Journalistic Privilege upheld as police warrant and search ruled unlawful (published on 23 February 2016)
In 2015 the High Court ruled in Hager v Attorney-General that a police warrant to search a journalist's house, and consequently the search itself, was unlawful.(1) The judgment offers useful comment on the importance of disclosure by law enforcement agencies seeking warrants, particularly where journalistic privilege is concerned. However, it does not address the question of who is a journalist, or what journalism is, for the purposes of the privilege.
Nicholas Hager, described in the judgment as an investigative journalist, had published a book during the 2014 general election campaign called Dirty Politics.(2) The book claimed that Cameron Slater, in coordination with persons associated with the governing National Party, was running a "dirty tricks" campaign through Slater's blog, Whale Oil. Hager publicly stated that much of the book was based on information provided to him by a source (to whom he had promised to preserve confidentiality) and that he was aware that the source had hacked the information from Slater's computer.
Slater complained to the police that his computer had been accessed illegally. As part of their investigation, the police applied for a search warrant of Hager's home, on the basis that he was an uncooperative witness. The warrant was issued by a District Court judge. Police conducted an extensive search of Hager's house and seized numerous electronic devices as well as hard-copy documents. The documents seized included some that revealed the identities of six of Hager's confidential informants, who were irrelevant to the police investigation. Hager claimed journalistic privilege over the material searched and seized.
In the application regarding the subject of the decision,(3) Hager challenged:
- the decision to apply for the warrant;
- the lawfulness of the application for the warrant;
- the lawfulness of issuing the warrant; and
- the lawfulness of the search itself.
The challenges were based on a number of grounds, but the only one with which the court dealt in detail regarded the disclosure of journalistic privilege
issues, which affected the lawfulness of the application and issue of the warrant, and therefore the subsequent search.
The decision proceeded on the assumption that Hager was a journalist, but contained no discussion of the fact. This is surprising, in light of recent decisions and discussion regarding the definition of journalists and the media (see the Comment section below).
Disclosure and duty of candour
The key issue was whether the application for the warrant adequately drew matters of journalistic privilege to the District Court's attention. The High Court referred to the common law duty of candour, which requires disclosure of all matters relevant to a warrant, and held that the duty was extensive and demanding. The duty arises from the fact that warrants are necessarily without notice. The general right of persons, against whom the state seeks the intervention of the law, to know of and oppose such applications, is displaced in the case of warrants, leading to a higher onus on the party making the application. A failure to discharge the duty of candour, notwithstanding good faith, can render a warrant invalid or unlawful.
In the present case, matters relevant to the warrant included issues relating to journalistic privilege. The court referred in particular to Section 68 of the Evidence Act 2006, which provides that if a journalist has promised not to disclose an informant's identity, the journalist is not compellable to answer questions or produce documents which would reveal the identity of the informant, unless a High Court judge considers that the public interest in disclosure outweighs the public interest in the protection of sources. The court also referred to a leading Court of Appeal decision Television New Zealand v Attorney-General (TVNZ), concerning the issue and execution of search warrants against the news media, which set out five guidelines for the issue of search warrants against journalists and news media organisations.(5) Particularly pertinent to Hager's case was the third guideline, which provided that:
"... only in exceptional circumstances where it is truly essential in the interests of justice should a warrant be granted or executed if there is a substantial risk that it will result in the "drying-up" of confidential sources of information for the media."
The court held that the application fell short of the duty of candour by failing to refer to:
- Hager's status as a journalist;
- the rights conferred on journalists under Section 68 of the Evidence Act;
- the general principles recorded in TVNZ; and
- the recognition of those rights in the Search and Surveillance Act 2012.
In concluding that there had been a breach of the duty of candour, the court rejected the crown's submission that the issue of journalistic privilege had been sufficiently drawn to the District Court judge's attention by reference in the application to Hager as a "political author", together with the description of the news media analysis undertaken as part of the police investigation (which included excerpts of interviews that Hager had given) and the District Court judge's own knowledge.
Effect of Search and Surveillance Act
The court also rejected the crown's submission that journalistic privilege did not need to be drawn to the issuing judge's attention because of privilege and confidentiality provisions in the Search and Surveillance Act. The relevant provisions under that act establish procedures for privileged materials to be seized, but not searched, pending adjudication by the High Court of a claim for privilege. This was the course of action the police had taken. The crown argued that the search and seizure provisions under that act provided adequate protection for claims of journalistic privilege, obviating the need for the matter to be drawn to the issuing judge's attention.
The court considered that the Search and Seizure Act did not replace the protections set out in Section 68 of the Evidence Act or TVNZ. Pursuant to Section 68, journalists have a presumptive interest in protecting the confidentiality of their sources. It was for the search warrant applicant to persuade the court that relevant public interest in disclosure outweighed the public interest in the preservation of confidentiality. This reflected developments in common law in both New Zealand and the United Kingdom, which showed a growing acceptance of a significant public interest in the dissemination of information by journalists, and the consequent need to protect the confidentiality of journalists' sources. Without such protection, sources might be deterred from providing information to the press, which in turn might undermine the public watchdog role performed by journalists.(6)
The court also referred to the Law Commission report Search and Surveillance Powers, which recommended the regime now provided for in the Search and Surveillance Bill.(7) The report emphasised the policy rationale behind the protection of journalists' sources and recommended protections for those instances in which a warrant was granted. However, it also stated that it was not intended for such measures to be the sole regulation of enforcement power in relation to news media material and noted that such cases had been treated as a special category by the courts.
