Speaker by Various Artists

55

Confidential information: the legal rights and wrongs

by Nicole Moreham

One of the questions raised by Nicky Hager’s new book Dirty Politics is when it’s okay to access or publish confidential information.  Has Hager has acted unlawfully by publishing the emails which he says were leaked to him after someone hacked into Cameron Slater’s Whale Oil site?  On the other side of the coin, have the PM’s advisor, Jason Ede, and Cameron Slater done anything wrong if, as Hager claims, they accessed Labour’s donor and supporter data via a loophole in the party’s website?  What about the hackers of Slater’s emails?  

Publishing Dirty Politics

Let’s start with Hager.  He claims that the book is based on thousands of pages of emails between Slater and others which were leaked to him out of the blue by an unnamed person or persons.  He says the emails were obtained during an attack on the Whale Oil site following Slater’s comment “Feral dies in Greymouth, did world a favour.”  There is no suggestion that Hager was himself involved in the hacking of the emails so the question is: was Hager entitled to publish the emails he published?  

The answer is yes, as long as the public interest in the emails outweighs the competing rights of those who wrote them.  So how do we work that out?  There is a pretty good argument that material in Dirty Politics is in the public interest.  The public interest is particularly strong where information relates to the behaviour of elected politicians.  Dirty Politics is making some serious allegations about that behaviour and it’s arguable that the public should hear them.

People also have no right to keep secret communications which reveal wrongdoing.  This “iniquity” defence could justify many of Hager’s disclosures including, for example, the alleged exchange in which Slater and political commentator, Matthew Hooton, provide details of Hager’s address to lawyer, Cathy Ogders, who wants it made available to “vicious” individuals whom she appears to believe will have it in for him.

On the other side, though, are the emailers’ rights to privacy and confidentiality.  There can be little question that the emails were confidential and that anyone reading them would have known that.  Slater, Collins etc would probably also have a “reasonable expectation of privacy” in respect of the emails’ contents.

But how heavily does that weigh in the balance?  The breach of privacy/confidentiality here is significant – the need to protect correspondence is widely recognised – but it is not at the worst end of the scale.  Hager has not published information about the emailers’ health, sex lives, family lives, or financial position.  And the emails disclosed were written by the parties in their professional capacity.  This is not as serious as disclosing emails between, say, John Key and his wife or between David Cunliffe and his kids.  In light of that, my money would be on the public interest prevailing. 

Accessing Labour Party donor lists and supporters

So what about Hager’s allegation that, following a tip-off, Slater, Ede and others accessed sensitive information about Labour donors and supporters via a loophole in their website?  Does that account, if accurate, reveal wrongdoing?

Accessing a computer without authorisation is a crime under section 252 of the Crimes Act 1961.  It says:

(1) Every one is liable to imprisonment for a term not exceeding 2 years who intentionally accesses, directly or indirectly, any computer system without authorisation, knowing that he or she is not authorised to access that computer system, or being reckless as to whether or not he or she is authorised to access that computer system.

“Access” and “computer system” are defined pretty broadly and so the provision would seem to catch the activity allegedly undertaken by Ede and Slater.  The question is whether Ede and Slater knew or were reckless about whether their access was unauthorised.  Slater and Ede might be able to claim that they assumed that their access was “authorised” because they got the information via a publicly available website.

But there are lots of ways such an argument could be refuted.  Its success might depend, for example, on how easily Slater and Ede got hold of the information – if a person needed a tip off and/or sophisticated computer skills to get at the donor and supporter lists, it would be hard to argue they thought they were for general consumption.

And what about other indications that the information was not intended for Ede and Slater’s eyes?  Might the structure of the website have made this clear?  Or the nature of the information itself – a court might say it is obvious, for example, that members of the public weren’t meant to be seeing donors’ credit card details.

Ede and Slater’s subsequent comments are relevant here too.  According to Hager, Ede writes an email expressing relief that Labour didn’t realise he’d accessed their material.  And Slater wrote a blog post talking about “Labour’s Leaks”.  These comments could undermine any argument that they thought they were allowed the material all along. 

Labour might also have a claim for damages against the hackers.  The strongest claim here is in breach of confidence.  Recent English case law (Tchenguiz v Imerman) says that it is a breach of confidence simply to access confidential information which is stored on a computer, even if you don’t publish it.  It is not clear yet whether New Zealand will follow that decision but if they do, the two key questions would be: was the donor and supporter information confidential, and if it was, should Ede and Slater have known that?

