Legal Beagle by Graeme Edgeler

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Legal Beagle: Dotcom spying: Crown criminal liability?

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  • Graeme Edgeler,

    This morning's New Zealand Herald has an article on this in which I am quoted about the likelihood of charges. I agree they are unlikely, but do consider there should be a full investigation.

    Wellington, New Zealand • Since Nov 2006 • 3205 posts Report Reply

  • Rich of Observationz, in reply to Graeme Edgeler,

    I saw your twitter discussion over the weekend, and what occurred to me was how on earth any meaningful sanction could be applied if a crown body was found criminally liable?

    The normal sanction for a company found criminally liable is a fine. But all fine income belongs to the crown, so essentially it would be a rather symbolic transfer of money (the body would presumably claim it needs its budget to keep providing whatever it does, and indeed to prevent the transgression recurring).

    Reparations, maybe?

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

  • Graeme Edgeler, in reply to Rich of Observationz,

    (the body would presumably claim it needs its budget to keep providing whatever it does, and indeed to prevent the transgression recurring)

    I'm not sure that follows. Crown Organisations don't usually get top-up funds when they are successfully sued, I don't see that fines would be fundamentally different.

    Wellington, New Zealand • Since Nov 2006 • 3205 posts Report Reply

  • Sacha,

    Do any state sector laws position the agency's head as being liable? I'd expect the boss to be sued, not the janitor.

    Ak • Since May 2008 • 19706 posts Report Reply

  • Kyle Matthews,

    This morning’s New Zealand Herald has an article on this in which I am quoted about the likelihood of charges.

    This statement attributed to Meurant really is dripping with irony, given his role with the Red Squad.

    However, that would not happen, he said. A long-standing police culture of avoiding court scrutiny over serious matters had now become entrenched in other agencies, including the GCSB.

    Since Nov 2006 • 6243 posts Report Reply

  • TracyMac, in reply to Kyle Matthews,

    I don't know about the linked blog as a whole, but it quotes the an article by Meurant about his change of heart about some areas of his life, including police culture and actions. http://www.police-corruption.com/nz-warned-regarding-anti-terror-legislation/

    In short, people can reflect, and change their views.

    Canberra, West Island • Since Nov 2006 • 701 posts Report Reply

  • Graeme Edgeler, in reply to Sacha,

    Do any state sector laws position the agency’s head as being liable?

    The laws about suing the Attorney-General seem designed that way, but criminal liability falls on those who commit crimes, whatever their pay grade.

    Wellington, New Zealand • Since Nov 2006 • 3205 posts Report Reply

  • Rich of Observationz,

    In a democracy, shouldn't the people who voted for the governing party be responsible? ;-) #votecrime

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

  • andin,

    such unfairness can be avoided.

    Sheez! Ross Meurant

    When I speak about a police culture, I speak about the environment I have described. It is introverted, self protecting and lacking objectivity. It is a culture which looks after itself and has a certain view of how life should proceed. It is reinforced by drinking and bonding sessions. The “them and us” ethos becomes tangible. What is more, the culture is working class conservative in its origins. Bigoted and intolerant. Few of its officer corps are university graduates and even fewer hail from private schools. There is no network which pervades the upper echelons of society. The police are insular.

    If someone has tattoos or hair too long or dresses the “wrong” way or does not have “acceptable” politics, then they are one of “them” and not to be trusted. Conversely liberals are a menace to stability and are even more dangerous than unemployed Maori.

    So it will take a while then.....en masse... that reflecting and changing thing.
    Wonder how many unacceptable types there are in this vid. Still cant stop songs about it.. not yet anyway, not here... yet

    raglan • Since Mar 2007 • 1890 posts Report Reply

  • Bart Janssen,

    Does the Board or Chief Executive of a Crown Organisation have to be in on the offending?

