On John Roughan’s Curious Distaste For Journalistic Privilege

Colonel Nasser of Egypt once pithily observed that “The genius of you Americans is that you never make clear-cut stupid moves, only complicated stupid moves which make the rest of us wonder at the possibility that we might be missing something.”

Now, I hesitate in the extreme to term The Herald’s John Roughan a “genius”. Yet every time I read one of his more “ideological” columns, that sort of sentiment seems to spring to mind. A sort of more-cynical/paranoid version of the famed ‘Hanlon’s Razor’ – “never attribute to malice, that which can adequately be explained by stupidity”.

Because so frequently, when I cast my eyes over his output, I see all these wild blurrings and obfuscations of facts – and I am never quite sure how much of this is *deliberate* propagandizing, versus Roughan simply lacking due diligence or apt memory of the events and details and occurrences in question.

The most recent offender is his recent piece basically opposing the legal protection of journalistic privilege being upheld in the case of Nicky Hager in relation to an illegal search-warrant executed upon him by the NZ Police.

It’s phrased also in general terms as Roughan rallying against this occurrence – due to its being some sort of mid-step marching-stride towards an “unfree press”. This is because, in Roughan’s view, the inexorable result of *all* journalists having the protection enshrined in statute which Hager has benefited from … is all of our ‘official’ news media turning into Pravda, apparently.

Which is downright peculiar by itself. I mean, surely the legal protection of the journalist-source relationship ought to *increase* the relative freedom of our press, by increasing the facility with which they are able to garner information to report?

‘Not so’, says Roughan; and he invokes the spuriously slippery slope specter of Aotearoa marching towards an era of Journalism being a fully-licensed and accredited profession a la Doctors, Lawyers, and Clinical Psychologists. The implicit idea being that the State shall get to decide who is able to effectively call themselves a Journalist, and benefit from the resultant protection – thus limiting the freedom of the press to speak truth to power, in consequence.

Except … that hasn’t exactly happened, has it. The law which Roughan has taken issue, has been in force now for some thirteen years. It’s true that the Press Council is a thing, and that in order to gain institutional access through the Parliamentary Press Gallery, one must be properly accredited …. but these are not recent innovations here. They’ve been in place for decades. Something Roughan presumably knows, given his stint on the latter from the early 1980s onwards, for a start.

In fact, taking a look at the relevant section of the Evidence Act, I’m not sure at all what Roughan thinks he’s getting at.

Here it is:

“journalist means a person who in the normal course of that person’s work may be given information by an informant in the expectation that the information may be published in a news medium” [s68 (5) Evidence Act 2006]

No requirement for state licensing mandated there, and I further note that it’s not an absolute privilege, either – with s68 (2) allowing a High Court Judge to overrule the privilege anyway in situations of significant public interest.

As a further point of interest, s58 of the same legislation enables a Minister of Religion to claim a not entirely dissimilar legal privilege to that of a journalist, in the course of his or her duties. Now, Roughan is clearly aware of this – he makes brief mention of the protection in his piece. Except when it comes to his scaremongering about the “slippery slope” we are apparently setting up by enabling Nicky Hager to have the proper privilege protection due to him as a journalist … Roughan curiously stops mentioning “Minister of Religion” – we go from “Only lawyers, doctors, priests and clinical psychologists have the same rights of confidentiality in legislation” through to “properly qualified and licensed like lawyers, doctors and the rest.” Spot the difference.

The reason why he’s suddenly started getting ‘blurry’ here, is because the State of New Zealand *does not* actually license nor assess the qualification or otherwise of “Ministers of Religion”. It *especially* does not, when we are dealing with s58 of the Evidence Act, which defines a Minister of Religion as follows:

“A person is a minister of religion for the purposes of this section if the person has a status within a church or other religious or spiritual community that requires or calls for that person—

(a) to receive confidential communications of the kind described in subsection (1); and

(b) to respond with religious or spiritual advice, benefit, or comfort.”

Now, personally I think that’s a rather broad legal standard, and it would no doubt be both interesting and well beyond the scope of this piece to take a look at how the Courts have interpreted the law in these matters, when it comes to establishing just how widely the principle of recognition extends here.

