Finlayson Christopher: Urgent Debates — Dotcom Case—Inquiry into Government Communications Security Bureau Actions 
Text is incorporated into the Bound Volume 
Finlayson Christopher: Urgent Debates — Dotcom Case—Inquiry into Government Communications Security Bureau Actions 
[Sitting date: 27 September 2012. Volume:684;Page:5760. Text is incorporated into the Bound Volume.] 
Hon CHRISTOPHER FINLAYSON (Attorney-General) 
: 
 I will choose my words very carefully because I believe that great care is needed in debating this issue because of the fact that proceedings are currently before the High Court. There was a very interesting issue of principle that was raised by the deputy leader of the Labour Party and that concerns the meaning of section 8(3) of the Government Communications Security Bureau Act 2003 about the performance of the bureau’s functions being subject to the control of the Minister responsible for the GCSB. And there is no debate that in this instance it is the Prime Minister. 
I always recall when many years ago David Lange first became the Prime Minister and Minister in charge of the NZ Security Intelligence Service. There was a clip of him on television when he was visited by the director of the SIS. Mr Lange said “Bring me all the files.” in a typical David Lange joking way and the director said “Well it’s not like that.” And it is not like that. The control of the bureau does not mean operational control over particular matters. 
I would venture to suggest that if ever we got to a situation where the Minister in charge of the SIS or the Minister responsible for the GCSB was exercising operational control over particular operations of the agency it would be a very dangerous and improper state of affairs. So it is that I as Attorney-General exercise control over Crown Law. Indeed I have just been hunting for the particular reference but I know that it is set out in the  
Cabinet Manual 
. It would be quite improper and unconstitutional of me as Attorney-General to exercise control over particular cases. During the allegations over the intervention by the Solicitor-General in the case involving the cameraman Mr Ambrose I in fact had nothing to do with it. It would have been quite improper of me to have had anything to do with it. The Attorney-General was named as the nominal defendant in that proceeding because there was to quote the statement of claim “no proper contradictor” and that is why the Attorney-General was named. But that did not give me licence to get involved in the control and operation of that particular case and that is the case here. It has been the Government’s announced position on the use of the capability of this particular agency that in relation to two of the persons whose communications were required the activity was contrary to its governing legislation. But given the confused at times contribution by Mr Robertson I do think that it is necessary to explain something of the background of this case and how we get to where we are and in doing so I emphasise the need for care in talking about this particular matter. 
The background starts in the United States because Mr Dotcom and his associates have been indicted in Virginia on charges related to the theft of intellectual property on an industrial scale. It was necessary for the carrying out of New Zealand’s obligations under its extradition treaty with the United States that arrest warrants issued by a New Zealand court on behalf of the United States were executed in a manner that properly and effectively assisted the US in relation to an operation that involved eight or nine different countries. In those circumstances there can be no surprise in the fact of the police request for assistance in tracking persons who were subject to warrants and in relation to persons who are not New Zealand citizens or permanent residents the agency the Government Communications Security Bureau is entitled to assist. But I emphasise that there can never be an acceptance by the Government or the public of the unlawful use of State power particularly in relation to the acquisition of communications. That must be emphasised. 
The circumstances of the misuse of the relevant power and the question of what follows from that event are now an issue that is squarely before the High Court. The court will deal with that issue as it intimated to Mr Dotcom’s counsel in the fullness of time. But I emphasise that New Zealand is part of the wider international community the lifeblood of which is the acceptance of international obligations—in particular those directed to the detection and suppression of international crime. 
I said that Mr Robertson in his analysis was talking about extradition orders and was explaining the procedure but I do not think it was done very clearly. I think it needs to be emphasised that there are two proceedings here. The first is the request for extradition. That is an act of the executive which is based on obligations undertaken by in this case the United States and New Zealand. Every extradition request will involve the consideration at some point in the process of two competing public interest principles: the interest of comity on the one hand and the liberty of the individual on the other. In New Zealand as we all know extradition is covered by the Extradition Act 1999 and it is administered by the Ministry of Justice but it does as Mr Robertson observed involve a number of agencies at any one time. The Ministry of Foreign Affairs and Trade for example receives and transmits requests for extradition. The Ministry of Justice will assess requests appearing in New Zealand courts on extradition matters or will instruct other counsel to appear—in this case Crown Law. 
