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du Fresne, Karl --- "The uninvited guest: the role of the media in an open democracy" [2009] NZYbkNZJur 5; (2008-9) 11-12 Yearbook of New Zealand Jurisprudence 52

Last Updated: 25 April 2015

The Uninvited Guest:

The Role of the Media in an Open Democracy

Karl du Fresne*

I. IntroductIon

New Zealanders have access to an almost constant flow of news, information and comment though newspapers, radio and television, and, increasingly, the blogosphere. Many exercise their right to engage in public debate by phoning talkback shows, writing letters to the editor or posting comments on online blogs. We take it for granted that in a free and open democracy, we are entitled not only to receive uncensored information about what happens in government, in the courts, in our city councils, in business and in our communities, but also to express and exchange opinions on the conduct of public affairs.

We accept, and even expect, that politicians and public officials will be grilled, often quite aggressively, on radio and television. We regard this as an important part of the process of accountability without which an informed democracy cannot function. Furthermore, we think it unremarkable that columnists, radio hosts and online commentators are free to analyse and criticise the policies and actions of our leaders, often scathingly. In a liberal democracy, this public dialogue helps shape our conclusions about who is most fit to govern us.

We rarely pause to consider that in enjoying these democratic rights, New Zealanders are in a diminishing minority internationally. That is starkly borne out by the 2008 survey of world press freedom by the non-political, Washington-based group Freedom House, which shows that only 18 per cent of the world’s population lives in countries with a free press. Forty per cent live in states that are described by Freedom House as having a ‘partly free’ press and 42 per cent inhabit countries where there is no press freedom.1

In other words, 82 per cent of the world’s population is denied the freedom that New Zealanders enjoy to be informed about matters of public interest and importance, and to engage in the exchange of ideas and opinion that is crucial to an informed democracy. The 5.5 billion people who live in countries where press freedom is either circumscribed or non-existent inhabit what the

* Freelance Journalist and former Editor of the Dominion newspaper.

1 See generally, available at <> accessed 2

December 2009.

American journalist Walter Lippman called an ‘invisible environment’, denied the truth about what is happening around them and deprived of the knowledge they need to empower themselves politically and economically.2

These bleak statistics are important because they remind us that the press freedom we take for granted is not only precious but also increasingly rare. The Freedom House survey demonstrates that press freedom has been in worldwide decline for six years, retreating in supposedly democratic countries as well as authoritarian states.3

Rights and freedoms that are taken for granted can easily slip away, or be taken away. While New Zealand enjoys a very high degree of press freedom, it is more fragile than most people realise. For example, New Zealand does not have a written constitution that enshrines press freedom in supreme law. In this respect we differ from many countries including the United States, where press freedom is protected under the First Amendment to the Constitution. Admittedly, written constitutional safeguards are no guarantee of greater press freedom – a point evident from the Freedom House survey, which suggests that New Zealand enjoys considerably more press freedom than the United States. It is also worth noting that some of the most repressive countries on the Freedom House table have constitutions whose noble statements about freedom of the press are flagrantly disregarded by those in power. Nonetheless, the lack of written constitutional protections means New Zealanders need to be constantly vigilant against threats to press freedom. These threats occur more or less constantly and can come from any number of directions. Whether they arise from deliberate attempts to hobble the media or are simply the unintended consequences of flawed or misconceived legislation, the result is the same.4

Before dealing more specifically with some of these threats, a brief history of press freedom in New Zealand, and an examination of the legal and constitutional standing of the media, may be helpful in illuminating the issues.

