A positive element of the Tom Phillips saga – perhaps the only positive apart from the safe recovery of his children – has been in highlighting the fragile nature of the public’s right to know.
It is an outstanding example of attempts to control the narrative in a story that has generated worldwide interest and raised a plethora of questions about Phillips and about official handling of the case.
The interests of the three Phillips children are paramount, and no-one in this country wishes to see them face any further trauma. They endured almost four years of deprivation, and one witnessed the violent death of her father after he attempted to take the life of a police officer.
But where does the wellbeing of those children end, and the self-interest of all the other parties associated with this case begin? There are serious questions about the Oranga Tamariki handling of the domestic arrangements for the children during the custody dispute, and certainly after Phillips’ first abduction of his offspring. There are questions about the police operations throughout the case. And there are many questions about the character and actions of a man who would deprive his daughters and son of a normal childhood while normalising criminal behaviour.
Oranga Tamariki has invoked the children’s right to privacy. Police have fallen back on the old trope of ‘ongoing investigations’. And sitting over it all is an interim court order that – temporary or not – has almost the effect of a super injunction where even the purpose and justifications for suppression of facts are shrouded in secrecy.
How are the interests of the children adversely impacted by any enquiries into whether the state agency for children and the Family Court did all in their power to protect those interests? How are enquiries into past police actions in the case going to jeopardise future investigations in the hunt for those who aided and abetted the fugitive? And how could revelations about Tom Phillips be prejudicial when he faces no charges because he is dead?
New Zealand media have shown not only necessary regard for the Phillips children’s privacy but obvious compassion, which recognises the trauma they had already faced. We may also assume they have also – as they must – observed the provisions of the interim suppression order around ‘certain facts’. Only in one instance has a media outlet potentially overstepped the mark.
Stuff, which has been leading the media coverage of the case, acquired and published online the radio messages of the police officer trailing Tom Phillips’ quad bike on the fateful night to the point where he shouted ‘shots fired…shots fired’ and collapsed. Other officers then took over radio reports. The Police have been highly critical of Stuff for publishing the radio traffic and have threatened prosecution.
The editor-in-chief of Stuff, Keith Lynch, has justified his organisation’s actions on the grounds that it was “not only of great public interest, but it is of great importance, particularly as speculation about exactly what happened that morning has been circulating on social media”.
In spite of agreeing with those sentiments, I believe publication of the messages was a step too far. I do not for one moment accept the contention by acting deputy commissioner of police, Jill Rogers, that it “put at risk inquiries underway into the events that unfolded”. I do, however, believe that Stuff may have broken the law by publishing.
Section 133a of the Radiocommunications Act says it is an offence to disclose the contents of radiocommunications not intended for the person that discloses it. Police, security services and defence personnel are exempted from the provision. News media are not. Stuff’s reasons may have been well-intended, but journalists are not at liberty to break the law – even in the public interest. A longer-term solution might lie in seeking a news media exemption, subject to a suitable public interest test.
Should Stuff be prosecuted as Police have threatened? Of course not. Why not? Because any prosecution would be taken for entirely the wrong reason: Not to repair harm but to create a chilling effect on journalistic enquiry into matters relating to police conduct.
From the moment Tom Phillips’ life was ended we have seen constraints placed on the public’s right to know and on its right to have legitimate questions fully explored, if not yet answered.
I believe it demonstrates that our constitutional rights are not equal, but are on a sliding scale. We place unassailable importance on our right to life, on not being subjected to torture or medical experimentation, we demand the right to elect our politicians, to be secure from unreasonable search and seizure, and not to be arbitrarily arrested. But where today do we place freedom of religion, freedom of association, and freedom of expression?
All these rights are embodied in the Bill of Rights Act. The vast majority of rights are officially upheld even if sections of society may challenge some of them (I am not going to engage in debates on abortion or voluntary euthanasia). However, the parchment on which these constitutional rights are inscribed was worn thin at the point where Section 14 was written. This is the section that ‘guarantees’ the right to freedom of expression which includes not only the right to express our views but, importantly, the right to seek and receive information and opinions “of any kind in any form”. From the day it was enacted into law, the reality is nowhere near the vaunted expectation of those words
It falls victim to the enthusiastic application of other provisions of the Act. Section 4 allows other laws to gazump it, and Section 5 is an effective ‘out clause’ because it states that “the rights and freedoms contained in this Bill of Rights may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”.
All too often the right to know is subsumed by other devices that are not used as a shield protecting the vulnerable, but as a weapon to defend the interests of parties that want to avoid scrutiny.
How often do we hear ‘privacy’, ‘commercial sensitivity’, and ‘ongoing enquiries’ used to deny access to information? How often are our courts used to temporarily (and in rare cases, permanently) hide identities, not of victims but of perpetrators represented by persuasive counsel?
Even laws specifically designed to facilitate the public’s right to know are manipulated and misused. Last month the Chief Ombudsman released the results of pro-active investigations into four local authorities’ compliance with the Local Government Official Information Act. All four were found to have failed to meet all of their obligations and two had acted contrary to law. You can find the Ombudsman’s reports here.
The unintended consequences of well-meaning laws and regulations hamper the public’s right to know. The 10-working-day time limit set to respond to Official Information Act requests is now a departmental default setting, applied in the hope that the heat will have gone out of a situation in the fortnight before a request is met (in some shape or form).
And if all these devices fail, there is always obfuscation. I do not wish to single out politicians but, instead, would apply George Orwell’s 1945 essay Politics and the English language to a broad spectrum of people who see Section 14 of the Bill of Rights Act as an unnecessary hindrance. In it he says:
Political language – and with variations this is true of all political parties, from Conservatives to Anarchists – is designed to make lies sound truthful and murder respectable, and to give an appearance of solidarity to pure wind.
If the final phrase sounds familiar, it is because far too often media statements, media conferences, and standups do nothing more than give the appearance of meeting the public’s right to know. They say little of substance and, skilfully or otherwise, avoid addressing the questions people want answered.
We have witnessed such shortcomings since the end to the four-year saga of deprivation inflicted on three children by their renegade father in the inhospitable bush near their former home in Marokopa.
As a very young journalist I was taught that the core of every news story were the 5Ws – who, what, when, where, and why. This is a story in which the New Zealand public deserve comprehensive answers to all of those questions in order to have confidence in the system that should protect us and, crucially, our children.