The difference with a landlord providing an unsafe house is that it’s an indirect harm, or risk of harm, to the tenant. We need tenancy law to protect tenants against this.
I entirely agree. In this particular case, though, Peter McLeod’s actions were a breach of tenancy law as well, as the RTA requires landlords to “comply with all requirements in respect of buildings, health, and safety under any enactment so far as they apply to the premises.” The law requiring the stove to have been installed by a licensed gasfitter is pretty clear, and if Lesley had known the LL had installed the stove himself, she could (in theory, bar all the caveats about actual ability to take advantage of legal protections) have taken him to the Tenancy Tribunal, got the fitting rectified and exemplary damages of up to $3000.
So the gap in the law is in all the other areas of building maintenance that end up with tenant health being compromised because the properties available for them to rent are all rundown and cold (or at least, in easily accessible legal protections – see paperwalls.org for a description of the legal protections theoretically available, but which I think you’d have to have huge reserves of energy to actually access).
We don’t need tenancy law to tell us “neither landlord nor tenant may hit, bind, gag, or shoot each other”, do we?
Well, you might not think so, but...
RTA s55 (1) Subject to subsection (2), on any application made to it under this section by the landlord, the Tribunal shall make an order terminating the tenancy if the Tribunal is satisfied that—...
(c) the tenant has assaulted, or has threatened to assault, or has caused or permitted any person to assault, or to threaten to assault [landlords, owners, family of either, neighbours].
The tenant's equivalent provision is a lot less specific. They get:
s38 (2) The landlord shall not cause or permit any interference with the reasonable peace, comfort, or privacy of the tenant in the use of the premises by the tenant.
(3) Contravention of subsection (2) in circumstances that amount to harassment of the tenant is hereby declared to be an unlawful act.
Which the tenant could combine with s56 to get the Tribunal to end the tenancy (and seek up to $2000 in exemplary damages):
s56 (1) On an application made to it under this section by the landlord or the tenant, the Tribunal may make an order terminating the tenancy if the Tribunal is satisfied that— ...
(a) the other party has committed a breach of any of the provisions of the tenancy agreement (including provisions relating to the payment of rent) or of this Act; and ...
(c) that the breach is of such a nature or of such an extent that it would be inequitable to refuse to make an order terminating the tenancy.
Obviously tenants have a better deal here, as landlords harassed by tenants still have to give the usual 90 days notice, whereas tenants harassed by landlords can apply to give less than the usual 21 days notice. On the other hand, I find it interesting that the possibility of tenants assaulting landlords is explicitly recognised in the RTA, but the possibility of landlords assaulting tenants is not.
As far as the "tenant action risking the health of the landlords" front goes, the most likely example I can think of would be where the tenants have run a meth lab.
Actual cases of death, not that I can find in a quick google. There's another case of landlord violence against a tenant (http://www.stuff.co.nz/auckland/local-news/6836602/Landlord-threatened-to-kill-tenant-claims), and a few couple of cases of tenants attacking landlords (http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=10566650 and http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=3049176, but fortunately neither of them died.
You’re right, WH. Fisher could meet the definition of a news medium because he is “an agency” [a person] (we’ll skip over my earlier objection to agencies not being news media), “whose business consists of a news activity”, that news activity being “the gathering of news … for the purposes of dissemination to the public or any section of the public”.
This approach neatly avoids the question of whether a book is or isn’t an article. It’s clearly dissemination, which is all it has to be.
There could be an alternative problem, in that the Act distinguishes between news and current affairs, which must therefore be different things, and I would call the book current affairs rather than news. However, you could argue that that doesn’t matter because at the time the material for the book was gathered, the individual pieces of information gathered would count as news. As we all know (a baby learning how to crawl from a dog apparently counts as news) the bar for something to count as “news” is pretty low. And it’s the gathering of news that’s required – there’s no date specified for the dissemination.
Where do ‘publishing’ and ‘publication’ sit in this continuum?
(both as a verb and noun)
That’s a good point Ian. “Publication” does appear in the Act, and by inference, it means “a magazine, book, newspaper, or other publication”. This could imply that a book is a separate thing from an article, which makes skipping having to define a book as an article all the more important.
“Publish” as a noun doesn’t come up in any sections relevant to this case.
I would see publications and publishing as a sub-set of dissemination.
So the Evidence Act defines a news medium as "a medium for the dissemination to the public or a section of the public of news and observations on news". But that doesn't help much, as the only reference I could find to protections for journalists or the news media was s68, which allows (some) for the protection of the identity of informants - but not protection of what they said.
