Legal Beagle by Graeme Edgeler

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).

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.

John Key, the Prime Minister, has written the Inspector-General of Intelligence and Security, Hon. Paul Neazor (a retired Justice of the High Court, and former Solicitor-General) to ask him to investigate some unlawful actions undertaken by the Government Communications Security Bureau (the GCSB).

The existence of the activity was confirmed following the Crown Law Office filing in a memorandum in the High Court challenge that New Zealand permanent resident Kim Dotcom has filed in respect of the search of his Coatesville property.

When allegations of illegal behaviour are made, it is usual for lawyers like me to pontificate on whether laws have been broken, and by whom. But we appear to have a different situation here. The conclusion of illegality appears to be agreed by everyone with any of the facts. Ian Fletcher, the Director of the GCSB, the PM, Crown Law and others seem to be in general agreement - someone in the GCSB did something illegal. Who and what is not publicly clear, but may become moreso following the investigation.

There are not a great many details about what exactly the GCSB were doing. At the media conference at which the Prime Minister announced this, he would not even confirm that any interception had occurred, leaving open the possibility that some illegal action short of illegal interceptions had taken place. (Although subsequent media reports carrying statements by one of Kim Dotcom's lawyers appear to indicate the the Crown memorandum filed in the High Court accepts that there were unlawful interceptions.)

The question of exactly how these any interception might be illegal is dealt with by two principle laws: the Government Communication Security Beareau Act 2003, and the Crimes Act 1961.

The role and powers of the GCSB are admirably clear from its statute. Its roles involve obtaining foreign intelligence, and helping to protect the Government's communications and information systems, including from electronic surveillance.

The GCSB is prohibited in all circumstances from targetting domestic communications.

The Bureau has powers to intercept communications via:

• interception warrants (e.g. to bug telephones) granted by the GCSB Minister (who is always the PM); or
• computer access authorisations granted by the GCSB Minister

They also have a general power to do these things without warrant if that interception does not involve:

• physically connecting an interception device to a network
• installing an interception device to intercept communications taking place there (e.g. bugging a house)
• or if the computer access is limited to access to 1 or more communication links between computers or to remote terminals.

For example, the GCSB probably do not need a warrant to see what someone is sending over an unsecured wireless connection (or secured, for that matter, if they can break it). In this respect, they are different from the Police, who would.

Again, I make clear that interceptions related to domestic communications (which include those of New Zealand citizens and permanent residents), cannot be intercepted by the GCSB for any purpose.

At yesterday's media conference (thanks, Scoop!), John Key pointed out that his permission was needed to intercept the communications of New Zealand Citizens. This is correct. Key is also the Minister in charge of the Security Intelligence Service (the SIS), which operates under different legislation - the New Zealand Security Intelligence Service Act 1969. That Act does permit surveillance of New Zealand citizens and permanent residents. It sets up a similar process by which the Minister (again always the PM) can issue intelligence warrants to allow the SIS to surveil.

As an additional precaution, where the SIS seeks to conduct surveillance of a New Zealand citizen or permanent resident, not only is the permission of the Minister needed, but the permission of the Commissioner of Security Warrants (another retired Justice of the High Court, Sir John Jeffries). The SIS can obtain intelligence warrants in respect of other people with the agreement of the Prime Minister alone.

Because the GCSB cannot in any circumstance lawfully intercept the communications of New Zealanders, the additional precaution of the Commissioner of Security Warrants is not in place for the GCSB.

This much is largely indisputable. I do not know what the members of the GCSB have actually done, but if it involved intercepting the communications of the Mr Dotcom, it will not have been permitted. This is the case whether it was the type of interception that would have required a warrant signed by the PM had it been in respect of non-New Zealanders, or not.

The other aspect of the case may be something the Inspector-General will look into or it may instead be for the Police to look into, although I'm not really sure how that would work. That is the question of whether any interception was criminal. What appears to have been conceded is that what happened was that the GCSB (or someone in it) did something that they were not permitted by the GCSB law to do. But just because something is not authorised, does not mean it is criminal.

The Government Communications Security Bureau Act does not make it an offence for someone in the GCSB to intercept the communications of a New Zealand permanent resident, like Kim Dotcom. That is left to the ordinary criminal law, and the criminal law standard of proof is required.

