EDITORIAL: At 7.40am on October 2, 2014, five police officers and a staff member from the Police Electronic Crime Laboratory arrived at the Wellington home of investigative journalist Nicky Hager, who happened to be out of town. But his daughter was home, and her room and belongings were searched and a female police officer was present as she dressed.
Police wanted to know one thing: who was Rawshark? That was the code name for the source, presumed to be a hacker, who provided information used by Hager in his then newly published book Dirty Politics. They searched Hager’s house for 10 hours and left with two computers, one laptop, four mobile phones and a charger, a sim card, an ipod, a dictaphone, a camera, two memory cards, a hard drive, more than 100 compact discs and more than 100 pages of documents. They also seized or cloned 16 USB sticks and cloned one smart phone.
The High Court determined in 2015 that the search was unlawful. And this week, at long last, police apologised to Hager as part of a settlement.
Journalism is not a popularity contest. Hager would accept that many in New Zealand do not like his methods or the conclusions he reaches. Sir John Key, Prime Minister at the time of the search, called him a conspiracy theorist and the insult is often repeated, although there is no basis for it. Hager’s fact-checking is famously rigorous and watertight.
But even those who dislike or disapprove of Hager would agree that the police deserve to be embarrassed by this week’s apology. Many would be shocked by the police’s short cuts and deceptions as they investigated Hager.
Police now admit that they got 10 months of bank records from Hager’s bank with an informal information request and without a production order. A search warrant was obtained even though Hager was not a suspect. Police failed to mention, when applying for the warrant, that Hager could claim journalistic privilege.
After the search, police obtained Hager’s private information from third parties including Air New Zealand, Paypal, Customs and Jetstar, again without disclosing that Hager could claim journalistic privilege. Some parties were told that Hager was being investigated for criminal behaviour including fraud, although there was no basis for that.
Professor Ursula Cheer, Dean of Law at the University of Canterbury, calls the police apology “a vital win for journalists, their sources and freedom of expression”. Others go further and say it reveals a failure by police to recognise the constraints on their powers and the importance of individual rights. Either way, our police should be better than this.
Some might see a pattern at work. In 2017, Kim Dotcom reached a settlement in his lawsuit against police for unreasonable force in their 2012 raid on his home. Dotcom argued that a “military-style raid on a family with children in a non-violent case went far beyond what a civilised community should expect from its police force”.
Three years before the Hager search, media companies were searched by police investigating a secret, accidental recording of Key and former Act leader John Banks that became known as the “teapot tape”. Police response that time also seemed to be wildly disproportionate and to have an overt political flavour to it.
– The Press