UK Labour battle in court

Missy reporting from the UK (thanks, yes things are being overshadowed by the Olympics):


Tthere was one major story today that was almost missed in the Olympic coverage. Five members of the Labour Party took the NEC to court to have their ‘freeze’ on voting in the leadership election overturned, essentially they argued that the NEC ruling that in order to vote a person had to have been a member for 6 months was unlawful.

This morning the High Court upheld their complaint, and ruled that the Labour Party was in breach of contract and that the 5 members could vote in the leadership election. This leaves it open that up to 130,000 members that joined since January can now vote in the leadership election.

This is significant as it is believed that those new members are just about all Corbyn supporters. The Labour party are expected to appeal this decision, so the leadership voting saga for the Labour Party is not over yet.


I had to search for news of this at the Guardian: Labour to appeal against high court leadership ballot decision

Labour’s ruling national executive committee (NEC) has announced that it will appeal against a high court decision allowing 130,000 new members to vote in the party’s leadership contest, as challenger Owen Smith called for the voting deadline to be extended.

A high court judge ruled on Monday morning that the party’s governing body had illegally barred 130,000 people who recently became party members from voting in the leadership election.

In a statement, Labour said it would fight the decision: “The procedures committee of the NEC has decided that the Labour party will appeal this ruling in order to defend the NEC’s right, as Labour’s governing body, to uphold the rule book, including the use of freeze dates.”

Close allies of Jeremy Corbyn, whose supporters are thought to make up the majority of the new members, had urged the NEC to drop the issue, with the shadow chancellor, John McDonnell, tweeting: “We are appalled by possibility of an unnecessary & costly appeal. It’s unacceptable to use members’ money to stop members from voting.”

The decision by the party’s NEC that only members who joined before 12 January were eligible had been challenged by five people who were excluded as a result.

A barrister representing the group has accused the NEC of unlawfully freezing them and many others out of the contest between Corbyn and Smith.

I guess they have a few years until the next election to stop their bitter infighting and look capable of running a government.

Slater drops appeal on source protection

Cameron Slater has given up on an appeal in a defamation action taken against him by Matthew Blomfield involving posts Slater made on Whale Oil in 2012 that Blomfield claims are defamatory.

In the High Court in 2014 J Asher ruled that Slater acted as a journalist but his sources were not protected by journalist privilege because…

…the posts were about a private dispute, they contained “extreme and vitriolic statements,” they “bore the hallmarks of a private feud”, and the source material seemed to have been obtained illegally. It was not a whistleblower case. (Price)

However Slater appealed this judgment.

Yesterday on The Daily Blog: Cameron Slater halts appeal in long running defamation case

SlaterAppealHalted

Blomfield wanted Slater to reveal the source of information supplied to him about Blomfield (I think largely via a hard drive containing extensive business and personal data of Blomfield’s).

A copy of Asher’s judgment is here: Slater V Blomfield 2014 NZHC 2221

This is explained well by Stephen price at Media Law Journal in The blogger and the journalist.

But Mr Slater has also been making life busy for the courts. In recent months, he has been at the forefront of two significant High Court cases. In the first, he argued that he was a journalist, and should not be required to turn over his sources in a defamation suit against him.

He was found to be a journalist, but the court ordered him to disclose his sources anyway.

The Evidence Act allows journalists to protect the identity of their sources, if they have promised them confidentiality. But it also allows judges to override that promise and compel them to disclose their sources. A judge has to decide whether the public interest in knowing the source’s identity outweighs the harm to the source together with the public interest in the flow of information from confidential sources.

Is a blog a news medium? Is a blogger a journalist? Are they sometimes? If so, when? The District Court judge had held, rather peremptorily, that Mr Slater’s blog was not disseminating news, and that was the end of the story.

In the High Court, Asher J disagreed. In a lengthy and thoughtful judgment, he accepted that Mr Slater qualified as a journalist at the relevant time.

Mr Slater spent a lot of his life blogging. He frequently received information from sources, promising confidentiality. He broke news stories. He published opinions on news.

In this context, the judge said, purveying “news” means “providing new information to the public about recent events of interest to the public… on a regular basis… for the purpose of disseminating news”. Making a profit isn’t necessary. No particular format is required. The journalist doesn’t need to be subject to an ethics complaints system. A style of journalism that may be dramatic or abusive or hyperbolic doesn’t disqualify a journalist either.

