Legal Beagle by Graeme Edgeler

I read David Farrar's post on the secrecy with which the New Zealand Teachers Council Disciplinary Tribunal conducts its hearings, and, like David, was disturbed with what I read in Kathryn Powley's Herald on Sunday article. The Teachers Council Disciplinary Tribunal doesn't just claim a power to suppress sensitive information, but rather has rules which automatically suppress all information, instead allowing people to seek official permission before publishing particular information.

David observed that "...the rule should be repealed or amended. If the Council won’t do so, then the enabling legislation should be amended."

My first thought was to comment in agreement with his general observation: secrecy should not be the default position. My second, to point out that his proposed solution of amending the enabling legislation was excessive, when you could just ask Parliament to vote to disallow, or amend the rule - it's the rule, not the primary legislation, that is the problem.

My third thought is the basis of this post. If I think the rule is fundamentally misguided, and that it limits freedom of expression in an unreasonable, unjustifiable way, why don't I do something about it, instead of just talking away to no-one in particular on the Internet?

So instead of just writing a blog post, what follows below is a complaint I sent to Parliament's Regulations Review Committee yesterday evening.

Any member of Parliament can move a motion to amend, or disallow a regulation, but the Regulations Review Committee is empowered to inquire into subordinate legislation, and a successful complaint to that Committee is a good way to get the rest of Parliament to take notice of your concerns. It operates on a more consensual basis than ordinary select committees, but the individual members of the Committee (currently three National and two Labour), have a special power that other members of Parliament don't have. If one of them moves a motion of disallowance, the House has to vote on it, or the motion succeeds.

I make a lot of submissions to select committees, but this is my first complaint about a regulation. I hope it doesn't need to go far. This seems like an obvious case to me, so my hope is that the Teachers Council will realise its position is untenable, and adopt amendments to its rules more in keeping with freedom of expression.

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The Regulations Review Committee

Complaint about New Zealand Teachers Council (Conduct) Rules 2004

Submission of Graeme Edgeler

Introduction

I am concerned about rule 32 of the New Zealand Teachers Council (Conduct) Rules 2004 (SR 2004/143), which has recently come to my attention.

This complaint is from Graeme Edgeler. I am a Wellington barrister with a strong interest in constitutional law, including free speech issues, and open justice.

I would like to appear before the Committee to speak to my complaint. I anticipate other organisations (including organisations such as Media Freedom Committee of the Commonwealth Press Union) will also be interested in matters I raise below.

I have provided contact details to the Committee in my covering email.

Overview

My complaint is principally concerned with rule 32 of the New Zealand Teachers Council (Conduct) Rules 2004, but also touches upon rules 31 and 33. These rules concern the secrecy of proceedings of the Disciplinary Tribunal of the New Zealand Teachers Council, and in effect, impose blanket suppression on teachers’ disciplinary matters, following the holding of secret hearings. Rule 32(1) provides that

32 Publication of proceedings

(1) Except as provided in subclause (2) or as ordered under rule 33(1)(b), (c), or (d),—

(a) no person may publish any report or account of a hearing; and

(b) no person may publish any part of any document, record, or other information produced at a hearing; and

(c) no person may publish the name, or any particulars of the affairs, of any party or witness at a hearing.

I consider that the rule 32:

• Involves an unusual or unexpected use of regulation making powers;
• Contains matters more appropriate for Parliamentary enactment; and
• Unduly trespasses on freedom of expression.

I recommend that the Committee Investigate the New Zealand Teachers Council (Conduct) Rules 2004, and consider recommending to the House that it either disallow rule 32 under s 5 of the Regulations (Disallowance) Act, or that amend any or all of rules 31-33 under s 5 of the Regulations (Disallowance) Act to better provide for freedom of expression. The Committee may also wish to invite the Teachers Council to adopt its own amendments to avoid the necessity for a more formal response.

Jurisdiction of the Regulations Review Committee

The New Zealand Teachers Council (Conduct) Rules 2004 are rules adopted by the New Zealand Teachers Council under powers given to it by section 139AJ of the Education Act 1989. The rules are declared to be regulations for the purposes of the Regulations (Disallowance) Act 1989, under s 139AJ(5). This gives this Committee jurisdiction to investigate these rules.

