Protection of Journalists’ Sources Bill

on behalf of Louisa Wall: I move, That the Protection of Journalists’ Sources Bill be now read a first time. I nominate the Justice Committee to consider the bill.

It is a privilege to stand again in this House tonight and to be able to bring the Protection of Journalists’ Sources Bill to the House for its consideration at this first reading, and to do this on behalf of my colleague and friend Louisa Wall. I know that she has worked tirelessly on both developing the bill itself as well as building some support for it, and the bill being here today really is a testimony to her dedication and passion to make New Zealand a better place and a clear commitment on this issue in terms of the integrity of the fourth estate being protected. It’s sad that Louisa isn’t able to be here due to our current levels within New Zealand due to COVID-19. Can I just say that Louisa Wall may well go down in parliamentary history as one of the luckiest MPs ever with the members’ ballot. She’s been blessed with many bills, and this is just one of them. I’ll do my best, Lou, to channel you tonight.

I also know that she engaged with some experts in order to understand the issues that are at the heart of this bill. Included in those were John Edwards and Gavin Ellis, and she would like to thank them for their input to where this bill has got today.

In bringing this bill to the House today, also, gratitude needs to be given—the former member, and my former caucus colleague, the Hon Clare Curran has also had a key role in this bill being developed and reaching this current stage. She in fact developed the first draft of this bill when she was an MP, in consultation with a number of experts on the topic, on our country’s civil society. I do remember, too, being on the Justice Committee with Clare when this issue arose during the inquiry to the last general election.

At its core, this bill speaks to liberal democratic—

💬 Hon Simon Bridges: Oh, we were going to support it!

—pay attention—recognised in the international law as a key principle underpinning press freedom. Journalists rely on source protection to gather and reveal information in the public interest from confidential sources. These sources may require to be anonymous, and that is important—so meaning that they can be protected from physical, economic, or professional reprisals in response to their revelations. On the fourth estate, to function effectively and to play out its role how it needs to, it is vital that our laws protect journalistic privilege to censure, to make sure that our press have the ability to function and to report freely without being impeded—also, sometimes critically, without the fear of or the threat of reprisal.

An important area of this law specifically is how it functions in the case of police. When a journalist’s premises or property are subject to a police search, protecting the identity of those sources must be a primary concern. As it stands, although New Zealand law currently references the importance of respecting journalistic privilege in the case of police searches, it contains a gap as to how this important protection is actually guaranteed. Although the Search and Surveillance Act 2012 identifies the existence of journalistic privilege, with particular reference to the protections laid out in the Evidence Act 2006, it contains no clear description as to the processes that should be followed when this issue of privilege arises.

This was a clear problem in the case of the police’s search of journalist Nicky Hager’s home and property in 2014, and this particular instance is the underlying driver of this bill in its design. According to the Independent Police Conduct Authority report on this situation, police policy at the time did not adequately set out the procedure officers needed to follow when applying for a search warrant or executing a search in relation to potentially privileged material. This combined with the lack of experience at the time in such matters, on the part of those officers involved, and the lack of legislative clarity to cause an “unwitting neglect of duty”, as quoted. The specific purpose of this bill is to clarify and strengthen this area of our law to make sure that this scenario does not happen again. This bill clearly addresses the existing gap in the law and the specific issues highlighted within the Hager case by reinforcing the Evidence Act and the Search and Surveillance Act in recognition of journalists’ duty to protect their sources from disclosure.

In the core of this bill are changes to the Search and Surveillance Act. As I’ve already mentioned, this bill was first developed by the Hon Clare Curran, and this section has largely been inherited from her previous work. The amendments in this part of the bill enshrine in law specific protections that will help ensure that journalistic privilege is upheld when police seek to use the powers contained within the Search and Surveillance Act to conduct searches or to obtain production orders. Broadly speaking, the changes addressed here are in three core issues that arose during the Hager case, and they were based on the former honourable member’s engagement with some of those involved, including Mr Hager himself as well as the legal and academic minds of those such as Steven Price, Felix Geiringer, Bruce Gray QC, and also Dr Peter Thompson.

For example, the changes will address the issues of disclosure for the judge or issuing officer when there is a target of a search warrant or production orders who is actually a journalist. The bill does this by clarifying that police must identify as part of their applications if they believe they have reasonable grounds to believe that the person is targeted as a journalist. Responding to one of the key issues in the Hager case, this removes any potential lack of clarity from the situation, and, also, it ensures the right to have this privilege protected by the courts when an application is made or enshrined in law.

