Jami-Lee Ross/Slater versus National continues

I think that most of the media and most of the public are largely over the Jami-Lee Ross saga, but Cameron Slater (Whale Oil) and David Fisher (NZ Herald) keep arguments and counter arguments going.

Another somewhat remarkable development is that some from the left (like The Daily Blog and in social media) have been claiming that National has been involved in ‘dirty politics’ with Ross, using claims by Mr Dirty Politics (Slater) as evidence. Slater has been getting some support (and some questions) on Whale Oil, but Kiwiblog comments have been near universally challenging and scathing of Slater’s muckraking methods and motives.

Slater has a history of making unsubstantiated allegations and dubious claims, and admitted to ’embellishment’ in a Parliamentary inquiry associated with the dumping of Judith Collins from Cabinet (as a result of Slater communications being made public). More on this later.

Fisher on Wednesday:  National’s leader Simon Bridges rings Dirty Politics blogger to talk Jami-Lee Ross

The Jami-Lee Ross saga has forced National Party leader Simon Bridges into conversation with Dirty Politics blogger Cameron Slater, who is in close contact with the rogue and unwell MP.

Bridges’ office confirmed to the Herald that Bridges called Slater to give the right-wing attack blogger assurances over decisions about Ross having been made after taking proper medical advice.

The phone call confirms Slater’s key role in the Ross affair, which has caused the National Party more than a week of anxiety and chaos.

Bridges’ call to Slater came after the Whale Oil blogger wrote a blog post promising retribution on the National Party for what he sees as its role in Ross’ deteriorating mental health and subsequent fall from grace.

It is believed Slater has been personally supporting Ross since the weekend and his assistance extended to helping the MP in his release from Middlemore Hospital’s mental health facilities yesterday.

Slater’s role has also extended to briefing media on aspects of the Ross saga.

This was a sudden change after Slater had claimed to be not involved at all up until last weekend.

Other media did not follow the story but Slater, on his Whale Oil blog, used it as a springboard to attack the MP for sending a “disgusting text message”.

On Tuesday RNZ reported on one historic (2 months old) text from a National MP to Ross which they only part quoted. It included the words “You deserve to die”- see Female MP sent abusive text to Jami-Lee Ross

Fisher on Friday: The chain of events which put Jami-Lee Ross in mental health care

The path to mental health care for unwell MP Jami-Lee Ross appears to have started with a text message to the fellow MP with whom he had an affair.

Through a range of sources, the Herald has been able to untangle the apparent chain of events leading to Ross entering Middlemore Hospital on Saturday evening.

It has revealed a National Party which moved quickly to do what it could for its former MP after he sent a text message to his former lover which appeared to reveal a man in distress.

The events are contrary to those being pushed by Dirty Politics blogger and National Party pariah Cameron Slater, who has emerged as a support person for Ross.

In a series of blog posts, Slater has painted a chain of events he claims shows the party – against which he has many grievances – is responsible for the state of Ross’ wellbeing.

Slater has pledged retribution for what he claims has been National’s poor handling of Ross. He has done so in blog posts which present knowledge apparently gleaned from the rogue MP.

While specific events presented on his blog have been confirmed, the motivation appears at odds with information discovered from political sources and those who know Slater.

Bridges is said to have contacted Slater “to make clear that he acted on appropriate medical advice throughout this process”.

Slater confirmed Bridges’ reason for the call in a blog post, although said he did not believe its intent.

Slater has been waging a largely ignored war against National since he was sidelined after Dirty Politics, he has been bitter about John Key, he campaigned (on Whale Oil) against National in last year’s election, he has repeatedly shown long term animosity towards Bill English, and has acted as an attack activist against Bridges since Bridges became National leader earlier this year.

So Slater is far from neutral in this.

Yesterday (Saturday) he posted Another hit job from David Fisher which I must correct and tell the truth that the National party fails to

Yesterday saw another personalised hit job against me from David Fisher after his quick trip to Wellington to get briefed. It seems his anonymous and gutless sources are trying to spin just how wonderful the National party has been towards the man they drove to attempt suicide as a result of their actions.

Of course they led with a shabby headline that tries to make out that the woman behind all of this is some sort of hero. Fisher claims that I got some things wrong, but presents not a skerrick of evidence to support his contentions.

Slater then posted a number of text exchanges between Ross and various National MPs. Ross must have given Slater access to private communications between MPs. This is a major breach of privacy from Ross will further alienate him from National.

Remember that the various Craig versus Slater and Jordan Williams defamation cases came about because of a serious breach of privacy after Williams (a lawyer) ignored confidence and requests from Rachel MacGregor that her communications remained private and publicised them via Slater and Whale Oil.

Slater gets some support in comments. ‘roblin’:

Advising someone to commot suicide is aganist the law, isn’t it. This female MP should be reported to the police.

I have seen no evidence that Ross was ‘advised to commit suicide’, and there are some hard to work out aspects to this. A text exchange published by Slater suggests that the mental health emergency last weekend (Slater claims it was a suicide attempt but that isn’t corroborated) was precipitated by the two month old text from a National MP. This tries to place the blame on Ross’ emergency on someone he allegedly had a relationship with for several years before it ended prior to the text.

Slater has also backflipped from insisting he knew “for months” that Ross was the original leaker to ‘believing’ not just the opposite, but that it was some sort of conspiracy:

I believe the female MP showed Bridges some frustrated texts from JLR about the leadership or policy decisions of JLR and resolved to rid himself of JLR, all based on a selected view from a scorned woman.

Slater has claimed a number of times that the Ross meltdown was all due to a campaign to oust Ross from Parliament, and that Ross is some sort of innocent victim.

“All based on a selected view from a scorned woman” is rather ironic given the record of attacks on National based on the selected view of a scorned political activist.

Another rather ironic ‘featured comment’, from ‘rantykiwi’:

As usual, Whaleoil is leading with verifiable facts and the MSM are two steps behind, still disseminating an incomplete version of events that suits their position supporting the CoL and damaging National as much as possible. I sincerely hope that as this whole sordid debacle plays out and the big players have to run with stories based in reality that they acknowledge Whaleoil as the ground breaker and primary source for their future articles.

