Volume 2 - Issue 6 April 2019

IN THIS ISSUE     Authorised Meth Sampler    |    Risk Mitigation  |    Qualifications
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What is an Authorised Methamphetamine Sampler?
 

It has been recently highlighted to us whilst acting in our capacity as an Expert Witnesses for court, that there are still a number of companies within the methamphetamine testing industry operating as “Authorised Samplers.” They state that they are “authorised” by an accredited laboratory. 

To put it simply if someone states that they are an “Authorised Sampler” by an accredited lab, this translates into, “We have an account with an IANZ Accredited Laboratory.” Companies making these claims are not compliant with the New Zealand Standard (NZS8510) and are breaching consumer laws which inevitably transfers to legal exposure to the client. 

Companies making these claims are breaking the law
Companies that claim compliance with NZS8510 that are offering the services of Detailed Site Assessments and Post Remediation reports that do not hold the relevant qualifications set out within section 7 page 35 of NZS8510:2017, are in breach of the following laws:
  • Fair Trading Act 1986 at 13 False or Misleading Representations; (b) “make a false or misleading representation that services are of a particular kind, standard, quality, or quantity, or that they are supplied by any particular person or by any person of a particular trade, qualification, or skill, or by a person who has other particular characteristics”.
 
  1. No person may make any statement or representation or use any mark with reference to any goods, processes, services, or facilities that gives or is likely to give the impression that a conformity assessment body that is not accredited under this Act is so accredited.
  2. A person who breaches subsection (1) commits an offence and is liable on conviction to a fine not exceeding $5,000.
  Subject to section 41, where services are supplied to a consumer there is a guarantee that the service will be carried out with reasonable care and skill.
 

The Residential Tenancies Amendment Bill No.2 will apply retrospectively

The risk with employing “authorised companies” is contained within the pending legislation in the Residential Tenancies Amendment Bill 2 (RTAB2). Unfortunately our crystal ball is as cloudy as yours is, when it comes to predicting what this legislation will actually look like in its final format.

However, in its current draft format, once the legislation has passed (expected to be late 2019), whatever regulations are made by the Government can be retrospectively applied to existing tenancies. RTAB2  Part 3 (15)“Existing tenancies, etc states  “An amendment applies to a tenancy whether the tenancy commences before, on, or after the commencement date”.

Risk mitigation is critical for your investments

In order to adequately mitigate the risk, we recommend properties that have been subject to methamphetamine assessments comply with NZS8510 in its entirety.

There are exemplary damages and fines for landlords who find themselves renting out properties with legal impediments, under section 36 of the RTA “The landlord shall take all reasonable steps to ensure that, at the commencement of the tenancy, there is no legal impediment to the occupation of the premises for residential purposes”.

There have been a number of rulings within the Tenancy Tribunal where landlords have been ordered to backpay rent with the citing of this clause.  NZS8510 provides the best layer of protection, as it has been developed using a legislative process (Standards and Accreditation Act 2015). 

So, what qualifications meet the requirements of the standards and who is "authorised?"
Section 7.2 of NZS8510 states:

“An accredited sampler undertaking detailed assessments shall be a suitably qualified and experienced person who is, or is employed by, or authorised to work on behalf of, an AS/NZS ISO/IEC 17020 accredited inspection body or an NZS ISO/IEC 17025 accredited laboratory”. 

So who can authorise a sampler on behalf of an accredited inspection Body or Accredited Laboratory? First of all to be able to authorise for the collection of samples, an Accredited organisation must hold sample collection within their scope of Accreditation. Most Accredited Laboratories that are commercially involved in the analysis of methamphetamine samples, are limited to just that, analysis of samples they receive from a sampler.

An IANZ Accredited inspection body are accredited for sample collection and reporting in accordance with the standard. 

If the laboratories scope of accreditation doesn’t include the collection of samples, they CANNOT Authorise a sampler for collection of methamphetamine sampling

Scopes of Accreditation can be seen here: www.ianz.govt.nz /directory using the key word methamphetamine. Different scopes of accreditation exist and if the laboratory does not include the collection of samples, they CANNOT Authorise a sampler for collection of methamphetamine sampling.

This leaves consumers, who have properties that have been issued with Clearance Certificates or Screening Certificates in accordance with NZS8510, in a legally compromised position. In preparation of an expert witness statement for an upcoming Disputes Tribunal, we approached one of the largest commercial laboratory of sample analysis in New Zealand and requested a full list of “authorised Laboratory samplers.”  The laboratory representative responded stating that they are not authorised to take samples due to their accreditation being a laboratory. When asked whether the lab authorises anyone else to take their samples they responded with “Definitely not!” 

The Residential Tenancies Amendment Bill No.2  is set to pass into law soon
Once the RTAB2 has passed, it is predicted it will be an open slather in litigation, Tenants Vs Landlords, Landlords Vs Sampling Companies, Decontamination Companies Vs Sampling Companies, Property Managers vs Sampling Companies, and whichever way a lawyer can prove negligence and misrepresentations and who has suffered a loss from those misrepresentations. 

Our advice is simple, if purchasing or renting out a property that has been subject to methamphetamine sampling, or if a property has been subject to decontamination, we strongly advise verifying the qualification of the sampler named within the report.

It’s as simple as requesting a certificate, for the piece of mind that you have met your obligations under whichever legislation you may be bound by, whether it’s the Residential Tenancies Act, or the Real Estate Agents Act 2008 or the Fair Insurance Code under the Insurance Council of New Zealand.

If an IANZ Certificate cannot be produced for a Detailed Site or Post Decontamination Assessment, or and NZQA Screening Certificate for a screening Assessment, we would advise proceeding with extreme caution. 
 

If you want to know more about the upcoming new laws around Methamphetamine Testing, Meth Xpert NZ offer training to all our clients that is tailored to your needs. To find out more:

Click here to get your training today!
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