2 W Lippmann, ‘Public Opinion’, (1997), Free Press: New York, 202.

3 Above n 1.

4 See eg, Jane Dunbar ‘Can we talk about the news? A discussion of media criticism in New Zealand’ (2003) Dept of Mass Communication and Journalism, University of Canterbury, NZ. Available at <> accessed

16 December 09.

II. PreSS FreedoM In neW ZeAlAnd: A hIStorIcAl And legAl oVerVIeW

The history of the press in New Zealand and its relationship with those in power has followed an erratic course. In the 19th century, newspaper publishing was undertaken with feverish enthusiasm; in many towns a newspaper was one of the first businesses to be established, along with the pub and the general store. There was a huge appetite for information and a realisation that newspapers were essential for creating a sense of identity and cohesion in new communities. It was a period when democracy was stirring in Britain, and with it a demand for free speech. Our early newspapers were founded by British immigrants and reflected the restless, questioning spirit of the times. As a result, 19th century newspapers in New Zealand tended to be intensely partisan and politically outspoken, and the first decades of European settlement were marked by constant skirmishing between colonial authorities and newspaper editors.5

As both the newspaper industry and the organs of government matured, the relationship settled down. Many overtly partisan papers went out of business, while those that were non-aligned politically, such as the New Zealand Herald and Wellington’s Evening Post, not only survived but prospered. An exception to this pattern was The Dominion, now The Dominion Post, which was established in 1907 with the express purpose of defeating the Liberal Party government and is still going strong, albeit with no political affiliations. As the 20th century progressed, the press generally became tamer and more respectful toward authority. One of the most shameful episodes in the New Zealand newspaper industry’s history was the imposition of fiercely undemocratic restrictions on what the press could publish during the 1951 waterfront dispute,6 which proprietors and editors seem to have accepted without protest.

5 See eg Leslie Verry ‘Seven days a week’, the story of Independent Newspapers Limited; Guy H Scholefield, ‘Newspapers in New Zealand’, (1958); A A Smith ‘Printing in Canterbury: A history of newspapers and printing houses of the province from the earliest times’; Frank Fyfe ‘Wakelin: Father of Journalism’: Richard Wakelin ‘1816-1881; his family, his newspapers, his spirit to 1990’.

6 K J Keith, the Right to Protest, in Essays on Human Rights, (1968), 49, 55; War on the wharves - 1951 waterfront dispute. Ministry for Culture and Heritage. 20 November 2007. Available at < wharves> accessed 3 December 2009; Nancy M Taylor, The Home Front. Vol 2, p 912. Available at <> accessed 3 December


It became the habit of the New Zealand press to genuflect to those in power. Former Prime Minister David Lange commented in 1994 that prime ministers’ press conferences were once formal occasions at which journalists asked questions in a deferential manner and considered themselves privileged to get whatever information the prime minister chose to give them. Recent prime ministers would confirm that is no longer the case.

Television interviewers such as Brian Edwards, and later the enfant terrible

Simon Walker, can take much of the credit for the fact that from the late

1960s onwards, the media showed more steel. Ground-breaking television current affairs programmes such as Gallery and Compass established the principle that politicians were accountable and could be confronted with awkward questions. Once television pushed back the barriers, newspapers were emboldened to follow. However media independence continued to be tested even as late as the 1980s, notably by the combative National Prime Minister Sir Robert Muldoon. As we approach the end of the first decade of the 21st century, a generally healthy and balanced relationship has evolved between politicians and the media. Indeed some might say the pendulum has swung too far in the other direction, and that some media figures now wield too much power.

History shows us that the relationship between the media and government in New Zealand is constantly shifting and redefining itself. Part of the reason is that in New Zealand, the media operate within a loose constitutional and legal framework.

As indicated earlier, there is no written constitutional guarantee of press freedom. Rather, press freedom in New Zealand arises largely from a complex and vaguely defined system of customs, conventions, traditions and common law principles which recognise, though often only tacitly, that an informed public is crucial to the functioning of an effective democracy. Much of this legal framework was inherited from Britain but it has been augmented by New Zealand statutes and common law. The most fundamental of these press freedoms is the right to observe and report Parliament, a right secured by English editors and journalists in the 18th and 19th centuries. However, even the right to report parliamentary proceedings is not unequivocally set out in law. Journalists sit in the Press Gallery at the pleasure of the Speaker, and in theory any MP can put a motion demanding that the journalists leave (a right fortunately never put to the test). Similarly, there is no legal requirement for judges to allow reporters in courtrooms, and judges have almost limitless powers of suppression. Nonetheless there is a tradition of judicial openness which arises from recognition that in order to command public confidence, the workings of the courts must be visible.

