GTodd Law

News / Blog

August 2015


Mainly cloudy with patches of liability: Cloud based software and its relationship to the law of Privacy - Thu, 27 August 2015

Introduction

You probably would have heard of it, and it is almost certain that you have used it, perhaps only inadvertently. Nevertheless, in this age of technology, the concept is all around us.  I’m talking about “the cloud” and so far, forecasts have called for recognition, but peoples understanding remains cloudy.

In fact, generally, peoples understanding of cloud based technology has not developed further then their fourth form biology curriculum’s requirement to name the clouds in order of density. However, it is important to know, a failure by anybody utilising cloud based technology to store acquired information can lead to serious breaches under the Privacy Act 1993.

The Cloud?

Simply put, cloud computing is computing based on the internet. Cloud computing is the sharing of computing resources rather than having local servers or personal devices to handle applications. The word cloud is used as a metaphor for "the Internet". Different services, such as servers, storage and applications, are delivered to an organisation's computers and devices through the Internet.

The Benefits?

The Cloud allows you to set up what is essentially a virtual office to give you the flexibility of connecting to your business anywhere, any time. With the growing number of web-enabled devices used in today's business environment, for example smartphones and tablets, access to data is even easier. The cloud framework supports this technology. This allows proponents to access information more efficiently, with greater flexibility and in an increasingly logical environment. All supporting production efficiency, scalability and collaboration.

The Problem?

The crowning glory of cloud based technology, multiple access routes through multiple mediums, can also be its biggest downfall. Because, in a nut shell when you move data over the internet, the question of "Is it still just your data?” becomes a very real one. The ability for others to access the information, and the possibility of losing data increases exponentially when the storage device is moved from a locked cupboard, to an internet based platform.

Liability?

The bottom line is, any individual or company that uses cloud based technology is responsible for what happens to that information. Personal information is defined under the Privacy Act as:

            “Any piece of information that relates to a living, identifiable human being”.

Clearly this is an extremely inclusive definition. If an individual or business is using personal information, whether in the cloud or not, they are required to comply with the provisions of the Privacy Act. The disclosure or failure to protect personal information amounts to an interference of privacy under s66 of the Privacy Act. This engages the Privacy Commissioners complaints process and potential liability on behalf of the business entrusted with that information.

Conclusion

People are entitled to expect confidentiality standards when it comes to personal information used in the commercial world. If you are a business person using, or thinking about using cloud based technology it is important to know the scope of your responsibilities. Contact GTODD LAW if you would like to discuss your legal obligations, whether you hold information on your computer server, a shared datacentre, or off shore, it is important you do so responsibly.


GTODD LAW NEWS - Thu, 20 August 2015

Moving in! Governmental initiatives to support regional migration

The rapid population growth experienced in Auckland, has not only caused property law reforms, but has extended into other areas of New Zealand’s legal framework. In June 2015 alone, net permanent and long-term migration showed a gain of an estimated 4,800 migrants. The already bursting Auckland region accounts for an overwhelmingly high proportion of these intakes. This causes additional pressure on a market already at the precipice of unsustainability.

Solution? Incentivise migrants to make the five minute domestic airport transfer at Auckland airport, and make their way to the regions, which if anything, have a surplus of capacity. Proportionality? Not relevant. This is the approach the Government has decided to take and the changes will have broad implications for immigration law in New Zealand, leaking into employment law to boot.

On 26 July 2015, Prime Minister John Key and Immigration Minister Michael Woodhouse announced a range of changes to immigration policy, primarily aimed at supporting regional development and incentivising regional migration.

Immigration Changes:

For a migrant moving to New Zealand with the intention of becoming a permanent resident there are essentially two categories, when the application is based on the person’s occupation or skill. These are defined as the Skilled Migrant Category visas, and Work to Residence visas.

The Skilled Migrant Category visas are based on a points system established by Immigration New Zealand, which take into consideration a number of factors such as qualifications, skill shortage and future growth areas in the field of employment, and English proficiency. In order to be considered in the ‘pool’ of applicants for residency a person must obtain 100 points, but the more points someone has the better chance they have. The current policy changes mean that;

  • - Skilled workers who take jobs in the regions will have bonus points bumped up from an extra 10 points to an extra 30 points.
  • - Skilled workers who set up businesses outside Auckland will be given 40 extra points, doubled from the current 20 points.

The Work to Residence Category visas allow migrants who have been working in New Zealand for at least two years after being granted a work visa to apply for residency. Under this category, an additional pathway to residency will be provided for a limited number of long-term migrants on temporary work visas in the South Island.

