Police misinterpreted the law | The Jackal

30 Aug 2013

Police misinterpreted the law

Yesterday, the NZ Herald reported:

Police today released their decision following an investigation into Dr Norman's complaint into the Government Communications Security Bureau's (GCSB) illegal interception of the communications of New Zealanders.

The police found that Kim Dotcom and his associate Bram van der Kolk were illegally spied on, but as GCSB staff did not act with criminal intent, no one would be held accountable.

Read the letter sent by police to Dr Norman here

Assistant Commissioner Mike Rusbatch's letter to Dr Russel Norman states:

Although the inquiry focussed on issues specifically related to the offence against section 216B of the Crimes Act 1961, it also considered offences in a wider context including section 216C and 107 of the Crimes Act 1961, with reference to the GCSB Act 2003.

Section 216B of the Crimes Act 1961 (PDF) states:

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.

Mike Rusbatch
Subsection (2)(b)(iiia) states that a person is not liable if their intercepting of a private communication does so pursuant to, and in accordance with the terms of, any authority conferred by or under the Government Communications Security Bureau Act 2003 (PDF).

That's the bit the Police think lets the GCSB off the hook. They have in fact misinterpreted the law. The GCSB Act 2003 did not confer any authority to the GCSB to illegally spy on New Zealand citizens. That's why the government is currently changing the law. However these changes should not apply to a criminal act that occurred prior to those amendments.

It is for the courts to decide whether the GCSB intended to illegally spy on Kim Dotcom and his associate Bram van der Kolk. The Crimes Act 1961 specifically states that illegal spying is an offence and the GCSB Act 2003 did not confer authority to the GCSB to breach the law.

When the Police are intentionally misinterpreting the law in order to not prosecute the GCSB, people need to start asking some serious questions about Police corruption. Because by all intents and purposes that's exactly what this looks like.