The answer to the second question is probably yes – for the reasons set out above.  The first question is trickier.  Information can’t be confidential if it is widely available.  So Ede and Slater could argue that, given it could be obtained via a public website, the donor and supporter information is not confidential.  This argument could run into trouble though if the information was not easy to get.  Again, if individuals needed inside knowledge and/or sophisticated computer skills to obtain donor and supporter lists then they probably remained confidential.  

The Whale Oil hackers

That leaves the question of the conduct of the hackers who obtained Slater’s emails.  It seems pretty likely that their behaviour was both criminal and a breach of Slater, Collins, Ede etc’s confidence and privacy.  However, since we don’t know exactly what they did or how they did it, it is difficult to comment further.

Dr Nicole Moreham is Associate Professor of Law at Victoria University of Wellington

58

Why you should vote

by James Hurman

I’ve spent most of my life being kind of unsure about why I should vote.

To the readers of this publication, that might seem unusual, or absurd, or irresponsible.

But I’m fairly normal. I’m like most New Zealanders. I’m not a very politically knowledgeable person. I’m not naturally inclined to pay attention to politics. It looks like people criticising each other most of the time, and talking in convoluted ways about things I don’t really understand the rest of the time.

When you don’t really understand politics, your ideas about voting tend to centre around two simplistic and inaccurate beliefs:

1. You vote for the person or party that you want to be in charge.

2. If it appears fait accompli that a particular party or PM candidate is going to win, then the point of voting is greatly diminished, because your one little vote doesn’t really make any difference.

Because of this, I didn’t vote much.

Then somebody explained it to me.

And I thought ‘why has nobody explained it before’?

Our campaigns to get people to vote are depressingly benign. The current campaign message is ‘vote because you have the right to’.

That campaign doesn’t even begin to explain why you should care about exercising that right.

It doesn’t address those beliefs that people have about voting, that make them unlikely to vote.

I can’t understand how it has any chance of changing peoples’ behaviour.

I can’t understand why we’re not explaining it like I had it explained to me.

It’s pretty simple:

We have this special system in our country where somebody gets to be the leader, but they get guided by a whole bunch of other people to do the right thing.

Whoever ends up the leader of our country for the next three years is going to have a group of people around them who we vote in. People who stand up for what we believe in.

Our special system means that our leader has to listen to these people. But only if we vote them in.

When you vote in New Zealand, you are not voting for the leader. You are voting for the people that will constantly remind that leader about what’s important.

If you think that our leader needs to be reminded about environmental issues and kept from making environmental blunders, then vote for the party that you believe cares most about the environment.

If you think our leader needs to be reminded about economic growth, and kept from making economic blunders, then vote for the party that you believe cares most about the economy.

If you think our leader needs to be reminded about Maori issues and kept from ignoring Maori issues, then vote for the party that you believe cares most about Maori people.

If we don’t vote them in, then there isn’t anyone keeping our leader honest. Our leader will have free reign to do whatever they please.

So whatever we do, we should never not vote because we don’t think our favourite party has any hope of winning the election.

We should vote because we want our leader to have to listen to what we think is important.

We don’t need to give those other parties many votes for them to stand up for what we believe in.

But if we don’t give them any votes, then nothing we believe in will be stood up for.

That’s why you should vote.

James Hurman is the founder and Principal of Previously Unavailable, a strategic agency focused on innovation, and author of the report AK2: The Coming Age of a New Auckland.

7

Jim's Festival

by Jimmy Rae Brown

As he did last year, Jimmy Rae Brown has been ushering and assisting at the New Zealand International Film Festival. This means he gets to see quite a few films -- the ones he works at and the ones he chooses as payment for his work. This year, he's also been reviewing them in his pithy, inimitable style. Here's his list so far. They're all a minute or two long ...

Patema Inverted, The Congress

Enemy

Under the Skin

Kung Fu Elliot

Animation Now, Fish and Cat

The Tale Of Princess Kaguya

Feel free to add your own. And no, you don't have to make a video ...

16

A true commitment

by Diane White

In recent weeks, the Government has come out in support of a push for strangulation to become its own offence. One of a number of recommendations by an independent committee into family violence deaths, the Family Violence Death Review Committee (FVDRC), it would see what’s called “non-fatal strangulation” become a separate offence under the Crimes Act 1961.

In the context of domestic violence, non-fatal strangulation is currently dealt with under s 194 of the Crimes Act, what’s commonly known as “male assaults female”. Essentially, the FVDRC argues that the current way in which we deal with non-fatal strangulation fails to recognise the both physical and psychological damage caused, and its seriousness as an offence. Further, as Catriona McLennan wrote this week, non-fatal strangulation serves as a “red flag for future serious abuse and possible death of the victim”. The futility of the move, however, was raised by Warren Brookbanks, who rightly questions the deterrent effect of such a change.

