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.