Legal Beagle by Graeme Edgeler


Kim Dotcom: Questions and Answers

We are advised we will have the result of Justice Neazor's report into the admitted unlawful spying by the Government Communications Security Bureau (GCSB) by the end of the week.

Even without it, we are getting greater insight into what happened in the use of GCSB resources, with various public comments from the Prime Minister, John Key, and Bill English, the Deputy Prime Minister, among others.

What happened?

We'll hopefully have a better idea come Friday, but media reports indicate that the memorandum filed by the Crown Law Office. advised the High Court. The Herald notes:

The Government Communications Security Bureau (GCSB) asked the Organised and Financial Crime Agency (OFCANZ) to confirm if internet tycoon Dotcom and his Dutch co-accused Bram Van Der Kolk were foreign nationals; and OFCANZ "gave that assurance'', court documents reveal.

[OFCANZ is part of the Police]

As many people have pointed out on Twitter, and no doubt in other places, this may be the wrong question.

The words "foreign national" don't appear in the GCSB Act, nor in all that many other places in New Zealand law. Rather, the act defines foreign person, which "means an individual who is neither a New Zealand citizen nor a permanent resident; and includes a person acting in his or her capacity as an agent or a representative of such an individual".

Kim Dotcom is a German citizen, and in that sense, is a foreign national. But he is also a New Zealand permanent resident, so is not a foreign person.

We do not know the context of the request the GCSB made of the police, and it could have made clear its role and powers as part of making its request. This we may not find out, but in the end, it may not be relevant.

And why not?

Questions of criminal liability for the admitted unlawful interception do not turn on knowledge that what you are doing is illegal.

The major question in any criminal prosecution are:

  • was there an interception of a private communication?
  • was that interception by use of an interception device?
  • was that interception intentional?
  • was the interception undertaken pursuant to statutory power (e.g. in the GCSB Act)

Other similar offences - for example, accessing a computer without authorisation - require actual knowledge, or reckless indifference as to the lack of authority for the access. And some other offences include a requirement that the offending by done "without colour of right". Such provisions can mean that a mistaken understandings of the legality of an action can be a defence in criminal proceedings.

There are also defences that apply when a court or similar illegally issues a warrant (as it did in respect of the search warrant relating to Mr Dotcom's residence). These defences can provide those acting on such warrants protection from criminal liability.

But none of these defences can apply to a charge in the circumstances we have here, where the actions took place without a warrant, and outside the scope of any power that the GCSB can exercise without a warrant. If someone from the GCSB intentionally intercepted a private communication of Kim Dotcom, it is highly likely they have committed a criminal offence even if they are completely blameless.

Why were we only told on Monday?

On Monday, the Crown Law Office filed with the High Court a memorandum bringing the Court's attention to the actions of the GCSB, and its acceptance that those actions were unlawful.

At the press conference held after that had happened, the Prime Minister has announced that there had been an unlawful interception.

With that knowledge, it is an offence for someone to disclose the content or existence of a criminally obtained communication. I anticipate that the Prime Minister had advice that disclosing the existence of that communication after it had been mentioned in a court filing, was legally safer. There other reasons people have offered in speculation may have assisted (not least because the law is so stupid that making that disclosure after it's been made public is no less illegal), but this does seem likely to have played a major part in the reasoning. 

What is a "ministerial certificate"?

The general rule in litigation - including litigation of the type Kim Dotcom is engaging in in the High Court challenging the execution of the search warrant authorising the search of his home - is that parties to that litigation must provide to the other side documents relevant to the proceeding. Section 27 of the Crown Proceedings Act provides that this obligation of disclosing documents rests not just on ordinary litigants, but also on the Crown when it is involved in litigation.

As Dotcom is challenging the search warrant, as a general rule, he would be entitled to the material which the Police used as a basis for getting that warrant. It appears that some material obtained by GCSB surveillance was among that. Whether it was disclosed to the judicial officer from whom the warrant was obtained is unclear, to the public at least.

