Statement by Felix Geiringer (geiringer.law)
The NZSIS has agreed to apologise to Nicky Hager for unlawfully obtaining his private phone records and to pay him $40,000 in compensation. I acted for Nicky Hager in relation to this issue.
This is an important result for journalism. Our intelligence services are given substantial powers for use to protect New Zealand from harm. Those powers cannot be used to go after a journalist’s sources just because the Government does not like what that journalist is saying.
The dispute related to Mr Hager’s 2011 book, Other Peoples Wars. It was the first time the likelihood of civilian casualties during Operation Burnham was raised in public. An inquiry later confirmed this and that NZDF officers had misled ministers and the public about it. Then PM John Key publicly described the book as a “work of fiction”. Behind closed doors the NZDF enlisted the NZSIS’s help to look for Mr Hager’s sources.
With no lawful authority to do so, the NZSIS seized two months’ worth of Mr Hager’s phone records. The searches proved fruitless. NZDF and NZSIS were unable to discover any of Mr Hager’s sources and eventually gave up.
“I am pleased with this result. However, much more needs to be done to prevent unlawful actions by bodies such as the NZSIS.”, says Nicky Hager.
“When I requested information from the NZSIS director Rebecca Kitteridge about the suspected NZSIS help to find my sources, she refused to confirm or deny the existence or nonexistence of the information.”
“Ms Kitteridge went on to deny any wrongdoing before the Inspector-General. She claimed that the NZSIS was justified in using its powers as it was investigating espionage, and that my actions prejudiced national security.”
The Acting IGIS found that the NZSIS had no reasonable grounds for suspecting that any espionage had occurred or that it was a matter of national security. What was said before the A/IGIS was the formal position taken by the NZSIS after it had supposedly reformed. It suggests that nothing had really changed in the internal culture of the NZSIS.
The intelligence services are anything but transparent. They are exempt from oversight through the HRRT, and there is a Bill before Parliament which would prevent our courts from reviewing decisions of intelligence services to withhold documents on national security grounds.
History has shown as that claims of secrecy on such grounds are frequently abused. External oversight is essential in a democracy.
The NZSIS claims to have reformed its policies since it seized Mr Hager’s phone records, but I am dubious about this claim. As part the settlement negotiations, Mr Hager requested publication of the NZSIS’s new media policy, but the NZSIS refused.
The NZSIS needs a clear policy stating when the use of its powers against a journalist would be justified. There also needs to be a rule that only someone sufficiently senior in the organisation can make such a decision. There is no basis for keeping such a policy secret. A secret policy is far less effective for holding them to account. The refusal to disclose the policy is a strong reason to doubt the claims of reform.
Steven Price, who also assisted Mr Hager with this issue, stated, “Despite the ongoing issues, it is nice to see this recognition by the NZSIS of the importance of journalism to our democracy. Journalists need to be able to convey to the public important information from well-placed sources. That process should not be undermined by intelligence officials trying to unlawfully ferret out those sources.”