In light of the above, the court concluded that Parliament had not intended the enactment of the search and seizure provisions to obviate the need to notify a judge issuing a search warrant that it may affect journalistic privilege, or of the principles in relation to the protection of the privilege. The court considered that this conclusion was supported by the role of judges in considering and granting applications for search warrants. In relation to news media warrants, judges had to be satisfied that:
- the police themselves were aware that the privilege might arise;
- adequate protections were in place to secure any privileged material that was seized; and
- the warrant was justified regardless of procedures in place under the Search and Surveillance Act.
Warrant and search unlawful
Section 68 of the Evidence Act and the principles relating to media warrants set out in TVNZ were central issues relating to the lawfulness of the warrant to search Hager's house. Failure to refer to them was a material breach of the duty of candour. For that reason, the court held that the warrant was unlawful and it followed that the search was also unlawful.
The decision confirms the common law recognition of the public interest in maintaining the confidentiality of journalists' sources. It provides a useful analysis of the relationship between that common law recognition, the protection of journalistic privilege under the Evidence Act and the newer Search and Seizure Act, establishing that the new regime overlays, rather than replaces, protections already in place. It is also a reminder that the heavy disclosure obligations on applicants mean that assumptions are inappropriate when important matters of public interest are at stake. The public interest in source confidentiality is such that both the occupation of the party that is the subject of the search, and the principles underpinning journalistic privilege, must be explicitly drawn to the issuing judge's attention. It is insufficient to rely on the judge's presumed knowledge.
Surprisingly, the decision contains no discussion of the definition of 'journalist' and its application in this case. This is in contrast to a number of other recent decisions on journalist privilege and source confidentiality, which have required the courts to grapple with the definition of 'journalism' in the new media environment.
In Dotcom v Attorney-General, a newspaper journalist was held not to be covered by the news media exception under the Privacy Act 1993 when writing a book, rather than for a periodical.(8) In that case, the court held that the Privacy Act definition of 'news medium' turned on the definition of 'news activity', which in turn required the dissemination of news in an article or programme.(9) A book was not an article or programme and therefore fell outside the Privacy Act's definition of news activity.
Another case, which also involved Slater,(10) considered whether, as a blogger, Slater could be considered a journalist for the purpose of the privilege set out in Section 68 of the Evidence Act.(11) Section 68 defines a 'journalist' as a person who, in the normal course of that person's work, may be given information by an informant in the expectation that the information may be published in a news medium. The court in the Slater decision focused on the definition of news medium and its application under the Evidence Act. The court held that, in contrast to the Privacy Act, the Evidence Act did not require the dissemination of the news to be in a particular format, such as programmes or articles, and therefore distinguished Slater from the Dotcom decision. Rather, the decision turned on the nature of news, namely the regular provision of new or recent information of public interest. The court in that case held that a blog could be a news medium. Although there were undoubtedly many bloggers who were not journalists, because they did not obtain and disseminate news (including bloggers who merely commented on the news), the court was satisfied with the evidence that Slater's blog regularly disseminated news to the public.
In Hager, the police description of Hager in the application for the warrant as a political author, rather than a journalist, appears to have been deliberate. The lack of discussion of this point in the decision suggests that the police accepted that Hager was a journalist for the purpose of the Evidence Act.(12)Nevertheless, in light of the centrality of Hager's status as a journalist to the decision, and in light of the parallels between Hager and the Slater and Dotcom decisions, the lack of discussion on the matter is surprising.
Although Dotcom may be distinguishable from Hager on the basis of the different statutory definitions of news media, it is noteworthy that both involved the publication of books. Whereas the author inDotcom was a regular reporter at a daily periodical, Hager was described as an "investigative journalist" who had "investigated, and published, books and articles reflecting [his specified] interests". However, there was no analysis of whether his circumstances met Section 68's definition of a journalist, which is controlled by the expectation of the informant ("a person who, in the normal course of that person's work, may be given information by an informant in the expectation that the information may be published in a news medium").
The court found that Hager's informants would have had an expectation of confidentiality, but it is unclear from the judgment on what basis they would have expected the information to be published in a news medium. Although the Evidence Act does not require the news to be disseminated in a particular format in order to be a news medium, as the court in Slater found, news must also have a particular meaning. In Slater, 'news' entailed the regular provision of recent information. It is unclear in Hagerwhether the relevant news medium was Hager's articles, books or both. Nor is it clear how these fell within the definition of 'news'.
It may be that, on the High Court's analysis of disclosure in Hager, it was unnecessary to determine conclusively whether Hager was a journalist. The importance of the duty of candour and the protection of journalists' sources is such that, if there is even a question of journalistic privilege, this should be made plain in the application for a warrant. On the court's analysis, the law enforcement authorities making the application should not presume to decide on the status of the person that is the subject of the search, but should instead present all relevant information to the issuing judge. Nevertheless, the decisionappears to have been a missed opportunity for further guidance on what amounts to journalism under the Evidence Act.
For further information on this topic please contact Chris Browne or Kate Morrison at Wilson Harle by telephone (+64 9 915 5700) or email (firstname.lastname@example.org email@example.com). The Wilson Harle website can be accessed at www.wilsonharle.com.