money Laundering legislation.
So yes - virtually witnessed documents are valid. However, caution should be
taken when witnessing is required for a contract that is covered under the law
of another country or jurisdiction that has not yet introduced or allowed for
As has been anticipated, there are some
proposed changes to the Holidays Act 1993 ("the Act") that are expected to
come into effect later on this year. The changes look to double the minimum
number of sick days available to employees from 5 to 10 days per annum, after
they have worked with an employer for six months.
The Holidays (Increasing Sick Leave) Amendment Bill ("the Bill") is currently
before the Select Committee of the New Zealand Parliament and is under review.
As part of their review, they will be gathering information and opinions from
a range of sources, including the public, as to the positive and negative
impact of the Bill before preparing a report to go before Parliament.
The Bill does not propose wide ranging or expansive changes, but primarily
seeks to provide a further five days sick leave to all employees, subject to
them qualifying for full sick leave entitlements under their
existing conditions of employment. This will come into effect two months from
receiving royal assent.
However, employees will only be able to utilise the further sick leave as from
their next sick leave entitlement date (subject to start dates of employment)
following the Bill receiving royal assent. This means, for employees who have
worked for less than six months, this will be on the six-month anniversary
date of their employment contract, or for employees who have worked longer
than six months, when they reach the anniversary of the first time they
completed six months.
The changes are brought on
primarily in the wake of the COVID 19 pandemic, however, the request for
changes to the minimum numbers of sick days has long been a topic of public
interest and is reflective of a call for greater care and treatment for
workers. This is highlighted by New Zealand having comparatively less sick
leave days than many other OECD nations.
Despite the changes to the Act, there will be no changes to an employee's
entitlement to roll-over their sick leave each year. The maximum amount of
sick leave an employee can hold unused is 20 days.
Keep an eye out for the changes later on this year when the Bill is expected
to come into effect and ensure your employer is aware of the changes moving
forward. If you have any queries as to your entitlements under the Bill or the
Act, it is advisable to contact a solicitor for further advice.
If you have an issue you are unable to
reach a resolution on, the Disputes Tribunal may well be your next step. They
can look into a variety of claims that are less than $30,000 in value.
You can apply online via
www.disputestribunal.govt.nz or via a paper Claim Form. When
you apply, you will be asked to provide your name, address and phone number
(you, the Applicant) and the name and contact details of the person or
organisation that you are making a complaint about (the Respondent).
You will then need to give a clear summary of your issue. This must include
what happened, when and where it happened, what went wrong, what you have done
so far to resolve the issue, the total amount you wish to claim and details of
any insurance policies you hold that may cover your claim. As this is your
issue, you will be familiar with every minute detail, however, when completing
your summary, take time to consider the reader, the referee and the
Respondent. You should also provide evidence to support your claim, for
instance this could include a contract, receipts, quotes, correspondence,
photographs, professional opinions, witnesses and so forth. A copy of
everything you provide to the Disputes Tribunal will also go to the
Once you have submitted your claim you will be sent a notice that will detail
the time, date and location of the hearing. Notice will also be given to the
Respondent, who may then defend the claim. If the Respondent provides any of
their own evidence to the Disputes Tribunal, a copy must also be forward to
you. You may then respond, if you feel it is appropriate. Again, whatever you
provide to the Disputes Tribunal, will also be sent to the Respondent.
You and the Respondent will then attend the disputes hearing. Lawyers are not
allowed to be present or represent you. However, you can request to have a
support person with you but they are not entitled to speak during the hearing.
The referee will begin the process by asking you to summarise your claim, this
will then be followed by the Respondent being asked to summarise their
response. During the hearing the referee may ask questions of each of you,
they are not trying to catch you out, they are simply trying to get a clearer
picture and a deeper understanding of the issue. This will assist them with
the final decision. That said, once the hearing is finalised the referee may
ask both you and the Respondent if you would like to attempt to come to an
agreement between yourselves. If this is something you both wish to consider
you may request a break from the hearing to collect your thoughts. However, if
you would rather, the referee can make the final binding decision. You should
note that if the case is reasonably complex, the referee may wish to consider
matters further after the hearing has finished. This may result in the
decision being posted to you.
There are also a variety of other tribunals that cover motor vehicles claims,
tenancy issues and even employment issues. This means disagreements and claims
can potentially be settled without the need for a lawyer.
Traps when buying a used car
While the process of buying a used car is usually completed without legal
advice, it is useful to refresh the checklist of the key points you should
follow. This is particularly important if there is no intermediary, such as a
used car dealership, overseeing the purchase.
There are some key points to reflect upon. Firstly, the person or entity
registered on the Motor Vehicle Dealer Register is the one responsible for the
vehicle, not necessarily the legal owner. This person or entity is entitled to
possession however, and must ensure the car is roadworthy. This particular
Register does not record legal ownership.
Legal ownership is based on a sale and purchase agreement for the vehicle. If
this document is not available (and it is quite common for either party not to
have one or it becomes misplaced) then there are search services available
that trawl the relevant agencies to help establish a chain of ownership.
A logical place to start is to check whether any debt is secured against the
vehicle. This query can be satisfied by searching the Personal Property
Securities Register. If you complete the car purchase and have not ensured
that any loan charge against the car has been cleared by the previous owner,
then repossession of the car may still occur if the previous owner defaults on
the loan secured against the car. Regardless of the fact you have paid the
purchase price for the car and registered yourself as the owner, the existing
loan is a matter of public record and as such, puts you on notice that the
debt secured against your new car purchase exists.
If this were to happen, you would still have legal rights against the seller,
however it would be extremely inconvenient to be car-less and chasing funds
from the seller who was less than honest with you in the first place.
The purchase of a used car is a common transaction and is often made in haste.
However, follow the check list and make sure to avoid the traps.
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Leaving chattels under a will
There is a presumption often made by the will maker that
they can leave the chattels they have to the executors and the family to sort
out once they have died. A generic chattels clause is inserted in the will and
the rest is left to chance.
Let it be known that chattels division issues cause a great deal of friction
and angst for a grieving family, more often than it should. The deceased would
never have intended these consequences.
Specific thought, instructions and drafting are needed with your lawyer when
considering a will. Some options include:
* If specific gifts from the chattels are to go to a specific person, then
state that under the gift section of the will.
* If you are making a list, including the gifts in a document, state in the
will that there is a list - the Court asks to see the list if it is mentioned
in the will itself.
* Make sure at least one of the Executors is in the family group and can
organise and control the family in respect of chattels issues - nothing should
be taken or distributed other than in accordance with the will protocols.
* If a spouse survives the deceased and is a second wife/husband or long term
partner, then if the deceased has children from a previous relationship the
status of the chattels requires some decisions. While the surviving spouse /
partner has relationship property rights, the deceased's children have rights
As careful planning is needed, the advice is to make haste slowly, understand
that grief and emotions at the time around a death can blur clear thinking.
Keep your lawyer in the loop to help chart the best course.
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If you have any questions about the newsletter items,
please contact me, I am here to help.
Scannell & Co - 122
Queen Street East, Hastings
(06) 876 6699 or (021) 439 567 Fax: (06) 876 4114 Email:
information in this newsletter is to the best of the authors' knowledge true
and accurate. No
liability is assumed by the authors, or publishers, for any losses suffered
by any person relying directly or indirectly upon this newsletter. It
is recommended that clients should consult S J Scannell & Co before
acting upon this information.
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