Telecom leak: no charges

I'm somewhat astounded by this release. Police: No criminal offending in messenger's actions

4:06pm 30 June 2006 Police today announced that criminal proceedings will not be advanced in relation to the disclosure of a confidential cabinet document by Mr Michael Ryan - a messenger in the Department of Prime Minister and Cabinet. "The circumstances surrounding the disclosure of the cabinet document do not amount to criminal offending," a police spokesman said. Police are not commenting further on this matter. ENDS

I have previously noted some possible charges: "Leaks - some possible offences". And the more I've heard about the facts, the more it looks like an open and shut case for a charge under s105A, either as a complete offence or an attempt. I've made an OIA request today for more information from the Police about why.

Guantanamo Bay and enemy combatants

Link to the Supreme Court's decision below: Handan v Rumsfeld (Unfortunately, no time today to analyse - but it looks, from the headnote, to be a sound and robust decision.)

RMA and the national grid

I get slightly grumpy when I see the Resource Management Act being blamed for problems with our national infrastructure. The RMA framework makes adequate provision for such proposals to be expedited in appropriate cases. Although decision-making is devolved to local authorities, the Minister for the Environment retains the power to intervene in proposals of national significance. Indeed, the portfolio of Ministerial tools were recently enhanced in by the 2005 Amendment Act. The Minister’s residual powers are set out in ss140-150AA of the RMA and deal with “proposals of national significance”. Section 141B(2) sets out (non-exclusive) factors for assessing whether a proposal is of national significance:

In deciding whether a matter is or is part of a proposal of national significance, the Minister may have regard to any relevant factor, including whether the matter— (a) has aroused widespread public concern or interest regarding its actual or likely effect on the environment, including the global environment; or (b) involves or is likely to involve significant use of natural and physical resources; or (c) affects or is likely to affect any structure, feature, place, or area of national significance; or (d) affects or is likely to affect more than one region or district; or (e) affects or is likely to affect or is relevant to New Zealand's international obligations to the global environment; or (f) involves or is likely to involve technology, processes, or methods which are new to New Zealand and which may affect the environment; or (g) results or is likely to result in or contribute to significant or irreversible changes to the environment, including the global environment; or (h) is or is likely to be significant in terms of section 8 (Treaty of Waitangi).

(It must be remembered that under the RMA the “environment” include people and communities, including “social, economic, aesthetic and cultural conditions” affecting people.) There’s no doubt in my mind that proposals relating to the national grid would qualify as proposals of national significance. For such proposals, the Minister has various intervention powers: - the power to “call-in” the application (s141A(4)(a)) - the power to make submissions on behalf of the Crown (ie a whole of government submission) (s141A(4)(b)) - the power to appoint a “project coordinator” to advise the local authority (s141A(4)(c)) - in proposals spanning a number of local authorities, the power to direct a joint hearing (s141A(4)(d)) - the power to appoint an additional hearings commissioner to the local authority’s panel considering the proposal (s141A(4)(e)) The “call-in” power takes away the responsibility for deciding the matter from the local authority and either: - referring it to a board of inquiry (a expert panel including an Environment Court judge), or - referring it directly to the Environment Court. (Before the 2005 amendments, referral to a board of inquiry was the only prescribed intervention power – which, by itself, was a rather blunt instrument.) These powers can be exercised on the Minister’s own motion (s141A(1)(b)) or after receiving a request form the applicant or local authority concerned (s141(1)(a)). Previously, this power has only been exercised once (in 1995 in relation to an Air Discharge Permit for the Taranaki Combined Cycle Power Station). However, the legislative tools are available to address matters of national significance. Ultimately, though, whether they are utilised will depend on the attitude of the Minister to expediting such matters – but there does not appear to have been suggestions that any requests to do so have been declined. See also: MfE Factsheet: Improving national leadership UPDATE: MfE now have an expanded commentary on the Minister's power to intervene in proposals of national significance. See MfE: Ministerial intervention on proposals of national significance under the Resource Management Act

Leaks - some possible offences

Due to teaching commitments, I'm not in a position to post a more detailed analysis but there are a couple of offences which are relevant: - Section 105A of the Crimes Act contains the following offence:

s105A. Corrupt use of official information— Every official is liable to imprisonment for a term not exceeding 7 years who, whether within New Zealand or elsewhere, corruptly uses or discloses any information, acquired by him in his official capacity, to obtain, directly or indirectly, an advantage or a pecuniary gain for himself or any other person.

