Media freedom and independence under threat

OPINION: Media freedoms are absolutely essential to the long-term health of any democracy. New Zealand is no exception. 

The production order used by the Serious Fraud Office (SFO) against the National Business Review demanded that NBR give up their records, including sources, of the NBR inquiry into the South Canterbury collapse.

That collapse caused hundreds of millions of dollars of cost to tax payers. The huge losses led to allegations of improper behaviour by South Canterbury Finance.

Serious questions were also raised about incompetence of the Government and its Ministry (the Treasury).

They allowed the size of that risk to grow by hundreds of millions after the Crown guarantee was granted, and rejected alternative ways of solving the problem which may have saved tens if not hundreds of millions.

NBR was right to inquire into what had gone wrong. The SFO interference in the NBR proved beyond doubt that the SFO powers are excessive and undermine the important role of a free media.

The SFO issued that order against the NBR with no outside oversight. 

The excessive powers of the SFO mean that they do not have to get a warrant from a judge.  Records they take are kept by the SFO.  Refusal by the media to comply with an order from the SFO put the journalist and the NBR automatically in breach of the law, and at risk of criminal prosecution and fines. Just for protecting their source!

In contrast the similar power proposed for police investigating of even more pernicious organised crime requires the police to get a warrant from a Judge, which may be declined.

For the police any disputed records taken are to be secured and held by the High Court (not the SFO or the police). A High Court judge then decides whether the protection of media freedom provided for in the Evidence Act means the media’s records and sources should remain confidential.

If the media are not free of undue intrusion by state agencies, or have too cosy a relationship with political parties; they cannot do what the fourth estate is meant to do.

The SFO abuse of its powers in its dealings with the NBR clearly shows that its empowering legislation needs to be tightened by Parliament.  It is abhorrent that media sources are at risk, because this undermines the media’s ability to do what society needs them to do – show up incompetence or corruption. 

If journalists’ sources are at risk of exposure they will not make the disclosures needed by the media to do its job.

While we politicians sometimes bridle at criticisms which can seem harsh, superficial, or unfair, most of us will defend the right of the media to investigate and criticise without fear or favour.  We should fiercely defend that right because informing the public of bungling or corruption – especially by politicians and government agencies - is essential to stop it happening again.

The refusal of the National government to address this important issue as part of the Search and Surveillance Bill currently before Parliament is driven by politics not principle. The Minister of Justice, who was until recently the SFO Minister, alleges that because Labour will not vote for the Bill unless it better protects the liberties of the fourth estate, we in Labour are soft on crime.

In other words, National is attempting to gain politically by positioning Labour. National is taking a superficial populist approach for its own political ends. This should concern those who think the principles at stake are important.

This is one of a number of worrying events concerning the relationship between the media and the government:

The list is getting long and more serious:

• SFO use of production orders against the National Business Review.
• Calculated refusal of the government to address SFO powers, and media protections, as part of review of Search and Surveillance Bill, despite media calls for protection and opposition efforts.
• Government attempt to overrule Supreme Court decision in Hamed (Tuhoe case), rather than the more limited fix agreed by Parliament after all other parties rebelled.
• Use of the police (and the Solicitor General) by the Prime Minister over the tea-tapes after that media stunt went wrong. The police served warrants on three media outlets and the powers of the State were used to stop publication of what Mr Key said at that contrived public event.
• The appointment of the National Party Helensville electorate Chairman Mr McElrea to the Board of the Broadcasting Commission (aka NZ on Air), and his subsequent attempt to stop the broadcast of a documentary on Child Poverty prior to the election, and his involvement in funding decisions, such as funding for the documentary on the government’s Whānau Ora programme.
• The Radio Live show hosted by the Prime Minister during the 2011 campaign, with the pretence that it was not political, and the taxpayer-paid staff of the Prime Miniter’s office drafting correspondence for Radio Live to use with the Electoral Commission.
• TVNZ’s alleged instruction to FairGo journalists not to pursue items which their advertisers would not like.
• Deferred and preferential payment arrangement for $43 million of frequency fees for one media company (Mediaworks), with the involvement of Minister Joyce.

Undermining the liberty and independence of the media is very concerning. It strikes at the heart of holding government and democratic institutions to account. 

It is no coincidence that countries that undermine media freedoms or independence have more corruption, more human rights abuses, worse governments, and poorer economies. 

This in turn undermines public confidence in the very democratic institutions that we should all value and strive to protect.

David Parker (BCom, LLB) is Labour’s Finance spokesperson and a former Attorney General.