I don’t see much in the way of verifiable facts.

“Acknowledge Whaleoil as the ground breaker and primary source for their future articles” probably encapsulates the primary aim of WO – to come up with stories that rely on other media to legitimise and publicise them. WO has been largely ignored by most media in the four years since Dirty Politics.

Slater’s post and the whole saga was questioned on Kiwiblog’s General Debate yesterday. RightNow:

Also this morning Slater has dumped screenshots of messages with JLR from that night. Anyone with experience of nutty partners will recognize JLR’s manipulative behavior. Apparently he was scrolling through messages from 2 weeks prior when he saw the one from her that set him off, so (2 weeks later in the middle of the night) he messages her with the suggestion he’s going to top himself. Then he turns his phone off while her and everyone else goes frantically trying to find him and get him help.

Actually I think the text was 2 months prior, not 2 weeks. While I’m wary of questioning someone with claimed mental health problems given what is at stake here and the allegations being made I think it is fair to question how genuine Ross’ mental health issues are.

Ross took leave from Parliament for ‘several months’, and two weeks later he was back in Parliament attacking Bridges and National.

Ross was an emergency admission into mental health care a week ago, yet two or three days later he was released.

I think it is fair to be sceptical of what Slater is now promoting, supposedly on behalf of Ross who has been silent for the past week.

‘tas’ at Kiwiblog:

WhaleOil has published many of Jami-Lee Ross’ text records

Slater claims this proves National has been lying all along. However, my reading of it is that it entirely supports what they have said. The texts that Slater has chosen to publish do not support his own narrative.

Slater has a record in court proceedings of putting forward evidence that does not support his own narrative – Blomfield versus Slater judgments over the years come to mind.

‘tas’ addresses a number of Slater claims:

(1) Bridges said that he took action against Ross as soon as he was made aware of the sexual harassment allegations. WhaleOil has records that prove that Bridges took action before the newsroom story made those allegations public. Slater claims this shows Bridges lied, but there is no contradiction here. Bridges did not say that the newsroom story was the first he heard of it.

(2) Slater says that National is lying about what happened on the night Ross was taken to hospital. Yet the text messages and call logs he published corroborate the timeline David Fisher published in the NZ Herald yesterday.

(3) Slater has, over the past few days, made it sound like Ross’ former mistress — the female MP — did something to provoke him on the night he was taken to hospital. However, he now says that what provoked Ross is that he re-read her text message from two months prior!

(4) The text message that the female MP sent to Ross is definitely not OK. There is no excuse for that. However, this was a messy breakup and I expect both parties have said and done things they regret.

(5) Paula Bennett sent Ross a text saying “I would like to see you to discuss a potential way through”. That sounds like National are trying to help Ross and sort things out. His response was just to cite his mental health. It sounds like Ross is the one who was not engaging constructively.

Later yesterday another article from David Fisher – Jami-Lee Ross: New text from ‘homeless’ MP reveals the tipping point

The contents of a text message which sparked National’s call to police regarding Jami-Lee Ross’ welfare has been revealed.

Ross is understood to have been sitting in his car mulling over a previous text exchange with his former lover, a National MP, before sending her a response stating: “You get your wish.”

It was these four words which reportedly raised the alarm. The former lover alerted a senior member of Bridges’ office, ultimately leading to Ross being found by police then taken to Middlemore Hospital’s mental health unit.

Blogger Cameron Slater has published some of the text messages in a bid to advance his claim the National Party is to blame for Ross’ condition. The Herald cannot confirm the text messages are genuine. The blogger did not respond to a request for comment.

I think it is fair to question the genuineness of texts (and any claims) put forward by Slater. I recall texts that surfaced in the Len Brown issue that looked suspicious, and then were quickly dropped from claims. I later heard allegations that they were fabricated.

Earlier this week a spokeswoman from the office of National Party leader Simon Bridges said: “When concerns were raised they were dealt with appropriately.

“The National Party is confident that we have followed advice and made the right decisions on matters concerning Jami-Lee Ross.”

When asked about the text messages tonight, a spokeswoman for the National Party said: “Out of respect for all of the people involved, including Jami-Lee Ross we will not be commenting on this any further”.

I don’t think that statements from National should be simply accepted without question, but they largely seem to stack up. And I expect that they will be being very careful with what they say about this.

The disclosure of the fresh text messages by Slater appears to confirm one of National’s fiercest enemies has access to Ross’ phone and its contents.

Someone with a record of operating with clear political activist anti-National agendas.

Slater previously wrote of Ross scrolling through his messages last Saturday evening while sitting in his car “assessing what had happened for him to end up where he was”.

Ross was “homeless, career over” and facing public accusations by his former lover and other women who worked in Parliament for the National Party, said Slater.

“He felt destroyed,” Slater wrote, leading to the four-word text message which sparked the scramble for help.

Is Slater saying just what he thinks and perceives? I don’t think much weight can be put on his perceptions, which have a history of being slanted and selective.

Or is Slater some sort of official mouthpiece for Ross who is apparently unavailable for comment in person?

This seems to be a very odd situation.

Slater’s posts on the issue paint Ross as the victim of a conspiracy by the National Party to drive him out.

It has been termed a “hit job” by Slater, who has previously presented convoluted theories to support other claims.

In 2014, he developed a theory of a vast conspiracy involving academics, media, political staff and politicians as being behind the Rawshark hack of his computer.

In that theory, the large network of conspirators were apparently working together to trigger Slater’s own mental health issues and drive him to suicide.

Slater and Ross may genuinely have genuine mental health issues. But that doesn’t rule out the possibility that they are playing on that to paint themselves as victims, when that may not necessarily be completely accurate.

They could easily be victims of their own fallibilities and mistakes.

Those with knowledge of the events which unfolded have described Slater’s Rawshark theory as ridiculous.

