Tuesday, November 21, 2006

Brash's cover-up

In the Herald this morning, John Armstrong examines Don Brash's unique injunction against dissemination of his leaked emails and asks "why now"? The answer is on Stuff: Nicky Hagar was going to launch his book based on the emails today. And it sounds like it would be quite revealing:

The book - The Hollow Men: A Study in the Politics of Deception - was to have been launched today but has been caught by a court injunction obtained by Brash last week forbidding publication of the emails.

Hager called a press conference in Wellington this morning and distributed copies of his preface to the book and a foreword by former National MP Marilyn Waring.

The book is "an extraordinary case study of unprincipled and anti-democratic politics," Hager says in his preface.

Waring, now professor of public policy at Massey University, described the book as "an excellent systems analysis" and "so important".

"This is a story about democracy, and the public of New Zealand deserve to know what they have when they speak of such an ideal," she writes. "I would expect to see much of the evidence set out in the book reported to the Electoral Commission, Parliamentary Services, the police and the Auditor-General."

Unfortunately, thanks to Don's injunction, publication has been halted. So, we won't get to learn exactly how much he lied to the public during the election campaign, or how dirty his dealings were.

There's a rich vein of hypocrisy in this on Brash's part. The opposition - and our political system - relies on leaks every day to hold the government to account. They are a vital part of our democratic system. But what's good for the goose apparently isn't good for the gander, and leaks which would allow the opposition to face similar scrutiny - leaks which, despite their supporters efforts to smear the government, unquestionably came from within the National Party from people dissatisfied with Brash's political direction - are suddenly unethical and illegal, and to be suppressed. And no doubt they'd continue to claim this, while at the same time denouncing any effort by a government ministry to suppress leaked information by similar means. Consistency, it seems, is for other people.

Fortunately the media sees the threat posed by this injunction and is fighting it - and hopefully that means we'll finally be able to find out just how dirty Dr Brash was playing it last year.


The injunction does not cover emails obtained legally - that is 'leaked' rather than 'stolen'. Nicky Hager claims these emails were leaked. So he is not covered by the injuction. Why then is he smearing Don Brash. If the evidence is there, legally obtained, publish it. If it is not, he should shut the fuck up and stop the smear.

And let's not forget. Helen Clark was bruiting these about in a threatening manner in Parliament. Her coalition partner was doing more.

Please explain - how is this different from Watergate? President Nixon was forced to resign over the break-in at the Democratic offices. Are we operating on a lower standard than Nixon?

Posted by Anonymous : 11/21/2006 11:57:00 AM

kiwi_donkey - nice try with the Watergate thing, but most seem to be saying this is an inside job.

The fact is that none of Brash's opponants have been implicated in the obtaining of these emails, none of them. Your accusations are pretty low.

A "smear" would be accusing someone of something they have no hand in, like , for example, stealing emails. It would not be quoting from the actual hand of Dr. Brash. The latter would be a "quote".

Posted by Anonymous : 11/21/2006 12:05:00 PM

and just to put your accusation of "smears" into some context, it seems one of the smear leaders is now former National MP Marilyn Waring.

Posted by Anonymous : 11/21/2006 12:10:00 PM

and finally, from the Stuff article we have:

Hager says the leaked papers came from the highest levels of the National Party hierarchy. Six people in particular provided most of the information.

Fancy a retraction, kiwi_donkey?

Posted by Anonymous : 11/21/2006 12:15:00 PM

No Noddy, that's my point. If they were leaked, he has them legally, and can publish. So why doesn't he? His press conference defames Don Brash without presenting any evidence.

And what accusation is low? I have asked how it is different from Watergate. You are at liberty to answer.

Posted by Anonymous : 11/21/2006 12:31:00 PM

Sorry to hijack your thread I/S, but here is the link to Waring's forward. Very damming indeed.

Money quote "I would expect to see much of the evidence set out in the book reported to the Electoral Commission, Parliamentary Services, the police and the Auditor-General."

My prediction is Don is gone.

