web analytics
The Standard

IPCA review of the illegal spying on Kim Dotcom

Written By: - Date published: 12:36 pm, July 17th, 2014 - 6 comments
Categories: corruption, democracy under attack - Tags: ,

The IPCA report into the illegal spying of Kim Dotcom by the GCSB has been released.  The headline is that the IPCA has upheld the decision of the Police not to prosecute the GCSB for the illegal gathering of information from Kim Dotcom.  The conclusion was perhaps inevitable.  The IPCA noted that the Solicitor General had advised the Police that the gathering was not illegal and that this conclusion was affirmed by Police Legal Services.  The Police was therefore justified in acting on this opinion.

Russel Norman’s complaint was an attempt to get the IPCA to review the quality of the Solicitor General’s opinion which the IPCA has studiously avoided doing so.  I have some sympathy for Norman’s concerns.  Essentially he was saying that the provisions of the Crimes Act had not been interpreted incorrectly.

Section 216B states:

216B  Prohibition on use of interception devices
(1)  Subject to subsections (2) to (5), every one is liable to imprisonment for a term not exceeding 2 years who intentionally intercepts any private communication by means of an interception device.
(2)  Subsection (1) does not apply where the person intercepting the private communication …
(b)  does so pursuant to, and in accordance with the terms of, any authority conferred on him or her by or under …
(iiia)  the Government Communications Security Bureau Act 2003 …

The Solicitor General read into the section a requirement that knowledge that the interception that was being undertaken was contrary to law also had to be established.  This is contentious.  Mistake as to law is not normally an excuse and it is clear that the interception was not protected because it was not authorised by the Act.  The Police could have been on stronger ground if they had determined that the breach occurred because of a mistake as to the law and that it was not in the public interest to prosecute in the circumstances.

This is not the end of the matter.  The Court of Appeal recognised that Dotcom may still have a claim for civil damages because of this breach of his rights of privacy.  I am sure we will hear more about this.

The second issue considered was whether Kirsty McDonald QC’s engagement as counsel created a conflict and the IPCA said it did not.  I am not surprised.  The Senior Bar in New Zealand is so small that this sort of multiple involvement is not unusual.

The third issue considered was whether the further 56 breaches identified in the Kitteridge Report should have been investigated by the Police and the IPCA’s conclusion and rationale are puzzling.  The IPCA relied on there being ambiguity as to whether or not the interception of metadata was illegal.  The argument is that metadata is not a communication.  The passages from the report on this issue are as follows:

The Police determined, on the basis of that report, that the additional intercepts were not unequivocally unlawful and would clearly not reach the threshold to justify prosecution.   The Authority agrees with this view. Dr Norman argues that, since it can be said that there was, in the words of the IGIS, “arguably no breach”, it could equally be said that arguably there was a breach, and New Zealanders who were spied upon deserve to know whether the actions were lawful and justified. That may be so, but a full Police investigation into the GCSB’s activities in those cases would have been unable to provide such clarification, since the Police would not have been in the position to reach a determinative view on the statutory ambiguity. Only the courts could have done that, and the criminal prosecution of individuals in an attempt to clarify an inherently uncertain law would have been unjustified.

So ambiguity in the law is a justification for not doing anything?  And as Russel Norman states the rationale creates a catch 22 situation where a prosecution cannot occur because of an ambiguity in the law but the ambiguity cannot be resolved because there is no prosecution.

Overall the IPCA has taken a conventional approach to the issues.

 

6 comments on “IPCA review of the illegal spying on Kim Dotcom”

  1. Tracey 1

    Not unequivocably unlawful? Is this the new legal threshold for the police to lay charges? That ought to be BIG news.

    • Kiwiri 1.1

      “Not unequivocably unlawful”

      Wow. What a phrase.

      Btw is that tantamount to a triple negative?

