The secret recording
The Herald on Sunday reports:
The freelance cameraman who made the recording, whom the paper has agreed not to name, said the recording had been made accidentally after he was stopped by Key’s security staff from recovering the recording device. It transmitted the recording to the camera operator’s equipment but he did not discover until later.
This story is somewhat implausible. If the cameraman had said “I need to recover my recorder”, I have little doubt he would have been able to do so. I am also somewhat suspicious of the claim that he did not realise it was transmitting.
The recording, which was made unintentionally, according to the man who made it, contains fascinating insights into how Key thinks the next Parliament will shape up after the election.
We have chosen not to publish exact details of the conversation, as it was supposed to be in private, and Key last night refused to waive privacy considerations.
This is the correct decision, as it was obtained illegally. The freelance cameraman broke the law, whether intentionally or not, and should have destroyed the recording, rather than given it to the HoS.
Right-wing blogger David Farrar also supported release if the recording revealed hypocrisy. “If there is something which is contradicted by what they say publicly, it makes the public interest argument.”
I should out this comment in its full context. I said the recording should not be published unless it revealed massive wrongdoing. I further compared it to being on the same scale as the UK phone tapping (albeit further down the scale). When pressed further on what would constitute massive wrongdoing, I gave the example of hypocrisy. I also said that for it to make the “public interest” argument, that is a different threshold to “the public would be interested”.
The fact the HoS has not published it, suggests it is merely interesting, rather than in the public interest.
The recording, which was made unintentionally, according to the man who made it, contains fascinating insights into how Key thinks the next Parliament will shape up after the election.
Well speculating on election outcomes is not exactly a crime. I suspect every MP has conversations like that several times a day.
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November 13th, 2011 at 8:11 am
“The recording, which was made unintentionally, according to the man who made it…”
Bollocks. Total bollocks.
November 13th, 2011 at 8:16 am
Hypocrisy is no crime. John Key said “pleasure to be here”, which wasn’t true: according to you this justifies releasing the material.
November 13th, 2011 at 8:17 am
I suspect it does not reveal much. Banks while a friend is a political opponent and the conversation took place in a public place and could have been overheard. I do not accept the bugging was unintentional. Giving it to a newspaper indicates that. Why not destroy the recording if nothing was intended. At least it was not given to the Labour Party.
November 13th, 2011 at 8:23 am
I notice the perpetrator, who identified himself as a Herald employee according to reports, then gave the illegal recording to the Herald.
This person, and his communist-inspired bosses, should be hung up by the testicles in the town square (right above the protest scum would be best) until the day of the election.
November 13th, 2011 at 8:29 am
David Farrar says:- “The fact the HoS has not published it, suggests it is merely interesting, rather than in the public interest.”
Or that their lawyers are running around like chooks trying to establish whether or not they will be prosecuted if they release the recording.
My guess is that the action of the security staff quashes any culpability the cameraman may have had in illegally obtaining the recording, so perhaps he will be deemed to have simply overheard the conversation.
Wonder if F E Smith is busy this morning….
November 13th, 2011 at 8:39 am
These two men orchestrated this stupid ‘cup of tea’ as a PR stunt and if someone was able to record what these turkeys said then good on him. The Herald should publish whatever they have but I suspect that the main reason they have not done so is that the tape just contains mindless platitudinous waffle.
November 13th, 2011 at 8:41 am
Three points. First, if recording the conversation was an offence, then it has already been committed and publishing the transcript won’t make a difference. But it might not be an offence – there is a difference here (in law, if not in ethics) between taping a conversation and intercepting a telephone call.
Secondly, if there isn’t an offence, then I think it would be very difficult to stop publication on the basis that it is a breach of privacy. Key and Banks had no reasonable expectation of privacy when meeting in a cafe for a media photo op, and even if they had there would probably be a strong public interest in publishing anything they discussed – particularly if it concerned the election.
So I reckon it may well be ok legally to publish – unless there is an offence that I’m not aware of.
