Legal Beagle by Graeme Edgeler

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Legal Beagle: Kim Dotcom: all the fault of the Immigration Act?

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  • Rich of Observationz,

    I thought so at the time Key was claiming this source of confusion:
    http://publicaddress.net/system/cafe/legal-beagle-kim-dotcom-questions-and-answers/?p=271044#post271044

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

  • Graeme Edgeler, in reply to Rich of Observationz,

    I thought so at the time Key was claiming this source of confusion

    Nice work. Now I've even less of an excuse for not looking into it more deeply.

    Wellington, New Zealand • Since Nov 2006 • 3215 posts Report Reply

  • Ian MacKay,

    Vindicated Rich of Observationz. Interesting stuff from you and Graeme to layman's eyes. (I would never make it as a lawyer!)

    Bleheim • Since Nov 2006 • 498 posts Report Reply

  • nzlemming,

    But that still leaves the GCSB operating for over a year without taking cognizance of a law change that affected their operating authority. That's incredibly poor management within the Bureau, and crap supervision from above. At Matthew Poole has been saying, here and there, this is the real issue for NZ's concern, not KDC.

    Waikanae • Since Nov 2006 • 2935 posts Report Reply

  • FletcherB,

    Not relevant to KDC, but may I ask.....

    Australians living permanently in NZ...

    What is their legal residency status?

    They have no visa, no permit, no paperwork at all from any govt department.... just an arrival stamp in their passport.... they can stay for a few days and call it a holiday, or stay for years....

    Presumably this is described where your article has (b) [not relevant] ?

    Cheers...

    West Auckland • Since Nov 2006 • 893 posts Report Reply

  • micky savage,

    Can I check my understanding Graeme?

    Until November 29, 2010 or the date that he arrived in New Zealand and obtained a resident's permit whichever date is earlier the GCSB had power over Dotcom. After the earlier of those dates it did not?

    And dare I be a conspiracy nut but wonder if Kim's broadband difficulties in November were actually caused by wire tapping that at the time was possibly legal?

    Since Oct 2012 • 2 posts Report Reply

  • micky savage, in reply to micky savage,

    Oops I am a year out ...

    There goes that conspiracy theory ...

    Since Oct 2012 • 2 posts Report Reply

  • DexterX, in reply to micky savage,

    Hi Gregg.

    Auckland • Since Nov 2006 • 1224 posts Report Reply

  • DexterX,

    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.

    Key’s choice of language, or the language chosen for him, is interesting - "his activities would not have been protected" - the implication is KDC is up to no good and his activities and the law that protected them are the problem not the illegal surveillance.

    The other part of the problem according to Key is the GCSB – however – if one has regard to Hagar’s Book “Secret Power” and “other research and comments” the culture at the GCSB is that individuals act in accordance with directions, are task focused and work largely in isolation of each other. Ther GCSB bods would likely have been working as directed.

    To lay the problem at the feet of the “public servants” is to a degree disingenuous.
    The Neazor report, as one expects, lacked the emphasis it should; have had.

    With the KDC signal variance/diversion it will be a revelation when the trace results by Telecom/(Gen I )are released and whether the equipment used to do the surveillance was borrowed/loaned and if so from whom?

    Key is setting a new high watermark for dishonesty and incompetence.

    Auckland • Since Nov 2006 • 1224 posts Report Reply

  • Matthew Poole, in reply to DexterX,

    the culture at the GCSB is that individuals act in accordance with directions, are task focused and work largely in isolation of each other.

    Compartmentalisation is a characteristic of spooky organisations, so nothing surprising there, and ELINT is the kind of field where one person can be extraordinarily productive. Being, at least historically, peopled with military types, the culture being compliant is also not surprising.
    Where it falls apart is where there’s little internal oversight and, it would seem, some less-than-spectacular performance by internal legal counsel. I’m still not resiling from my position that GCSB were not wrong to rely on what they were told by OFCANZ about KDC’s residence status, but their legal counsel should have known the applicable law and understood that what he had been granted made him a protected person (assuming OFCANZ told them the correct information). That is, after all, their job. And if there was any confusion they should’ve gone back to OFCANZ to seek clarity. I have no problem with GCSB not making direct enquiries of DIA and instead working through the Police, but I expect them to do more than go through the motions of checking how that information affects them.