Both countries have a bilateral extradition treaty that forms the basis of their requests to each other. It is important to understand here that extradition proceeds on the basis of a record of the case—that is that the US provides a summary of the evidence supporting extradition and any other relevant materials. And then what the New Zealand court has to do is approach the record on the assumption that it is a fair and an accurate summary of the evidence against the defendants. It is not the role of the courts in New Zealand to try the person for the offence alleged. Ultimately if the extradition takes place that will be the responsibility of the Federal District Court in Virginia. What the New Zealand court has to do is assure itself that there is a qualifying offence on which the person may be surrendered to the other country for trial and that there is sufficient evidence. 
It is also important to understand which explains the detailed nature of extradition that once that preliminary review has taken place the judge considers the evidence and determines whether a person is eligible for surrender. The Minister of Justice will decide whether to surrender the person and if that happens then there is an opportunity for the person concerned to seek judicial review in the High Court of both the judge’s decision to recommend that and the Minister of Justice’s decision to surrender them. So it is very important that we understand that extradition is one particular process and then mutual assistance is another. That is an entirely different form of international cooperation and it is that one that concerns the provision of evidence or information to assist the foreign country with a criminal investigation or prosecution. If New Zealand responds positively to the country’s requests then in turn that country will assist New Zealand authorities when we make requests overseas and that happens on a regular basis. Members may have seen recently that there was a request in Australia that was turned down by the Federal Court there for various reasons. We are all partners in dealing with alleged and actual transnational crime and conventions require New Zealand to provide mutual assistance as part of a global approach to crime. It is important not to muddle up the two processes. There is extradition on the one hand and mutual assistance on the other. 
The other thing that it is important to understand is that whether Mr Dotcom and his associates are rightly or wrongly charged it is ultimately a matter for the courts in the United States. But it is also important to understand as I said earlier in this speech that it is obvious that it is open to Mr Dotcom and his associates to challenge New Zealand’s actions in courts of law. There are open courts and proper remedies that are available for any transgressions of the law and presumably these are the sorts of things that are going to happen over the months to come. 
I have set out these matters in some considerable detail because I do think that sometimes in public discussion on this matter there has been a conflation of what extradition and mutual assistance are about. But I emphasise that these matters are now fairly and squarely before the court particularly as a result of a direction made by the Chief High Court Judge yesterday. That is why it behoves all of us to deal with this matter with some sensitivity because of the sub judice rule which is not a mere rule but actually raises issues of great constitutional importance about the relationship between the executive and the judiciary and also Parliament and the judiciary. They are the issues that have arisen in this matter. There is a question— 
Phil Twyford 
: How about democratic oversight? 
Hon CHRISTOPHER FINLAYSON 
: —as to what constitutes control by the Minister in this instance and I have said that there is a world of difference. I say this to Mr Twyford because he does raise an important matter. There is a very important point of distinction between exercising control over the agency which is— 
Phil Twyford 
: Democratic oversight is not operational control. 
Hon CHRISTOPHER FINLAYSON 
: —what I believe that the Prime Minister has done at all times in this case and becoming involved in and exercising control over particular operations. I say to Mr Twyford that to get involved in the detail of particular operations is just as improper as it would be for me to become involved in the particular operation— 
Phil Twyford 
: You’re wilfully misunderstanding. 
Hon CHRISTOPHER FINLAYSON 
: —of particular cases. I am not wilfully misunderstanding anything. These are matters of great constitutional importance and when one is dealing with the intelligence agencies or in my case one is dealing with Crown Law one has to be very very careful about the extent to which a Minister exercising control gets down into the detail. The line that the member is suggesting is a very very dangerous line.