Did you know that if you don't know you are breaking a law, this means that you're allowed to break it without criminal consequences following? At least, you can if you're a New Zealand spy agency.

Completely unsurprisingly, the Independent Police Conduct Authority has rejected Russel Norman's complaint about the way the Police investigated the GCSB's involvement in spying on Kim Dotcom (and other matters). Norman had complained about three aspects of the Police's investigation:

  • The decision not to charge anyone from the GCSB for the unlawful interception of Kim Dotcom's communications;
  • The decision to appoint Kirsty McDonald QC as an independent overseer of the investigation, on the grounds that her other work for the Police on related Kim Dotcom trials represented a conflict of interest;
  • The decision not to investigate any of the other 56 possibly unlawful interceptions of New Zealander's "metadata", on the grounds that this represented a dereliction of investigative duty.

I'm not going to blog in any depth on the last two aspects of the complaint, except to say that the IPCA does have some interesting things to say about McDonald's role as (in the Police's words) “an independent legal review[er]” of the Police's work. In fact, the IPCA found that:

[McDonald] participated in an initial meeting to discuss the process of the investigation; she commented on one or two issues that arose during the course of the investigation; and she made comments on various drafts of the report as they were being prepared by the investigator, but only for the purpose of ensuring that the report was clear and well argued. She said that she had input into the structure and language of the final report, but did not provide advice on the correctness or otherwise of the substantive findings.

Which perhaps is rather less "independent oversight" of the investigative process in this case than was initially advertised ... but let's move on.

It's the first point that I want to come back to, having posted on it previously. In this earlier post, I noted the somewhat surprising interpretation of the relevant offence provision that the Police were applying in this case. To remind you, that offence provision reads:

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.

I, along with other legal commentators, thought that this provision was relatively clear. If you intercept a private communication using an interception device (which the individuals working for the GCSB did), and this is what you intended to do (which the individuals working for the GCSB clearly did), and there is no defence available under subsections (2)-(5) (which there wasn't in this case), then you've committed the offence. Now, there may be reasons for the Police to decide not to prosecute you for doing so - maybe it would be overly harsh to haul the poor technician who just followed orders by bugging Dotcom before the courts. But the elements of the offence are plain to see.

(As I also noted in my earlier post, this understanding of what was needed to commit the offence apparently was one the Police were quite happy to work from when threatening to take Bradley Ambrose to court for recording the "tea tapes" (as well as warning all media organisations not to play those tapes, under pain of prosecution themselves). Indeed, they threatened to charge him under the provision, even while admitting in the press conference that they couldn't prove he possessed the necessary mental "intent" element.)

It turned out that my understanding was wrong, however. Because when it came to examining the GCSB's activities in respect of Dotcom's communications, the Police applied a different approach to the relevant offence. In addition to the requirement that a person intended to intercept the private communications, they also said that that person also had to have intended to do so unlawfully (which the GCSB didn't do). This interpretation was ... somewhat surprising to at least some of us. It appeared to add an entirely new element to the legislation, one not readily apparent from the written text.

That surprise was, in essence, the basis for Norman's first complaint. He asked the IPCA to look at the Police's decision to adopt this understanding of the offence provision, leading to their decision that (in effect) no-one had committed a criminal offence by intercepting Dotcom's communications. In practice, this complaint was always going to fail. For, as the IPCA report notes;

The Authority’s investigation in this case has been of limited scope. It is not our role to investigate the activities of the GCSB. Nor is it our role to determine the accuracy of the legal advice provided to the Police by the Solicitor-General. We are solely concerned with whether there has been any misconduct or neglect of duty by the Police.

And there was precisely zero chance of the IPCA then finding the Police at fault for relying on the legal advice provided to them by the Solicitor General. After all, if the second-highest law officer in the country told them "this is what I think the law means", and on that interpretation the CGSB hasn't committed any offence, then the Police are hardly going to say "the Solicitor General doesn't know what he's on about" and haul someone into court anyway. So, the IPCA basically agreed with the Police's original position. Because the GCSB believed it was lawfully permitted to intercept Dotcom's communications, it committed no offence by doing so (even though its belief was quite wrong, and in fact it wasn't lawfully permitted to do what it did).

