How is the truth gated and gagged?

By Gavin Ellis

In an extract from his new book Complacent Nation, former New Zealand Herald editor-in-chief Gavin Ellis looks into how restrictions are applied when it comes to printing the truth in the news media.

When I was a young reporter, “media management” referred to what I thought was a group of very old male executives and their very efficient secretaries who inhabited a floor far, far away from the end of the building where we produced a newspaper.

Today it refers to the means by which a legion of “communications professionals” works assiduously to ensure that information presents their “clients” in the best possible light. To my knowledge, and in spite of the term “public relations”, the public is seldom, if ever, listed as “the client”.

There is a certain paradox in the fact that people seemingly engaged to communicate are actually employed to filter, massage and constrain the flow of information. They have existed throughout my half-century in journalism – and immensely helpful some of them have been – but in the latter half of that span they have become powerful gatekeepers between the sources of news and journalists.

One of the reasons for this is numerical superiority. Census data shows that in 2015 there were 1,170 print, radio and television journalists in New Zealand, compared with 3,500 public relations professionals – a ratio of 3 to 1. That may be better than in the United States where it is 4.6 to 1 but accurate statistics are difficult to find. The Ministry of Business, Innovation and Employment 2003–12 Occupation Data prepared for Careers New Zealand indicated that more than 4,000 were employed in public relations in 2012 and numbers in the sector have grown while those in journalism have continued to decline. This reduction in newsroom resources has increased the reliance that journalists have come to place on PR practitioners. They have become easy sources of news (so long as it is the news the communications experts wish to see printed), packagers of ready-made content including video, and an easy point of contact. They have exploited this position to the advantage of their clients.

At the outset, however, let me dispel the notion that all communications staff are malevolent trolls and all journalists are seated astride white horses as the champions of democracy. Many communications specialists do a fine job turning bureaucratic gobbledygook into understandable language and distribute it effectively to the public. Journalists, like everyone else, have their failings – they strive for balance and accuracy but sometimes they don’t get it right – and some are content to concentrate on the inconsequential. And we should not forget that, powerful though they have become, communications staff only act at the calling of their employers. They may advise but they do not dictate. So the employer may, if he or she so desires, turn the gatekeeper into a roadblock.

The communications advisor can be an effective means of minimising or suppressing bad news or shielding senior executives or office holders against attempts to hold them to account. And the roadblock can become a solid brick wall. Take an example from across the Tasman: according to The Australian, the Australian Department of Social Services (which has a fifty-strong media team) answered only two out of 390 inquiries in the first half of 2015. This, the Labor Opposition alleged, was on the orders of its minister, Scott Morrison.

I don’t intend to dwell in this chapter on the clever ways in which the masters and mistresses of spin can make the good news hang around and the bad news go away. Instead the chapter will focus on systemic ways in which the free flow of information is controlled. The purpose in doing so is to demonstrate how routine practices are used to inhibit both your access to information and individuals’ rights to free expression. “Media management” is the means by which an acceptable face is put on yet another proscription of what is our due under Section 14 of the Bill of Rights Act: the right to receive information.

Structural controls

The control of information is now built into political, bureaucratic and corporate structures. Communication management is reflected in both management organisation – larger entities have PR professionals in their senior management team – and in protocols for the handling of requests for information or media access to personnel. The most obvious manifestation of this systemic control is when media enquiries are directed to “our media people”. I doubt there is a journalist who has not made a telephone call and, after identifying themself and asking to speak to a named person in authority, been told “Oh, I’ll put you through to our media people”. And “our media people” listen attentively and then say “I’ll get back to you”, taking ample time to confer, produce a massaged response, and deny the journalist access to the person he or she sought in the first place.

Access to senior cabinet ministers isn’t as casual as it once was. I recall how, as a young reporter in the parliamentary Press Gallery, I was able to knock on the door of a minister’s office in the evening and often-as-not the minister would be available for questions. It was not, however, a situation without danger. On one occasion I knocked, heard a sound and entered to find a minister and a woman who was not his wife in an amorous embrace. I hastily withdrew and the thought of writing a story about the liaison never entered my head. In fairness to present ministers, I should note that both are long dead.

