In January this year, the results of a major annual survey on
media freedom conducted by the organisation Reporters Without
Borders showed in 2011 New Zealand dropped five places from
8th to 13th in the space of a year.
For a country that has always prided itself on being one of
the most open in the world, and among the least corrupt, this
apparent decline in freedom of expression may have come as
something of a surprise - particularly for the lay observer
unconnected with the intermittent skirmishes taking place in
the media undergrowth.
But the reality is that rarely is distance on the scale
marked in ground-breaking steps: rather, it is incremental
and cumulative rather than singular and seismic.
Several instances during the past year contribute to a trend
tainting at least the perception of the freedom, balance and
independence of media in New Zealand: Prime Minister John
Key's exclusive hosting of a Radio Live show prior to the
last election; the appointment of his electorate chairman
Stephen McElrea to the board of New Zealand on Air; the
involvement, at the behest of the Prime Minister, of the
police "visiting" the offices of a number of media
organisations during the "tea-party" tapes saga; the Serious
Fraud Office's seizure of material from the National Business
Review relating to investigations into South Canterbury
Finance, and so on.
Arguably, the latest threat is of a different order,
particularly with respect to the Fourth Estate's watchdog
role over the various branches of government. Should it find
its way on to the statute book unaltered, as may well happen
with its scheduled third reading next week, the question
might rightly be asked: who now will guard the guardians?
The departure lies in a proposed compromising of the right of
journalists to protect their sources. Section 68 of the
Evidence Act 2006 specifically provides for the protection of
journalists' sources such that "neither the journalist nor
his or her employer is compellable ... to produce any
document that would disclose the identity of the informant".
That can be challenged in the courts, but the presumption is
in favour of the journalist's right to non-disclosure.
Last week, Justice Minister Judith Collins released a
Supplementary Order Paper that contained amendments to the
Search and Surveillance Bill.
This Bill aims to bring "order, certainty, clarity and
consistency" to bear on complex, contradictory and outdated
search and surveillance laws, and had its origins in a 2007
Law Commission report. Much of its work is indeed necessary
and, for the most part, uncontroversial.
But one pertinent clause has been presented by the Justice
Minister as a win for freedom of expression "in recognition
of the media's role in a free and democratic society ... and
a journalist's right to protect sources". In fact it
represents a step backwards. Editors' and producers' claims
to "journalistic privilege" under the proposed change will be
subject to the determination of a High Court judge: he or she
will decide whether sources, and identifying material, can be
withheld; in our opinion, the presumption in favour of the
journalist is overturned. The material can be uplifted by the
court pending a decision as to whether or not it, and the
source, can be revealed.
In such circumstances, what person with material potentially
damaging to members of a government, its police force, its
military or its judiciary - to take extreme but plausible
instances - would be prepared to come forward knowing that
the information could compromise his or her own safety,
reputation or career?
While most often such information will concern less savoury
members of society, the effectiveness of legislation lies in
its application to the unlikely or the unusual rather than to
its certainties; to the heart of the establishment rather
than to its petty criminal fringes. History is full of
instances, Watergate among them, illustrating the need for
restraint on unbridled power. As much as its intentions might
be precisely the opposite, in its potentially dampening
effect, the new amendment further hobbles freedom of
expression and opens the stable door to the enticements of