Rule 32 Involves an Unusual or Unexpected Use of Regulation Making Powers

The power under which the New Zealand Teachers Council has adopted rule 32 is s 139AJ(1)(d), which empowers the Council to make rules providing for “the practices and procedures of the disciplinary bodies”.

It has used this power in a way that does not principally affect the Disciplinary Tribunal itself, but affects the world at large, by forbidding not merely those involved in its processed, but everyone else as well, from publishing reports or accounts of proceedings.

I do not consider that Parliament would have intended that a power to set up a Disciplinary Tribunal, and to provide rules regulating it, would incorporate a power to regulate the news media, which is the principal effect of the rule that has been adopted. This is especially so when the rule-making power is not one that is exercised by, for example, the Governor-General-in-Council, but by the New Zealand Teachers Council.

The offence provision provided in section 139ZA(2) of the Education Act 1989 is clearly predicated on the assumption that any rules should at most provide for orders suppressing particular information, not rules forbidding the publication of all information to which exceptions can be made.

In adopting rules 31-33 of the New Zealand Teachers Council (Conduct) Rules 2004, the Teachers Council has created a disciplinary process that is both private and secret unless expressly ordered to be public by the Disciplinary Tribunal itself. This is contrary to the usual approach that such matters are public unless there is good reason to make them private. Had Parliament intended the rule making power to be used in contravention of the usual practice, it would have been explicit in doing so.

Rule 32 Contains Matters More Appropriate for Parliamentary Enactment

Parliament has created disciplinary bodies across a range of professions. In respect of the major comparators with the teaching profession, Parliament itself has legislated for suppression powers, and powers to exclude the public from hearings in primary legislation.

The two obvious examples of professional discipline for which Parliament has legislated are health professionals and lawyers. The disciplinary tribunals for both of these groups of professionals hold public hearings, but are empowered to close hearing (or suppress names and evidence) where necessary.

In using its general rule making powers in the way it has, the Teachers Council has taken for itself powers not granted to it by Parliament – powers which Parliament has historically guarded. Parliament has not given the Teachers Council the power to regulate the news media, and the Council should not claim that power for itself.

On other occasions, when Parliament has sought to create some restrictions on the news media in the context of disciplinary proceedings, Parliament itself has done it, and done so sparingly. The excessively wide effect of rule 32 can be contrasted, for example, with section 148(2) of the Lawyers and Conveyancers Act. That section prohibits improper disclosure by members or staff of Standards Committees of certain information held by those committees. Even Parliament did not see fit to create a rule that applies to everyone else as well.

Rule 32 Unduly Trespasses on Freedom of Expression

Starting from the point that all hearings of the Disciplinary Tribunal should be secret, and that it should be illegal to publish reports of its hearings, and its decisions, without express permission, goes against decades of increasing openness in government, and greater and greater respect for freedom of expression, and the public right to know. Particularly since we adopted the Official Information Act and the New Zealand Bill of Rights Act, the trend toward greater openness in public affairs has continued. Rule 32 of the New Zealand Teachers Council (Conduct) Rules are a notable and disappointing exception.

There are clearly occasions where we would want the Teachers Council Disciplinary Tribunal to keep certain information from public currency: information leading to identification of victims of abuse is an obvious example. But these specific examples should be the exception, not the rule. They are not a good enough reason to presumptively suppress all information.

The procedures we have put in place in the health sector are instructive. There is little that is more private than information about one’s health, yet the procedures of the Health Practitioners Disciplinary Tribunal still provide for a presumption of openness, with information suppressed only when it needs to be.

Blanket suppression orders are concerning enough, but blanket suppression rules are anathema to principles of open justice, and freedom of expression that our society recognises are of vital importance.

Recent changes to our suppression laws in respect of criminal cases have shown Parliament’s strong support for openness, and its recognition that if information is to be suppressed, that suppression needs to be reasoned, and as narrow as possible to achieve whatever purpose is considered proper.

There is simply no reasonable justification for a rule that presumptively prohibits the publication of all information in respect of teachers’ disciplinary proceedings, no matter how innocuous that information is. People should not need to seek official permission before being permitted to publish such information. If particular information – or the names of particular witnesses – is sensitive, it would appropriate for there to be a suppression power which enables that information to be kept out of the public arena, but the New Zealand Teachers Council (Conduct) Rules go far beyond what is required, or reasonable. In their current form, they clearly represent an unreasonable limitation on freedom of expression.