Times have changed but access to senior ministers – including the Prime Minister – remains relatively easy for senior Press Gallery journalists, albeit via a communication advisor rather than an unattended door. If a press secretary does not respond quickly enough, a text message to the minister will usually lead to direct contact, but the journalist is in no doubt that the minister will be extremely well versed in how to manage the flow of information. Access does not necessarily mean answers. Access to Opposition MPs is more structured and elaborate, with communications advisors often demanding that access be through them.

It is an entirely different story, however, with ministries and government agencies. Senior Press Gallery journalists – the journalists who are trusted sufficiently to get ready access to the Prime Minister and his senior colleagues – run up against what one described to me as PR “empires” that, to justify their existence, have invented obstacle courses for media who wish to talk to senior managers and chief executives.

“It is frustrating and has a chilling effect”, I was told by one Press Gallery veteran. “I’m sure fewer questions are asked because of the rigmarole involved in getting information from government departments. They believe everything can and should be [by way of] questions in writing.”

When I was a reporter the written-question phenomenon was, to use one of my favourite similes, as rare as rocking-horse manure. It was frowned upon because it gave the subject time to manufacture a response that was more self-serving than informative. In spite of that undue advantage, the demand for written questions has grown exponentially in the age of email. Yes, it can be a useful tool for lazy or time-poor reporters but for communication advisors it is a godsend. Written questions beget written answers. They provide space in which to spin the response, give the communication advisor the initiative on when to respond and, of course, deny the journalist direct access to the person with direct knowledge. It also allows the department or agency to ignore questions it prefers not to answer and to respond to questions in often-impenetrable ways. One journalist told me that she had requested background information – to improve her knowledge of a complex subject – from a ministry but had been told to put her questions in writing. She did so and the material she eventually received in response was “so full of gobbledygook that I couldn’t understand it and couldn’t use it”. Up against an imminent deadline, she had no choice but to throw it away.

The funnelling of media requests through the PR machine significantly reduces the range of personnel to which journalists have access and exercises considerable control over what emanates in the name of those who are authorised to speak. I choose “in the name of” carefully because it is common for the information to be gathered and prepared by communication staff and merely approved by the person to whom it is attributed. This is particularly the case in response to written questions and prepared media releases.

Let me provide a personal illustration: during a brief foray into public relations, I prepared such a media statement for Sir Reginald Savory, who headed one of my client organisations. He had to deliver a speech on the subject and, declining my offer to turn the release into speech notes, said he would read instead from the release I had written. He made his opening announcement and then, removing any doubt that he was not the author, added “… the chairman of the Auckland Harbour Board, Sir Reginald Savory, said today”. At the other end of the spectrum was a particularly astute businessman who told an audience that “my PR people don’t put words in my mouth”, tore up his speech notes, and proceeded to deliver the material from memory. Proof positive that PR people put words in their clients’ mouths whether you know it or not.

This, however, is an act between consenting adults. The person who approves a release or the responses to written questions is complicit with the communications advisor and together they decide what to say, what not to say, and how to not say anything while appearing to say something. It is a very different situation for those outside this collective arrangement. Journalists may be denied access to them and they may be denied the right to speak simply because structures and protocols prevent it.

Countless organisations now have strict written policies on contact with the media. Let us consider, for example, the Auckland District Health Board (and I choose it simply to illustrate and not because it is more or less restrictive than any other organisation of its type). It clearly sets out its media policy in a board policy manual that prospective staff are “encouraged to review and understand prior to accepting any offer of employment”. The policy states unequivocally that only designated people are authorised to talk to the media; even these designated individuals must refer initial enquiries to the ADHB communications team and any statements to the media must first be checked with the communications team. The areas in which each designated individual is authorised to speak are carefully ring-fenced.

The policy extends to individuals speaking in a private capacity and instructs them as follows: “Without first consulting the ADHB Communications Unit, employees must not speak in a private capacity about information received in the course of, or matters pertaining to, their employment with ADHB.” While salaried medical staff have a right to speak on professional issues under the DHB Multiple Enterprise Collective Agreement, the Auckland DHB (and its counterparts) must not be mentioned or the comms unit must first be consulted. It is hardly conducive to medical staff holding their place of work publicly to account.

