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No charges laid over GCSB's illegal spying of Dotcom

Published: 4:08PM Thursday August 29, 2013 Source: ONE News

Police have found that the GCSB broke the law by eavesdropping on Kim Dotcom, but they are not going to prosecute the spy agency for doing it.

Green Party co-leader Russel Norman laid a complaint with police in October last year, claiming the Government Security Communications Bureau (GCSB) had conducted unlawful spying on Mr Dotcom and his associate Bram van der Kolk.

This followed a letter from the Inspector-General of Intelligence and Security to the Prime Minister in September 2012, in which he concluded the actions of GCSB in relation to Mr Dotcom were not lawful.

Police Commissioner Peter Marshall appointed a senior police investigator to assess Dr Norman's complaint and former Crown prosecutor Kristy McDonald to review any recommendations arising from the investigation.

The review was extended to cover surveillance found to have been carried out on 80 other New Zealanders, as revealed in Rebecca Kitteridge's report on the activities of the GCSB, released in April this year.

Today, Detective Superintendent Peter Read told a media conference that in spite of the GCSB committing one breach under the provisions of the Crimes Act, no criminal "intent" by the GCSB could be established.

"While GCSB staff did commit the act prohibited by section 216B of the Crimes Act 1961, they did not have the necessary intent to satisfy the elements of the offence and be considered criminally liable," he said.

"No prosecution could be brought under Section 216C because no disclosures of communications could be established in breach of this section."

ONE News deputy political editor Jessica Mutch said the Prime Minister refused to comment on the review result this afternoon.

Mr Read said that Ms McDonald, working in an independent capacity, supported the police findings.

While there is no criminal liability on behalf of the GCSB, Mr Read said police have identified a number of shortcomings in the handling of the interception requests.

"The investigation concluded that OFCANZ had more accurate and detailed information that should have been provided to the GCSB.

"From a criminal investigation perspective this inquiry has now concluded," Mr Read stated.

Furthermore, police said that it was apparent that the GCSB had an incorrect understanding of the Immigration Act and how it related to the GCSB Act. 

"Police will now consider a number of recommendations made by the investigation team to improve processes between police and the GCSB," Mr Read said today.

'No accountability'

In response to the finding, Dr Norman said that he was disappointed that no-one was held accountable for the illegal breach.

"It's a sad day for the people of New Zealand when Government spies can break the law and not be held to account for it.
"There appear to be different standards for the Government's spies compared to the rest of New Zealanders when it comes to obeying the law," Dr Norman said.

Similarly, Labour's Deputy Leader, Grant Robertson, continues to call for an independent inquiry into the nation's spy agencies.

"When the state acts illegally - particularly when it comes to breaching the privacy of individuals - there should be accountability. 

"This is just further confirmation that under John Key's watch our spy agencies have been left to their own devices without proper monitoring, oversight or accountability," he said.

Mr Dotcom's case prompted the Government to amend the GCSB legislation, and earlier this month the updated version was passed into law.

The law will enable the spy agency to legally support the New Zealand Police, Defence Force and Security Intelligence Service in surveillance operations on citizens and residents.

Despite protests from opposition parties, Prime Minister John Key is adamant that the law will not allow "wholesale spying" on residents.