    I was listening to an old Radio NZ podcast the other day, and the interviewee was formerly a senior counsel to the US DoJ. One comment he made was that the constitutionally-established oversight roles that the legislature and judiciary have wrt the executive’s agencies are taken seriously, and used seriously. The problem we’re having here, I realised, is that the head of the executive is also the person who has control of the spy agencies’ operations and is the person who chairs the legislature’s oversight committee. That should probably be changed.
    Looking at the Intelligence and Security Committee Act 1996, I note that the Committee is explicitly forbidden to enquire “into any matter that is operationally sensitive, including any matter that relates to intelligence collection and production methods or sources of information”, which effectively castrates any possibility that the Committee could act as a check on the operations of the spy agencies.

    Key is setting a new high watermark for dishonesty and incompetence.

    Well, that's not surprising either. This is, after all, the man who only considers it necessary for ministers of the Crown to act legally, not ethically.

    Auckland • Since Mar 2007 • 4097 posts Report Reply

  • Sacha, in reply to Matthew Poole,

    the man who only considers it necessary for ministers of the Crown to act legally, not ethically.

    Unless they're Richard Worth, in which case some different 'standard' applies..

    Ak • Since May 2008 • 19740 posts Report Reply

  • Ian Dalziel, in reply to DexterX,

    Christchurch • Since Dec 2006 • 7950 posts Report Reply

  • Ian Dalziel, in reply to Matthew Poole,

    That should probably be changed.

    Especially if that person admits that
    they aren't even paying attention....

    Christchurch • Since Dec 2006 • 7950 posts Report Reply

  • DexterX, in reply to Matthew Poole,

    Looking at the Intelligence and Security Committee Act 1996, I note that the Committee is explicitly forbidden to enquire “into any matter that is operationally sensitive, including any matter that relates to intelligence collection and production methods or sources of information”,

    Consider the fruther revelations that will come with ongoing disclosure - The committee may be prevented from investigating matters that are going to be played out in public domain.

    Oh the irony - the committee prevented from looking inside the "glass house".

    Auckland • Since Nov 2006 • 1224 posts Report Reply

  • Graeme Edgeler, in reply to Ian Dalziel,

    but Hager the indefatigable…

    Rhymes with lager :-)

    Wellington, New Zealand • Since Nov 2006 • 3215 posts Report Reply

  • Graeme Edgeler, in reply to Matthew Poole,

    One comment he made was that the constitutionally-established oversight roles that the legislature and judiciary have wrt the executive’s agencies are taken seriously, and used seriously. The problem we’re having here, I realised, is that the head of the executive is also the person who has control of the spy agencies’ operations and is the person who chairs the legislature’s oversight committee. That should probably be changed.
    Looking at the Intelligence and Security Committee Act 1996, I note that the Committee is explicitly forbidden to enquire “into any matter that is operationally sensitive, including any matter that relates to intelligence collection and production methods or sources of information”, which effectively castrates any possibility that the Committee could act as a check on the operations of the spy agencies.

    That was the sort of thing I was thinking about in my call for a Law Commission inquiry in my last post. I considered going into the differences between our style of the government and the US, but the post was long enough already. Its true of much of our Committee structure. It's good for some things, and avoids some things we might want it to avoid, but it doesn't do hard-hitting inquiries in public or private.

    Wellington, New Zealand • Since Nov 2006 • 3215 posts Report Reply

  • DexterX, in reply to Graeme Edgeler,

    So Dot Com should initiate a judicial review on quite a range of matters?

    Auckland • Since Nov 2006 • 1224 posts Report Reply

  • Matthew Poole, in reply to Graeme Edgeler,

    Its true of much of our Committee structure. It’s good for some things, and avoids some things we might want it to avoid, but it doesn’t do hard-hitting inquiries in public or private.

    What I find so discomfiting about this situation is that, unlike pretty much every other executive branch, the spooks have no public face outside recruiting. Even Defence and the Police, the other national security portfolios, have substantial public activity. And some searching found me this debate from 2009, when the current members of the Intelligence and Security Committee were ratified. Of particular note is this, from Russell Norman:

    ...the Intelligence and Security Committee has very few powers to do anything much to make the security services answer questions. For example, if the chief executive officer of a security service declares any information to be sensitive then we cannot ask any further questions about it. That is written in the Act. We do not know what the information is, but if the chief executive officer of any security service says “No, the question you are asking is of a sensitive nature; it is sensitive information.”, then they do not have to answer any questions about it. So it is fundamentally different to the select committees established under the Standing Orders of this House.