Recommendations

My concern is with the excessive scope of the restrictions on publication and openness that the New Zealand Teachers Council (Conduct) Rules currently impose. The mechanism by which this is fixed is not particularly concerning. I consider it would be appropriate for the offending provisions of the rules to be disallowed, but an amendment (whether adopted by the Teachers Council, or by Parliament) that better reflects community expectations of openness and freedom of expression would be an equally satisfactory result.

If the Committee considers public hearings will assist it, I look forward to appearing before the Committee to discuss this matter further.

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.

After details of the unlawful spying by the Government Communications Security Bureau on Kim Dotcom became public, I called for a police investigation. Charges may not be appropriate, but I think there has been offending, and there is clearly enough to investigate. In interviews on both TV1's Q+A, and TV3's The Nation, former Prime Minister Sir Geoffrey Palmer raised the possibility of both civil and criminal consequences following from the unlawful spying.

Sir Geoffrey spoke against the holding of a broader public inquiry - essentially arguing that seeking to get our spy agencies operating effectively by holding a transparent inquiry will be rather counterproductive.

On Monday afternoon, it was announced that the Cabinet Secretary would be seconded to the GCSB as an Associate Director. Taking a three-month leave of absence from her current post, she "will be responsible to the Director of the GCSB for the implementation of an immediate capability, governance and performance review. This work will provide assurance to the GCSB Director that the Bureau's activities are undertaken within its powers, and that adequate assurance and safeguards are in place."

This isn't what the Labour Party has been calling for. They have already referred to the report of the Inspector-General of Intelligence and Security as a "white wash", not because of what it dealt with, but because it didn't look into the oversight (not) provided by the Prime Minister.

But the lack of oversight is a political matter, with a political solution. We Already know the Prime Minister didn't provide oversight over this action because he has repeatedly said he didn't. The only question that really needs to be answered is whether David Shearer would do it differently, and whether a Prime Minister taking a more interventionist role in controlling our spy agencies is something to be welcomed, or feared.

While I called for a police investigation, I've been reluctant to support calls for a broader inquiry. The calls undoubtedly have a political flavour, but that's not my major concern. Mostly I question what we'd actually find out. I'd be interested in a few of the real details: exactly what was the question asked of the police about Dotcom's residency status, and what was the reply? But these are pretty minor things. Usually, we need an Inquiry to work out how something happened, or whether someone has acted improperly or unlawful. Unflattering conclusions on these matters have already been admitted by the Government and agreed by the Inspector-General.

We are never going to be told the operational details of the Dotcom fiasco - even if this made it to Court as a criminal prosecution, the protection of security is one basis on which Courts may be closed to the public, and even the media can be excluded.

Moreover, these matters are not why people have been calling for inquiries, which have largely focused around the lack of democratic oversight by Prime Minister John Key. But given that John Key has publicly stated he didn't know about the action, and wasn't told by officials what was going on, the likelihood of an investigation adding to our understanding of these questions is remote.

Opposition politicians are already saying Key was "asleep at the wheel", what does an inquiry into the oversight in this case add to these arguments, beyond telling us again, what we have already been told? 

Part of the rationale behind the particular scrutiny John Key is facing over this matter is that he is the only democratic check. Other agencies - like the Police - have to get warrants from judges before conducting surveillance, and can later have the evidence obtained challenged before another judge. As a general rule, other agencies will be more likely to respond to OIA requests (and refusals they make are more likely to be overturned by the Ombudsman), and others have obligations under the Criminal Disclosure Act. Parliamentary procedures can also look more closely at police operations, which are also subject to the Independent Police Conduct Authority.

A broader inquiry into the Dotcom case isn't going to address any of these matters. The concerns that still need to be addressed aren't limited to Dotcom, or even other GCSB inquiries. What matters now is how the actions of the GCSB and other Spy Agencies are checked in the future.

So - other than that police inquiry - what I'd really like to see is someone look into the machinery of our security agencies. Do the laws we have reflect a proper regard for the competing values our society recognises?

