Westpac doubles down on handing over Nicky Hager's details to police

Massey University associate head of School of Economics & Finance David Tripe

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Does Westpac deserve to lose customers for releasing personal information to police without a court order?

Yes
67%
No
33%
Total votes: 259

Click the NBR Radio box for on-demand special feature audio: Head of banking studies at Massey University David Tripe talks about Westpac and Nicky Hager

LATEST: Westpac caves to public pressure and changes its privacy policy

Westpac is doubling down on its assertions that it did the right thing in handing over details of Nicky Hager’s bank accounts to police without a warrant or a court order.

The bank, which has just been re-confirmed as the government’s banker for another eight years, has said it was following its internal policy for assisting investigations into serious crimes.

A Westpac spokesman is refusing to say what his bank’s policy actually is.

“We don’t give the policy out because it’s an internal policy,” the spokesman says.

The police were investigating the hacking of Whale Oil blogger Cameron Slater's email and social media accounts.

The head of banking studies at Massey University, David Tripe, says it looks as though Westpac “jumped the gun” and may have problems as a result.

“I would have thought it would have been prudent to wait for a warrant. That would’ve been quite unexceptional behaviour,” Mr Tripe says.

Releasing Mr Hager’s details without a warrant could be seen as Westpac “taking a bit of a position” but it was probably not well considered.

“It’s possible that the decision was taken at a very low level by somebody who didn’t think about it very hard,” Mr Tripe says.

“Knowing the way banks work, that wouldn’t be surprising.”

A public backlash could see Westpac reconsidering its position.

“It may be it will change its minds about defending itself once it has thought about it a bit harder,” he says.

“Handing over private information does need to be handled with care.”

NBR has asked the other banks if they have a policy on handling requests for information on individual customers’ affairs from police or other government authorities.

So far, only the government-owned Kiwibank has responded.

“Kiwibank policy is not to release information unless requirements have been met by the police or other government agency,” a spokesman says.

“Kiwibank is obliged to cooperate with law enforcement agencies. Kiwibank can confirm account details for an individual on request from the police,” he says.

“A police production order is required to provide any transactional data for an individual and a search warrant is required for a company.”

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16 Comments & Questions

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So much for due process and protecting its customers. I will change banks because of this

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I wonder why the banking records for Mr Hager were relevant? Can we assume that Mr Hager was commissioned to write the book?

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How any company deals with an individual's data is of concern. Banks, insurance companies, medical facilities, telecommunications providers, all gather a vast amount of private data on their customers and I for one would expect these organisations to handle that data with care and respect.

At the very least I would expect my data to be protected unless a warrant or court order was issued. Exigent circumstances aside, the correct response to IRD, police, MSD or any other government agency should be "get a court order and then we can talk."

This is not a case of exigent circumstances. There was no impending peril, no flight risk, no urgency at all. There was plenty of time for the police to seek a warrant and then apply it - that they chose not to is very telling.

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Paul,

You may wish to read the following regarding IRD and warrant-less search. While not directly relating to this incident the powers are very very broad.

http://www.ird.govt.nz/technical-tax/op-statements/os-1301-cir-info-gath...

Summary:

Section 16(1) is a warrantless power of entry. This means that, except for private dwellings, the Commissioner does not need to obtain a warrant to access all lands, buildings and places and to all documents.

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I agree - the powers are very broad and, when combined with the Telco Disclosure Act and GCSB et al, it gives government agencies tremendous fishing capability.

That it's legal isn't my argument - that agencies should use this ability very sparingly and only when absolutely required (exigent circumstances) not as part of a non-time critical inquiry into something like this, and doubly so when it's a journalist they're investigating.

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Hager a journalist? - I think not!

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If Nicky Hager isn't a journalist, then I'm not either.

I would definitely argue that after more than 30 years, I definitely am

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“We don’t give the policy out because it’s an internal policy,”
i.e. it could be anything and everything that we want.

“We don’t give the policy out because it’s an internal policy,”
Ohhhhh~ but you can give out customers banking details just like that.

what part of you don't give out customers banking details on a whim isn't common sense anyway?

these guys, seriously.

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Absolutely pathetic buttcovering rebuttals from Westpac. Absolutely correct attitute of all other companies involved.

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It is of course perfectly reasonable for Mr Hager to make available to the public information collected illegally, but not for others to illegally collect information about Mr Hager.

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Unfortunately Westpac seems to be one of the worst when it comes to sorting anything out with them. They seem to have a culture of obstruction, denial and putting their customer's interests dead last.