In fairness, however, some journalists have good working relationships with the communications staff at their district health boards. Sometimes it is due to the presence of a particularly helpful staff member – one attached to the Starship children’s hospital had a commendable reputation for being particularly helpful to journalists – or to assiduous work by a reporter with the time to build a good relationship with communications staff. One regional newspaper reporter told me how she established a good working relationship by arranging a meeting at which she explained the newspaper’s time constraints, the demands of its digital and paper deadlines and so on. In turn the communications staff explained their constraints, what times they were on-call and what they did on a daily basis. The reporter told me it was “quite helpful”. Nevertheless, even the most helpful of communication staff are bound by media policies that have the avoidance of risk as a central theme.

The coverage of media policy documents extends beyond employees. In 2014 a Massey University researcher, Dr Catherine Strong, found that local bodies were developing media policies that also bound elected representatives. She conducted an analysis of codes of conduct used by forty-three of New Zealand’s sixty-seven city and district councils and found that almost a quarter of them prevented elected representatives from making media comments critical of their council. She said that in those ten cases “disturbing restrictions” prevented elected members from speaking out on issues with which they disagreed.

“In fact, it seemed all-inclusive to prevent criticism. Some prevent criticism of conduct of council, or criticism of council decisions, or undermining council decisions, or bringing council into disrepute”, she said. “These restrictions on elected members speaking publicly means that the community gets the impression all decisions get full agreement, and that there are no contrary views to the myriad policies and decisions a council takes”.

She suspected that newly elected councillors sign up to the codes of conduct (some running to 4,000 words) without even reading the small section on media relations that some councils have simply cut and pasted from other councils’ manuals – including punctuation errors.

Codes of conduct can be onerous but they are not the sole means by which an organisation can maintain strict control over what information emanates from it. Contract law is yet another weapon in the arsenal. Confidentiality clauses are routinely written into employment contracts and employees in Crown Research Institutes (CRIs) – and that includes many of the country’s scientists – are bound to silence by the contracts that their organisations sign with commercial clients.

University of Auckland physicist Professor Shaun Hendy explores the information gags placed on scientists in his BWB Text, Silencing Science. His book coincided with the creation of new Royal Society of New Zealand guidelines for public engagement by scientists. The draft guidelines warn scientists against accepting onerous confidentiality provisions in research contracts. However, the scarcity of contestable funding means that scientists are forced to accept contracts even though they contain clauses that allow their corporate or government funders to gag them even on matters of public interest. The guidelines do advise them to “seek advice on how to proceed if they believe there is an unacceptable risk to the public interest from not disclosing information they hold, and where its release could breach a contractual obligation or create a risk of liability” but many scientists will put a high threshold on such disclosure.

The constraint on scientists was no more apparent than during the Fonterra botulism scare in 2012 when test results – later proven to be false – suggested a consignment of whey concentrate might contain botulism-causing bacteria. When the story broke in the news media, the public were anxious for information and journalists were scrambling to find scientists who could explain the problem and put it in context. However, most of the experts were unable to speak because they worked for Fonterra, the Ministry for Primary Industries or AgResearch (a CRI). All communication was channelled through the senior executives of Fonterra, the director-general of MPI and the head of AgResearch. In other words, journalists could not get to the scientists. Key independent scientists were drafted in to advise and review the situation. This also placed them off-limits.

Public alarm was heightened when a Fonterra executive referred to the contaminant as “toxins”. Microbiologist Siouxsie Wiles stepped into the scientific vacuum and publicly questioned the use of the term, only to be criticised by her fellow scientists because she was not a specialist in food-borne illnesses.

CRIs claim that their scientists can talk about their basic science, but in reality there are major sensitivities around commercial contracts and it is easier for them to instruct their scientists to say nothing for fear of public comment annoying a client. A New Zealand Association of Scientists survey included anonymous anecdotal evidence supporting that claim and there are strong suggestions that this has intensified over time.

CRIs want to exercise control over their scientists to the extent that they will decide who may or may not speak publicly on an issue. That amounts to a gag on researchers. Consistent with the Bill of Rights Act, scientists should retain a right to express themselves on a given issue albeit making clear that they speak in their own right and not as the spokesperson for the institution in which they work. They are, however, up against a culture that gives highest priority to the clients funding the institutes’ work and discounts any notion that obligations to the public may outrank that status. The new guidelines may provide scientists with an “out” but the botulism scare indicates that even on public safety issues the scientist feels bound by his or her employer.

