NBR in stand off with SFO over file seizure
UPDATED 11.15am: The National Business Review is in a standoff with the Serious Fraud Office after the SFO this morning refused an invitation by NBR publisher Barry Colman to attend a meeting with the paper.
The SFO instead warned that NBR had been in breach of its statutory obligations under the Serious Fraud Office Act since 9 am today.
The SFO has demanded editorial files relating to NBR’s investigation into the collapse of the South Canterbury Finance group of companies and yesterday threatened its journalists with jail and fines for non-coperation.
The NBR called for the meeting to seek reassurances that its co-operation with the SFO would not lead to further fishing trips for information that could compromise the paper’s confidential sources.
The SFO’s request related to already published material that the paper has no objection to supplying as no confidential sources were violated.
But NBR is seeking an assurance from the Serious Fraud Office that it will not invoke its draconian powers of document seizure in return for NBR's co-operation into the SFO's investigations in the South Canterbury Finance collapse.
Mr Colman said today the initial information sought by the SFO had already been published and its release would not violate the confidentiality of any NBR sources.
But the paper was concerned that there could be further demands for information.
The Serious Fraud Office Act 1990 gives the SFO powers to execute search warrants on media offices and to charge journalists who attempt to “obstruct investigations” with imprisonment for 12 months or a fine of up to $15,000; with publishers facing a $40,000 fine.
Mr Colman said today the SFO’s blatant intimidation was appalling and counterproductive.
“We are not the enemies of the SFO. We want the bad guys investigated as well,” he said.
“However, no news service is going to be able to get crucial information from its sources or whistleblowers if they face public exposure. We have taken legal advice and been told the act is so draconian that it is impossible for us to refuse to co-operate without risking serious penalty.
“We have decided to hand over the material they are asking for today because it doesn’t compromise any of the sources of Matt Nippert, the reporter who carried out the investigation.
“If there is a further demand, then we face a real problem. We’ll deal with that situation if and when it arises. We are hopeful the SFO will give us the assurance we are seeking on this matter.”
Mr Colman said the SFO had apparently realised the extent of its public relations blunder in its threatening approach and was now attempting to play down the situation.
“This has become a problem of their own making. They were the ones threatening to lock up any journalist failing to co-operate,” he said.
Mr Colman was aiming to set up a meeting with the Serious Fraud Office .
The Serious Fraud Office served the notice on NBR yesterday, demanding documents and audio tapes relating to the paper’s investigation of South Canterbury Finance's dealings over Auckland's Hyatt Regency Hotel. The deadline for delivery was 9am today.
The Serious Fraud Act Section 5 notice requires NBR editor-in-chief Nevil Gibson to hand over all written and audio notes relating to Mr Nippert’s investigation of the Hyatt Regency, specifically the NBR exclusive story of how one-time meatworker Peter Symes came to own the hotel.
NBR did not hand over any files when an SFO representative visited its office at 4.30pm yesterday, pending legal advice.
"We are pleased that the authorities are taking action following up our investigative report but we are seeking independent legal advice before deciding what action we will take," Mr Colman said yesterday.
"Our primary concern is to ensure we can protect any confidential sources involved in our investigations. We need to know the ramifications of complying with any forced hand over of our files, notes and recordings."
The story was published on the front page of NBR two weeks ago. The full report is also available on the paper’s website.
Mr Colman said it was the first time in NBR's 40 year history that journalists' files had been demanded by police or other state investigators.
NBR has a history of defending the public interest, including its famous winebox investigation through to its recent decision to defy a Commerce Commission order and publish details of a secret side-deal between Vodafone and 2degrees.
The notice served on NBR (click each page for a larger view. And, yes, the SFO did spell Nevil Gibson's name incorrectly):
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Click page for larger view:
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Comments and questions51
Surely the SFO has a stronger case than just the NBR reporters story to go by on their investigation into the Hyatt deal.
Surely they can just go to SCF and get all relevant documents to prove their case or to Ed Sullivans office.
This is starting to sound like the Keystone cops and that this is all political - why didn't they do this before they publicly announced the investigation.
This is a bit smelly and politiocal
If this is the first time in 40 years that authorities have approached the NBR in this manner then NZ is descending down a dark path.