The issue of violence against women has become, for this government, a major black mark against its name. On one side, Collins and the National government are pushing the line that crime has reduced under National (although how much of that is attributable to National’s leadership as distinct from increased use of warnings by the Police, dodgy stats, and global trends is highly questionable).

On the other hand, the New Zealand public has become increasingly aware of the damning stats around sexual and domestic violence. Off the back of the shameful Malaysian diplomat saga, National is under pressure to look like it’s serious about tackling violence against women.

So it’s no surprise to see Collins come out in support of the FVDRC recommendation. For the average voter unfamiliar with how the courts operate, Collins will get points for “making strangling a woman a crime”. National will be in no hurry to correct voters that strangling a woman is, of course, already an offence, and a judge has the ability to take into account the serious nature of the offence in weighing up the factors at play in the offending. Collins will bandy this around as an example of how this government is serious about tackling violence against women; an instance of National getting tough on crime.

On the other side of the coin, we have the Minister of Justice mocking another politician’s attempt to address New Zealand’s culture of violence against women – from a boxing match, no less. We have the Prime Minister refusing to apologise for the way his Minister handled an alleged rape claim against a diplomat. We have Collins’ self-described close personal friend and the man she claims to be this country’s best media source, Whale Oil, questioning whether Billingsley “made it all up” because she once went to a Rape Crisis fundraiser. It’s against this backdrop that we must assess the Government’s commitment to truly address violence against women.

So far, that commitment can, at best, be described as superficial tinkering. Support for policies such as the non-fatal strangulation offence relies on the flawed and widely disproved assumption of general deterrence: the idea that every man about to offend against a women is making a rational choice, weighing up his actions against the possible consequences. In almost all offending, this is all but a myth, but even more so where the offender does not even view his actions as criminal, worthy of sanction, or unlikely to be reported. A man does not stop and contemplate strangling his partner because the crime is separately listed under the Crimes Act 1961 and subject to a harsh penalty; he stops because he has been socialised to value and care for his partner.

If we are to address violence against women, we have to accept that surface level, minor change is not where the solutions lie. Gendered violence runs through our country’s veins. It is pervasive, and the issue is vast.

When dealing with an issue of deeply-rooted culture, seemingly small and insignificant actions are where the change starts. Key standing up and saying “I am sorry for the actions of my government and I apologise to Tania Billingsley” would go further to addressing the issue of gendered violence than a change in the Crimes Act. Collins tweeting “Cunliffe may have been clumsy in his wording but he’s right: this is an issue all men need to take ownership of – whether or not they are violent against women” would have sent a loud, resounding message to New Zealanders that this government is committed to tackling violence against women.  Collins, as Minister of Justice, coming out against Whale Oil and saying “I do not support Cameron Slater’s comments on Tania Billingsley and we need to believe women” would’ve shown a true commitment to challenging rape culture and violence against women.

The fact the issue is so pervasive and requires such deep social change does not, of course, preclude a government from taking more immediate, legislative actions. But we should not be fooled into thinking that National’s willingness to tinker is backed up by the deeper, more genuine commitment to addressing the systemic issues that truly underpin violence against women. What we have seen in recent weeks is the complete opposite.

We need to stop talking about violence against women as if it can be “solved” by tweaking an Act or giving the maximum penalty to an offender. The way men offend against women is inextricably tied to the way society perceives women, and when we simply increase the penalty for an offence, we’re not targeting the root of the problem. When the major issue in domestic violence cases is reporting, it may even have the opposite effect, making women more unlikely to report the offending for fear of the impact that could have on their partner and family.

The solution here does not lie in legislative change alone. It lies in the way each individual conducts themselves. And that’s exactly where this government needs to start. 

146

Not even a statistic

by "Katrina"

A report published in February in The Lancet says Australia and New Zealand have more than double the global average of sexual assaults on females aged 15 and over by someone other than their partner.  It suggests that data from these two countries is good and that, maybe, the high rate is due to a higher rate of reporting violence to police in Australia and New Zealand, with under-reporting happening elsewhere. They may be right, I don’t know. However, reporting to police and having a police report that can be counted in violence statistics are two very different things.

I went to the police on the afternoon of my first rape. I was a schoolgirl and had been raped that afternoon on the floor of the living room of my family home by my math tutor. My sister had been reading upstairs and had heard my screams. My parents were away from home for the afternoon, leaving us safely in the hands of a trusted private tutor. Following the rape, I bundled my torn skirt and stained cottontail panties into a plastic bag and rode my bike to the police station.

I was not taken into a private area. I stood in the public reception area of the police station, recounting events and having to, publicly, answer questions. Yes, I had been a virgin, no, I didn’t encourage him. Yes, I said no.