Canada provides a worrying example of the extent to which much-needed scientific input to public debate can be stifled. The former government of Stephen Harper fought what was described in the New York Times as a “war against science”. It placed gag orders on Canadian environmental scientists and banned National Research Council members from discussing their work on snowfall with the media.

A New York Times Sunday Review opinion piece by Stephen Marche accused Harper – whose power base was in the oil-rich province of Alberta with its oil and petrochemical companies – of threatening scientists at Environment Canada with dismissal if they publicly discussed their work without political approval. Marche stated that mention of Canadian federal climate-change research in the press dropped by 80 per cent as a result. Ninety per cent of the federal government scientists who took part in a survey commissioned by the Professional Institute of the Public Service of Canada (PIPSC) in 2013 believed they could not speak freely to the media about their work. Even more disturbing was the finding that 86 per cent of the 4,069 scientists in the survey believed they would be censured or face retaliation if they went public over a departmental decision that could harm public health, safety or the environment. The president of PIPSC, Gary Corbett, launched the survey report with a statement that federal scientists were “facing a climate of fear”.

The Harper Government’s constraints on free speech were not limited to scientists and climate change. Within weeks of that survey being published, the Toronto Star revealed that staff in Member of Parliament offices were being forced to sign “loyalty agreements” that would prevent them from revealing to the public anything – including misspending or improper conduct – that they learned in the course of their employment. The agreement remained in force even after signatories ceased working in the House of Commons.

Why have I set out the Canadian experience at some length? I do so because the Canadian Charter of Rights and Freedoms – the equivalent of our Bill of Rights Act – states that it guarantees the rights and freedoms set out in it “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society” – the same wording that appears in our Act. Like their Canadian counterparts, and in spite of high-minded constitutional language, New Zealand politicians, officials and executives operate in a deeply ingrained culture of containment that makes “demonstrably justified” just a little too malleable for my liking.

Let me provide a recent New Zealand example of malleability. In May 2015 the Attorney-General examined the Electronic Monitoring of Offenders Legislation Bill before it went to the House for debate and found that it was in breach of the New Zealand Bill of Rights provisions relating to freedom of movement, search and seizure, and double jeopardy. These limitations, he said, could not be justified under Section 5 of the Act. In spite of this clear warning, the Bill came before Parliament for its first reading unchanged. The then Minister of Corrections, Peseta Sam Lotu-Iiga, made no attempt to reconcile the constitutional dilemma of the rights of former inmates versus public safety but shepherded the legislation through to a select committee – which he effectively encouraged to ignore the “apparent inconsistency”.

Policy controls

It would be fair to say that throughout my tenure as editor and editor-in-chief of the New Zealand Herald the organisation that best exemplified a culture of containment was the New Zealand Immigration Service – a government agency that believes one of its stated values, “confidentiality in all our dealings”, should be interpreted to an infuriatingly literal and far-reaching degree. It was a deep-seated attitude and antipathy toward the newspaper that endured long after my departure. The low point between the service and the news media occurred on my watch and I continue to believe it represents a black-mark example of media manipulation.

In December 2002 Ahmed Zaoui was detained on arrival in New Zealand when he sought asylum. The Herald made enquiries about the detainee on 12 December but the Immigration Service’s media spokesman denied any knowledge of him. Later that evening it became clear to us that not only was the service aware of Zaoui’s presence but the Minister of Immigration was similarly aware. We were moved the following week to editorialise in strong terms about the service’s handling of the case to date. The editorial was highly critical of the way the Immigration Service media spokesman had handled inquiries about the detention, saying “the difference between saying nothing and telling untruths is clearly an elusive concept for some”.

In October 2003 the Herald was handed the service’s media log for the day the editorial appeared. The spokesman had written (below a copy of the editorial): “I was let down badly. Everyone had agreed to lie in unison, but all the others caved in and I was the only one left singing the original song.” The Herald was outraged and the Immigration Service and its parent, the Department of Labour, went into damage-control mode.

