The police apology to Nicky Hager has helped clarify - at last - important principles of journalistic privilege and protection for sources. But it’s the third time in recent years that state agencies have coughed up unknown amounts for botched and futile investigations of journalists.
The day after police raided Nicky Hager’s house in 2014, Newstalk ZB’s political editor Barry Soper noted Dirty Politics was still on the New Zealand best-seller list.
The book was based on private information from emails and social media accounts of blogger Cameron Slater, whose complaint to police sparked the raid.
Soper wondered on air if the receipts could count as the proceeds of crime which could be repaid if he was ever charged with one and convicted.
“But that would be a long way down the track,” he said in conversation with ZB’s Drive host Larry Williams.
Nearly four years later, we’re at the end of that track - but it’s the police who have paid out to Nicky Hager for breaking the law.
"Happy and relieved" were the words he used on Tuesday. He used exactly the same ones in December 2015 when a judicial review found the police search was unlawful.
This week Hager acknowledged the time in between had not always been happy. He told Newshub “gloom” hung over his family and he felt responsible.
His daughter - who was home alone at the time of the 10-hour search - had already been compensated for the illegal search and seizure of her possessions. (In sworn affidavits, police officers she had allowed them to search her computer, but her own affidavit said she did not.)
The Privacy Commissioner had already ruled Hager's privacy had been breached by police requests for private travel, phone and online data - and also bank records.
“An implication of this is that they thought they might find me involved in some dodgy financial dealings, maybe paying a source or being paid by someone for working on the book, which I find deeply insulting, Instead all they would have found is the personal details of my modest income. My book had, in part, been about people who were paid very well to do unethical and possible unlawful things, and here were the police going after me, not them."
- Nicky Hager in his 2015 submission to his judicial review.
Hager’s legal team said these inquiries did not reveal any of his key sources. But they could have.
He also had to go to court to retrieve his own equipment and notes and supervise the destruction of electronic copies made by the police in 2016.
What does it mean for journalism?
This week's acknowledgement of comprehensive wrongdoing by police after the search was significant for Hager personally - but also for reporting and journalists’ freedom to do their job.
“I admit that when the police raided my house I had not actually heard of journalistic privilege and what it meant," he told Mediawatch just before his judicial review got under way in 2015.
"But I understood the principle of it and while the police are doing important work in society so are people who find things out - and whistleblowers are important and deserve protection," he said.
"If we win, people will feel more secure in their work. If we lose it will be a real drag and we will have to fight it more because its so important that we have information that comes out which doesn't suit the spin doctors of the day," he said in 2015.
Three years on, police have finally conceded the raid "threatened his ability (and that of the wider media) to access information from confidential informants".
In 2015, the court heard that Hager was described in the application for a warrant as a "political author. Police chose not to emphasise to the judge that Hager was a journalist even though the Crown accepted he was one.
He believed journalistic privilege under the law ought to protect the confidentiality of information in his possession, but the judge who was asked for the warrant was not told that a claim for privilege was likely in respect of all the documents.
Police anticipated claims that the information would be privileged but an undertaking that the information would not be looked at or acted on was broken at least five times - and police made inquiries based on phone numbers and emails they saw, the court was told.
As well as asking for the search warrant, police officers sought documents from Hager's bank, telecommunications companies, and airlines.
In 2015, the New Zealand Herald’s David Fisher discovered police were routinely asking for private information about individuals from companies - and many were handing it over without a warrant.
This week Otago University law professor Paul Roth said “entities such as banks have been happy to turn out our pockets for police investigations, even where the underlying legal authority is flawed or non-existent.”
This week Hager said the 2014 raid could have scared off the primary source of his next investigative project - the book Hit and Run, which has prompted a government inquiry into an NZSAS operation in 2010 in Afghanistan.
"When the [police] raid happened, that person was so scared I could keep our communications private, they went quiet for months,” he told the Herald.
“The police acknowledgment that they can’t ignore fundamental reporter/source protections . . . has been a long time coming,” said Professor Ursula Cheer, Dean of the University of Canterbury law school.
“This is a vital win for journalists, their sources and freedom of expression, both nationally and internationally," she said in a statement released by Hager’s legal team.
Coming at a cost
The size of the police payout is confidential but also “substantial,” Hager’s lawyers have said. Hager himself said it was “closer to a car than a house” when pushed on Newstalk ZB on Tuesday.
“It gives the strongest possible indication that police accept the harm they caused and are much less likely to treat a journalist this way again. The money will help support important work in years to come,” he said in a statement.
It’s not the first time in recent years such payouts have been made to reporters.
Camera operator Bradley Ambrose was investigated by police - and newsrooms were searched by police officers - after the Teapot Tape recording in 2011.
After PM John Key called it “News of the World tactics," Ambrose sued for defamation and John Key settled out of court in 2015 - and with an apology.
The New Zealand Defence Force reached a settlement with foreign correspondent Jon Stephenson the same year - and apologised to him too - after he sued the NZDF's chief for defamation.
Back in 2011, a statement issued in his name cast doubt on the accuracy of Stephenson’s reporting from Afghanistan - effectively claiming part of Mr Stephenson’s eye-opening and award-winning Metro report on what our troops were doing there was made up.
When the case got to court, the NZDF admitted their press statement was wrong. The jury couldn’t agree on a verdict, but the NZDF only settled just before another trial.
The New Zealand Herald later used the Official Information Act to reveal that more than $1m of public money had been spent defending the case and making the confidential settlement - even though their position was so weak.
Defence defending the indefensible, you could say.
While this was also considered a ‘win’ for journalists in the end, it also dragged on for four years.
New Zealanders will probably never know the full cost of all these settlements.
On one hand these payouts can be seen as a price paid for protecting investigative journalism’s role in keeping the state honest and on the right side of the law.
But on the other, they are also examples of state agencies spending large sums of public money in an attempt to justify what they ultimately end up admitting is unjustifiable.
Insisting on keeping the final settlements secret also runs contrary to the transparency and accountability journalists strive to achieve.