Help Nicky Hager

I don't think my little blog will draw in much support that isn't already aware of the defence fund set up to help Nicky Hager, thanks to the efforts of the much more widely read (but younger) The Standard.

But you never know.  Perhaps some of my loyal readership in Ukraine will feel their lives are not already difficult enough, and will decide to take up the cause of a New Zealand journalist.

Those wanting to contribute may do so here.

Currently, the fund stands at over $16,000, which is quite impressive.

UPDATE - Almost up to $24,000!  Thank you (on Nicky's behalf) people of Ukraine!

Is Hager a journalist?

One claim I'm seeing repeated in various guises is that Nicky Hager may not have been acting as a journalist when he published Dirty Politics and thus can not claim protection under section 68 of the Evidence Act.

An example of this was left in the comments section on yesterday's post:

I think this revolves around whether he is a journalist as defined in that section. Recent judgement was that a book author was not a journalist.

The case referred to by my anonymous correspondent is based on the case of David fisher, the NZ Herald journalist who wrote a biography of Kim Dotcom.

David Farrar - an honest commentator if ever there was one [/sarc] - commented on the case, siding (unsurprisingly) with the police in their dispute with Kim Dotcom.  He refers favourably to the judgement handed down by Justice Helen Winkelman.

Farrar's main point, incidentally, was that the judgement was correct because, "Otherwise it would have given some authors a special status that other authors do not have." Then, a few lines later, he contradicts himself, saying, "I would never assume that telling things to someone writing a book has the same journalistic protection as talking to someone writing for a newspaper," which is, surely, giving some authors (newspaper writers) "special status" that others don't have.

I don't mind people disagreeing with me, I don't even mind if they are wrong (the two are nearly, but not entirely synonymous). I do mind when they are idiots who contradict themselves within a couple of breaths.

Getting back to Hagar, and whether he is acting as a journalist hen he published a book revealing hitherto concealed, important information to the public.  I think you can detect a whiff of bias in the way I framed that.  I think exposing the activities of the political class is the essence of journalism.  I think it is absurd to suggest that Hagar would enjoy legal protection if he had published his revelations in a newspaper, but these protections disappear because he sandwiched them together between thin cardboard covers.

With regards Fisher, his case was being considered under the Privacy Act.  Under that act, a 'news medium' is defined as "any agency whose business, or part of whose business, consists of a news activity" and Justice Winkelman found Mr Fisher did not count as a news medium in his own right:

Mr Fisher’s authorship of the book was not undertaken by a “news medium”. It is true that Mr Fisher is a journalist working for a news medium, the New Zealand Herald, and that in that capacity he has written extensively on Mr Dotcom. But his book on Mr Dotcom is not affiliated with the Herald, and was published by an independent publishing agency. There can be no suggestion that Mr Fisher is himself a news medium as that phase is defined in the Privacy Act. (Paragraph 69)

Her second reason for her decision was:

The definition of news activity protects two different forms of journalistic endeavour in its two limbs: preparing stories and disseminating stories. The first limb protects gathering, preparing, compiling, and making of observations on news, for the purpose of dissemination. The second limb protects the dissemination of the prepared story, provided it is about news, observations on news or current affairs. The end product of the two activities is specifically provided for in the definition: articles and programmes. Investigative journalism takes its form in long, detailed articles, which are covered by the Act’s definition. Books, however, are not.  (Paragraph 70)

That would appear to be fairly clear, yeah?  Books are not considered to be 'journalistic endeavour' or 'news activity'.  Which looks bad for Hager.  You can't be a journalist if you write books, right?!

But, Justice Winkelman's ruling was under the Privacy Act.  That is not the act that I, or my anonymous correspondent, was referring to.  We were talking about the Evidence Act, a very different piece of legislation.

(It is worth noting that the ruling was the result of some very complex legal buggering which I don't

According to the Evidence Act, Section 68, a journalist "a person who in the normal course of that person’s work may be given information by an informant in the expectation that the information may be published in a news medium" and "news medium means a medium for the dissemination to the public or a section of the public of news and observations on news."

('News' is not defined. I recall, from my media student days, a handy definition - "News is something that someone, somewhere, does not want people to know." If you don't want to go with that definition, then I think we can safely 'news' define as "Stuff not known before that is of public interest.")

That's a massively broader definition than the one used in the Privacy Act.  I would say it easily encompasses Hager's activities.  He's a person; the normal course of his work involves receiving information from informants; when informants give Nicky Hager information, it is on the understanding that he is going to publish it in a book or article; and a book like Dirty Politics is a medium for disseminating news and observations on news.