Remarkably, the place of the press remains ill-defined in our constitutional arrangements even though democratic government cannot function without it. The roles, responsibilities and relationships of Parliament, the executive and the courts are spelled out and their powers and limitations understood, but to all intents and purposes the media are invisible in the constitutional sense. As I have previously written:

Though New Zealand has no written constitution, elaborate rules, precedents and protocols set out standards for the satisfactory conduct of public business. The press, though arguably as crucial to the functioning of democratic government as any of these institutions [meaning Parliament, the executive and the courts], stands outside these mechanisms. Its place at the constitutional dinner table is that of a guest who is not on the formal invitation list, but without whom the occasion would be incomplete.7

The reason the dinner would be incomplete without a gaggle of reporters sitting at a table in the corner is that democracy cannot make sense without some means of informing the public on the affairs of government. Representative democracy not only requires that the public know what their elected representatives are doing, but also depends on those representatives knowing what the public thinks. The press is the vital two-way link in the democratic chain without which the public cannot engage in the political process. It was presumably this relationship that Edmund Burke had in mind when he made his famous statement that there were three estates in Parliament — meaning the Church, the aristocracy and the commons — ‘but in the reporters’ gallery yonder, there sat a fourth estate more important than they all’.8 Burke’s view does not mean journalists are deserving of higher status, but it does highlight the profound importance of their function.

It does not necessarily follow, however, that an urgent case should be made for a more robust constitutional protection of press freedom in New Zealand. As haphazard as our constitutional arrangements are in respect of press freedom, New Zealand’s consistently high place on the Freedom House table (it was ranked eighth in the world in 2008) points to a level of press freedom that citizens of many countries can only dream of. The adage ‘If it ain’t broke, don’t fix it’ would seem to apply. Yet the constitutional fragility of press freedom in New Zealand makes complacency dangerous. When threats to press freedom arise, it is often only the press itself that opposes them; and invariably when it does so it is accused of acting out of self-interest. This suggests that there is a limited public understanding of the benefit that flows to society at large from a free press and an open democracy. Too often, debates about press freedom are

7 K du Fresne, ‘The Right To Know’, (2005), p 30.

8 T Carlyle, On Heroes, Hero-worship and the Heroic in History, C Niemeyer (ed), (6th ed)

1966, 164.

skewed by accusations that media proprietors are motivated only by concern for their own profits, which obscures the essential point that press freedom is ultimately about the public right to know.

As mentioned previously, New Zealand in recent decades has added its own refinements and embellishments to the constitutional arrangements inherited from Britain in relation to press freedom. These reforms indicate that the New Zealand Parliament is capable of demonstrating an emphatic commitment to the principles that underlie open democracy, even while press freedom remains constitutionally fragile overall. The Official Information Act 1982 was a constitutional milestone, overturning a long history of official secrecy. In practice the Act has proved imperfect. Non-disclosure remains the default setting of many bureaucrats and politicians, who have developed a range of stratagems aimed at negating or at least blunting the intent of the legislation. Nonetheless, the Act prised open doors that were previously kept firmly shut. Another groundbreaking statute was the Bill of Rights Act 1990. Whereas the Official Information Act could be said to have failed to live up to its promise, the impact of the Bill of Rights Act has arguably been greater than anticipated. The crucial part of the Act, as it relates to press freedom, is Section 14, which holds that ‘everyone has the right to freedom of expression, including the freedom to seek, receive and impart information and opinion of any kind and in any form.’ The Act also provides that ‘the rights and freedoms contained in the Act may be subject only to such reasonable limits ... as can be demonstrably justified in a free and democratic society.’

