spinofflive
NIcky Hager at the launch of Dirty Politics in 2014
NIcky Hager at the launch of Dirty Politics in 2014

SocietyJune 12, 2018

This humiliating apology to Hager shows just how badly the police screwed up

NIcky Hager at the launch of Dirty Politics in 2014
NIcky Hager at the launch of Dirty Politics in 2014

The NZ Police have apologised to journalist Nicky Hager over their tactics in seeking to identify Rawshark following the publication of Dirty Politics. And it must never happen again, writes Otago law professor Andrew Geddis

Readers able to remember events of more than a fortnight ago (or, events prior to Fortnite, for that matter) will recall the 2014 election campaign and those never-quite-peak-cray days of Dirty Politics. For anyone needing a refresher course, here’s a handy little explainer written by a fresh faced, up-and-coming tyro named Toby Manhire.

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

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

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

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

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

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

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

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

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

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

Excerpts from the police apology

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

Hence the complete and comprehensive nature of the apology to Hager from the police. As I’ve had cause to say about it:

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

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

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


The Bulletin is The Spinoff’s acclaimed, free daily curated digest of all the most important stories from around New Zealand delivered directly to your inbox each morning.

Sign up now




Keep going!
Photo: Getty Images
Photo: Getty Images

SocietyJune 11, 2018

Male lawyers can be victims of sexual harassment too

Photo: Getty Images
Photo: Getty Images

Harassment in the legal profession doesn’t exclusively affect women, writes Auckland lawyer Jason Cooper. It affects us all – and all of us have a responsibility to speak up.

It’s been a few months since the allegations of sexual misconduct in the legal profession were reported. Since then, many victims of sexual harassment in the profession have spoken out. The Law Society has responded by introducing a phone line for victims, conducting a survey of the profession and tasking Dame Silvia Cartwright with a review of the settings in our regulatory framework to ensure they are robust to deal with harassment in the profession.

But is this really the transformational conversation that many of us in the legal profession have been hoping for? The fact that Dame Silvia Cartwright can say she is not aware of many women who have not been harassed or bullied in the profession and yet Russell McVeagh is the only major firm that has been outed for a culture of harassment suggests there is still a lot that is not being said.

I attended the ILANZ conference for in-house lawyers a few weeks ago and was glad to learn that there would be a panel discussing this topic. But I was challenged afterwards by practitioners who described the discussion as putting too much emphasis on victims needing to “speak up” and not enough emphasis on perpetrators being told not to sexually harass their staff.

As a profession we have naturally fallen to focusing on the rules, appropriate policies, processes and support but, just as Harvey Weinstein is facing criminal charges of rape, we seem to be forgetting that strong sanctions and calling out the worst offenders are some of the best antidotes to the powerful, egotistical people that abuse others.

I think we are also going wrong in discussing this issue as one that exclusively affects women – it affects all of us. A couple of years ago I learned that a senior female practitioner was rightly dismissed from her role in the public service for allegedly grabbing the crotch of a younger male lawyer she worked with at a work Christmas party. I understand that it was a bystander rather than the victim of the assault that ultimately complained to the employer. In the circumstances, I hope this has been a good outcome for the victim and the profession. However, it raises an important point: that female practitioners can be perpetrators of sexual harassment and men can be victims.

I once had a senior female practitioner who would regularly rub my chest. At the time I was not too concerned about it but I have often looked back and thought: a) that was a bit gross, and b) what about the young male lawyer who really doesn’t want his chest rubbed? Chest rubbing is quite an intimate act, after all. On another occasion I received a text message from a senior male practitioner I worked with that included a text depiction of a penis – the message was that I was a dick. The sort of thing that you might say in a Spinoff article about a politician, but not something that you as a junior lawyer expect to be directed at you by one of your bosses.

The key issue is that sexual harassment and bullying is about power. And the impact it has on its victims is that they typically feel shame; so for some victims, expecting them to speak up is actually too much (Madeleine Holden describes well other reasons it is difficult to speak up in the legal profession in her recent Spinoff column). That is why my colleagues are right to point out that we need get better at messaging that abusive behavior is wrong and will not be tolerated.

It might be time for the legal profession to have a Golden Globe style dinner, where those of us who wish to wear black dresses turn up and proclaim that “time is up”. Or perhaps we need Julia Gillard, famous for her misogyny speech and a former employment lawyer, to do a speaking tour on the topic of harassment. I believe that symbolic acts do actually force the reflection and cultural change we need to see.

The conservative nature of the legal profession has seen us ignore some heinous behavior. I hope Dame Silvia emphasises the importance of strong sanctions in her review of our regulatory framework. I also hope that senior practitioners and large law firms begin to take full ownership of the pressing need to root out the bad behavior they have historically tolerated or overlooked. Time is up, and we need to keep this conversation going.

Jason Cooper is an Auckland based in-house lawyer working in commercial law.


The Bulletin is The Spinoff’s acclaimed, free daily curated digest of all the most important stories from around New Zealand delivered directly to your inbox each morning.

Sign up now




But wait there's more!