The Police investigations into both the teapot tapes and the GCSB’s unlawful spying on Kim Dotcom came down to the same section of the Crimes Act, 216B. That makes it a crime to intentional intercept a private communication without lawful excuse. In both cases, the issue hinged on that word ‘intentional’ but the Police used very different definitions, and investigative tools.
When it was Bradley Ambrose being investigated over the teapot tapes, they used warrants to get hold of his phone records. Ambrose was interviewed. The Police concluded (outside their ambit) that he had acted “unlawfully” even though they did not find that he had intentionally recorded the Banks/Key conversation. They forced Ambrose to write an apology letter to Key to drop the issue.
But what about when it was the GCSB being investigated for intercepting Kim Dotcom’s communications without, as everyone agrees, the cove of their own legislation because Dotcom is a New Zealander and, at the time, the GCSB couldn’t spy on Kiwis? Then, the Police didn’t use search warrants or production orders. They didn’t interview all the key staff and, when the staff they did interview changed their stories, they discounted inconsistencies in their accounts.
They found that the GCSB staff had acted intentionally to intercept the communications (it was never in question) but applied a new (made-up) test: criminal intent. That is, they said it wasn’t illegal for the GCSB agents to intercept communications without lawful authority unless they were intending to break the law, and the agents weren’t because they wrongly thought that they were acting under the GCSB Act. They didn’t force the GCSB agents to apologise to Dotcom or declare their actions unlawful.
Now, that’s some list of differences.
The private individual got his records searched, the GCSB didn’t and only had to hand over what it wanted.
Ambrose was interviewed but key GCSB agents weren’t (to be fair, that’s on the GCSB, the police can’t compel someone to talk).
Even though the Police didn’t establish that Ambrose intended to intercept the communication, the Police decided he had breached the law; that the GCSB agents had intended to intercept the communications of Dotcom isn’t in question so the Police made up a stronger ‘criminal intent’ test.
Ambrose is defamed with the Police going outside their constitutional powers to publicly declare he breached the Crimes Act; no such defaming of the GCSB agents by the Police.
This is all with the Independent Police Complaints Authority now. It’s hard to have much hope that they will do a fair job, but hope we must.
I suspect this will all end up with Dotcom taking a private prosecution. I hope he offers to fund a defamation action for Ambrose, too, because there’s a lot of injustice from the Police to go round.