Scoop Election 08: edited by Gordon Campbell

Gordon Campbell on the ethics of taping politicians

August 7th, 2008

Pretty doggedly, the mainstream media have stuck to their guns and kept the storyline on the secret tapes fiasco firmly focused where the National Party would prefer it to be – on Who Taped It, rather than (a) what is on the tapes or (b) what such content might indicate about the mindset and agenda of the likely next government.

Bear with me. I know, there is nothing more unedifying than journalists banging on about ethics. A profession that habitually relies on stolen or leaked documents and emails, or on sources covertly dobbing in their superiors is on shaky ground when it pontificates about the ethics of others. Still, I can’t help thinking : is it more unethical for a delegate to tape someone speaking candidly – or a for a political party to dedicate its campaign efforts to not being candid, and thereby assisting the public to deceive itself ?

After all, the public interest – not property rights – lies at the core of this issue. A defining aspect of 21st century politics is the pervasiveness of political spin, and the tactics of media manipulation by political parties. Frankly, if a lone activist with a $200 dictaphone can defeat the massed phalanxes of p.r. bullshit, and thereby give the public a clearer idea of what the next government may actually do when elected, then surely that’s all to the good – isn’t it?

Its not as if National hasn’t enjoyed an armchair ride from the media up to and including last weekend’s party conference. Editorialists have been mute about the party’s tactical reluctance to reveal its plans for the country. Remarkably, the mainstream media has also been silent about the wisdom of National’s deliberate plan to increase our foreign indebtedness ( to pay for tax cuts ) at a time when New Zealand is already running a perilous current account deficit of 7.8 % of GDP. One can only imagine the editorial thundering if the government was using this foreign capital to say, build affordable housing. No, the country would certainly be deemed unwise to go further beyond its means for that purpose.

So far, the public has been the winner. In the wake of the taping, National’s response this week has actually been quite informative. We now know more about what it plans to do about Kiwibank, Working for Families and Kiwisaver than we did before the tapes were leaked. This has been a big advance towards an informed electorate, in that the tapes and their aftermath have told us far more than the National Party’s skeletal policy releases.

In some respects, National politicians brought this fiasco upon themselves, by being so in thrall to their marketing strategists. If National wouldn’t tell the public what it had in mind, then it was leaving it up to some enterprising soul to try and find out. What the public have found out – and what the Bill English, Lockwood Smith and Nick Smith tapes have in common – is that National truly believes that its real intentions are politically toxic, and therefore, it is prepared to wait patiently and eventually use the machinery of government to make those intentions more palatable to the public.

This is deeply ironic – or hypocritical. Remember, many of National’s attacks on the Electoral Finance Act in general and on Labour president Mike Williams in particular were based on the evils of an incumbent government using the machinery of state to peddle its messages. Yet that is precisely what Lockwood Smith had in mind when he said on tape :

There’s some bloody dead fish you have to swallow to be able to get into government to do the kinds of things you want to do… and you have to balance up what really matters. If you try to do everything differently you’ll scare the horses and under MMP it’s very hard to win. Once we gained the confidence of the people, we’ve got more chance of doing more things.
We may be able to do some things we believe we need to do, perhaps go through a discussion document process. You wouldn’t be able to do them straight off… I’m hoping that we’ll do some useful things that way, that might not be policy right now.

Hmmm. Don’t tell people now. Wait until you’re in power. Then use the platform of government to do what you REALLY had in mind all along, but didn’t dare risk saying out loud because people wouldn’t have voted for you in the first place. Isn’t that a bit umm… unethical ?

Certainly, it seems more unethical than taping a conversation with a politician who freely volunteers something that is in the public interest, and that they would otherwise deny. And is taping such a conversation more or less ethical than National’s subsequent response to date – which has been to publicly accuse Labour of the taping, before even looking at the security tapes to discern who actually did it?

Ethics. There are various levels involved. Level one I suppose, entails a tit for tat argument. Some enemy taped and broadcast the two Smiths and English in private conversation. Some enemy also taped and broadcast Mike Williams speaking privately this year at the Labour Party annual conference. Moreover, TVNZ taped and broadcast Finance Minister Michael Cullen speaking in what he thought was a not-for-broadcast situation.

I’m not offering an ‘ everyone’s doing it, so it all balances out in the wash’ argument. Rather, I’m saying that such taping now happens and was happening before the fateful cocktail party last weekend. Therefore, caveat emptor is the only safeguard. Outside the privacy of their own homes and offices, politicians need to watch what they say. Especially if they don’t want the public to know what their intentions are.