There are probably quite a few Slater theories that could be described as ridiculous. He switches position and contradicts himself often enough. Claims by Ross have not been consistent with himself or with known facts either.

In trying to inflict as much damage on National as they can Slater/Ross may end up doing a Craig by accentuating their own personality issues and dire political situations.

More depth to ‘Hit & Run’ reports now

Some pundits and journalists were excitedly demanding immediate action after a quick look at Nicky Hager’s and Jon Stephenson’s ‘Hit & Run’, launched on Tuesday evening.

There are far better reports coming out now that people interested in looking at the issue in more depth are publishing their views.

More investigation from David Fisher: Exclusive interview: NZSAS says civilians were killed in fatal raid, including two by Kiwi sniper fire

What he has found out supports some of the book’s claims but disagrees with some, in particular the claim that it was a revenge raid.

But the soldier’s account also conflicted with claims in the book that the NZSAS were motivated by “revenge” over the death of O’Donnell.

He said the NZSAS soldiers would have been “angry” over the death but “revenge” had no part to play in how they did their jobs.

The soldier said: “SAS boys are a different breed. Everything is a lot more calculated.”

Rather than “revenge”, the Herald was told by the former Governor of the neighbouring province, the raid was to target insurgents who threatened the New Zealand base at Bamyan, about 50km away.

So those who claim that Hager never gets anything wrong may want to reassess that view.

Toby Manhire: Books damning claims demand inquiry

Hager and his co-author, Jon Stephenson, have stressed both these points.

The then prime minister did sign off the raid, which apparently killed six civilians and injured at least 15 more, but there is no claim that he masterminded any coverup.

“I suspect we know far more about what happened than John Key was told,” said Hager.

Some of the conclusion jumpers commenting at The Standard have missed that bit.

Hit and Run is an important book. Whether you admire or viscerally loathe its authors is immaterial to the evidence it documents.

Not all of the allegations are new, but the depth of research and detail are compelling.

Any journalism that heavily depends on unnamed sources should, of course, be subject to scrutiny, even if, as here, they are numerous and corroborated.

Critically, many of the sources would be willing to speak to an appropriate, independent investigation, says Stephenson.

For their sake, for the sake of the NZ Defence Force, whether to censure or vindicate, for the sake of the government, for the sake of respecting international law, for the sake of the dead, and in the public interest, that investigation needs to happen.

Not to do so for fear of creating difficulty for our military bosses or politicians or, even, the Americans, would be wrong.

“We’re not going to be rushed into an inquiry,” was an early response from the prime minister, and that is fair enough, but the case is now urgent and overwhelming.

I prefer time is spent doing things properly rather than jumping to the demands of journalists and activists.

Peter Dunne joins Labour, Greens and NZ First in asking for an inquiry.

Afghanistan Inquiry Now Inevitable – Dunne

UnitedFuture leader Hon Peter Dunne says an inquiry into allegations New Zealand SAS forces were involved in an incident that led to civilian deaths in Afghanistan now seems inevitable.

“In the wake of the comments in the Hagar book ‘Hit and Run’ there has been a rising fog of confusion, about what may or may not have happened.

“Recollections now seem to vary sharply, and I think it is inevitable some form of inquiry will be necessary to clarify and resolve these.

“New Zealanders are rightly proud of the reputation of our SAS and Armed Forces generally, and do not wish to see that diminished, so they deserve open reassurance that our forces have not behaved inappropriately.

“The current saga of claim and counter-claim will not provide that, therefore some form of independent inquiry is appropriate,” Mr Dunne says.

Some meaningful response from the Government seems inevitable, bit according to Legal Beagle Graeme Edgeler it should be an investigation instead. It’s worth reading his whole detailed post – A war crimes inquiry; or why Nicky Hager is wrong.

He concludes:

There is nothing to stop the Government starting an inquiry. There will be some aspects of what has happened that will be able to inquired into without risking prejudice to a Police investigation, but, as is generally the case with coronial inquests, we will need to recognise that not every question of importance can be answered while questions of whether there will be criminal charges remain unanswered.

In New Zealand, such investigations are a matter for the Police, and decisions over whether to prosecute (in the High Court) are ultimately for the Solicitor-General or Crown Prosecutors. Alternatively, allegations against soldiers may be a matter for the Military Police, leading the possibility of trial at a Court Martial. Neither will have much experience investigating war crimes. In the circumstances, I think the Police are better placed in the case.

There are sometimes reasons to prefer a Court Martial. For example, if the result of the investigation is that there is insufficient evidence to file war crimes charges, but that charges under the Armed Forces Discipline Act for failure to comply with the rules of engagement could be laid against some involved, this could only be done at a Court Martial. However, that is not possible here. There is a time limit for such charges to be brought to Court Martial, and it has well passed. A Police investigation would likely involve assistance from Military Police, and Crown Lawyers in any event.

Nicky Hager and Jon Stephenson have authored a book alleging war crimes; they’re not necessarily certain who, but the describe events that could amount to war crimes committed by New Zealanders. This has consequences.

When confronted with allegations of war crimes, New Zealand is obliged not just to find out what happened, but to investigate, and if appropriate, prosecute. But it would be wrong to pursue an inquiry that may prejudice the rights of those now under suspicion of committing war crimes. Commissions of inquiry do not investigate crimes. This is the job of the Police.

Where Police fail to investigate an alleged war crime, New Zealand has agreed, with the approval of Parliament, that the Prosecutor of the International Criminal Court can step in instead. We should not let that happen.

Teapot tapes and media collusion in politics

In The Big Read:David Fisher has written about Teapot tape – the real story of 11-11-11, which details what happened, and of particular interest is the herald’s involvement and how they saw what unfolded.

From Fisher’s account it’s not hard to see how Key and his team were highly suspicious of how and why the recording was made. It is now officially accepted by Key that the recording was accidental, which is plausible in the context of a frenzied media scrum and the use of new technology used by a video novice.

It raises one important question in particular about how TV3 and Winston Peters appear to have worked together in an election campaign that may have had a significant impact on the election result.

