Legal Beagle by Graeme Edgeler

57

Kim Dotcom: all the fault of the Immigration Act?

David Fisher has an article in the Weekend Herald looking at the claims that the illegal interception of Kim Dotcom's communications arose from a mistake cause by a change in our immigration laws, and that had the old immigration laws (under which Kim Dotcom actually applied to immigrate) been in place, the surveillance by the Government Communications Security Bureau would have been permitted.

Fisher sought confirmation of his analysis from three lawyers - Emeritus Professor Jim Evan, quoted in the online version of the article, was one, and I was another - and I think Fisher has a pretty good scoop. Despite what we have been told, Kim Dotcom would have been protected just as much under the old law as the new. The story does a good job of explaining why the explanation given by Prime Minister John Key is wrong, but you can only fit so much statutory analysis into an 860-word piece, and I thought I'd explain it in slightly more detail here:

At his apology stand-up, Key gave the following explanation for the events:

Essentially the report summarises the problem in saying that when Mr Dotcom applied first for his residency the application was made under the old legislation, and under that legislation, had he come to New Zealand at the time, without changes to the other laws, in particular GCSB's law, then his activities would not have been protected. But In fact by the time he came to New Zealand, there was a new immigration law in place and the GCSB legislation had been amended to make it quite clear that under his resident's class visa, which is the application he came to New Zealand under, he should have been offered the protection of the service and therefore should not have been subject to unlawful tapping of his information.

The report of the Inspector-General of Intelligence and Security did not quite make that claim, although it was its clear implication:

The Immigration material I have seen in respect of Dotcom shows that he was granted a residence visa offshore under the Immigration Act 1987, Investor Plus category, in November 2010. At that point in time he did not meet the definition of 'permanent residence' under the GCSB Act as it then was.

However, before he arrived in New Zealand the new Immigration Act 2009 came into force on 29 November 2010 and deemed him to hold a residence class visa from that point in time. He met the definition of 'permanent resident' for the purposes of the GCSB Act accordingly.

As it happens, the law change did extend the protection Kim Dotcom was afforded, but not in the way the Prime Minister describes. Under the old law, as soon as Dotcom had passed through Immigration control into New Zealand, the GCSB was banned from intercepting his communications. The law change meant the GCSB was prohibited from intercepting Dotcom's communications for an extra two-and-a-bit weeks while he was still in Hong Kong and yet to arrive in New Zealand.

On 18 November 2010, Kim Dotcom was granted a residence visa under the Immigration Act 1987. At that time, the GCSB Act prohibited the GCSB from intercepting the communication of "the holder of a residence permit under the Immigration Act 1987". Section 14A(2) of the Immigration Act 1987 is clear:

(2) A visa is not, nor does it have the effect of, a permit.

So the visa Dotcom had received did not protect him from GCSB interceptions. But it is important to realise what a visa under the Immigration Act 1987 actually was.

The 1987 Act distinguished between visas and permits. A visa gave you permission to travel to New Zealand. A permit gave you permission to stay in New Zealand. Section 4(1) of the 1987 Act is also clear:

4 Requirement to hold permit, or exemption, to be in New Zealand

(1) A person who is not a New Zealand citizen may be in New Zealand only if that person is—

(a) the holder of a permit granted under this Act; or
(b) [not relevant]

Under the 1987 Act, when the holder of a residence visa arrived in New Zealand, that visa didn't allow them to stay here (even for a day). Instead, at Immigration control, they applied for (and would generally be granted) a residence permit under section 17:

17 Persons who may apply for residence permits

(1) The following persons may apply for a residence permit:

(a) any person who is the holder of a residence visa and who arrives in New Zealand during the currency of that visa:

Section 14A was clear that:

(2) ... a visa—

(a) does not entitle the holder to a permit as of right

But a permit would generally be granted, given that the test for being granted a visa was the same as that for being granted a permit, except that a permit (in the same way as entry permission) could only be sought in New Zealand. 