But the point is – whether we are dealing with Ministers of Religion, or with Journalists, what Roughan is claiming is the likely-inevitable result of having state-mandated (conditional) protection for these occupations … is simply not a thing under current legislation.

Which is not to say that, in some Reductio-Ad-Orwellium hypothetical future, Parliament might not, for some otherwise inexplicable reason, vote to grant *enhanced* protections and privileges to journalists … although that perhaps makes about as much sense as the proverbial Turkeys voting for an ever-larger set of test-knives afore Christmas. And besides, with deference to the only *other* instance cited by Roughan of a man having his legal status as a “journalist” subjected to judicial scrutiny – that of Cameron Slater – the Government of the day demonstrated that it was perfectly capable of providing him with *all manner* of assistance and empowerment without creating a more broad and legally above board ‘protected class’ of offically Parliamentary-sanctioned PR-chaperoned propagandtastic mouthpieces.

And while we are speaking of Slater, it seems most curious to me that Roughan takes such issue with the people who had sought to have Slater’s “journalistic” status revoked. He does so at least partially on the basis of WhaleOil’s exposure of Len Brown’s extramarital affair – claiming that this was “one of the strongest pieces of journalism I have seen in this country.”

And certainly, I am not going to disagree that it was one of the most “spectacular”. Not least when the fireworks started going off prematurely and *inside the tent* of the political would-be operatives attempting to besmirch the just-elected Mayor by cajoling a story out of an arguable victim in false pretenses. We shall leave aside the fact that WhaleOil did what he did there for a political purpose, and that Slater’s most prominent role in the drama was as publisher rather than gumshoe. I do understand and accept that you could feasibly term what happened there as “Journalism”.

But, you see, Roughan is rather ribaldly misrepresenting reality here. Slater did not lose his “journalist” status in the course of the Blomfield defamation case due to anything he might have ‘reported on’ with regard to then-Mayor Brown. Rather, he lost it *for that specific case*, because the High Court Judge in question quite sensibly ruled that carrying out a “private feud”, and attempting “extreme and vindictive” weaponized disclosures of patently unsupported or even potentially outright falsified information with the purpose of prosecuting “extended character assassination” against an otherwise private citizen … wasn’t “news”, nor was it “responsible” conduct.

Roughan omits to mention, as well, that Slater nevertheless *did* find himself acknowledged *as* a “news medium” more generally by the same Court that was stripping him of the protection of journalistic privilege, in the course of the very same case … because I presume that that doesn’t fit the narrative which he wants to portray.

Which appears to be of Hager as some sort of semi-illegitimate interloper into the journalistic sphere; as Roughan puts it: “Nor would I blame them if “journalist” wasn’t a designation of Hager that sprang automatically to their minds. Many see him as primarily a political activist, especially when he pumps out polemics such as Seeds of Distrust and Dirty Politics during election campaigns.” Although, to his credit, Roughan does then briefly add “But he is a journalist.”

So, on the one hand, we have Slater, and his “2013 exposure of Auckland mayor Len Brown’s office affair [as] one of the strongest pieces of journalism I have seen in this country” … and on the other, we have Hager, and his books taking on both Labour- and National- led Governments, being regarded “primarily as a political activist”. What’s the difference? Well, I suppose, for a start, Slater tended to only far more rarely attack the figure (and administration) that Roughan wrote a biography of a few years back.

But I digress.

Roughan writes in his piece, that he’d “been a journalist for 45 years and I didn’t know we had [journalistic privileges]” under law. And you know what? I somewhat potentially believe him. For you see, Roughan writes these days mostly in the “Opinion” pages of the Herald. And most of his actual output, that I’m aware of, has been a sort of comfortable-accommodation-with-the-ruling-classes-and-accepted/acceptable-lines style stuff that would be singularly unlikely to land him in court or subject to police officers bashing down his door in possession of a search warrant.

