John Key's famous cup of tea is at risk of leaving a sour taste as the story drags on and public opinion turns. But what does it mean for the election?

The teapot tape fuss seems to have turned in the past 24 hours; not in John Key's favour and not entirely due to anything he's done wrong. His famous antennae my have let him down and for the first time since the debate over mining on conservation land he risks being squarely on the wrong side of public opinion and the headlines in an ongoing story.

The Prime Minister’s political management has been notable for his ability to come across as the everyman and, rare in politics, his willingness to change his mind. The money trader’s skill of cost-benefit analysis has served him well; if it looks like he’s backed a loser or got himself into a tight spot, he’ll act quickly.

Remember back in 2009 when Q+A revealed he owned shares in a company that mined uranium? He’d sold them by Sunday teatime. Story over.

Or think about the mining issue itself. When the opposition built and dragged on, he changed his mind and went another direction. Key is nothing if not flexible and judging by history, you’d have expected to have just released the tapes, apologized and move on.

But this is a campaign and he chose another path, confident that his stance would seem reasonable to most voters.  And it would have. They don’t have an especially high opinion of journalists, so by painting himself as the victim of media skull-duggery he had nothing to lose. Voters would have seen him as standing up for himself, not whining to police like a tell-tale. They would have thought ‘I wouldn’t want someone poking into my conversations, so fair enough’.

And to be fair, this seems to be something Key felt genuinely angry about; he felt put upon and tricked. And if the cameraman left that microphone at the table on purpose, he’s got every right.

Then it all changed.

First, the law wasn’t quite as clean cut as it first looked. While it’s clearly illegal to record a conversation you’re not a part of, there are defences around public interest and whether it’s reasonable for those having the conversation to expect privacy.

Therefore, a conversation about politics and the make-up of the next government held as part of a publicity stunt, in a public place, surrounded by media and in the middle of an election campaign, well, the law wasn’t clear cut at all.

Then the point was made, repeatedly and across the media, that this wasn’t like prying into an ordinary person’s private life. This was the Prime Minister. This was material to the make-up of government. This was different.

That gave people permission to admit they were curious – because people always are, whether the thing made secret really matters or not.

Finally came two news angles that re-framed the discussion.

Key had compared the teapot taping to the News of the World’s phone hacking, so TV3 got the lawyer of murdered teen Milly Dowler to say it was no such thing. Barrister Mark Lewis said it was good journalism, more like Gordon Brown’s not realizing his microphone was one when moaning about “a bigoted woman” than phone-hacking. The Herald then splashed that angle across its front page with a damaging ‘PM’s cheap shot’ headline. (I can’t remember the Herald being so anti-Key, but then it’s the Herald on Sunday that started all this and blood is thicker than water).

In Key’s defence, he never mentioned Downer. The News of the World hacked into the phones of footballers, royal staffers and politicians, which was what Key as referring to. No, the comparison still doesn’t stand, this wasn’t hacking. But the Prime Minister never compared himself to a murdered teen.

But then Key got caught up in another unhelpful comparison, one entirely of his own making. He suggested this recording was the top of a slippery slope and asked people to imagine a celebrity couple talking about a suicidal child and that conversation being reported and that child then committing suicide… It was the most bizarre and incomparable comparison you could imagine. Is the PM just another celebrity? Was John Banks feeling suicidal? Was there a child involved in that conversation?

Those two twists in this tale have turned the tide against him. Regardless of fact, he risks looking like a man who doesn’t respect the elderly and who compares himself with a murdered girl. He’s trapped in an unedifying spectacle, he’s given ammo to Winston Peters and is backed into a corner where he's lost control of events.

So what now?

Key would have been hoping to keep his head down and play it safe until election day. Instead he’s been lured into an unedifying spectacle and has given ammunition to Winston Peters, a man with every reason to dislike him personally and politically.

So what does the calculating trader PM do? Release the tape and hope voters laugh off the comments about dying New Zealand First supporters and Don Brash’s leadership of ACT? Release the tape because it’s better he do it than someone else? Hold his ground, because it could finish ACT once and for all? Hope the police lay charges so the whole thing becomes sub-judice?  

