Spy VS Politician
“You have reached the office of Planet Key. All our agents are busy undermining your rights and selling your assets. Goodbye.” – Kim Dotcom on Twitter, 24 September 2012
1. Firstly, some relevant background;
A. Office of Financial Crime Agency New Zealand (OFCANZ)
What is OFCANZ?OFCANZ is the Organised and Financial Crime Agency New Zealand. It was established on 1 July 2008 to combat serious organised crime.Is OFCANZ part of New Zealand Police?OFCANZ is a discrete agency that is hosted within New Zealand Police. It takes a whole-of-government approach, working with information and resources from a range of agencies.Is the Serious Fraud Office part of OFCANZ?No. The Serious Fraud Office investigates serious and complex fraud, especially commercial fraud. OFCANZ will concentrate on fraud that relates to organised crime. The two agencies will continue to collaborate where appropriate as sometimes these two types of financial crime can overlap.Who will do OFCANZ work?Staff for operational activities will be drawn from OFCANZ, Police and other agencies through secondments and taskforces.How will OFCANZ work be prioritised and assigned?OFCANZ activity is ultimately the responsibility of the Commissioner of Police; the Commissioner will seek advice on OFCANZ focus areas (priorities) from the Officials’ Committee for Domestic and External Security Co-ordination (ODESC).Once the Commissioner tasks OFCANZ to work on the focus areas, the intelligence process will identify targets within those focus areas. Taskforces will operate against the targets, and use a variety of methods to investigate and disrupt the targets’ activities.
B. Officials’ Committee for Domestic and External Security Co-ordination (ODESC)
When the GCSB was established in 1977, oversight in the sense of both operational supervision and policy guidance, in addition to a general overview of the Bureau’s management was provided by a Committee of Controlling Officials (CCO) chaired by the Head of the Prime Minister’s Department. In December 1983 the existence of this Committee was published in the Directory of Official Information. In 1989 the CCO was disestablished and the responsibility for oversight and policy guidance of the Bureau was assumed by the new Officials Committee for Domestic and External Security Coordination (ODESC).
Source: GCSB – Oversight
Points A and B explain the connection between the Officials Committee for Domestic and External Security Coordination (ODESC) and the Office of Financial Crime Agency New Zealand (OFCANZ).
OFCANZ was in charge of the Dotcom case and subsequent raid on the Coatsville Mansion.
‘Oversight and policy guidance‘ of the GCSB is the responsibility of ODESC,
“The Police Commissioner will seek advice on OFCANZ focus areas (priorities) from the Officials’ Committee for Domestic and External Security Co-ordination (ODESC).”
ODESC is chaired by the Head of the Prime Minister’s Department.
C. Key’s letter To Judge Paul Neazor
17 September 2012
Hon Paul Neazor CNZM, QC
Inspector-General of Intelligence and Security
KIM DOTCOM AND ORS V ATTORNEY-GENERAL – RESIDENCY STATUS ISSUE
As I have been briefed today by the Director of GCSB, and as I understand you have now been made aware, the GCSB has discovered that it acted unlawfully in intercepting the communications of certain individuals connected with the above case, apparently acting in the erroneous belief that they were foreign persons when in fact they held New Zealand residency status.
I would be grateful if you would undertake without delay an inquiry into the circumstances of this matter and provide me with a report which identifies:
The facts of the case;
An assessment ofthe circumstances including any errors by the Bureau and its officers; and
Any measures which you consider necessary in order to prevent a recurrence.
I look forward to receiving your report as soon as possible.
Rt Hon John Key
D. To which Judge Neazor replied with this report, ten days later,
INSPECTOR-GENERAL OF INTELLIGENCE AND SECURITY
THE HON D.P. NEAZOR CNZM
27 September 2012
The Rt Hon John Key
Dear Prime Minister
KIM DOTCOM AND OTHERS v ATTORNEY-GENERAL – RESIDENCY STATUS
This report relates to your request on 17 September that I should enquire into action by the GCSB affecting Kim Dotcom and others including making an assessment of errors. The Bureau has reported to you that there appears to have been a breach of statutory restrictions applicable to the collection work of the GCSB.