The last point – DPF, are you standing by your thinly veiled allegation that Labour or the Greens arranged this?
[DPF: I do not think Labour or Greens had anything to do with this, no. But after last time, they were natural suspects]
November 13th, 2011 at 9:09 am
NIck R,
I wondered about that last point too – apparently history DIDN’T repeat in this case, right DPF? If not, the classy thing would be retract (even if apologising would be a step too far, given there were grounds for reasonable suspicion when you wrote your first post).
[Late addition ... assuming this WAS a "private communication", that is:
"private communication—
(a) means 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; but
(b) 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."
Is a conversation in a cafe surrounded by TV cameras and media covered here?
On the legality of the taping ... the relevant law is in the Crimes Act s.216B(1): "Subject to subsections (2) to (5) [not relevant to this case], 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.”
The key word here is “INTENTIONALLY” – if the camera operator’s story is true (which is by no means certain), then there is a strong argument the recording was unintentional (as he was prevented from stopping the recording from going ahead). But if the story is false, then the recording was a criminal act. And if it was a criminal act, then the HoS cannot publish it – see s.216C:
“Subject to subsection (2) [not relevant to this case], 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; or
(b) discloses the existence of the private communication,—
if he knows that it has come to his knowledge as a direct or indirect result of a contravention of section 216B.”
November 13th, 2011 at 9:09 am
How effective then are the Diplomatic Protection Squad when a remotely controlled electronic device can be left this close to the Prime Minister?
November 13th, 2011 at 9:12 am
Thanks AG. How much do we owe you?
November 13th, 2011 at 9:15 am
That’s an excellent observation Sofia!
November 13th, 2011 at 9:36 am
From the Herald article:
The “freelance cameraman” appears to be blatantly lying here (and perhaps this is one reason why the Herald decided not to publish the contents, as it was questionably acquired and they know it).
1. So the “freelance cameraman” claims “Key’s security staff” stopped him from recovering the recording device. The recording device would likely have had to have been a wireless microphone transmitter (a common but essential piece of equipment used with videocameras), so did he say to “Key’s security staff” that he wanted to retrieve his “microphone”? If he said that I’m sure security staff would have allowed that (for obvious reasons). Instead was this “freelance cameraman” disingenuous and said to security that he wanted to remove “some equipment”?
2. Whilst it isn’t unusual to leave a wireless microphone transmitter “on” (prior to use), it is actually unusual to leave a wireless microphone transmitter “on” and inside a bag, because that indicates it isn’t about to be used and is using up battery power. Not unless the freelancer was intending to use it ….
3. Even if the wireless microphone transmitter was unintentionally “on” and left inside a bag (and thus unintentionally transmitting) and this was all “innocent” …. then the “freelance cameraman’s” story doesn’t stack up at all after this point because his videocamera’s wireless microphone receiver device would have to have been on and the videocamera (or recording equipment) turned “on” and “recording”. To make this clearer, this last aspect here indicates the recording could not have been made (even with the wireless microphone switched on and transmitting) because for the recording to be made as said here, a receiving device then needs to be deliberately turned on and the “camera operator’s equipment” also had to be on and recording.
4. So why would this other equipment be on and recording? Clearly the freelance camerman was intending to record the conversation!
5. Since the equipment was on and recording, how could this freelance cameraman then claim he “discovered” the recording “later”?
I use this sort of equipment myself in my line of work so know what I’m talking about. Whatever the device in the bag was, it was capable of transmitting hence why I say it normally would be a wireless radio microphone (eg a lapel microphone or discrete microphone). If it was another type device then have the Herald tell us what it was but a wireless radio microphone is commonplace.
November 13th, 2011 at 9:40 am
See Sections 216A to 216C of the Crimes Act:
http://www.legislation.govt.nz/act/public/1961/0043/latest/DLM327382.html
It makes things quite clear.
Bugging along with recording phone calls are illegal – penalty 2 years jail. Disclosure of the existence or content of the private communication is also illegal – 2 years.