And what do TV3 and the Herald on Sunday (or even the daily Herald) do? Release the tape and take the legal consequences? If they wait too long, the police could prevent any release. At the same time by waiting they’ll be hoping to build a clamour for release – and thereby their public interest defence.

Those are the tactical questions. But the ultimate point is whether it changes the way anyone votes. Ultimately, that’s what matters. And one point leaps to mind:

Perhaps it gives people pause for thought as to whether they want John Key and National to govern alone. Perhaps it sends people off looking for a coalition partner for National. Peter Dunne, anyone?

 

 

Comments (20)

by Luc Hansen on November 16, 2011
Luc Hansen

You may want to take another look at your final paragraph here, Tim.  It just seems a bit light on consequences.  I'm sure you would agree that things have taken an interesting turn or two today.  Cancelling media appearances a bit over a week before an election is not a good look.

And it does make Phil Goff's opening debate jabs at Key's honesty seem quite prescient, in hindsight.

by Tim Watkin on November 16, 2011
Tim Watkin

It's light Luc, because everything's so fluid. I might come to a different conclusion in a few hours.

For example, it looks petulent to walk out. But what if Key's betting that voters will blame the dirty media, because all he was doing was trying to focus on the issues that matter? Some are saying that walk out was staged.

Saying Key has done himself some damage is not the same as saying voters won't see this taping as a beat-up and hate the media even more.

 

by Tim Watkin on November 16, 2011
Tim Watkin

And btw, what odds the tapes coming out tonight? Or tomorrow at the latest? This can't go on, can it?

by Flat Eric on November 16, 2011
Flat Eric

How does it make Goff's comments prescient, Luc?  Goff was calling into question Key's honesty.  But what we know about the tea conversation indicates Key was being honest.  The only question is the less-than-ideal phrasing

by Kevin Moore on November 16, 2011
Kevin Moore

SPM, I think the 'honesty' angle comes into it in a number of ways. First, the incident is partly about whether or not Key's characterisation of the conversation ('bland', 'nothing unusual', etc.) is accurate. Second, there is the oddity of his claim of a memory lapse over its contents (He can't remember if he talked about NZF - surely that's hard to believe?).

Key had several possible options other than the one he appears to have taken. He could have continued with the Police complaint (to ensure this never happened to anyone else, which he claims is his overriding concern and a matter of principle) while allowing the recording to be released.

He could have continued with the Police complaint, still refused to have the recording released but given his own summary of the contents of the conversation. That would, of course, have opened the door to comparisons with what he actually said by those who have access to the transcript. But, if he is acting honestly in all of this, that should not be a problem. As Key said in relation to the Video Surveillance Bill, 'innocent people have nothing to fear'.

Finally, he could simply do a mea culpa about aspects of the conversation - if there were comments potentially damaging to his reputation or 'brand' the best strategy would be to take control of that damage rather than let it bleed like this.

As it is, his response to the claims has been to say (a) 'I can't remember' or (b) 'I'm not saying anything because of the high moral principle I'm defending'. The problem is that neither (a) nor (b) have the ring of credibility about them.

So, we come back to the question of honesty.

by Steve F on November 17, 2011
Steve F

Tim,

 

"..........First, the law wasn’t quite as clean cut as it first looked. While it’s clearly illegal to record a conversation you’re not a part of, there are defences around public interest and whether it’s reasonable for those having the conversation to expect privacy........"

 

Correct me if I'm wrong but I think the law is fairly decisive and clear with regards to the criminal aspect. For a civil tort case it may be a bit muddier. I don't believe there is any public interest defence in a criminal case. This saga, after the police have run it past their prosecution service, will turn on two points:

 

1) Was the conversation private, did they have a reasonable expectation that they wouldn't be overheard ?

 

2) Was there intent in making the recording ?

 

On the first point one has only to look at Campbell Live's coverage on Tuesday evening and it is clear that the two John's could not have reasonably expected privacy. There was a gaping gap behind John Key's back. No glass wall, no door. In fact there was a camera guy there with all his kit including a bushy covered microphone aimed at the tea table.