I think Hager is safe under those definitions as Rawshark gave him information to disseminate through the medium of a book. And it was definitely in the public interest and definitely something the powers-that-be would have preferred to keep quiet.

I do not know if the legal means exist to exploit other acts to get at Hager's information.  But as it stands, my anonymous friend is making a comparison between apples and wildebeest and saying they are the same.  A ruling based on the provisions of the Privacy Act doesn't mean that a similar ruling would be made using the provisons of the Evidence Act.  They are very different pieces of legislation, serving different purposes and using different definitions.

n.b. Please don't take this as expert legal opinion and go to court based on it.  I might be totally wrong.

Hager raid: mis-use of the Evidence Act?

Assuming the police have not been totally incompetent, and are acting under the law when they searched Nicky Hager's home for material identifying Rawshark, it sets a worrying precedent, as Hager himself has stated.

I think the justification used is basically the same concept outlined by Justice Asher with regards Cameron Slater in the Blomfield trial. Asher ruled that while he (Slater) might be a journalist, and thus protected by section 68 of the Evidence Act; but as the material was obtained criminally, the public interest in apprehending the criminal negated Slater's right to not disclose sources, and the exceptions detailed under section 68.2 applied.

High Court Justice Asher’s ruling was that Slater had to cough up names because “This is not a whistleblower case. There are no political issues, or matters of public importance at stake … There is nothing to indicate that the informers have been driven by altruistic motives”  (Paragraph 129.)

(No, I did not read it all - hat tip to LPRENT at The Standard for doing the hard work for me).

That was for Slater; but there is no comparison with the Hager / Rawshark situation.  In Hager's case, there is a political angle and there is a public interest in knowing our political leaders are venal backstabbers.

Further, the exemptions outlined in 68.2 do not seem to apply.

Hager’s reputation and credibility would be seizing of his documents even if it leads to the identification of Rawshark.  Thus, the first article of 68.2, where the public good in apprehending Rawshark outweighs "any likely adverse effect of the disclosure on the informant or any other person", does not apply.  Hager would undoubtedly be harmed more than we would be helped by the violation of his right to protect his sources.

As for the second article, where the public good in apprehending Rawshark outweighs "the public interest in the communication of facts and opinion to the public by the news media and, accordingly also, in the ability of the news media to access sources of facts" does not seem to fit either.  There is an overwhelming public interest in Rawshark's detailing of the sordid goings on in the beehive and on Whaleoil.  That public interest would not be served by compelling Hager to hand over his documents.  As Hager points out, if police are allowed to seize documents and computers over something as comparatively trivial as Cameron Slater's pique, it will make sources and journalists very uncomfortable - and not just those directly associated with the case.  Public interest are not served by making people more nervous of speaking out against abuse of power.

These are very important concepts that are intrisic to journalists being able to hold those in power to account.  It is very #*%$ing doubtful that the disclosure of who hacked into an attack blog is in the same league.

I’d say NEITHER 68.2 a and b apply (and they both must for the first article to be set aside).  It is a massive imbalance of interests. Hager's work as a journalist is far more important to the good of New Zealand society than Slater's desire for revenge.

Police raid on Hager's home

The police raid on Nicky Hager's home, seeking information relating to the identity of the hacker Rawshark, has provoked perfectly predictable reactions from the left and from the right.

From the right comes predictable gloating and strange claims that Hagar is getting his comeuppance for Dirty Politics.  Which overlooks the whole public interest argument around the issue, and suggests a really worrying short-sightedness on their part.  If it is okay for the apparatus of the state to target people who annoy a right wing government, presumably they accept it would be okay for the same apparatus to target people who annoy a left wing government.

El Salvadorian death squads, Pinochet's Chile and Stalinism legitimised in one ill thought through outpouring of right wing partisan gloating!

Or, to put it another way:

And that's okay if you're on the unprincipled, tribalist right.  As long as the police are stamping on lefties, its okay.  And it could never be any other way, could it?

From the left comes the wild assertion that this is the action of a police state and an attempt by the Powers That Be to suppress dissent and opposition.  This is, on current evidence, a paranoid over-reaction.

The police were not targeting Hagar himself.  They were looking for evidence identifying Rawshark.

Hagar is not being targeted for publishing Dirty Politics.  He is being investigated as the recipient of stolen information.  Stolen in the public interest, but still stolen. That's a crime. The police are seeking evidence relating to a crime and Hager has already acknowledged they are quite right to do so. He just thinks the police are being more than necessarily stupid thinking he would leave Rawshark’s name on a post it note stuck to his computer screen.

