Steve Braunias' Campaign Diary: Day 1

by Steve Braunias / 06 September, 2014
DAY ONE: IN WHICH CAMERON JOHN SLATER ASKS FOR SILENCE – AND A HIGH COURT JUDGE GOES FOR A RIDE ON A TWITTER MACHINE

 

Election 2014! Dirty, shocking, weird, toxic, of intense and profound interest to approximately 173 people – and about half of them filled courtroom seven at the High Court of Auckland on Friday afternoon to witness the latest maneuverings of the campaign’s dark star, its voodoo priest, its gurgling underground river.

O Whaleoil! His full name appeared on court documents seeking an injunction against APN, Fairfax, and TV3. But Cameron John Slater didn’t appear in person. He sent his apologies. He sent his regrets. Actually, he sent a QC, John Billington, a pink-faced man who argued Slater’s case ponderously in the ground-floor courtroom.

Much was at stake. There were important issues of press freedom. Slater wanted to put a stop to stories based on the vast tranche of emails hacked from his computer by criminal or criminals unknown. The emails were given to Nicky Hager, and made Dirty Politics a best-seller. More emails have since found their spectacular way to the media – who argued that the contents reveal the creepy little workings within and around the National Party, and are a matter of considerable public interest, especially now. Election 2014! O case number CIV 2014-404-2272.

The case attracted important ladies and gentlemen of the press. They arrived early. Rebecca Wright from The Paul Henry Show modelled orange knit. David Fisher from the New Zealand Herald strolled in, and burst a paper bag. “Someone stole my biscuits at morning tea,” said the court registrar. At the front entrance, activist Penny Bright waved a banner, and rolled her eyes. It was her 60th birthday. She said, “John Key’s out of control!” It rained. She put down the banner.

Six men were sentenced for murder in another courtroom. They got 15 to life. It was a west Auckland gangland killing; a man was shot and killed in his bedroom in Ranui, and a getaway car travelled to Glendene. The public gallery was empty. It was standing room only in courtroom seven. There was a man with an angry beard. There was a woman who looked like Christine Rankin. Penny Bright stood in the doorway, and rolled her eyes.

The case began at 2.15pm. Billington presented his argument. He was very boring. To sleep, perchance to doze off; upon waking, it was instructive to open the Gideon’s Bible – the media were seated in the jury box. There were so many omens and portents. “He had a little book in his hand…I said, ‘Give me the little book.’ He said, ‘Take it, and eat it; and it will make your stomach bitter.’” Lo! The little book was Dirty Politics (only 166 pages), and it had given Slater a tremendous guts ache.

And it had led to the resignation of Slater’s friend, Justice Minister Judith Collins. Wretched woman! But National put her out of its misery, and look set to survive the “smear campaign”, as John Key likes to chant. Unless there be more revelations, more guns that smoke…

Billington droned on. He talked about the theft of the naked photos of Jennifer Lawrence. He talked about Colin Craig’s successful injunction in the High Court to force TV3 to include him in a minor-party leader’s debate. “There is a distinction between what is in the public interest,” he said, “and what is interesting to the public.”

“Yes. Thank you,” said Justice John Fogarty. He called for a tea break.

 

Julian Miles, QC, acted for the media devils. He had a long beak and a shrewd face. He spoke loudly, and clearly. He said it was vital that the public continue to be kept informed of the contents of the stolen emails. He said the injunction would be “an unprecedented media gag”. He said it would be “an extraordinary interference”.

And then he began to rave, and babble, and bounce on his feet. “The last thing this court wants to do is…is…” Everyone leaned forward, wanting to find out the last thing this court wants to do. “Is…uh…uh….The last thing this court wants to do is encourage criminality.”

It wasn’t a very firm blow but he had hit the nail on the head. The issue was to determine what was greater and more serious – the crime of hacking, or the public’s right to know what the emails revealed? It’s the exact same classic moral, philosophical, ethical, legal, and political dilemma which swirls around Julian Assange and Edward Snowden.