But if the Crown lawyers had gone to the front door and sought third-party discovery from Fisher, wouldn't Fisher have a stronger case that it was BoRA-prohibited unreasonable search and seizure (BoRA only applies to the Crown)? Dotcom's access to Fisher's material isn't unreasonable search and seizure, because a) Dotcom is not the Crown; and b) he has (now) a right to request it.
So would it be right that the judge has only ruled that Dotcom must ask for the material, but not that Fisher must provide it? Since Fisher had no representation in court, and wasn’t party to the proceedings in any way, surely it would break some rule or other for the judge to issue any rule about what Fisher must do?
To Kevin, thanks - I think I have done a good first year law course, but it was quite a few years ago. But I take your point: the judge can decide to ignore the contradiction if they choose - nevertheless, I would have liked to see her at least acknowledge that there was one.
I take her ruling to mean that a news medium is "an [agency-if-a-news-medium-was-an-agency] whose business... consists of news activity." I don't like it, but I can see it's practical.
Except the definition of news activity doesn’t just include news, but also current affairs, which has a much broader time range. e.g. books published on MH370 are probably a bit old to be called news, but they’re certainly still current affairs; or wikipedia’s definition of current affairs as “a genre of broadcast journalism where the emphasis is on detailed analysis and discussion of news stories that have recently occurred or are ongoing at the time of broadcast”. The Kim Dotcom saga is clearly still ongoing, or there wouldn’t be a courtcase about it.
Which means that the critical word is “article”.
But that still doesn't solve the news medium =/= news medium contradiction.
I interrupted the last post for the commute, which also gave me the chance to think about it more. I’m now also looking at the full judgement. I find it quite confounding that Justice Winkelman has, in paras 66 and 67, listed exactly the interpretations I noted earlier, without also noting the contradiction between the two. What am I missing? I don’t see how a judge can just skip past the Act defining a news medium as “any [thing that, in relation to news activities, is not a news medium] whose business … consists of a news activity”. This contradiction offends me deeply.*
The contradiction cuts all the way through the judgement. Later, in para 74, J Winkelman notes that “Section 38 provides that “it is the duty of every agency to give reasonable assistance” to those who make information requests.” But she’s already stated up in para 66 that Fisher is not an agency. So does that mean he has no duty to give reasonable assistance after all?
Anyway, or also, or something, as previously noted, wherever possible, and certainly if there is any ambiguity, Acts must be read as if they were consistent with the Bill of Rights Act (s6 “Wherever an enactment can be given a meaning that is consistent with the rights and freedoms contained in this Bill of Rights, that meaning shall be preferred to any other meaning”).
There is the issue that this case, as it relates to Fisher, cuts both ways. I would imagine that in most cases where someone was seeking to use the Privacy Act to access material from a book about them, it would be in their interests to have that information released. Whatever Winkelman rules here would presumably have precedent for later interpretations of the Privacy Act.
So, would we want a ruling that people who had books published about them were preventing from accessing the material for that book on the basis that it was journalism?
Yes, I think we would, just as we do for any other journalism. So no issue there after all.
So what about the Bill of Rights Act?
As J Winkelman notes, (para 68) “The free flow of information through the media is vital to the life of a free and democratic society, and is supported by the protection of freedom of expression in the New Zealand Bill of Rights Act 1990.” In para 69 she acknowledges “the importance of these principles”, and only excludes them because the news media exception doesn’t apply. I think that if she had also acknowledged the contradiction in the definition of a news medium, she would, because of BoRA (and the right to protection from unreasonable search and seizure as well as the right to freedom of expression), have had to allow an interpretation of the Privacy Act that included authors of books containing journalism to be defined as news media, and the books themselves as news activities.
*IANAL. I have done all of 3 law papers. I like to think I grasped the principles of statutory interpretation very well, but it's entirely possible there's some subtlety I'm missing here. Anyone?
I've had more of a think about this, and I'm going to go out on a limb and say the judge did get it wrong.
First, she says "There can be no suggestion that Mr Fisher is himself a news medium as that phase [sic] is defined in the Privacy Act."
I disagree. A news medium is "any agency whose business, or part of whose business, consists of a news activity."
An agency is "any person or body of persons, whether corporate or unincorporate, and whether in the public sector or the private sector .. and ... includes a department, but does not include .... in relation to its news activity, a news medium"
So we have an internal contradiction. While a news medium is "any agency...", an agency cannot be a news medium. I don't see how those two things can be true at the same time. I don't have the full judgement. Did the judge highlight this anywhere? It seems like a pretty fundamental problem to me.
Second, I think you can interpret "article" more widely than the judge has done, if you go with the definition of "an item for sale, commodity" type definition rather than a section of a publication.
And it should be interpreted widely, because of the Bill of Rights Act.