An internal enquiry found no one had agreed to “lie in unison” and the comment was merely that of a man angered by the personal criticism. The Herald labelled the enquiry a whitewash and said: “Only the most dexterous of men would even try to come up with a case to support the conclusion that Immigration Service officials did not conspire to lie about the detention of Algerian asylum-seeker Ahmed Zaoui.”

A subsequent enquiry by the Ombudsman – after the department failed to fully meet an OIA request – failed to find documentary evidence of such collusion but did not rule out the existence of such a document, releasing a damning finding that said the evidence of two Immigration Service officials was “unreliable” and criticising the department for refusing to disclose documents, including a number of media logs.

Did they learn from the experience? Apparently they did not. In 2012 a Herald editorial accused the service of betraying a flippant attitude towards concepts of accountability and transparency after the disclosure of a directive to immigration officials not to record information to avoid judicial reviews and extra paperwork – and, no doubt, requests under the OIA. The editorial recalled the “lie in unison” debacle and said the service’s action flew in the face of the Public Records Act (requiring the creation and maintenance of full and accurate records). The editorial said the service’s past actions showed it had little inclination to observe the obligations of public servants under the OIA and “the new directive is a blatant attempt to torpedo any inquiries by denying documentation”. Only the name has changed – to Immigration New Zealand.

“Chilling” effects

The closest I have come to spending time in prison “at Her Majesty’s pleasure” occurred during the trial of two men accused of illegally attempting to obtain New Zealand passports. Eli Cara and Ariel Kelman were widely regarded as being agents of Mossad, the Israeli secret service, and the Herald ran an exclusive front-page story following their arrest in April 2004. Their defence counsel subpoenaed me and attempted to extract from me the source of that story. We had given a guarantee of confidentiality to the source and I refused to divulge the name to the court. No “shield law” existed in New Zealand at the time and my action risked being held in contempt of court. Journalists in Australia had been imprisoned for taking similar stands.

Justice Judith Potter was asked by counsel to compel me to answer and the Herald’s own lawyers left me in no doubt that the consequences of refusal could be imprisonment. The judge’s ruling, however, spared me that experience and stands as a valuable explanation of what is known as a “chilling” effect. She said that in the exercise of its discretion the court must weigh the right to a fair trial against the competing public interest in freedom of expression “pursuant to which the Courts have long recognised that sources of information accessed by the media may require protection otherwise the flow of information on which freedom of speech relies may well be curtailed or may cease”. After setting out her reasons in detail, she found that revealing the source was not relevant or essential to ensuring a fair trial but could place at risk press freedom.

What Justice Potter had recognised was a chilling effect. If I had been compelled to reveal the source it would send a message that granting sources anonymity was a hollow gesture. It would have a chilling effect that made whistle-blowers think twice before going to the media. In fact I had already decided that I was bound by the confidentiality agreement to defy any order to reveal the source and to take the consequences. Justice Potter, of course, was not to know that, but her assessment of the chilling effect of having to reveal confidential sources was absolutely correct.

The actions that provoke chilling effects take different forms. They range from the sort of legal leverage that had been attempted against me, through the excessive exercise of power, to threats (legal and otherwise) and intimidation. I once received a death threat while covering a volatile industrial strike and made no secret of it to my colleagues. It could have had a chilling effect on trade union reportage were it not for the fact that I also mentioned it had been written in crayon. Whatever the action, the effect is binary: it seeks some form of retribution for publication and it sends a message to others not to follow in the footsteps of the unfortunate journalist who is targeted. It seeks to exert power over a journalist or media outlet and, because governments possess power that (they believe) should be weighted in their favour, the state is no stranger to the use of actions that have a demonstrable chilling effect. Let me cite three contemporary examples.

The first was an attempt by the New Zealand Defence Force to challenge an annoyingly enquiring investigative journalist, Jon Stephenson, who reported on this country’s military activity in Afghanistan. Metro magazine published a feature by him in its May 2011 issue headed “Eyes Wide Shut” about the treatment of detainees and whether the New Zealand SAS had passed prisoners to authorities known to use torture. The NZDF response was to claim Stephenson had never been on the SAS base as claimed, nor had he interviewed the Afghan commander quoted in the story.