Justice Fogarty listened intently. A handsome man, with a trim figure and long limbs, he had let his grey hair grow wild, over his ears, down his neck, rising above his head in a bouffant. Rock’n’roll Fogarty! Ageing hipster, sensual, lascivious. But there were signs of trouble. He asked Miles to stop talking. He placed his hands over his face. Silence reigned in courtroom seven. Penny Bright rolled her eyes. Fogarty snapped out of his trance, and said, “I’m just trying to get my head around it.”

How he tried! He talked to Billington and Miles like old friends, bringing them into his confidence, making them aware of his terrible burden. “My concern is…what I…uh…Mr Miles, let me put it this way. What you’re asking for – doesn’t it encourage hackers to commit crimes with impunity?”

Miles’s hands fluttered. They were grasping for something. Finally, he found it: a straw.

“Hosking v Runting,” he said. Hosking v Runting! It had come to this. What layers of irony, topped with the fat red cherry of farce. Mike Hosking, who has spent these past few weeks dismissing Dirty Politics and all the subsequent media revelations as much ado about nothing that interested him in the slightest, was being invoked to come to the rescue of the media’s right to bore him with more revelations.

But it’s true that Hosking v Runting was an important test case in privacy law. New Zealand’s sole paparazzo, Simon Runting, took photos of Hosking’s twins one Saturday morning before Christmas in Newmarket in 2004. Miles described it thus: “Highly offensive and of little public concern.” Fogarty listened intently, scratched his head. Miles concluded: “We say hacking is not highly offensive, and there has significant public interest.”

But what about the law? God almighty, would anyone think of the law? Fogarty said, “Would not the court be saying, ‘Hey, it’s such great stuff, we’re going to overlook the hacking?’”

He dropped his voice to a thrilling whisper. He confessed, “I’m not sure.” And then: “The horses are bolting.” Also: “The genie has escaped!” He meant so many emails were already out there. What could he possibly do about it now?

 

Poor Fog! He was in torment. Fate had brought him here. “I was assigned this case,” he said, possibly with some petulance. Perhaps he was wishing he had been assigned something simpler on the daily list – why not Kernel Holdings v The Cheesecake Shop? But no. Here he was, stuck fast between Whaleoil and the media’s Ahabs.

He once more called for silence. “I just need to explore this in my head.” He stroked his magnificent hair. “If the hacking is criminal conduct, then it is punishable by two years in prison…To release more emails would be contempt of court…I’m just not sure.”

Fog, vague; Fog, lost. Billington rose to his feet. “We cannot simply say the horse has bolted.” Miles grasped at more straws, and said: “The horses of the blogosphere can run wild. But our horses, if I may say, are responsible.”

So many horses! They threw him. He landed badly. Fog fretted about the emails ending up on “the Twitter machine”. The Twitter machine! “Are they uploaded, or downloaded? Which is it?”

He put his head in his hands again. His head rattled with Twitter machines, with uploadings and downloadings, with horses, horses, horses, horses, horses/coming in in all directions/ 
white shining silver studs with their nose in flames – rock’n’roll Fog was having a Patti Smith moment.

“I’m just on day one of this case,” he wailed. Fog, distressed! He looked at the clock. It was already past five o’clock. He consulted with Billington and Miles, and announced he would reach a decision the following Friday; but right now, he needed to give an interim order. There might be another interim order next week, too, he said, so right now he would give an interim interim order.

And then he delivered it with confidence and considerable stealth. It was an interim interim order of two halves. He said he was placing an injunction on APN, Fairfax, and TV3 from using any more leaked emails - but gave them permission to do what they wished with emails that had already been leaked.

Fog, resolved; Fog, triumphant! He let the lawyers suck on that, and legged it out of the court as fast as he could. Where was he headed? To stare down one of those infernal Twitter machines, take it for a ride, break it in, let it know who was boss? Yes! You can see him there right now. @Fog.

Wish him well next week. Hacked emails, press freedom – nothing like it has ever happened here. Well, Miles said to Fog, maybe it’s a bit like Seymour Hersh and the stolen Pentagon Papers. But that was ancient history, and in America; Whale v Ahab is New Zealand, and at the black, black heart of Election 2014.

Illustration by Tane Williams.

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