Additionally, the bill’s amendments outline that there are some additional steps that must be taken when dealing with journalistic privilege in the case of search warrants or production orders. This means that in future cases, officers dealing with someone they think is a journalist have some clear guidance to follow as the minimum things that they need to do in order to protect journalistic privilege. This will help prevent scenarios such as those that arose in the Hager case from happening again. These changes were put into the bill more recently after the Hon Clare Curran passed the bill on to Louisa Wall and are intended to address the issues that have arisen as the definition of “journalist” for the purposes of evidence and police services.

In sum, this bill deals with issues that go right to the heart of the role of the media and journalism in our liberal democratic society. As I’ve outlined, it is vitally important that our laws adequately protect journalistic privilege to ensure that journalists, especially investigative journalists, can do their jobs. I am very pleased that this bill has the opportunity to be considered not only by this House but also by the Justice Committee. I know that this bill touches on some technical elements of the operation of law enforcement in New Zealand, and I look forward to hearing from the relevant departments and the public at select committee in regards to any improvements that can be made on this bill. On behalf of my parliamentary colleague and my dear friend Louisa Wall, I commend this bill to the House.

The question is that the motion be agreed to.

I was just reflecting, as the member was speaking—in a sense, for Louisa Wall—that any member of Parliament who’s been around a little while will have on occasion a sense of ambivalence around journalists. You know, we will from time to time have stories we think are somewhat unfair or don’t quite characterise things in quite the way they perhaps could. But, of course, the role of a journalist in bringing forward the truth, investigating significant matters, and holding the powerful to account is incredibly important and is, as Ginny Andersen said, an integral part of a liberal democratic society like New Zealand’s. Actually, it’s even more important, I would argue, in many other countries where they don’t have our democratic tradition.

But the point to make is simply that, yep, what members of Parliament do is significant and what journalists do is also significant. All it’s just reflecting, of course, is that members of Parliament in this House, we have privileges. We have the privilege, not recklessly or wantonly, but to speak truth to power and say things in this House without fear of defamation proceedings, for example. And that’s because of the importance of being able to speak out from time to time, and, really, just to say it again, the same is true for journalists. There’ll be times where they also should have privileges so that they can do their job fearlessly, not recklessly but fearlessly, and hold power to account and speak truth to power.

I’d just reflect, while I’m speaking generally about journalists, that of course we know, whenever we watch international news or read international newspapers, about the prosecutions, persecutions, in some cases deaths that befall journalists for doing their jobs. That of course is awful. We condemn it, and we stand up in favour of freedom for journalists to go about their significant jobs and play the significant part they play in societies around the world.

National’s going to support this bill at first reading. As with every member’s bill today, its intentions are good and there does seem to be a sense of a legislative gap here—as presented in the bill and its explanatory note—that’s right to fill. It does seem, is what I’m saying, that it’s right to fill the legislative gap that is done so by this bill.

The bill does, I think, two or three things. It amends the definition of a journalist in the Evidence Act so that it explicitly includes investigative journalists based on the UN Educational, Scientific and Cultural Organization—that is, UNESCO’s—position that investigative journalism crucially contributes to freedom of expression and media development. It also addresses questions that have arisen from a court decision by Justice Winkelmann, Chief Justice, by clarifying that books written by investigative journalists are covered by journalistic privilege, not just the media articles that journalists write. And, thirdly, it amends the Search and Surveillance Act to ensure that journalists’ sources are clearly protected in relation to production orders and police searches. It inserts clear requirements on police in these circumstances to ensure that protections are understood and upheld.

National will be interested in the submissions. On a bill like this, one would expect there to be some very interesting submissions from the Press Gallery, from various other journalistic entities and organisations, individual journalists, and also just the wider civil society that come along and give a view. I don’t think that all those submissions will speak as one. I think there will be different views, or shades, at least, of views presented.

So, in sum, National supports this bill at first reading. I do, though, just want to make mention of one caveat that National has. It’s questionable, and I think some of my colleagues would say it’s doubtful, that journalistic privilege should apply where the material in question is obtained by a crime. That may be the case in relation to a theft. I’m interested in the arguments we might hear at select committee, but it does seem to me that that’s a reasonably common-sense position that I’m taking. The bill doesn’t have an exemption or a carve-out in that instance and I think that would be an important thing in this bill and potentially important to secure National’s continued support for the bill.

I note that other privileges of all manner, when it comes to the evidence and search and surveillance and other criminal or associated laws, they often also have carve-outs. When we think of the privilege from defamation proceedings in this House—that has been whittled away at, over the years. There have been new aspects to that made. When I think of—and it’s been some time, I accept, since I’ve looked at these areas, but if I look at the priest confessor confessional situation, that’s not absolute. There are other areas where the privileges are—

💬 Dr Duncan Webb: Husband and wife.