Astonishingly, these fundamental principles had not previously been enshrined in New Zealand law. Although the Bill of Rights Act is ‘unentrenched’ and thus lacks the status of supreme law (meaning it may theoretically be overturned by a simple majority of Parliament), it has had a far-reaching impact on media freedom and freedom of expression. As welcome as these advances are, they do not guarantee protection against threats to press freedom. As observed earlier, these arise constantly and take multiple forms. Some stem from initiatives that are well-intentioned but wrong-headed; others are more malevolent in their purpose. Some target the media specifically; others pose broader threats to the right to obtain and exchange information and ideas. What follows is a brief overview of these threats.

Suppression of names and proceedings remains rampant in the District Courts, greatly impairing the ability of the press to report legal proceedings. Despite emphatic rulings from the High Court about the importance of transparency, some District Court judges seem to regard name suppression – at least on an accused person’s first appearance – as the norm rather than the exception. Even in the High Court, cases have arisen in which blanket suppression orders

were imposed. The Foxton author and journalist Anne Hunt found herself at the centre of a Kafka-esque scenario when defending herself in a contempt of court case, no detail of which was allowed to be disclosed publicly. The suppression orders were later relaxed and the case was reported, as it should have been in the first instance.9

A different form of suppression, less obvious but no less insidious, involves the conduct of local government business behind closed doors. In many New Zealand municipalities it has become almost routine for the press to be shut out of important council deliberations. As a result, decisions are made on matters of vital public interest without the press being able to inform the public how or why those decisions were reached. Threats to press freedom also manifest themselves in Parliament. One example was a surreptitious attempt in 2001 to introduce a criminal defamation clause into an electoral reform bill. The effect, as the government’s own legal advisers pointed out, would have been to stifle political debate in newspaper correspondence columns and radio talkback shows. In a similar vein the Electoral Finance Act 2007, the most offensive aspects of which have since been repealed, left the news media relatively untouched but wove a tangle of legal red tape around the most basic of democratic rights, the right to express a political opinion. A relatively new but very real tension has arisen between press freedom and personal privacy. Professor John Burrows QC, one of New Zealand’s leading authorities on media law, describes privacy as the ‘new kid on the legal block’. Burrows has observed that in circumstances where privacy issues clash head-on with freedom of information, especially where public figures are involved, the competing interests can be hard to reconcile.10

When compared with newspapers and television overseas, the New Zealand news media have a tradition of generally respecting personal privacy. It was long accepted by New Zealand journalists, for example, that politicians’ personal lives were off-limits unless they behaved in a manner that reflected on their ability to do their job or exposed them as hypocrites. However these long-standing arrangements are coming under pressure as a result of a celebrity culture that feeds on the private lives of public people. Many public figures welcome and encourage media attention much of the time but are quick to call in their lawyers when the murkier side of their lives is exposed. A celebrated example in Britain involved the supermodel Naomi Campbell,11 while in New Zealand a high-profile broadcaster’s private life has been sensationally exposed to public scrutiny.

9 Hunt v A, CA 114/06 [2007] NZCA, 332.

10 J Burrows QC, ‘Invasion of Privacy – Hosking and Beyond’, Media Law Symposium, NZ Law Review (2006), 389.

11 Campbell v MGN Limited [2005] UKHL 61.

Privacy concerns also intrude into other areas of the law, with serious implications not just for freedom of the press, but for freedom of information in the broadest sense. An example was the government’s attempt in 2007 to close off public access to the births, deaths and marriages register. The ostensible purpose was to prevent identity theft, but the real reason, judging by an explanatory note attached to the Births, Deaths, Marriages and Relationships Registration Amendment Bill when it came before Parliament, was that publicly accessible registers were ‘inappropriate in light of current attitudes toward privacy and protection of personal information’. The explanatory note failed to explain whose ‘current attitudes’ this referred to.12 Since there was no public consultation and no evidence of any public agitation for change, it could only be concluded that the ‘current attitudes’ were those of the government working group that drafted the legislation.13 The Bill (which was subsequently heavily revised after a public outcry) reflected a potent interaction between the traditional bureaucratic obsession with secrecy and the more recent preoccupation with personal privacy.