I have banked with Westpac as my main bank since the mid '90s, and it counts for nothing when you are seeking to get access to their banking services -- and I'm not talking about getting them to lend you money here, I'm talking about access to relatively standard banking products for a financial services business that complies with all the AML and other laws on the books and carries on legitimate business in New Zealand.

They claim to have wide, deep services for financial institutions, but refused to discuss what these services are, how to access them, what is required to get them etc. Point blank, despite repeated appeals and escalations to more senior people in the bank, they absolutely refused a good longstanding customer to even find out about what these services are or how to access them.

Westpac took things further in my case, closing the bank accounts of a company that is not a financial service provider, and that has had no issues with Westpac, it is being closed because ... just because! They wrote a whole lot of crap about the sensitivity of their correspondent banking relationships to a company that they acknowledged they knew was not a financial service provider and was not providing financial services in the form of payment processing for any third party.

I have therefore come to the conclusion that Westpac has such a toxic culture, such an unreasonable attitude, and such a flagrant disregard for being reasonable or working to resolve issues that I don't want to do business with them anymore. I am going to close what little I have left with them soon.

So, when it comes to customer privacy, you can be sure your interests are dead last. The 'strict' duty of confidentiality is so lax you could drive a platoon of police vehicles through it.

In my financial services business we treat our customer privacy seriously. A serious case has to be made that we have no choice but to disclose, by compulsion of law, and that the formalities required for disclosure have been met at law and under our terms, when the disclosure is to a party such as law enforcement that is likely to use the information to nail someone, most likely our customer. Wespac claims to treat banking confidentiality extremely seriously, but it does not. It treats police and law enforcement and official interest in customer data extremely seriously, and customer privacy seriously in name only. They acknowledge the strictness of the confidentiality duty in theory, but in practice they rationalise it away that is is only a civil liability risk and that their bank is big and strong enough to pay out a few claims for breaches but has not the balls to stand up to the cops asking for information without a warrant. The bank's attitude and practice is this: it is higher commercial value to be on friendly terms with the cops than it is to actually uphold customer privacy as a matter of contract, law, principle and integrity. Honouring your privacy, and breaching it, is a no-brainer commercial/political decision for Westpac. And if they get pulled up about it, they are guaranteed to do 2 things:
1. deny the issue, deny responsibility, justify their breaches of your privacy and,
2. pat themselves on the back for being a good corporate citizen / government stooge.

You can see Westpac attitude to the most fundamental obligation of the bank to pay to the customer's order, when they decided they didn't want to pay to the customer's order, and made their customer go to court to get them to pay. The court naturally found what common sense tells both the banker and the customer: the bank must pay to the customer's order up to the balance on the account, and it can't give nebulous excuses why it doesn't want to. Did Westpac accept the customer's rights and its obligations? No! Did Westpac accept the court's decision? No! It appealed all the way to the supreme court and lost (Westpac New Zealand Ltd v Map & Associates Ltd, 2011). Did it accept the supreme court's decision? What do you think? Of course not, it amended its terms so that it can refuse to pay to the customer's order for nebulous reasons that cost it the case. These terms are still in force today with Westpac. So is the attitude!

Customer interests are last, and privacy interests are trivial from Westpac's point of view.

I have to say Westpac people are more interested in upholding their own sense of importance and power than they are in making money for Westpac shareholders. If Westpac were interested in making money they would seek to work through issues with their customers and to bring business on board and deal with the issues associated with serving other financial services businesses, including new ones.

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That's how they managed to keep their noses in the government trough tho' they'd passed their sell-by date!

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Jeesh, why is everybody reading something sinister into this!!?? Maybe Westpac just made a simple mistake and screwed it up? It wouldn't be the first time a bank has stuffed up. Talk about the Left and their conspiracy theories. Go take a pill and have a lie down for Christ's sake.

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How hypocritical of Hager if he is complaining as he is no respecter of other folks information

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Westpac monumentally screwed this one up from a PR perspective. Most banks require compulsion to disclose customer records for that very reason. In civil proceedings a bank won't do anything without a discovery order or a subpoena. Then they can say they had to comply.

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Interesting how there is no mention of the role the central bank could or should play in this, it after all has the power to revoke a bank's license.

When I worked in Singapore the Monetary Authority of Singapore (MAS)'- the central,bank- set our very clear guidelines on the release of account information. Banks were forbidden from handing over documents to the Police, warrant or no warrant. Such could only be done when directed by the MAS and banking staff could be imprisoned for any brch of this rule.

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