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New Zealand Yearbook of New Zealand Jurisprudence |
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 <www.freedomhouse.org/template.cfm?page=395> 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 <www.pjreview.info/issues/docs/09_1/09_03books-dunbar.pdf> 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 <www.nzhistory.net.nz/politics/the-1951-waterfront-dispute/war-on-the- wharves> accessed 3 December 2009; Nancy M Taylor, The Home Front. Vol 2, p 912. Available at <www.nzetc.org/tm/scholarly/tei-WH2-2Hom-c19.html> accessed 3 December
2009.
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. co.nz.ezproxy.waikato.ac.nz/databases/modus/lawpart/bills/Bills$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 <www.brookersonline.co.nz.ezproxy.waikato.ac.nz/databases/modus/lawpart/
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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