    For our Crown Organisation the liability apparently rests with the CEO. It's the reason I don't mind his salary being so high. I'm pretty sure our directors don't share responsibilty. But the CRI act is a little bit different so we may have special rules that apply to us and not to the GCSB.

    Essentially if someone at the bench stuffs up (or in the legal team) and creates a liability then ultimately it is the CEO who could end up in court. Of course it's a bit more complicated and you can bet the poor schmuck at the bench will lose his/her job. The out clause is if the CEO has ensured that clear instructions were given and the employee breached those instructions then I think he can dodge liability.

    How that plays out for the GCSB I don't know. My guess is that the director will accept the blame. But there is a serious question about the oversight of the minister in charge, it may not be John Key's fault directly but he must accept some responsibility.

    Auckland • Since Nov 2006 • 4458 posts Report Reply

  • Rich of Observationz,

    Was this activity - sending a video of the raid to the US in realtime legal?

    Privacy Act? Reasonable use of public funds? Police code of conduct re. releasing information?

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

  • Matthew Poole, in reply to Rich of Observationz,

    Was this activity - sending a video of the raid to the US in realtime legal?

    Privacy Act? Reasonable use of public funds? Police code of conduct re. releasing information?

    Why would it have been a breach of the Privacy Act? It's not a public release, it's internal documentation of the operation and that's quite proper. It's either legal or it's not, there's no change just because it got shared with the people who kicked off the operation.

    If they were sending the footage back to HQ anyway, which I'm sure they would've, there's no extra cost to send it overseas. All the links and technology have other purposes, so it's not like this would have been created just for the raid.

    As for the CoC, see first point. It's not a general release of information, it's information-sharing to a narrow group of interested organisations about a joint operation.

    Auckland • Since Mar 2007 • 4097 posts Report Reply

  • Rich of Observationz, in reply to Matthew Poole,

    Because the Americans are subject to no form of oversight or restraint as to how they use or release this information.

    I'd expect that any such release would happen only after the video had been viewed and discussed by responsible management.

    Apart from anything else, streaming data in realtime serves no purpose beyond demonstrating the size of the various cops and spies genitalia.

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

  • martinb,

    It's the bloggers who rip off the mainstream media to pad out their blogs that I can't stand...!!

    Auckland • Since Jul 2010 • 206 posts Report Reply

  • Matthew Poole, in reply to Rich of Observationz,

    Because the Americans are subject to no form of oversight or restraint as to how they use or release this information.

    Which still doesn't make it a Privacy Act breach. It'll be called sharing information between law enforcement agencies, which is entirely proper. The Act is very, very unclear about sharing of information between law enforcement agencies, but is quite explicit about NZ adhering to international agreements such as the ones about law enforcement cooperation.
    Also, things like this will be disseminated as classified material which then imparts its own protections, and that protection will be observed, because respect for information classification is a nicety that has very real significance to intelligence-sharing relationships in other areas.

    Apart from anything else, streaming data in realtime serves no purpose beyond demonstrating the size of the various cops and spies genitalia.

    Not at all inclined to disagree. The Scoop story makes it sound like a lot of the reason for doing it was for the purpose of proving that our cops can play in the bigs, and that goes with the whole combined operations raid using helicopters and the STG, too.

    Auckland • Since Mar 2007 • 4097 posts Report Reply

  • May,

    Graeme, it looks as though the Police may have raised doubts about the legality of GCSB's surveillance of Kim Dotcom to the GCSB at a 'backslapping' event in February.

    The GCSB's legal department reviewed the case and concluded that their actions were legitimate.

    It turns out that the GCSB's legal department is crap, but doesn't the referral for advice and confirmation imply that there was no criminal intent?


    http://www.stuff.co.nz/national/politics/7745445/Police-had-queried-if-spying-was-illegal

    Since Oct 2012 • 1 posts Report Reply

  • Matthew Smith,

    Graeme, wouldn't the spooks be protected from criminal prosecution by s86 of the State Sector Act, so long as they genuinely believed what they were doing was legal?