Kim Dotcom is in dispute with United States authorities about the accumulation of sums of money, the gathering of which may have given rise to allegations of criminal activity in the United States which the authorities there wish to pursue. That pursuit may well involve an attempt by Court proceedings to extradite Kim Dotcom and others to the United States, involving questions of discovery of documents and arrest of persons, Kim Dotcom and others.
New Zealand Police involvement in the event:
A specialist group of New Zealand Police Officers has been involved in assisting the United States authorities and investigating a couple of related New Zealand matters. As part of the New Zealand Police assistance, communications passed between the Police group and GCSB. Those communications were related to a proposal to arrest Kim Dotcom and associated persons. lt was believed by Police Officers that these persons could present potential danger to officers and others involved if the attempted arrest was made. With that belief it was important for the Police to know what action Dotcom and associated people might plan to take and where; i.e. they sought intelligence about possible events. The documents show that information was collected about Dotcom and his associates by the Bureau (largely about their movements or possible movements at relevant times) and passed on to the Police. In my view, considered on its own, the passing on as such could have been lawful but the collection in the circumstances was not. The documents I have seen which record the events do not disclose any interest or inquiry by GCSB about the facts or events of Dotcom’s disputed activity; just where he might be and who might be with him.
Involvement of the GCSB Mechanism:
Like other countries, New Zealand has Government agencies whose task is, covertly if necessary, to collect and report on information which is relevant to security. information is obtained by various appropriate techniques which it is unnecessary to set out. The relevant New Zealand agencies are the New Zealand Security Intelligence Service and the Government Communications Security Bureau. Only the latter is involved in this event. The mandate of each agency is set out in an Act of Parliament which is designed to control the range of the agency’s enquiry and how it works, Each agency’s work is not at large; it is limited by its controlling Act.
GCSB Gathering and Retaining Information and Dealing with Crime: For present purposes GCSB has the specific functions of gathering foreign intelligence, in accordance with the foreign intelligence requirements of the Government of New Zealand:
(i) by intercepting communications under the authority of the GCSB Act 2003;
(ii) by collecting information in any other lawful manner.
Another of the Bureau’s functions is to provide advice and assistance to any public authority in New Zealand on any matter that is relevant to the functions of the public authority or other entity and to a purpose specified in the Act e.g. to pursue the GCSB’s objective of the provision of foreign intelligence that the Government in New Zealand requires, to protect the safety of any person, and in support of the prevention or detection of serious crime. The Bureau has other specified functions, but these are what is presently relevant.
The Bureau is specifically empowered to retain any intercepted communication if its content relates to the Bureaus’ objective or functions.
lt may for the purpose of preventing or detecting serious crime in New Zealand or in any other country, retain information that comes into its possession and may communicate that information to members of the New Zealand Police. Hence my view that passing information to the Police could be lawful.
This is the significant factor in the present case.
The Bureau is intended to collect foreign intelligence only. That theme runs through the whole Act. All of the provisions authorising collection of intelligence and communications are related to what is “foreign” – “foreign inte//igence” (s.7 (i) (a) and (b)), (s.8 (i) (a)) “foreign communications” (s.8) and prohibition against targeting domestic communications (ss. 13, 14, 16 and 19).
A descriptive process is used in the GCSB Act. Examples are-
“foreign communications means communications that contain, or may reasonably be expected to contain, foreign intelligence”.
“foreign intelligence means information about the capabilities, intentions, or activities of a foreign organisation or a foreign person “.
”foreign person means an individual who is neither a New Zealand Citizen nor a permanent resident…”.
“permanent resident means a person who is, or who is deemed to be, the holder of a residence class visa under the Immigration Act 2009. “
The first inquiry as to whether a person is to be regarded as “foreign” under this Act is related to citizenship or permanent residence. lf the person concerned does not have one of those statuses, he or she is foreign for the purpose of the GCSB Act and his or her communications are not protected. If the person is a citizen of New Zealand or a permanent resident his or her communications are protected. People in the permanent residence category were originally described in the GCSB Act as the holder of a residence permit but are now described by a concept called a “residence class visa”.