Ethics, level two. Was the taping illegal ? According to TV3 – which has been the conduit of the tapes into the mainstream – the taping was not illegal, since the person authorizing the subsequent broadcast was part of the conversation. National has little hope of succeeding on the trespass front either. If paying the $170 conference tab was all that it took to get into the cocktail party, and anyone could buy such a ticket – where’s the trespass?

Was it ethical not to let the politicians involved know that they were being taped ? No, it wasn’t. At least, not unless the public interest involved was sufficient to justify the means, and not unless there was no other possible avenue to get the information. Personally, I think both those extenuating circumstances existed with regard to the cocktail party taping.

Ethics, level three. Did English or Lockwood Smith say anything that contradicts National’s public statements about say, privatization? No. National had said that no privatizing of state assets would occur during its first term, and English was more or less saying the same thing – about Kiwibank at least. However, that really wasn’t the ethically dubious part of the tape.

Kiwibank was only one example of a wider policy – extolled by English, Lockwood Smith and Nick Smith in virtual unison – of not advising the public pre-election, of National’s post-election intentions. In that respect, National is operating in the realm of what lawyers might call ‘non–lying deception’ and what the Catholic Church – to which English owes some fidelity – would call ‘a sin of omission.’

In his article Lying, Misleading and Falsely Denying : How Moral Concepts Inform the Law of Perjury, Fraud and False Statements ( Hastings Law Journal, Vol 53, 2001) ) Rutgers Law Professor Stuart P. Green explains how ethical distinctions [ the ones relevant to the English/Smith tapes ] play out in the area of criminal law.

Based on what Green says, the three National Party politicians concerned could not be accused of of perjury, or anything else that entails lying. However, a process of facilitating self deception carries a legal and moral stigma that could, in other contexts, render one liable for say, a mail fraud conviction. As Green puts it :

For example, a defendant cannot be convicted of perjury or false declarations unless it can be shown that she has made an assertion that is “literally false”-i.e.. that she has lied. { And National did not lie ] By contrast, conviction for crimes such as mail fraud, securities fraud, and false pretenses requires only that the defendant have engaged in conduct or speech that is “deceptive”- i.e., there is no requirement either that there be an assertion. or that it be literally false.

Non-lying deception entails the fostering of an untrue perception, when one had the means and the opportunity to correct it. It is the enabling of people to draw the wrong conclusion, for one’s personal gain. Yes, that does sound a lot like what Bill, Lockwood and Nick were advocating as a wise pre-election gambit for National.

In this respect, the Catholic Church distinction between “sins of omission” and “sins of commission” is quite illuminating, when applied to the taping controversy. In brief, sins of commission are those involving deliberate action – say, with the altar boy. Sins of omission occur for instance, when you culpably omit the action or information that allows a wrong to be committed, or perpetuated. As the Catholic Encyclopedia says :

“Omission” is here taken to be the failure to do something one can and ought to do. If this happens advertently and freely a sin is committed. Moralists took pains formerly to show that the inaction implied in an omission was quite compatible with a breach of the moral law, for it is not merely because a person here and now does nothing that he offends, but because he neglects to act under circumstances in which he can and ought to act.

Is it a sin of omission to tell voters only what you want them to know, and thus empower yourself to do something afterwards that those same voters may well not have condoned, if only you’d fully informed them beforehand ? I think so. If National insist on getting on a high horse about ethical behaviour, then what English and the two Smiths were advocating on those tapes seems clearly to amount to non-lying deception, and is thus a sin of omission. Of course, it is now up to English as to whether he feels obliged to tell that sin in the confessional box – where he should be safe enough from being taped.


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    1. 18 Responses to “Gordon Campbell on the ethics of taping politicians”

    2. By Travellerev on Aug 7, 2008 | Reply

      I have spend a year studying Mr. Key and his marry band of Industrial and Corporate friends.

      I think it is perfectly reasonable for private citizens to do what the media refuse to do. As private citizens we should be actively involved in our democracy and that means keeping our “leaders” under constant scrutiny.

      Especially if they come out of nowhere and seem to be under the protection of the mainstream corporately owned media. We have to become our own media and thank god we have the internet to assist us with this.

      I keep a blog and have just published the first of a three part response to the recent editorial propaganda piece of the 19th of July in the NZ Herald.

      If you want to know more about the real John Key than please read this:

    3. By John on Aug 7, 2008 | Reply

      Loose Lips Sink Ships was the title of a 2nd WW song tht was revived not so long ago in an Australian television series based on wartime Sydney.

      The hapless National party trio and their leader could well find a copy and advise the other members of the party to take heed.

    4. By MurryCave on Aug 7, 2008 | Reply

      The issue of the taping raises some fundamental issues and to me the ethical issue is moot. As the Mosley defamation case recently pointed out there are limits to public interest and those limits were overstepped here.