Given that we have limited police powers to intercept communications to a range of serious offences, do we want them using the GCSB as an end-run around the protections we have put in place? They can't use the information gathered as direct evidence in Court - is this enough of a protection from abuse?

Alternatively, if this is about providing protection for Police Officers doing a dangerous job, where it's important that they can get information to as safely execute arrest and search warrants, why do we only feel the need to protect them from non-permanent residents?

Given changes in technology, do the laws that require warrants in respect of direct phone-tapping make sense, given that telephone conversations can be intercepted without direct phone-tapping? It could be that we require (Prime) Ministerial sign-off for such surveillance not because of heightened privacy interest, but because entry into a building to place a bug is the most likely to go wrong, and we want our politicians to have a say in approving surveillance that is more likely to turn sour. Would that be a good basis for such a law?

Is the oversight provided by the Intelligence and Security Committee sufficient? The legislation setting it up was adopted in 1996, before the multi-party environment of MMP, so is five members enough?

The Committee can't look at any matter relating directly to the activities of an intelligence and security agency. It is also prohibited frominquiring into any matter within the jurisdiction of the Inspector-General of Intelligence and Security. Are its powers too constrained?

Is it even right that the Minister in charge of the GCSB is a member of the committee, and is also it's chairperson? Or should its role be holding that minister to account, as select committees try to in their areas of speciality?

We currently require approval of the Commissioner of Security Warrants for SIS surveillance of citizens and permanent residents, and allow the minister alone to approve other warrants without judicial (the Commissioner is a retired Judge) oversight. Should this protection be applied to everyone? Should it extend to GCSB surveillance conducted of people in New Zealand?

Is the role of the Inspector-General too close to the agencies it oversees? Are the powers and resourcing of the Office sufficient to cover the increasing complexity (so I've been told) of our security agencies?

These aren't questions any current inquiry will be looking at, but changes to the law (hopefully) have the greatest chance of improving the democratic oversight, and ensuring abuses either don't happen, or are properly investigated. The laws governing our security agencies are varied, and the roles different parts play with each other don't appear to be part of a coherent whole.

The ad hoc arrangements we had for search and surveillance were recently re-assessed, and changes bringing some coherence have recently entered into force. Agree with all the detail, or not, they now at least make sense. As boring as the conclusion may sound, a review of the laws governing our security apparatus may be just the job for the Law Commission!

In my last post, I explained why I consider - based on the limited evidence available - a criminal offence has been committed in relation to the interception of Kim Dotcom's communications by the Government Communications Security Bureau.

In the media release announcing his police complaint, Green Party co-leader Russel Norman says: "The GCSB appears to have breached s216(B) of the Crimes Act, which bans interception of private communications."

But although I think an offence has been committed, the suggestion that the GCSB has itself committed an offence is fraught.

Can "the Crown" be held criminally responsible for breaking the law?

The long answer may differ, but the short answer is a very clear "no".

It has long been the common law position that the Crown cannot be criminally liable. The Law Commission (.pdf), and the Ministry of Justice have both recognised that there is no constitutional impediment to Crown criminal liability, but the basic principle is that while "judges are prepared to accept that the Crown may be subjected by statute to criminal liability, a clear and unequivocal statement is needed." A statement in a law that "this act binds the Crown" is not enough.

The Crown Proceedings Act deals with some of the complications that can arise when you're suing the government, but one of the solutions it provides - the assumption that the Attorney-General should be the default defendant - doesn't seem quite right in criminal proceedings.

We have already provided a limited exception to the general presumption that thew Crown is never criminally liable for its actions. In the wake of the Cave Creek disaster, we adopted law changes to enable Crown organisations to be charged with breaches of the Building Act, Health and Safety in Employment Act and Resource Management Act. The Crown Organisations (Criminal Liability) Act provides the necessary procedure by which the Crown can be proceeded against in those cases.

These aren't necessarily simple questions - even if we provided for the GCSB to be liable for criminal breaches of section 216B of the Crimes Act, what exactly would that mean? When are the actions of an employee of an agency sheeted home to the Bureau? Does the Board or Chief Executive of a Crown Organisation have to be in on the offending, or is a simple failure to have systems to stop something happening enough? The GCSB is under the "control" of its minister - would this mean it is treated differently from the police? If a member of the GCSB used GCSB equipment to spy on an ex-wife, we wouldn't hold the GCSB liable, so where do we draw the line?These questions need answers before we can even start.