  2. minarch 2

    any body actually surprised when the left hand finds the right hand did nothing wrong

  3. Macro 3

    I remember when this inept IPCA was brought into being. Questions were legitimately asked then – just how independent can this body be? While it claims to be fully independent – in practice this is not the case:

    “Most complaints to the Authority are referred to the Police for investigation and resolution. The Authority independently oversees Police handling of these complaints. The form of that oversight depends on the nature of the complaint, but can include independent review or audit of the Police investigation.”

    Over the past 30 odd years of its existence it has shown that it is little more than a white wash merchant for repeated abuses of power by the Police. To be truly effective the IPCA needs to be completely autonomous, quite separate from the Police, with the resources and powers to investigate thoroughly, and prosecute where necessary.

  4. mickysavage 4

    Dotcom is contemplating a private prosecution. Should resolve the interpretation problem …

  5. Jrobin 5

    Equivocation, equivocation, interesting how Shakespeare’s take on ambition, abuse of power and layers of semantic deceit are as current todAy as they were on the first performance of Macbeth. “Stars hide thy fires, my deep and dark desires” qoth the holidaying monarch.

Recent Comments

Recent Posts

  • Bullying contributes to Auckland being stripped of ICU training
    Complaints of bullying and harassment by supervisors which have contributed to Auckland’s critical care department losing its training accreditation are further evidence of the appalling culture at executive level, Labour’s Health spokesperson Annette King says. “The department had its accreditation… ...
    2 days ago
  • Broadband failure sucks up more cash
    The Commerce Committee has blocked an inquiry into the $300 million rural broadband initiative (RBI) despite mounting evidence it’s a massive policy failure and waste of money, says Labour’s ICT spokesperson Clare Curran. “The Government is about to spend an… ...
    3 days ago
  • TISA – Another secret trade deal you may never have heard of
      This post first appeared on The Daily Blog You’ve probably heard of the Trans-Pacific Partnership Agreement (TPPA) by now and the widespread concerns around it but what about the Trade in Services Agreement (TISA) also being currently negotiated by… ...
    GreensBy Gareth Hughes MP
    3 days ago
  • Health chickens coming home to roost as Dunedin loses right to train doctor...
    News today that Dunedin Hospital has lost orthopaedic training accreditation is a major blow and proves the Government’s prevarication is having devastating consequences, Labour’s Health spokesperson Annette King says. “Losing orthopaedic advanced training is serious. There is a knock on… ...
    4 days ago
  • $74,000 quarterly rise shows crisis out of control
    New figures out today showing Auckland house prices have spiked by a massive $74,000 in the past quarter is further evidence the city’s housing crisis has spiralled out of control, Labour’s “In spite of constant announcements and photo opportunities from… ...
    4 days ago
  • Democracy for Nauru now
    Murray McCully must send the strongest possible message to the Nauruan Government that New Zealand does not condone its actions given the disturbing developments there, Labour’s Foreign Affairs spokesperson David Shearer says. “Right now we are seeing Nauru stripped of… ...
    4 days ago
  • Recovery needs more than a rebrand
    Today’s announcement of new governance arrangements for Canterbury seems to be nothing more than a fresh coat of paint on the same old approach, says Labour’s Canterbury Earthquake Recovery spokesperson Ruth Dyson. “The Canterbury Recovery has been too slow, with… ...
    4 days ago
  • Copper decision a victory for status quo, not Kiwi households
    New Zealanders hoping for cheaper copper broadband will be disappointed by the Commerce Commission’s latest decision in the long running saga to determine the price of copper, Labour’s ICT spokesperson Clare Curran says. “In an apparent attempt to appease everyone,… ...
    4 days ago
  • It’s time for hard decisions in the Bay
     The Ruataniwha dam project is turning into a huge white elephant as the economics fail to stack up, says Labour’s Water spokesperson Meka Whaitiri.  “Ruataniwha simply doesn’t make economic sense when you look at other major irrigation schemes around the… ...
    4 days ago
  • More testing won’t lift student achievement