Husband and wife; that’s exactly right. You’re taking me back to law school, Dr Webb; it’s been a while. I don’t think any of those issues were ever once, in my several years as a prosecutor, actual, live cases. I doubt whether I ever had a priest telling me that they weren’t going to—actually, possibly in the cases of spouses, I must say. But anyway, I digress. So I’m simply making the point that we do think, actually, there probably is a caveat here that should apply in relation to this well-intentioned law.

I’d also just make the point more generally on this area of law that, look, the journalistic privilege was last strengthened by the last National-led Government in 2012—in fact, by the Hon Judith Collins as justice Minister—and that was through the 2012 search and surveillance law. And I would note, in relation to that, whilst I have said that I tend to accept there’s a gap here that this bill could profitably fill, that the Law Commission and the Ministry of Justice both did say in 2017 that actually this area of law, after they’d reviewed it, was working generally pretty well.

I simply say that because I wouldn’t want to be standing here or give the impression that somehow I think we’re in a terrible position, that there’s urgent need for reform and that what has been and what continues to be the law today in this area of journalistic privilege is somehow incredibly short and unjust. I don’t think that. I think what is true, though, is there is a legislative gap we can fill, and that’s why we’re supporting this bill at first reading, because the rights of journalists and the ability for journalists to do their job fearfully—fearlessly, I should say—is critically important. With those comments I conclude my remarks.

It’s a real pleasure to rise in support of this very important bill, and with my colleague Ginny, I say to our colleague Louisa—or as we now know her, “Lucky Lou”—this is a wonderful piece of legislation, and I’m just so delighted to be able to rise and speak in its favour.

You know, I had a wee look at the Law Commission’s recent report, report 128, where they say “Alongside these obligations to provide the public with reliable and accessible sources of information, the press was also charged with being the public’s ‘eyes and ears’ and, most critically, using their privileged access to provide an independent watch-dog on the exercise of state and other seats of power.” What a crucial role.

In an earlier speech to this House I invoked my children. For this one I want to invoke my dad. My dad was a defence counsel when I was a young child. He always impressed on us the importance of the criminal court as a way in which you hold the feet of the powerful to the fire and you test in the rights of the vulnerable. This fourth estate does exactly the same thing. It was also Dad who gave me books by brilliant investigative journalists like David Yallop, who wrote reasonable doubt, the Arthur Allan Thomas investigation. Who gave me—

💬 Hon Member: That’s a great one.

It is. Who gave me Donald Woods’ book on Steve Biko, which first gave me that sense of how a State could stray from the path of democracy and how journalists play a vital part in hauling us back and keeping us to the standards of morality. Of course he gave me the great Woodward and Bernstein’s amazing piece of investigative journalism. It is that sort of work that we are protecting today.

However, I do note Oscar Wilde said, “In the old days men had the rack. Now they have the press. That is an improvement certainly. But still it is very bad”. I have to disagree with the great Oscar. The importance of investigative journalism, the importance of them in holding our feet to the fire, putting us on the rack, cannot be overestimated.

The situation we had with the extraordinary and wonderful Nicky Hager back in 2014 proves that we have a hole in our law and we need to fill it. It is Louisa Wall who has stepped in to make this piece of legislation come to fruition, or at least start to flower perhaps, to use a spring metaphor since that’s where we are.

In the era of social media rumours, falsehoods, in the era of super spin, in the era of alternate facts, in an era where we saw one of the world’s great democracies coming quite close to a kind of ersatz coup, so very recently, the importance of strong journalism, the importance of a free press who are able to get down and do the work and protect their sources in order to be able to do the work—the way in which they, in some ways, work with whistleblowers to become themselves whistleblowers—could not be more important to us.

So I am very, very grateful to have the opportunity as a member of Government to promote the freedom of press. I am very, very grateful to have a moment to celebrate the work of investigative journalists like Nicky Hager, like Donald Woods, like David Yallop, even like Woodward and Bernstein. It is a wonderful moment to be a fangirl of investigative journalists, and I most sincerely am a fangirl of this piece of legislation, and I commend it to the House.

Fakaalofa lahi atu, Madam Speaker. I’d just like to congratulate the member Louisa Wall for pulling another one out of the hat, out of the jar. The luckiest member in history. I’m not a gambling person, but maybe if that member got a Lotto ticket, she’d be a winner. And also, probably, there’s, at least with the class of 2020, the second-luckiest member at pulling out another bill, Ginny Andersen.

We’re going to support this bill. It makes sense, the Protection of Journalists’ Sources Bill. Our vision for the media is to make sure that we have a strong, diverse, accessible, and independent media, which is essential to effective democracy and to Aotearoa New Zealand’s social, cultural, economic, and environmental wellbeing. This bill will make two changes to improve the protections for journalists’ sources, to address the issues of the type that arose from the search of Nicky Hager’s house. One, amend the definition of “journalists” in the Evidence Act 2006 so that it explicitly includes investigative journalists. Two, clarify that books written by investigative journalists are covered by journalistic privilege, i.e., not just media articles. And, three, amend the Search and Surveillance Act 2012 to provide explicit protections for journalists’ sources when applying for a production order or applying for a search warrant or exercising a search warrant.