A few points of note:

In a piece by political reporter Isaac Davison, which described the event as “the most eagerly awaited conversation of the election”, Mr Banks said he wasn’t bothered about any recording because he and Mr Key discussed “pretty bland stuff”.

It may have been “the most eagerly awaited conversation of the election” for journalists going by the circus they made of it (and helped make happen through public pressure on Key) but did the people of New Zealand really care about it?

I thought the whole thing was trivial and farcical and a blot on media and politics.

It was a staged meeting which was equal parts media and political circus. The meeting was the Prime Minister’s signal to his National Party supporters in the electorate that they were free to vote for Mr Banks as the local MP.

If enough people did so – and they did – it would secure a coalition partner for the National Party and assist in forming a government.

I give Epsom voters a lot more credit for thinking for themselves without needing manic media signalling. After all they has already elected Rodney Hide in the two previous elections. Key wisely avoided a repeat in 2014 and David Seymour still managed to get elected without the same media madness.

It’s bizarre, looking at the footage and photographs now, that no one noticed Ambrose’s little black bag with its recording device inside on the table next to the politicians.

Perhaps it is a bit bizarre but not really surprising considering the frenzied focus on what was little more than a nod and a wink, except for the mad scramble for media headlines.

There was also disbelief at the claims it was a “News of the World-style” operation. I – and others involved in the story – were astonished at the claim, disbelieving and simply speechless at having actions and motives ascribed which bore no resemblance to what happened.

It’s not as if the media are ever guilty ascribing actions and motives that bear little resemblance to what happens.

Ambrose, though, was deeply upset. He became the focus of the attention that followed after Mr Key made a police complaint.

Not surprising he was upset, but it also shouldn’t be surprising that Key was also very upset – although the police complaint wasn’t a smart reaction.

The issue didn’t go away, either, after he gave a copy to TV3 and it started reporting on the content of the conversation, albeit via claims being made by NZ First leader Winston Peters.

I think this is an aspect of the story that should get much more scrutiny.

Did TV3 feed Peters content of the recording?

They gave Peters’ election meetings special attention, I remember one in particular in Invercargill that TV3 promoted in advance and then covered.

It appeared to be deliberate media-political collusion and may have had a significant impact on NZ First getting back into Parliament. They got a late surge to get them over the 5% threshold, partly at least thanks to publicity given to Peters by TV3.

The circus over the cup of tea meeting was a headline hinting circus with many media involved. It is disturbing to see how much they try to influence election outcomes.

As Barry Soper says in A real storm in a tea cup:

But it was the media melee and the fact that a recording device was left on the cafe table that got all the publicity, derailing the campaign for at least a week.

It was the media that derailed the campaign in 2011. I think there’s no doubt they changed the outcome of the election so some extent.

When media collude with politicians to give them a campaign advantage this raises serious questions about how our media can influence elections in order to create headlines for themselves.

Who will challenge media on how they manipulate politics for their own purposes? It’s not likely they will call themselves on it.

More twists in Mediaworks firearm purchase

While journalists generally have been supportive of Heather Du Plessis-Allan over the Story rifle buying story, and scathing of the police for searching her home David Fisher and NZ Herald have been doing some actual investigative journalism.

Fisher reveals a number of very pertinent facts in The Big Read: Twist to TV gun-buying tale.

Elements of TV3’s gun buying story were contrived as documents show a production manager on the show may be directly implicated in the purchase and delivery of the .22 rifle at the centre of a police inquiry.

The Herald also understands Mark Weldon, the boss of TV3’s owner MediaWorks, appears to have personally approved the gun buying story.

During broadcast of the story, du Plessis-Allan was shown holding a piece of paper to the camera saying: “Normally you take this form down to the police station along with your firearms licence. The police officer checks that you actually do have a firearms licence and signs at the bottom of the form. We can tell you we didn’t take the form to a police station.”

In the wake of an outcry over the search, police put out a press release saying TV3 staff would not be interviewed so detectives took “steps necessary to obtain the information required to progress the investigation”.

Du Plessis-Allan told viewers that night TV3 had handed over information sought by officers.

“They asked me for the original mail order form – I handed it over. They never asked me for my handwriting samples and know that had they done it, I would have handed them over.”

The Herald has studied the copy of the mail order form used to buy the rifle from Gun City and compared it to the form shown in the broadcast on October 21. The documents are different – the “B” in “bolt”, the “R” in “rifle” and the “AC” in “action” most strikingly so.

It means detectives were confronted with the possibility of more documentation other than that which was used to purchase the weapon.

The existence of two forms would compel detectives investigating the gun buy to search for other documentation, according to Criminal Bar Association president and former police detective Tony Bouchier.

The search warrant of du Plessis-Allan’s home was for more than handwriting samples:

The single reference to the “original mail order form” by du Plessis-Allan has been the only comment about the documentation used to buy the rifle. Both Story hosts have spoken repeatedly of the search being to obtain handwriting samples, referring to police “looking for handwriting samples”.

There has been no reference to the second part of the search warrant – of which the Herald has a copy – and its second stated objective. The warrant specifically seeks “all copies of the Gun City mail/online order form, or other sheets of paper that have Justin Devine’s signature on it,” referencing a copy of the actual order form used to buy the weapon and the false name adopted for the purchase.

Another person involved:

Along with the order in the name of “Justin Devine”, the form carried a credit card number said to be in the name of “J Devine”.

Story’s production manager is Jayne Devine, according to her LinkedIn page. The address on the Gun City mail order form to which the rifle was delivered has been matched by the Herald with Ms Devine’s home address.

So the Story story was a packaged story that left out a few of the details. As has coverage of the search.

While a jail term is a possible outcome for forgery and impersonating a police officer I don’t think that would an appropriate penalty. But it seems reasonable for the police to investigate this.

And it’s good to see journalists like Fisher doing some hard core investigating rather than just jumping on the media bandwagon (and mutual defence wagon).

 

More on HDPA and firearms

The purchase of a firearm by Heather du Plessis-Allan for the Story programme on TV3 continues to get attention.

