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Speaker: Not quite what you may think

20 Responses

  • Stephen Judd,

    1. There is a typo in the title.
    2. Thanks very much for this. It's the kind of sensible, useful background information I've been looking for in the *cough* mainstream media on this issue and so far failed to find.

    Wellington • Since Nov 2006 • 3122 posts Report Reply

  • Russell Brown,

    1. There is a typo in the title.

    Yup. And for the time being, I can't get rid of the bugger, even though I've corrected the headline of the original Public Address post. I'll have to ask the lads to fix it in the morning ...

    Auckland • Since Nov 2006 • 22753 posts Report Reply

  • Michael Fitzgerald,

    As soothing as this piece is & it's great to get a bit of detail.
    We all know the cops hit kids up for expired WOF and then let them off if they give finger prints/dna samples.

    I call for Bomer to be charged under 5 (2) a "to induce terror in a civilian population" by spinning unsubstantiated sh*t.
    The cops too for the road blocks & photos of the occupants - seemed pretty much to terrorise the area.

    Since May 2007 • 631 posts Report Reply

  • Richard Bol,

    I agree with Stephen. Hopefully some of the hysterical commentary surrounding the recent events will be toned down in the wake of this piece. Graeme's article is what we need more of - the explanation of technical details in a way accessible to the lay reader. Well done.

    Auckland • Since Nov 2006 • 32 posts Report Reply

  • Bob Munro,

    Actually the more I stare at it 'qute' seems quite a nice word. Maybe we can find a use for it?

    Christchurch • Since Aug 2007 • 418 posts Report Reply

  • InternationalObserver,

    1. There is a typo in the title.

    Spooky how the human brain works - I read it as 'quite' until you pointed out the typo.
    Obviously I'd make a great police witness: if the defendant says "I wasn't there your Honour!" I'd swear otherwise.

    Since Jun 2007 • 909 posts Report Reply

  • tussock,

    This doesn't really make sense. If one has to be in a group which has either committed a terrorist act or been designated as a terrorist group, how the hell has anyone in the raids possibly fallen foul of our terror suppression laws?

    Are they suggesting someone in the happy valley camp, global peace group, Tuhoe, and various environmentalists have secretly joined Al Quada? Really?

    Oh, wait, they might be saying people were in a group which may have been conspiring to commit unspecified acts which may have seen it labeled a terrorist entity at some point in the future. That's one hell of a tenuous thing to claim, particularly when they don't think they'll find evidence of any other crime or conspiracy besides the holding of restricted firearms without license.

    Since Nov 2006 • 607 posts Report Reply

  • Graeme Edgeler,

    If one has to be in a group which has either committed a terrorist act or been designated as a terrorist group, how the hell has anyone in the raids possibly fallen foul of our terror suppression laws?

    That's the next post, tussock. I'll get back to you.

    Wellington, New Zealand • Since Nov 2006 • 3202 posts Report Reply

  • Joe Wylie,

    That's the next post . .

    Much anticipated. Thanks a lot Graeme & PA.

    flat earth • Since Jan 2007 • 4591 posts Report Reply

  • Alastair Thompson,

    Thanks for this.

    My question is this. If not the TSA then what enactment would you think has been used to get the interception warrants. The Arms Act? Is it normal for interception warrants to be used for extended periods i.e. 15 months?

    Wellington • Since Nov 2006 • 220 posts Report Reply

  • Jonty,

    Curious that the cops smash in the front of Peace Action Wellington's HQ a week after their involvement in the protest outside the Duxton against the arms dealers doing business inside. Maybe the cops got the time and place wrong?

    Katikati • Since Mar 2007 • 102 posts Report Reply

  • andrew r,

    See also Finlay MacDonald's concise piece in the SST (Sunday just gone) , particularly with respect to proposed amendments - which Graeme mentions- to the TSA that are concerning.
    To date interception warrants are used most commonly to obtain evidence in the prosecution of Crimes against the Misuse of Drugs Act . At Trial with respect to those prosecutions all aspects of the warrant - the obtaining of, the way inwhich it has been used, and the time period - will be rigourously challenged. Often in those Trials challenging admissability of evidence obtained from interception warrants will be the only real avenue of defence available .

    auckland • Since May 2007 • 99 posts Report Reply

  • Graeme Edgeler,

    If not the TSA then what enactment would you think has been used to get the interception warrants

    Damn, maybe I over-simplified this bit.

    Search Warrants are granted under the Summary Proceedings Act. They can be granted by JPs, Court Registrars or Judges. The process, and legal standard for obtaining a search warrant is the same whether the offence with respect to which the search warrant is sought is an offence against the Crimes Act, the TSA or anything else (the offence needs to be punishable by imprisonment, and you need good cause to suspect you'll find evidence of offending etc.)

    Interception warrants are granted under the Crimes Act. They are a lot harder to get, and can only be granted by a High Court judge. The process for obtaining an interception warrant is essentially the same no matter the charge, but the range of charges is much smaller. The Terrorism Suppression Act did add various terrorism offences to the range of offences for which interception warrants may be granted.

