Geddis on why the Hager apology matters

Law professor Andrew Geddis writes on Why the police’s apology to Nicky Hager matters (this has also been published elsewhere) – apologies for a near full repost but I think is important enough to warrant it.


In the wake of the publication of Dirty Politics back in 2014, the New Zealand Police undertook multiple unlawful breaches of Nicky Hager’s privacy. They’ve now apologised for that – but the important thing is to make sure it does not ever happen again.

Nicky Hager’s book was based on material obtained from the mysteriously named “Rawshark”, who in turn almost certainly obtained it by way of a criminal computer hack. Much was made of this fact at the time, with Mr Hager accused of using “stolen” information. If interested, you can read Mr Hager’s response to that charge here (at question #5).

Irrespective of the ethics of using the material, however, it was clear that Mr Hager had committed no crime. While we still do not know who Rawshark is, no-one seriously believed it was Mr Hager himself. Equally, there was no evidence that Mr Hager colluded with Rawshark in carrying out the original, unlawful hack.

Nevertheless, if you wanted to uncover Rawshark’s identity, Mr Hager was the obvious place to start. And the New Zealand Police decided they very much wanted to find out who Rawshark was – they very, very much wanted to do so. Quite why they felt such a desperate need to determine the perpetrator of this particular crime out of all those committed daily in New Zealand remains something of a mystery, but felt it they did.

For the police embarked on a really quite remarkably terrible investigation to try and trace Rawshark through Mr Hager, which today has led them to issue a comprehensive and I am sure highly embarrassing apology (along with money damages and payment of legal costs). Here’s what they now admit they did wrong.

First of all, they went to Mr Hager’s bank – which was Westpac, if you really want to know – and asked them to please pass over 10-months-worth of Mr Hager’s financial records. Which the bank then did quite happily, despite the police having no legal right to the information. You can read what the Privacy Commissioner thought of that behaviour here (spoiler alert: he was less than impressed).

Then, without even trying to talk to Mr Hager, the police decided he was an “uncooperative witness” in their investigation. In what appears to be an action without precedent in New Zealand, they instead went to the District Court and asked for a warrant to search Mr Hager’s house and remove all papers and electronic devices that might provide them with information that could identify Rawshark.

The problem being that they failed to tell the Court their target was a journalist whose material may be subject to journalistic privilege, as it had been obtained under a promise that its source would remain confidential. The High Court subsequently found that this failure breached the police’s “duty of candour” to the courts, thus rendering the warrant unlawful. In addition, the police now admit that their warrant was overly broad in the material it sought and should have contained conditions to address the possible privilege issues.

So, the search of Mr Hager’s house and removal of his property was, the police admit, unlawful. What is more, by a remarkable coincidence the police search took place at a time when Mr Hager was in another city, meaning that it was an hour before Mr Hager was able to assert journalistic privilege over that property. Despite being alerted to that claim of privilege, the police nevertheless used photos they had taken of an email exchange and website login information to try and track Rawshark down.

Let’s just pause and recap at this point. The police admit that they misled a court by omission into giving them apparent legal authority to raid the house of not a suspect in a crime, but a witness to it. That witness, they knew, was a working journalist whose efficacy depends upon being able to assure his sources (be they law abiding saints or malefactor demons or somewhere in between) that their identity will remain confidential. And despite being alerted that there may be a legal bar on presenting in court the information they had seized, the police admit they went ahead and used some of it anyway to try and unmask their suspect.

Were this the extent of the police’s actions, they would be bad enough. But wait, for there is more. Even after conducting the raid and being told in writing by Mr Hager’s lawyers that he asserted journalistic privilege over all information that may reveal his confidential sources (such as Rawshark), the police continued to approach third parties like Air New Zealand, Jetstar, Customs and Paypal for information about Mr Hager’s activities. Some of it was sought on an informal “please tell us” basis, while some was obtained through formal production orders (which were in turn obtained from the courts without disclosing that they related to a journalist with confidential sources).

And in what is perhaps the most damning indictment of the police’s actions, they now admit that they told some of these third parties they wanted information about Mr Mr Hager because he was suspected of fraud and other criminal activities. This was what is known in legal circles as a complete and utter lie.

Hence the complete and comprehensive nature of the apology to Mr Hager from the police. As I’ve had cause to say about it in a quote that Mr Hager’s legal team included in their press release about the settlement:

The series of failures admitted by the police indicates a deeply concerning failure to both understand the legal constraints on their powers and the fundamental importance of individual rights. This comprehensive apology hopefully indicates that the message has been driven home and such behaviour will not happen in the future.

