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NZSIS Apologises To Nicky Hager For Unlawfully Obtaining Private Phone Records

Press release on behalf of Nicky Hager

The NZSIS has agreed to publish a public apology for unlawfully seizing Mr Hager’s private phone records, and to pay him $40,000 in compensation.

“This is an important result for journalism”, said Felix Geiringer, one of the barristers representing Mr Hager. “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 events that followed the release of Mr Hager’s 2011 book, Other Peoples Wars. That book was about New Zealand’s military and intelligence activity in Iraq and Afghanistan. It was the first time the likelihood of civilian casualties during Operation Burnham was raised in public. An inquiry later confirmed that this had occurred and that officers in the New Zealand Defence Force had misled ministers and the public about this.

The then prime minister John Key publicly described the book as a “work of fiction”. However, behind closed doors the New Zealand Defence Force went looking for Mr Hager’s sources. The NZDF enlisted the NZSIS’s help and, 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,” said Mr Hager. “However, much more needs to be done to prevent unlawful actions by bodies such as the NZSIS. Our intelligence services repeatedly claim that they have become more transparent and more careful to obey the law. But 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.”

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“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.” said Mr Hager. 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.

“This was the formal position taken by the NZSIS after it had supposedly reformed,” explained Mr Geiringer. “It suggests that nothing had really changed in the internal culture of the NZSIS”.

“The intelligence services are anything but transparent,” said Mr Geiringer. “Our intelligence services are exempt from oversight through the Human Rights Review Tribunal, and there is a bill before Parliament which would prevent our courts from reviewing the decision of an intelligence service 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 Mr Geiringer is dubious about this claim. “As part the settlement negotiations, Mr Hager requested publication of the NZSIS’s new media policy, but the NZSIS refused,” explains Mr Geiringer. “To prevent unlawful searches of this kind, 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. And 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.”

Barrister Steven Price has also been assisting Mr Hager with this issue. “Despite the ongoing issues, it is nice to see this recognition by the NZSIS of the importance of journalism to our democracy”, said Mr Price. “This settlement underlines the need to protect the work of journalists. 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.”

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