On the facts available the cameraman clearly committed a crime under s216B. His excuse that it was an accident will not wash since he did not immediately erase the recording but instead disclosed its content to others – another crime s216C. The HoS and its journos have also probably committed a crime.
There are also Privacy Act considerations here. I disagree with DPF on this, he indicated ‘hypocrisy’ or ‘public interest’ was sufficient to release the recording. S216C makes this quite clear – it must not be disclosed. IMO the only circumstances it could be used was to help with solution of a serious crime, such as two people in a tearoom planning a bank robbery or murder. Even then this is theoretically an offence. The Prime Minister was a victim of this crime, this would be a serious aggravating factor for any sentencing – someone could well be facing jail or home detention time.
The cameraman and HoS staff may well be facing some heavy handed police investigations over this. This is especially as the Diplomatic Protection Squad would have been seriously embarassed over this incident.
November 13th, 2011 at 9:44 am
peterwn: see my comment at 9:09 am. I think the legal position is a bit more blurred than you assert (although Niggly’s comments are very relevant to that issue).
Also note … a breach of the Privacy Act is not a crime and not punishable in Court. There is a different enforcement regime for such matters – as Paula Bennett is discovering.
November 13th, 2011 at 9:52 am
This is brilliant. All those who may have missed the fact that John and John had a cup of tea, now surely know about it. And the message gets re-enforced every time it is reported. The fact that they may have spoken about the weather, fishing and how lucky Berlusconi is, is irrelevant and anything they did say would not have been critical or report worthy. (It would have been front page – stuff the consequences – if anything contentious had been said.). The real deal takes place in private.
November 13th, 2011 at 9:53 am
This guy, and the Herald who have been paying him, need to be investigated by the police. It’s not on from our media. It’s exactly like what happened in Britain, and I’m sure that everyone up to the top “knew” what was happening. Using a “freelancer” won’t get them out of this.
I think they should wait until after the election though, then destroy the Herald.
November 13th, 2011 at 10:00 am
DPF says: …..When pressed further on what would constitute massive wrongdoing, I gave the example of hypocrisy. I also said that for it to make the “public interest” argument, that is a different threshold to “the public would be interested.
David, thats still a major fail on your part here, ends justifying means etc etc, and since when has hypocrisy been any sort of crime anyway, crap example.
If the recording was made illegally and “anyone acts on anything” on that recording they are committing an offence.
I am just a wee bit taken aback here David, even if something was said that was criminal its not up to bloggers or any media to deal with it, at the end of the day blogs and newspapers are no different from chats around the watercooler i.e not that important.
And please, piss off with “public interest” the law was broken I hope the authorities get involved.
[DPF: To take an extreme example, if the conversation was “And after the election, we kill all the Mormons, are you saying that should not be revealed?”
November 13th, 2011 at 10:01 am
tristanb,
So, you are advocating that the Police delay their investigation until it is not politically embarrassing for the current government, and then “destroy” a newspaper on the basis it didn’t print what was said in a conversation held in a cafe whilst almost every representative the nation’s media watched/filmed/photographed it?
November 13th, 2011 at 10:06 am
AG
If your conversations were recorded illegally would you be happy?, simple question.
November 13th, 2011 at 10:09 am
David Parker said Banks and Key’s actions were “hypocritical” after the pair organised and stage-managed the “cup of tea” scenario to get the public maximum impact.
They have been hung on their own petard…
You can’t be hung on a petard. A petard is a bomb for blowing up gates in seige warfare. You can be hoisted (ie blown up into the air) by your own petard, if it goes off prematurely.
November 13th, 2011 at 10:11 am
[DPF: To take an extreme example, if the conversation was “And after the election, we kill all the Mormons, are you saying that should not be revealed?”]