Posted by Anonymous : 11/21/2006 12:33:00 PM

kiwi_donkey: by definition, virtually anything "leaked" - disseminated without authorisation - is stolen, and therefore covered by the injunction. As for analogies, forget Watergate - try the Pentagon Papers. It even has an attempt by the government to enjoin publication of the leaked material - an attempt defeated by the US Supreme Court. This isn't America, but I'd have thought that the affirmation of freedom of expression in the BORA and the significant public interest at stake would also result in Don's fishy injunction being overturned.

Governments and organisations hate leakers. Democracies love them - they allow us, the public, to hold the powerful to account. And I see no reason why the Leader of the Opposition should be immune.

Posted by Idiot/Savant : 11/21/2006 12:35:00 PM

Noddy: relevant links is one reason why I have comments. And its certainly an interesting read.

The SST is a bit slack though - Marilyn left Massey well over a year ago and is now working at AUT (IIRC).

Posted by Idiot/Savant : 11/21/2006 12:43:00 PM

I/S - I'd be quite happy to see the injunction overturned in the court. But I'm not happy with the events today, which seem a smear. I'm also very concerned to know what involvement the parties of government have had in the whole thing, given that they were raising it in parliament. Most likely they were just unwise, but it is part of pretty nasty culture that has built up in the House.

Posted by Anonymous : 11/21/2006 12:43:00 PM

I was critical of the way Nicky Hager sprang his Corngate documents. I didn't think the possibility of an injunction was real enough to justify the way he acted. I think Don Brash has now vindicated that action, and I'll be saying so in the blog tomorrow.

Posted by Russell Brown : 11/21/2006 12:47:00 PM

kiwi_donkey: given the number of people hagar says leaked to him, I suspect he's not the only recipient of the information. If the aim of the leakers is to discredit Don Brash, then it makes perfect sense to leak some of the tastier bits to Peters or the government to be used as ammunition.

If you want to pretend this is unethical, then I hope you will apply the same ethical standard to the opposition and the media, both of which rely on leaks to do their vitally important job of holding the government to account.

Posted by Idiot/Savant : 11/21/2006 12:52:00 PM

Is there some way we can get more detail on Justice Mackenzie's decision to give Brash the injunction?
As far as I can tell from the press coverage, Brash got the injunction under the tort of invasion of privacy (someone correct me if I'm wrong). This is quite interesting, since under Hosking v Runting, damages are the default remedy for the tort - the threshold for an injunction is quite high. Plenty for the Court of Appeal to think about presumably.
Of course, an injunction isn't worth a great deal in these days of overseas news websites, Google search and blogs. And don't forget Parliamentary Privilege.

Posted by Anonymous : 11/21/2006 01:07:00 PM

Labelling Marilyn as a former National MP is about as accurate as labelling Jonathan Hunt as a former Young National.

Waring has been out of National for around two decades or so and is a Labour Govt appointee on various boards.

Posted by David Farrar : 11/21/2006 01:18:00 PM

Crustacean: Of course, an injunction isn't worth a great deal in these days of overseas news websites, Google search and blogs.

I'm surprised that no-one has posted the emails to an overseas website, or simply set up a torrent for them. There are ways of doing it without being caught, and it is the traditional solution to irritating attempts to suppress information.

Posted by Idiot/Savant : 11/21/2006 01:21:00 PM

David Farrar said: "Labelling Marilyn as a former National MP is about as accurate as labelling Jonathan Hunt as a former Young National."

So 100% accurate then?

Posted by Anonymous : 11/21/2006 01:29:00 PM

Scoop has more, including audio of hagar's press conference and a full press kit here.

Posted by Idiot/Savant : 11/21/2006 01:38:00 PM

crustacean - in some of the news reports there was the suggestion that the injunction was obtained on the basis that those with the emails, or who would disseminate them, would do so in breach of copyright.

Posted by Graeme Edgeler : 11/21/2006 01:42:00 PM

You're completely right - Brash obtaining an injunction has only delayed the inevitable. An added bonus for Brash being the annoyance of the NZ media at having freedom of the press threatened so.