Why would the SFO have to do this either they have a strong case and are looking for more info or they have a weak case and have bugger all evidence and its all politically motivated
I suspect the latter - they mouthed off publicly and now are embarrassed as NZ isn't as stupid as they think - and the public smell a big rat coming from John keys office and the national Governments agencies like SFO.
Tell the SFO to get stuffed Neville Gibson
If you hand it over you will betray free press in NZ. Stand tall and you will have all your peers and the rest of NZ behind you.
Tell the SFO to get stuffed and refuse to hand the documents over.
This is new ground and will result in the decline in the free press in NZ
Hubbard was correct
The Government and their agencies are turning into Nazi's by going down this line.
John Key - where are you??
We need you - please come back from your continuous PR campaign (kissing babies and grannies ) and sort this mess out. You can't leave everything to Bill English and Co.
Typical Nanny State bureaucrats: lazy or incompetent, take your pick, so relying every time on force and coercion - how the State always operates.
Stuff them. They're paid the high wages for no risk: they can do the work to earn them. At the very least the SM's are probably charging up to a $1,000 an hour, I suggest you charge your reporters time out at $2,000.
But really, I'd prefer you go to jail, Mr Gibson, protecting the freedom of the press ;)
(I'm actually trying todecide if this is a freedom of the press issue, but probably good publicity regardless.)
Nana John from the nanny state has gone one step too far this time.
John you have publicly destroyed Hubbard - you and your agencies have tried every trick in the book and come up with nothing other than investigations. Let it die or your political career might son.
This was one way of getting access to the article.
The other was to pay an NBR sub!
How about it NBR - want to make the article free on the website so we can see why you are going to send your editor to jail :)
This is just a fishing trip and, as other commenters have pointed out, shows how little information the SFO already has.
One struggles to see how the SFO can claim it is acting in the public interest.
In other parts of this web site there are many comments about how the SFO is not doing it's job a la Hanover Strategic etc. But when they actually start doing their job ie chasing down an obviously dodgy deal in SCF with the warehousing of their biggest bad loan everyone comes out and says dont help them. Am I missing something here? Mr Gibson you owe it to us the taxpayers to help the SFO do their job please give them anything you have which will help the investigation of an obviously dodgy transaction.
Bud Fox, it seems you may be missing the fact that most of what NBR published was a matter of record. What we do not know is this; who else has been served with a notice? Those who would not talk to NBR? Greg Shanahan? His mystery client?
I think it is likely that NBR published everything it knew.
Yeah Bud
But one would think that they would launch an investigation publicly, they would already have sufficient evidence
That's the strange bit.
Totally agree with you that everyone is baying for blood elsewhere for these crooks - but don't you think that the SFO's strategy is a bit strange?
And it starts a precedent that journalists can't do theri job independently. if the journo can get the information one would think the SFO with all it's funding and resources can to.
i am one of the people who have criticised the journalists for not being investigative and just regurgitating other people's articles.
The Gestapo are marching again. Soon we will all be locked up and where will the KEY be?
Bit bizarre isn't it? The SFO were right there at the statutory management stage(admittedly not of SCF) and surely ought to know their way around the premises down there but they have to demand informaton from the Press?
Let em do their own dirty work. After all they are probably all on whopping great salaries courtesy of the taxpayer and poncing round like King Tut making out they are the big time investigators.
Most of what the NBR reported about different company shareholdings is freely available on the Companies Office website and surely the SFO has access to the loan documentation and files at SCF.
Look the SFO won't only be hanging it's hat on the info that the NBR has. They are investigators they would have sent the same information request to Mr Shanahan and Mahon etc. The SFO didn't make this public the NBR did through this web site. From where I sit let them get on with it. If mr Hubbard and his mates are innocent then that is good at least they will have been subject to some scrutiny. However I can't see how warehousing a $80m Auckland hotel in the name of a relative of a SCF director will stand up to scrutiny. And guess what if they did this once they would have done this same structure on other bad loans. It's called misleading the investing public. Go the SFO.
Fair cop Bud Fox
But as long as the SFO have been or are consistent with all potential crooks - I hav emy doubts
In my considered opinion- this action by the SFO is an abuse of their statutory power and authority.
