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  • Rex Widerstrom

One law for Laws (and others) and one for the rest of us

some are more equal than others.jpg

I've purposely refrained from writing about the whole "Dirty Politics" saga that's so occupied New Zealand media and political observers for the past few months. Partly that's because it's been looked at from all angles by others, and I concur with some of them and don't feel I could improve on, or add to, what they've already written. In particular, Andrew Geddis at Pundit has written some excellent pieces.

But there are some peripheral, but nonetheless important, issues which have arisen out of the controversy and which have tended to be overlooked as people's attention has, understandably, been focused on the headline topics.

In the wake of the police raid on Dirty Politics author Nicky Hager and their seizing of his papers, computers, drives, phones, CDs, IPOD and camera, there has been much debate as to whether or not Hager is a journalist and is thus entitled to the special protections afforded to reporters under the NZ Evidence Act 2006. The same debate occurred earlier on about the Whaleoil blog's Cameron Slater, which eventually led to a rather confused and confusing finding by the High Court that he was, but wasn't protected by the Act in the particular situation which led to his asking for such a declaration.

Who is, and who isn't, a journalist and to what extent whistleblowers can expect protection when they disclose to someone they believe is a journalist are important questions. But they too are being well-canvassed elsewhere.

The question I want to raise is whether the treatment by police of Hager and Slater shows that we have two sets of laws in this country: one for a protected class of persons in the political sphere - those who either have the favours of the current government, of whatever stripe, and those who have the favours of another party of political figures; and the rest of us.

When police raided Hager, they were presumably acting on a complaint. Undeniably, Hager had received stolen communications from a hacker who went under the pseudonym 'Rawshark' and who had gained access to Slater's emails, Facebook chats and other private material. The complaint may well have been the one laid by Slater over the book.

Let us set aside, purely for the purposes of this argument, any question as to whether the police raid was legal and, if so, whether by carrying it out in the way they did - while Hager was away from home; taking 10 hours to do it; seemingly scooping up every bit of paper and data they could find - was appropriate. Let us also shelve for the moment the question of whether Hager is a journalist. Let us assume, in other words, that the NZ Police acted appropriately in response to a complaint alleging a breach of privacy and the theft of personal information, and behaved in exactly the way we would wish them to.

Compare this, then, with the response of the same NZ Police to an allegation that Slater had committed precisely the same offence.

That was laid in May 2012. What seems to have happened since is: precisely nothing.

Now, facing a storm of criticism over their handling of Hager - whom police confirmed is merely a witness, not a suspect in their investigation - suddenly the complaint against Slater comes up for "review".

I have no idea whether Slater has committed a crime, and it's certainly not my intention to imply that he has. And, while he's often given to braggadocio, I don't for a moment believe Slater can pick up the phone personally and call off an investigation into himself.

Nor am I about to launch into a conspiracy theory suggesting direct intervention on his behalf by the PM's office or the then Justice Minister, though given some of the revelations in Dirty Politics and subsequently, one could be forgiven for at least entertaining such a possibility.

Rather, I see it as another in a series of incidents in which the NZ Police make purely political decisions about the pursuit (or lack of pursuit) of alleged criminality.

What must be borne in mind is that the police are no different to any government agency. They are funded by a Vote of Parliament and their ability to operate prescribed by statute. It's widely understood that Defence, for instance, actively lobbies government for more resources (whether it gets them is another issue entirely). Yet when laws are passed giving police greater powers - which by definition are always at the expense of ordinary citizens - and more money, the assumption is that it's an unsought boon.

Of course in some cases that's exactly what it is: there's no shortage of politicians willing to trade other people's freedoms away for a vote-winning image of being "tough on crime and the causes of crime". But all too often it's a case of an MP or Minister failing to understand the statistics and accepting the interpretation fed to them by their ministry. Police the world over are adept at lobbying, and unlike many who seek to influence government they have two channels:

  • Their unions, who put substantial funs into political campaigns ($199 million in the US, for instance) and who campaign for more equipment, money and manpower as well as for 'traditional' union issues such as better pay and conditions; and

  • Their senior officers, who always seem to enjoy the ear of a Minister who's predisposed to view them as honest brokers rather than lobbyists.

