The election may be ancient history by now, but the controversy over the recorded conversation between John Key and John Banks is still brewing away. See what I did there?

Given that the misnamed "tea tapes" (I guess "tea digitally recorded conversation" is a bit much of a mouthful) was one of the two most important things to happen during the election campaign, it shouldn't be that great a surprise that it hasn't gone away as an issue.

(Note I've refrained from saying it was the most important thing to happen, as otherwise I would be giving an open invite to every wiseacre to jump into the comments section and say "but what about ...?" So, yes, yes - all those other very important events were just as crucial, too.)

The most recent development has nothing to do with either the substance of the "tapes" content, nor the question of its legality. Goodness knows when the police will make a decision on whether to lay any charges against Bradley Ambrose; apparently they have yet to even speak with him. It would seem they have a little less time to spare on this issue than John Key thought.

Not that I'd be overly worried about the police if I were Mr Ambrose. As I said here, I don't think they will lay charges in this case, much less a conviction occur. Of course, the unsolicited advice of some guy on the internet is not exactly reassuring if you actually are living in the shadow of the law, especially if your professional life is on hold till that decision is finally made. So I hope for Mr Ambrose's sake the police can get this tidied away asap.

Instead, the "tape" is back in the news because of Crown Law's decision to seek an order of costs totalling $13,669.45 against Mr Ambrose. The Crown incurred these (and then some) due to its successful involvement in his attempt to get a judicial declaration that the coversation between John Key and John Banks was not "private" in terms of the Crimes Act. But the decision to try and get them off Mr Ambrose has been met with suspicion and hostility in some quarters.

Bryce Edwards, me old mucker from the Otago Pols Department, thinks it is part of a broader attack on those media that prove inconvenient to the Government. The Herald on Sunday - the paper for which Mr Ambrose was working under contract - not surprisingly also describes the decision is "churlish and vindictive", while its stablemate the NZ Herald thinks the Crown (i.e. you and me) should pay its own costs.

That last conclusion probably is the right one, but it's still not unreasonable for the Crown (who, remember, provided the legal arguments that the court agreed were the right ones to adopt) to at least ask that the expenses it incurred when doing so be met by the person who forced the issue into court in the first place. After all, who else is meant to pay for the Crown's costs here - the nation's taxpayers, or those lenders giving us the $300 million a week (or whatever it is) we need until National returns us to surplus in 2014 (supress your giggles, please)?

So the decision to ask for costs is a pretty routine one for the victor in a legal stoush - which the Crown was, here. However, isn't this case one where the public actually stood to gain a benefit from the case going to court? That's the view of the NZ Herald's editorial writer, anyway: "the incident raises important questions of public interest that remain unresolved." And so if the case had a potential general public benefit, then isn't it unfair to ask Mr Ambrose to carry the full cost of it on his own?

Well, perhaps. But the particular issue on which a declaration was sought - was the discussion between Mr Banks and Mr Key a "private" one - is pretty narrow and unlikely to arise again. Mr Ambrose's reason for asking the court to give an answer to that question simply was to stop any police investigation into the matter and clear his name of the taint of criminality. So in itself it hardly represents a pressing matter of legal uncertainty that other potential eavesdroppers would benefit from having resolved via a declaration on the matter. Rather, any potential public benefit would have been in clarifying whether or not the media could publish the content of the tapes without potentially falling afoul of the Crimes Act themselves. And as others have noted, this question was particularly important in the context of the looming election.

I guess that has enough of a "public interest" flavour to justify a court hearing at which tax-payers cover the Crown's legal costs. However, I would note that APN - the publishers of both the NZ Herald and the Herald on Sunday - didn't think the issue important enough to justify paying for legal counsel to put the public interest argument at the declaratory judgment hearing, despite being served as parties to the case. So there's a whiff of hypocrisy in the NZ Herald now saying "Mr Ambrose deserves credit for trying to test the central issue in court", while sternly condemning the Solicitor General for "[choosing] not to grapple with the substance of the subject."

If I were a betting man, then, I'd put my money on the police not laying any charges against Mr Ambrose, and the High Court knocking back the Crown's request for costs. Does that then mean that the tea tapes saga soon will be over? Well, maybe ... but that depends on Winston Peters.

You see, not only did the tea tapes (and National's pretty inept handling of his rise in the public eye, despite what this moron said about that at the time) give him the oxygen he needed to bring the embers of his career back to flame, but it could be the gift that keeps on giving. He's already rushed out a press release  on the attempt to get costs from Mr Ambrose, claiming that "the National Party, acting for political purposes, is using taxpayer resources to have a fight with a private citizen. This is abuse of power and it is also illegal." He's wrong about this, of course, but that's never been the issue with Winston.