Do we need to get that extreme? Imagine JK had sat down and said “Here we are Banksy, giving the morons what they want”, and JB had responded “Yeah – can’t believe they’re all falling for this one again” … surely as an ethical matter THAT ought to get reported, irrespective of whether the two participants in the conversation wanted it to be?
[Please note - i don't think that IS what was said ... if it had been, we'd be reading about it today.]
Of course, there is no general “public interest” defence to the offence in the Crimes Act of covertly recording/distributing a “private communication” … but I have real doubts that a tete-a-tete between two politicians in a cafe whilst being filmed/photographed by the nation’s media qualifies as such. And there is the question of whether the recording was “intentional”. So the authorities can get involved – but I doubt there’s much they can/will do.
November 13th, 2011 at 10:12 am
niggly makes some good points but if the cameraman can produce video footage shot whilst the conversation was taking place, then he can claim that he was unaware that the audio transmitter wasn’t on because he wasn’t wearing his headphones.
Maybe only when he played the footage back, did he realize the transmitter was on.
If he can’t produce this footage, he’s fucked.
Also, security personnel can be notoriously bloody minded, so if the guy used industry slang in reference to the microphone, the grunt possibly didn’t cotton on to what it actually was.
November 13th, 2011 at 10:16 am
DPF
The information would be taken to the authorities and in time come out into the public domain,just like any other informant, with your example and realizing that its extreme , a criminal offence has occurred the speaker would hit the cells prior to the election.
The fact is you can’t advocate action on an illegal recording of a conversation, and I mean you here in the personal sense no matter what was said, and ‘public interest” still does not wash
If this were accepted can you imagine how many mobile phones would be “accidentally” left in record mode at meetings.
November 13th, 2011 at 10:19 am
pauleastbay,
All due respect, a ridiculous question. Of course I’d be unhappy to have my private conversations recorded illegally. However, if I was sitting in a cafe talking to someone whilst representatives of the country’s media were filming me/taking photos/etc, I’d hardly regard that as a “private conversation” and I’d be bloody careful about what I said on the assumption it is likely to be reported. And so whether any recording was “illegal” or not would be very much in doubt.
Look – I’m not defending what happened here … it is pretty sneaky and not a practice I want to see become a standard part of NZ’s media behaviour. But on the other hand, claims that JK & JB’s “privacy” has somehow been grossly invaded are a bit OTT. IMHO.
November 13th, 2011 at 10:24 am
What’s Don Brash got to say about it ?
“I suspect there is nothing terribly sensitive in it.”
I believe you are suspect too Don, and know for sure there is nothing terribly sensitive in it because you orchestrated it !!!
At the very least you would have a right to hear it’s contents given it was your party Banks was repping at the meet.
November 13th, 2011 at 10:29 am
AG
Well, if its not such a big deal why hasn’t the Sunday Star Time come out and said this morning ..Pauleastbay was the individual that made the recording at this meeting and he works for such and such organisation and we can confirm that there was nothing on this recording that was not available to the other media who placed there dictaphones on the table in front of the two parties.
Obviously the two parties talked and talked of things that weren’t included in the photo op, there will have been socail niceities prior to the cameras being turned on.
Banks and the PM are experienced in the media but neither will be happy if the tape was rolling and they did not know they were being recorded.
November 13th, 2011 at 10:30 am
WHATEVER THE RIGHTS OR WRONGS (and clearly Banks/Key were wronged, or idiotic disclosure statements on election blurb are more important to Police than illegal recordings are under the Crimes Act) the whole episode is simply confirmation that the HoS has sunk beneath the crappy tabloid standards of APN and Fairfax.
November 13th, 2011 at 10:41 am
Pauleastbay,
I’m not following you there … as I understand it, there were no recording devices on the tables while the two talked (hence why this is the only story about what was said). But I’d note that an assumed absence of recording devices still is not the same as thinking your conversation is a “private communication” in terms of the Crimes Act.
