Silencing the sources

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This Bill aims to bring "order, certainty, clarity and consistency" to bear on complex, contradictory and outdated search and surveillance laws, and had its origins in a 2007 Law Commission report.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 corruption.