Similar questions arise in respect of corporate liability for some offending, and we've resolved many of them by legislation. The Crown Organisations (Criminal Liability) Act answers some of the questions in respect of the specific offending with which it deals, but doesn't extend very far.

Some of the problems that can arise in organisational liability can be seen in the Megaupload case. In addition to the charges Kim Dotcom and his colleagues face, the Megaupload company has also been indicted in the United States. These charges exist, but the company's lawyers have applied to have them thrown out, arguing that US law does not provide for a process by which to serve an indictment on a wholly foreign company (Megaupload is Hong Kong based, and has no office in the US). If you can't even be charged, the case can never get off the ground.

In New Zealand, we've created a process by which a company can be charged with an offence, we would need to decide what processes are needed in respect of what offences if some part of the Crown is to be held criminally liable.

These things can be sorted through. But they haven't been yet.

While the GCSB itself cannot be criminally liable, no such problems arise in respect of the employees of the agency, or any police officers involved. In some respects, this is unfortunate. That some technician might be the person to carry criminal liability for a decision made be people at a much higher pay grade, would seem a little unfair, but if you're going to be intercepting the private communications of people, you do kind of a run a risk. And, of course, anyone ordering an unlawful surveillance operation may be liable as a party to any offending. And given that criminal liability for abetting a crime can be established even if a principal offender is never charged, such unfairness can be avoided.

Last week, when various calls for further investigations into the GCSB investigation of Kim Dotcom were being made, I was asked what type of inquiry I thought was appropriate. I think they wondered whether it should be a Ministerial inquiry, a Commission of Inquiry, or something else like that. My immediate response was that it should be a police inquiry.

I understand Green Party Co-Leader Russel Norman made such a complaint on Friday. The complaint has been dismissed as a political stunt - Dr Norman released an extensive media statement directly invoking John Key's police complaint over the recording of the teapot tapes, calling for his support - but while there is certainly a political element to it, it does not follow that that is all it is.

Section 216B of the Crimes Act makes a certain type of "spying" criminal:

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.

Various exceptions are included, including where the interception is by one of the parties to the conversation, the monitoring of prisoners' phone-calls in accordance with the Corrections Act, and interception carried out solely for the maintenance of the Internet or other communications system. It also contains an exception for interception if the person who does it:

does so pursuant to, and in accordance with the terms of, any authority conferred on him or her by or under Part 11A [of the Crimes Act]; or the New Zealand Security Intelligence Service Act 1969; or the Government Communications Security Bureau Act 2003; or the Misuse of Drugs Amendment Act 1978; or the International Terrorism (Emergency Powers) Act 1987.

[Its form differs slightly now, following the Search and Surveillance Act replacing the powers of interception contained in the Crimes Act and the Misuse of Drugs Amendment Act.]

Importantly, should a police officer or GCSB agent(?) intercepting a private communication act other than in accordance with their legal authority as provided by those acts, this defence does not apply.

Dr Norman compared this case to the recording of Prime Minister John Key's "teatape" conversation with ACT Party leader John Banks. Both involved allegations of breaches of section 216B of the Crimes Act, and the teatape was something that the police took very seriously, including raiding a number of news organisations with search warrants.

But to see whether the analogy holds, we should assess what the offence mean. An offence is committed if someone:

intentionally intercepts any private communication by means of an interception device.

This contains a number of distinct elements, each of which must be proved:

• there must be an interception of a communication
• the communication intercepted must be a private communication
• that interception must be by means of an interception device
• the whole thing must be intentional

Missing any of these things, won't necessarily make an action legal (it might be a breach of privacy, for example), but it will mean it is not a breach of section 216B and therefore probably isn't criminal.

Was there an interception of a communication?

Intercept is defined in section 216A of the Crimes Act:

intercept in relation to a private communication, includes hear, listen to, record, monitor, acquire, or receive the communication either—

(a) while it is taking place; or

(b) while it is in transit

We do not know exactly what happened. For example, had the involvement of the GCSB been limited to confirming that the mobile phones of Kim Dotcom and his colleagues were all using a particular cell tower, that would not be enough.

