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).
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:
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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.
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