A police decision not to prosecute over illegal spying on
New Zealanders by the Government Communications Security Bureau
was justified, the Independent Police Conduct Authority says.
Greens co-leader Russel Norman asked police to investigate
following revelations that the Government Communications
Security Bureau (GCSB) had unlawfully intercepted private
communications, including those of internet mogul Kim Dotcom.
He asked police to investigate whether any GCSB officers had
committed a criminal offence, and specifically whether they
had breached section 216B of the Crimes Act 1961.
Seven months later, Dr Norman wrote to the Police
Commissioner asking that his complaint be widened to cover
all cases in the past decade where the GCSB might have
'unlawfully spied' on people.
In the authority's report released today, chairman Sir David
Carruthers said its investigation looked into the police's
reliance on an absence of criminal intent to reach a
decision; the appointment of Kristy McDonald QC by police to
oversee their investigation and a police failure to
investigate an additional 56, potentially unlawful,
interceptions by the GCSB that had been identified in the
report to the Prime Minister by the former Secretary to the
Cabinet Rebecca Kitteridge.
The authority found police were justified in relying upon an
absence of criminal intent to reach their decision not to
prosecute, Sir David said.
"The police decision not to prosecute was based squarely on
an opinion provided by the Solicitor-General.
"Police were quite entitled to rely upon this advice, and
indeed, having received the opinion it would have been
surprising if they had proceeded on any other basis."
The authority also found the engagement of Ms McDonald did
not create any conflict of interest and was justified.
The authority also found the additional 56 potentially
unlawful interceptions by the GCSB identified in the
Kitteridge Report all related to metadata rather than the
content of communications.
Since the law was unclear as to whether interceptions of
metadata were unlawful, the decision by police not to
investigate the additional interceptions was also justified,
Sir David said.
Police: The matter is now closed
In their response today, police said the IPCA report
dismissed all three aspects of the complaint made by Dr
"The IPCA report finds no evidence of any misconduct or
neglect of duty by police regarding its investigation,"
Assistant Commissioner Malcolm Burgess said in a statement.
"The report confirms that police were entitled to rely on
legal advice provided by the Solicitor-General in reaching a
decision that there had been no criminal intent on the part
of GCSB staff in intercepting the communications and that
there was no conflict of interest in Police appointing Kristy
McDonald QC to oversee the matter.
"It also finds that because the law was unclear relating to
the interception of metadata, Police were justified in not
investigating the additional interceptions."
Mr Burgess said police now considered the matter closed.
Greens: IPCA didn't look at crux of complaint
The Green Party said New Zealanders who were illegally spied
on would probably never get their justice.
"The IPCA did not look at the issue which formed the crux of
the complaint, which is, did the police rely on the wrong
interpretation of the law when deciding not to prosecute,"
said Greens co-leader Russel Norman.
"The IPCA, in part of their report, concluded the matter was
not for the police but for the courts. How can someone go to
court on the issue when a person doesn't even know if they
have been spied on or not? The whole process is a Catch-22,"
"The report gives a green light for illegal spying because
the system has set itself up to be impenetrable to inquiries
The Greens reiterates their call for an open and independent
inquiry and an overhaul of the country's intelligence