Given the recent ABC Four Corners doco on the Brethren, the extensive coverage on them in the SMH, and the EBs' recent attempts to covertly assist conservative forces in the Victoria election, I would think that the Aussie media would be quite interested in what's going on.

An once again, can someone spell out the legal case for the injunction?

Posted by Anonymous : 11/21/2006 01:52:00 PM

The emails are definitely leaked, if they were stolen, then Hager's possession of them would be illegal as he would be receiving stolen goods, a crime in itself. Hence, the injunction only really covers leaked emails. Inside job kiwi_donkey, just accept it.

Posted by Anonymous : 11/21/2006 01:55:00 PM

Oh thanks, Graeme - missed your comment. Breach of copyright, you say? Interesting. I would have thought tort of invasion of privacy or equitable action for breach of confidence.
In any case, no doubt lots of legal academics are rubbing their hands in anticipation of a court battle.

Posted by Anonymous : 11/21/2006 01:56:00 PM

Graeme: The injunction goes rather wider than that though, barring recipients from communicating the contents of the emails to others. Wheras copyright only applies to the specific words, and certainly doesn't rule out a book which uses them as research material.

Posted by Idiot/Savant : 11/21/2006 02:00:00 PM

Further to Graham's comment, I would have thought Hagar can't quote Brash's words in the e-mail without his permission?

A book based on John Lennon's diaries contained no quotes as his estate (ie Yoko) wouldn't give permission so the author had a work around.

Posted by Anonymous : 11/21/2006 02:25:00 PM

Susan - a statement can be accurate yet misleading.

One could refer to Stephen Franks as a former communist if you want to be silly.

Posted by David Farrar : 11/21/2006 02:28:00 PM

So David you are suggesting Waring is NOT a former National MP?

Posted by Anonymous : 11/21/2006 02:39:00 PM

Time for a wee jaunt over to Blighty methinks, the blood is about to spill all over the floor and I've found myself standing quite on the wrong side of Caesar.

Posted by Anonymous : 11/21/2006 03:20:00 PM


On copyright, you're somewhat correct. I recall I had an English lecturer who had written an extensive commentary on TS Eliot's The Waste Land but wasn't allowed to use any actual lines of the poem.

However, in cases like this it's up against public interest and, I guess, the Bill of Rights Act. I don't know of anyone ever going for copyright damages (royalties?) after the fact on a leaked document and I assume, if there was any kind of story there, they'd have a hard time of it. It would certainly be a nasty surprise to a hell of a lot of journalists.

Mind you, it's amazing what the courts are coming up with these days.

I'd just like to point out - when Victoria got their injuction against Salient, I SAID there'd be trouble.

Posted by Lyndon : 11/21/2006 03:23:00 PM

Farrar is right ("former Labour MP Richard Prebble" doesn't exactly roll off the tongue, does it?) but Marilyn Waring's credentials and experience are essentially irrelevant to the bigger question of what's dirty don been up to, and will we be allowed to find out.

Posted by dc_red : 11/21/2006 03:35:00 PM

Perusing the comments both here and over at kiwiblog, waiting for PA to open it's gates, it's stunning how quickly the rhetoric from the right assumes its violent overtones. Seems there are those who HATE to get caught out being naughty (even if it's only conjecture!) and start frothing at the mouth in their frenzy to kill the messenger.

Let's face it, the corruption runs deep and wide in our "democracy" and National is hopefully only the first head on the block...Hager is doing the country a favour if he really has the ammo to start the ball rolling.

Posted by Anonymous : 11/21/2006 03:38:00 PM

I only just realised that referring to TS Eliot was actually slightly relevant. Wrong poem, of course.

Hager's souce for his title

Posted by Lyndon : 11/21/2006 03:53:00 PM

I suspect that much of Hagar's book will consist of a bringing together of a lot already available information and presenting it in a chronological and coherent fashion. He may however also have some email "smoking gun" evidence that in context is very damaging to the senior new right leadership of National. David Farrar's frantic spinning around every blogsite in Christendom should inform us that the contents could cause a meltdown in the polls for National and any claim made in the book are basically accurate.