Look, there are two questions here. One, was the recording illegal (at least, in terms of being an offence)? I’ve given reasons above as to why I think it most probably was not. If you think different, that’s cool … we won’t know for sure unless and until someone gets arrested and tried. The second question is, was the recording ethical? I don’t think it was … and neither does the editor of the HoS, which is why they aren’t publishing its contents. But, the point DPF (and I) would make is that this issue could be overridden if the recording revealed something “in the public interest” to know.
November 13th, 2011 at 10:48 am
I very much doubt that there is anything sensitive on the recording. Firstly, Key and Banks aren’t that close. Secondly, they knew that it was not a very private location. The cameras could have heard then through the window or they could have lip read what they were saying.
That said, it is dishonest to bug a conversationand I have no doubt that it was intentional. The person responsible should be held to account.
November 13th, 2011 at 10:50 am
It was probably recorded. Yes. But any photo or film I have seen of this ‘cup of tea’ is largely obscured by a forest of waving microphones. What is the real point here ?
November 13th, 2011 at 10:50 am
What intrigues me is that:
1. The cameraman initially claimed to be working for the Herald.
2. The Herald immediately denied the cameraman was working for them.
3. The Herald is protecting the identity of the cameraman.
It’s all very strange.
[DPF: I understand he freelances for the HoS and the Herald Online but not the NZ Herald]
November 13th, 2011 at 10:54 am
Agree with Sofia, and to take it further, what if it was an explosive device!!
How could the DPS leave anything lying around like that. Some heads should roll after this as the Sam Mahon dream could have become reality.
Would you sit down at a cafe table and not question a little black bag that someone had left behind?
November 13th, 2011 at 10:59 am
When does a newspaper need camerapeople…photographers sure, cameramen ?
November 13th, 2011 at 11:07 am
The HoS getting a legal opinion and saying they might have been fine, is BS, the fact they repeated that the tape existed is as illegal as publishing the tape. So they have already broken the law IF the recording was illegal. From that you can conclude there was nothing on the tapes.
My guess the device was really aimed at capturing the before and after conversation/comments, not the official on the record tea party conversation. Somebody was looking for a “H” bomb to use in the next week or so.
November 13th, 2011 at 11:09 am
AG
Take your point re; illegality/ ethical etc but the phrase “public interest” frankly makes me ill.
In reality for anything in his conversation to be of ‘public interest’ they would have had to be discussing something illegal and if that was the case the editor would then go to the police with this information who would act and then the Courts would decide.
Its not our hosts place or the newspapers to decide what is of ‘public interest’ in this conversation . Anything that was not illegal was between Banksy and the PM ( and I believe you would still have issues about admissibility there ), I for one will now wash the car secure in the knowledge they were not speaking of eradicating sectors of New Zealands society or making walk shorts compulsory.
November 13th, 2011 at 11:18 am
This wouldn’t be an issue at all in the USA. Thanks to that beacon of freedom, the First Amendment!
Why do some people claim to love freedom, when it turns out they really don’t?
If it’s embarrassing, then that’s the definition of news. If it”s not embarrassing, where’s the problem?
It doesn’t get any more public than a cafe in Newmarket, surrounded by onlookers and the media. If you want privacy, talk in private. Problem solved.
November 13th, 2011 at 11:21 am
“Its not our hosts place or the newspapers to decide what is of ‘public interest’ in this conversation.”
Actually, yes it is. That’s the point of having a free press – they get to make judgment calls over what information they present to the public and what they don’t, balancing a whole raft of issues … one of which is how the information was obtained and any privacy issues raised. And before we condemn the way the press exercises that judgment, note that the HoS DID NOT publish the information it obtained!
Regarding the legality of the recording, Johnathon Milne gives a more complete description of how the recording was obtained here: http://www.nzherald.co.nz/opinion/news/article.cfm?c_id=466&objectid=10765710 … insofar as he’s telling the truth (and it sounds quite credible to me), I’d confidently state that there was no illegality involved here.
As for why the HoS has a video camera following politicians … look on their website. They have lots of little video clips embedded – it’s all a part of newspapers trying to bridge the digital divide and survive in a post-print era.
