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

  • Labour pays tribute to Peter Dunne
    Leader of the Opposition Jacinda Ardern has today paid tribute to United Future leader Peter Dunne, who announced he would no longer be standing in the 2017 General Election. “Today I acknowledge the significant contribution by Peter Dunne over 33 ...
    10 hours ago
  • Labour is the only party with a plan to fix teacher shortage
    Only Labour has a comprehensive plan to fix the critical shortage of teachers that is already hampering our schools and is set to get worse after nine years of inaction by the National Government, says Labour’s Education spokesperson Chris Hipkins. ...
    12 hours ago
  • Labour to invest in regional road rail
    Labour will invest in a rapid rail network connecting Auckland, Hamilton, and Tauranga, and double funding to help complete important regional roading projects, says Leader of the Opposition Jacinda Ardern.  “The ‘Golden Triangle’ of Auckland, Hamilton, and Tauranga contains half ...
    13 hours ago
  • Rattled Nats announce slapdash roads policy
      The Government rattled by the polls, has announced a poorly thought through slapdash policy for new Roads of National Significance, says Labour’s Transport spokesperson Michael Wood.  “There is a complete lack of any answers in National’s plan to build ...
    1 day ago
  • Let’s do this – Labour’s election campaign launched
    The Government I lead will be a government that listens, then acts. A Government that leads, not follows, says Labour Leader Jacinda Ardern at the launch of the Labour Party’s 2017 election campaign at a packed Auckland Town Hall. “I ...
    1 day ago
  • Government must apologise over rebuild debacle
    The Prime Minister owes the public of Otago and Southland an apology and then he must come up with an unredacted copy of the business case for the Dunedin hospital rebuild, says Labour’s Health spokesperson David Clark. "For too long the interests of ...
    4 days ago
  • Government caves to multi-national tax avoiders in the shadows
    News that the Government has secretly caved in to the demands of multi-national tax avoiders come as no surprise, but will disappoint Kiwi taxpayers, says Labour’s spokesman for Revenue Michael Wood.   “It has been revealed that a United States ...
    4 days ago
  • Cheaper to stay at The Langham than emergency housing motels
    Labour’s comprehensive plan to fix the housing crisis and ensure there’s enough state housing, means we won’t be paying through the nose for emergency accommodation like the current Government has to, says Labour’s Social Development spokesperson Carmel Sepuloni. “National has ...
    4 days ago
  • Government must come clean on water
      News that the National Government is secretly working behind closed doors on its own water charging schemes shows their utter hypocrisy on this issue, says Labour’s water spokesperson David Parker.  “They have been carping on about Labour’s plan for ...
    5 days ago
  • Government pays twice the price for emergency housing motels – with two more on the way
    Under Labour’s plan to build at least 1000 state houses each year, New Zealand wouldn’t be paying more than double the valuations for motels to house Kiwis needing emergency housing, says Labour’s Social Development spokesperson Carmel Sepuloni. “Under questioning today, ...
    5 days ago
  • HAM shows country needs Labour on housing
    The latest Housing Affordability Measure report shows affordability dramatically worsening for Auckland first home buyers, says Labour’s Housing spokesperson Phil Twyford. ...
    5 days ago
  • Canterbury kids get more support for mental health
    Children in Canterbury and Kaikoura will get dedicated mental health support to help them overcome the trauma of the earthquakes, says the Leader of the Opposition Jacinda Ardern. “We’ll fund an extra eighty mental health professionals for the next three ...
    6 days ago
  • Statement on Julie Bishop’s comments
    It is highly regrettable that the Australian Foreign Minister Julie Bishop has chosen to make false claims about the New Zealand Labour Party. I have been utterly transparent about this situation. I stand by my statements this morning that I ...
    6 days ago
  • Labour stands with Pike families
    A Labour Government will stand with the families of Pike River and reaffirm its commitment to safe workplaces by ensuring there will be a Minister responsible for Pike River, says Leader of the Opposition Jacinda Ardern. “The Pike River disaster ...
    6 days ago
  • Yes to Sallies – Labour will build more state houses
    The Salvation Army’s latest report ‘Taking Stock’ shows why New Zealand needs a Labour-led Government committed to a massive house building programme, says Labour’s Housing spokesperson Phil Twyford. “When the Sallies say the country needs 2000 extra state houses a ...
    6 days ago
  • New Zealanders deserve better than scaremongering over water
    New Zealanders need to hear from National about how they will fund the clean-up of our rivers and lakes for future generations. Instead, National has broadened its scare-mongering, says Labour’s Water spokesperson David Parker. ...
    1 week ago
  • School Leavers’ Toolkit to equip young people for adult life
    Labour will give school leavers the practical skills and knowledge they need for adult life with a new School Leavers’ Toolkit, says Leader of the Opposition Jacinda Ardern. “Our teachers and schools do a great job of teaching our children ...
    1 week ago
  • Pay equity to be a priority for Labour
      Labour will make sure that the country’s mental health workers are a priority when it comes to pay equity negotiations, says the Leader of the Opposition Jacinda Ardern.  “It is very important for me to right the wrong created ...
    1 week ago
  • Labour’s positive education plan
    Today’s announcement on learning support is more tinkering and proof that only a Labour Government will deliver the resources that schools and parents are crying out for, says Labour’s Education spokesperson Chris Hipkins.  “We have a positive vision for a ...