And there's been some gossip around the traps that when the House reconvenes for the new year he might use the cloak of parliamentary privilege to disclose the contents of the "tapes". If he were to do so, he'd be completely safe from any legal consequences. And provided the police had not yet laid charges in the case - a real possibility, given how slowely the matter is progressing - there wouldn't be anything in Standing Orders to stop him as the matter would not yet be sub judice.

But here's the (mildly) interesting question. If Winston did verbatim disclose the contents of the "tea tapes" in the House before the police decide whether or not to lay charges against Mr Ambrose, could the media safely report what he has said?

Public law afficiandos can have at it in the comments section.

Comments (12)

by Graeme Edgeler on January 04, 2012
Graeme Edgeler

If Winston did verbatim disclose the contents of the "tea tapes" in the House before the police decide whether or not to lay charges against Mr Ambrose, could the media safely report what he has said?

No, and nor could Parliament TV broadcast it :-)

by Andrew Geddis on January 04, 2012
Andrew Geddis

@Graeme: Agreed re the media. The relevant section in the Crimes Act is:

216C: Prohibition on disclosure of private communications unlawfully intercepted

(1)Subject to subsection (2), where a private communication has been intercepted in contravention of section 216B, every one is liable to imprisonment for a term not exceeding 2 years who intentionally—

(a) discloses the private communication, or the substance, meaning, or purport of the communication, or any part of it ...

Winston Peters wouldn't be touched by this if he spoke in the House - that's the beauty(?) of parliamentary privilege.  And, of course, if there is no proveable breach of s. 216B by Bradley Ambrose (my view), then there is no potential liability for anyone who says what the tapes say. But the media obviously are not prepared to run that risk, or else they'd have published the tape contents before now. And if they were to report Winston saying what the tapes say, there is no legal protection available to them - they'd be just as liable as if they reported the contents directly.

But Parliament TV? Would they "intentionally" disclose the substance of the tapes if they just broadcast what Winston is saying as he says it? Is a general intention to show what people are saying/doing in the House enough to satisfy the requirement in s.216C that you intend to disclose the content of the tapes? Not sure that it does ... .

Incidentally - if Parliament TV are potentially liable, what about whomsoever is responsible for placing Hansard up on the web? Is that closely enough connected to "proceedings in Parliament" to enjoy privilege?

by Graeme Edgeler on January 04, 2012
Graeme Edgeler

Agreed re the media.

Parliament TV is media.

And, of course, if there is no proveable breach of s. 216B by Bradley Ambrose (my view), then there is no potential liability for anyone who says what the tapes say.

No criminal liability, but why do you need the Crimes Act? Parliament TV could be liable in tort. No wait, whatever breach of confidence is. Equity.

Of course, given that there was a recording, if the conversation was private, then the media are in trouble whether they publish what was said or not, simply because they've already "disclosed the existence" of the communication. Which may be a strong statutory context argument to this not being a private conversation...

Also, why is it that we consider that Parliament didn't create an exception to Parliamentary Privilege when they passed ss 216 =)

Incidentally - if Parliament TV are potentially liable, what about whomsoever is responsible for placing Hansard up on the web? Is that closely enough connected to "proceedings in Parliament" to enjoy privilege?

Not protected. If Parliament wants to give an immunity to such matters it can. The lack of one has been pointed out often enough - including in reports of the Privileges Committee.

by Andrew Geddis on January 04, 2012
Andrew Geddis

"Parliament TV is media."

But it's not "the media", in the sense that there is no editorial control over content. A newspaper/TV News decision to report what Winston Peters said would be an "intentional" disclosure, no doubt. But the instantaneous transmission of his words without knowing what he was going to say? Harder to argue, methinks.

"No criminal liability, but why do you need the Crimes Act? Parliament TV could be liable in tort. No wait, whatever breach of confidence is."

Possibly ... but what damages would you get? Plus, isn't there some "public interest" defence to breach of confidence/privacy/whatever the action is?

"Of course, given that there was a recording, if the conversation was private, then the media are in trouble whether they publish what was said or not, simply because they've already "disclosed the existence" of the communication. Which may be a strong statutory context argument to this not being a private conversation..."

Agreed.

by Pete Sime on January 04, 2012
Pete Sime

If Peters did disclose the contents in Parliament, I would expect things to proceed in much the same  fashion as the Ryan Giggs super-injunction farce in the UK last year.

