Gordon Campbell on the Police refusal to prosecute the GCSB

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The last gift from David Shearer to the National Party was his resignation, which has happily diverted the media into weeks of speculation about his successor. In the process, this has taken the heat off Prime Minister John Key over the GCSB. Yesterday though, the rogue behaviour of the GCSB returned to haunt National, as the Police declined to act on a complaint laid by Greens Co-Leader Russel Norman. Ultimately, the Police have refused to press charges against anyone at the agency over their unlawful monitoring of Kim Dotcom and of the 85 New Zealanders whose illegal surveillance was cited in the Kitteridge report.

It has now been conceded on every side of this debate that the GCSB systematically broke the law, time and again. You would think that the political debate over the GCSB might have heightened the need for effective oversight of the SIS and GCSB – given that reliable oversight is the reassurance that the public expects in return for the extraordinary powers that we bestow on our security services. You might also think that a prosecution would have been a useful lesson for the GCSB to be ever mindful of the boundaries that the law imposes on their activities. A prosecution might also have gone some way to restoring public confidence that the Key government truly believes in the principle that no-one is above the law – and that the agencies entrusted with the power to violate privacy in defence of national security can, and will be held accountable for their lapses. No such luck.

The Police decision could hardly be less reassuring. Their rationale for declining to prosecute was that the GCSB lacked criminal intent:

Detective Superintendent Peter Read said today that while there was one occasion of illegal activity under the Crimes Act, there was not the element of criminal intent needed to show the GCSB was were criminally liable.

Fascinating. You would have thought that this would be the very last agency that would want to hide behind a defence based on ignorance of the law. For most of us, ignorance of the law is not a defence. Yet for the GCSB, the Police have decided that because the agency honestly thought they were in the clear, they are. Keep that in mind if the GCSB should raid and read your emails in future – because hand on heart, they will say they really thought that they could, honest. The Police did slap the GCSB on the wrist with a bus ticket:

…Police did identify “a number of shortcomings” in the handling of the interception requests, including the GCSB had an incorrect understanding of the Immigration Act 2009 and how it related to the GCSB Act. “GCSB staff also did not follow their own internal processes in actioning the Ofcanz requests.”

O-kay…So, evidently, the GCSB were ignorant of the Immigration Act. Ignorant of such basic stuff as their capacity to put someone with New Zealand residency under surveillance. In addition, they did not follow their own internal rules for this sort of work. But hey, no reason to prosecute anyone….because these little lambs didn’t know what they doing. On that point too, Norman happens to disagree. In his view, the relevant section of the Crimes Act requires only intent, and not criminal intent:

“I’m no lawyer, but it seems to me they intended to make the interception, they did make the interception, it was illegal.”

But surely in reaching this decision not to prosecute, the Police would have availed themselves of the best and most fiercely independent legal advice? Well, not really. It seems the Police relied on an opinion sought from and provided by Kristy McDonald QC. She is the same QC who has been acting on the Crown’s behalf during the Dotcom hearings – and you would think that fact alone should have caused the Police to look elsewhere for advice, given the conflict of interest issues. But there’s more. Here’s how McDonald was described last year in NZ Police publications:

Seventy six new constables will graduate from The Royal New Zealand Police College in Wing 273 on Thursday 26 July. Their wing patron is Kristy McDonald QC…. Kristy is a member of the Crown prosecution panel in Wellington and the Serious Fraud Office prosecution panel. She has prosecuted a number of significant criminal trials and has acted for the Police in a wide range of civil matters including representing Police in the Commission of Inquiry into Police Conduct in 2007.

I’m talking about perception here, not ability. McDonald has been the Crown – and Police – ‘go to’ person whenever trouble rears its head. In terms of public perception, this hardly passes the sniff test of independent advice. Moreover, the Police were actively at work alongside the GCSB on the Dotcom surveillance, and will almost certainly be the GCSB’s main client under its new legislation. How likely was it that they would want to prosecute any of their GCSB pals? Not so much. Surprise surprise, the Police decided not to proceed – readily accepting the ignorance of the law defence, and a legal opinion provided by the same QC who has defended the Police in misconduct hearings in the past.

Frankly, the appearance of these sort of “scratch my back, I’ll scratch yours” relationships is a perfect example of the shonky oversight mechanisms that John Key has been offering all along as re-assurance over both the GCSB Act and its evil twin, the Telecommunications Interception Capability and Security Act. If we need these security agencies at all – surely if terrorists plan or commit criminal acts, shouldn’t the Police be the agency that detects and prosecutes them? – what we need is independent oversight of their activities. Just in case once again, the GCSB doesn’t know (or conveniently happens to forget) what it is allowed to do under the law.