      The leaks didn’t tell us anything new; MMP means that a Parties policies can be amended due to the necessity of post election coalition forming. Kiwi bank Kiwi rail et al are high risk high cost ventures as can be seen by the NZ Post annual statement and the high real cost of buying back the rail network.

      So now we have two lots of emails being sucked out of a particular party’s internal network and covert taping of conversations. This suggests a systematic and professional attempt to subvert the democratic process and that is, in my mind the critical public interest issue. Who was to blame? Who has most to gain? Who has the resources and capacity to do such things. The finger there points in only one direction. Sure it’s more subtle than Robert Mugabe but if the objective is the same then the same principle applies.

    5. By Mel on Aug 7, 2008 | Reply

      Thank you to whoever had the courage to expose these liars in the absence of an independent and honest media.
      This is a typical tactic of the right wing: lying either outright or by omission in order to get elected, then doing whatever they want. It shows a deep disdain for the people. USA Republicans have been so successful at it that the Democrats have adopted the tactic too, as in the 2006 election when many voters disgruntled with the neo conservatives assumed that a Democrat controlled Senate and Congress would end the illegal invasion of Iraq and impeach Bush and Cheney. They were sorely disappointed. At least MMP helps to give the people more of a voice, unlike a purely two party system, although that seems to be another thing the Nats plan to change. New Zealanders who think that it’s time for a change of government should look in the direction of the USA to see how well an entirely privatized system actually works (there they even have a private army, Blackwater). It doesn’t. There is a fundamental conflict of interest between the needs of the people(health care, education) and the lust for corporate profit. We already know that the so-called trickle down effect doesn’t work. The rest of the world is moving in the direction of more government ownership not less, after all, if the taxpayers have to pay to bail out the financial institutions as they are in Britain and the USA, why shouldn’t they own them? Otherwise it’s just corporate welfare and hand outs.

    6. By Dan on Aug 7, 2008 | Reply

      I’m shocked. After all, the international news media have done such a sterling job of keeping politicians honest, seeking the truth like a ferocious terrier and giving PR spin the relentless mocking it deserves.

      It’s disgraceful that this amateur has, er, made the media look like… um… amateurs? We don’t want to know what politicians will actually do with our tax dollars and votes. Ignorance is Bliss!

    7. By Katherine on Aug 7, 2008 | Reply

      Oh get a grip MurryCave.
      Robert Mugabe uses violence to intimidate his opponents – what a stupid comparison!
      It was pretty foul of National’s supporters (not the National Party itself I note) to hire private detectives to follow and dig up dirt on Helen Clark and her husband around the time of the last election. It’s ridiculous to assume the Labour Party would be behind the taping – that would be jumping to a silly conspiracy theory.
      There are many people on the right as well as the left out there who feel strongly about the potential outcome of the election and in a democracy, they’re entitled to use whatever legal means are available to them. Democracy isn’t perfect.
      Sure, it’s rotten to use underhand methods to get or keep power…

    8. By Patricia McCarty01nz on Aug 8, 2008 | Reply

      Anyone who would like to know more about the corporate capitalist ethos of Keys, Brash, Douglas, Prebble, Richardson and others in the National and Act political parties and their adherence to the Milton Freidmanite Chicago School of Economics plan for New Zealand and the world, should read ‘The Shock Doctrine’ by Naomi Klein. Then, I promise you, the asset sales of the eighties and ninetees and now the Nats secret plan to eventually sell Kiwi Bank, will become apparent in its full ‘logic’.

    9. By Ian MacKay on Aug 8, 2008 | Reply

      Thanks Gordon. A balanced view for a simple learner. Has Travellerev uncovered a smoking gun? Very compelling Travellerev

    10. By pstu on Aug 8, 2008 | Reply

      The professions of outrage among Gnats would be more convincing had they not quietly swallowed their consciences with respect to Exclusive Brethren funded interference in the last election.

      The truly sad thing about the whole fiasco is that clearly neither major party has anything resembling a strategy to out the country back on its feet. All the Labs and Gnats have to offer the country is a choice of which bits to sell off as they wreck the place.

      If we had a real government, most of this lot would end their days in prison. And a good thing too.