Numerous comments on the so-called teapot tapes have gone to some lengths to explain the law around the illegal interception of private communications. Without know what is even alleged, let alone what has happened, or can be proved beyond reasonable doubt, it is impossible to say what will happen, but the questions of law are likely to be relatively simple.

Section 216B(1) of the Crimes Act provides that "... 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." Section 216B(2) provides a defence for those acting in accordance with specified lawful powers, including powers under the GCSB Act, the NZSIS Act and others.

The factual scenario surrounding the conversation between John Banks and John Key that raised so many thorny questions, seems unlikely to arise here. It was not clear whether Bradley Ambrose intended to record the conversation; nor was it clear whether the conversation was a private communication. I am having some difficulty constructing a scenario in which either of these questions is likely to arise here.

It will be slightly more complicated if what is alleged here involves access to a computer system, rather than interception of a communication. Section 252 of the Crimes Act provides "Every one is liable to imprisonment for a term not exceeding 2 years who intentionally accesses, directly or indirectly, any computer system without authorisation, knowing that he or she is not authorised to access that computer system, or being reckless as to whether or not he or she is authorised to access that computer system." I can quite easily construct scenarios in which the requirement for knowledge or recklessness as to the lack of authorisation may be difficult to establish beyond reasonable doubt.

Feel free to speculation wildly. But, you know, don't be a dick :-)

The Electoral Commission's MMP Proposal Paper is here.

It is taking submissions until 5:00pm today. Mine follows.

Submission of Graeme Edgeler

On the Electoral Commission’s MMP Proposal Paper

1. Thank you for the opportunity to forward my views on the Electoral Commission’s proposals for the MMP voting system. I recognise that the Commission is unlikely to depart substantially from its initial proposals, so do not pursue my earlier views. Instead, I ask the Commission to consider proposing a lower threshold within the range it considered would be acceptable in the New Zealand electoral environment.

A 3% List Seat Threshold

2. In its Proposal Paper, the Commission suggests adopting a list seat threshold of 4%, and removing the one seat threshold. This is a move in the right direction, although it is notable that the Commission proposes changing our voting system to one that is less proportional than that the Royal Commission considered was appropriate for New Zealand in 1986.

3. The Commission considered a range of potential list seat thresholds. It considered 5% too high, 4% and 3% as being acceptable, and less than 3% as being too low.

4. The Commission has made a clear argument for having a threshold in the range of 3%-4%. The MMP Proposal Paper gives a number of reasons why 5% is considered too high, and lists a number of concerns with having a threshold that was too low, but as between 3% and 4%, both of which the Commission thought acceptable, few reasons are offered:

• The MMP Proposal Paper says a threshold for earning list seats of 4% would limit the proliferation of small parties, but it also notes that there has only been one instance of a party receiving between 3% and 4% across all our MMP elections.

• The MMP Proposal Paper tentatively suggests that 5 MPs seems reasonable as a number of MPs a party might require to operate effectively in Parliament.

5. Having determined that thresholds of both 3% and 4% are within the acceptable range, I encourage the Commission to look anew at the reasons for choosing one over the other.

6. For myself, I do not see that a 3% threshold would result in the proliferation of small parties the Commission seeks to avoid, and I consider that a party of 4 MPs will be able to operate effectively in the House (and certainly will be more effective representatives of their voters than the zero MPs those voters might be entitled under a higher threshold).

7. I consider that as between 3% and 4%, the small advantages in the areas that the Commission argues are important (avoiding proliferation, and increasing party effectiveness), are outweighed by the prospect that the voices of a large number of voters may be ignored in the election result. One additional party in Parliament (which is all there is ever likely to be as between list seat thresholds of 3% and 4%), even if that party has only 4 MPs, will increase the effectiveness of Parliament as a whole, in the terms that the Royal Commission envisaged (particularly in holding the government to account on issues that might not be important to larger parties). There seems to be little, if any, chance of even a small decrease in stability. Indeed, an additional party will often provide a major party an alternative for seeking support in the passage of legislation which will decrease the prospect of any minor party exercising disproportionate power in the House.The Commission may have additional reasons for favouring 4% over 3%. If so, I encourage it to list them, as this will enable a fuller debate of the options once the final proposals reach Parliament.