A pattern of consistent inaccuracy or deceit may mean that a blogger is not a journalist, but there was no evidence of that before the judge.

The judge then went on to order Mr Slater to reveal his sources anyway. He explained that the identity of the sources may be crucial to evaluating pleaded defences of truth and honest opinion. What was there in the balance favouring source protection? Almost nothing. The posts were about a private dispute, they contained “extreme and vitriolic statements,” they “bore the hallmarks of a private feud”, and the source material seemed to have been obtained illegally. It was not a whistleblower case.

Ironically, Mr Slater’s “news” site reported only that he had been declared by the High Court to be a journalist. It didn’t see fit to mention the rest of the judgment. All in all, though, Asher J’s decision seems right on target, and gives very helpful guidance in a difficult and fast evolving area of law.

Slater appealed this decision, but this notice advising the court that Slater does not intend to ‘further prosecute his appeal’ indicates that despite what some have claimed, it was Slater who had been delaying the defamation proceedings.

I presume this means he will now be required to reveal his source or sources.

Perhaps Slater realised or was advised that the appeal was unlikely to succeed.

Perhaps Slater has just given up trying to protect those sources.

Perhaps he now just wants to get all his legal hassles over and done with. He has indicated recently he has been worn down by all the actions he has become embroiled with.

Who will Winston put in jail?

 

Andrew Geddis posted at Pundit: Who will be the first blogger that Winston Peters puts in jail?

Are you a blogger who knowingly writes lies about your political enemies/friends in an effort to sway how people vote? Winston Peters has just won a court case that could see you get jailed for up to 2 years.

The High Court has just handed down a pretty interesting decision that is possibly important for how political commentary can take place in New Zealand, and for the blogging community in particular. It involves Winston Peters and the Electoral Commission, so naturally it’s called Peters v The Electoral Commission.

The Electoral Act 1993,s.199A:

Every person is guilty of a corrupt practice who, with the intention of influencing the vote of any elector, at any time on polling day before the close of the poll, or at any time on any of the 2 days immediately preceding polling day, publishes, distributes, broadcasts, or exhibits, or causes to be published, distributed, broadcast, or exhibited, in or in view of any public place a statement of fact that the person knows is false in a material particular.

The High Court ruled that publishing “2 days immediately preceding polling day” includes placing anything online prior to the 2 day period and leaving it there.

I make an order declaring that the Electoral Commission’s view, as conveyed in its letter to counsel for Mr Peters on 5 November 2014, was an incorrect interpretation of the law.  It was incorrect because s 199A applies to statements on the internet on polling day or on the two days preceding polling day, whether they were first placed on the internet at that time or were first placed on the internet at an earlier time.

A historic post or comment could be deemed ‘published’ a month later, a year later or any period before the 2 day pre election period.

This seems bizarre. What about something posted prior to a previous election?

And more bizarre, Geddis suggests that the law that Peters got this ruling on may have been put in place to guard against Peters-like behaviour:

But why was it ever thought to be a necessary addition to our electoral laws in the first place? That was a question then-National MP Alec Neil asked back in November 2001 when the law was first proposed, during the Committee Stage debate in the House:

I also ask the Minister—and I am quite serious about this—whether [s.199A], which includes a provision about publishing false statements to influence voters, was specifically inserted because of what happened in Tauranga involving the member of Parliament for Tauranga, the Rt Hon. Winston Peters. Two days prior to the [1999] election, Winston Peters stated that Work and Income New Zealand had purchased something like 13 Mercedes-Benz motorcars, that he would produce proof to show that Work and Income New Zealand was out of control, and that that type of expenditure was unnecessary, unapproved, and corrupt. Unfortunately, it was never proved.

Yep. That’s right. The law that Winston Peters tried to use against his political enemies at the 2014 election was quite possibly put onto our statute books in order to guard against people like … Winston Peters.

So what does this mean for bloggers?

Theoretically I shouldn’t be worried because I never post anything “with the intention of influencing the vote of any elector” that “the person knows is false in a material particular” – I don’t post anything that I know is false unless pointing out and quoting false claims of others.