I can't say I feel much sympathy for Brash and his party. What goes around comes around.

Posted by Sanctuary : 11/21/2006 04:02:00 PM

Just trying to fathom why people even care... it's the government we should all be worried about.

Posted by Anonymous : 11/21/2006 04:50:00 PM

Anon: Well, Brash hopes to be the government. It would be nice to know exactly how he's bullshitting us before he's elected rather than after...

Posted by Idiot/Savant : 11/21/2006 05:07:00 PM

"it's the Govt we should be worried about", ah yes, who cares about Parliament anyway?

Posted by james cairney : 11/21/2006 05:25:00 PM

> would also result in Don's fishy injunction being overturned.

Don does raise a wider question - should correspondance with ministers be private?

What would happen if NO correspondance with any minister was private? would that system be better or worse?

and is 'it was leaked' a good criteria (on legal or public interst grounds) for turning 'private information' into 'public information'?

Im not sure how to answer these but we probably should.

Posted by Genius : 11/21/2006 08:46:00 PM

Genius: What would happen if NO correspondance with any minister was private? would that system be better or worse?

That's the system we have now. Minister's correspondence is covered by the OIA, and can be requested at will. Section 9(2)(a) (will it work this time?) allows information to be withheld in order to "protect the privacy of natural persons", but this must be balanced against the public interest. In practice, it means that where a request covers emails, the addresses (but not the names) of senders and (non-public) recipients are typically redacted, just as phone numbers usually are.

Dr Brash is not the government, and not subject to the OIA. But he can hardly stand on his privacy and the need for people to be able to email MPs in confidence when his party gleefully exploits this mechanism in order to monitor what the government is up to (and perform their very important job of holding the government to account).

Posted by Idiot/Savant : 11/22/2006 10:43:00 AM

If Hagar did get the e-mails from six highly placed Nats, it does not bode well for their future, I would say. Particularly if Keys is made to look bad, and him supposed to be the best thing since Marmite.I heard Hagar on the radio this morning and he says that he's been working on the Nats for 3 years so we might expect that there is a lot of substance here and condemn any sloppy work.

Posted by Anonymous : 11/22/2006 11:02:00 AM

Can I place a blanket OIA request for every email on every minister's computer?
I think it could be very interesting!

I volunteer myself to do the hard yards of sorting them into "criminal activity" "book worthy" "scandalous" "profitable" and "trash"

I suggest all their communication should be automatically available online, unless it is a state secret. which would avoid the red tape of having to use the OIA.


Posted by Anonymous : 11/22/2006 02:12:00 PM

Genius: certainly. Though note that the OIA applies only to material held by a Minister in their Ministerial capacity - meaning that juicy internal caucus stuff and letters from the public pleading for help with immigration cases are likely to be excluded from the beginning. Such a request would also likely require substantial collation and research to seperate ministerial from non-ministerial correspondence, which may be grounds for refusal. If it is not refused, you would be charged $76 per hour after the first couple to sort, collate, and copy it (they are not however supposed to charge you for censoring it). And then all the usual reasons for withholding information would still continue to apply.

It is better in the case of OIA requests to be specific. But then you have to know what you are looking for. Which is one of the key values of leaks - telling people that there is juicy stuff waiting to be found if only a request is made...

Posted by Idiot/Savant : 11/22/2006 02:27:00 PM

simple enough - change the law to treat ministers communications exactly like we are proposing they treat brash's emails (ie as public property as long as they contain somthing worth revealing)

and I guarantee you somthing in some email helen clark has written is worth revealing.

Seriously - I think we should video tape all our policemen so its not a big step to say we should reveal emails from our politicians even if we put somthing like a three year hold on it.

Imagine the accountability!

BTW it should be free - I don't need them to do any sorting at all - Ill sort it myself.

Posted by Anonymous : 11/22/2006 04:08:00 PM