    Unlike select committees, the chair of the Intelligence and Security Committee is the Minister responsible for the security services. The way select committees are established in this House is that the chair is always independent—it is not the Minister—so that the chair of the committee, which is meant to be keeping these Government agencies accountable, is at arm’s length from the Minister. What this means is that very few people know what the security services do. It is very difficult for the Intelligence and Security Committee to get to the bottom of what the security services do, because we do not have the powers. It means that the chair of the committee is actually the Minister, so it puts us in a very difficult situation.

    So we've got a Committee that is one-fifth the Minister in charge of the portfolio, one-fifth the Leader of the Opposition, two-fifths the Minister's hand-picked nominees (currently Dunne and Banks), and the remaining fifth a nominee of the Leader of the Opposition (currently Norman). I count three fifths of the Committee as being part of the House majority, and thus not terribly inclined to vote in ways that might displease the governing party. It's legislatively composed to have no independence from the ministerial or operational leader.

    Auckland • Since Mar 2007 • 4097 posts Report Reply

  • mark taslov, in reply to FletcherB,

    If you have, however, arrived to NZ before 29 November 2010, you would not have been granted a resident visa on arrival. This is because prior to that date Australian citizens were exempt from holding visas or permits for NZ, but were still allowed to remain here indefinitely. If you are in this situation, please note that Immigration NZ now ‘deems’ you to hold a residence class visa, as per policy RA4d.

    http://www.dol.govt.nz/immigration/knowledgebase/item/1197

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

  • FletcherB, in reply to mark taslov,

    Mark, cheers... exactly what I was wanting to know...

    West Auckland • Since Nov 2006 • 893 posts Report Reply

  • mark taslov, in reply to FletcherB,

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

  • Kyle Matthews,

    So we’ve got a Committee that is one-fifth the Minister in charge of the portfolio, one-fifth the Leader of the Opposition, two-fifths the Minister’s hand-picked nominees (currently Dunne and Banks), and the remaining fifth a nominee of the Leader of the Opposition (currently Norman). I count three fifths of the Committee as being part of the House majority, and thus not terribly inclined to vote in ways that might displease the governing party. It’s legislatively composed to have no independence from the ministerial or operational leader.

    I don't mind the majority of the committee being from the house majority. Indeed, I'm quite impressed that Key and Goff/Shearer have looked outside their own parties to have cross-party membership.

    But Banks? Can't even take oversight of his own campaign for mayor, let alone oversight of a secret government agency.

    Since Nov 2006 • 6243 posts Report Reply

  • Matthew Poole, in reply to Kyle Matthews,

    I don’t mind the majority of the committee being from the house majority.

    I would mind considerably less if one of them wasn't statutorily required to be the person whose agencies are meant to be kept in check by this Committee. And did I mention that he's also the Chair? The fox guarding the hen house is a rather apt metaphor.

    It also makes sense for Norman, as a co-leader of the third-largest party in the House, to be a member. I suspect that he wouldn't have got a look-in if the Greens were only four or five MPs and Labour had got the rest of the seats the Green Party currently occupies.

    Auckland • Since Mar 2007 • 4097 posts Report Reply

  • Sacha, in reply to Kyle Matthews,

    But Banks? Can't even take oversight of his own campaign for mayor, let alone oversight of a secret government agency.

    He's always been an enthusiastic patsy.

    Ak • Since May 2008 • 19740 posts Report Reply

  • Kyle Matthews,

    I would mind considerably less if one of them wasn’t statutorily required to be the person whose agencies are meant to be kept in check by this Committee. And did I mention that he’s also the Chair? The fox guarding the hen house is a rather apt metaphor.

    Well yes. Though there's a lot more closed ranks element to our political parties than the US for instance, so less likely that a chair is going to stand up and say "man the minister [who is also the PM and holds my political future in his hand] screwed this up bad" than in some other countries.

    Since Nov 2006 • 6243 posts Report Reply

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