However, under the Crown Proceedings Act, and rule 8.26 of the High Court Rules, an exception can be made to the general obligation of disclosure. If the Prime Minister certifies that the disclosure of the existence of a document would be likely to prejudice the security or defence of New Zealand or the International Relations of the Government of New Zealand. This allows the government to effectively hide secret information.

Dotcom's lawyers, being rather good, seem to have figured it out anyway, and I am guessing that this lead someone, perhaps in Crown Law, to closely look at what happened, who then realised that what happened was illegal. They then quite properly advised the court, and we had today's hearing.

But why did the police need the GCSB to do anything?

Adam Bennett in the Herald, describes what police sought from the GCSB:

The documents show Ofcanz asked the spy agency to obtain information relevant to the "location, awareness on the part of the wanted person of law enforcement interest in them, or any information indicating risk factors in effecting any arrest" relating to the four men.

The Police can get interception warrants and conduct surveillance, why didn't they just do this by themselves?

Police can obtain interception warrants under the Crimes Act 1961, but they are basically limited to terrorism, serious violent offences, and offences of organised crime.* Which I don't believe is alleged.

[*warrants for drug-dealing offences are issued under the Misuse of Drugs Act.]

Additionally, as a general rule, our police are tasked with enforcing our laws, not other countries'. If they don't think that evidence of an offence against New Zealand law may be found.

There are exceptions to that. Foreign Governments can request police assistance through the Mutual Assistance in Criminal Matters Act, and, once an extradition procedure has started, Police can undertake investigations in respect of foreign offending using powers in the Extradition Act.

Crucially, while these acts specifically invoke search warrant powers, neither act invokes interception powers.

Why did police try to get the GCSB to do this? Because we don't let the police do it (foreign person or not).

There remain some unanswered questions, most importantly:

Why was the GCSB involved at all?

The GCSB's remit is pretty clear from its legislation. Its role is to seek foreign intelligence, which is defined as "information about the capabilities, intentions, or activities of a foreign organisation or a foreign person."

If, while collecting foreign intelligence it happens to find evidence of a serious crime (which is a bit of a misnomer, as it carries the same definition as "crime" does in the Crimes Act), it can hand this on, but that's not the same thing as setting out to assist an investigation from the beginning.

I find myself wondering, even if Kim Dotcom did not have permanent residence, why on Earth the GCSB would be assisting the police in circumstances such as these currently appear to be.

I suppose the risk factors involved in arresting someone could fall within their "capabilities", but even if that legislative stretch is accepted, the overall objection of the GCSB, which should guide its operations, "is to contribute to the national security of New Zealand." And that's even more of a stretch.

Now, the functions of the GCSB (as provided in section 8 of its Act) do include permitting it:

to co-operate with, or to provide advice and assistance to, any public authority or other entity, in New Zealand or abroad,—

(i) ...

(ii) on any matter that is relevant—

(A) to the functions of the public authority or other entity; and

(B) to any purpose specified in subsection (2).

(2) The Bureau may perform its functions only for the following purposes:

(a) to pursue its objective:

(b) to protect the safety of any person:

(c) in support of the prevention or detection of serious crime.

and we get back to the last question: is it a function of the Police to intercept the communications of people in respect of offences that they themselves cannot get interception warrants?

As a lawyer, I could comfortably argue that the actions of the GCSB, as I understand them to be, would have been with the scope of the GCSB Act had none of the Kim Dotcom and his colleagues been permanent residents.

People make mistakes. People misunderstand questions, or misunderstand the answers they are given to their questions. They assume other people have conducted the necessary checks, or obtained the right permissions. Such mistakes may rise to the level of incompetence, or even be criminal. We'll get some information later in the week about how the the GCSB found themselves illegally intercepting the communications of a couple of New Zealand residents.

But short of someone in the GCSB acting as some sort of rogue agent, how that breach happened is not actually our biggest problem. The actions of the Police in using the GCSB as an end-run around laws we have put in place deliberately limiting police powers are of much greater concern.

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