November 13th, 2011 at 11:34 am
AG
You were doing brilliantly until……………..they get to make judgment calls over what information they present to the public and what they don’t, balancing a whole raft of issues ………………… media / balance ,please.
I was referring to …in this conversation… i.e pertaining to any off camera yarn that the two had. I am presuming you know that ‘events’ like this meeting are anything but spontaneous, the entire thing is scripted but there will have been talk outside the ‘presentation’ that was private and this is the crux .
And I just bet the herald can justify the recording.
November 13th, 2011 at 11:39 am
Actually Gee90, the 1st amendment to the Constitution does not guarantee absolute freedom of the press. The press are still subject to defamation and copyright law/restrictions. Moreover, wiretaps and illegal listening devices are currently a very hot button item both in the US AND NZ (just ask all those undercover cops in NZwho tried for a retrospective law on their illegal devices). I do agree that a meeting in the middle of a Newmarket Café has minimal expectation of privacy EXCEPT that precisely because it was such a stage-managed photo-op. Therefore apart from then the two said “roll camera” they had an expectation of not being recorded.
November 13th, 2011 at 11:54 am
Pauleastbay,
Does it make no difference to your analysis that the HoS DID NOT PUBLISH THE CONTENT OF THE RECORDING? I reverted to capital letters there because it seems very weird to snort with disdain at the idea of media ethics when in the event at hand the paper decided that ethical considerations meant the information should not be made public. In other words, they balanced the competing issues and chose not to proceed.
Now, of course, if you really don’t think the media can be trusted to make these sorts of decisions and that they are running amok, you can do something about it. Labour’s broadcasting policy involves “consider[ing] the regulatory mechanisms for content carried on broadcasting and telecommunications networks. It may be that the functions of the Broadcasting Standards Authority, the Press Council and the Advertising Standards Authority could be brought together.” They’ll welcome your vote.
November 13th, 2011 at 11:57 am
AG
They probably did not publish because the recording was illegal and they were scared, dollars not ethics, hows that.
November 13th, 2011 at 11:58 am
From http://www.nzherald.co.nz/opinion/news/article.cfm?c_id=466&objectid=10765710
That was good of reporter Johnathon Milne to confirm that it was a “radio microphone” that was used to “inadvertently” record the conversation!
But a (wireless) radio microphone doesn’t record audio (conversations), as said before the radio microphone receiver unit also has to be on, the videocamera on and set to record.
(An analogy: It’s exactly the same as a TV transmitter broadcasting a tv programme (substitute = radio microphone transmitter in this incident), but unless you turn on your TV set (substitute = radio microphone receiver) you won’t see or hear the tv programme. Similarily if you don’t turn on your DVD recorder or VCR recorder (substitute = videocamera) you won’t be able to record the tv programme being broadcast. Turn on all this gear on and you can watch the programme live or later. (Substitute = turn on the radio microphone transmitter AND receiver AND videocamera and you can record JK’s and JB’s conversation).
Granted, it may be possible that the freelance cameraman might not have “realised” his videocamera was on and recording …. but any competent videocameraman would check. After all, that’s what he was there for.
Also modern (and recent digital) videocameras have audio VU meters in their LCD display to show that audio is being recorded. This is because audio is critical to videocamera recording, for no audio recorded, then the video footage without sound is next to useless (especially in this context)!
I think Johnathon Milne is deflecting this by claiming it was all “inadvertant”!
(Incidentally I don’t think this is a Labour/Greens spy issue, more like an eagar freelancer because they make their money by onselling their recordings to the media (also for their world is very competetive … just look at the paparazzi)! In fact if anyone here videoed a car crash or fire, you can on-sell your footage to the media (TV3/TVNZ etc) and they will pay you hundreds of dollars!