    Hekia Parata’s latest plan to subject school students to even more testing and assessment won’t do anything to lift the educational achievement of the kids who are struggling, Labour’s Education spokesperson Chris Hipkins says. “New Zealand school students are already… ...
    4 days ago
  • Bad week for NZ economy gets worse
    The bad news for the New Zealand economy got worse this morning with the 8th successive drop in dairy prices at this morning’s global dairy auction, again exposing the absence of any Plan B from the National Government, Labour’s Finance… ...
    4 days ago
  • System failing to protect women and children from family violence
    Last week we called for mandatory child safety investigations in domestic violence cases. This came after the coronial inquiry into the deaths of Bradley and Ellen Livingstone and the verdict in the trial of the west Auckland boys charged with… ...
    GreensBy Jan Logie MP
    5 days ago
  • Backers banking on social bonds cash?
    The Government is refusing to say what the $29 million it has set aside for its controversial social bonds programme is for, raising suspicions it is an upfront payment to the project backers, Labour’s Health spokesperson Annette King says. A… ...
    5 days ago
  • Plastic Free July
    Today is the start of Plastic Free July. Since its inception in Perth, Western Australia four years ago, more and more people and organisations from around the world have joined the call to refuse single use plastic products. Nearly all… ...
    GreensBy Denise Roche MP
    5 days ago
  • State house sell off Bill gives extraordinary powers
    The Government is about to give Ministers extraordinary powers to take direct personal control of selling state houses, exempting Ministers from normal legal requirements and leaving the sale process wide open for corruption, Labour's Housing spokesperson Phil Twyford says. The… ...
    5 days ago
  • Cash for charter schools, mould for state schools
    At a time when state schools are struggling in old, cold, mouldy buildings and can barely make ends meet, the National Government is shovelling cash at charter schools which aren’t even spending the funding on kids’ education, Labour’s Education spokesperson… ...
    5 days ago
  • New Zealand needs a wise response to climate change
    Today in Parliament I got to hear from a group of New Zealanders who are concerned for the future of our country. Called Wise Response, the group is a broad coalition of academics, engineers, lawyers, artists, sportspeople and others who… ...
    GreensBy Russel Norman MP
    5 days ago
  • No alternative as waste scheme trashed
    Nick Smith must explain how he is going to prevent contamination of New Zealand’s ground and water with liquid and hazardous waste after scrapping the only monitoring scheme and offering no replacement, says Labour’s Environment Spokesperson Megan Woods. “From today,… ...
    5 days ago
  • Flawed system rates death traps as safe
    ACC Minister Nikki Kaye needs to come clean about what really lies behind the reclassification of 18 vehicles in her new motor vehicle registration system introduced today, Labour’s ACC spokesperson Sue Moroney says. "New Zealanders deserve the truth about the… ...
    5 days ago
  • Tiwai Smelter and 800 workers left in limbo
     Workers at Tiwai smelter and the people of Southland have once again been left in limbo over their future in the ongoing debacle over whether the plant stays open, says Labour’s Leader Andrew Little.  “It’s not good enough that after two years of… ...
    5 days ago
  • New twist in state house sell-off saga
    The Government has opened the door to buyers of state houses simply being landlords and not required to provide social services, Labour’s Housing spokesperson Phil Twyford says. The Prime Minister said at his post-Cabinet press conference buyers would not “have… ...
    5 days ago
  • Government fees will hit charities hard
    National’s decision to ignore the concerns of charities will see the voluntary sector face hundreds of thousands of dollars in new costs if the Policing (Cost Recovery) Amendment Bill passes, says Labour's Community and Voluntary Sector spokesperson Poto Williams. “National’s… ...
    6 days ago
  • Four out of ten for Simon’s Bridges
    The Transport Authority’s decision to fund only four of the 10 bridges promised in National’s shameless Northland by-election bribe is a huge embarrassment for Transport Minister Simon Bridges, Labour’s Transport spokesperson Phil Twyford says. “After one by-election poll showed they… ...
    6 days ago