To be fair and sure, he does occasionally write good and useful stuff; and I highlighted his recent piece on Ihumatao in part because it was exactly that. At least, in terms of whom it was presumably reaching out to, and what it was seeking to say.

But all-up and overall, I suspect that the reason why Roughan had no knowledge of the legal protections available to a journalist in the course of his or her duties, is because he had never had much, if any, cause to avail himself of them.

Unlike Hager.

So when it comes to Roughan attempting to luridly sketch out the Road to State-Sanctioned Serfdom which the NZ Journalistic fraternity and profession are presumably diving headlong down upon for *daring* to make use of their legally extended protections, in cases of controversial crusading activities … part of it’s probably because he’s considering the whole thing as an abstract.

He does, after all, talk up his view that “News media have long claimed a right to protect anonymous informants in court” [which .. somewhat contradicts the assertions made elsewhere in the piece, but anyway], and that in consequence, “Judges have been well aware reporters and editors would go to jail rather than betray a source.”

And yes, there is something pretty nobly romantic in the idea of a reporter who so adamantly believes in the truth of what they are doing, the truth that they are *reporting*, that they’re prepared to put themselves in the potentially serious harm’s way of a prison term (with all its accompanying fecundities) for this.

But underneath this, is something else. Namely, the reflexive role which Roughan plays as a sort of telepathic mouthpiece for the older and more right-wing/conservative type of New Zealander that has hitherto had such a monopoly on power [c.f his eulogistic remarks a few weeks ago around the era of benevolent “Remuera Patricians” running Auckland].

Which is what it is. And in this instance, it’s a semi-conscious feeling that somehow Hager has “gamed the system”. That instead of the onus being upon the NZ Police to know the law if they are going to choose to enforce it, especially in incredibly high-profile and high-stakes politically-resonant cases … that the onus is upon journalists not to “upend the applecart”, or at least, not rock the boat *too* much or in too potentially insalubrious company [“the trouble with being on the side of right…”, as other Winston used to say, being “all the insalubrious company”].

That, to quote the old adage, “if you’ve got nothing to hide, you’ve got nothing to fear”.

That “the law” is a single, unified and level playing field, which is unutterably undermined when we start creating ‘special’ differences within it for persons and clades of people whose intersection with the law is, by their very nature, going to be different and have different requirements of it.

And, in this particular case, that a legal protection rolled out for *all* journalists, incredibly broadly defined with reference only to their regularly being “given information” which is then “published in a news medium” in the course of their “work” … that the fact that one single journalist *actually successfully making use of this* protection in a court of law, somehow creates both an ‘exceptional situation’, and irrevocably undermines the freedom of our nation’s press.

Because what kind of “free press” has freedom from undue scrutiny of its informational sources, right?

This is not the “banality of evil” that we are witnessing before us. This is the “freedom of banality” that Roughan apparently seeks to defend.

The freedom to do as you like, write and publish as you wish … but only provided that it isn’t incendiary, isn’t explosive enough to actually be viewed as a “problem” by the Powers-That-Be, and their blue-uniformed enforcement arm [whom, it should be clear, I generally am rather positive about – the latter, I mean, not so much the former]. Unless you, yourself, are prepared to put yourself in the firing-line to be criminalized for it.

For all his bluster about how we are apparently “on the slippery slope towards an authorised press” [and how nice when he namechecks the fallacy he is using, even as he invokes it] “which is not a free press”, Roughan appears not to have thought seriously about the local implications of running the removal of journalistic privilege, to similar extremes as he has hyperventilated about its maintenance.

There is an old Soviet joke:

“First, do not to think.

If you think – do not speak;

If you speak – do not write;

If you write – then don’t publish,

If you publish … don’t be surprised.”

We might adapt this to Roughan’s take on Hager’s situation:

“First, do not receive potentially inflammatory information.
If you receive it, do not read it.
If you read it, do not write about it.
If you write about it, do not publish it – especially during an Election Year!
If you write about it (especially during an Election Year, thus implicitly attacking the Government when it is most at risk) … then do not be surprised, when the constabulary execute a search warrant upon you.”

Now how’s *that* for a slippery slope away from the concept of a “free press”.