Sure, the media wouldn't be able to re-broadcast Peters' statement, but a live broadcast would be something else. With live streaming online and via Parliament TV, I'm sure someone would get that content an upload it to YouTube or a similar service (anonymously, of course) in a jiffy. It would spread through social media. And what about Hansard - would Parliament itself redact the offending statement? The contents would be an open secret. It would all be very illegal (assuming the conversation is a private communication) and the media would be hamstrung on commenting on it, but Key and Banks would be impotent to prevent the political damage.

by Graeme Edgeler on January 04, 2012
Graeme Edgeler

Sure, the media wouldn't be able to re-broadcast Peters' statement, but a live broadcast would be something else. With live streaming online and via Parliament TV, I'm sure someone would get that content an upload it to YouTube or a similar service (anonymously, of course) in a jiffy.

1. The media would re-broadcast Peters statement. Like they did when David Garrett breached a suppression order in the House (his). They just assume they can. Cos it's Parliament.

2. The Office of the Clerk already uploads video of Parliamentary Proceedings to YouTube.

Possibly ... but what damages would you get?

I'd get none :-) John Key, however, could ask for an injunction stopping them from publishing it again and requiring them them to cease publishing it first time around.

by Andrew Geddis on January 05, 2012
Andrew Geddis

"If Peters did disclose the contents in Parliament, I would expect things to proceed in much the same  fashion as the Ryan Giggs super-injunction farce in the UK last year."

Probably - but note that there the judge lifted the injunction after the news spread via other sources, thereby allowing the papers/TV a free run at the issue. Here the liability is criminal in nature and can't go away (unless Banks/Key agree to allow publication). So we may get into one of those situations where everyone knows what was said, but no-one can openly print/show what was said.

"The media would re-broadcast Peters statement. Like they did when David Garrett breached a suppression order in the House (his). They just assume they can. Cos it's Parliament."

jail sentence may be enough to focus the attention of editors a little more closely on this issue that in the case of a mere breach of a "suppression order" (whatever THAT is! :-] )

by Graeme Edgeler on January 05, 2012
Graeme Edgeler

jail sentence may be enough to focus the attention of editors a little more closely on this issue that in the case of a mere breach of a "suppression order" (whatever THAT is! :-] )

hasn't stopped them with contempt of court.

by XChequer on January 08, 2012
XChequer

@ Penny.

 

Sorry, come again?

by Tim Watkin on January 10, 2012
Tim Watkin

Um, judging by X's previous comment, I may have purged Penny's comment in my purging of all the spam we're getting hit with. I've done that a couple of times now. Sorry.

Graeme, um yep, as someone in media I agree we tend to assume more leeway than we have. On the assumption it's not sub judice and it's privileged. But I know that privilege is limited. Remind me the distinctions... media are exempt from defamantion, but not from contempt or suppressions or something? 

And wasn't there a recommendation to change that to give media that leeway? Anything coming of that?

by Matt McKillop on January 10, 2012
Matt McKillop

I have a question for law geeks. In the far-fetched parallel universe where a media outlet is charged with disclosing the contents of the tape (or the fact that the tape exists under subs (1)(b)) following Ambrose's conviction, how much of the offence does the Crown actually have to prove? Is it just the disclosure, and knowledge of contravening s 216B, that must be proved, due to the fact of a conviction against someone having already been entered? Or is an accused person allowed to collaterally challenge the privacy of the communication, relitigating the conviction of the primary offender?

by Andrew Geddis on January 10, 2012
Andrew Geddis

Tim,

The media has a "qualified privilege" defence to any defamation action based on it reporting what is said during a parliamentary proceeding - basically, if the media does so fairly and accurately, it can't be sued (even if the reported allegation is untrue and defamatory). But there is no statutory defence for reporting anything else said in Parliament - so reporting an MP's breach of a supression order, etc opens the media up to liability. The Privileges Committee did recommend a few years ago that this should be changed (i.e. a similar "qualified privilege" should apply as in defamation actions), but so far no action has been taken.

Matt,

The media doesn't have to know s.216B has been contravened. S.216C only says that if it has been and you intentionally disclose what was said during the conversation, then you are liable. As for what the Crown would have to prove in the case of media disclosure ... I don't know! I would have thought that a successful conviction of Bradley Ambrose would be regarded as meaning the predicate of the offence is met - but that's purely on the assumption that the criminal law would want to minimise the risk of situations such as someone being convicted for doing the taping, whilst another person is acquitted of disclosing its contents.

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