The issues arose out of this from the investigative journalist work of Nicky Hager. He’s written books, and I’m pretty sure some of us have read those books, around the House, such as Other People’s Wars, Hit and Run, and, of course, Dirty Politics. I wasn’t in Parliament then, but I do remember reading that book, Dirty Politics, and there was an all-star cast in that one. There’s an all-star cast with a bit of a legacy, maybe there’s a bit of a trilogy, and there may be a bit of a residue.

In December 2015, the then Green Party co-leader Metiria Turei complained to the authority, the Independent Police Conduct Authority, about the police’s search of Mr Hager’s property. She asked the authority to investigate a couple of things: whether there was any misconduct or neglect of duty by any member of police, the police’s decision not to disclose in their warrant applications of journalistic privilege issue, and the actions of officers who were involved in the decision-making process regarding the application of the warrant. It’s been referred to a couple of times tonight that the judgment—I mean, basically, they got told off. They got put in the naughty box. One of the findings that the authority had was, when interviewing the officers involved in drafting and executing the search warrant, the authority found that they had no experience in dealing with the journalistic privilege issues. So this is going to help clear it out, because sometimes with the cops you’ve got to really, really spell it out that, actually, you need to apply the law evenly: to the powerful as well as they do with the powerless. Sometimes you’ve got to spell it out, and this is what this will do.

Because we are living in the world of massive media companies like Facebook—and just last week we had a lot of articles around the whistleblower at Facebook; and Facebook is a $1 trillion company. And so we need to be able to protect those journalists. The type of power that those new social media companies—it should be something that we all worry about as well, because in many ways we’re all kind of prisoners of their algorithm. I mean, you don’t get on the news unless you say something outrageous. The journalists are kind of trapped into it as well: in order for them to reach their audiences, they’ve got to make sure that what they write is engaging on Facebook, engaging on Twitter, and all that kind of thing. In order for us to get our messages out to people, we’ve got to make sure that we do things that are engaging for them as well. So at the foundation of this is the question of power—the foundation of this is the question of power.

I look forward to the submissions that will come in to the select committee. I think there’s a lot of issues that could be teased out, because this is one example of, yes, we need to spell it out so they know what they’re doing when they’re going to people’s houses, what journalistic privilege actually looks like. But then there are actually all these underlying power issues that we need to spell out, in a whole lot of other circumstances, so that when the law is applied, the police can recognise where and when they should be applying it across the board, with the powerful but also with the powerless as well. So in that vein, we support this bill.

I think it was Julius Caesar who said, “I love treason but despise a traitor.” And, while it may not be directly related to journalism, I think the basis of this discussion—the basis of this case—is often about how people regard the information for which the issue is being discussed. I look at some of the most recent cases: the Pandora Papers, the Panama Papers; some of the more recent whistle-blowers: Edward Snowden, Julian Assange, Chelsea Manning—even going back as far as Watergate, which someone had alluded to before. And, in each of these cases, your views on the information obtained by the particular person will often be coloured by your views on what the effect is of the information that’s obtained. And so we go back to the genesis of this bill.

The genesis of this bill, of course, as mentioned by the previous speaker, Teanau Tuiono, was a raid—a search warrant in fact—executed on Nicky Hager in order to obtain information about the theft of emails. And that was, essentially, what was being investigated. What police were looking for was evidence of an offence, of theft—somewhat clumsily, as it turns out, if you look at the High Court judgment—and, to be fair to them, operating in an area which lacked clarity both in police operations and in the law. Ironically, if you do look at the judgment or look at the articles afterwards, what the police did miss when they were actually searching that premises was actually evidence of Edward Snowden’s papers, which were, evidently, at the address at the time. But, of course, that wasn’t what the Police were there for; they were looking for evidence of stolen emails.

So it goes back to your views on these matters will often be coloured by your views on the outcome. And so that’s why this bill is important. Even if you go looking for a definition of “journalist”, if you go to the Cambridge dictionary, they’ll say “A person who writes news stories or articles or broadcasts them on radio and television.” And that’s a relatively contemporary definition. It doesn’t mention anything about social media. It doesn’t mention anything about electronic media, which, of course, most of the information which is going to be disclosed, available, is now in an electronic form. Even the Webster dictionary defines it, a person engaged in journalism, as a writer who aims at a mass audience. Perhaps that’s just a little more accurate today, but, again, just looking for a definition of who is a journalist, which is, again, at the genesis of this bill.