In this context, "corruptly" basically means a deliberate act knowing the act is not authorised and is not for a lawful purpose. There are some issues about whether, factually, some advantage accrued, what qualifies as an advantage (in principle, I see no reason why the "advantage" can't include "political" advantage?), and if no advantage accrued, whether the person can be convicted of attempting to commit the offence (again, in principle, I see no reason why not).

- There is also the complementary offence under s105B (but restricted to official information which is personal information):

s105B. Use or disclosure of personal information disclosed in breach of section 105A— (1) Every person is liable to imprisonment for a term not exceeding 7 years who,— (a) Having received personal information (being information that comes into that person's possession as a result of the commission of an offence against section 105A of this Act); and (b) Knowing that the information has been disclosed in contravention of that section, —uses or discloses that information to obtain, directly or indirectly, an advantage or pecuniary gain for that person or any other person.

Both offences require the Attorney-General’s consent for any prosecution.

There is a relatively good discussion of these offences in R v Leolahi (2000) 18 CRNZ 505.

- There is also another official information offence under the Summary Offences Act, but it is narrower and does not appear to be engaged in this case:

s20A.Unauthorised disclosure of certain official information— (1) Every person commits an offence and is liable to imprisonment for a term not exceeding 3 months or to a fine not exceeding $2,000 who knowingly communicates to any other person any official information as defined in section 78A(2) of the Crimes Act 1961 (not being official information that is publicly available) or delivers to any other person any object as defined in section 78A(2) of the Crimes Act 1961 knowing that he does not have proper authority to effect the communication or delivery and that the communication of that information or the delivery of that object is likely— (a) To endanger the safety of any person: (b) To prejudice the maintenance of confidential sources of information in relation to the prevention, investigation, or detection of offences; or (c) To prejudice the effectiveness of operational plans for the prevention, investigation, or detection of offences or the maintenance of public order, either generally or in a particular case; or (d) To prejudice the safeguarding of life or property in a disaster or emergency; or (e) To prejudice the safe custody of offenders or of persons charged with offences; or (f) To damage seriously the economy of New Zealand by disclosing prematurely decisions to change or continue Government economic or financial policies relating to— (i) Exchange rates or the control of overseas exchange transactions: (ii) The regulation of banking or credit: (iii) Taxation: (iv) The stability, control, and adjustment of prices of goods and services, rents, and other costs, and rates of wages, salaries, and other incomes: (v) The borrowing of money by the Government of New Zealand: (vi) The entering into of overseas trade agreements.

Wanganui DC - bans on gang patches

Wanganui DC: Council by-law to ban gang regalia in public places National Radio: Wanganui Cracks Down On Gangs (Part 1) / (Part 2) This is interesting and (possibly) misconceived. There's the obvious issue about whether the bylaw will be consistent with the Bill of Rights (freedom of expression, association, and movement). Section 155(3) requires all bylaws to be Bill of Rights consistent. I suspect the Council will fail to demonstrate that their measure is proportionate. But perhaps more difficult is the question of enforcement. There will be no power to arrest people who breach such a bylaw: - First, as the penalty for breaching a bylaw is a fine only, the police have no automatic power of arrest. - Secondly, the local authority has no power to incorporate powers of arrest in their bylaws. (The power to arrest for breaches of liquor ban bylaws is unusual and is specifically provided for in the Local Government Act 2002.) In addition, other enforcement powers are limited and may not be suitable for addressing the situation. It is doubtful whether the power to seize property in breach of a bylaw applies to seizing clothing and there is no automatic ability to issue infringement notices for such breaches (the government must pass specific regulations allowing this). UPDATE: See the Wanganui Chronicle (5 April 2006) "Doubts about gang patch by-law" where I express similar sentiments... UPDATE2: It appears that some sense has prevailed, with the Council moving back from the bylaw option, see Wanganui Chronicle (20 July 2006 "Police unclear on gang ban bylaw". However, while the proposed local bill option may resolve some of the enforcement difficulties and will prevent any Bill of Rights challenges, it will not make the proposal Bill of Rights-consistent. In my view, Parliament ought not pass the Bill because of the egregious breaches of rights and failure of the Council to present a thorough and robust case to justify the breaches.