But we've been told enough to know that the involvement of the GCSB was not limited to that. Did someone within the GCSB intercept a communication? In its memorandum to the Court, the Crown advised that:

GCSB acquired communications involving the persons subject to arrest and forwarded any of those communications relevant to location to OFCANZ.

And it also refers to the actions of the GCSB as "interception operations".

And in his letter to Paul Neazor, the Inspector-General of Security and Intelligence, John Key states:

the GCSB has discovered that it acted unlawfully in intercepting the communications of certain individuals...

Looks like this element is met.

Was that communication a private communication?

Private communication is also defined in section 216A of the Crimes Act:

private communication—

(a) means a communication (whether in oral or written form or otherwise) made under circumstances that may reasonably be taken to indicate that any party to the communication desires it to be confined to the parties to the communication; but

(b) does not include such a communication occurring in circumstances in which any party ought reasonably to expect that the communication may be intercepted by some other person not having the express or implied consent of any party to do so.

Most people don't don't want people listening in on their telephone calls, reading text messages or emails, or using long-range listening devices to overhear their in person conversations. No details have been announced about what communications were acquired, but unless the information came from reading Dotcom's Facebook wall, I can't conceive of the communications not being private.

Was an interception device used?

Again we're not told what was used, except that it did not go so far as "installing or connecting interception devices". This was noted, because the GCSB only requires a warrant (from the Prime Minister) in circumstances involving "physically connect[ing] an interception device to any part of a network, or install[ing] an interception device in a place for the purpose of intercepting communications that occur in the place." Other uses of interception devices (for example, that pick up conversations at a distance, or which retrieve information from the airwaves don't need warrants, but may nonetheless involve interception devices.

Again, the term is defined in section 216A:

interception device—

(a) means any electronic, mechanical, electromagnetic, optical, or electro-optical instrument, apparatus, equipment, or other device that is used or is capable of being used to intercept a private communication; but

(b) does not include—

(i) a hearing aid or similar device used to correct subnormal hearing of the user to no better than normal hearing; or

(ii) a device exempted from the provisions of this Part by the Governor-General by Order in Council, either generally or in such places or circumstances or subject to such other conditions as may be specified in the order

No additional devices appear to have been exempted, and this definition is pretty broad. Unless the GCSB were using ear trumpets, it looks like this is met as well.

Was it intentional?

Unlike offences around computer "hacking" this offence doesn't require the person alleged to have done it to know that their interception was unauthorised. So this element seems pretty clear cut too. The interception wasn't accidental, and those in the GCSB must have known that their actions would intercept private conversations.

What does this mean?

Four elements to the offence, and based on the information we know, four ticks. It seems highly likely, even with the limited information we currently have, that a criminal offence has been committed.

And how does this compare to the teapot interception?

There are superficial similarities, but the differences are stark. It was never clear that the teatape interception was intentional, nor that the conversation was a private communication.

In comparison, this one is open and shut.

The Prime Minister's suggestion that no further inquiry is needed as "at the end of the day there's a serious issue here and we addressed that issue yesterday and I think most New Zealanders would see that I am very unhappy about the way my ministry has performed" is an intriguing one. The Prime Minister's unhappiness wasn't enough to stave off a police investigation, but was its cause.

The report of the Inspector-General no more removes the need for consideration of criminal action than a Coroner's report declaring someone to have been responsible for a death means criminal charges are unnecessary. 

Someone in the GCSB, and perhaps others in the police, has committed a crime. They may not have known they were committing an offence - but as anyone who has gotten a ticket for travelling 90km/h in an area they mistakenly thought had a speed limit of 100km/h knows - that's not much of a defence.

In many situations, Parliament allows that an honest mistake, sometimes even one made carelessly, or recklessly, isn't criminal. In respect of other offending, it effectively places an obligation on people to be sure, and holds them criminally responsible if they get it wrong.

Andrew Mears' imprisonment for manslaughter in the tragic death of Rosemary Ives is a more serious example of this legal principle in action. The law places an obligation on hunters to be certain what they are aiming at, and it places an obligation on those intercepting communications with interception devices, to be certain of their authority to do so.

I await the results of the police investigation with interest.