Open and shut cases: Execution and name suppression

It is disconcerting, in the course of eating a single breakfast muffin, to be confronted by polar opposites to the concept of open justice.

I begin my day with a quick survey of my emails, and I was alerted to a Substack commentary by David Harvey. I number the retired judge among my friends so, after a quick bite, I read his Halfling column.

It was devoted to executions and, in particular, to the forthcoming death by firing squad of Nidal Hasan, who murdered 13 people at a military base in Texas. Last week, the US Secretary of Defense Pete Hegseth announced the killing would be livestreamed on a public platform.

I was among the many who publicly expressed their outrage at the decision, which is fully endorsed by President Trump. I said on Facebook:

How, in the name of common decency, can the people of the United States continue to allow their once great country to continue its spiral into primitive savagery? I am disgusted beyond belief. New Zealand must treat the video in exactly the same way as it handled the terrorist’s video stream from the Christchurch mosque attacks. Viewing and retaining the material in this country should be deemed illegal.

David Harvey is a learned man, and he argued convincingly in his column that there was nothing in New Zealand law to prevent the execution being viewed live in this country because we lack a statute censoring something that does not yet exist. I do not doubt he is right: The New Zealand censor’s ban on the mosque attack footage was after it had been livestreamed. He went on to argue against the use of prior restraint, on the grounds that “it strikes at the heart of freedom of expression”.

I, too, have an aversion to the use of injunctions and as an editor spent a number of Friday nights fearing a call that might prevent publication of a lead story in the Weekend Herald (the call never came).

I won’t put words in David Harvey’s mouth, but I think it is fair to say that he subscribes to the C. Edwin Baker school of thinking on free-speech absolutism. Baker, an American First Amendment scholar who died in 2009, asserted that the responsibility for harmful speech lay not with the speaker but with the reactions of the recipients. In other words, we must take responsibility for our own actions after we (not the state, or the justice system) choose to receive information. The Halfling column made the point that people could choose not to view the livestreamed execution, and David Harvey would be among those who opted not be watching it.

There is much in Baker’s writing with which I agree, and I have four of his books on my bookshelf. However, on this point I disagree with him and with David Harvey. One of the nice things about friendship is that it is possible to disagree and remain friends.

I subscribe to a school of thought articulated by legal scholars such as Stanley Fish and Jeremy Waldron. Their concern is about the undermining of public good and the assurances that society will protect its most vulnerable. This extends, they say, to harmful communication (which includes images). They maintain that free speech is only one of a number of values that need to be balanced against each other within boundaries set by society. Continue reading “Open and shut cases: Execution and name suppression” →

Winstanley will not turn RNZ into NewstalkZB2

It is as inevitable as death and taxes that Jason Winstanley will change Radio New Zealand, but don’t start pasting the NewstalkZB logo on top of the RNZ tohu just yet.

The outcome of the forthcoming election will play a huge part in determining the mark that the veteran commercial broadcaster will put on RNZ as its new chief executive and, in any event, he will not be there to create NewstalkZB2. You don’t compete by being the same.

Winstanley, currently chief audio officer at NZME and due to take up his new role next year, will have had his eyes wide open when he accepted the new role. He would have known full well that the letter of expectation to RNZ from the incoming minister will be written in ink that is no longer simply blue or red but a weird colour the likes of which we may not yet have seen.

Speculation of change started the moment Winstanley’s appointment was announced. His strongly commercial broadcasting background – plus the reasonable belief that his appointment had been strongly endorsed by the equally-commercial RNZ chair Brent Impey – predictably led to images of a wolfish NewstalkZB poorly disguised with a public broadcasting sheepskin thrown over its microphone. Continue reading “Winstanley will not turn RNZ into NewstalkZB2” →

A bid to round up more than the usual suspects

A famous line from the 1942 movie Casablanca is a good description for the limited outlook of our news media: “Round up the usual suspects”.

No, I am not suggesting that journalists are as duplicitous as Vichy French police prefect Captain Louis Renault, even if he used the phrase to throw his colleagues off the scent (after witnessing Humphrey Bogart’s character shoot a Nazi). Rather, the phrase is a useful way of describing the relatively narrow range of voices we see and hear from our news outlets.

There is a predictability about the sources and the way they are depicted. This is no more so than in the range of opinion writers we see in our newspapers and whose views are replicated on associated digital platforms.

The vast majority are journalists, former journalists, and people with past (or present) associations with the political process. Don’t get me wrong: They make useful contributions to public discourse, but they fall well short of the Habermasian ideal of the public sphere.

Jürgen Habermas had an idealised view that everyone could participate as equals in rational discussion in pursuit of truth and the public good. However, he knew the reality was significantly more limited. That should not stop us, however, for seeking an ever-widening public sphere.

For that reason, I was heartened to see Stuff Digital editor-in-chief Keith Lynch’s call for new contributors to the Stuff platform. Last week he launched a competition of sorts. Its aim is to add different voices to the Stuff conversation. It is a mission I applaud. Continue reading “A bid to round up more than the usual suspects” →

National must come clean over Official Information Act

The National Party needs to come clean on what it intends to do with the Official Information Act. It is simply not good enough for Justice Minister Paul Goldsmith to kick the can past the election.

Last year Goldsmith instructed the Ministry of Justice to prepare a briefing paper on the operation and cost of the OIA. Stuff revealed on Friday that the results had been quietly placed on the ministry website a fortnight ago under the heading Regulatory Stewardship, with no accompanying announcement.

The documents indicate that Goldsmith started the ball rolling last year on possible changes to the OIA by seeking information on the costs of OIA requests across the public sector. Consultants produced a report in November giving indicative costs, which they estimated to be $183.6 million last year. In March the Secretary for Justice, Andrew Kibblewhite, and State Services Commissioner, Sir Brian Roche, wrote to government agencies signalling more detailed requests for information and the consultants, Tregaskis Brown, were commissioned to do more detailed work. They broadly confirmed the original costings in a final report dated 14 July 2026, but repeated a number of caveats (such as the way OIA request numbers were calculated) that could push the real costs significantly higher. Initial assumptions about better ways of proactively releasing state sector information were also confirmed.

Information on OIA patterns and costs, plus advice from the ministry, have been made available to the Beehive progressively throughout the year but last week Goldsmith simply said: “No decisions have been made. We will consider this advice, including the estimated costs, in the next parliamentary term”.

The Official Information Act is the foundation stone of open government in this country. It is the only guarantee we have of transparency over what is being done in our name and on our behalf. Therefore, we have a right to know what is on the minister’s mind. After all, he was thinking about it a year ago. Continue reading “National must come clean over Official Information Act” →