The Immigration material I have seen in respect of Dotcom shows that he was granted a residence visa offshore under the Immigration Act 1987, Investor Plus category, in November 2010. At that point in time he did not meet the deinition of ‘permanent residence’ under the GCSB Act as it then was.
However, before he arrived in New Zealand the new Immigration Act 2009 came into force on 29 November 2010 and deemed him to hold a residence class visa from that point in time. He met the definition of ‘permanent resident’ for the purposes of the GCSB Act accordingly.
Although Dotcom’s status is subject to monetary and residential conditions for a period of three years short of actually being deported l\/lr Dotcom retains his immigration residence status and remains a permanent resident for the purposes of the GCSB Act.
It was on my understanding not recognised that Dotcom as the holder of a resident visa under a particular category provided for by the Immigration Act was therefore a ‘permanent resident’ (and thus a protected person) under the GCSB Act.
Potential for confusion:
Dotcom is not on my understanding a New Zealand citizen – he is Finnish or German. He is however one of a category of people who is treated in New Zealand as if he ought to have protection against collection of his information. This result has come about by reference to and application of the Immigration Act. That he (and others) has protection of their communications under the GCSB Act is simply an effect of what has happened under the Immigration Act, so long as the relevant words apply to him.
As this matter went along what was discovered in the case of Dotcom and associated people was that resident status had been obtained on their behalf under the Immigration Act 1987 and carried forward under the later 2009 Act. It was understood incorrectly by the GCSB that a further step in the immigration process would have to be taken before Dotcom and associates had protection against interception of communications.
Leaving aside possible confusion arising from the effect of the permit to be in New Zealand Dotcom and party had, the application made by the Police to GCSB was a proper one: the request was made on the basis that the information sought was foreign intelligence contributing to the function of the New Zealand Police and supporting the prevention or detection of crime. The GCSB acting on it was proper.
Enquiry was made during the activity in an attempt to ensure that the Bureau acted within its legal mandate as to what it can collect. The illegality arose because of changes in the Immigration Act wording and some confusion about which category Dotcom was in thereafter.
Complete avoidance of a recurrence will only come about if the system is such that those requesting assistance from the Bureau about non citizens check with Immigration the immigration status of people who may become targets to be sure of what their immigration status in fact is (not may be) in terms of the GCSB Act definitions and tell the Bureau what they have ascertained. It is important to realise that what the GCSB may do is governed finally by the GCSB Act, not the Immigration Act. Because the law allows the covert collection of information about only some people in New Zealand, the events demonstrate that it is important to be sure at all times of the proposed target’s legal status in the country.
– In my view the only issue of illegality arises in this matter from confusion in this instance between the case of a person transferring funds and the general category of residents .
– The GCSB is controlled by its governing Act in what it may do. That Act makes it clear that the Bureau is intended to collect foreign intelligence only, but that includes the function of assisting the Police by gathering foreign intelligence for the purpose of preventing or detecting serious crime.
– A foreign person for the purpose of the GCSB Act is someone who is neither a New Zealand citizen nor (now) the holder of a residence class visa under the Immigration Act.
– People who hold a residence class visa under the Immigration Act have protection against the collection of information under the GCSB Act even if they are not classified as a citizen.
– In this case it was recognised that Dotcom was not a New Zealand citizen. He was classed as the holder of a residence class visa in a particular category but it was not apparent to the Police or GCSB that he thereby fell into a protected category. Because he should have been regarded as in such a category, collection was not allowed under the GCSB Act and in that way illegal.
– Collection had in fact stopped before it was recognised that he did fall within a protected category..
– The information sought to be collected did not relate to the details or merits of his dispute in the US. It was about where he was or might be expected to be in New Zealand at a particular time.
Recommendation to prevent recurrence:
16. Since occasions for the Police to seek assistance from GCSB in matters of safety or security will assuredly arise again under the GCSB Act as it stands, what is needed is assurance available to GCSB that the subject of the information sought is not protected by the terms of the GCSB Act, i.e.
that the person concerned is not a New Zealand citizen, that he or she is not a permanent resident and is not the holder of a residence class visa under the Immigration Act. There will need to be alertness that:
(i) the wording of the provisions of the GCSB Act are controlling;
(ii) since the relevant wording of either Act may change it would be useful for the applicant for assistance to advise what factors as to status they rely on, and what words in the GCSB Act they rely on for their application.