It is not the NBR whose actions are allegedly fraudulent, thus subject to investigation by the SFO.
The NBR are effectively an independent 'third party' in this matter.
What 'offence' have the NBR committed?
NBR journalists have exercised their lawful right to freedom of expression - receiving and imparting information and opinion - and now the SFO is trying to force the handing over of information to assist them in their investigation?
If NBR staff could access this information - why couldn't the SFO?
The SFO hardly 'asked nicely' for the assistance of the NBR!
It appears to me that the SFO are effectively using NBR staff as their own.
Cute.
Saves the SFO money this way?
The SFO apply their jackboot to the throat of the NBR to force the handing over of their investigative research and information.
Arguably the SFO should have carried out this investigative research themselves before announcing their investigation relating to South Canterbury Finance's dealings over Auckland's Hyatt Regency Hotel?
If it were me - I would refuse to hand over the information.
(I've taken defence of 'freedom of expression' in relation to local government to the point of arrest 22 times.
It's 21 - 1 to me.)
If the SFO want a search warrant - the application will need to go before a Judge.
Make a stand!
That's what you do when you are confronted by bullies of any variety - individuals / corporate/ state - DON'T let them intimidate you.
THE UNDERPINNING LEGISLATION:
THE SERIOUS FRAUD OFFICE ACT 1990
http://www.legislation.govt.nz/act/public/1990/0051/latest/DLM211434.html#DLM211434
9. Power to require attendance before Director, production of documents, etc
(1) The Director may, by notice in writing, require—
(a) Any person whose affairs are being investigated; or
(b) Any other person who the Director has reason to believe may have information or documents relevant to an investigation,—...
1 0 Power to obtain search warrant
(1) The Director may, on application in writing made on oath, apply for a warrant to search any place specified in the application.
(2) Any Judge who, on such an application, is satisfied—
(a) That there are reasonable grounds for believing—
(i) That any information supplied pursuant to section 9 of this Act is false or misleading in a material particular; or
(ii) That a person has failed to comply with any obligation imposed pursuant to section 9 of this Act; or
(iii) That it is not practicable to serve a notice under section 9 of this Act by reason of the fact that the person cannot be located or is absent from New Zealand or other good cause; or
(iv) That the service of a notice under section 9 of this Act might seriously prejudice the investigation; and
(b) That there are reasonable grounds for believing that there may be, at the place specified in the application, any documents or other thing that may be relevant to an investigation or may be evidence of any offence involving serious or complex fraud,—
may issue a warrant in the prescribed form.
(3) Part 3 of this Act shall apply to any such warrant.
__________________________________________________
Penny Bright
Media Spokesperson
Water Pressure Group
Judicially recognised Public Watchdog on Metrowater, water and Auckland regional governance matters.
"Anti-corruption campaigner"
http://waterpressure.wordpress.com
waterpressure@gmail.com
'NBR has a history of defending the public interest'. lol
SCF is a UN/NWO test of governmental control and ability to manipulate NZ. NZ, this test of the NBR, the super city, the ets, the smacking bill, the UN indigenous rights.....come on folks, wake up. Smell coffee.
I find it extremely worrying that :
- in the 3rd statutory management report, GT advises the hiring of private investigators to trace interest free loans,
- the NBR who are just journalists doing their job managed to publish a "scoop" which the SFO didn't know about beforehand, even though the SFO have been investigating Mr Hubbard and associated entities since the beginning of the year,
Isn't there some media law where journalists have a right not to disclose their sources?
Why haven' t the SFO hired their own private investigator to find the same information in the NBR article?
They would probably do a better job if they disguised themselves as journalists.
Maybe the SFO should change its name to NBR - No Brains Required.
and the NBR could call itself the SFO - Super Financial Officers.
We can now understand why there is such an uproar about the SFO investigation of Mr Hubbard if the journalists get there first. Logically if its in the media everyone knows so Mr Hubbard hasn't covered up anything.
This is a TEST CASE, dont give in. Journalists need to retain the right not to disclose. Yours Barry Simpson (Mapua)
Forget Hubbard, he's now irrelevant to the issue on this thread. On consideration this most definitely is a freedom of the press issue.