Employment Changes:

Changes to the employment law framework are not as far reaching, and are an indirect consequence of the immigration amendments. However, they will provide tangible benefits for employers of migrant workers, giving labour providers a better understanding of where they stand. The Government initiatives mean that employers will be able to contact Work and Income directly to check whether New Zealanders are available to fill a particular vacancy before they lodge a visa application with Immigration New Zealand. This will have the effect of streamlining labour market tests to provide employers with more certainty. In consequence, Employers will have more accurate information for staffing available positions, but it will come with an increased onus to consult to make decisions consistent with their duty to employ existing New Zealand residence in precedence.

Conclusion:

Regional development is a broad term but can be seen as a general effort to reduce regional disparities by supporting (employment and wealth-generating) economic activities in regions. The instrument used by the Government in this case is changes to immigration policy. Whether or not this will counter under-used economic potential and weakened social cohesion will be observed through empirical evidence. In the meantime, GTODD LAW are available to discuss the real consequences of the policy to you, in addition to any other legal issues that you may have.

By Sam Buchan


GTODD LAW NEWS - Wed, 12 August 2015

The Biggest Loser:  Exploring the ‘new’ capital gains tax and informational requirements

Introduction:

There is ambiguity about whether the new arrangements, which come into force after 1 October 2015, constitute an actual “capital gains tax” (CGT). However, theories aside, the Government has taken a tangible step towards a comprehensive scheme for capital gains across all property sales within New Zealand.

The crux of it is, change is upon us, and this means that vendors and purchasers must be more organised and informed in order to achieve the results they expect from their property transactions.

From a political standpoint, the move attempts to put the brakes on increasing income inequality, overseas property investment, and the bull in the china shop that is the Auckland housing market. From a legal perspective, it means increased informational requirements for property transactions and a heightened need for tax advice during the conveyancing period.

The Capital Gains Tax Bright Line Rule:

  • A presumption arises that if you buy, sell, or in some cases transfer, residential property within two years from the acquisition date that you have done so for the purpose of making a capital gain. This ‘bright line rule’ supplements the existing intention rule, which imposes a CGT on property transactions where that transfer arises from an intention to sell for a gain.
  • Acquisition date for selling starts when the title is registered to the Purchaser, not when the Agreement was entered into, and stops at the date the Vendor enters into the Agreement for sale. Therefore, you need to do more than rely on two years in a calendar sense.
  • If you enter into an Agreement to buy land off the plans, and then on sell before title is available, the acquisition date is calculated from the date the Purchaser enters into the Agreement to buy and ends on the date they enter into the Agreement to sell.
  • Any owners wishing to set up a family trust and then transfer their property to the Trustees of that Trust within two years of purchase will be caught by the CGT unless the exemptions apply.
  • An exempt transfer of land is land that is ‘residential land’ intended to be the Purchasers ‘main home’ or was the Vendor’s ‘main home’.
  • At present, business premises and farmland are excluded from the exemption.
  • Any capital gain will be taxable at taxee’s income tax rate. In the majority of situations where losses are experienced they will be disallowed.

New informational requirements:

  • In order for settlement to occur a ‘Tax Statement’ is to be lodged with Land Information New Zealand. Therefore, in order to avoid any delays in settlement, parties to the transaction are advised to have the relevant information for the preparation of the Tax Statement as soon as practicable.
  • The Tax Statement needs to include a person or entities IRD number and New Zealand Bank account information.
  • The Tax Statement will also require provision of whether the Vendor/Purchaser is a tax resident in another country outside NZ and if they are, the country code and equivalent of their home country IRD number will need to be provided.
  • It is important to be aware of situations where the Trustee of a Trust, which is involved in a property transaction, is an offshore person as these provisions may be triggered.
  • This information will provide the basis for whether or not the transaction is exempt from the CGT.

Conclusion:

The CGT will take effect for any residential land acquired on or after 1 October 2015.  Transitional rules for Agreements entered into prior to 1 October 2015 will apply - essentially whilst the CGT will not apply to any Agreement entered into prior to 1 October the requirement to collect the Tax Statement information will trigger if settlement occurs on or after 1 October 2015.

All things considered, the forthcoming changes provide another dimension to property transactions that both Vendors and Purchasers need to be acutely aware of. That is where we come in. At GTODD LAW we have made it our mission to become experts in the area. Please contact us if you have any questions regarding the above variations to the law. It is vitally important that you seek this information early, at the very least before your agreement becomes unconditional.