Well, that's OK as far as it goes. The Police couldn't really do otherwise, given the advice given to them. And given the limitations involved in the IPCA's investigation, it couldn't really find anything else . However, note what the IPCA said about just how slack the GCSB was about checking to see if its spying on Dotcom really was lawfully authorised:

It is true that, as noted above (para 16), the Police investigation concluded that individual GCSB officers may have been incompetent or negligent in failing to ask Immigration for information on the residency status of Mr Dotcom and Mr van der Kolk, and in failing to seek in-house legal advice, prior to intercepting their communications in December 2011. However, even if they had done so, it is highly likely that the interceptions would still have taken place. That is because, as has been noted above (para 18), the GCSB had an incorrect view of the law. Indeed, when the Deputy Director and Legal Counsel at the GCSB was asked in February 2012, after the Police had raised doubts about Mr Dotcom’s visa status, whether the GCSB had the required interception power, he confirmed that the actions that had already occurred were lawful.

The essential reason for the interception can therefore be found not in the failure of individual officers to do appropriate checks in December but in the fact that the GCSB as an agency had a wrong view of the law. It would therefore have been reasonable for individual operational officers to have relied upon it and to have proceeded as they did. On this basis, the Police would have been justified in concluding that the prosecution of any individual GCSB officer was not required in the public interest.

Get that? The GCSB didn't check to see what Dotcom's residency status was (thus whether they legally could spy on him). In fact, they didn't check with their lawyers about their actions at all. And even if they had done so, they'd still have spied on him, because they didn't understand how the law that governed them worked. So it doesn't matter why the GCSB thought it was allowed to intercept other people's communications - as long as it did think it was.

What interests me now is just how far this "as long as you think you are recording conversations lawfully, then you aren't committing an offence by doing so" logic stretches. Let me give an example.

There's a couple of colleagues at my work - let's call them, purely for the sake of the immediate story, Jesse and Maria - whom I am pretty sure are operating a high level drug dealing operation out of their offices. I have tried to alert the Police to this fact, but they don't appear interested in investigating (citing minor matters like the complete absence of any proof whatsoever to back up my suspicions). So I've decided to take action on the matter myself.

I've planted listening devices in their offices to find out just what they are talking about when they meet. While I am aware that generally such covert surveillance is unlawful, I'm also of the opinion that there is a legal justification for doing so where it may reveal criminal wrongdoing. I haven't actually looked to see whether my opinion about what the law says is correct ... but I genuinely hold it, and apparently there's actually no need for me to check it out before relying on it.

Now, remember, the law that we're told applies to the GCSB (as interpreted by the Solicitor General and agreed to by the Police) is that as long as it thinks it is acting lawfully when intercepting your communications, then it doesn't commit any crime by doing so. That is true irrespective of how wrong its understanding of the law is, or even if it has taken any steps at all to check whether its understanding of the law is correct.

What odds that the Police would take the same view of my trying on that argument in respect of a citizens-initiated investigation (or, if you like, good old-fashioned nosiness)? But if they want to take a different view of my actions, on what basis will they do so?

 

Comments (17)

by Peter Green on July 17, 2014
Peter Green

I have to disagree with the IPCA clearing the police on the first point. If the Solicitor-General gives you an opinion that is politically motvated, and clearly and objectively wrong, then I want the police pushing back on that and facing consequences if they don't.

And shouldn't the Solicitor-General be resigning here? The best case scenario here is gross incompetence in his legal interpretation.

by Kat on July 17, 2014
Kat

Spying on NZ citizens is now legal. It also seems clear that the National govt engineered Dotcom's residency planning on it being a doddle to extradite him at a later date. Nothing to do with John Key of course.

And according to the polls Kiwis think this is fine.

Or, do they?

