web analytics
The Standard
Advertising

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.

Important links

Recent Comments

Recent Posts

  • Taxpayers not suckers when it comes to casino lemon
    The Government should not be asking New Zealanders to stump up extra cash to bail out John Key and Steven Joyce’s dodgy SkyCity convention centre deal, Labour Leader Andrew Little says. "A deal is a deal is a deal. SkyCity… ...
    5 days ago
  • Supreme Court decision an early Christmas present
    Women on low pay in New Zealand have been given an early Christmas present with yesterday’s decision by  the Supreme Court not to intervene in a decision of the Court of Appeal, says Labour's Spokesperson for Women's Affairs, Sue Moroney. … ...
    5 days ago
  • Dunedin Hospital needs more than drip feed
    An ongoing and embarrassing pattern of major building leaks and equipment failures at Dunedin Public Hospital has been revealed in papers released under the Official Information Act, Dunedin North MP David Clark says. “Documents released under the Official Information Act… ...
    6 days ago
  • Dunedin Hospital needs more than drip feed
    An ongoing and embarrassing pattern of major building leaks and equipment failures at Dunedin Public Hospital has been revealed in papers released under the Official Information Act, Dunedin North MP David Clark says. “Documents released under the Official Information Act… ...
    6 days ago
  • 17 too young for teens to be shown the door
    Laws which see young people under the care of CYFS abandoned once they turn 17 will mean at least a dozen young Kiwis will be left to fend for themselves over the December festive season, Labour’s Children’s spokesperson Jacinda  Ardern… ...
    6 days ago
  • 17 too young for teens to be shown the door
    Laws which see young people under the care of CYFS abandoned once they turn 17 will mean at least a dozen young Kiwis will be left to fend for themselves over the December festive season, Labour’s Children’s spokesperson Jacinda  Ardern… ...
    6 days ago
  • National’s albatross, taxpayers’ curse
    Government consideration of further corporate welfare hand-outs to SkyCity for its convention centre shows just how weak the original contract was, Labour’s Economic Development spokesperson David Clark says. “Taxpayers will be appalled to hear that on top of the humiliating… ...
    6 days ago
  • Recognizing Palestine: The European Parliament Votes
    Last week I wrote a blog drawing attention to Sweden’s formal recognition of the state of Palestine (the second Western state to do so after Iceland).  That move has created ripples throughout the international community. In recent months the parliaments… ...
    GreensBy Kennedy Graham MP
    1 week ago
  • Recognizing Palestine: The European Parliament Votes
    Last week I wrote a blog drawing attention to Sweden’s formal recognition of the state of Palestine (the second Western state to do so after Iceland).  That move has created ripples throughout the international community. In recent months the parliaments… ...
    GreensBy Kennedy Graham MP
    1 week ago
  • Recognizing Palestine: The European Parliament Votes
    Last week I wrote a blog drawing attention to Sweden’s formal recognition of the state of Palestine (the second Western state to do so after Iceland).  That move has created ripples throughout the international community. In recent months the parliaments… ...
    GreensBy Kennedy Graham MP
    1 week ago
  • Minister has work to do over Xmas
    Red flags raised in a multi-agency review into how Phillip Smith was able to flee the country highlight the inadequacies of those very same agencies not having red flags in place that would have notified them of his plans, says… ...
    1 week ago
  • Minister has work to do over Xmas
    Red flags raised in a multi-agency review into how Phillip Smith was able to flee the country highlight the inadequacies of those very same agencies not having red flags in place that would have notified them of his plans, says… ...
    1 week ago
  • Minister has work to do over Xmas
    Red flags raised in a multi-agency review into how Phillip Smith was able to flee the country highlight the inadequacies of those very same agencies not having red flags in place that would have notified them of his plans, says… ...
    1 week ago
  • Gerry Brownlee’s revolving airport door story
    A new report shows Gerry Brownlee is the latest Cabinet Minister to have contracted the infectious tell-porkies-until-you-are-caught disease, Labour’s Chief Whip Chris Hipkins says. “A Civil Aviation Report out today shows that despite being an extremely recognisable figure, Gerry Brownlee… ...
    1 week ago
  • Govt spend on transport out of step with reality
    The National Government is planning to allocate ever increasing amounts of taxpayer funding to build expensive new motorways despite record numbers of New Zealanders flocking to buses and trains, said the Green Party. The Government released its Government Policy Statement… ...
    GreensBy Julie Anne Genter MP
    1 week ago
  • Govt spend on transport out of step with reality