So what this bill, of course, does is it ensures that, when police or any other authorities are looking for a search warrant, that they’re going to be conducting the search warrant, they must indicate that the subject of the search warrant, or the person whose address—or probably more likely their electronic devices are going to be searched—is actually a journalist and the investigation is a part of that journalist’s or part of that profession. And it certainly, at the same time, does expand just what a journalist is beyond those definitions which I gave. And that is important, because I go back to those various individuals I mentioned, the writer of the Dirty Politics book. These were certainly not written by people who were acting as journalists necessarily at the time. So what this bill will do is extend the protections available to those people—extend the protections available—and, more importantly, will give those conducting the investigation much better clarity about when they are on safe legal ground and when they’re not. And that alone should ensure, and I hope it will ensure, that, in future, information which does end up in the public will do so under much better guidelines. So I commend this bill to the House.

The member’s time has expired.

I rise on behalf of the ACT Party in support of this Protection of Journalists’ Sources Bill for the first reading. I think that what the member in charge—I think it’s Louisa Wall—has brought is an interesting question. If we agree that journalists should have a protection of their sources in order that they can bring to light information that those in power would rather be kept secret, they must sometimes have to be able to defend their sources legally, or protect their sources. If they can’t, people may be less willing to give them information, and terrible scandals and abuses of power may go unreported, fester, and gradually corrupt this society. All of that makes perfect sense, that there should be some immunity—or as they call it in the law, “privilege”—for journalists to protect their sources.

What this piece of legislation does is widens the definition of who a journalist should be. And I have to say, the ACT Party is not entirely sold on whether that is a necessary or desirable thing. We certainly understand that the particular party that brought it forward—and the particular MP, who, it has to be said, has a chequered track record of producing legislation—has been very influenced by one particular person, and it’s not always a good idea to make a law because one particular person has influenced you, or to have a law written that almost seems to have been written for a particular person. Of course that person in question is Nicky Hager.

What the bill would do is say that if a person writes books that are original and reveal information that might not otherwise be revealed, then they should be given the protections, under the Evidence Act, of not having to reveal their sources in court; they should be given the protections, under the Search and Surveillance Act, that the Government—or at least any agent of the Government—seeking a warrant or issuing a warrant or searching or surveilling somebody should exercise the kind of caution they would exercise towards a journalist.

The question is, should somebody who writes books be included in that? I think there’s a few people who might say that if you wrote books, for example, with material that could only have come from a burglary, material that it turned out was stolen, and if you had some form at writing such books, then some people might ask, “Well, perhaps that person should be subject to the full force of the law.” Perhaps actually committing crimes to pry into people’s privacy is not something that could be included in journalism. And if the purpose of this particular bill is really to protect one person who’s an outlier, maybe it’s not so noble at all. That’s what we want to see tested at the select committee. We think that the freedoms of a free press are important enough to warrant putting through, but we have some real questions over whether this bill does it.

I found it rather amusing earlier, in the speeches by some of the Labour members—it was extraordinary—I heard the member from Whangārei, Dr Emily Henderson, in her Whangārei accent waxing lyrical about the ancient freedoms and the God-given rights that we should all have. Well, let’s just get a bit of perspective here. This is a Government which, at present, is rushing through—under urgency—legislation that retrospectively changes commercial contracts, going somewhere that no Government of either stripe in this Parliament has ever gone before. This is a Government that got into a spat, and I don’t mean that to be a pun, but a spat with a saliva-testing provider and is now producing legislation that says if you don’t sell it to us we’ll just come and take it. This is the Labour Party of high virtue that is trying to uphold the rule of law, and actually passes retrospective legislation—under urgency—that tries to take people’s property if they won’t sell it to them at a price they deserve. But when Nicky Hager writes a book and gets shaken down, they rush legislation into this House to try and uphold those high and mighty values.

This deserves to go into the select committee because journalistic freedom is worthy of upholding, but there’s some serious questions about whether that’s really what this is about from this Labour Party. Thank you, Madam Speaker.

Just on that particular point of legislation, the people of Nelson love the commercial lease legislation, and I—

💬 David Seymour: One-termer. You’ll be a one-termer.

Well, just in response to the previous member, David Seymour, they do—they do. We’ve had many, many people in the retail and accommodation sectors struggling, small businesses struggling to pay their rent. These are businesses that are going to not survive. So by introducing that legislation, Mr Seymour—thank you for raising it tonight, it’s always good to talk about what we’re doing to support small business.

But, on the point of this legislation that’s introduced tonight, the Protection of Journalists’ Sources Bill, it’s a wonderful night in Parliament when we can all speak almost in unison about the importance of journalism and that the House tonight is actually here tonight to stand up for the role that journalism plays in our society. I want to acknowledge my colleague Louisa Wall, and former MP Clare Curran, who was the driving force behind this bill.