On the other hand you can see cafe staff standing within the confirms of the area where the boys were seated.

 

On point two,  the meeting had seemingly evolved from a very public one to one that was ostensibly private. So there was no intent at the outset and it could only have occurred after the minders cleared out the reporters, but left the door open behind the PM's back. So a mike was left on the table. Inadvertently it seems. Was it on or off ? Could it be switched via remote control or not? Was the receiving device on or off? Were there any tell tale signs on the receiving device to show a live signal from the mike? Was the discovery of the recorded conversation a surprise or expected?  Was it a process of mind that put events into play to cause the recording to be made or was it a confluence of unexpected circumstances?

The test about intent needs to be proved beyond doubt.

 

So that's why I think there is a game of brinkmanship being played out. There's still a few days to go and it's all about milking it. The newspapers legal advice will be of the highest order. I am certain we will see a transcript of the conversation and it is down to the timing.

by Tim Watkin on November 17, 2011
Tim Watkin

Steve, you say there's no doubt about law but then point out there are two mitigating factors – they would be argued strongly by both sides. For example, Key and Banks would argue that even if in a public place, they gave clear instruction for the media to leave, indicating a desire for privacy and no permission for the conversation to be taped.

You then ask a series of questions and say intent is unproven. All of which goes to show, rightly, that the law is not clear, that's it's not as simple as first reported (ie 'permission wasn't given, so it wasn't legal'), and that any action taken would be a test case.

by Tim Watkin on November 17, 2011
Tim Watkin

Kevin, it wasn't that he couldn't just recall wat he said about Peters, but "genuinely" couldn't recall. I always find it interesting when politicians stress that they're being properly honest!

by Deborah Coddington on November 17, 2011
Deborah Coddington

Tim,

I've been through the Crimes Act, specifically S 216A and Part 11A regarding Privacy, and I can find no public interest defence. I've run it past the QC and he can see no public interest defence. Can you point me to this?

by Frank Macskasy on November 17, 2011
Frank Macskasy

"On the first point one has only to look at Campbell Live's coverage on Tuesday evening and it is clear that the two John's could not have reasonably expected privacy." - Steve F

In a cafe filled with every journo north of the Bombay Hills,  behind glass? In what manner is there an "expectation of privacy" in such a situation?

Would the President of the US discuss foreign policy with his Chiefs of Staff in such a setting?

Of course not.

And my understanding is that before illegality can be demonstrated, intent must be proven?

Anyway, if politicians can start pleading "privacy", then we've just muzzled the entire media in this country. It effectively turns investigative journos into an extension of the government's PR Dept. In essence, what it suggests is that media were invited to records and promote another photo-op - and nothing else.

Is this where we're heading?

And can Labour or other left-wing politicians claim the same protection: "expectation of privacy"?

Some folk have made a comparison between the public event between the Two John and two ordinary citizens having a chat and being surreptitiously recorded.

Except, of course that the two 'ordinary citizens'  aren't standing for Parliament and haven't invited a media scrum to photo-op their meeting.

 

 

 

by Andrew Geddis on November 17, 2011
Andrew Geddis

Deborah,

While I've posted my reasons for why I don't think there's been a breach of s.216B (thus no possible breach of s.216C) - reasons that largely conform to those Steve F outlines above - there is no general public interest defence available to those charges.

In other words, Tim's wrong.

by Russell Garbutt on November 17, 2011
Russell Garbutt

There seems to be consistent disagreement on whether the "accidental" recording of the conversatin was legal or not. Brash this morning on Morning Report continues with the line that it was unethical and "almost certainly illegal", while Peters last night was equally sure that it was legal.

 

What is extraordinary is that Key continues to paint his way into a corner by persisting with his current line of not being able to remember what was said while remembering that the conversation was bland. The problem is that no matter what Key may or may not want in relation to the release of the content of the discussion, one thing is for sure is that multiple copies will now be in existence and the release cannot really be prevented. While it may not be reported in mainstream, it almost certainly will be released through social media/blogs.

