Labour MP Ingrid Leary has had to pull an ambitious Private Members’ Bill to give journalists more protection for their sources largely because the law involved is too complex.
Unusually, the Bill got cross-party support when it was introduced last year.
Leary told POLITIK that the issues were too complex for a private bill and would need to be included in a Government Bill.
But there are no plans for one at present, she said.
However, she thought it might be possible to codify current case law, which might identify that some of the protections sought in the Bill already existed.
The Bill originated in the 2014 Police search of journalist Nicky Hager’s home and property and was introduced into the house last year by Labour MP Louisa Wall. Leary, a former journalist, took it over when Wall resigned.
In a 10-hour search of his house, Hager said computers and papers were seized in what appeared to be an attempt to discover the identity of the person who provided information used in his “Dirty Politics” book.
The book was based on hacked email and social media material belonging to Whale Oil blogger Cameron Slater and revealed the National Government’s role in using his site to discredit its critics.
The Bill intended to extend the legal privilege currently applying to journalistic articles more broadly to investigative journalists and in a broader range of situations.
But the Justice Department argued this could elevate journalists’ privilege above other privilege recognised in law.
Journalists can protect their sources under the Evidence Act, which says if a journalist has promised an informant not to disclose the informant’s identity, neither the journalist nor their employer “is compellable in a civil or criminal proceeding to answer any question or produce any document that would disclose the identity of the informant or enable that identity to be discovered.”
Leary’s Bill would have included investigative journalists getting that protection.
And it would also tighten up the Search and Surveillance Act concerning warrants applying to journalists.
Journalists can claim privilege to prevent a search from being carried out, but the matter will be referred to the High Court for a final decision.
The Bill received broad support from the media industry though some organisations felt it did not go far enough.
NZME, the proprietors of the NZ Herald and NewstalkZB, said media organisations were seeing an increase in public and social media abuse toward journalists by the general public.
“It is therefore unsurprising that sources may be even more concerned about participating in journalism, with the wide-ranging damaging effects to their personal and professional lives that could occur if, when assured of confidentiality, this falls away,” their submission said.
They also supported the broader definition of a journalist being proposed.
“The scope of work journalists now create far exceeds traditional news articles and includes both short-form and long-form journalism, as well as books, podcasts, video series, and interactive digital content, which may or may not be in the normal course of that person’s work,” their submission said.
The E Tu official responsible for its journalist members, Paul Tolich, told the Committee that the union supported the Bill.
And he said the union appreciated the cross-party support the Bill got at its first reading.
TVNZ General Counsel and Corporate Affairs Director, Brent McAnulty, told the Committee that his organisation took issue with some comments made by MPs during the introductory debate that the protections proposed should not apply to material obtained by criminal means.
“The reality is that many stories of huge public interest are initiated by information obtained by sources using methods that may be criminal in New Zealand or in other jurisdictions,” he said.
“On those occasions, the journalist will make a determination as to whether the public interest or the exposure of a greater offence justifies the use of material obtained illegally.
“If the legislation were to be amended to remove source protection in those circumstances, the chilling effect would have a devastating impact on the ability to tell these stories; for example, had source protection provisions not been in place, journalists would not have been 4 able to report stories such as the Panama, Pandora and Paradise Papers stories, all of which relied on leaked documents.”
The Media Freedom Committee (made up of major outlet editors) reminded the Committee that it would not be the journalist committing the crime but an informant.
“Crime is, of course, a term that encompasses a massive range of activity,” the Committee said.
“In many cases, sources who pass information to journalists have access to that information through their work for a particular organisation.”
So even though there was broad support for the legislation and even though both Labour and National supported it, it is now dead.
In their submission — which appears to be what killed the Bill – the Justice Department worried that the proposed new privilege for journalists “could be seen to elevate journalistic privilege above the other privileges recognised for the purposes of the Search and Surveillance Act.
In their detailed submission, they focussed on tensions between the Bill and other existing legislation and warned that Parliament’s Standing Orders provided that a bill must relate to one subject area only.
Leary told POLITIK that she would keep thinking about the Bill.
“I’ll go back through the submissions and see if there is a way of safely and appropriately codifying what’s in the case law,” she said.
“To my mind, the protection is already there.
“What codifying it would do would enable a practical element so that officers of the court or other actors would be on notice that this privilege exists and therefore would need to act appropriately.”
So all is not yet lost for what was an unusually widely supported piece of legislation.