    Interception warrants can be granted to the police under the Crimes Act (noting that there are no such powers in the TSA) in the following cases:

    1. To intercept communications of an organised criminal enterprise (i.e. gang) believed to be engaged in serious offending (10 yrs+ imprisonment, conspiracy to defeat justice, corrupting witnesses or juries, major theft, money laundering, receiving) as part of an ongoing criminal conduct.

    2. To intercept communications about a serious violent offence (which is defined - minimum 7 years, risk to life or serious injury etc.).

    3. To intercept communications relating to an offence against sections 7, 8, 9, 10, 12, 13 or 13A of the Terrorism Suppression Act.

    [You'll note that most of the terrorism offences could come under 1 or 2 (arguably not the financing ones 'though), but for what I assume to be simplicity are listed separately.]

    The wording of what needs to be proved is slightly different (e.g. in case 1, the cops also have to establish the existence an organised criminal enterprise), but it is basically the same for all offences.

    The judge must be satisfied that:
    1. granting the order is in the best interests of justice, which includes considering the privacy of the those involved against the offending;
    2. if no offence has yet been committed, that the granting of the interception warrant is "likely" to prevent its commission;
    3. there are reasonable grounds for believing that evidence relevant to the offence(s) listed will be obtained
    4. that other investigative procedures have been tried but failed, or are unlikely to succeed, or are likely to be dangerous, or the matter is so urgent that they should not be used.
    5. The communications intercepted aren't going to be protected by lawyer/client privilege.

    Interception warrants can be granted for a maximum of 30 days. They may be renewed, but the exercise basically needs to be gone through again ("is it still likely to..." etc.) with the additional information that the Judge needs to be told what information was obtained during the period of the previous warrant.

    There are also distinct interception powers under:
    *the New Zealand Security Intelligence Service Act 1969
    *the Government Communications Security Bureau Act 2003
    *the Misuse of Drugs Amendment Act 1978 and
    *the International Terrorism (Emergency Powers) Act 1987.

    Wellington, New Zealand • Since Nov 2006 • 3202 posts Report Reply

  • Alastair Thompson,

    Dear Graeme,

    I think it would be very helpful to post your original piece and this followup on Scoop with links back to this thread for further discussion. It very usefully adds to what I distributed last night via the Sludge Report #180. Its not too late to correct if there is anything wrong in the IANAL oppinions threin :)

    http://www.scoop.co.nz/stories/HL0710/S00341.htm

    I would also be interested to know:

    1. the legal elements of a collective posession of a fiream conviction against a group under 45(1)b of the Arms Act.

    2. the typical length of and uses of interception warrants in criminal prosecutions.

    3. what procedure precisely the Attorney General will have to follow in order to arrive at his decision on whether to grant leave for TSA charges to be laid. Does he have to/ is he able to apply a standard of proof threshold in making his decision? What does he need to consider? Can he ask questions? Can he ignore answers?

    Wellington • Since Nov 2006 • 220 posts Report Reply

  • Russell Brown,

    Dear Graeme,
    I think it would be very helpful to post your original piece and this followup on Scoop with links back to this thread for further discussion.

    I'm quite happy with that if Graeme is.

    Auckland • Since Nov 2006 • 22753 posts Report Reply

  • Kyle Matthews,

    (or an extended reply in the comments if people really want answers now).

    Er. Duh. Need you ask?

    Since Nov 2006 • 6243 posts Report Reply

  • Rich of Observationz,

    If a mobile telco or ISP has historic communications stored away, can an interception warrant access that data *before* the date of the warrant?

    And can this be used to launder illegally collected information? E.g. NZSIS (or an overseas agency like GCHQ/NSA) listen to someones traffic and tell the police that they should be interested, then the cops get a warrant and intercept the traffic legitimately? (It's been widely suggested that the various agencies work to circumvent bans on domestic espionage by "taking in each others washing").

    Back in Wellington • Since Nov 2006 • 5550 posts Report Reply

  • Idiot Savant,

    I'm also interested in the "collective unlawful posession" charge too. Alleging unlawful (rather than unlicensed) posession may be a bit dodgy, and relies on drawing a long bow to an ultimate purpose while ignoring immediate ones, but saying its collective seems to remove the need for the police to actually prove anyone in particular handled a weapon. All they need to show was that there was one in the vicinity. Which seems to be rather lax for something which could see people in jail for 4 years.

    Palmerston North • Since Nov 2006 • 1711 posts Report Reply

  • Idiot Savant,

    There are also distinct interception powers under:
    *the New Zealand Security Intelligence Service Act 1969

    So, caninformation gathered under that act be used in court?

    And is there anything stopping the SIS from listening in on lawyer-client conversations then whispering in a policeman's ear?

    Palmerston North • Since Nov 2006 • 1711 posts Report Reply

  • Graeme Edgeler,

    is there anything stopping the SIS from listening in on lawyer-client conversations

    Yes. Section 4A(3)(d) of the New Zealand Security Intelligence Service Act 1969.

    But for whispering more generally see s 4H

    Wellington, New Zealand • Since Nov 2006 • 3202 posts Report Reply

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