    The National Government is planning to allocate ever increasing amounts of taxpayer funding to build expensive new motorways despite record numbers of New Zealanders flocking to buses and trains, said the Green Party. The Government released its Government Policy Statement… ...
    GreensBy Julie Anne Genter MP
    1 week ago
  • Solar homes stymied by Govt inaction
    Government inaction is allowing the big power companies to discourage the nascent solar power sector, the Green Party said today. Green Party MP Gareth Hughes launched a petition today calling on the Government to empower the Electricity Authority to act… ...
    GreensBy Gareth Hughes MP
    1 week ago
  • Foreign buyers for iconic island must add value
    Labour will look very closely at any Overseas Investment Office application to purchase Pakatoa Island if it is not bought by a Kiwi, says Labour’s Land information Spokesperson Stuart Nash. “Pakatoa is an iconic island in the middle of Hauraki… ...
    1 week ago
  • Way opening for April Sun in Cuba
    The United States of America’s President’s historic announcement yesterday to restore diplomatic ties with Cuba should be applauded by the New Zealand Government. The announcement marks a turning point in more than five decades of hostility between the two countries… ...
    GreensBy Kennedy Graham MP
    1 week ago
  • Minister ducking for cover over ‘Diplomat Case’
    Apparently the Ministerial Inquiry into what now seems to be being referred to as ‘The Diplomat Case’ ( I have a few other names for it) has been completed and is in front of Foreign Affairs Minister McCully. Initial Reports seem to… ...
    GreensBy Jan Logie MP
    1 week ago
  • Energy users need answers on Vector share plans
    Energy Minister Simon Bridges needs to stop ducking for cover about whether or not the Government will support plans to nationalise and then privatise $2.1 billion of shares in the Auckland Electricity Consumer Trust, Labour's Energy spokesperson Stuart Nash says. “It… ...
    2 weeks ago
  • Turning up the heat on working conditions
    A “Jobs That Count” campaign has the full support of Labour, the party’s Labour Relations spokesperson Iain Lees-Galloway says. Organised by the Meat Workers Union, the campaign aims to put the spotlight on job insecurity in the meat processing industry. ...
    2 weeks ago
  • Biosecurity it’s everyone’s responsibility
    Biosecurity costs New Zealand millions of dollars in attempting pest eradication and much more in ongoing management of pests in farming, horticulture, beekeeping and conservation, as well as in our own backyards and recreation areas. More work must happen at… ...
    GreensBy Steffan Browning MP
    2 weeks ago
  • Is the Health Minister accountable to the public? He doesn’t seem to thin...
    Lately I’ve been involved in a sort of farcical standoff with the Health Minister, who seems to be under the illusion that I have no right to ask questions about conflicts involving Health Promotion Agency Board member Katherine Rich, and… ...
    GreensBy Kevin Hague MP
    2 weeks ago
  • Irresponsible tax cuts lead to seventh successive deficit
    National's borrowing to pay for cutting the top tax rate was irresponsible and will likely lead to a seventh successive deficit, the Green Party said today. Treasury have forecast a $572 million deficit this year in its Half Year Economic… ...
    GreensBy Russel Norman MP
    2 weeks ago
  • Heartfelt sympathy for Sydneysiders
    The Labour Party has offered its heartfelt sympathy to the people of Sydney after the hostage situation in the city, says Labour’s Acting leader Grant Robertson.  “Our thoughts are with all those who went through this horrific and traumatic experience. ...
    2 weeks ago
  • Farewell at Phillipstown
    Last Wednesday, I attended the farewell for Tony Simpson, Principal of Phillipstown School. It was a very emotional event where many of us in the large crowd shed tears. Bagpipes and tiny tamariki performing kapahaka brought the house down and… ...
    GreensBy Catherine Delahunty MP
    2 weeks ago
  • NZ should formally recognise Palestine
    New Zealand should follow the lead of Sweden, and now recognise Palestine as a separate state On 30 October, Sweden’s new government formally recognised the state of Palestine, only the second Western country to do so, after Iceland. Down here… ...
    GreensBy Kennedy Graham MP
    2 weeks ago
  • James Shaw’s adjournment speech on behalf of the Green Party
    It is a great honour for me to speak on behalf of the Green Party in this adjournment debate. I thank my colleagues for the privilege. I became a MP only 12 weeks ago, a period of time that seems… ...
    GreensBy James Shaw MP
    2 weeks ago
  • A Tale of Two Farms
    Pig farming has yet again been thrust into the public view with two programmes this week on Campbell Live highlighting the very different conditions for pigs on two very different farms. The first programme exposed the awful conditions on… ...
    GreensBy Mojo Mathers MP
    2 weeks ago

Public service advertisements by The Standard

Current CO2 level in the atmosphere