 

by Katharine Moody on July 17, 2014
Katharine Moody

I recently got rung by a National Party person. Asked what my most important election issues were, I said environment and rule of law. He said, any others? I said no. Passing right over environment (not many good things to say there, I guees!) he started a sentence about crime. I said, no, not crime, but rule of law. He paused. Then asked if I'd be giving JK my vote. I said no. He said thanks. It was fun.

by Nick Gibbs on July 17, 2014
Nick Gibbs

This is an interesting post but at the end of the day irrelevant to my daily existence or how I intend to vote. Govt incompetence! It happens! Would it be any different under Labour? I don't think so.

But who would be best at setting and sticking to a budget or running a stable administration? National of course- so that's how I'll vote. Along with 50%+ of NZer's

by Kat on July 17, 2014
Kat

Mr Gibbs, may I draw your attention to the following salient facts since 1999.

Labour = 9 years of surpluses

National = 5 years of deficits.

And, statistics show that through the years Labour govts are fiscally superior. The myth that National are stable economic managers is pure lies and marketing puffery.

But I will agree with you that at least 47% of the electorate are easily fooled.

 

 

 

by Nick Gibbs on July 17, 2014
Nick Gibbs

Kat,

Labour got lucky with their nine fat years. Could they do the same in nine lean years?

by Katharine Moody on July 17, 2014
Katharine Moody

One would assume Labour would have to be better, given they've snarlled so louded with each breach National has committed during their two recent terms;

http://www.lawsociety.org.nz/__data/assets/pdf_file/0006/68541/United-Na...

The record really is without precedent, I suspect. But you are right, these issues are not a high priority for most - yet you are wrong, this isn't about Govt incompetence .. in all these cases the actions/intentions are very calculated, very purposeful and not in the slightest way incompetent.

by Nick Gibbs on July 17, 2014
Nick Gibbs

@Katharine

Never ascribe to malice that which is adequately explained by incompetence.

- Napoleon

by Fentex on July 17, 2014
Fentex

Never ascribe to malice that which is adequately explained by incompetence.

Incompetence is not an adequate, let alone better, explanation for Michael Heron's clearly inaccurrate and impropr advice to the police. The only credible explanation for his misleading advice is that it was politically expedient and we can be sure that should citiznes make similar claims on the law they would be denied.

I expect someones legal defence will make that explicit sometime in the near future by making a claim on the precedent.

by Nick Gibbs on July 17, 2014
Nick Gibbs

Really? Someone is shortly going to claim they unknowingly broke the law following advice from the Solicitor-General?

by Fentex on July 17, 2014
Fentex

I mean someone who broke a law without crimial intenton that is similarly written regarding intent  - which I expect happens fairly often -  is likely to have their defence argue that NZ's Solicitor General has explained that isn't criminal behaviour.

There is a principle in law called 'mens rea' that establishes a person without criminal intentions is not guilty of criminal acts unless the law in question establishes liability regardless of intent. Was the solicitor general making a claim on his principle? I haven't seen anyone argue so but it seems relevant.

Perhaps someone formally qualified in the field could address the application of mens rea in NZ law and it's possible relevance to this case?

by Fentex on July 18, 2014
Fentex

Another thing about this has just occurred to me - it seems no one disputes the GCSB broke the law, yet the police decided not to prosecute because they were advised by the Solicitor General a lack of intention to break the law made the breach not an offence.

Isn't the decision to accept as fact any lack of criminal intent a matter for a court and/or jury, the police having clearly established the breach occurred? Do the police not assume and subvert a courts responsibilities if they choose to decide what an offenders intentions were when they breached a law?

by Andrew Geddis on July 18, 2014
Andrew Geddis

@Nick/Fentex,

I don't know precisely what the Solicitor General's advice was here, because such advice is "legally privileged" and so doesn't get released (even if you ask for it under the OIA). That said, the Police could choose to make it public, if they wanted to ... and given that this advice appears to alter the plain meaning of the Crimes Act, maybe they ought to do so.