By Sam Buchan/Maree Adams


GTODD LAW News - Wed, 5 August 2015

Game of Drones: Changes to the legal framework for flying unmanned aircrafts

Introduction:

The Civil Aviation Authority receives up to 50 enquiries a week relating to unmanned aircraft (“UAV”). This compares to around 20-30 enquiries weekly at the beginning of 2014. Furthermore, operation in breach of the Civil Aviation Rules could lead to a fine, a written warning, or prosecution by the Civil Aviation Authority. There have already been 53 such incidents this year, in comparison to 27 incidents for the whole of 2014.

Drones are on the forefront of current technological advancements. They provide practical benefits for private owners, commercial entities, governmental departments, and anybody who can still associate with their ten year old self’s ambition to be a Star Wars fighter pilot.

However, like any other development that challenges conceptual barriers, this rapidly evolving industry is raising complex regulatory questions. Issues relating to privacy, public safety, and environmental concerns, are just some of the counter arguments opponents have raised. New Zealand is seen as a leader in governing the area. Transport Minister Simon Bridges solidified this aggressive approach last week by adding further restrictions to the Civil Aviation Rules. The new rules came into force on the 1st of August 2015.

Civil Aviation Rules:

The principle form of governance for UAV’s are the Civil Aviation Rules. These take the form of a number of guidelines that the Civil Aviation Authority has established, under their delegated authority within the Civil Aviation Act 1990. The rules themselves are guidelines, therefore, they lack legally binding impetus. However, almost every Civil Aviation Rule has a corresponding offence, contained in the Civil Aviation (Offences) Regulations 2006. Historically, most breaches of the rules by participants are dealt with by the various operational groups of the Civil Aviation Authority. However, from time to time, some individual rule breaches may be considered serious enough to warrant referral to the law enforcement unit, or there may be concern that a participant has continually breached certain rule requirements and that a more punitive sanction is necessary.

The previously existing Civil Aviation Rules affecting drones:

As a general guide, prior to the 1st of August you could fly your UAV:

  • In uncontrolled airspace below 400 feet above ground level
  • During daylight hours
  • Within visual line of sight (‘Visual line of sight’ means a straight line along which an observer has a clear view)
  • Clear of all manned aircraft, and risks to persons & property 
  • Outside of airspace restricted areas
  • Not within 4km of any aerodrome
  • If you knew the Civil Aviation Authority regulations

New Civil Aviation Rules for UAVs

Transport Minister Simon Bridges intention for the new Civil Aviation Rules for unmanned aircraft is to improve aviation safety for operators, other airspace users and people and property. These come in the form of two main additions/amendments:

  1. A key update to Rule Part 101, which was designed to regulate traditional model aircraft, is the requirement for operators who want to fly over people or property to gain consent from the affected individuals or property owners before they fly. This change causes all types of issues when it comes to monitoring and policing the current framework, but is viewed as a necessary step towards greater safety and privacy. It is going to be interesting to examine its application in practice with many commercial proponents frustrated with the additional compliance costs and obligations.
  2. Civil Aviation Rule Part 102 will enable those who want to operate outside the existing rules for unmanned aircraft to do so if they have in place a plan to manage the safety risks. This provision provides an alternative to the current guidelines, but requires a detailed plan contingent upon the authorisation of the Civil Aviation Authority. It is viewed as adding to the enabling mechanisms within the rules to help the development of the industry. Similarly, to the property owner consent amendments, it will be better understood when evidenced in practice.

Conclusion:

The Government’s extension to the rules places more onerous restrictions on all drone operators, from commercial users to amateur aviators and budding Star Wars pilots. More than anything, it highlights the need to be aware of the restrictions in place for the use of UAVs.

At GTODD LAW we are aware of these requirements. Consequentially, we are in a position to provide advice if you would like to develop strategies for their use or consult with relevant affected property owners based on the new restrictions. We have attached an affected party form that can be used as a precedent in gaining the approval of affected property owners.

Landowner approval for operation of unmanned aircraft:

I/We (Please print full name/s)_________________________________________________________

of (Address)________________________________________________________________________

in accordance with the Part 101 of the Civil Aviation Rules, namely Part 101.207 relating to airspace, give my/our written approval to the proposed use of an unmanned aircraft over our property.

In signing this written approval:

  • I limit my approval to the use of the unmanned aircraft specified to me by the operator, including but not limited to the duration of operation, the airspace over which operation will occur within and the type unmanned aircraft to be operated.
  • I may withdraw my written approval in writing before or during such use if there are reasonable grounds

Signiture/s­­­­­­­­­­­­­­­­_____________________________________________ Date_______________________

(or person authorised to sign on behalf)

Phone___________________Fax____________________Email______________________________