The police have issued a statement:

HDPAPoliceStatement

Like the police raid on du Plessis-Allan’s house this has been criticised. Rummaging through personal belongings looking for handwriting samples seems an odd step considering she had openly described what she had done.

However while many kournbalists are condemning the police action David Fisher has written a brave and thought provoking opinion column:

Heather du Plessis-Allan and the gun: Did she find a loophole or simply break the law?

Whoever filled in the form provided some of the required details by using a bogus name and credit card number.

The section seeking the number of a firearms licence was filled using an invented number. (The invented number was checked by Gun City staff and came back from police as genuine, clearing the way for the purchase.)

Lower down the form was a section marked “Police Use Only”.

Whoever completed the form created the name of a fictitious officer and included what appeared to be a police registration number.

The requirement for the police officer’s involvement is explained at the top of the form. It quotes section 43a of the Arms Act 1983. That’s the section of the law which makes it legal for guns to be sold by mail order.

Of interest to the Story team was the legal requirement for the form to be signed by the person buying the gun, and the legal need for it to carry the endorsement of a police officer who had seen the buyer’s licence.

The “Police Use Only” section wasn’t just for decoration – it was a stated legal requirement for a mail order purchase, as was the use of a proper name. There are penalties for selling a a gun without consideration of all those steps.

I believe there was great cause for serious thought before the form was completed using bogus details. There are serious penalties around forgery, with a maximum prison sentence of 10 years.

As Fisher goes on to say, this wasn’t a loophole, it appears to be breaking the law.

The law doesn’t stop anyone from walking onto the street and punching another person. It provides clear guidance why it should not be done and sets out penalties for stepping outside that law.

Almost always, a “loophole” is what is exposed when you do something the law does not cover but should. In my opinion, a “loophole” is not what you have when you break the law just to show how easy it is to break.

While it’s fair enough questioning how the Police are investigating, it’s also fair enough questioning whether the degree of law breaking was justified to point out a potential weak part of the online purchase process.

 

 

 

Journalist protection doesn’t apply to books

The Privacy Commissioner has told New Zealand Herald columnist John Roughan that journalist protection of sources doesn’t apply to books.

The Herald reports in: Key biographer forced to release tapes

Roughan has been forced to release recordings of his conversations with Prime Minister John Key as part of a court case relating to the “teapot tapes”.

Roughan had refused to surrender transcripts and recordings used for his biography John Key, Portrait of a Prime Minister. He was asked for the documents a year ago under the discovery process for a defamation case being taken against Mr Key by freelance photographer Bradley Ambrose.

The Privacy Commission told the columnist last week that his book did not meet the criteria for the Privacy Act exemption which allowed journalists to protect their sources.

Roughan is the third journalist to be captured by a High Court ruling last year which said a reporter’s research for a book did not qualify for protection under privacy rules.

This has obvious implications with Nicky Hager and his ‘Dirty Politics’ book.

After Roughan refused to release his documents, the case was referred to the Privacy Commissioner.

The commissioner’s office told Roughan last week that it was bound by a previous judicial ruling by then-Chief High Court Judge Helen Winkelmann on Kim Dotcom’s civil case against New Zealand’s police and spying agencies.

Justice Winkelmann ruled that the privacy exemption for news media related specifically to “articles and programmes” and did not extend to books.

Her ruling was made after Herald journalist David Fisher refused to give up emails and interviews used to write the book The Secret Life of Dotcom.

Media law expert Ursula Cheer, from the University of Canterbury, said yesterday that it was a surprise to many people when Justice Winkelmann interpreted the Privacy Act in such a literal way.

“It did look as though it would create problems and obviously it is. If this is happening with more journalists then they’re going to be, in theory, chilled from writing books.”

I’m not sure why journalists will be “chilled from writing books”. It just puts them on the same basis as any other book author. I don’t see why they should carry over their special (and important) “articles and programmes” journalism privileges into book authorship.

John Roughan has also written about this in No protection in court for journalism in books.

In September the commissioner’s office told me to hand over the material, either to the lawyers or to the commissioner’s investigations team who would decide whether it could be withheld. I wrote back, making an argument that I felt sure would have to succeed because it was precisely an argument that had already succeeded for none other than Nicky Hager.

Last year Cameron Slater took a complaint to the Privacy Commissioner to see if the Winkelman ruling would allow him to see the personal information stolen from his computer and used by Hager in Dirty Politics. Hager’s lawyer, Steven Price, composed a cogent legal argument that Hager was a “news medium” and his book came under the definition of “news activity”.

I stole his arguments but they didn’t work for me. The commissioner’s office has decided it is bound by Winkelman and obliged to consider my refusal an interference with privacy under section 66 of the Act.

Roughan makes the claim that because he is a journalist if he writes a book it is “journalism in books”.

If an author writes a news article can they submit that for the Man Booker Prize?

A dictionary definition:

Journalist: a person who writes for newspapers or magazines or prepares news to be broadcast on radio or television.

From the American Press Institute: What is journalism?

Journalism is the activity of gathering, assessing, creating, and presenting news and information. It is also the product of these activities.

Journalism can be distinguished from other activities and products by certain identifiable characteristics and practices. These elements not only separate journalism from other forms of communication, they are what make it indispensable to democratic societies.

What makes journalism different than other forms of communication?

The world, and especially the online world, is awash in communication.

The vast majority of this communication, however, is not news and especially not journalism. Almost 70 percent of email traffic is spam, according to web security company Symantec. In 2012, there were an average of 175 million tweets each day. But almost all – 99% — consisted of “pointless babble,” according to researchers at Carnegie Mellon University.

While journalism occupies a much smaller space than the talk, entertainment, opinion, assertion, advertising and propaganda that dominate the media universe, it is nevertheless perceived as being more valuable than most of the “stuff out there.”

That value flows from its purpose, to provide people with verified information they can use to make better decisions, and its practices, the most important of which is a systematic process – a discipline of verification – that journalists use to find not just the facts, but also the “truth about the facts.”