Prime Minister John Key supported the ministry’s campaign to discredit the journalist by saying “I’ve got no reason for the NZDF to be lying, and I’ve found [Jon Stephenson] myself personally not to be credible.” It was a classic example of what US scholars Edward Herman and Noam Chomsky termed “flak” in their book Manufacturing Consent. “Flak”, they say, refers to negative responses to a media statement or programme in the form of complaints, threats or punitive actions. The ability to produce it in ways that are costly and threatening to the media is related to power.

As it happened, Stephenson had been on the base and had interviewed the commander. After protracted legal action – Jon Stephenson instigated defamation proceedings against the NZDF and its then-commander Lieutenant General Rhys Jones – the NZDF was forced to admit it had been wrong and made an out-of-court settlement with the journalist. Its attempt to question his credibility – and no doubt affect his future activities – had failed. It remains an open question, however, whether the episode will have a chilling effect on other journalists who wish to report critically on our military and its operations. Will they be prepared to risk assaults on their reputations as a response to “bad press”?

The second example relates to author Nicky Hager and his book Dirty Politics, which was based in part on emails supplied to him by a confidential source. Hager’s house was searched by police in the political storm that followed publication in an attempt to find the identity of the source, who had allegedly hacked the computer of blogger Cameron Slater to obtain the emails. Documents and computer equipment were seized in the ten-hour search. His daughter’s underwear drawer and personal letters were examined in the search, and after she had answered the door to police in her nightwear she was forced to dress in the presence of a female officer. Police also separately sought information from Hager’s bank, telco providers and airlines.

Hager challenged the search warrant and the evidence was sealed pending a court decision on the validity of the warrant. I was asked to provide written evidence on the potential chilling effect of the police action. I formed the opinion that the actions of the police in executing the search warrant – and the expectation that police officers would have access to the contents of Hager’s computer systems, documents, notebooks and other material relevant to his role as an investigative journalist – would have a series of chilling effects. It would act as a disincentive to potential sources because the journalist’s solemn undertaking to maintain confidentiality was nullified by actions beyond his or her control. It would force journalists to adopt extraordinary, time-consuming, clandestine methods to protect sources’ identities, or limit their dealings with whistle-blowers. Ultimately it would affect the ability of investigative journalists – and Hager in particular – to pursue their craft.

“The ability to protect sources who take risks to provide information, the disclosure of which is demonstrably in the public interest, is a cornerstone of investigative journalism,” I said in evidence.

If potential sources feel journalists are no longer in a position to honour guarantees of confidentiality they are left with two options: to make the information public and bear the consequences of exposure as the source, or to stay silent. There are compelling incentives to stay silent, given that an informer may lose his or her livelihood and be charged with theft for handing over even material revealing the most egregious wrong-doing by the state or a corporation. Whistle-blower protection in law is, at best, a limited shield as it maintains a closed circuit within the organisation and referral upward may be in the direction of the wrongdoing. The ability to “go public” remains an important safeguard in a democracy.

I said it was reasonable to believe that journalists have already been unsettled by the events surrounding the seizure of Hager’s material and computer systems. Journalists in this country find the execution of search warrants on newsrooms unsettling because it is seen intuitively as a violation of press freedom. To feel that their homes may also be subjected to such intrusion adds an altogether more personal dimension. An increasing number of journalists work from home and those writing on sensitive subjects may now feel they are putting the wellbeing of their families at risk.

In December 2015 the search warrant was found to have been “fundamentally unlawful”. The judicial review by Justice Clifford criticised the police for failing in their duty of candour when seeking what he described as a “media search” warrant from the district court and reasserted several principles that should apply in the issuing and execution of such warrants. He recognised the potential chilling effect and said it was incumbent on both police and warrant issuing judges to ensure that such an effect was taken into account in deciding whether such a search should be undertaken. Among his findings Justice Clifford also noted that journalists enjoy a qualified privilege under Section 68 of the Evidence Act (our “shield law”) to protect confidential sources, and that police failed initially to allow the journalist to exercise that right. The decision may give some reassurance to potential confidential whistle-blowers. It will not prevent police searches of journalists’ homes but it resets the bar to where it should have been before Hager’s house was searched.