  • Falling consents adding to Auckland housing woes
    Falling numbers of building consents being issued in Auckland will add to the city’s housing shortfall and fuel skyrocketing house prices, Labour’s Housing spokesperson Phil Twyford “The Productivity Commission found there was a shortfall of around 32,000 houses by the… ...
    6 days ago
  • So Mr English, do you have a plan?
    DIpping confidence about jobs, wages and shrinking exports are highlighting the lack of a plan from the government to diversify the economy and build sustainable growth, Grant Robertson  Labour’s Finance Spokesperson said. " Data released over the last week… ...
    6 days ago
  • Serious risks to tenants and assets in sell-off
    Overseas evidence shows there are serious risks around the Government's plan to sell off state houses to social housing providers, Opposition Leader Andrew Little says. “In the Netherlands – where community housing providers supply the majority of social housing –… ...
    6 days ago
  • Land of milk and money
    Kiwi families are paying over the top prices for their milk and someone is creaming off big profits, says Labour’s Consumer Affairs spokesperson David Shearer. “In 2011 the Government told us high New Zealand milk prices were a natural result… ...
    1 week ago
  • MoBIE largesse doesn’t stop with TVs and hair-straighteners
    The number of MoBIE staff earning more than $150,000 has risen 23 per cent in just a year, Labour’s Economic Development Spokesperson David Clark says. Documents obtained from the Ministry of Business, Innovation and Employment show there are now nearly… ...
    1 week ago
  • English wants to flog state houses to Aussies
    Bill English’s admission that he would sell hundreds of New Zealand’s state houses to the Australians is the latest lurch in the Government’s stumbling, half-baked housing policy, Labour’s housing spokesperson Phil Twyford says. “Bill English should face reality and admit his… ...
    1 week ago
  • Exports continue to fall as Government fails to diversify
    The Government quickly needs a plan to diversify our economy after new figures show that exports are continuing to fall due to the collapse in dairy exports, Labour's Finance Spokesperson Grant Robertson says. “Dairy exports fell 28 per cent compared… ...
    1 week ago
  • Government inaction leads to blurring of roles
    The Treasury wouldn’t have had to warn the Reserve Bank to stick to its core functions if the Government had taken prompt and substantial measures to rein in skyrocketing Auckland house prices, Labour’s Finance spokesperson Grant Robertson says. “The problems… ...
    1 week ago
  • Courthouse closures hitting regions
    The Government’s decision to shut down up to eight regional courthouses, some supposedly only temporarily for seismic reasons, looks unlikely to be reversed, Labour’s Justice spokesperson Jacinda Ardern says.“The move has hit these regions hard, but appears to be a… ...
    1 week ago
  • A Victory for Te Tiriti o Waitangi
    This week my partner, who has a number of professions, was doing an archaeological assessment for a District Council. He showed me the new rules around archaeologists which require them to demonstrate “sufficient skill and competency in relation to Māori… ...
    GreensBy Catherine Delahunty MP
    1 week ago
  • Tough bar set for Ruataniwha dam
     Today’s final decision by the Tukituki Catchment Board of Inquiry is good news for the river and the environment, says Labour’s Water spokesperson Meka Whaitiri. “Setting a strict level of dissolved nitrogen in the catchment’s waters will ensure that the… ...
    2 weeks ago
  • Minister for Women and National missing the mark – part two
    The Minister for Women was in front of the select committee yesterday answering questions about her plans for women. Some useful context is that we used to have a Pay and Employment Equity Unit within the then Department of Labour… ...
    GreensBy Jan Logie MP
    2 weeks ago
  • Lavish penthouse spend confirms culture of extravagance
    At the same time thousands of New Zealanders are being locked out of the property market, the Government is spending up on a lavish New York penthouse for its diplomats, Labour’s Foreign Affairs spokesperson David Shearer says. News that taxpayers… ...
    2 weeks ago
  • Māori Television exodus cause for concern
    The shock departure of yet another leading journalist from the Native Affairs team raises further concern the Board and Chief Executive are dissatisfied with the team’s editorial content, says Labour’s Māori Development spokesperson Nanaia Mahuta. “Annabelle Lee is an experienced… ...