A significant criticism of Hager’s ‘Dirty Politics’ was that he deliberately did not verify his claims with people he was making claims about.

What is the purpose of journalism?

“The purpose of journalism,” write Bill Kovach and Tom Rosenstiel in The Elements of Journalism, “is not defined by technology, nor by journalists or the techniques they employ.” Rather, “the principles and purpose of journalism are defined by something more basic: the function news plays in the lives of people.”

News is that part of communication that keeps us informed of the changing events, issues, and characters in the world outside. Though it may be interesting or even entertaining, the foremost value of news is as a utility to empower the informed.

The purpose of journalism is thus to provide citizens with the information they need to make the best possible decisions about their lives, their communities, their societies, and their governments.

If something is newsworthy it should be disseminated as news.

news: newly received or noteworthy information, especially about recent events

I think that the time it takes to write and publish a book makes it hard to claim it is publishing “newly received” information.

In the New Zealand Press Council Statement of Principles they don’t mention ‘book’ once.

The Press Council’s scope applies to published material in newspapers, magazines and their websites, including audio and video streams, as well as to digital sites with news content, or blogs characterised by their new commentary.

If a journalist wants journalist protection then they should publish it as news (I don’t know how much verification goes on these days but that’s another story).

And if they want to write a book it should be on the same basis as any other author writing a book, not with a carry over of their journalist privileges.

Slater versus Fisher and NZ Herald

Cameron Slater has picked up on the story posted by Scoop and also posted on here yesterday – see Cop ‘very surprised’ by police resources for Slater investigation.

In THE MENDACITY OF THE NZ HERALD AND DAVID ‘TAINTED’ FISHER Slater refers to David Fisher as ‘a mendacious scumbag’ and states:

There is no point responding to David “Tainted” Fisher because he has an agenda and is on a mission to protect Nicky Hager and to ultimately protect himself.

That’s typical from an ongoing feud between Slater and Fisher. It’s rather ironic for Slater to call someone else ‘tainted’. Similar could be said of ‘mendacious scumbag’.

Slater picks up on a number of new and rehashed issues, including his repetitive “real Dirty Politics is now being revealed”.

But Slater makes a valid point.

What astonishes me is that the editors of the NZ Herald let David Fisher manipulate the facts and lie by omission in his articles. Why is he even reporting on these matters when he has sworn affidavits in support of Nicky Hager?

He taints the NZ Herald by his actions and his editors allow that tainting to occur.

Fisher appears to be closely associated with Hager. He has also had a long and at times very open fight with Slater (especially open on the Whale Oil side of the story).

While the Herald might think Fisher is an appropriate person to report on Hager and Slater related issues due to his in depth knowledge Fisher has at least a strong perception of not being impartial.

That’s not a good look for a newspaper like The Herald. I think they should be using someone at least with some semblance of impartiality on stories on these topics.

Fisher just feeds into the whale feeding frenzy.

Fisher on the GCSB and SIS

David Fisher has a lengthy ‘opinion’ on New Zealand’s spy agencies at NZ Herald: David Fisher: Just how bad were our spies? It’s one of his better articles.

Despite the headline looking at a troubled past Fisher also has some optimism for a better future.

John Key has opened up the spy agencies to public scrutiny in a way which we have never seen in New Zealand.

We know more now about what they do and even how they do it.

We know how the two agencies are managed, in that the GCSB and NZSIS both have top-flight lawyers in charge.

In terms of oversight and public disclosure, we are heading into an era unparalleled in our history. Citizens now have more ability to see and have explained the tasks done in their name. Again, it might not be enough but it is considerably more than we have had before.

That’s where we have come to, three years after Mr Key had to admit Kim Dotcom and one of his co-accused had been illegally spied on by the GCSB.

It’s an interesting, reasonable and balanced analysis.

Fisher concludes:

This is the question which needs to be answered – what should the agencies be doing? If their job is “keeping New Zealand society secure, independent, and free and democratic” how can it best achieve that? Among other things, it was confusion about the GCSB’s reason for being which led it into forbidden territory.

If we’re all clear about the path on which the intelligence community is heading, surely there’s far less chance of those agencies accidentally straying into the wilderness.

There seem to have been significant changes for the better in New Zealand’s spying world.

Hager could face charges for receiving hacked data

A recent Supreme Court decision which ruled that computer files were property has put the spotlight on whether Nicky Hager could now be charged with receiving hacked (stolen) data from ‘Rawshark’, who is credited with hacking Cameron Slater’s data.

David Fisher reports in NZ Herald (and don’t just diss Fisher because, it looks like an informative and balanced article).

Court decision puts Hager back in frame

Dirty Politics author Nicky Hager may face criminal charges over accepting the hacked material used to write the bombshell book, according to documents obtained by the Herald.

Police will not say whether the investigative journalist is again a suspect, instead of simply a witness, after a pivotal Supreme Court decision which ruled computer files were property.

Documents show the new definition from the court puts Hager back in the frame over the computer files he was given by a hacker which he used as the basis for his book.

This was predicted as a possibility as soon as the Supreme Court decision was made public.

An Official Information Act response to Hager’s lawyers in June saw police lawyer Carolyn Richardson explain there had been a decision – apparently just before the journalist’s house was searched – to treat him as an “unco-operative witness as opposed to a suspect”. It was based on legal advice over an earlier Court of Appeal decision which said computer files weren’t property, she said.

But she said his status could change depending on the Supreme Court’s view of computer files as property. “It may be that the judgment will have some bearing on whether or not [Hager] has himself committed an offence as well as Rawshark.”

The letter supports an affidavit from Detective Inspector Dave Lynch, quoted in submissions from Hager’s lawyers in a current court challenge over a search warrant executed on his home. It described the lead officer in the Rawshark inquiry as holding the same views, with Hager’s lawyer saying it “suggests Mr Hager may yet be charged depending on the outcome” of the Supreme Court decision.

Crown submissions stated Hager was a witness but “had it become apparent that he had committed an offence, then of course consideration would have had to have been given to charging him”.