Because I accept that a political culture where individuals routinely turn to criminal activity to try and unmask their opponent’s claimed wrongdoings would be a bad one. James O’Keefe would not be a welcome fixture in our democratic process. And even criminal hypocrites like the target of Rawshark’s original hack have a general right to privacy that the law ought to protect.

So, seeking to identify and prosecute Rawshark was not in itself an unreasonable response by the police. However, turning the journalist who used the information gained through Rawshark’s actions into a virtual criminal co-conspirator from whom information will be obtained by any means necessary is completely unreasonable and dangerous to our democracy. It should never have happened, and should never happen again.

10 Comments

  1. lurcher1948

     /  June 12, 2018

    What did you expect under a Sir Key govt.NZ Police and National rotten to the core, from the top to the bottom helping Cameron Slater,another National attack poodle

  2. Griff

     /  June 12, 2018

    You can bet after a lengthy look into this the independent police complaints authority will decide no charges should be laid.
    Theft and contempt of court both carry possible jail time.
    Whoever signed the Warrant and the chain of command upwards should get a DCM.
    Instead the cops responsible will get a whack on the sack and perf with a load of our money.
    For the rwnj’s
    No I dont support Hager in my view he is just as fringe as Wishart.
    Never of them add value to the conversation.
    I do think journalist privilege has value in a democracy and that the rule of law must be adhered to by the police.

  3. Blazer

     /  June 12, 2018

    despicable behaviour..politically motivated imo…

    as for Westpac…Govts bank…change to Kiwi Bank..enough already.

  4. Casey Jones

     /  June 12, 2018

    You could have just linked to it. What justifies you in ripping off his copyright?

  5. Alan Wilkinson

     /  June 12, 2018

    What happens if a journalist pays or incites an informant to commit a crime – eg hack someone’s privacy? Does journalistic privilege apply?

    • A different situation to what is known about Hager and Dirty Politics, but journalistic privilege can be overridden by other things.

      Slater claimed journalistic privilege v Blomfield, and was found by a court to be a journalist in what he was doing, but “does not
      apply as it is in the interests of justice that the sources be disclosed”.

      Summary of conclusions

      [140] The definition of a journalist in s 68(1) of the Evidence Act 2006 can include
      a blogger. The definition does not impose quality requirements and does not require
      the dissemination of news to be in a particular format. The focus is on the medium
      disseminating new or recent information of public interest.

      [141] The relevant time for assessing whether s 68(1) applied to Mr Slater and the
      Whale Oil website was the time when the sources made their disclosures which
      resulted in the publications at issue.

      [142] The Whale Oil website was a news medium in that it was disseminating new
      and recent stories of public interest. While its style and focus can be criticised, it
      was breaking news to a significant section of the New Zealand public.

      [143] Whale Oil was published with a significant degree of regularity, and required
      a sufficient degree of work and effort for it to be in the normal course of Mr Slater’s
      work for him to receive information from informants for publication.

      [144] Mr Slater promised to protect his sources.

      [145] Therefore, Mr Slater was a journalist and Whale Oil a news medium, and he
      could invoke the protection in s 68(1).

      [146] Section 68(1) did not apply to Mr Spring as his identity had already been
      disclosed. Section 68(1) applies to prevent only disclosure of sources that have not
      been revealed.

      [147] Rule 8.46 of the High Court Rules, which can be used to prohibit
      interrogatories seeking sources of information in defamation proceedings, does not
      apply as it is in the interests of justice that the sources be disclosed.

      [148] Therefore, Mr Slater’s appeal succeeds in part. The Judge was incorrect to
      hold that s 68(1) did not apply to Mr Slater (although not in relation to the informant,
      Mr Spring), but correct to hold that Mr Slater could not invoke the protection in
      r 8.46 of the High Court Rules

      https://forms.justice.govt.nz/search/Documents/pdf/jdo/e9/alfresco/service/api/node/content/workspace/SpacesStore/74720c54-d0c6-49fd-841e-a812acf78751/74720c54-d0c6-49fd-841e-a812acf78751.pdf

    • Blazer

       /  June 12, 2018

      not if you prove the crime…’its not the deed ,its not the thought..its not the..crime..it’s if you get..caught’!T.O.P

    • Alan Wilkinson

       /  June 12, 2018

      I read the link to the Evidence Act but it doesn’t seem to answer my question.

      Is it in the public interest to identify and prosecute a criminal. The courts appear to be saying “No”.

  6. alloytoo

     /  June 12, 2018

    Hager is as much a journalist as Russel Norman is an environmentalist, IE: not at all.