November 13th, 2011 at 12:03 pm
… excluding morals and the law …. in fact if anyone here happened to have “inadvertantly” recorded JK’s and JB’s conversation, one could sell that recording to the HOS for a nice tidy sum of money! Which is probably what happened in this situation! (Obviously there was no point selling it to TV3/TVNZ because there was probably nothing controversial said at the JK/KB meeting hence TV wouldn’t see the point in broadcasting it. Jonathon Milne though, if I recall correctly, seems to be interested in these sorts of scoops though…).
November 13th, 2011 at 12:07 pm
niggly says:- “But a (wireless) radio microphone doesn’t record audio (conversations), as said before the radio microphone receiver unit also has to be on, the videocamera on and set to record.”
Not necessarily. If the cameraman had been recording other video footage at the same time as the conversation was taking place without the use of head phones, then he would have inadvertently recorded the audio from Keys conversation, if the transmitter was left on.
As I stated in my 10.12 post, if he can produce this video footage, then he can exonerate himself.
November 13th, 2011 at 12:07 pm
Or was that Jonathon Marshall?
edit: Scott – possible, but unlikely as vidcams have VU meters. But hey, I wasn’t there so won’t claim I know what really happened etc.
November 13th, 2011 at 12:10 pm
“dollars not ethics, hows that.”
I’d say pretty good eastbay.
November 13th, 2011 at 12:23 pm
AG – I stand by my interpretation. The meaning of an enactment must be ascertained from its text and in the light of its purpose – s5(1) Interpretation act 1999.
On this basis, just because he allegedly accidentally made the recording (in breach of s216B) is insufficient to to render ineffective the disclosure offence in s216C. Otherwise it becomes ridiculously easy to circumvent the legislation and that was not the intention of Parliament. The whole purpose of s216C is to protect the victim who is the subject of unlawful interception/recording by limiting the scope of disclosure. If is preferable from the victim’s point of view that say only 10 knows about it than say one million. It would be contrary to the purpose of s216C to argue that because say10 people know the content of conversation, no further offences are committed if it is unlawfully disclosed to more people.
Regardless of whether the cameraman could defend the s216B recording offence, he is caught fair and square by s216C(disclosure) on the information I have seen. He also appeared to have self interest at heart since presumably he would be hoping for extra work and/or remuneration from the HoS publishers. Incidentally Claire Curran’s media policy would be just the thing for clobbering HoS over this, and a Labour Prime Minister in a similar situation would no doubt look to a remedy there.
OK, he may not have specifically breached the Privacy Act, but the principles of the Privacy Act add further weight to the purpose of s216A-C of the Crimes Act.
People should not act on AG’s comments, they could get you an a heap of hot water. if anyone is going to play close to the wind over this, they should get proper legal advice first.
November 13th, 2011 at 12:29 pm
No, the police shouldn’t delay the investigation. But I’d delay the destruction of the Herald, because I would like a nice Christmas present.
The Herald should be destroyed because it arranges secret recordings. I think that media outlets engaging in such behaviours should be punished.
November 13th, 2011 at 12:30 pm
Pauleastbay,
We’re going around in circles now, so I’ll back out here.
peterwn,
You’re welcome to play bush lawyer (as am I), but given that s.216C only applies “where a private communication has been intercepted in contravention of section 216B”, the fact that (i) it is highly questionable this was a “private communication” and (ii) it is highly questionable there was any intent to record it means it is very unlikely that the initial recording breached s.216B and hence the HoS aren’t covered by s.216C.
But, as you say, anyone who relies on what they read on a blogsite comment thread is a moron who deserves everything they get.
November 13th, 2011 at 12:33 pm
On the question of legality, the Privacy Act is a red herring – it does not apply to news activities of a news medium (see definition of agency).
November 13th, 2011 at 12:50 pm
Freelance Liar.
November 13th, 2011 at 1:49 pm
Just bloody leak it on Youtube! Apparently other people in the cafe could hear the conversation. Who would know where the recording came from?
November 13th, 2011 at 2:41 pm
So it would appear it was Bradley Ambrose that did it, there is no doubt in my mind that it was purposely done.