BUT…

I don’t know whether I could be held responsible for a deliberate vote influencing false claim of someone else in a comment here at Your NZ.

And not making false claims doesn’t rule out someone else maliciously making a complaint to the Police or trying to prosecute based on trumped up allegations.

Geddis thinks the court ruling may be overruled as an unintended outcome:

And I also don’t rule out a change to the statute to make it clear that Parliament simply didn’t mean the law to have this outcome. Because I really don’t think that it did!

It does seem an odd ruling by the High Court, and one that could be open to political abuse.

But proving “a statement of fact that the person knows is false” could be difficult. I don’t think it’s likely Winston will be responsible for jailing anyone.

Police won’t appeal Hager ruling

Cameron Slater said on Facebook today that the police won’t be appealing the High Court ruling in the Hager case. He doesn’t sound like a happy chap.

Then the Police ring me and tell me that they aren’t going to appeal the High Court ruling in the Hager case. So the lefty cunts who stole my data, and tried to steal an election all get away with their criminality.

They say they are pursuing other avenues, but yet again Nicky Hager has laundered stolen goods, made plenty of money and tried to influence an election…with zero consequences.

It is days like this that you really question whether or not karma exists…or why you even bother doing what you do. Still there is much to be thankful for.

Despite everything I still think I am very blessed and lucky to live in this country…though I’m not sure how long can bothered living here anymore. I might just go back to my place of birth (Fiji) or live somewhere totally different…like Israel….because New Zealand really doesn’t feel like home sometimes.

I can understand him being grumpy about a lack of progress against Hager and Rawshark, but they seem to have covered themselves effectively. The police can’t act without evidence. At least they tried (perhaps too hard).

See Hager house raid ruled illegal

I guess he could continue blogging from Israel or Fiji. If he’s allowed to leave New Zealand.

Kelsey wins OIA battle in court against Government

In her fight against the Trans Pacific Partnership Jane Kelsey has battled Minister of Trade Tim Groser for the release of information under the Official Information Act. When Groser used a blanket refusal Kelsey and others took it to court, and the High Court has just ruled that Groser treated her applications improperly.

The full court ruling is here (PDF).

Summary of judgement:

[1] The applicants have sought judicial review of a decision of the Minister of Trade (the Minister) in which he refused to release to Professor Kelsey official information contained in eight categories of documents she requested under the Official Information Act 1982 (the Act). The information requested by Professor Kelsey concerns material associated with negotiations that have led to a multi-lateral free trade agreement called the Trans-Pacific Partnership Agreement (TPP Agreement).

[2] When the Minister refused Professor Kelsey’s request, neither he nor his officials assessed each piece of information requested against the criteria in the Act for withholding official information. Instead, the Minister adopted a “blanket approach” to the request based upon his knowledge of the categories of documents requested by Professor Kelsey. I have concluded this approach did not comply with the Act.

[3] The applicants have applied for a series of declarations concerning the lawfulness of the Minister’s approach and the meaning of specific provisions of the Act.

[4] Rather than issue specific declarations I have quashed the Minister’s decision in relation to six of the categories of documents requested by Professor Kelsey. I explain in this judgment the aspects of Professor Kelsey’s request which have to be reconsidered. When the Minister reconsiders his decision he will be required to do so in a way that is consistent with his obligations under the Act, which I explain in this judgment.

This is a significant win for Kelsey and co over OIAs. There seems to be growing Government arrogance over and misuse of Official Information requests, and this is a prime example.

Some have tried to make more of this than a good victory over the OIA. For example:

Hey righties: Tell us more about how Jane Kelsey is a fake academic who doesn’t actually know a damn thing about trade agreements or the law

While this shows that Kelsey knows how to use the law to win battles, , and justifiably in this case, this does nothing to support her anti-trade and anti-TPPA stance.

What do righties think?

Matthew Hooton mixing it up with the Standardistas:

On this issue, congratulations Jane Kelsey. With it comes to OIA compliance, each government since Muldoon’s (which passed the Act) has been worse than the one before, and the slide risks continuing until the Act becomes a total irrelevance.

This is a good shot across the government’s bow that it has to comply with the law, and hopefully it will be part of encouraging a behaviour change.

Sadly, I doubt it though, and I think the OIA needs to be fully reviewed, reformed and modernised, including adding penalties for breaking it. This may also be a start for a push towards that.

