SFO demands NBR documents; refusal risks $40K fine, jail – Abuse of SFO’s power and authority?
SFO demands NBR documents; refusal risks $40K fine, jail
NBR staff | Tuesday October 19, 2010
The Serious Fraud Office has served a notice to NBR, demanding documents and audio tapes relating to the paper’s investigation of South Canterbury Finance’s dealings over Auckland’s Hyatt Regency Hotel.
The Serious Fraud Act Section 5 notice tells NBR editor-in-chief Nevil Gibson to hand over all written and audio notes relating to reporter Matt 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 has been given until 9am tomorrow (Wednesday) to deliver the documents to the SFO’s central Auckland office, and agree to an interview.
Refusal would mean Mr Gibson faces imprisonment for up to 12 months or a fine of up to $15,000 under the Serious Fraud Act. NBR’s publisher, as a company, would have a fine of up to $40,000.
Under the Act, the SFO also has the power to execute a search warrant.
The NBR did not hand over any files when an SFO representative visited its office at 4.30pm, 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,” NBR publisher Barry Colman said today.
“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 written by reporter Matt Nippert and published on the front page of the 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 recent decision to defy a a Commerce Commission order and publish details of a secret side-deal between Vodafone and 2degrees.
The notice serviced on NBR (click each page for a larger view. And, yes, the SFO did spell Nevil Gibson’s name incorrectly):
* 3News | SFO threatens newspaper unless docs handed over
Isn’t this abuse of the SFO’s statutory power and authority?
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.
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
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,—…
10 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.
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Judicially recognised Public Watchdog on Metrowater, water and Auckland regional governance matters.
Posted by Penny Bright at 09:42 pm on October 19, 2010
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