D P Nealzor
2. Three Subsequent Questions;
A. Evidence given under oath by Detective Inspector Grant Wormald, head of the Office of Financial Crime Agency New Zealand
It has been established that,
” Dotcom’s lawyer Paul Davison told the High Court at Auckland yesterday that Mr Wormald had said in evidence on August 9 there was no surveillance of Dotcom undertaken by anyone other than New Zealand police to his knowledge.
However, the GCSB were engaged by police to monitor Dotcom for at least a month before his arrest in January and attended a meeting with police and Crown Law before the raids. “
During the exchange between QC Paul Davison and Detective Inspector Wormald, in the video clip above, the latter stated,
“DAVISON: was there any other surveillance being undertaken here in New Zealand, to your knowledge?
WORMALD: No there wasn’t.”
Detective Inspector Wormald, head of the Office of Financial Crime Agency New Zealand (OFCANZ), and planner and over-seer of the Coatsville mansion raid, would have been privy to all matters relating to the Dotcom Case, and would most certainly have known the source of ‘intelligence’ – the GCSB.
GCSB agents even attended a December meeting about the raid.
It is inconceivable that Detective Inspector Wormald had no idea where information was coming from. (Because quite simply, if he didn’t know – wouldn’t he have asked, to ensure the information was valid?)
As outlined above, Detective Inspector Wormald is head of OFCANZ, which is linked to ODESC, which has oversight and policy guidance of the GCSB.
Kim Dotcom’s lawyer, Paul Davison said,
“There are very grave and significant implications arising from this recent discovery. We had evidence from an officer on oath and we have some other material which makes it look to be inconsistent with that.”
No wonder Mr Davison was concerned.
Which means that Detective Inspector Wormald perjured himself whilst in the Witness Stand.
Which raises the first question: How much of the Dotcom case is similarly ‘tainted’, and have police officers perjured or hidden any other evidence?
B. Oversight of GCSB
The Prime Minister has stated that he was overseas at the time GCSB requested a Ministerial Certificate from Bill English to block information about the Bureau’s involvement in the Dotcom case (to cover up their actions from Court and media scrutiny).
The certificate was signed by Deputy PM Bill English, acting Prime Minister, whilst John Key was overseas. The certificate was requested by the GCSB after Mr Dotcom’s lawyer requested from Crown Law all information relating to the case that was intercepted by the GCSB and provided to police.
However, the GCSB monitoring of Dotcom took place from 16 December 2011 to 20 Jan 2012.
See: Memorandum for Directions Hearing (para 12)
Key was definitely in the country – in part – whilst the GCSB was spying on Dotcom. (See: Prime Minister John Key’s Address in Reply Debate – 21st December, 2011)
At some point between 21 December and 27 January, Key holidayed in Hawaii. (See: John Key Video Journal No.50)
On 27 January 2012, Key attended the annual Australia-New Zealand Leaders’ Meeting and joint meeting of senior Cabinet Ministers. (See: PM to visit Australia with Ministers)
Second question: Was surveillance of Dotcom discussed at any meeting around that time period by the Officials Committee for Domestic and External Security Coordination (ODESC)? If not, why not? Considering that ODESC is responsible for “oversight and policy guidance of the Bureau“, if the Dotcom cases and cross-organisational liaison did not merit discussion – what then, is ODESC overseeing?
C. Reason for GCSB involvement
The last question, and perhaps one that has only briefly been touched upon: why did the Office of Financial Crime Agency New Zealand (OFCANZ) feel the need to request assistance from the GCSB in the first place?
According to documents, the rationale given was that the GCSB monitored Kim Dotcom’s communications for the purposes of establishing his location for the impending raid,
“The information sought to be collected did not relate to the details or merits of his dispute in the US. It was about where he was or might be expected to be in New Zealand at a particular time.”