I have been a big user of the OIA for many years and it would take months to get ministers in the last government to comply with the law. Now it is many more months, rolling in some cases into years. It seems each government tries to outdo the one before in terms of abusing this particular Act.

The Taxpayers’ Union put out this media release:

TAXPAYERS’ UNION TIP CAP TO JANE KELSEY

The Taxpayers’ Union is welcoming the decision of Justice Collins allowing the judicial review of the Minister of Trade’s decision not to allow access to information requested by Jane Kelsey and others relating to the Trans-Pacific Partnership negotiation. 

Taxpayers’ Union Executive Director, Jordan Williams, says:

“This is a significant victory for freedom of information and an embarrassment for the Office of the Ombudsman which has been shown up as lacking. Every day, groups from the Taxpayers’ Union to Greenpeace along with public lawyers and political journalists are hampered by a freedom of information system which is being gamed by the government.”

“For years the Ombudsman’s office has complained that the problems are due to a lack of funding. In reality, the number of appeals relating to the Official Information Act has snowballed because government agencies and politicians know that the Ombudsman is a toothless tiger.”

“Even when cases arise of officials completely gaming the system, the Ombudsman’s office won’t publicly condemn them for their actions.”

“Agencies are able to delay the Ombudsman’s investigations without consequence. As a public lawyer I once acted for a whistle-blower client who lost his job in the public sector while waiting more than two years for the Ombudsman to made a decision that never eventuated.”

“While Jane Kelsey and the Taxpayers’ Union are probably on opposite ends of most political spectrum, we absolutely commend her efforts in taking this judicial review and the victory for freedom of information and transparency. Ironically, while the High Court has been able to produce a decision the Ombudsman is still yet to determine the rest of Ms Kelsey’s original complaint.”

This is an important issue related to democracy, the legal obligations of Government and transparency.

It is good to see that it isn’t a partisan issue and Kelsey hasn’t just been attacked by political opponents, she has rightly and leftly been applauded for an important win that affects all of us.

Kelsey’s views on the TPPA and international trade are an entirely different matter.

Important issues in the Hager case

There are a number of important issues in the current Hager case in the High Court.

1. That the police be held accountable if they abuse their powers when searching for and seizing evidence.

2, That journalists have reasonable protection from having to reveal their sources.

3. That politicians and people involve in politics have reasonable protection from people illegally obtaining information and data off them.

The first is simply a legal process matter.

The second and third have conflicting needs.

It’s a very important part of a democracy that journalists are able to hold politicians to account without fear.

But it’s also a very important part of democracy that the privacy of political information and communications is valued highly.

Some of those commenting on the Hager case seem to operate under double standards depending on their political.

Is it dirty politics to use illegally obtained information to expose dirty politics? I think it can be. But that doesn’t justify the police abusing their powers of search and seizure.

And I’ll add a fourth point issue that’s getting murky:

4. Where is the boundary between being a political journalist and and a political activist who writes? And should they have the same source protections?

Media Summary of Hager’s case

From Nicky Hager Case – Breaking News Reportage:

Hager v. Her Majesty’s Attorney General, the New Zealand Police, and the Manukau District Court – a judicial review into the issue of a warrant to police last October that permitted a search of Nicky Hager’s home and the seizure of some of his journalistic material. This followed the publication of Mr Hager’s book, Dirty Politics, which relied on source material allegedly stolen from blogger Cameron Slater and passed to Mr Hager.

The hearing is before Justice Denis Clifford. Julian Miles, QC, Felix Geiringer and Steven Price are representing Mr Hager. Brendan Horsley and Kim Laurenson are representing the Crown.

During the lunch adjournment we were able to obtain a digital version of the media summary of Mr Hager’s position, as prepared by his lawyers. (They distributed hard copies at the start of the hearing, and have confirmed that this information is publishable in digital form.)

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Hager V Attorney General today

If you’re interested in following Nicky Hager’s case currently in the High Court there’s live blogging and a Twitter hashtag.

Nicky Hager Case – Breaking News Reportage

Evening Report will publish here comprehensive breaking news reportage and tweets of the Hager V Attorney General case which is being heard in the High Court at Wellington today (July 13, 2015).