First they came for your research on your subjects. Then they come for ... what? If they don't like a blogger's comments they demand you to turn them over as well? (What am talking about: Simon Power-Lust already is drafting the law to coerce the wild west of the Internet into submission to the State).
If NBR does not take a principled stand on this issue, I will never be foolish enough to comment on NBR online again.
Obviously the SFO has no proof of fraud.
The SFO are full of the proverbial BS
In their own words it is not an offense
Quote
While related party lending in itself was not a criminal act, if it was made without being disclosed either to investors or the Crown through its obligations under the trust deed or Crown deposit guarantee scheme it could be fraudulent
Unquote
This is a Securities Commission issue not an SFO issue.
Were all Strategics and Hanovers related party deals declared to investors - absolutely not
Why hasn't the SFO attacked them - why haven't they looked at their transactions from start to finish, where they transferred out the suspect deals when the heat started coming on?? They were still related party deals in the first instance.
The SFO are starting become tainted as unethical and immoral - so much for big boy Feeleys big pitch when he took over about the new image and transparancy.
NBR tell them to get stuffed and do their job properly without this nonsense. They should employ some competent staff to do as good a job as a journalist can.
It'll be worth nothing & if like NBR's Peter Gill motoring articles are anything to go by.... Pete -pop quiz who are the 3 big leasing companies in NZ?? hahahaaa yep... i know you have no idea
First they came for the Communists,
and I didn't speak up because I wasn't a Communist.
Then they came for for the trade unionists,
and I didn't speak up because I wasn't a trade unionist,
Then they came for the the Editors,
and I didn't speak up because I wasn't an Editor,
Then they came for me
and by that time no one was left to speak up.
John Key is creating modern communism with a capitalism twinge - but only for the benefit of the Bluebloods.
When are Bill English and Nick Smith etc going to put this guy in his place and get this country back on track.
Next thing we will have concentration camps for dissenters - and bloggers like me will be the first in the camp - so John can stop freedom of speech.
John Key might be the most popular Prime Minister of all time
But so was Adolph Hitler
And we know what happened there
This is terrible news for freedom of the press. Journalists should not be asked for this kind of information in a democracy.
With the ongoing attacks on the press such as Wikileaks, the press is in poor shape.
Here is my take on this:
http://shareinvestornz.blogspot.com/2010/10/allan-hubbard-saga-nbr-vs-sfo.html
I am with the SFO but without name disclosure if that is what Matt's story sources wanted.
Anon 8:52 - what a pathetic piece of crap that is. Comparing Key to Hitler - you are an imbecile. Go and play your (not so) clever games over on the Standard.
Back on topic - The vast majority of posters here have been baying for SC blood for months now. And suddenly there's righteous indignation becuase the SFO dares to seek any info it can to corroborate its case. Bud Fox, you are right on the money there.
The SFO will (should) be looking in every corner it can to strengthen its case. I very much doubt that seeking docs from NBR is the only path they are going down. And I'd have a heck of a lot more sympathy for the 'rights of the media' &'protecting sources' if the media itself hadn't lowered itself to the current sensationalist soundbite mentality.The 'free press' is nothing like it used to be when the old ideals actually carried some sway. Who cares if the NBR has to drop its pants - the blogosphere will never be subject to the same invasions and therein lies our protection.
I suppose all the NBR reporter did was check the Companies office register on all companies related to the Hyatt and he came up with the name of Peter Symes. Then they phoned him and asked him for an interview without knowing who he was or anything about him. Peter is a good kiwi bloke so he accepts to be interviewed and it comes out that his brother in law is Ed Sullivan.
You can get that far just by reading the article.
So why is the SFO threatening the NBR with legal action to find that out? There is nothing in it except the heavy handed approach that has already been applied.
Anon 9:16 I complete agree with your dismay at the sensationalist reporting the NBR has stooped to over this. Some of the copy is tabloid tat .. witness the constant naming of Mr Syme as a "meat worker" (he ran a meat business) and cancer victim (show some dignity) ... it is no surprise to learn that the reporter in question was formally an employee of the NZ Truth and it is to that rag that that sort of gutter press should be confined. See also the other blog relating to his reporting of Hubbard's comments in some Farmer Paper ... there is a story here which will play out and we can all make up our own minds on the facts thanks very much without it being rammed down our throat by some upstart reporter
Editor: The reporter concerned has not worked for NZ Truth
Tribeless wrote: " If NBR does not take a principled stand on this issue, I will never be foolish enough to comment on NBR online again."