Now, Kim Dotcom never actually got a residence permit, but had the 1987 Act never been repealed, the granting of such a permit at the border would have been the only way he would have been entitled to enter and stay in New Zealand (had it been refused at the border, he would have had to return to Hong Kong immediately).

The 1987 Act provided a two-step process for someone, like Kim Dotcom, who wished acquire New Zealand residency:

  • Step One: Apply for a residence visa while overseas
  • Step Two: Apply for a residence permit at the border

An immigrant gained protection from GCSB interception once step two was completed.

The Immigration Act 2009 changes this slightly. We no longer have "permits", and under the 2009 Act, the document you apply for overseas is called a resident's visa. As with a residence visa, a resident's visa (my apologies to anyone using a screen reader!) allows you to travel to New Zealand. However, once in New Zealand, instead of applying for a residence permit, you apply for "entry permission".

This is still a two-step process, and you can be turned away at the border just as before, but the process is slightly simplified for our border officials. Under the 1987 Act, every type of visa had a corresponding permit, and at the border, someone with a:

  • residence visa would apply for a residence permit;
  • returning resident's visa would apply for a further residence permit;
  • temporary visa would apply for a temporary permit;
  • limited purpose visa would apply for a limited purpose permit;
  • transit visa wouldn't apply for anything further;

 [temporary visas included visitors' visas, work visas, and student visas]

Under the 2009 Act, all visa holders (except holders of transit visas) simply apply for "entry permission" once at Immigration control. The two-step process for someone wanting residence is similar:

  • Step One: Apply for a resident's visa while overseas
  • Step Two: Apply for entry permission at the border

but protection from the possibility of GCSB interception happens after the first step.

Section 415 (and schedule 5) of 2009 Act provided that holders of the various classes of visas and permits under the 1987 Act would be put in effectively the same position under the new act, so anyone who held a residence permit, would be treated as if they had a new resident's visa, and been granted entry permission; someone like Kim Dotcom - as the holder of a residence visa - was treated as the holder of a resident's visa, entitled to be in New Zealand if granted entry permission.

Now, if you looked in Kim Dotcom's passport, I suspect it would show that he has a residence visa, and entry permission. The 2009 Act deems that residence visa to be a resident's visa. The GCSB explanation, described in Justice Neazor's report, that:

It was understood incorrectly by the GCSB that a further step in the immigration process would have to be taken before Dotcom and his associates had protection against interception of communications

was true under the 1987 Act, in respect of the time Dotcom was overseas before arriving in New Zealand, but the explanation overlooks the fact that Kim Dotcom actually took that step - applying for (and being granted) entry permission in December 2010.

If you only looked at section 14A of 1987 Act, you might assume that the 1987 Act would not have protected Kim Dotcom's communications in New Zealand in the way the 2009 Act does. In fact, I basically did the same thing myself after the Inspector-General's report was released: while waiting for the Cricket to start (the Sri Lanka game, I think), I spent ten minutes looking at the law and concluded "that seems right, if Kim Dotcom held a residence visa under the 1987 Act, which would not have protected if the law hadn't changed." But ten minutes wasn't enough time for me to read enough of the old act to know this missed the point entirely, which is why David Fisher is breaking this story, and not me :-)

The change from the 1987 Act to the 2009 Act may have been the cause of some of the human error in the Police and the GCSB that lead to the unlawful spying on Kim Dotcom and Bram van der Kolk, but the Prime Minister's claim that:

had [Kim Dotcom] come to New Zealand at the time, without changes to the other laws, in particular GCSB's law, then his activities would not have been protected

is not legally or factually correct. The amendments to the GCSB act introduced as part of the Immigration Act 2009 did not increase the protection from GCSB interception offered to New Zealand residents in New Zealand. And while they did increase the protections to some New Zealand residents who are overseas, this has no relevance to the Kim Dotcom case.

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