November 13th, 2011 at 2:52 pm
AG – re yr 12.30 comment.
(i) – Whether it was a private conversation – all conversations in a cafe would have an element of privacy – the patrons would not expect the joint to be bugged and their recorded conversations to be played on the 6 o’clock news. There is a whale of a difference between bugging and unintentional overhearing from the next table.
(ii) – whether there was intent to record. See ‘niggly’s’ 9.36 comment. This indicates there was a clear intent to record the conversation – why was the camera rolling at that point when it was looking at nothing? Even though he allegedly did not mean to make the recording, at best this could only deflect culpability from himself (ie lack of criminal intent with respect to 216B). It cannot make an illegal recording legitimate, even if the recording was accidental. Hence he is like an opossum in headlights with respect to disclosure (216C).
Upon realising his mistake the cameraman should have deleted the content. If the video was legitimate but not the audio he should have arranged for the recording to be dubbed less audio before passing it to journalists.
When viewed in the light of ‘News of the World’ revelations, the camerman’s behaviour was the start of a horrid slippery slope. One has to wonder where else HoS has been ‘gung ho’ with this sort of thing.
November 13th, 2011 at 4:04 pm
@peterwn,
“Even though he allegedly did not mean to make the recording, at best this could only deflect culpability from himself (ie lack of criminal intent with respect to 216B). It cannot make an illegal recording legitimate, even if the recording was accidental. Hence he is like an opossum in headlights with respect to disclosure (216C).”
Reread s.216C. It requires a breach of s.216B. So your comment makes no sense at all.
I’m done with this thread now.
November 13th, 2011 at 4:04 pm
Scott Chris @ 8.29
Why is, ” F E Smith” your go to guru on legal matters ?
Surely he has already proved himself to be an apologist for the status quo
in the hope that Sian will notice him and may, one day raise him out of grey obscurity.
November 13th, 2011 at 4:16 pm
AG
Pity that you are done with this thread now.
Funny that, just as common sense buries you.
Hoisted the white flag have you dear ?
You can talk up a good storm on the surface but there is actually no one home when
it comes to backing up your shallow point of view.
Stand up. Defend your point.
Or Foxtrot Oscar as you seem to have done.
Have another try.
Surely you must have something more about you?
November 13th, 2011 at 4:30 pm
bereal,
Here’s another try. You’re a dick who doesn’t understand the law (which has NOTHING to do with common sense) works. So here it is, typed slowly for you so you can understand what is being said.
(1) To breach s.216B, you must show all elements of the offence have been met.
(2) There is significant doubt whether at least some of those elements have been met (although DPF most recent post puts a different light on at least some of those elements).
(3) If there is no breach of s.216B, then s.216C (which prohibits disseminating illegally recorded conversations) does not apply.
Got that, dearie? And now do you dare to step back up to the plate, so I can send you further over the ballpark wall?
November 13th, 2011 at 4:45 pm
Oh dear AG
First off. I didn’t call you names, “dick”
Second off. Why can’t you back up your shallow argument.
Third off. You are funny. Send me over the ballpark wall. WTF .
Like i said, you are funny.
I thought you said you were done with this thread.
Stick to your convictions.
One minute your,” done with it.”
Next minute your just done.
Give up mate. Your not up to it.
November 13th, 2011 at 4:55 pm
Sure, bereal. What a winner … call me out, then lose, then bitch about the fact I dealt to you. Go back to the bush leagues, loser.
November 14th, 2011 at 9:27 pm
The HoS have acted shamelessly here. Surely they knew that releasing a statement saying they had a recording that they weren’t going to release would generate more interest than coming out with a couple of lines saying “Brash won’t make it into parliament, who will be leader, John?”
If the HoS had any integrity they would have immediately said they wanted nothing to do with the recording, while simultaneously advising National and ACT that such a recording existed. I hope the police give them the cumuppance that they are well due.