Look, journalists play an incredibly important role around our world, and recently, some members from across this House met with a group of journalists based in Myanmar about some of the struggles that they are facing as journalists to be able to put stories into the public domain about what is being faced in Myanmar. Recently we’ve also seen journalists on the front line in Afghanistan playing a critical role ensuring that the world sees what’s happening with the Taliban takeover in Afghanistan.

Journalists are good people. I have many friends who are journalists. They are very good people. They often go—“yes, yes, yes”, like the member opposite, and I hope we get to hear from her tonight. Journalists are good people. I have many friends who went into journalism wanting to do good, wanting to tell stories, wanting to help shape the narrative in the public that does good. I have a family member who is a journalist; my uncle is a journalist and known to a few people in this House. He’s my Uncle Nick, who writes for the Dominion Post—doesn’t write about me, thankfully. He could tell stories—well, he could tell a story—I’ll tell this story. He could tell a story about the time he convinced me to tell my primary school colleagues that he was a genius, which I dutifully did.

But, just getting onto the point about investigative journalism, my uncle, before he became a journalist, wrote books. He wrote books about the memories and experiences of our World War I veterans—fantastic books. While he didn’t need to protect the people he was writing about—they willingly told their stories—there are many people who do wish to tell their stories, often anonymously. One of the things that I’ve seen as an advocate over many years is people often wishing to speak truth to power, to tell their story in a way that gets the story out there but without putting them at risk. Often it’s been tenants wanting to put stories into the public domain about landlords, about difficulties they’ve had in their personal lives. I’m really, really grateful—one of the things I’m really, really grateful for is to the journalists that I’ve worked with who have actually been willing to tell those stories anonymously; make sure they were put out accurately but protected that person.

So there are two critical things that this bill does. The first is that it does expand the definition of journalist as we see it to include investigative journalism. But the other important element is that it does put clearer requirements on the police around how searches are conducted. So this bill is an important one for the House to look at. It’s important for the select committee to look at it and look at what improvements can be made. I look forward to its continued progression through the House, and I commend the bill to the House.

Thank you, Madam Speaker. Just in speaking to this bill, I’d just like to acknowledge the significant role that both Clare Curran and Louisa Wall have had in bringing this to the House. I think like all of us in this job, we rely on the media to keep us up to date. In most situations, it’s quite clear where the sources of their information are coming from. So just thinking through the COVID-19 update at 1 p.m. in our local newspaper, the public views on certain things like a bridge that’s starting to fail or even a debate about where the sewage pond should go, it’s usually quite clear who’s saying what and how. You’ve got videos, you’ve often got press releases, you’ve got photos, and you’ve often got attributed quotes.

And so for most of the sort of things that we deal with day to day, it’s quite clear what’s happening. But there’s another range of stories where it’s actually a bit more sensitive, I think, for stories like where, potentially, someone’s investigating potentially a corrupt official, or those other kind of stories where, basically, journalists, often what they’re doing is they’re putting together pieces of information from a variety of different sources, and they’re trying to corroborate that. And often people will only step forward and disclose information with a clear understanding that they’re going to be able to do so anonymously, because often there’s a power imbalance and there’s a real fear of repercussions. I think many countries, including New Zealand, actually acknowledge and recognise this, and they do afford journalists some particular protections. And I think that’s because there’s the understanding that many things are in the public interest, but they wouldn’t be coming forward and being brought forward to the media unless those protections were available.

And I look at New Zealand and its own Evidence Act and I think it’s quite clear, just reading out some of the legislation there. It says, “If a journalist has promised an informant not to disclose the informant’s identity, neither the journalist nor [the] 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.” I think that’s a really important protection that protects the freedom of the press to be able to report and investigate sensitive issues, but it also goes on and says it’s not without limit. It basically says that a judge of the High Court may order that this subsection does not apply, and then it goes on to talk about weighing up some factors in that respect. But pretty much by and large that protection is conferred.

And I think, when we look at the Search and Surveillance Act 2012, it does recognise journalistic privilege and it does reference the Evidence Act in that, but the problem we’ve got is it actually doesn’t spell it out in terms of how that might be implemented in the context of police searches. I think, as has already been discussed in the House tonight, of the situation around the police searches in 2014 of the journalist Nicky Hager and, basically, some of the limitations that were identified in that respect. And so a lot of the issues that are being addressed in this bill actually try and fill in some more clarity and some more detail in that practical application.

I think, firstly, what this bill does is that it actually basically expands the definition of a journalist to include investigative journalist, just reflecting the importance of investigative journalists in terms of that ability to be able to disclose information that’s in the public interest. And it basically goes on to clarify that investigative journalists include people who only publish books, because I think that’s just reflecting the whole ability to sit down and weigh up the evidence, multiple sources, doing that in a very in-depth and thorough way, and the importance of that.

