The diagnosis isn't good, Judith

Watching National's Health spokesman, Dr Shane Reti, on TVNZ yesterday morning was instructive:

In four minutes, he managed to undermine both his leader and deputy leader - refusing to twist th knife Collins had attempted to plant in Labour, by acknowledging the government was doing "the best they can" and they were confronted with a "hard problem" and referencing a "productive" meeting with Health Minister Chris Hipkins.

This moderate - dare I say commendably mature attitude? - distances him from Collins' complaint about the government withholding information from National and Brownlee's conspiratioral mutterings and indicates a fissure between three of the four most important people in the putative National government just weeks out from the election.

If the chap you've got lined up to be Health minister is quietly signalling he doesn't agree with the leader - in the middle of a pandemic - it doesn't give voters many reasons to be enthusiastic for you.

Covid is kinda of a big deal in 2020 and National have blown their chance to actually make the government look shakey on it by being even shakier themselves.

With the polls suggesting National will struggle to reach the 35% threshold Collins has indicated represents 'victory' in her curiously inverted world, perhaps Reti is looking beyond the election, aware that he has a future – either in in politics, academe or medicine – and Collins and Brownlee do not?

He seems to represent a less dangerous future for National and - given there will occasionally have to be National governments - that needs to be encouraged.  All the more reason for centrists inclined to (sometimes) support National to vote AGAINST the party this year - to crush the Collins leadership and drive her faction (promoted by Cameron Slater and his allies through dirty tricks and blackmail, as outlined in Dirty Politics) out of the party.

Hager to hit 40K

While the Usual Suspects might complain, predictably, about the 'morality' of donating money to help someone who has 'profited' from a criminal act, or tried to 'influence' an election, the support fund for Nicky Hager should cross the $40,000 mark sometime this afternoon evening.  Wonder if Jim Mora Simon Mercep will find time to mention it on The Panel?

That's an astonishing achievement, given it has only been running a couple of days and - lets be honest - helping out Nicky Hager isn't quite as viscerally appealing as helping a brave woman hurt trying to help someone being assaulted.

But, it seems, the pockets of the left are deep, and they see this is important enough an issue for us to reach into them. And I thought socialism was supposed to equate to poverty?

(Also, a salute to any honourable right wingers who have donated to the fund, interpreting the raid on Hager's home as an abuse of state power against an individual. I have more time for principled opponents than unprincipled allies.)

Where will this end? Somewhere well past $50,000, I hope. I don't know how much of a lawyer you can get for that amount, or for how long you can have it for, but there is something psychological about the number. A good big number may cause a few queasy stomachs among the Wellington police and in the Prime Minister’s office. They may not have anticipated a real fight through the courts. All sorts of things might come to light there. Oh, dear.

There is going to be an almighty fight. Do they think it is worth it?

And maybe they will think twice, next time, before they set the Repressive State Apparatus in motion.

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.