    11. By Iain Parker on Aug 9, 2008 | Reply

      The freedoms of the basically decent majority of this nation, the non-corrupt businesses and citizens as opposed to the corrupt few, have never been under greater threat in our entire short history. The International Commercial Aristocracy and their locally recruited co-operatives who are looking to profit from further manoeuvring this nation into a position of insolvency in order that we have to sell more of our necessities of survival, urban water supplies included, to plundering subsidiaries of the privately owned corporate central banks. The current worldwide debt crisis is quite simply the multilayered international banking system, via their corrupt Fractional Prudential Reserve Regulations, have loaned most every nation more “Created Credit” than the “Real Sectors” of those nations, NZ included, have the physical means to ever repay. Under Labour we suffer them via puppet strings, as although the current Labour executive had integrity, they did not have the knowledge to counter a Treasury, RBNZ and Debt Management Office still infested with bureaucrats pushing the unfettered free market mantra, under National we get them back in the drivers seat.
      Those that recorded those conversations are defenders of Democracy and affiliated members of the Humanist movement.
      Both Labour and National hold onto the secrets of their parts in the Central Banks “Debt Based Monetary System” which has gained so much influence over our economic and social policy our Parliament has become little more than a thing of ceremonial token gesture, neither will publicly use these “Nuclear” secrets against each other, because they know if the basically decent majority were to find out, they would quite probably both be destroyed. To research the only party in NZ that is seeking to inform, let alone be part of a worldwide movement for reform of international banking practice go Here

    12. By Peter Parker on Aug 9, 2008 | Reply

      If there is no issue with secretly taping people, why haven’t these people identified themselves and taken responsibility for their brave actions in exposing the truth. Or are they just as I suspect nothing more than cowards. Get out from behind that curtain of misguided sense of righteousness be accountable for your actions. If what you did was so right stand up and be counted, stop hiding!!


    13. By travellerev on Aug 12, 2008 | Reply

      Thanks Ian,

      And two more to come.The Asian crisis and the Subprime crisis. Boy, is JK dirty!

    14. By travellerev on Aug 12, 2008 | Reply

      And all from the horses mouth. Incredible, the arrogance of the man, he must really think we are all thick as brick. LOL.

    15. By travellerev on Aug 12, 2008 | Reply


      You are so right. This is by far the most important election this country has ever faced.
      Even if you don’t like all off labours policies. If you vote National it’s the end of NZ as an (reasonably) independent country. It will be plunder for the international banking elite and abject poverty for the rest of us.

    16. By Carey on Aug 14, 2008 | Reply

      How precious – a bunch of bleeding socialists and a media pigmy espousing ethics!

      When will you people wake up and realise that party politics are here to stay, with all the compromising evils that comes with them.

      National may not have the answers for our future – but Labour certainly doesn’t.
      So do what New Zealanders have always done and vote out the ‘party’ we don’t want in power.

      Lets face it we’re an apathetic bunch, but we love to poke the blame stick at those that do get off their butts in an effort to make a difference.

      As for voting National to end NZ’s independance – Hello, Helen has been taking that away from you for the last 9years…

    17. By Iain Parker on Aug 15, 2008 | Reply

      I could not agree more Carey, because of the unfettered free market and debt based monetary system that is now embedded in our central advisory agencies, you will change nothing behind the scenes by voting for either Labour or National. I only hope the people of New Zealand will finally wake up to that after just swapping repeatedly from one disaster to another, explore the other options, like the only party in this country with knowledge that still has its integrity intact, The Democrats foe Social Credit or

    18. By Kobold on Aug 26, 2008 | Reply

      This whole broohaha has been rather refreshing. It is nice to actually hear what some of our politcians really think without all the PR grooming, spin and weasel words. English seems to be in two minds about the sale of Kiwibank – he admits it’s doing well – but admits some of National’s supporters want it sold.

      Wouldn’t the pertinent question then be to ask National why it’s supporters want assets sold, and debate this issue, rather than all the media hand-wringing about the ‘morals’ of taping English? The later sounds more like sour grapes that most media were scooped on this story.

      The other thing to come out of all this is the utter contempt senior politicians have for the voting public – and Labour is just as bad as Lockwood Smurf in this regard. Perhaps elected officials should be restricted to a maximum of two consecutive terms in office, to prevent hubris, and ‘right to rule’ overcoming the ‘duty to serve’ which, alledgedly, prompts them to run for office in the first place.

    19. By brent on Aug 26, 2008 | Reply

      Gordon Campbell writes the stories. Do we have to have his name splashed on everything that makes him like some sort of celebrity. Who the hell is he anyway?
      Couldn’t just a normal headline suffice.

      Can while were on the Politics bit, why can’t he post an accurate poll of every single party represented in this eelction, the data is pathetic so far.

      [Gordon doesn’t write the headlines or do the polls, but aside from that your charming feedback is noted. When we do put up polls we can only work with the publicly available information. I’m sure several registered parties have yet to have any person vote for them in a media poll; on the other hand some that aren’t registered have.
      – Lyndon

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