John Roughan: Privileges don't grant freedoms - they protect authority

Author Nicky Hager has written a number of authority-needling books and claimed journalistic privilege to protect his sources. Photo / file

COMMENT:

In my early years as a newspaper reporter it was emphasised to us as a point of pride that we had no more rights in law than the general public.

It was a point of pride because it underpinned the freedom of the press. Our craft had not only asserted its right to speak freely and independently of the state, it did not seek special privileges or protections from the state.

The words "journalist" and "news media" barely appeared in statute law and that's the way we liked it.

The only statutory "privilege" we had was really an extension of a privilege that Parliament and law courts had legislated for themselves. People speaking in those forums were immune to claims for defamation and the immunity extended to anybody publishing an accurate account of what they had said.

In all other respects the Fourth Estate was a completely independent institution, subject to the same laws as every other citizen of the realm and reporting events from their point of view. We saw ourselves as the eyes and ears of the public who could not be present to see or hear for themselves and that was privilege enough.

I have been wondering what has happened to that proud tradition every time I read that the police searched Nicky Hager's house with a warrant that was unlawful because they failed to inform the issuing judge that Hager was a journalist.

Hager applied to the High Court for this ruling and once he got it, the Green Party's then co-leader Metiria Turei asked the Independent Police Complaints Authority to investigate whether the officers' failure to inform the judge of Hager's privileged position was deliberate.

In its decision released last week the IPCA concluded it was not deliberate. It found the officers applying for the search warrant had little experience of dealing with journalistic privileges. I don't blame them, I've been a journalist for 45 years and I didn't know we had them.

The IPCA report said, "The lead detective himself acknowledged he had never come across the issue of journalistic privilege before and did not know anything about 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 one-sided polemics like Seeds of Distrust and Dirty Politics during election campaigns.

But he is a journalist. We come in all flavours. That's one of the problems with privileges in law.

Cameron Slater. Photo / Doug Sherring

Even in journalism we do not always agree what it means. Some have denied that title to the work of Cameron Slater whose 2013 exposure of Auckland mayor Len Brown's office affair was one of the strongest pieces of journalism I have seen in this country.

News media have long claimed a right to protect anonymous informants in court, which has been written into law as much for the sake of justice as journalism.

Judges have been well aware reporters and editors would go to jail rather than betray a source. It has not happened in my recollection, probably because it would be oppressive to apply the ultimate penalty for contempt of court unless it was clearly in the public interest that the person be identified.

That long-claimed right is now codified as a privilege in the Evidence Act 2006 and in the Search and Surveillance Act 2012 that Hager's lawyers used to successfully challenge the legality of a search of his home after the publication of Dirty Politics.

The High Court's 2015 decision records the book was based on private communications hacked by someone unknown from Slater's computer. Hager had stated he knew the source of his information had committed a criminal offence and had taken steps to prevent the person's identity being known to the police. He succeeded; the search of his home produced nothing of evidential value.

But as a result of the High Court ruling the police operating manual now recognises something called "journalistic privilege" that must be drawn to a judge's attention when they seek a search warrant.

It worries me that journalism is increasingly getting exemptions from laws that apply to almost everybody else. Only lawyers, doctors, priests and clinical psychologists have the same rights of confidentiality in legislation.

Once the state grants privileges it can reasonably require the privileged to be properly qualified and licensed like lawyers, doctors and the rest. This is even more likely in an age when anyone with a cellphone can be a journalist.

We are on the slippery slope towards an authorised press, which is not a free press. I fear this might even be welcomed by established media to help differentiate them from the cacophony online.

If so they're unwise - privilege is a poisoned chalice.