The Life and Death of the Political Author

Giovanni Tiso on the democratic importance of Hager v The Attorney General

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At the High Court in Wellington, on the wall next to the jury benches, there is a small bookshelf designed to hold precisely twelve hardcover bibles. Its function is to allow jurors to be sworn all at the same time, in the interest of efficiency. It is sparse, neat, nothing flashy, as befits the administration of the law.

I was there this past week for the judicial review of the raid carried out by the police on Nicky Hager’s house in October of last year. The proceedings lasted three days and were something of an education, both in terms of the legal process and the complexities of this specific case. I was clear as I set foot in the place why I thought it mattered, but my mind was quite open as to the arguments that would be advanced. I sat for the three days next to the empty jury bench and the shelf with those bibles, reporting for Scoop and trying to make as much sense as I could of it all.

You will be aware of the facts: in early September 2014, following the publication of Dirty Politics and the appearance of the Twitter account called Whaledump, Cameron Slater laid a complaint with the police, triggering an investigation into the identity of the hacker known as Rawshark. One month later, this culminated in the 10-hour raid on Hager’s house, during which the police seized a vast amount of written and electronic material.

Hager himself was in Auckland on the day. Reached on the phone by his daughter, he was able to speak to the detective in charge and make a claim of journalistic privilege. Pursuant to the Search and Surveillance Act, this obliged the police to seal every item and defer to a later date, in front of a judge, whether or not they would be granted access to it. Rather than submitting to this process, Hager opted to seek a full judicial review of the warrant and its execution. It took nearly ten months for it to reach the courtroom stage, while all the seized materials sat in storage.

Under the normal Search and Surveillance Act process, the judge would have had to consider – among other things – the chilling effect of the search on the future provision of information to media from secret sources before granting to police the right to examine the information. However, a key claim made by Hager’s lawyers in seeking the review is that to some extent the effect had already occurred: by searching Hager’s house and seizing materials relating to his past and present work, the police sent a message to future confidential sources and whistleblowers, not just concerning Nicky Hager but any other investigative journalist. The message is: beware, for this is the latitude we think the law has given us, and these are the lengths we will go to, even in the absence of significant offending; we are quite prepared to seize everything first, ask questions later.

I say absent significant offending, because the Crown didn’t argue why searching Hager’s house was so important. Deputy Attorney General Brendan Horsley did characterise Rawshark’s actions as being vengeful and malicious, but never meaningfully disputed the claim by Hager’s lawyers that the hacked information was released responsibly, and not just by the journalists involved.

I found it significant – heartening, even – that in his closing statements Julian Miles QC, the lead counsel in Hager’s team, mounted a brief but forthright defence of Rawshark’s own conduct. It felt like an extension of the duty of care that Hager has always spoken about in relation to his sources. But it also underscored the questions that our society needs to ask itself: was the extraordinary step of searching a journalist’s house proportional to the crime that was being investigated? And if not, wasn’t this in fact the kind of abuse of power against which the law should protect journalists and, by extension, the rest of us who benefit from their work?

Was the extraordinary step of searching a journalist’s house proportional to the crime that was being investigated? And if not, wasn’t this in fact the kind of abuse of power against which the law should protect journalists and, by extension, the rest of us who benefit from their work?

Without suggesting that the only answers can come from within the judicial system, the arguments presented were fascinating. Hager’s team focused on the fairness of the warrant and lawfulness of the search, both as defined within the Search and Surveillance Act and in relation to the Bill of Rights. They produced affidavits by noted academics and journalists, including Seymour Hersh, to make the case for the overall integrity and public interest value of Hager’s work, and for the chilling effect of the search. They claimed the police should have informed the District Court Judge who issued the warrant of the full facts of the case, as suits an application ex-parte, and in particular that they should have made her aware of the question of journalistic privilege and its implications (under the so-called ‘duty of candour’). They lamented that other, less invasive and likely more fruitful avenues of investigation hadn’t been exhausted before proceeding with the search. They noted, concerning the conduct of the search, that the police was guilty of a number of breaches of privilege, the most glaring of which consisted in the content of one of Hager’s personal emails being photographed and sent to a detective back in Auckland along with the instruction ‘can you do some enquiries please’ – all while the search was in progress.

By contrast, the Crown relied primarily on narrowing the interpretation of the law and the scope of the review. The choice to treat Hager as an ‘uncooperative witness’ was legitimate, said Horsley in his opening, and at any rate ‘how an investigating body goes about an investigation is almost exclusively over to them.’ The application for the warrant was ‘unquestionably honest’, the search conducted ‘in a polite and friendly way’. If anything, had the police not been concerned with Hager’s journalistic privilege, they would have applied for the warrant sooner. Above all, there is the Search and Surveillance Act itself, with its checks on the conduct of the police including judicial review by the High Court, which ultimately mitigate against the chilling effect on journalists and their sources.

Justice Denis Clifford has reserved his judgment, which is likely to take several weeks. High Court decisions are not binding on other High Court judges, so the case isn’t an end-all, but it is likely to become a very important precedent – even more so if it’s appealed by either party, since Court of Appeal decisions are binding. In other words, there is significant inherent value in Hager having sought the review, irrespective of its outcome. It was a bold decision, and we should pause to consider its costs: not just in monetary terms, since much of the legal work is likely to have been undertaken pro bono, but in labour and human terms as well. Months of work by multiple people went into taking on the Crown and testing the law. Much like Nicky Hager’s own investigative work, its primary goal wasn’t economic gain but the pursuit of a social good.

there is significant inherent value in Hager having sought the review, irrespective of its outcome.

Any discussion of independent or citizen journalism, and of the conditions in which they are best fostered, needs to be cognisant not just of the lack of the rewards, but also of the associated risks. As things stand, and pending the outcome of the review, the Police believe that there is nothing stopping them from raiding a journalist’s house and seizing all the tools of their work, if they are determined enough to identify a source who is the subject of a criminal complaint. Think of how you would operate if all your electronic equipment and your printed documents were seized. Consider that if you happened to be present to the search and refused to surrender the password to your computer, you could be arrested. Weigh up whether or not you could bear the disruption, let alone embark upon a judicial review. Do you feel the chill yet?

One of the most intriguing details of the case is that the police, in its warrant application, chose to call Nicky Hager ‘a political author’ instead of a journalist. The choice has material implications, since it bolsters the claim that the question of privilege wasn’t adequately addressed in front of the issuing judge, but it has broader ones as well concerning the exercise of executive power. Who is the political author, and what is their social function? Are they worthy of journalistic protection, or is it the case rather that their work is not in the public interest by definition?

It is difficult not to glimpse in the police officer’s language the same tactics that have been used by politicians and commentators to denigrate Hager’s work since at least Seeds of Distrust. But it is also true that anyone who investigates almost anything could equally be said to be engaging in political work.

Better, then, to be clear about what the goal of an open, democratic society should be, which is to allow not just journalists but also political authors to write and speak freely, as well as protect their sources when they help them do the vital work of illuminating the workings of the state and other powers. While we wait for a decision in the matter of Hager v The Attorney General, we should remind ourselves that this is what’s at stake.