So the Police will no doubt be considering whether to charge Hager, depending on what evidence they have.

But Hager has openly admitted being given the data and using it for his Dirty Politics book. He would have done that thinking he was protected by the law on possessing the data, but will presumably have been aware of potential risks.

Any shift in Hager’s status as a suspect or a witness could also impact the decision on his High Court challenge to the search warrant executed on his home in October 2014. Hager’s lawyers had insisted there was a higher hurdle to get a search warrant against somebody who was a witness – as Hager was on the day of the search – than for a suspect.

Hager was a “suspect” at the time detectives sought bank records from Westpac without a legal order, police said yesterday.

So this may be a concern for Hager and his legal team, it makes their arguments more difficult to make.

This should deter people from hacking personal and political data in the future, and it should make authors and journalists think very carefully about using illegally obtained data.

It’s worth noting that several journalists also had access to Rawshark data so were presumably given copies. Do they have special protection?

Including David Fisher? He doesn’t explore this angle.

Obtaining Hager’s Westpac data, David Fisher, the Privacy Act

As posted in Hager raid court documents published by Scoop included are two affidavits by Herald senior reporter David Fisher.

And this morning the herald have an item written by Fisher on aspects of the court details in Police got Hager data without court order. Did Fisher write that headline? It may sound worse than what happened, Westpac bank may have complied with the Privacy Act giving the police data they requested.

Scoop published the documents early on the first day they could legally do this – ‘Saturday, 24 October 2015, 12:05 am’.

Fisher could have happened be up just after midnight and noticed the Scoop scoop, and then written up his article after reading through the documents. But that’s implausible if it made the print edition of the Herald this morning.

The online Herald article is shown as published at ‘5:00 AM Saturday Oct 24, 2015’. Fisher could have read the documents and written his article in that time frame.

But Fisher writes:

The details are revealed in documents obtained from the High Court by the Scoop news site, which intends to publish the full material today.

If Fisher had read the documents after being published just after midnight he would know they had already been published. It sounds like he knew in advance about the intended publication but didn’t know what time they would be published.

So Fisher must have been given the court documents in advance and had been in communication with Scoop about it.

Why does the Herald assign Fisher this topic when Fisher is so closely involved? Obviously his knowledge of the issue helps, but he may be too close to aspects of the story to give impartial and balanced coverage.

Fishers article starts with an implication that the handing over of data to the Police by Westpac not legal and has a Government connection.

Westpac handed over private details without judicial authorisation, though other firms declined, court documents show.

Detectives investigating the Dirty Politics hacker Rawshark sought the banking, telephone and travel records of author and journalist Nicky Hager without any search order or other legal power.

Court records show Westpac – the government’s banker for 26 years – handed over “almost 10 months of transactions from Mr Hager’s three accounts” at the request of detectives investigating the hacking of Whale Oil blogger Cameron Slater’s email and social media accounts.

Why did Fisher point out that “the government’s banker for 26 years”? He should be aware that that will feed the conspiracy theorists who claim that the Government are directing the Police to harass Hager.

Fisher appears to me to be deliberately seeding conspiracy by using an irrelevant reference.

Other companies that were asked for Hager’s private details told police to come back with a court order, which would have legally obliged them to surrender the information.

As they have the right to do.

Hager’s legal teams used police documents to detail how detectives sought information on him in late September last year – just after the election – from 16 “bank contacts”, Air NZ, Jetstar, Spark, Trade Me and Vodafone. The request to Air NZ also sought information about anyone Hager might have been travelling with, the documents show.

Detectives told the companies they needed the information for an inquiry into “suspected criminal offending, namely fraud, dishonest access of a computer system”, telling the bank the information would help avoid “prejudice to the maintenance of the law through the detection of serious offending”.

Have you read this far? How does it sound so far about Westpac providing Hager’s banking details?

The Privacy Act allows those holding personal information to waive the law if there are “reasonable grounds” to believe it would assist “maintenance of the law”.

That puts Westpac’s supply of data in a different light. Now I knew this, because I have sought clarification from the Privacy Commission on exactly the same issue of what I can and can’t do under the Privacy Act.

But readers who weren’t aware of this may have built a different picture. Did Fisher deliberately construct his article to mislead?

There is no sign in the High Court documents of Westpac – or any of the agencies – being supplied with additional information that might assist with the “reasonable grounds” test.

The documents do show the other companies rejected the request without a legal order.

Back to an apparent portrayal of Westpac bad, others good.

I would be very surprised if Westpac didn’t already have knowledge of the Privacy Act that enabled them to make an informed decision on whether they should provide the Police with data on request without a court order, or as Fisher repeated “without judicial authorisation” or “without any search order or other legal power”.

Westpac sent detectives transaction details from December 2013 until September last year, with other personal details.

The police decision to seek detailed information without a legal order appears contrary to the position stated by Assistant Commissioner Malcolm Burgess to the Weekend Herald last March.

He said there were “controls around how information is both requested and provided … While the Privacy Act provisions can be used to access low-level information, such as basic account details, higher-level data must be obtained through a production order,” he said.

It’s fair to ask whether Westpac should have provided the amount of detail they did “without a legal order” but this can be read as implying that what they did was illegal.

Hager’s lawyers told the court there were no reasonable grounds for police to seek information without a legal order and questioned whether such an order would have been granted were it applied for.

Fisher has written how there are legal grounds for the Police to seek information without an order, but goes back to suggest there are no reasonable grounds.

Here are quotes from Wriiten submissions for the applicant Redacted in an application for judicial review.

V. INFORMATION REQUEST

Introduction

5.1. As set out above in paragraphs 1.30-1.32, during September and October 2014 the Police made information requests to 16 bank contacts as well as Trade Me, Spark, Vodafone, Air New Zealand, and Jetstar. The information requests sought the disclosure of Mr Hager’s private information. In response to some, the Police obtained Mr Hager’s private information.

