Herald at their sanctimonious best

The NZ Herald editorial bangs on today in support of Nicky Hager.

It isn’t surprising though given the level of involvement with the hacker themselves. One of their journalists still happily skites, to anyone who will listen, about how many of my emails he has.

When the High Court threw out the search warrant used by police to seize the work of journalist Nicky Hager, it was less a judgment in favour of the media than a judgment against the police. The law is clear. When it comes to search warrants, there is a line which protects all in society, and in some cases particularly the press. Police must behave in unlawful ways to cross that line.

As the judgment explains, a warrant is gained without notice so as not to thwart the benefit of a surprise search and in doing so strips from the subject of the search the opportunity to make their own opposing case to the court.

For police, it meant those seeking the warrant from the district court judge were obliged to make Hager’s case for him. They were supposed to tell the judge the warrant involved a journalist, for there are court-defined guidelines for searching media. Detectives were obliged to acknowledge that the Evidence Act provides a journalistic privilege, which is further recognised in the Search and Surveillance Act.

The judge was told none of this. Instead, police identified Hager as a “political author”. In the High Court, the police argued they did not need to tell the district court judge Hager was a journalist, or that journalists had rights. It was legal sophistry which terminally undermined the police case. As Justice Denis Clifford remarked, there was a duty of candour on police to be frank, honest and open with the district court judge about what it was doing, who it was doing it to and why it was necessary.

This of course is bollocks. According to the Herald, and a Judge appointed to the bench by Michael Cullen, the Police have to inform a judge of all points and aspects of law. He’s a judge for goodness’ sake. Only the most bewildered judge wouldn’t have known who Nicky Hager was. It’s complete bollocks.

The courts have found the need for protecting sources to be so high that only a greater public interest will strip them away. That detectives did not mention this in seeking the warrant suggests officers might not fully grasp its importance. It is appropriate the Independent Police Complaints Authority has chosen to act on the complaint filed by the Green Party to investigate the decisions that caused the search warrant to be sought in this way.

And who determines public interest? Here’s a clue…it is the courts not the media, although they believe it is them who should be judge, jury and executioner. Nicky Hager could still be compelled under the Evidence Act to produce his sources…after all, if it was in the public interest to publish all my emails surely it is in the public interest to find out who committed the crimes to do so.

The media is not an investigative tool of the state, nor a prosecutorial aid for the state. It must not be seen to be used as such for fear the benefit of a free press is diminished, as was argued in Hager’s case, because of the chilling effect on potential sources. If it were used in these ways, ultimately, the public interest would not be served.

Hager didn’t have a source, or a whistle blower or anything else. What he had was a criminal hacker, someone he had used and met before. A crime was committed and Hager, the left-wing and the Herald are suggesting that a criminal should be protected by the law because they are now a “source”. That, if you think about it, has a more chilling effect; that people like me who have broken no laws, are subject to extra-judicial hacking, crime and theft and the person responsible can’t be found because they are now a “source” of a journalist. I wonder how the Herald will react when someone decides to act extra-judicially and does the same to them and splashes their life all over other media.

Rather, it is of benefit to the state to have a free press which protects potential sources. A free press enhances our democracy by emboldening voices which strain to be heard, by trafficking in information which needs to find its way out. A free press strives to shake our foundations to ensure they are built on rock, not sand.

This does not mean anyone claiming the title of “journalist” is free from a valid legal search. The public interest is paramount. It is so for our democracy, for media – and for the police. Just as media must not abuse its protection of sources by adopting their legal shield in unworthy cases, so must the police recognise there are good reasons for the shield. They should not try to circumvent it when it suits.

What happens when the media who seek this amazing privilege break the law? What happens when every claim they’ve made about illegality has fallen flat? What happens when the media court criminals to do their bidding and then publish the results of that crime as “public interest”. Surely there is a bigger public interest in exposing and identifying who it was in NZ politics who thought that crime against another journalist was so important.

And that is what the NZ Herald forgets. It was a journalist, not trained and skilled – but a court-defined journalist, who had his emails and communications illegally obtained…and they were part of that.

No wonder they want to protect Nicky Hager, because if the Police succeed against him then they are coming knocking at David Fisher’s door and Matt Nippert’s door too.

If the media want such freedoms then they need to act responsibly…in this case their sanctimony is sick-inducing.


– NZ Herald