The bar was set in 1995 by a Court of Appeal decision that found a police search of Television New Zealand’s offices had been lawful but the court set out clearly the principles that should guide the granting and execution of media warrants. Among the provisions, as cited in Media Law in New Zealand, was that “only in exceptional circumstances where it is truly essential should a warrant be granted or executed if there is a substantial risk that it will result in the drying up of confidential sources of information for the media”. A further principle was that any seized material should “have a direct and important place in the determination of the issues before the court” but Hager had made it abundantly clear that none of the material would lead to the identity of the alleged hacker.

Given that these principles had been laid down by the Court of Appeal and repeated in numerous texts, it beggars belief that the police and the issuing judge were unaware of them. So we can take only limited comfort from Justice Clifford’s ruling. It is only a matter of time before the boundaries are again tested by police and I fear the chilling effect has been firmly established in the minds of journalists. I believe police might still persuade a district court judge that their need outweighed potential chilling effects. I believe journalists can take only limited comfort from the fact that seized items would be sealed until a judge determined whether police should have access to them. Hager has since had the satisfaction of seeing the destruction of a clone of his hard drive that was created by police, but that satisfaction must be tempered by the realisation that he and others must now take extraordinary measures to protect confidential sources in case another boundary-testing warrant is issued.

Before the Hager ruling was handed down, another search warrant was executed on the Wellington home of TV3 journalist Heather du Plessis-Allan as part of police enquiries – which ultimately resulted in no prosecution – into her mail-order purchase of a rifle to expose procedural weaknesses in gun controls. Not only were her possessions – including the personal contents of a bedside drawer – searched in what was described as an exercise to obtain handwriting examples, but police also scrutinised the property of her husband, the political editor of Newstalk ZB Barry Soper, who played no role whatsoever in the TV3 Story firearm assignment. Soper has been a member of the parliamentary Press Gallery for thirty-five years. In my experience, it is highly likely that, like many political editors, he has in his home confidential material that he prefers not to leave in his Press Gallery office. Could police officers simply blank their minds if they examined such material in their search? I think not.

So our third example has two “chilling” aspects. The first is the knowledge that, even if seized professional matter was sealed awaiting a court order, intimate possessions may be examined if a journalist’s public-spirited reporting attracts police attention. Du Plessis-Allan found the search of her bedside drawer particularly intrusive, and Hager’s daughter not only had her lingerie examined but had to endure a police officer watching her change out of her nightwear. The second is that a partner’s property will also be subject to the search – and co-habitation between journalists is not uncommon. Current affairs journalist Paula Penfold is married to TV3 Newshub frontman Mike McRoberts, for example, and my wife is a former editor of the New Zealand Woman’s Weekly, Jenny Lynch.

The emotional effect of home searches by police should not be underestimated. It happened to me, but in different circumstances. I was taking part in an anti-terrorism exercise (playing a terrorist) and a search warrant was executed, at night, in my absence. The police were perfectly polite to my wife but she found the experience unnerving and, in spite of accepting its necessity to make the exercise authentic, I could not help but feel some sense of violation. I can only imagine the sense of violation felt by Nicky Hager and Heather du Plessis-Allan.

What was disturbing about these three cases was the fact that the messenger had been targeted. Rather than refute the substance of what the journalists wrote, figures in authority chose to either attack their credibility or take other action that could adversely affect the journalists’ ability to continue in an investigative role. In so doing, a message was sent to other journalists that there might be high prices to pay for challenging authority and power.

In the cases of Stephenson and Hager, one also wonders whether they were targeted because they were both freelance journalists who lacked the weight of a large media organisation standing behind them. Mind you, the whittling away of the nation’s newsrooms makes me wonder how much weight news media organisations now register on the scales of power. And that raises questions about the ability of our news media to serve their twin roles as providers of significant information that contributes to the functioning of healthy civil society and as watchdogs on those entrusted with the governance of that society.

---

Extract from Ellis, Gavin, Complacent Nation, 2016, Bridget Williams Books, Wellington, pp.65-93.

Gavin Ellis is a former editor-in-chief of the New Zealand Herald. He is currently a journalist, honorary academic and senior lecturer in media and communication at the University of Auckland.