Other departments get to lobby their Minister through their CEO and perhaps second-tier management, but their unions are focused on pay, job security and conditions. Business has paid lobbyists (and so do an increasing number of NGOs), but no direct line to government. Only the Police have this unique relationship with lawmakers.

[So I don't have to labour this too much, I'll instead refer doubters to an excellent book,

The Politics of the Police by Robert Reiner which looks at the UK, a situation far more akin to NZ's, where SuperPACs and the like have yet to emerge and where the influence of money, while it shouldn't be underestimated, isn't nearly as significant as in the US]

What, then, causes one complaint to be acted on with relative haste, resulting in a heavy handed raid some characterise and deliberately intimidatory, and another to simply disappear for two years until unprecedented scrutiny forces a "review"... and even then one that is to be conducted by:

...a detective senior sergeant who was currently on holiday. She didn't know how long the review had been going on, or when it was likely to be complete.

In a word (or two): political considerations. Is the person complaining more influential (in terms of outcomes the police want to see) than the person complained about?

In the two cases I've cited so far, Slater is an avowed champion of the police. Even when he posts a piece headed "Police bungles eroding public confidence" he immediately mitigates its impact by saying "99.9% of the police force must be tearing their hair out right now", reassuring his readers the only 0.1% of police officers ever do anything wrong. He's also an associate of the current government - albeit less of a close one now than prior to the election.

Hager, on the other hand, is just the sort of investigative writer who'd likely expose police wrongdoing if given the chance, and who's clearly out of favour with the government of the day. Worse still - from Hager's perspective - he'd embarrassed the Labour Party by blindsiding Helen Clark with claims about GE crops. He has no political friends - at least none powerful enough to count in the calculations made by the Police.

As I said earlier, I'm not alleging Slater or anyone in the government has interfered with a police investigation. They don't have to.

In March 2011, Michael Laws wrote in his Sunday Star Times column (since taken offline):

In the end, justice has been done, blackened eye and all. Now let's similarly identify the other Christchurch looters and mete out similar justice.

The NZ Summary Proceedings Act 1957, section 6, includes amongst its provisions the subclause:

(2) A Court presided over by a District Court Judge shall have summary jurisdiction in

respect of the following indictable offences, and proceedings in respect of any such

offence may accordingly be taken in a summary way in accordance with this Act,


(bb) attempting to commit any summary offence, or inciting, counselling, or attempting to procure the commission of a summary offence ...

Read in conjunction with the Summary Offences Act 1981 which, at section 9, creates the summary offence of assault, it seemed to me that any person “inciting, counselling or attempting to procure” the commission of an assault is, prima facie, in breach of the law.

I therefore duly laid a complaint with the NZ Police on 13 March 2011. That's 1,307 days ago. Or if you'd prefer, 3 years, 6 months, 27 days. Unsurprisingly, the police have yet to so much as acknowledge receipt of the complaint.

Though he's since stepped out of public life - for how long remains to be seen - Laws was at the time a newspaper columnist and radio talkback host. And, like Slater, an outspoken supporter of the NZ Police, even calling for them to be routinely armed. And even when criticising them, it's to say they "lacked the guns, the plan and the balls to get" an offender and that procedures preventing such a bloodbath had created "institutional cowards".

There's any number of other cases involving someone politically connected that have seen equal inertia from police. The dismissal of a complaint against a Labour MP who resigned amidst a scandal involving a distressed and naked young man running down a Wellington street till he found a police car, rather than airing the issue in court; the lack of any prosecution arising out of 113 alleged offences against the NZ Electoral Act... and so on.

So where does all this lead us? Or rather, me, since I cannot assume you agree with the premise of this post. To the need for an Independent Commission Against Corruption, similar to the Australian model, with the power - beyond that of the Independent Police Conduct Authority - to review decisions to prosecute and not to prosecute, as well as other aspects of police behaviour.

Or, a separate investigative body for anything with political overtones, just as NZ has the Serious Fraud Office for large-scale business malfeasance.

The day has passed when we could be complacently confident that the NZ Police are beyond any form of corruption, even if it's "noble" corruption and not the more insidious forms. If we are to have confidence that political considerations aren't influencing criminal investigations, then our own ICAC is a must.

It's something on which Cameron Slater and I are in vehement agreement. And I suspect Nicky Hager may be too.

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