    No ...employee shall be personally liable for ... any liability for any act... done in good faith in pursuance or intended pursuance of the functions or powers of the department or of the chief executive.

    Wellington • Since Jan 2008 • 11 posts Report Reply

  • Graeme Edgeler, in reply to Matthew Smith,

    Graeme, wouldn’t the spooks be protected from criminal prosecution by s86 of the State Sector Act, so long as they genuinely believed what they were doing was legal?

    I hadn't considered that, but I'm pretty sure it's limited to civil liability.

    That said, I'd happily argue it if I was their defence lawyer!

    Wellington, New Zealand • Since Nov 2006 • 3205 posts Report Reply

  • Matthew Smith, in reply to Graeme Edgeler,

    Hmmmmm. And I wonder whether one can be acting in good faith if one actually commits a crime. The precedent on that point must be interesting.

    Wellington • Since Jan 2008 • 11 posts Report Reply

  • Kyle Matthews,

    For our Crown Organisation the liability apparently rests with the CEO. It’s the reason I don’t mind his salary being so high.

    Not personally liable. CEOs of Crown Organisations get sued all the time - every time a prisoner contests a decision of Corrections it's "Bloggs v CEO of Department of Corrections". But the CEO wouldn't be in court for any of them, and if they win, the CEO is only carrying the can politically.

    Since Nov 2006 • 6243 posts Report Reply

  • Hilary Stace,

    Herald reports that police will have an investigation.

    Wgtn • Since Jun 2008 • 3214 posts Report Reply

  • Russell Brown,

    Here's the police statement:

    ----

    Police to investigate complaint by Dr Russel Norman re GCSB
    October 2, 2012, 11:01 am

    Dr Russel Norman has laid a complaint under section 216(B) of the Crimes Act alleging illegality of work undertaken by the Government Communications Bureau.

    The Police Commissioner Peter Marshall has asked Deputy Commissioner Mike Bush to appoint a senior police investigator to assess and investigate the complaint received from Dr Norman last week.

    The Commissioner has further engaged the services of Kristy McDonald QC to provide an overview of this assessment and resultant investigation. This will lead to Ms McDonald's review of any recommendations that may arise. She will then make her own recommendations to the Commissioner's office.

    "Ms McDonald is a senior counsel with more than 30 years experience in criminal law, she is a highly regarded Queens Counsel who has been engaged in major prosecutions, so she will provide excellent oversight of the Police work," Commissioner Marshall said.

    "We can't put a timeframe on how long this assessment and investigation will take but it will be done as a matter of some urgency," Commissioner Marshall said.

    Auckland • Since Nov 2006 • 22825 posts Report Reply

  • andin, in reply to Russell Brown,

    But yet again Johnnygoldentonsils cant help himself. Engaging in a pissing contest while thinking he is possessed of an omnipotence (apparently none of us mere plebs could ever have) into the motivations of other beings. It is just a "political stunt".
    Accountability be damned

    raglan • Since Mar 2007 • 1890 posts Report Reply

  • mark taslov, in reply to andin,

    I’m in awe of those goldentonsils, today weighing in on the Tyson issue stating

    Mike Tyson was granted a visa to New Zealand on a “line call” that his rape conviction was 20 years ago…. A “fairly liberal” view was taken if the crime was a long time ago and there had been no further offending"

    Tyson’s being sentencing to a year’s imprisonment, fined $5,000, and ordered to serve two years probation and perform 200 hours of community service for assaulting two motorists after a traffic accident on August 31, 1998 was Further offending, but who’s counting anymore.

    Conjecture: the PM may know what a slide rule is for.

    Te Ika-a-Māui • Since Mar 2008 • 2281 posts Report Reply

  • DexterX, in reply to Rich of Observationz,

    I'm with you on this - it is disturbing.

    Auckland • Since Nov 2006 • 1224 posts Report Reply

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