Hager has already said the police had warrants and were empowered under law to search his property for evidence. The law may be draconian, but the actions of the police appear to be covered by it.

Rawshark committed a crime. No-one denies that. It was (probably) in the public interest but it is still a breach of the law. A complaint appears to have been made and the police are investigating it.

That is not controversial.

What may be controversial is the enthusiasm with which they have gone about the job. A bit like Slater's OIA requests, this one seems to have been suspiciously expedited.

The state that we're in

First, a nice song:

Listen while reading what follows.  It will help, one way or another.

One of the basic tenets of most strains of socialism is that people are the product of their environment.

This can be abstracted to the nth degree, with the materialist view of the world; or targeted specifically, where we try to tease out the socio-psychology of the individual.  The concept is the same, and fundamental to most socialists.  Circumstances create people before people create circumstances.  Otherwise, why bother about the material and economic relations of society?  If they aren't fundamental to the shaping of people, why worry?

But there's an uncomfortable shadow to that, the fact that we live in a society that has been openly, aggressively encouraging selfishness, individualism and consumerism for over three decades, in most countries of the developed world.

If we accept that people are formed by their environment, then we probably have to accept that people have been changed by the relentless narcissism and consumerism which has been the (hem) predominant discourse in western societies for the last 30 years. This is why I’m not convinced by the loud voices wailing that Labour's current woes can be alleviated by a sharp turn to the left.

People voting National are not going to suddenly vote Labour when they are offered a more left wing alternative. They’re going to be even more repelled. The most we can do, in the short term, is pry off the centre vote, and then when people realise the Sky Has Not Fallen, persuade them it will still not fall if we move a little bit further, then a little bit further.

The neo-liberals had the advantage of circumstance when they moved the country the other way in the 80s. But I think a crisis generally favours the right (and they deceived as to how far they were going to go) as witnessed by the right wing retrenchment after 2008.

Unless there is some system busting crisis (which we’ve been waiting for for over 150 years now!) Fabianism is probably the only way for the left to return to power. Bolsheviks might dream of seizing control and imposing (their version of) the dictatorship of the proletariat, and then persuading people they were right all along, but most historical examples warn against that route.

(By Bolsheviks, I meant (nearly) literally that – a small group of extremists seizing power by non-democratic means. This happened in the 80s, when the neo-liberal Bolsheviks won power through deception. Do we want to go down that road? Democracy requires winning the argument before taking power.  If we can not win compliance, coercion or deception are our only options.  I don't think they are good ones.)

It’s an argument born of practicality.  Yes, we're facing a catastrophe in the form of climate change and environmental destruction.  But the Greens get about 10% of the vote. They need another 40% before they can do anything. The planet, unfortunately, is a big place and it is hard to take in the impact of human activity.  And people – weaned on consumerism and selfishness for three decades – are more receptive to iphones than egalitarianism or environmentalism.

Hence the needs for small steps.

The missing million have sat out three elections now. It is unlikely they will be tempted back in significant numbers. They are the flip side of the neo-liberal-narcissistic-consumerists; the permanently disenfranchised and alienated.

If they couldn’t be bothered voting AGAINST John Key, what sort of inducements can we offer them that will get them to vote FOR the left? It’s a pleasant fantasy that they will roll up to the polling station in 2017, if only we offer a sufficiently leftwing program … And even if we entertain that fantasy for a few moments, what do you think will happen to centrist voters if Labour lurches left? They’ll leave, probably in greater numbers than the ‘missing million’ are being won back.

(The great thing about the ‘missing million’ delusion is that it can be recycled, of course. It’ll work just as well prior to the 2020, 2023, 2026 and 2029 elections as it does now.)

They won't vote because they don't care. It's alienation.  It's not a pleasant thing to contemplate, but it seems to me to be the reality.  If you don't like reality, you can dream about them all you like. You can devise a fabulous platform of policies. They won't listen in significant numbers. And for every one you win, you'll lose two at the other end. You might not care, too much, but you won't win. Savour your ideological purity because it is all you'll have to enjoy until 2026.

And in the mean time, another generation will have had their lives blighted by the right.

Media malice

There has been a lot of talk, over on the Standard and elsewhere, about media bias.  The election was lost because of it.  Cunliffe's leadership ruined because of it.  The Scottish independence referendum lost because of it.  The media are to blame for climate change.  And so on.

The last two may actually have some slight merit.  I commented a few times on the hysterical reaction of the Mail to the possibility of Scotland leaving the union.  If anything though, that showed how powerless the media actually are as opinion shapers.  Inspite of their relentless pro-union coverage, polls narrowed, and unionist panic increased.  In the end, I doubt the Mail's hysteria made a difference.  The final result was what had been predicted in almost every poll - a win for the union camp.