    2 weeks ago
  • Million-plus car owners to pay too much ACC
    More than a million car owners will pay higher ACC motor vehicle registration than necessary from July, Labour’s ACC spokesperson Sue Moroney says. “During a select committee hearing this morning it was revealed that car owners would have been charged… ...
    2 weeks ago
  • Bill will restore democracy to local councils
    A new Labour Member’s Bill will restore democracy to local authorities and stop amalgamations being forced on councils. Napier MP Stuart Nash’s Local Government Act 2002 (Greater Local Democracy) Bill will be debated by Parliament after being pulled from the… ...
    2 weeks ago
  • Minister for Women again misses the mark – part one
    Yesterday I asked the Minister for Women about the government’s poor performance on it’s own target of appointing women to 45% of state board positions. I challenged why she’d put out a media release celebrating progress this year when the… ...
    GreensBy Jan Logie MP
    2 weeks ago
  • Banks enter Dragon’s Den in pitch for Government’s mental health experi...
    Overseas banks and their preferred providers were asked to pitch their ideas for bankrolling the Government’s social bonds scheme to a Dragon’s Den-style panel, Labour’s Health spokesperson Annette King says. Dragon’s Den was a reality television series where prospective ‘entrepreneurs’… ...
    2 weeks ago
  • Global Mode bullying won’t stop people accessing content
    It’s disappointing that strong-arm tactics from powerful media companies have meant Global Mode will not get its day in court. Today a settlement was reached terminating the Global Mode service, developed in New Zealand by ByPass Network Services and used… ...
    GreensBy Gareth Hughes MP
    2 weeks ago
  • More questions – why was the Former National Party President involved wit...
    Today in Parliament Murray  McCully said the reason Michelle Boag was involved in 2011 in the Saudi farm scandal was in her capacity as a member of the New Zealand Middle East Business Council. The problem with that answer is… ...
    2 weeks ago
  • Minister must explain Maori TV interference
    Te Ururoa Flavell must explain why he told Maori TV staff all complaints about the CEO must come to him – months before he became the Minister responsible for the broadcaster, Labour’s Broadcasting Spokesperson Clare Curran says. “Sources have told… ...
    2 weeks ago
  • KiwiSaver takes a hammering after the end of kick-start
    National seems hell bent on destroying New Zealand’s saving culture given today’s news that there has been a drop in new enrolments for KiwiSaver, says Labour’s Finance spokesperson Grant Robertson.  “New enrolments for the ANZ Investments KiwiSaver scheme have plunged… ...
    2 weeks ago
  • Straight answers needed on CYF role
    The Government needs to explain the role that Child, Youth and Family plays in cases where there is evidence that family violence was flagged as a concern, Labour’s Children’s spokesperson Jacinda Arden says. “The fact that CYF is refusing to… ...
    2 weeks ago
  • Prime Minister confuses his political interests with NZ’s interest
    The Prime Minister’s statement in Parliament yesterday that a Minister who paid a facilitation payment to unlock a free trade agreement would retain his confidence is an abhorrent development in the Saudi sheep scandal, Opposition leader Andrew Little says.  ...
    2 weeks ago
  • #raisethequota
    Last Saturday was World Refugee Day. I was privileged to spend most of my day with the amazing refugee communities in Auckland. Their stories have been inspiring and reflect the ‘can-do’ Kiwi spirit, even though they come from all different… ...
    GreensBy Denise Roche MP
    2 weeks ago
  • Dairy conversions causing more pollution than ever, report shows
    The Parliamentary Commissioner for the Environment (PCE) released two reports on freshwater quality and management last Friday. The water quality report shows that dairy conversions are hurting water quality and says that despite great efforts with fencing and planting, large… ...
    GreensBy Catherine Delahunty MP
    2 weeks ago
  • Employers want urgent action on health and safety
    Moves by National to water down health and safety reforms have been slammed by employers – the very group the Government claims is pushing for change, says Labour’s spokesperson for Labour Relations Iain Lees-Galloway. “The Employers and Manufacturers’ Association has… ...
    2 weeks ago

Public service advertisements by The Standard

Current CO2 level in the atmosphere