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Dotcom debable proves a worrying job

THE DOMINION POST - Tuesday, 9 October 2012


The debacle involving Kim Dotcom and the Government Communications Security Bureau (GCSB) will shake public confidence in the security services.

We are essentially told to trust organisations such as the GCSB and the Security Intelligence Service (SIS), both of which have extensive but intrusive powers to protect us from harm. We are told not ask too many questions. The Courts have little oversight of interceptions by the GCSB.

What has slowly been unveiled in the Dotcom saga has eroded public confidence. People will now be wanting to know a lot more about the GCSB and what it does. There are also serious employment issues involved.

The general understanding was that the GCSB’s purpose was to spy on foreigners in New Zealand and to monitor people and events in other countries.

Many readers will have been surprised to learn that it can also be an extension of our police force.

It seems fundamental that the GCSB should know the limits of its own powers.

It is carrying out intrusive work secretly and the legal limits are carefully prescribed. It seems extraordinary that the GCSB would carry out surveillance where it is not authorised to.

The GCSB had four directors in a year around the relevant time. It is unclear who the director was during the interception period and whether there were periods without a director. In these days of fiscal tightening, one can only question what the 280-odd staff do and what the $74 million is spent on.

A single act of gross negligence can justify a dismissal. Was the director at the time, and are some of his staff, in that danger zone with respect to their employment? More facts will have to emerge before that question can be properly answered.

Readers may remember the case involving Ric Oram, a seasoned and highly regarded journalist with the New Zealand Herald. He wrote an article on members of the Headhunters gang in the Auckland area who were applying for a liquor license. His front-page article in the Herald set out the type of offending that the gang members had been involved in, drawing public attention to the lack of wisdom in granting a liquor license to people of that character.

Unfortunately, the photo was of a community worker instead of a gang member and that person no doubt sought damages from the Herald. The Herald sacked Mr Oram.

The issue in question was whether a single act of gross negligence could justify dismissal; our Court of Appeal said yes. The case is relevant to any gross negligence in the Dotcom saga.

Police also have questions to answer.  Why did they not carry out the surveillance and who decided to go to the GCSB?  Surely, once again, they would be expected to know the legal limits of who can carry out what surveillance.  Why did the Police not do the work themselves?  Again, employment issues may arise.

We are dealing here with extradition proceedings. The Police will bring extradition proceedings from time to time in order to ask the Courts to remove people who are wanted in other countries for alleged serious crimes. It seems wrong that these extradition proceedings have incorporated almost theatrical components.  Police said they asked the GCSB to get involved because they wanted to monitor Dotcom’s whereabouts.  Surely, the ability to monitor a suspect is bread and butter for the Police and there is no need to involve an organisation such as the GCSB,

Finally, when GCSB knew they had or may have acted illegally surely there was a serious obligation for the director to tell the Prime Minister forthwith. Was there a delay in telling the Prime Minister? Here any employment breaches are more serious. They go beyond negligence as they may be reckless or wilful.

The GCSB failed to abide by the law that limits its extensive powers. This means employees could face serious disciplinary consequences. It also means the weak oversight of the GCSB needs strengthening. The public needs to know what the GCSB does and that it is held accountable. At present the Minister in charge complains that he was kept in the dark. That is unacceptable. Systemic change should follow.

Cullen - The Employment Law Firm is one of only eleven law firms in New Zealand approved to provide employment law services to Government and the public sector.

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