That's an example of genuine, palpable media bias.  But what about the claims of media bias distorting politics in New Zealand?  Are our media really just opinion trumpeters for National and Act?

Yes, ultimately, the mainstream media is in the hands of the capitalist class - of course it is, as it is a means of making money - you wouldn't expect them just to leave something like that just lying around for the proles to get their hands on, do you - but that does not mean that tere is a strong or persistent bias against Labour or in favour of National or Act.  Bluntly, there isn't really enough difference between the National and Labour for it to be worth while running a deliberate campaign to undermine Labour.

There's something similar and more visceral going on here.

The media likes one thing - winners and losers.

Yeah, I know, that's two things.  No-one expects the Spanish Inquisition!

The media love to celebrate a winner, but even more, they love to put the boot into a loser.  Labour, unfortunately, has been looking like a loser for almost a decade, now.  It's hard not to, when you've churned through a grab back of leaders and the party is polling 30% and National is on 50% (remember those heady days when 30% seemed low!?).  That's why I've always eschewed talk of grant multi-party coalitions.  We live in an MMP environment, but most people don't think MMP.

IF Labour managed to drag the party to the right side of 30% ... (Dare I say the right side of 35%?) and managed to stop the continual factionalism and squabbling, and had a leader with the sort of vim and energy of Norman Kirk, or the grim technocratic authority of Clark, the media would be much more positive towards Labour.  National, of course, has had someone who has looked like a winner since 2006, which is a bit of an advantage for them

Consider how the Greens were treated in the election.  They had a fairly easy time of it.  This wasn't because of Norman's comment about working with National, but because the Greens were seen as a party on the upswing ... so the media - being little more than nasty bullies - didn't put the boot in.  Or contrast the treatment of Don Brash - the media had a field day with him, once they decided he was a rightwing zealot (worse) and a fumbling loser, not the plain speaking champion of middle New Zealand.

Ultimately, the mainstream media exist to sell advertising to people.  As long as they perceive people as being more inclined towards the right, they will pander towards that.  Labour needs to makes itself important and interesting again.  Then the media will be ready to make nice.

Carpetbaggers

So, those wishing to participate in the Labour leadership election (2014 edition) have until 11.59pm on Wednesday the 1st of October to join.

I won't be joining, but I've noticed an alarming number of people on The Standard announcing that they will join, because they want to vote in the election.  Fair enough.  But then they add that if David Cunliffe doesn't win they will resign their membership.

This is a particularly worrying aspect of the Cunliffe cult-of-personality that seems to have deranged too many on the left.  The really seem to think Cunliffe is something different to the other options.  Much talk is made about factions and positions and ABCs and the need for a shift to the left (as if the million voters who have studiously say out the last three elections while National assailed their quality of life will be motivated to vote if Labour just nudges a bit further left ...)

This over looks the fundamental reality.  Cunliffe, Robertson, Shearer and whoever else you care to name are just politicians.  They are all politicians. Cunliffe comes across as no different to Robertson or Shearer – he’s a professional politician, just like them, and part of the monied, highly educated elite, just like them. He doesn’t speak to the ‘missing million’ – you may have noticed they didn’t show up last week.

One is good at waving his hands about and shouting at John Key.  The other is liked by his colleagues but no-one else.  The third one has an amazing backstory and isn't shouty but possibly isn't even very talky.

But that's beside the point.  The issue is the carpetbaggers - people signing up just to vote for one candidate and intending to flounce off in a huff if he doesn't win.

For people contemplating joining and planning on leaving if their preferred candidate doesn't win ... please don't. What you are doing is profoundly undemocratic. It's tantamount to stuffing the ballot box.

Beofre you join, ask your self it you would still be willing to maintain your membership if Cunliffe (or whoever) is not elected leader? If not, don’t join. It’s a democratic process electing the leader of the party and if you aren’t willing to accept the decision of the party, you have no business joining it. People doing that are simply trying to fix the result.

(I suspect they might often be the same people signing the ludicrous ‘recount’ petition and who are claiming the election was fixed …)

If you are not willing to stick with the result of a democratically agreed decision, you have no business joining a party just to try to force the decision one way or another. If you want to join a party, fine, but it is a commitment, and you shouldn’t be resigning just because your favoured candidate didn’t win. If your loyalty is that precarious, you shouldn’t be joining that party in the first place.

What if a horde of Nats joined up with the explicit intention of voting for Robertson? Would you be happy with that?

Don’t lie and say you would be.