ABOUT THE AUTHOR Jon Stephenson is an Auckland-based journalist with a strong interest in issues relating to media freedom.

You can also follow bits of it via the #HagerCase hashtag.

Mr Miles is now discussing the police application for the search warrant that allowed them to enter Hager’s home and seize his material. Miles says that Hager is referred to in the police paperwork as “a political author.” We don’t understand why Hager is described as a “political author” rather than a political journalist.

They really can’t figure that one out?

Journalists tend to publish news as they get it rather than compile into a book – and they usually try to at least look like they have given both sides of a story a say.

Justice Clifford and Mr Miles, QC, are discussing the law surrounding the publication of stolen material.

Miles says that the approach of journalists, as expressed in the affidavits presented in this case by former New Zealand Herald editor (now academic) Dr Gavin Ellis, Pulitzer Prize-winning US journalist Seymour Hersh, and New Zealand Herald reporter David Fisher is that the key issue is the quality of what is provided (as opposed to the manner in which it is provided).

Justice Clifford replies that that may be what journalists think, but the question is what the law requires.

There’s some interesting journalistic and legal principles involved in this case.

That it was highly political makes arguments on both sides fascinating – the job of journalists to expose political misbehaviour versus using journalism to be used as a political tool.

‘Prominent New Zealander’ case switched to High Court

This news slipped out quietly yesterday.

Prominent Kiwi’s case goes to High Court

A prominent New Zealander has had his case moved to the High Court.

The man is facing 12 charges of indecent assault brought by two complainants.

He appeared in the District Court – but the location of that court is suppressed.

He’s been remanded on bail, to reappear at the High Court next week.

Other details around the case remain heavily suppressed.

Either there are a few prominent New Zealander’s involved in court proceedings or this is the one of them who everyone seems to know about but we aren’t supposed to name because we are supposed to know what has supposedly been forced into secrecy by an unknown court. I think.

Dotcom case “totally off the rails”

It’s looking more and more like the Dotcom case is a disgrace.

I was surprised by the manner of the initial Dotcom raid and arrest, and I was concerned about the emerging story.

I’ve just seen coverage of a day on court today (Campbell Live), where it showed a performance by Kim Dotcom’s representative, Paul Davison, that seemed to be restrained but forecful incredulousness – and very disturbing.

Davison suggested, I think with good cause, “the whole process is totally off the rails”.

FBI may have Dotcom’s PC data

Today Kim Dotcom appeared to learn that the police have given the FBI copies of data from his hard drives.

There were extraordinary scenes at the Auckland High Court today, as Kim Dotcom and his legal team appeared to learn that the New Zealand police have provided the FBI with copies, or clones, of material on the hard drives taken from his home during the police raid in January.

The police have repeatedly refused to provided the same copies, or clones, to Dotcom himself.

The Crown asserted it was always clear the FBI’s intention was to take the documents back to America.

But whoever has the documents has a decided advantage, as prosecution and defence teams prepare their cases.

The Dotcom team had sought assurances that the material would not be provided to the FBI before them.

Crown lawyers had written back saying “that has not happened and will not happen without prior warning”.

But it appears it has happened.

The Dotcom legal team started in a fairly restrained fashion, but as the afternoon went on, they couldn’t disguise their surprise and even anger.

(full report video link)

The more that emerges on this case the more disquieting, disconcerting it gets. If what is already known is confirmed it indicates disgraceful policing and legal process.

Seems like shameful Kiwi policing and justice (or lack thereof).

Edit: A fairly uncomplementary comment has been posted by a lawyer on Kiwiblog:

F E Smith  Says:
May 24th, 2012 at 12:41 pm
Re the latest Dotcom stuff-up:

The biggest mistake made by Dotcom’s counsel was accepting anything said by Anne Toohey as being trustworthy. That prosecutor exemplifies the high-handed, condescending, self-righteous attitude of so many Crown prosecutors these days. Plus, you just cannot trust her. If Toohey was a part of the evidence handover, then she has really landed her colleague in the soup, poor bloke. I bet the Chief High Court Judge was furious!

The problem is, and the Crown knows this, what’s done is done and there ain’t too much that can be done to fix it. Especially given the very wide latitude US investigators are allowed by their Courts when it comes to obtaining evidence.