Tea-Party-Gate

To release, or not to release the Tea-Party tapes?

The political junkies and the bloggers say yes. But John Key seems not to be his usual ‘relaxed’ self on this occasion, and his office refused permission to publish the recording, and now he has laid a complaint with the Police.

One video recording of the meeting shows a black pouch on the café table. If that was the microphone, concealed inside that pouch, then that is circumstantial evidence that the reporters recorded the conversation deliberately. The Herald, however, claims it was left there inadvertently. But, there was a conspicuous black pouch merely inches from the elbows of both men, so, while the microphone itself was concealed, the pouch was in full view, and it could have been inspected and removed.

Even if the recording was deliberate, the PM’s comparison of this with the scandalous tactics of the UK’s News of the World tabloid is really not credible. NoW went much further than that – including secretive hacking into private phone messages of victims of crimes, and using corrupt police officers.

I'm no lawyer, but, as the PM has now laid a complaint with the Police, let’s check up on what the law says. S 216B of the Crimes Act says: ‘every one is liable to imprisonment for a term not exceeding 2 years who intentionally intercepts any private communication by means of an interception device.’

Now, the microphone probably fits the description of ‘an interception device.’ There is debate, however, about whether the recording was made intentionally, but there’s little I can add to that question.

The real problem for the prosecution would possibly be in establishing that the tea-party conversation was a ‘private communication.’

S 216A defines ‘Private communication’ as ‘a communication (whether in oral or written form or otherwise) made under circumstances that may reasonably be taken to indicate that any party to the communication desires it to be confined to the parties to the communication.’

So far so good…; but this definition ‘does not include such a communication occurring in circumstances in which any party ought reasonably to expect that the communication may be intercepted by some other person not having the express or implied consent of any party to do so.’

Under the circumstances, having invited the media to the party, and being surrounded by cameras, surely both Key and Banks ‘ought reasonably’ to have expected that their conversation may have been ‘intercepted by some other person’ who did not have their consent to record it. They were, after all, surrounded by reporters!

Just ushering the reporters and others away by a meter or two may not have been sufficient to signal that this had become, by the definition in the Act, ‘a private communication.’