It seems incredible that NZ Police are unable to keep track of suspects they are surveilling without requesting assistance from a spy organisation such as the GCSB (or SIS?). It beggars belief that Police required surveillance assistance when,
- Dotcom and his entourage lived in one of the biggest mansions in Auckland
- Dotcom drove bright, flashy, very expensive cars
- Dotcom was quite a big bloke himself and would’ve stuck out like an Afro-American at a White Supremacists tea-party
- Dotcom made no effort to evade authorities
- The raid was executed at 6.47am in the morning – more than likely that the occupants of the Coatsville mansion were still indoors – if not still in bed.
There appears to be no rational reason for a spy agency to have been involved – at least not for the stated purpose of “where he was or might be expected to be in New Zealand at a particular time“.
It was pretty bloody obvious where Kim Dotcom; his wife; his employees; and probably the family pets were, on that early morning on 20 January 2012,
If the NZ Police are unable to locate and keep track of a businessman who makes no effort to conceal himself; where no efforts are being made to evade anyone (indeed, he probably wasn’t even aware of being under surveillance); then that raises serious concerns at the ability of the New Zealand police force.
Third question: Why was the GCSB involved?
None of these questions are answered – nor even raised – in Judge Neazor’s report on this matter. In fact, reading his four page report offers very little insights as to how and why this incident came about. Neazor confirms that,
” Enquiry was made during the activity in an attempt to ensure that the Bureau acted within its legal mandate as to what it can collect. The illegality arose because of changes in the Immigration Act wording and some confusion about which category Dotcom was in thereafter.”
So there we have it: “confusion“.
Neazor’s “report” is so poor in facts and explanations that a further wider ranging investigation is warranted. In fact, his “report” cries out for further inquiries to be made.
What the public have been given is superficial, meaningless, pap.
Key’s apology is pointless if questions remain unanswered and suspicions abound that Neazor’s report is essentially a “white wash”. As Key himself said,
” I’ve asked the Bureau [GCSB] about why they failed at that point to identify the problem. I’m not entirely sure I’ve had a completely satisfactory answer…”
Indeed, Prime Minister.
The public is also ” not entirely sure we’ve had a completely satisfactory answer “.
The Standard: What does Key have to gain by lying?
Gordon Campbell: On the failures of the Neazor report
NZ Herald: Key admits mistake over shares (23 Sept 2008)
Fairfax Media: PM signed papers relating to BMWs (22 February 2011)
NZ Herald: Key changes tack over meeting with broadcaster (9 April 2011)
TV3: PM’s credit downgrade claim under fire (10 October 2011)
TV3: Who knew what about Kim Dotcom (2 May 2012)
Fairfax Media: Master of Keyvasive action (18 September 2012)
TV3: Who kept GCSB’s Dotcom spying secret from Key? (25 Sept 2012)
Time: WATCH: The Hollywood-Style Police Raid on Kim Dotcom’s Mansion (9 August 2012)
NZ Herald: Key on illegal spying on Dotcom (24 Sept 2012)
TV3: Who kept GCSB’s Dotcom spying secret from Key? (25 Sept 2012)
Fairfax Media: Kim Dotcom hints at suing Govt (25 Sept 2012)
Fairfax Media: Dotcom case makes world headlines (25 Sept 2012)
Radio NZ: Minister stonewalls over police Dotcom evidence (26 Sept 2012)
Parliamentary Hansards: Questions for Oral Answer (26 Sept 2012)
NZ Herald: Key on the back foot as Opposition leaders twist knife (27 Sept 2012)
NZ Herald: PM apologises to Dotcom over ‘basic errors‘ (27 Sept 2012)
Scoop.co.nz: Neazor Report on GCSB and Kim Dotcom (27 Sept 2012)
NZ Herald: Greens ask police to investigate GCSB (28 Sept 2012)
TV3: No need for GCSB inquiry – Key (28 Sept 2012)
Fairfax Media: Police had queried if spying was illegal (29 Sept 2012)
Fairfax Media: Dotcom saga rebounds on Key Government (29 Sept 2012)
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