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".

On The Recent Death Of Jeffrey Epstein

On the one hand, attempting to blame every little thing on "The Clintons" and/or some other, further elite conspiracy efforts ... as hilarious as it can be, is often overtly ridiculous.

On the *other* hand ... Jeffrey Epstein somehow managing to kill himself *while on suicide watch* following his previous attempt, allegedly via hanging, suggests that *at minimum* there's been some almost unbelievable incompetence by his jailers.

I'm not saying that he was, necessarily, murdered. Although there is little doubt that a not-insignificant quotient of people out there, whether rich and powerful or victimized and powerless, will be quietly or overtly jubilant at what has occurred.

But it is difficult to avoid the temptation to speculate that oversight on Epstein may have been *deliberately* lax, so as to actively 'facilitate' an outcome just such as this.

That is to say - why have a man murdered, with all the subterfuge and potential discovery that this may very well entail, when you can just prod him into making an attempt on his own life, and then not stand in his way when he eventually gets close enough to the precipice .. all of his own accord.

And, once again, it may not even have been a 'conspiratorial' effort to facilitate nor ensure that this'd happen. It could have been prison staff with a lackadasical attitude towards the prisoner or the whole situation, for a start.

The only thing that *can* be said at this stage, I suspect, is that in some important ways, justice has been denied. For while we can debate and defer as to whether a self-imposed death sentence is a more or less "just" ultimate outcome, than his spending potentially up to the rest of his natural life in prison ...

i) the actual *processes* and *performative* parts of the judicial process *do* matter. The right, not simply of an accused to have their day in court, but of the accusers, the victims, and society at large to definitively establish guilt and have a perpetrator actually *stand trial* as part of that process - this has now been, in some ways, forever abrogated.

ii) any potential value which Epstein may have had for further ongoing investigations into those other wealthy and powerful figures he may or may not have consorted with ... will now *also* be severely abrogated. Not entirely disintegrated, as Epstein's notebooks and other subsidiary evidence are now coming to judicial light. But still.

It's hard to view what has transpired here - allegedly or otherwise - as being any real kind of "win".

It Is Possible To Be Both Pro Ihumatao AND Not Anti Police

Watching the course of developments around Ihumatao over the past few months, it is hard to escape the sensation that something extraordinary has happened. What would, some decades ago, perhaps have been written off as a "Maori" issue by much of New Zealand - and consequentially, disparaged, denied, and turned into a pit of talkback-radio excoriation - has in fact managed to attain broad support from across the community.

The fact that John Roughan was prepared to pen a piece in the Herald a few days ago speaking about his own evolving perspective upon the situation - and attempting to cast it as a more justified cause to support than Bastion Point - would seem to confirm that there's been some critical shift out there in the tumulous [not to mention tumescent] body politik. John Key's literal biographer, and a man who not a month beforehand was speaking wistfully about the rulership of Auckland by "Remuera Patricians", being on-side for Ihumatao being protected is a most interesting barometer, indeed.

But if the necessity of the protection of Ihumatao has now managed to draw in support from 'unexpected' quarters like Roughan and his ilk, it has also succeeded in conjuring self-appointed championship from much less surprising specimines. And, I would argue, not necessarily to the Cause's overarching favour.

The video which has been doing the rounds, of a protester at Ihumatao verbally castigating a police officer and demanding that he decamp from his lawful duty to the state "back to your own country", is merely the tip of the iceberg. At the risk of regurgitating NZ Police press statements upon the subject, it really does seem like the Police deployed on that watch-line have displayed stoic professionalism in the face of being spat at, insulted, taunted, and - especially in the case of Maori police officers on site, as well as others - racially abused.

Once upon a time, particularly some four decades or more ago at the height of the 1980s' epoch of 'robust encounters' between Police and Protesters, the happenings and their outcomes would no doubt have been severely different. And it is not at all to seek to excuse the Police from some of their previous (or, indeed, present) areas of misconduct, to say that the restraint they have exercised in recent times at Ihumatao as well as elsewhere has been to their credit. [Indeed, due to the significant quotient of new cops about the place these days, it's absolutely no exception to state that much of what's egregious even in the relatively recent record of the NZ Police, may have occurred well beyond they joined the force, were anywhere near it, or in some cases, had even actually been born.]

Yet in every war, there is an inveterate temptation when going into it to attempt to simply re-fight the last one rather than engaging with the actual fact-situation that unfurls con-current, infront of one.

This perhaps explains why some either at or around Ihumatao are seemingly focused upon re-litigating any number of previous skirmishes or outright conflagrations with the Police in particular, the Crown in general, or even overseas instances over which the Government of New Zealand has little, if any, connection let alone control.

And you know what? Leaving aside the 'optics' of the situation, that's not entirely un-understandable. When you feel that you are bearing the weight of decades, centuries worth of marginalization, oppression, and the exact, axiomatic opposite of fair treatment by colonial authorities or post-colonial or settler states, there is not just a temptation to view everything through a kind of overarching-writ-large metanarrative of 'us versus them' taking place upon every corner of our nation's history, and thence from there through much of the globe. There is an actual factual basis to it, as applies the fact that it's often the debris of globe-spanning empires and significant coterminities of experience [and, for that matter, sodality, solidarity] that we are dealing with here.

But at the same time, it does need to be said that those who would hijack this particular cause in pursuit of a far broader agenda (especially that which can be basically summed up as F*#& the Police), run the significant risk of harming the otherwise enviably positive rapport which the Ihumatao preservation motive has built up within the wider NZ public.

It becomes a distraction; it becomes a degradation; it becomes even a vector - as we can see here with that video - of perpetuating *further* iniquities against those not exactly morally blameful for the actually-objectionable circumstances being protested against. Such as the verbal attack against that nondescriptively brown police officer on Monday night, who may have been born here or elsewhere - or may even have been of Maori descent himself. Who knows. I doubt anybody thought to check before shooting mouth off and into foot with reckless abandon.

In any case, my point is a simple one.

The Government is yet to remove digit and do something productive over the whole issue; and perhaps there are solutions which do *not* require the Prime Minister personally wading in, or remarks to that effect eventuating.

But, not just because the matter is 'in train' and public opinion appears to be swinging over to the pro-Ihumatao side .. but also because it's the morally correct thing to do - it is *certainly* possible to keep pushing for the protection of the site in question *without* attempting to turn the whole thing into an anti-police conflagration.

Let us hope that cooler heads on the protest side prevail.