 

Quite clearly Peters knows the content, or at least the broad gist of the content and he has absolutely nothing to lose by continuing to give the impression that he knows.

 

The net result is that Key's polished persona has now been scuffed and the level of believability amongst swinging voters of Key must have been affected.

by Frank Macskasy on November 17, 2011
Frank Macskasy

Tim,

I've looked at the section yiou referred to, and you appear to be correct in terms of legislation (within that section).

I wonder what case law, relating especially to the media, states on this issue?

 

by Paul Falloon on November 17, 2011
Paul Falloon

In many respects I find it hard to believe that anyone could reasonably expect any converstation made in a cafe to be private. Recording equipment or not. For example the Royal Wedding coverage (so I'm told - didn't bother watching it myself) had people lip-reading to make out what was the subject of arguably more private converstations held in cars etc.

Would this issue have any of the same legal questions if that had occured in this case i.e. the converstation wasn't taped but someone watching through the glass was interpretting what was being said?

by Steve F on November 17, 2011
Steve F

Paul

Here's the interpretation clause from the Crimes Act. They have all their bases covered. So  lip reading would fall under "monitor, acquire".

 

I believe the law is clear as I posted earlier. What is unclear of course are the cryptic circumstances around this case and how a judge might frame the boundaries around reasonableness. If it ever gets to it, I can see the decision running into telephone book proportions.

 

216A Interpretation

(1) In this Part, unless the context otherwise requires,—

intercept, in relation to a private communication, includes hear, listen to, record, monitor, acquire, or receive the communication either—

(a) while it is taking place; or

(b) while it is in transit


by DeepRed on November 17, 2011
DeepRed

Legalities aside, it goes to show how vulnerable the C/T turd polishing textbook is to forced sunlight. And next thing you know, all the personality cultists are drawn out of the woodwork.

by Tim Watkin on November 17, 2011
Tim Watkin

Re the lip reading, I'm aware second-hand of two media organisations who have had conflicting advice on whether that would be considered legal or not. Either way, Close Up had a crack at it earlier in the week and few words could be made out.

But really, I think we all know by now what was said, if not word-for-word, then in general terms.

Deborah, sorry I wasn't clear. I've been told that public interest would be a defence under a civil case, but not criminal. That correct, Andrew?

The two defences under the Crimes Act would be a) that it was unintentional and b) that it was unreasonable to expect not to be overheard.

by Tim Watkin on November 17, 2011
Tim Watkin

I'm increasingly convinced that ordinary voters are turned off by this whole story. National will be polling on this every night and Key's insistence again today that he won't talk about it, it's a matter for police and he wants to talk about matters of substance are sure to be what the polls tell him people want to hear.

The police action, however, is a bit harder to read. I would have thought many would have some sympathy for Goff's line that police have better things to do.

And to add to the News of the World comparison and the bizarre scenario about a suicidal child, Key also went off the reservation a bit today suggesting that because crime rates are down, police have a bit of time on their hands. That's a flippant, unfunny statement that won't go down well if it gets much coverage. He sounds tired.

by Dave Boyce on November 18, 2011
Dave Boyce

Boy I am getting frustrated over this.  Isn't the whole point of the Police investigation is to determine if there is an interception, when this occurred (my money was on the receipt of the signal to the camera) and if there is intent to make a secret recording. When he knew he had a recording after privacy had been requested, and that request should be on the tape, then dealing with as a recording constructs the intent required.  Advising it to the Herald on Sunday is then disclosing a private communication. The intercept AT THAT POINT is intentional?  My view therefore is even if Ambrose did not intend to record none the less he intentionally intercepted when he dealt with the recording inconsistently and meets the standard in 216B (1).   "I didn't know what I had" doesn't cut it nor does it's in the public interest because that is now how the tape was dealt with.  He asks permission, its denied.  The intent for my book is constructive.  I think he will go down for it.

by kathy tuakau on November 19, 2011
kathy tuakau

can someone please explane to us if mr.key is surrounded by these highly trained policemen,who i am sure draw a good wage,did not notice the pouch on the table,why not.bet it would not have happened in america. or anywhere else for that matter.

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