Freedom of expression, which is indivisible from freedom of the press, is under constant attack. The Danish cartoons episode, in which newspaper editors came under intense pressure from the government following their decision to publish cartoons deemed by some to be offensive to Muslims, was a vivid demonstration of the fragility of free speech in New Zealand. The heavy-handed political reaction was in clear conflict with the principle, laid down repeatedly by courts in England and New Zealand, that freedom of speech includes the right to publish material that some may find offensive. Instead of expressing censorious disapproval, the prime minister could have upheld the right of editors to publish the cartoons while making it clear that she disagreed with their decision. The government’s ban on a proposed visit by the Holocaust revisionist David Irving was similarly ill-advised. Not only

12 Access to and use of information, Explanatory Note, Births, Deaths, Marriages, and Relationships Registration Amendment Government Bill, available at <www.brookersonline.$27B36?si=1610670095& tid=477932> accessed 6 November 2009.

13 The working group consisted of representative of the Ministry of Justice, the Office of the Privacy Commissioner, and the Department of the Prime Minister and Cabinet. In addition to these agencies, the following government agencies were consulted on the proposals: Ministries of Health, Social Development, Economic Development, Pacific Island Affairs, and Women’s Affairs; Department of Labour; Child, Youth and Family; Inland Revenue Department; Statistics New Zealand; New Zealand Police; New Zealand Customs Service; the Treasury; Te Puni Kokiri; New Zealand Security Intelligence Service; and State Services Commission. See, Statement of consultation undertaken, Explanatory note, available at Births, Deaths, Marriages, and Relationships Registration Amendment Government Bill available at < bills/Bills$27BCC?si=1610670095&tid=477941> accessed 6 November 2009.

is New Zealand’s liberal democracy robust enough to cope with the views of extremists, but there is a risk that such views will only acquire an unwarranted fugitive mystique if driven underground. The resounding call of the poet Milton is worth recalling: ‘Let truth and falsehood grapple; whoever knew truth put to the worse, in a free and open encounter?’14

That some New Zealanders have a limited appetite for free speech is evident from letters in the press exhorting editors not to publish the views of climate change sceptics. It seems that for some people, free speech is fine as long as the views expressed are ones they agree with.

III. concluSIon

Threats to press freedom in New Zealand should be kept in perspective. Editors and journalists here do not risk murder, torture or imprisonment as they do in some countries. No government licence is required to publish a newspaper, and printing presses are not seized as a penalty for reporting politically inconvenient news or expressing views that displease those in power. Journalists in New Zealand are not harassed and intimidated by the military; neither are they threatened with imprisonment if they refuse to disclose confidential sources (as happened recently in Australia). New Zealanders are free to seek and obtain information from more sources than people in North Korea, Cuba or Belarus can dream of. However we will enjoy these rights only as long as we value them for the precious freedoms they are. The day New Zealanders become complacent about press freedom will be the day it becomes vulnerable to attack.

It is important to emphasise that press freedom is not about the freedom of media owners to make money, as some cynics like to assert. It is about people’s right to know, to live in an open society, to engage in the decision-making process and to participate freely in debate on matters of public interest.

Finally, it is important to acknowledge that the press, like all human institutions, is imperfect, and not everything it does is defensible. There is scope for endless debate as to whether the New Zealand news media perform their functions properly and responsibly, but as the French author and philosopher Albert Camus reminds us, ‘A free press can of course be good or bad, but most certainly without freedom it will never be anything but bad.’15

14 Milton, ‘Areopagitica: A Speech for the Liberty of Unlicensed Printing to the Parliament of England in 1644’, and J Milton Prose Writings, (1958) 145.

15 A Camus, ‘Resistance, Rebellion and Death’ (J O’Brien (trans.)) (1961), 102.

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