OK, Neville - Give the SFO everything they want.
And then they came for Auberon ;)
First NBR report on Stuff, and then Stuff report on NBR. The news is the news!
NBR
What a soft response to the SFO
You should have stood your ground no matter what.
Disappointing
I accept that the documents the SFO are after belong to them but the NBR has been doing a good job uncovering the Hubbard nonsense over the last year or so and I would have thought they would be cooperating as fully as they could, without giving away their own integrity.
Keep those sources confidential but give them what they need to put the old bugger behind bars.
Tuckers pretty good in jail anyway Barry(so they tell me) and a pretty relaxed lifestyle apparently.
You might be the first rich lister to become a guest of her majesty! I suspect before this finance company debacle is over there might be one or two others in there with you.
Good Luck!
Stand your ground NBR and Nevill Gibson
Don't let the SFO bully you and make sure you protect the freedom of the press. If you bow to their wishes the NBR will be responsible for destroying the free press in NZ as from then on all journalists and papers will be bound to hand over documents whenever the authorities dictate.
Stand your ground and tell them from the business people of NZ to get stuffed
Thank God you're not a Communist or a trade unionist!
So big bureaucracy comes knocking on NBR's door.
A request for information may not be the only thing NBR has to put up with. If NBR finds itself under challenge in the courts watch out for dodgy Crown Prosecutors coming out of the wood work.
I imagine the level of honesty and integrity would no higher than at the NZFSA.
EDITORS' NOTE: Edited for defamatory comment
1. I think the Act goes too far but it is the law. Did NBR , other papers, jounalists protest when it was enacted?
2. The SFO should get a "kick up the arse" for the format of its request. What they need is a Govt appointed oversight board that keeps the "would be cowboys" under control.
Richard
Got to hot in the kitchen, eh? (Knew NBR would fold).
The NZ Herald reports at 11.30am that the NBR has agreed to release the documents.
Why didn't the NBR test the system and challenge the SFO challenge??
This will start a precedent whereby Govt agencies can ask for whatever they want whenever they want with no boundaries. NBR has let dow the Journalist profession.
Carry the staff for Freedom of Speech NBR!
Perhaps Barry Colman now gets an unexpected insight into the Hubbards experience?
PLEASE PLEASE PLEASE.....
What is all the fuss about??
Surely if we in life basically all comply, it would be so easy to sort this out, we all want something done anout all of this, and now we are putting huge hurdles in front of the people who are trying to do the job, now do you really think that the SFO is going to stand up on a soap box, and bleat to all and sundry, where and what they have found out....please give a little bit of credit...just a little, why do certain people make life so dammed difficult for others.
In this country you are dammed if you do and dammed if you don't...impossible
Even in sport, we loose a game of footy and we want every last drop of blood drained from from the coach...amazing just amazing.
Get over it and get on with it.
"The NBR called for the meeting to seek reassurances that its co-operation with the SFO would not lead to further fishing trips for information that could compromise the paper’s confidential sources."
You've lost me. I'm gone. The State is far too powerful, and the press, supposedly at the forefront of freedom, simply rolled over and agreed to their demands - because freedom is not negotiable. All parties involved are traitors to an individual's freedom. We carry on the nosedive toward the brutal society and the Gulag, being led by the nose by bureaucrats who live off our efforts. *$*#&%$ them and you NBR.
The NZ Herald has just reported that NZ is in the top ten countries for media freedom - this was probably before the SFO 's actions and the NBR wimpering to the party.
Quote from article below
New Zealand is among the top 10 countries in the world for media freedom but its Pacific neighbours still rank poorly, according to media watchdog group Reporters Without Borders.
The ninth annual World Press Freedom Index, released today, ranked New Zealand eighth of 178 countries surveyed. It is the third time New Zealand has appeared in the top 10 since the index began in 2002.