    1 week ago
  • Pike footage raises questions over government’s actions
    The Government’s seeming determination to turn a blind eye to new questions about what happened at Pike River Mine is troubling, says Labour’s West Coast-Tasman MP Damien O’Connor. ...
    2 weeks ago
  • Solution to rent rises lies in building houses and stopping speculators
    The spread of rental increases from the big cities to the surrounding regions shows why we need to get on top of the housing shortage build homes our families can afford, and lock out the speculators, says Labour’s Housing spokesperson ...
    2 weeks ago
  • Clean rivers don’t cost $18 a cabbage
    National is falling into a bad pattern of promising the world and not saying how they will fund it, says Labour’s Water spokesperson David Parker. ...
    2 weeks ago
  • Time for honest answer on transport funding
    National needs to explain how they will fund the $6 billion funding gap in their 10-year Auckland transport plan, says Labour’s Auckland Issues spokesperson Phil Twyford. ...
    2 weeks ago
  • Time for true numbers on overseas speculators
    It’s time for the Government to give accurate figures on the number of houses being bought by overseas speculators, says Labour’s Land Information spokesperson Raymond Huo. ...
    2 weeks ago
  • Fair and sustainable trade: A Green Party vision for New Zealand’s trading relationships
    Trade is a cornerstone of the New Zealand economy. It provides us with the things we want and need, and enables us to pay for those with exports that generate business opportunities and jobs. However, it should be recognised that ...
    GreensBy Barry Coates
    2 weeks ago
  • Clean rivers for future generations
    Labour will lead a nationwide effort to restore our rivers and lakes to a clean, swimmable state, says Leader of the Opposition Jacinda Ardern. ...
    2 weeks ago
  • New Zealand really can do better on health
    Labour’s commitment to affordable access to high quality healthcare will provide a better service for New Zealanders than the current Health Minister, who will not apologise for statements that he made that wrongly criticised hard-working staff in the Southern DHB’s ...
    2 weeks ago
  • Labour’s plan the answer to motorway chaos
    Labour’s plan to build a light rail network and improve heavy rail and bus services across Auckland is the only answer to the kind of motorway congestion Aucklanders endured this morning, says Labour Transport spokesperson Phil Twyford. ...
    2 weeks ago
  • Labour to build rail to Auckland Airport
    A world class city needs a rail connection from the CBD to its international airport – that’s why Labour will build light rail to Auckland Airport as a priority, says Leader of the Opposition Jacinda Ardern.  “Let’s get Auckland moving ...
    2 weeks ago
  • Is pay equity just too hard for this Govt?
    You are hard pressed these days to find someone that openly admits their misogyny, that men should still be paid more than women. Politicians proclaim that they want to see women paid more, but do their actions back it up? ...
    GreensBy Jan Logie
    2 weeks ago
  • Labour’s commitment to our Rainbow nation
    The Labour Party has reaffirmed its commitment to New Zealand’s rainbow community with its 2017 Rainbow policy, featuring the goal to end HIV in New Zealand by 2025. Grant Robertson says Labour continues a long and proud tradition of advocating ...
    2 weeks ago
  • Labour’s vision for Auckland more than reheated roads
    Labour is more ambitious for Auckland than the reheated set of transport projects proposed by National, says Labour’s Auckland Issues spokesperson Phil Twyford. ...
    3 weeks ago
  • Waiting urology patients are the tip of the iceberg
    The 10 patients waiting for urology surgery at Dunedin Hospital are just the tip of the iceberg, says Labour’s Health spokesperson David Clark.  "Hundreds of patients are waiting for follow-up appointments, but they are not deemed serious enough to be ...
    3 weeks ago
  • Maori Landowners Misled by Maori Party
    Māori landowners are being misled by Government hui being held throughout the country promoting the troubled Māori Land Service (MLS), which underpins the Crown’s unpopular Ture Whenua reforms, says Labour’s Ikaroa-Rāwhiti MP Meka Whaitiri. ...
    3 weeks ago
  • Government’s Johnny-come-lately approach to multinational tax won’t wash
    It’s a case of baby steps for a Government that still allows multinational companies to avoid paying their fair share of tax, says Labour’s Revenue spokesperson Michael Wood. “After nine years in government, five years after the issue of multinational ...
    3 weeks ago
  • Auckland congestion up there with the world’s worst
    Traffic congestion is costing Auckland up to $2 billion in lost productivity according to the latest report from the New Zealand Institute of Economic Research, says Labour’s Transport spokesperson Michael Wood.  “This is a disaster and underlines the need for ...
    3 weeks ago
  • Experience in Youth Parliament 2016
    Being a Member of Youth Parliament was an unexpected, but fabulous opportunity for me. It provided me a way to connect with other young people who have some things in common, and to learn what it is like to be ...
    GreensBy NZ Green Party
    3 weeks ago
  • Labour backs renters’ call for warm, healthy homes
    80 per cent of renters wish their home was warmer and drier, and that’s what Labour will deliver, says Labour’s Housing spokesperson Phil Twyford. ...
    3 weeks ago
  • We can – and must – do better for Kiwi jobs
    Labour has the plan to get more young New Zealanders into jobs and tackle concerns raised in the latest statistics which show an extra 3000 young Kiwis are neither earning or learning compared to the same time last year, says ...
    3 weeks ago

%d bloggers like this: