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“A creeping authoritarianism from the current government”

Written By: - Date published: 4:17 pm, October 28th, 2015 - 37 comments
Categories: Abuse of power, Dirty Politics, human rights, journalism, police, Spying - Tags: , , , ,

The reaction to Westpac handing over Nicky Hager’s data to police is still playing out. Dita de Boni writes:

Privacy right is not a right when not ‘right’

I don’t know about you, but in my life I seem to recall hearing numerous times that all sorts of information cannot be given to me “for privacy reasons”.

Whether it be information about our household digital television account, or my child’s ear infection medication, or a text message, say, sent by a Prime Minister to a highly prominent sportsman or blogger, “privacy” is often the reason trotted out for stonewalling.

It seems the main reason a journalist – or even a citizen – is denied ‘official’ information much of the time is either that releasing it is going to unleash a torrent of (metaphorical) excrement, or getting the information you’re after would be a pain in the posterior for the person being asked for it.

The exception to this is if the police are asking. It now seems as though certain institutions are more than happy to hand over incredibly personal financial and other information if the plod request it, even if they’ve skipped the part where they’re supposed to get the proper legal documentation to do so. Some institutions actually wait for a formal, legitimate request before complying with police fishing expeditions. Others, notably Westpac Bank, do not.

It now emerges Nicky Hager has complained to the Privacy Commissioner about what’s happened and also wants a ‘full and frank’ disclosure from Westpac.

It will be more than anyone else has had. Westpac say they won’t comment on what they do with customer information because it’s an ‘internal policy’.

Again, you may think Nicky Hager deserved the treatment he’s had. You may not agree with him in general. But remember that whatever treatment’s been handed out to him can be handed out to anyone with the ‘wrong’ connections, the ‘wrong’ information, and the ‘wrong’ intentions.

Privacy increasingly seems to be only your right if you are on the ‘right’ side.

Rob Hosking (let out from behind the paywall) is similarly forthright:

Hager, toadying and the ‘company policy’ copout

There are many troubling aspects to the revelations activist author Nicky Hager had his personal financial details handed over to the Police, without so much as a by your leave, by Westpac Bank.

This whole business should disturb anyone who believes in governments maintaining a certain restraint. This goes to the core of liberal-conservative political philosophy. Governments have to justify themselves to citizens – not the other way around.

There is, as noted here many times over the past couple of years, a creeping authoritarianism from the current government – and, in fact, across the political culture, with government support partner the Maori Party, as well as Labour and Green parties, moving in more authoritarian directions.

It is about, in the end, free citizens versus over-reaching, arrogant officialdom.

“A creeping authoritarianism from the current government”. Yes, yes there is.


In other Hager related developments “Court decision puts Hager back in frame” – this is loopy, I might try and write on it tomorrow.

37 comments on ““A creeping authoritarianism from the current government” ”

  1. Tracey 1

    Who else does the SC have implications for?

    Journalists having to be extra careful about verifying where i fo has come from?

  2. Tracey 2

    Summary of SC Decision.

    ” Supreme Court of New Zealand
    Te Kōti Mana Nui
    85 Lambton Quay, Wellington
    P O Box 61 DX SX 11224
    Telephone 64 4 918 8222 Facsimile 64 4 471 6924
    20 October 2015
    MEDIA RELEASE – FOR IMMEDIATE PUBLICATION
    DIXON v R
    (SC 82/2014) [2015] NZSC 147
    PRESS SUMMARY
    This summary is provided to assist in the understanding of the
    Court’s judgment. It does not comprise part of the reasons for that
    judgment. The full judgment with reasons is the only authoritative
    document. The full text of the judgment and reasons can be found
    at Judicial Decisions of Public Interest http://www.courtsofnz.govt.nz
    The appellant, Jonathan Dixon, worked for a company which provided
    security services to a bar in Queenstown. During the 2011 Rugby World
    Cup, members of the English rugby squad visited the bar, including the
    vice-captain Mike Tindall. Mr Tindall was seen socialising, then leaving,
    with a female patron. This was recorded on the bar’s closed circuit
    television (CCTV) system. Mr Dixon obtained a compilation of the
    relevant CCTV footage and attempted, unsuccessfully, to sell it to
    overseas media interests. He eventually posted it on a video-sharing
    site, where it was picked up by various media outlets.
    Mr Dixon was charged with accessing a computer system for a dishonest
    purpose under s 249(1)(a) of the Crimes Act 1961. Section 249(1)(a)
    provides that a person commits an offence if he or she “directly or
    indirectly, accesses any computer system and thereby, dishonestly or by
    deception, and without claim of right … obtains any property, privilege,
    service, pecuniary advantage, benefit, or valuable consideration.” The
    Crown case was that the digital footage that Mr Dixon had obtained was
    “property”. At trial in the District Court, Judge Phillips accepted that the
    footage was “property” and directed the jury accordingly. Mr Dixon was
    found guilty, and sentenced to four months’ community detention and
    300 hours of community work.

    Mr Dixon appealed to the Court of Appeal against both conviction and
    sentence. The main ground of the conviction appeal was that
    Judge Phillips had erred in finding that the digital files were “property”
    under s 249(1)(a). After the hearing, Mr Dixon also raised complaints
    about his trial counsel and about the Judge’s summing up. The Court of
    Appeal accepted that the files were not property within the meaning in
    the Crimes Act because they were simply “pure information”, the
    orthodox view being that information is not property. However, the Court
    considered that Mr Dixon was guilty of accessing a computer to obtain a
    benefit, which is also an offence under s 249(1)(a). Exercising its power
    to substitute a verdict under s 386(2) of the Crimes Act, the Court of
    Appeal quashed Mr Dixon’s conviction and substituted a conviction for
    obtaining a benefit. The Court was satisfied that none of the other
    matters raised by Mr Dixon justified quashing his conviction. The Court
    also dismissed Mr Dixon’s sentence appeal.
    The Supreme Court granted Mr Dixon leave to appeal on the question
    whether the Court of Appeal erred in dismissing his appeal.
    Prior to the hearing in this Court, Mr Dixon dismissed his counsel and
    presented submissions for himself. Those submissions focussed on
    errors which he argued had been made by the trial Judge, resulting in a
    miscarriage of justice. Written submissions filed on his behalf by counsel
    before they were dismissed supported the Court of Appeal’s finding that
    the digital files were not “property” but argued that the Court of Appeal
    was wrong to exercise its power to substitute a conviction.
    The Crown argued that the digital files were not “pure information” but
    were “property” within the meaning of the legislation as they were things
    which could be owned and dealt with in the same way as other items of
    personal property.
    The Supreme Court has unanimously dismissed Mr Dixon’s appeal. The
    Court has held that Judge Phillips was right to find that the digital files
    which Mr Dixon acquired were “property” for the purposes of s 249(1)(a),
    and that the Court of Appeal was wrong to quash Mr Dixon’s conviction
    for obtaining “property” and substitute a conviction on the basis he
    obtained a “benefit”.
    The Court has reached this conclusion taking account of the fact that the
    word “property” does not have a fixed, technical meaning but must be
    interpreted in context. Here, “property” was defined broadly, to include
    both tangible and intangible property. Considering both statutory
    purpose and context, “property” in s 249(1)(a) included the data files at
    issue. Those data files were identifiable, were capable of being owned
    and transferred and had an economic value; they fell within both the
    popular and legal meanings of “property”. The Court was satisfied that it
    is a more natural interpretation of s 249(1)(a) to say Mr Dixon took
    “property” when he acquired the digital files, than it is to say that he
    acquired a “benefit”.

    The Court also considered whether Mr Dixon’s trial miscarried. The
    Court has found that Mr Dixon had the opportunity to put his explanation
    for his conduct before the jury and there is no risk of a miscarriage of
    justice resulting from the way the case was left to the jury by trial counsel
    or the trial Judge.
    Accordingly, the Court has reinstated Mr Dixon’s original conviction for
    obtaining property contrary to s 249(1)(a) and has quashed the Court of
    Appeal’s decision quashing that conviction and substituting a conviction
    for obtaining a benefit contrary to section 249(1)(a).
    Gordon Thatcher, Supreme Court Registrar (04) 471 6921.”

    • McFlock 2.1

      Interesting. Ha, so Dixon represented himself and fluffed it.

      So assuming that the police will try to do Hager for receiving (s240), I suppose it comes down to the value of the “property”. I suspect the value would be less than $500 dollars, but they might try and claim the book sales as benchmark, ignoring the added value of actually writing the book.

  3. veutoviper 3

    Thanks for the post. There is a lot going on in various media on the complex issues which have surfaced as the result of Hager’s court proceedings.

    Rob Hosking’s NBR article appears to now be behind the paywall unfortunately. I presume it was out for a while from comments on Twitter.

    Matt Nippert on Twitter provided a link to this very relevant Herald article by David Fisher in March this year. (Here is the tweet and thread – https://twitter.com/MattNippert/status/659189661915463681

    A taste of the Herald article below – full article at https://t.co/FXz5rgF5Da

    “Broad swathes of people’s personal data are being sought regularly by police from airlines, banks, electricity companies, internet providers and phone companies without search warrants by officers citing clauses in the Privacy Act.

    Senior lawyers and the Privacy Commissioner have told the Herald of concerns over the practice which sees the companies voluntarily give the information to police.

    Instead of seeking a legal order, police have asked companies to hand over the information to assist with the “maintenance of the law”, threatened them with prosecution if they tell the person about whom they are interested and accept data with no record keeping to show how often requests are made.

    The request from police carries no legal force at all yet is regularly complied with.”

    The full article is well worth reading as it gives good background to the Westpac release.

    Katie Bradford TVNZ has been doing follow-up on this release, and earlier today tweeted that Westpac had now “clarified its policy, will confirm a named individual as a customer, any further information requires an appropriate order/warrant”.

  4. Tracey 4

    s249 crimes act

    Accessing computer system for dishonest purpose

    (1)

    Every one is liable to imprisonment for a term not exceeding 7 years who, directly or indirectly, accesses any computer system and thereby, dishonestly or by deception, and without claim of right,—

    (a)

    obtains any property, privilege, service, pecuniary advantage, benefit, or valuable consideration; or

    (b)

    causes loss to any other person.

    (2)

    Every one is liable to imprisonment for a term not exceeding 5 years who, directly or indirectly, accesses any computer system with intent, dishonestly or by deception, and without claim of right,—

    (a)

    to obtain any property, privilege, service, pecuniary advantage, benefit, or valuable consideration; or

    (b)

    to cause loss to any other person.

    (3)

    In this section, deception has the same meaning as in section 240(2).

    • Tracey 4.1

      hmmmmm Slater might need to take his own advice?

      • Rosie 4.1.1

        It’s hard to think of how Hager has been treated by the Police and not compare it with how Slater has been been treated by Police. One is a friend to Key, one is not. (Although Hager’s only concern with Key is political, not personal) Simplistic thinking but it’s impossible to not to see that connection.

        E.g: ” s249 crimes act

        Accessing computer system for dishonest purpose

        (1)

        Every one is liable to imprisonment for a term not exceeding 7 years who, directly or indirectly, accesses any computer system and thereby, dishonestly or by deception, and without claim of right,—”

        So, Slater accesses the Labour Party’s membership database complete with credit card details and doesn’t get charged? What ever happened there?

  5. Tracey 5

    ContentsPrevious sectionNext sectionTag sectionRemovePrevious hitNext hit

    Crimes involving deceit

    Heading: replaced, on 1 October 2003, by section 15 of the Crimes Amendment Act 2003(2003 No 39).

    240Obtaining by deception or causing loss by deception

    (1)

    Every one is guilty of obtaining by deception or causing loss by deception who, by any deception and without claim of right,—

    (a)

    obtains ownership or possession of, or control over, any property, or any privilege, service, pecuniary advantage, benefit, or valuable consideration, directly or indirectly; or

    (b)

    in incurring any debt or liability, obtains credit; or

    (c)

    induces or causes any other person to deliver over, execute, make, accept, endorse, destroy, or alter any document or thing capable of being used to derive a pecuniary advantage; or

    (d)

    causes loss to any other person.

    (2)

    In this section, deception means—

    (a)

    a false representation, whether oral, documentary, or by conduct, where the person making the representation intends to deceive any other person and—

    (i)

    knows that it is false in a material particular; or

    (ii)

    is reckless as to whether it is false in a material particular; or

    (b)

    an omission to disclose a material particular, with intent to deceive any person, in circumstances where there is a duty to disclose it; or

    (c)

    a fraudulent device, trick, or stratagem used with intent to deceive any person.

  6. ianmac 6

    As an amateur, the Court seemed to be saying that the context was important. To steal material from a computer for monetary gain is a crime. Hence the barman who tried to make money by selling the tapes was in trouble.
    The context for Nicky was quite different as the Public Interest is a very long way from stealing for profit.
    I therefore reckon that the Court will not sentence Nicky for theft. I hope!

    • Draco T Bastard 6.1

      No one stole the information. In fact, the people who had it in the first place still have it. This is because the information was copied and not stolen.

      Thing is, Hager didn’t even do that bit – someone else did and then handed it to him which he then used in the Public Interest.

      • Tracey 6.1.1

        well, the deception bit confuses me t be honest, cos I am not sure how Hager was being deceptive?

        “Every one is guilty of obtaining by deception or causing loss by deception who, by any deception and without claim of right,—

        (a)

        obtains ownership or possession of, or control over, any property, or any privilege, service, pecuniary advantage, benefit, or valuable consideration, directly or indirectly”

        and did he access a computer system? I mean Ede did and Slater did with the Blomfeld thing…

        Accessing computer system for dishonest purpose
        (1)
        Every one is liable to imprisonment for a term not exceeding 7 years who, directly or indirectly, accesses any computer system and thereby, dishonestly or by deception, and without claim of right,—

    • Tracey 6.2

      I’ve been wondering about Jason Ede. Sure the source was Labour Party website was “open” to people looking but none of the property owners gave permission for their data to be “taken” let alone passed on to Slater? Each person whose credit card details were looked at and passé don to Slater would need to have given permission before others taking it or using it would be lawful?

      Then there is the Blomfeld situation. Again involving Slater. Slater had an onus to ensure the data was coming into his hands with permission. Even IF the Director said it was his hard drive, that doesn’t mean the data relating to other people held on that drive were his to give to Slater? I would imagine then publishing said data for personal vendetta, boost ratings (money fro advertisers)?

      I am just surmising, don’t fully understand those situations or the deepest implications of the Dixon ruling.

  7. weka 7

    Don’t know if this has been covered yet, but are we sure this is a Westpac issue, or is it a banking industry issue? Anyone asked their non-Westpac bank what their policy is? Any other bank offered any comment?

  8. Smilin 8

    “You need no experience, credentials, or even common sense to be a financial pundit. Sadly, the louder and more bombastic a pundit is, the more attention he’ll receive, even though it makes him more likely to be wrong.”Cant give the source I didnt ask permission
    Pinched for a good reason to exaggerate and to help explain how corrupt this Key bastard is .

  9. Dave 9

    Radio NZ……put 2 and 2 together…. kind of makes you wonder if they have been patted on the back….

    Updated at 4:23 pm on 5 October 2015

    Westpac has been retained as the government’s main banker.
    The Australian-owned bank will continue to provide transactional banking services for the Crown, after the lucrative contract was put up for tender for the first time in 25 years.

    • ianmac 9.1

      And Simon Power became the CEO when he left Parliament.

      • Tracey 9.1.1

        Not CEO I don’t think. he is now in Australian head office I think

        • Tracey 9.1.1.1

          ” Cabinet minister Simon Power will be taking over as the head of Westpac Private Bank, it was announced today” 2011

          That is the part of a bank where you generally can only get access if you have funds exceeding half a million. That’s where you can access returns which in the public bank get described as “if they are too good to be true…”

          “Simon Power was appointed General Manager, Consumer Banking & Wealth in May 2015. The business unit incorporates Westpac’s retail network, together with small business and the Private Wealth Management division.

          Prior to his current appointment he held the roles of General Manager, Business Bank, Private Bank, Wealth & Insurance; Managing Director, Private, Wealth & Insurance and before that, Head of Private Bank for Westpac New Zealand Limited.

          Simon joined Westpac in 2012 following a 12 year career as a Member of Parliament in New Zealand. Between 2008–2011 he served as Minister of Justice, Minister of Commerce and Minister of State Owned Enterprises, among other portfolios.

          During that period he led significant reform and change in financial market oversight and regulation in NZ.”

      • Smilin 9.1.2

        Yeah he set up the machinery that allows this govt to do what they do when he was Minister of Justice

  10. James 10

    and Green parties, moving in more authoritarian directions

    Come again?

    • Smilin 10.1

      Yes cant see that

    • Lara 10.2

      Yeah… that was the only bit in the article which surprised me.

      As a Green Party member I’m not seeing it. Not at all.

      • arkie 10.2.1

        The misrepresentation of the Greens is a national pass time it seems.

        • Murray Simmonds 10.2.1.1

          This statement struck a discord with me too. Where’s the evidence ??

          Put up or shut up.

          Or even better, (on this blogsite will do) publicly withdraw the statement if you are unable to justify it.

  11. vaughan little 11

    managerialism leads directly to authoritarianism.

    the healthy flow of information through a society is as important as the healthy flow of cash. if people try to build dams everywhere so it backs up into nice little swimming pools, you get a sick, stagnant society.

    resentment, resentment everywhere!

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