The police officer didn’t take notes. He told me that rape cases like mine could never be proven so laying a charge was a waste of time. He said if I did insist on charges being laid that it would cause huge embarrassment for my family that would affect their public standing in the community. He said that girls my age were ready to experiment with sex and that sometimes things got out of hand, that this wasn’t the man’s fault because men couldn’t stop once a girl initiated sex play. He said that the tutor, a man twice my age, couldn’t be expected to know I was under-age because I looked mature. He said that a lot of women liked rough sex and that my torn clothing and undies didn’t indicate anything out of the ordinary.

Then he said I shouldn’t tell my parents because it would embarrass and upset them to know that their daughter had behaved like a little slut. He told me to go home. I did. There is no police record of this rape. Years later, I saw the perpetrator’s name in a newspaper. He was convicted of raping a young woman.

The police attended on the occasion of my second rape. I was beaten, brutalised, and raped in front of a stranger (to me) by my then-husband when I was six months along with our first child. The police took me to hospital instead of waiting for an ambulance and on my discharge, five days later, took me home-back to the man that had used steel-capped boots and his fists on me.

I was 23-years-old, in a country far away from family, emotionally and physically messed up from the loss of my pregnancy, and very, very vulnerable. I’ve never forgotten the first question the senior police officer asked me: “What did you do to provoke him?”

The police interviewed me at home yet, despite obvious visual clues to my beating, despite a hospital report detailing external and internal injuries, despite a witness, they decided there was not enough evidence with which to lay charges.

The officer recording my statement tore off the paper and threw it into the fireplace. He told me it was better for couples to sort their own issues out because “domestics” were a waste of police time. When quitting that marriage, my lawyer tried to locate records but there is no record of this attack. If the police held a record of their attendance they never disclosed it.

The third, and oh please! the last, also occurred in my own home. I was newly widowed and deep in grief with a steady stream of caring and concerned people calling around to offer condolences.

Some of these visits became threatening as various “friends” of my late husband, most of them married men, offered to “help” me through my loneliness. By the second month following the tragedy I had started hiding any time an unaccompanied man came to my door. I let down my guard with one old friend though. He had been solicitous and had offered nothing but sympathy and kindness so I felt safe letting him in one evening.

Over coffee, he asked how I was doing. The first inkling I had that something was wrong was when he repeated what so many other men had said over the weeks, “You must miss it. You must be hanging out for it by now”. I didn’t, I wasn’t, and wasn’t interested in anything to do with any man apart from the husband I had loved so much and lost. He grabbed me by the hair, threw me around, hit me and choked me until I passed out.

At the hospital later, following tests for STD’s and treatment for my injuries, I was-for the first time ever-offered support services. I couldn’t talk to them. I couldn’t talk to anyone. That’s the thing about strangulation that movies and TV don’t show. Both victim support and the police told me that when I was ready (and able) to talk I should contact them. I did neither.

With this last attack, I felt deeply ashamed. How could I have been so stupid as to let a man into my house? What had I done to make men think that I was desperate for sex and would welcome it no matter who and how it was offered? Did my appearance invite uncontrollable lust? Did I ask for it? The anger I had felt previously with police refusal to act had transformed into a fear of exposure to more blame and ridicule.

I stayed, locked away for weeks, in my house while the bruising and swelling went down. Neither the police nor victim support called to follow-up which, in my state of mind, confirmed that what had happened wasn’t a big deal. I didn’t matter. I never filed a complaint. My rapist got away with it.

I look at the furore occurring now in New Zealand over the allegations that a foreign diplomat sexually assaulted a NZ woman. I read online comments and a blog entry by a man having a whale of a time victim-blaming. What I see reassures me that letting a rapist escape charges was the best thing for me.

I was raped, repeatedly raped, by a partner, a “friend”, and a virtual stranger. The police couldn’t be bothered. Nobody helped me. Am I just one, or one of hundreds, thousands even? I don’t know. I know that the statistics, damning enough as they are, are bullshit. My rapes aren’t amongst them. I’m not counted as a victim. 

But, at least, I wasn’t pilloried in the media and online. I wasn’t victimised again by public opinion. Women that do bring charges are incredibly brave and have quite possibly persisted through horrible questioning and despite belittling attitudes. They may well have had to fight just to get the police to make a record. They are the statistics. I’m the piece of paper the police couldn’t be bothered writing on.

Note: "Katrina" is a Public Address reader who has asked not to be named. I will leave comments open on this post until I have to go out about 12.30pm. Unless I can ensure Emma is available to moderate, I will temporarily close the discussion while I'm out -- Russell.