That said, the Solicitor General won't have given advice that all offences which require an "intention" element also require an "intention to break the law" element. So, for instance, the offence of possessing a drug with intention to supply won't henceforth require that it be proven that a person knows that supplying the drug in question is an illegal act and choosing to do so anyway. Instead, this extra "intend to break the law" element will be particular to this offence itself.

So, why is it there? Well, I have to guess (because the actual advice isn't available). But here's my thoughts about what the Solicitor General may have said:

(1) The offence of intercepting private communications using an interception device is quite similar to that of accessing a computer without authorisation. And that latter offence requires actual knowledge, or reckless indifference as to any lack of authority for the access. So, despite the fact that Parliament has not expressly made this actual knowledge/reckless indifference an element of the offence at issue here, it should be assumed that it meant to do so.

The problem with such an analysis is, of course, that Parliament has not expressly made this an element of the offence at issue! So it's a rather creative understanding of what Parliament meant by the offence provision ... almost, you might say, and activist one.

(2) Under ss.2 of the intercepting private communications using an interception device offence provision, the offence does not apply to someone who intercepts the communication "pursuant to, and in accordance with the terms of, any authority conferred on him or her by or under the Government Communications Security Bureau Act 2003". In Dotcom's case, the technicians who did the actual interception did so purportedly under that Act's authority, because the people above them thought that the Act allowed them to do so. 

Now, as a matter of law the GCSB Act couldn't give the authority that the technicians (and their superiors) thought it did (because the Act specifically says the GCSB is not allowed anyone to spy on NZ residents or citizens). However, maybe you could read ss.2 as saying that as long as a person honestly believes that they are acting with proper authority under that Act, then ss.1 (the offence provision) doesn't apply to them. This is, of course, the same conclusion as in (1) above, reached by a different route.

To get there, you have to read ss.2 as actually meant to say that the offence provision doesn't apply to anyone acting "pursuant to, and in accordance with the terms of, any authority (irrespective of its actual legal status) conferred on him or her by or under the Government Communications Security Bureau Act 2003 (so long as he or she believes that the authority is valid, even if he or she makes no effort to check on that validity)". In other words, a piece of paper (or other form of purported authorisation) issued under the GCSB Act (or any of the other bits of legislation mentioned in ss.2) provides a blanket immunity from criminal liability for interception activities in and of itself, no matter how wrong in law it is, unless and until the person who is given it actually knows that it is wrong.

Which is, again, an ... interesting reading of ss.2. It might get you to the right result - is there really any interest in dragging the poor schmuck who got told to run the machine that caught Dotcom's communications into court? But it does so by, I'd suggest, doing some fairly significant surgery on what Parliament wrote in its Act.

by Ross on July 18, 2014
Ross

But who would be best at setting and sticking to a budget or running a stable administration? National of course...

You might be surprised to learn that under the last Labour government, they ran 9 successive budget surpluses. Overseas debt as a propertion of GDP was an historical low. How are National doing in that context?

by Ross on July 18, 2014
Ross

Labour got lucky with their nine fat years.

Oh so National have been unlucky. Well, that is a good reason to vote for them - their luck is due to change! :)

by BeShakey on July 18, 2014
BeShakey

because such advice is "legally privileged" and so doesn't get released (even if you ask for it under the OIA)

Except that legal professional privilige isn't a conclusive ground for withholding, so they would have to consider whether there was a public interest that outweighed the reason for withholding. I'm pretty sure they'd say there wasn't but then a determined person would complain to the Ombudsman, who might have a very different view. I'm far too lazy to do such a thing, but perhaps a law professor with an interest might want to pursue it...

 

by Graeme Edgeler on July 18, 2014
Graeme Edgeler

I don't know precisely what the Solicitor General's advice was here, because such advice is "legally privileged" and so doesn't get released (even if you ask for it under the OIA). That said, the Police could choose to make it public, if they wanted to ... and given that this advice appears to alter the plain meaning of the Crimes Act, maybe they ought to do so.

I would have thought that the counterveiling public interest in the release of legal advice that amends the Crimes Act would be rather high.

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