5.2. This was done without obtaining any production orders and in circumstances where production orders would not have been available. Mr Hager says that the information requests were unlawful and constituted unreasonable searches and seizures in breach of his rights under s 21. Detail of the information requests General bank request

5.3. On 24 September 2014, the Police sent information request sent to 16 bank contacts relied on an accusation of “suspected criminal offending, namely Fraud, Dishonest access of a computer system”.506 It claimed the information sought would “allow for a preliminary investigation to determine the scale of suspected offending (if any), thereby avoiding prejudice to the maintenance of the law through the detection of serious criminal offending, in respect of; HAGER/Nicky DOB: 04 384 5074 [sic] 73B Grafton Road, Roseneath, Wellington”.507 It asserted that it fell within the exception to the Privacy Act 1993 set out in Principle 11(e)(i) in s 6.

5.4. That request sought information about any accounts in his name, or for which he was a signatory, the date they were opened, current balances and account numbers, details of any signatories, details of all transactions on each account for the last 3 months, the dates, times and locations of the last week of transactions, and any past accounts, including the reasons they were closed.

Westpac bank request

5.5. On 29 September 2014, the Police sent an information request to Westpac Bank. It relied on the same accusation of suspected Fraud and Dishonest Access of a Computer System. It claimed the information would “provide evidential material to identify suspects for the alledged [sic] offending, thereby avoiding prejudice to the maintenance of the law through the detection of serious criminal offending, in respect of; HAGER/Nicky DOB: 04 3845074 [sic] 73B Grafton Road, Roseneath, Wellington”. It sought the details of all transactions for Mr Hager between December 2013 and May 2014.

requests to other companies are detailed.

Responses

5.14. Police received a range of responses to these requests.516 Private information was disclosed in response to some of those requests. In particular, two information requests resulted in the Police receiving the details of almost 10 months’ worth of transactions from Mr Hager’s three accounts.

5.15. On 25 September 2014, Police received detailed information about Mr Hager’s bank account from Westpac Bank including some of Mr Hager’s bank statements.517 On 30 September 2014, the Police received the requested further transaction information from Westpac on almost exactly the same basis as the 24 September 2014 request.

Information requests were unlawful

5.16. The Privacy Act 1993 prohibited these third parties from disclosing Mr Hager’s information except within limited exceptions.519 As set out above, the Police asserted that their requests fell variously within the exceptions set out in Principles 11(e)(i) and 11(e)(ii) in s 6 of that Act. The principle and claimed exceptions state that:

An agency that holds personal information shall not disclose the information to a person or body or agency unless the agency believes, on reasonable grounds,… (e) that non-compliance is necessary—

(i) to avoid prejudice to the maintenance of the law by any public sector agency, including the prevention, detection, investigation, prosecution, and punishment of offences; or

(ii) for the enforcement of a law imposing a pecuniary penalty

5.17. Under the SSA, the Police can obtain a production order to force companies, such as those listed above, to produce copies of documents they hold.520 In order to obtain such a production order the Police must have reasonable grounds:

(a) to suspect that an offence has been committed, or is being committed, or will be committed (being an offence in respect of which this Act or any enactment specified in column 2 of the Schedule authorises an enforcement officer to apply for a search warrant); and

(b) to believe that the documents sought by the proposed order—

(i) constitute evidential material in respect of the offence; and

(ii) are in the possession or under the control of the person against whom the order is sought, or will come into his or her possession or under his or her control while the order is in force.

5.18. The Police did not obtain such production orders.

5.19. The Police had reasonable grounds to believe that an offence had been committed by the Source. However, the Police did not have reasonable grounds to believe that the documents they were seeking in relation to Mr Hager would constitute evidential material in respect of that offence. The Police also lacked any reasonable grounds to believe that Mr Hager had committed any offence. And, in particular, the Police have discovered no documents to support any suggestion of fraud.

5.20. This is denied by the Police. However, the Police have failed to assert any such reasonable grounds in their evidence. Nor have any reasonable grounds been disclosed by the documents provided by the Police in discovery.

More paragraphs with details.Then:

5.27. The Police therefore lacked any lawful authority for these information requests.

A breach of s 21

5.28. Further, the information requests constituted unreasonable searches and seizures in breaches of s 21 of the Bill of Rights

Fisher chose to imply Westpac were wrong to have supplied Hager’s banking data without an order, and imply that it was illegal based on the document, but doesn’t say whether there has been a ruling on this so it’s unknown (to me anyway) whether he is correct or not.

Scoop states that this is all of the “files which have been released so far”.

Here is the advice I received from the Privacy Commissioner:

Principle 11 generally requires agencies not to disclose personal information, unless exception set out in principle 11 applies.  In other words, although you are not obliged to disclose personal information to a third party (in this instance, the New Zealand Police), you have the discretion to disclose personal information in certain circumstances, provided you can rely upon one of the exceptions set out in principle 11 to do so.

One of the exceptions for disclosure is principle 11(e)(i), where non-compliance is necessary for the maintenance of the law function.  So, if you believe it is necessary for the Police to have this information for their maintenance of the law function, this is one of those exceptions that permits disclosure in those circumstances.  Also, principle 11(e)(i) applies irrespective of whether the Police have asked you to make such a disclosure, or whether you make the disclosure of your own volition to the Police.

However, it is a good idea to only disclose personal information to the extent necessary.

Of course, if the Police were to produce a search warrant or court order for the information, you would need to comply with that search warrant or court order.

(This was advice from he Privacy Commissioner’s Office, not legal advice)

Fisher appears to have taken sides on this in his article, or at least strongly leant towards one side.

I’m genuinely interested in legal clarification on this, because as a blogger/publisher I can be requested to provide private information and I need to be sure under which circumstances I can or should do this.

The Privacy Act: https://www.privacy.org.nz/the-privacy-act-and-codes/privacy-principles/limits-on-disclosure-of-personal-information-principle-eleven/

UPDATE: there’s been a lot about this on Twitter, with predictable outrage at Westpac handing over data without a court order.

@PeteDGeorge @paulbrislen @nzherald the judgement is expected out fairly soon.