KEY POINTS:
Less than a week ago, the National Party leader, Don Brash, obtained court orders quite breathtaking in their gagging powers for the sake of suppressing some emails copied from his computer. The injunction was granted ex parte, which means the High Court heard only the applicant's case and
contrary arguments of public interest could not be made. The orders were issued against "John Doe" and "Jane Doe", anyone and everyone, in other words, who might learn the contents of Dr Brash's unspecified correspondence.
Yesterday, a "John Doe" disclosed himself. Nicky Hager, an investigator of various causes close to his heart, said a book drawing on Dr Brash's leaked emails was ready for release. From the outline and tone of the book described, it sounds like something writers would call a "hatchet job". Hager puts the worst possible construction on the National leader's contacts with American "neoconservatives", local industry lobby groups, big donors to National's election campaign and so on.
The book is not about the subject that most people probably assumed Dr Brash was trying to protect. "If the book had been about Don Brash's personal life and it had been based on his personal emails," the author said, "I think he would be justified in trying to stop publication."
The right to privacy is another subject close to Hager's heart. If there is personal material in the stolen emails, then Dr Brash faces an awkward problem. The blanket injunction he has obtained against all material in his emails had to be challenged and will be by this newspaper and others.
It is untenable in a democracy that any politician, let alone a contender for the country's highest elected office, should have all his correspondence on any subject whatsoever protected by a court order. If there is evidence of deceit, unethical conduct or even illegality, the public has a right to know it.
In essence, Hager's book covers familiar territory - Dr Brash's dealings with the Exclusive Brethren, Business Roundtable, Act and American and Australian consultants. It is hard to believe Dr Brash has gone to court to suppress written exchanges with those people and even harder to believe a judge would grant him such a sweeping injunction for the suppression of that sort of material alone.
The written judgment accompanying the orders gives no hint of the nature of the material suppressed and says nothing to suggest Dr Brash has specified its nature in his application. Justice Alan MacKenzie simply notes that the National leader gives grounds for his belief that his computer was improperly accessed and that the emails obtained were to be published. Dr Brash said such a publication would have serious implications for his ability to function as an MP and Leader of the Opposition because the confidence of those who wished to contact him by email would be seriously eroded. In rebuttal, Deputy Prime Minister Michael Cullen rightly points out that all Cabinet ministers' emails are subject to the Official Information Act.
There may be good reasons for people to be careful with their email communications; they can be more like casual conversation than considered words on paper. But they are a form of writing that can be traced and leaked. Leaks are a vital part of politics in every free society. They are often the only way a whistle-blower can safely bring privileged information to public attention.
Frequently leaks are less interesting for what they say than for the fact that an insider is sufficiently disaffected to let damaging material out. Hager said his book was based on interviews with, and documents supplied by, people in or close to the National Party. None of them were out to achieve "any kind of personal advantage". Well, maybe.
Whatever their motives, they serve a legitimate public interest. Blanket injunctions of the kind that Dr Brash has obtained are not healthy for our democracy. Those who ask to be entrusted with power have to accept that their dealings should be an open book.