But a few of the other areas that I think were felt to be needing clarification were around making sure that the judge is clear on those situations where there’s a production order that’s being applied for that a journalist may be involved. And so what, basically, this bill does is it puts in place a requirement that if somebody’s coming to apply for a production order, then they must clearly identify to the judge if they have reasonable grounds to believe that that person is a journalist. I think, then, that’s really important, that the judge can weigh that up in that context. And also if police are there, with a production order they need to make sure that the journalist, basically, is aware of their rights and has time to consider that. So this is a really important bill that fills in some of that finer detail and will go further in terms of protecting the freedom of the press, and I’m very happy to commend this bill to the House.

I was just about to launch into the huge presumption that I was likely the only journalist in this Chamber, and then Ingrid Leary walked in, so I can no longer assume that position. But because of that—because of my experience as a journalist—that is why we are very pleased to support this bill this evening, primarily because it canvasses the very important issue of journalistic privilege. Although the Search and Surveillance Act currently in place does identify the existence of journalistic privilege, where it isn’t as clear is the description as to the processes to be followed when the issue of privilege arises. I do find it a little bit ironic that the person well known to us all who does tend to get a bit of a hard time from journalists is actually the person that went in to bat for extending the privileges and protections of journalists, and that is, of course, one Judith Collins.

But look, harking back to my own experience and the importance of being able to protect the anonymity of sources, I’ve actually lost count of the amount of times people would come to me with something really, really important that they wanted to discuss and felt was important for the public to be aware of but, for fear of my inability to give them an absolute guarantee and an assurance that they would be protected, they often declined in the end to give me privileged information.

So too are the issues for journalists who tend to write books, and this has been well played out in a number of high-profile cases now. Obviously, many speakers have referred to the Nicky Hager case, but there’s also the David Fisher case, where the Crown attempted to coerce him into revealing information that he had revealed on Kim Dotcom. There’s also the John Roughan case—

💬 Chris Bishop: This is a blast from the past.

—where lawyers for Bradley Ambrose attempted to secure recordings of interviews that he’d used to write his biography on Sir John Key. It’s funny, my colleague Chris Bishop talks about “blast from the past”. In researching this piece to talk tonight, I came across words I hadn’t heard of in a long time, you know, not only “Dirty Politics” but “Rawshark” and “Rawshank” and “Whale Oil”, and so on—and “teapot tapes” and all those things that, let me tell you, as a press secretary during that period, it was testing.

But actually, I spoke just before about David Fisher. He writes very succinctly about the lack of protection that journalists who write books currently have. And he does tell the story of the attempts to drag him in front of the courts to hand over the information that he had managed to glean for his own book. I quote him—he said, “there was no difference, in my mind, as to how I gathered the material for the book. I did interviews in the same way and wrote the book in the same way, [it was] just longer.” So that is one important aspect that this bill will seek to address.

So too will it seek to address the definition of a journalist in the Evidence Act to explicitly include the investigative journalists. It also amends the Search and Surveillance Act to ensure that journalists’ sources are clearly protected in relation to police searches, as Greg O’Connor has canvassed.

But despite how many of us in this Chamber may feel at times about our friends in the press gallery, we do believe in the importance of a free and well-functioning fourth estate and the importance it plays in New Zealand’s democracy. It’s important that sources—or, as they’re colloquially known as, whistleblowers—can feel free to engage with media to uncover matters of importance to New Zealanders, and that is a fundamental that I will always defend.

We do, however, have one slight reservation, and while we do support right now the intention of Part 2 of the bill, we do want to ensure that these provisions do not stand in the way of exceptional cases where the sources of information may have been obtained illegally. And while we tend to instinctively think of that as a robbery or a breaking and entering, of course we now have to expand that to the likes of hacking and data breaching.

So, finally, we are looking forward to the select committee process. We do want to hear the practitioners’ views on these matters, and, obviously, the academics will have a say, and probably the legal fraternity too. And so I do commend this bill to the House.

Thank you very much, Madam Speaker. It’s my great privilege to rise this evening to speak in favour of the Protection of Journalists’ Sources Bill. I’d also like to begin by thanking and acknowledging my colleague and friend Louisa Wall, who is unable to be here to speak to her bill tonight, and also to acknowledge the Hon Clare Curran, who began this important piece of work. It is an important piece of work because the protection of sources and the support of our journalists is a key principle in securing freedom for the press, and why is it important? A lack of clarity at the moment in the law is enabling and facilitating incidents such as we saw with what we know now to be the unlawful search of investigative journalist Nicky Hager’s home.

