A test for the strength of New Zealand’s free speech laws – Stuff

Jim Tucker is a journalist and writer based in New Plymouth.

OPINION: Am I breaking the law by writing this column, which is about the Dr Peter Canaday case?

If you've been following its journey through the courts, you'll know what I'm talking about.

Canaday is accused of breaching medical standards by raising doubts about Covid-19 vaccination at a time in mid-2021 when government efforts to protect the nation were at wavering heights.

A US-trained doctor who moved here in 2007 and became a radiologist, he was invited by prominent anti-government group Voices for Freedom to speak at its public forums.

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Late last year, the NZ Medical Council reacted to complaints about Canaday by banning him from medical practice while it investigated. He faced up to three years prevented from making a living from medicine.

Over February and March, Canaday appealed his suspension at court hearings in Wellington and won. The main case against him has just been heard in New Plymouth before the Health Practitioners Disciplinary Tribunal (decision reserved).

Naturally, my main interest lies in the impact all that will have on freedom of expression, a law that affects my right to make a living as a journalist.

Partly, it exists within the country's nearest thing to a constitution, the NZ Bill of Rights Act 1990, whose Section 14 says: "Everyone has the right to freedom of expression, including the freedom to seek, receive and impart information and opinions of any kind in any form."

LISA BURD/Stuff

Columnist Jim Tucker says laws around freedom of expression affect his right to make a living as a journalist.

Looks firm enough, doesn't it. But as with most things legal, it's not that simple.

After then-Minister of Justice Sir Geoffrey Palmer steered the Act through Parliament back in the late 80s, he accepted it would take time before becoming what lawyers called "supreme law".

If that happened, relevant court cases would need to consider its power alongside any other law. As the years and cases have unfolded over the past 33 years, the Bill of Rights Act has undoubtedly grown in significance.

What we are about to see with Canaday is whether it has reached a similar status as that enjoyed by the US Constitution, which partially inspired Palmer when he worked there.

If it has, Canaday has a good chance of winning his case. The prosecution's arguments - about him, a medical practitioner, spouting ill-conceived ideas that might sway the undecided about vaccination - would be trumped.

But I doubt that will happen in the way every journalist would like and establish absolute press freedom.

It never can for the good reason freedom of expression is like defamation: it depends on the currency of what's being said.

If you read our defamation law you'll see it sticks to outlining processes to be followed when someone alleges someone else has said damaging things about them. It doesn't have a list of supposedly damaging words.

No such thing could function for long because the meanings of words evolve at a faster rate than any legislative process can match.

Take the word "gay".

In the so-called "roaring 20s" of last century it described people who went out a lot or had an outgoing manner. Later that century, it was adopted by the homosexual law reform community as a label of defiance. Now, it's a casual personal description that (mostly) carries no offence.

While some currently defamatory words have long sustained their clear intent to abuse, there is no guarantee that victims won't form a movement to normalise them.

Those involved in the Canaday case have encountered something similar the rapidly evolving body of knowledge and meanings that sprang up around Covid-19.

The entire scientific and medical world applied itself to finding protection and cure in an unprecedentedly short time. Vaccines had never before been adopted for public use without much longer trialling.

The vaccination effort has been commendably effective, but nobody can guarantee absolute safety. Over time, cases of bad reactions, even death, have emerged.

Most of us are all too keen to take a punt on the vaccines because we trust the majority medical opinion. That's the fundamental nature of modern life.

Does that mean people like Dr Canaday should not be allowed to express a contrary view, though?

Not in my book. Much of my work has been predicated on analysing minority opinions. Which doesn't mean I share them, by the way.

British philosopher Sir Karl Popper argued a scientific theory's validity lasts only until another disproves it. That lends gravitas to some attempts to disprove. The challenge is deciding which ones.

Jim Tucker is a journalist and writer based in New Plymouth.

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A test for the strength of New Zealand's free speech laws - Stuff