Other Matters

8. The MMP Proposal Paper only makes recommendations on the issues that Parliament specifically directed it to consider, and does not include any recommendations on “other matters”.

9. I encourage the Commission to consider making supplementary recommendations on other matters, including some of the technical matters I raise in my original submission.

10. Many of these matters are intended to address concerns that are unlikely to occur, but as the 2011 Waitakere electorate race showed (with the possibility that an election petition could have distorted the proportionality of Parliament), we should not confuse the unlikely with the impossible. Some of the unlikely scenarios, were they ever to occur, may do real damage to public confidence in the MMP voting system. If we are going to be amending the detail of our voting system, it may be better to tidy such things up now.

Conclusion

11. I look forward to seeing the Commission’s final recommendations, and engaging with any legislative processes that may follow.

The House of Representatives has just voted to retain 18 as the age at which people can lawfully purchase alcoholic beverages in New Zealand.

Except maybe it hasn't.

The ordinary passage of a bill into law is relatively simple. A bill is introduced, and the House holds a debate on the first reading of the bill. If the House gives a bill a first "reading", it then sends it to a select committee.

The select committee lets people give their views, and can suggest amendments to the bill in it's report on the Bill. After select committee consideration, the House holds a debate on whether to "read" the bill a second time. If it does, any amendments proposed unanimously by the select committee are adopted as part of the bill, and a vote is held on whether to adopt any amendments the select committee proposed by majority (this invariably passes). These changes then become part of the bill that the House sitting as a committee (with all members permitted to take part) discusses.

The Committee of the Whole debates the bill (in the form it emerges after the second reading debate has agreed to adopt changes proposed by the select committee) part by part, or sometimes, clause by clause. It can look at the fine detail. MPs can move amendments proposing new bits be added, to make changes to other bits, or to delete things. The can argue over whether a particular comma should be where it is, or whether an "and" should be an "or". I have seen amendments which didn't change a word, except to make it in bold-faced type. Importantly, MPs are proposing to change the bill from the form it left select committee/passed second reading into something different.

This is the stage the Alcohol Reform Bill is at. The Alcohol Reform Bill that left the select committee, and passed its second reading, had a split age for purchasing alcohol: 18 for on-licences, but 20 for off-licences. Auckland Central MP Nikki Kaye proposed an amendment to change this to 18 for both on-licences and off-licences, and Hamilton West MP Tim Macindoe proposed an amendment to change it to 20 for both.

But these amendments weren't what was being debated, or voted on today. I explained the intriguing process the House would use for this afternoon's debate in my piece this morning. Yesterday, the House agreed to dispense with the ordinary debating structure, and instead:

"for the Committee stage on part two of the Alcohol Reform Bill to take the form of an in principle debate on the issue of age for sale and purchase for alcohol on licenced premises and the issue to be decided ... by way of an election from the three options: 18 years, 20 years, and a split age; and that if this election does not produce a majority decision from the votes cast, for the option receiving the fewest votes to be eliminated and the issue to be decided between the remaining two options by personal vote without any debate, and for the Committee to report progress at the conclusion of the voting, following which any amendments to the bill necessary to implement the Committee's decision will be drafted by Parliamentary Counsel."

Which seems conclusive ("the issue to be decided..."), but may not be.

The simple point is that the Alcohol Reform Bill is still in the form it left the select committee. The House has voted in favour of changing the bill from the split age it currently provides, but it didn't adopt Nikki Kaye's amendments, and hasn't decided what the words to replace those currently requiring a split vote will actually be. Unless the House has given Parliamentary Counsel the power to actually amend the bill by themselves (and if it wanted to do that I'd expect much clearer language), it will still need to agree to those words in the future.

The House can easily do this. It can do it by everyone agreeing, or by holding a voice vote, but in either case, all it takes is one MP to say "no, I want another full vote." That vote would be between what the bill says now, and the amendments that are proposed by Parliamentary Counsel. And when the option that voted for today had 50 in favour and 71 against, who is to say what will result?