This particular bill will seek to address that by explicitly including investigative journalists in the definition of “journalist”, which has not been included so far in any legislation, and I’m just going to read from the bill. So we have here that the definition of “journalist” is “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; and”—and this is the key point for investigative journalists, although I’m stepping away from the definition here—“includes an investigative journalist who publishes work, including books, of in-depth inquiry and original research into matters of public interest that may not otherwise be disclosed.”

At this point, I just want to stand in my strong support of investigative journalism. Rather than dismissing it somewhat offhandedly, as we heard a little earlier, as just writing a book—and here, I’m not referring to my colleague across the way, Nicola Grigg, but to a previous speaker, so that I’m not misunderstood—investigative journalism is extraordinarily important, and I would like to reflect to the work done by local colleagues such as Alison Mau with the #MeTooNZ work that she’s done that’s brought such important issues to the forefront of our minds. But if I cross what we used to call the Ditch, when I lived in the UK, looking at the work of our Pulitzer Prize winners, we’ve seen them changing a Senate race by revealing a candidate’s sexual harassment of teenage girls. We’ve seen them revealing mass bribery. We’ve seen them reveal rogue police narcotic squads, reveal congressional corruption, and neglect in protected care. So the work that they do is extraordinarily important, and it’s extremely critical that we make sure that that’s protected.

How are we going to do it? Well, in this bill, we’re going to be requiring that the police have to identify if a person is a journalist or if the information that they’re seeking is related to a journalist. They also have to include an explanation of the rights of journalistic privilege and give the journalist reasonable time to respond to a—I’ve got “to a production order” and I was about to say “protection order”, but it’s to a “production order”—production order before seeking a search warrant.

I was kind of interested, because I’m not a lawyer, and I, unfortunately, won’t be on the select committee, but I wasn’t sure what a production order was, so I looked it up. It, basically, was made under section 74 of the Search and Surveillance Act 2012, which requires a person or organisation such as a business to produce documents to enforcement agencies as evidential material of a specified offence.

Why is it so important that we protect these sources and that we enable journalists to do so? Well, I think there’s one pretty critical reason, and that’s that if you don’t do it—and it is the responsibility of the journalist—you’re very unlikely to gain the trust of anyone ever again. Nobody is going to talk to you any more. But, more seriously, those sources may have really serious cause to fear reprisals, either physical, economic, or professional.

So, in closing, I’d just like to highlight again the importance of protecting and supporting our journalists, and including investigative journalists, and making sure that we continue to support the important work that sits around our freedom of the press. I commend this bill to the House.

Ginny Andersen, in reply.

Thank you very much, Madam Speaker. It’s been a privilege to take this bill through its first reading on behalf of Louisa Wall, and it’s also been a privilege to hear the speeches from all sides of the House in looking to see that this bill will proceed into the next stage, which is at select committee, at Justice Committee. I’m also looking forward to hearing the submissions that we’re likely to receive, not only from members of the public but also from journalists, from those media sources, from those who take a role in the fourth estate, to see their views and understand how this can factor into this potential law change that we could be seeing through here in second and third reading.

To conclude, the bill deals with issues that go right to the very heart of the role of media and journalism in a liberal democratic society here in New Zealand. It is so important—vitally important, in fact—that our laws adequately protect journalistic privilege to ensure that our journalists, especially investigative journalists, can do their jobs. I was once told as a member and given advice that a good member’s bill is a simple one, a concise one, one that tackles a simple issue that can be tidied up. Well, Louisa Wall clearly did not take that advice. Her members’ bills have been bold and brave. They have tackled many significant issues. They have indeed become law in New Zealand. This bill makes no change to that pattern. So I would like to acknowledge her hard work in tackling the big issues and bringing issues such as this, that go to the heart of our liberal democracy, to the House to be debated.

Our fourth estate—to function effectively, it’s important that we make sure our laws protect journalistic privilege, to ensure that our press have the ability to function and report freely without fear. That’s important to this very building and how we operate as a Parliament as well. As it stands, although New Zealand’s law references the importance of respecting journalistic privilege and also the case of police searches, it does, as identified, contain a gap in the law currently about how this important protection is actually guaranteed. Although the Search and Surveillance Act 2012 and also the existence of journalistic privilege with reference to protections that are laid out in the Evidence Act 2006, there is no clear description as to the processes to be followed when this issue of privilege arises, and that is what this bill does.

This bill addresses the gap in the law and the specific issues highlighted in the Hager case by reinforcing the Evidence Act and the Search and Surveillance Act in recognition of journalists’ duty to protect their sources from disclosure. This is a good bill. I look forward to the submissions. I look forward to the next process, and I commend it on behalf of my colleague Louisa Wall to the House.

Motion agreed to.

Bill read a first time.

Bill referred to the Justice Committee.