I do not expect this to happen. I anticipate that MPs, when discussing how to conduct today's debate, also discussed how to incorporate the proposal it adopted, and agreed informally that it would be done by leave, or on a voice vote only, when the consideration of this bill by the Committee of the Whole continues. They made a deal, and I reckon they'll stick with it. I could probably just ask Trevor Mallard over Twitter, but the idea that they might not have agreed to this, or might not have appreciated that there would need to be another vote formally adopting the amendment (which hasn't even been drafted yet) is kinda funny. And all it takes is one MP :-)

[Update: Hutt South MP Trevor Mallard advises by tweet that the decision of the House will be adopted into the bill by "government SoP. might not be needed - other than to drop clauses. The deal was whatever decided would go in no debate."]

At 5:30 this evening, the House of Representatives will hold an "election" on the alcohol purchase age.

This is not the way it usually does things. I suspect that it is not the way it has ever done things.

The House historically decides between two options. The law, or a provision in a bill, is one way, and someone proposes changing it: the House decides between supporting that proposal to change it, or not supporting it. It just goes through a series of simple binary choices: those who are in favour will say 'aye'; those opposed will say 'no'.

Not so on this evening's vote on the alcohol purchase age. Instead, MPs will hold an election between three options:

• setting the alcohol purchase age at 18 for both on-licences and off-licences
• setting the alcohol purchase age at 20 for both on-licences and off-licences
• setting the alcohol purchase age at 18 for on-licences but 20 for off-licences (a split age)

If no option secures a majority of votes cast at this election, a personal vote will be held between the two highest scoring options.

Simple, right? This will mean whatever option is chosen will be supported by a majority of MPs? Well, no, says the electoral system nerd in me is screaming "but what about the Condorcet criterion?" Because the system they have agreed to adopt, may mean that the option that would win majority support in a vote between each of the other two, may be discarded.

I think it reasonable to assume that most (although not necessarily all) MPs who favour an alcohol purchasing age of 20, will think that a split age is preferable to setting it at 18.

And probably also reasonable to assume that the MPs who favour setting the age at 18, will think a split age is preferable to setting it at 20.

And looking at this, you might think that, if the no one option has a majority, then a consensus could form around a split age, as the lesser of two evils for MPs supporting a straight 18 as the alcohol purchasing age, and MPs supporting a straight 20.

But that might not be the result. Imagine the following made up scenario:

• 50 MPs favour 18
• 40 MPs favour 20
• 31 MPs favour a split age

Under the procedure the House has adopted, split age drops out after the first vote and all MPs get a second vote between the option of setting the age at 18 or 20, with the 31 MPs who supported split age choosing between the other two options, and putting one or other over the top.

But look at what these numbers would actually mean (adopting my assumptions above, about supporters of 18 and 20 preferring compromise to defeat):

• By a vote of 71 to 50, MPs would prefer a split age over an age of 18
• By a vote of 81 to 40, MPs would prefer a split age over an age of 20

And yet what we would get would be an age of 18 or 20, even though a parliamentary majority would oppose such a law. As much as I personally favour "keeping it 18", if none of the three options has a majority on its own, what results will be a compromise, and it should be the compromise which actually has majority support.

I quite like one aspect of the procedure the House has adopted: the debate on the alcohol purchasing age is being conducted as an "in principle debate", and after the votes occur, the debate on the rest of the bill (it's quite extensive) will be deferred and any amendments necessary to implement the decision on the alcohol purchase age will be drafted by the Parliamentary Counsel Office. This should mean that the drafting of the law will actually reflect the option the House chooses. Alcohol bills, as a result of past conscience votes, have sometimes come out the the legislative process worse for wear. More than once, the law has needed swift amendment, when provisions added during the Committee Stage have added problems not able to be addressed in the heat of debate. Hopefully, this process means similar problems can be avoided.

While Leader of the House Hon. Gerry Brownlee did give a clear explanation of the form for the "election", the exact process by which the first vote will take place hasn't been publicly stated - there are, after all, only two doors for MPs to walk through when voting. My preference would be for what the US Senate would call a "roll-call" vote, where MPs are called upon to state their preference in the House. This is the process that Standing Order 19 provides for the election of Speaker if there are more than two nominees (the same process whereby a majority is needed, and if none achieved, the lowest polling option drops out, is adopted there). Although it appears that this public process may not be adopted: in response to a twitter query from me about the holding of a roll-call vote, David Farrar replied "No, voting will be in the noes lobby".

Ref: Gerry Brownlee's statement in the House about the process to be adopted for the vote: