Scoop Election 08: edited by Gordon Campbell

On whether politicians should have the same rights to privacy

November 18th, 2011

Eight days before an election. The Police are poised to search major newsrooms to try and validate the government’s determination to conceal (at least until election day) the evidence that the Great Leader is saying one thing in public and something quite different in private.

One can safely assume that if the Great Leader in question had been Helen Clark, we would be hearing quite a lot from John Key, Steven Joyce and the Act Party about jackboots and the totalitarian state and rampant socialism and the public’s right to know.

One can safely bet that many Police officers are venting their feelings in private about their work being politicised in this way – especially when, in order to justify this use of Police resources, John Key claimed yesterday that the Police have got spare time on their hands, thanks to his government’s successful policies on crime.

No one ever thought it would be easy to balance the issue of privacy on one hand, and the public interest on the other, concerning what the Epsom tape contains. The public interest in the Epsom tape goes well beyond mere curiosity. Arguably, the individuals concerned are not in the same category as ordinary citizens. The more ‘presidential’ our politics become, the more the personal views, style and charisma of party leaders become political commodities.

Just as the Atkinson case a few years ago (regarding media criticism of David Lange) raised the bar as to what constitutes defamation of politicians, the same limiting argument could conceivably apply to whether politicians’ have the same privacy rights as ordinary citizens – especially when the communications at issue involve comments directly relevant to the public roles of the politicians concerned. Otherwise – as is apparently happening in the Epsom case – the right to privacy can be invoked to safeguard a deliberate, elaborately staged process of misleading the public.

Clearly, each case would need to be assessed on its merits, but the courts should perhaps be invited to consider applying an Atkinson type distinction to the privacy rights of politicians.

Largely thanks to the efforts of legal commentators such as Andrew Geddis on Pundit and Steven Price on his Media Law Journal blog it seems likely that there are sufficient extenuating circumstances to conclude that the taping could well have been accidental. This makes the taping neither unethical or unlawful, as the government keeps insisting it was – even as the Police scurry around trying to find evidence to verify that assertion.

The venue was sufficiently public, and the compliance with the command to leave the premises was sufficiently voluntary (especially given that the cameraman who allegedly was outside taking pictures and didn’t hear the request to leave) that media outlets would be on reasonably safe ground if they went ahead and published the contents.

As I mentioned the other day, the Dominion Post brushed aside court orders and published transcripts of the secret taping of the Urewera defendants, even at the risk of prejudicing the rights of those defendants to a fair trial. This time, it appears unwilling to run of the risk of prejudicing the right of politicians to mislead the public, all the way to the ballot box.

The Gender Voting Gap

In the past, the centre left could count on a disproportionate share of women’s vote, especially while Helen Clark was Prime Minister. The explanations as to why more women tended to vote centre left while more men tended to vote centre right were never particularly illuminating. The women as empathetic/homemaker stereotype supposedly meant that women were more aware of the social impact of economic policy, while men were more attracted by economic policy per se. In the age of John Key, that gender gap in favour of the centre left has allegedly disappeared.

As a result, government policies that might have rallied women voters in the past do not seem to be getting any traction at all in this election. The recently unveiled social welfare reforms for instance, will impose a benefit cut on some DPB recipients. Once their youngest child turns 14 such parents – and most of them are women – will be shifted to the lower Job Seeker payment.

Meaning: just as kids head into the costlier teenage years, solo parents will have less money to support their children, even as they are being made to chase illusory jobs. Behind the smokescreen of a one-off increase, the government is also cutting its annual allocation to women’s refuges. This will amount to a $700,000 reduction in funding for such services as safe houses and child advocacy work.

On both counts, women are being made to bear the brunt of domestic violence, relationship breakdown, divorce and the care of children – and are being treated punitively (and in miserly fashion) by the state while doing so. This seems to be the true face of the “compassionate conservatism” that we hear so much about. In reality, it looks like misogyny with a smiling face.

********

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    1. 41 Responses to “On whether politicians should have the same rights to privacy”

    2. By Peter on Nov 18, 2011 | Reply

      It became a private conversation the minute the media agreed to leave the public cafe so that the two could talk. If they had not left then a conversation overheard in a cafe would not be private. Never-the-less if Key and Banks considered – after having the media asked to leave that their conversation was private – and a copy was taken (even by accident) and not subsequently deleted but copies were taken and shared around. Then the only recourse that would have would be down a legal avenue. If at some time the courts deem that this conversation is not private then Key and Banks would have the answer that they were wrong – but whether you or anyone else think it shouldn’t be private it is obvious they thought it was. Further and most importantly most of the New Zealand public as shown by poles and feedback consider it private – the only people making a fuss about this at all are the media – as they feel slighted at suggestions that they may have acted illegally and it might be the case that they have. The worst situation is that the media have and are letting the people of New Zealand down in providing policy feed back and commentary. They were doing a poor job before this saga merely paraphrasing policy statements from the parties – little or no commentary on the collective impact of several policies i.e. one policy rarely stands alone – they tend to interact and impact between them. Since this saga they have been non existent in terms of providing important electoral information to the public. Very very poor job by the media. Senior political commentators John Armstrong have written 4 articles this week on the one subject. Listen to the public – get over it.

    3. By Elyse on Nov 18, 2011 | Reply

      Peter, you can bat on all you like about the media being the only interested parties, but it won’t make it true.

      Until now, Key’s image has been carefully managed, the MSM have aided this deception, and the public have been gullible in the extreme, in much the same way that the American public believed the image of GW Bush carefully contrived by Karl Rove, that he was a rancher and a down-to-earth guy, someone you might want to share a beer with at a barbecue. After his 2004 return to the White House it did not take long for the tide to turn. This is the beginning of the end for Key. His mask has slipped.
      If I wanted to have an important private conversation I would not choose a cafe and I would certainly not invite the media and ask them to wait outside the window while I had it. As someone pointed out, what if one of them was able to read lips?
      Gordon you are so right. If the tables were turned and it was HC in the hot seat, the bleating would be endless.
      Speaking of our former leader and the subject of women voters, I could not believe the vindictiveness of many women towards her, and the eagerness with which they replaced the so-called nanny state with our current daddy state. Nothing has changed in the last three years except that it’s harder for small businesses, lower and middle income earners to get by.

    4. By Leon Henderson on Nov 18, 2011 | Reply

      You are a good thinker and writer Gordon Campbell. Yes, it speaks volumes about the corporate mass-media the way they are frantically trying to cover for Key. They actually created the “Public Image” of Key and they are panicking, together with Key, at this disastrous Faux Pas so close to the General Election.

    5. By Relic on Nov 18, 2011 | Reply

      Whether the blond bob and sunnies of leafy ’burbs or the strange rotweiller like countenance of bowling club women, they can dish it out as viciously as the male denizens of the “BBQ pit”. Beneficiary bashing is second only in the beloved kiwi sport stakes to rrrrrugby.

      This tory government has exacerbated social inequaltiy and then kneecaps the organisations that try to pick up the pieces.

    6. By Leon Henderson on Nov 18, 2011 | Reply

      How could this be possible: Joe Blow of the Mr. Hopey Changey Party has not yet posted anything on this page.

      As for Peter – go and passionately kiss Roger Kerr’s arse (Roger Kerr is the “Frontman” for the Arch-Enemies of the Working-Class people of New Zealand viz-a-viz the Business Roundtable), but you already fervently do it so there actually is not much point in telling you to do what you already are doing.

    7. By Leon Henderson on Nov 18, 2011 | Reply

      Elyse, please keep posting on Werewolf: you are a very good thinker and writer.

    8. By Leon Henderson on Nov 18, 2011 | Reply

      As for Peter, give me a blunderbuss full of spew to blast at him!!!

    9. By Joe Blow on Nov 18, 2011 | Reply

      @ Leon

      It looks like the Political Junkies Party is growing bigger every day and in fact you are its biggest member Leon as you occupy the most blog site space!

    10. By Joe Blow on Nov 18, 2011 | Reply

      I think the point here is that there really is no precedent for whether a recording taken in circumstances similar to the tea cup recording is private or not. Most of the precedents (including Atkinson) involve defamation not privacy issues. The Courts are going to have to make it up as they go along. It’s actually extremely cutting edge public law. I wonder if the UK has had a similar case… there might be. The other thing is that the “right to privacy” in NZ is still a right which is being developed by the Courts. In terms of a privacy tort, invasion of privacy has very little swing in the NZ Courts as the Hoskings found out when they tried to sue New Idea. The balance will almost definitely be struck by balancing whether Key and Banks had a reasonable expectation of privacy against the public interest. One would think that politicians in the circumstances Banks and Key were in would have less expectation of privacy then normal people would and their conversations would have far more public interest value than normal people’s conversations. It’s still hard to say which way it would swing. Interesting situation… interesting case… and it’s just so great that it happened to Key just days out from an election…

      Still that’s just the civil side of the legal equation. The police are involved because Key has alleged criminal offending under the Crimes Act which prohibits the disclosure of private communications unlawfully intercepted. To be unlawfully intercepted it must be, firstly, a private conversation and, secondly, it must be intentionally intercepted. If it wasn’t intentionally intercepted then it isn’t unlawful and it is not an offence for the media to disclose it.

      I think the media have not disclosed it because the private conversation involves the Prime Minister (the government); they are getting too much attention out of not disclosing it anyway; and the content of the conversation is not as juicy as Key is making it out to be. He just can’t handle not being liked… I hope the recording is leaked before the election and the NZ public get to see the real John Key…

    11. By Stephen Lovatt on Nov 18, 2011 | Reply

      No Peter. Good long post, but no. No.

    12. By Leon Henderson on Nov 19, 2011 | Reply

      Knew you would turn up Joe Blow, but you are late this time with your Right-Wing diatribes!!!

      As for your “Political Junkies Party”, well you are the only one in it!!! You are like Peter Dunne as per when you hold your “National Conferences” the only people who turn up are Peter Dunne at his one and you at your one!!!

    13. By Pete w on Nov 19, 2011 | Reply

      Lets cut to the chase on john keys and the Nats showing their true colours with this tea cup fiasco.

      Keys and banks ‘invited’ a whole lot of journalists to their meeting.

      And then they get pissed, that what they said at the meeting is going to show them in a true/bad light.

      The public have a right to know and the press should have the freedom to tell us what these politicians are planning to do or saying about New Zealand.

      … But then John Keys goes running to the police, like a teenager girl who’s had someone read their text messages and been found out to be two faced ….

      And just like a spoilt teenager John Keys then got a bit hysterical and started going on about what he suffered could lead to suicide and it was on the same scale as the ‘News of the world’, murdered girls phones being hacked.

      Some prime minister we’ve got.

      To top it all off Keys claims the police have spare time !!

      What an out of touch drama queen.

      I wonder who he was bad mouthing on the tapes thats now making him behave like a nasty idiot.

    14. By Leon Henderson on Nov 19, 2011 | Reply

      Joe Blow, you accuse me of being the “most proliferous” blogger on Werewolf, but you should know that when you point a finger you have got at least three more pointing back at yourself!!!

      My combined blogs would only amount to a tiny fraction of the stuff that you have plastered all over Werewolf.

      I primarily write blogs on Werewolf to counteract your extreme Right-Wing lectures and intend to keep on doing so.

    15. By Joe Blow on Nov 19, 2011 | Reply

      @ Leon

      No Leon ‘we’ both occupy this blog site so ‘we’ are now both members of the Political Junkies movement. We have no leaders and no common goals. We just occupy blog site space with our rants… and anyone else who cares to also occupy the site is also a member… it’s beautiful… it’s a new kind of democracy…

    16. By Leon Henderson on Nov 19, 2011 | Reply

      Hullo Joe Blow! For once I agree with you, as per Werewolf being incredibly democratic. John Armstrong has banned me from being able to place posts on the NZ Herald website. My “crime”? The “crime” was criticising the Jews.

      In the European Union anyone who criticises the Jews is slammed into handcuffs and dragged off by the police to jail.

      In the United States nobody even dares to attempt to criticise the Jews.

      The Jew-owned corporate mass-media of New Zealand are gagging anyone who opposes the vicious, murdering, ambitions of Is-ra-el.

      Who is gonna be next, Joe Blow? Syria? (this is looking very likely because as has been said elsewhere the CIA under the direction of Mossad, have established in Turkey military camps along the Turkish/Syrian border, and from which gangs of “Islamic Brotherhood” Terrorists infiltrate into Syria and murder Syrian Army personnel, Syrian police, and Syrian civilians.

      The Jews have always been the world’s best experts at “Stirring”. “Divide-And-Rule” is their evil Rogue-State Policy.

      I will tell you an ancient Russian saying (the Prussians also had this saying) Joe Bloggs:

      “A Greek can swindle ten Russians, but a Jew will swindle ten Greeks”.

    17. By Leon Henderson on Nov 19, 2011 | Reply

      You are an ACT Party Troll , Joe Blow.

    18. By Joe Blow on Nov 20, 2011 | Reply

      @ Leon

      You don’t want to face up to reality, do you Leon?

    19. By Joe Blow on Nov 20, 2011 | Reply

      @ Leon

      Reality is I’m more of a Green Party voter than you are and you don’t even know it yet… don’t worry Leon, Hone’s outstretched bosom is waiting for you out there some where Leon… he’ll be your saviour…

    20. By Joe Blow on Nov 20, 2011 | Reply

      @ Leon

      Look here is your new blog site to occupy Leon. It’s filled of lots of people just like you. Leon’s heaven:

      http://mana.net.nz/

    21. By Joe Blow on Nov 20, 2011 | Reply

      @ Leon

      Racists can say whatever they like about the Jews on this website Leon:

      http://mana.net.nz/

    22. By Joe Blow on Nov 20, 2011 | Reply

      @ Leon

      No “middle-of-the-road capitalists” on this site Leon:

      http://mana.net.nz/

    23. By Joe Blow on Nov 20, 2011 | Reply

      @ Leon

      No “middle class” parties which are “comfortable with greening capitalism” here Leon:

      http://mana.net.nz/

    24. By Joe Blow on Nov 20, 2011 | Reply

      @ Leon

      Hone Harawira needs YOU Leon:

      http://mana.net.nz/

    25. By Leon Henderson on Nov 20, 2011 | Reply

      You seem to be having some kind of “Brain Eruption” Joe Blow, and no doubt the contradictory lectures that you keep on producing are not helping to alleviate this horrible brain condition.

      I would recommend (even though I am not a physician) for you to stop snorting cocaine and for you to stop going to “Whale Oil’s” website.

      Joe Blow, you will be, along with the mad Bint Hillary Clinton and Mr. Hopey-Changey Obama, exulting in the capture by the USA/NATO Terrorist Mob in Libya of Saif Gaddafi.

      In New Zealand though, Joe Blow, hopefully you are in for a very nasty shock when the dust settles on Election Day.

    26. By Leon Henderson on Nov 20, 2011 | Reply

      Joe Blow, you continue to attempt to imply that you are a Member of the Mighty, Mighty, New Zealand/Aoteoroa Green Party, but nothing that you write is in accordance with the New Zealand Green Party, and instead is always totally against us.

    27. By Leon Henderson on Nov 20, 2011 | Reply

      Joe Blow, something must be going wrong with your neurological equipment, because time and time again I have repeatedly stated that the Mighty New Zealand/Aoteoroa Green Party gives their total backing and absolute support to the Hone Harawera Mana Party!

      The Hone Harawera Mana Party are the natural Allies of the Mighty New Zealand/Aoteoroa Green Party.

    28. By Joe Blow on Nov 20, 2011 | Reply

      @ Leon

      I am a Green Party voter Leon! I’ve already voted for them as we can do that down here in Christchurch due to the earthquake. My constituency vote went to Labour (a Labour stronghold) so I guess I’m a red green voter.

      You just can’t handle reality can you Leon?

      Anything that doesn’t fit with your view on things is conveniently ignored and anyone that directs you to information that is inconsistent with your view is conveniently branded as “an ACT voter” or as having a “Brain Eruption” or a cocaine or crack user or that something is wrong with their “neurological equipment”… childish name calling and frivolous attacks does not make you right Leon…

      Can you direct me to any statement by the Greens that shows their support for the Mana Party? I’m having trouble finding one…

      This quote from Russel Norman sums up the Greens views on the Mana Party:

      Dr Norman said “there might be a few votes” for the new party, but “maybe not a lot”. “I mean, who wants to relive the battles of the 1980s and 1990s? We’re in 2011 for God’s sake. We need a progressive force that actually deals with where we are now, not tries to refight the 1980s and 1990s.

      “I just don’t think a lot of people are really hanging out for a Hone Harawira, Sue Bradford, John Minto, Annette Sykes kind of party … They’re looking for something progressive and forward-looking that actually is oriented to the current century rather than the last one.”

      Russel Norman scorns Mana Party
      http://www.stuff.co.nz/national/politics/4957983/Russel-Norman-scorns-Mana-Party

      As a Green voter I can’t help but agree with Dr Norman whole heartedly…

    29. By Leon Henderson on Nov 20, 2011 | Reply

      Joe Blow, your link goes to the page of the fascist Berk John Hartevelt who writes for the extreme Right-Wing “Stuff”.

      You rail that I am an “extremist” but it is no surprise to know that you are a faithful adherent of the fascist Berk John Hartevelt.

    30. By Leon Henderson on Nov 20, 2011 | Reply

      Having said all that, Joe Blow, now knowing that you are an inhabitant of Christchurch, have to express admiration that you are staying there. You definitely are severely mentally deranged!!!

    31. By Joe Blow on Nov 20, 2011 | Reply

      @ Leon

      Well Norman is free to complain about them misquoting him and I haven’t heard a peep, have you Leon? Just because it’s stuff.co.nz doesn’t mean Norman didn’t say it Leon. It’s a direct quote, not an opinion piece.

      Where’s your example of a statement of support for Mana from the Greens then Leon? There must be heaps of examples, if the two parties have as much solidarity as you claim they do…

    32. By Joe Blow on Nov 20, 2011 | Reply

      @ Leon

      Look Leon I don’t think that the Greens will join a coalition with National either. They are more likely to support on key issues like they did with the home insulation scheme.

      I think Sue Bradford is just miffed because they voted in Metiria Turei (an ex-corporate lawyer for Simpson Grierson) as co-leader instead of her, but the Greens are changing. I wouldn’t be surprised if Norman didn’t purposefully drop that quote to the right wing stuff.co.nz to send a message that he is distancing the Greens from Mana to attract blue green voters. And let’s face it, although Sue is principled and has had my vote in the past, she is not very media friendly…

      Are you sure you can handle this change Leon?

      It might be more comfortable for you next term if you put your vote in with Mana as they sound like your kind of people – uncompromising and principled. And although I don’t like Hone very much, I think that Annette Sykes (number 2 on their list) is brilliant. I just wish she’d picked another party to run for…

    33. By Leon Henderson on Nov 20, 2011 | Reply

      Sue Bradford was crucified by the foreign-owned corporate mass media and their indigenous lapdogs such as Michael Laws, Kerry Woodham, and your beloved John Hartevelt over her successful efforts to get Section 59 of The Child, Youth, and Families Act, repealed as it was poorly drafted Law and had gaping loopholes that lawyers were using to get child murderers either acquitted or else given minimal sentences.

      The foreign-owned corporate mass-media went utterly berserk and pilloried Sue as being an “Anti-Smacker-Of-Horrible-Brats” and her Repeal Of Section 59 was lyingly ranted about by the corporate mass-media and their grovelling lapdogs such as Paul Holmes, William Ralston, Margaret Barry et al as “The Anti-Smacking Law” which (according to them) “put Nanny State in charge of everyone’s children and made it illegal for good parants to discipline obstinate brats”.

      But what the foreign-owned corporate mass-media (such as “Stuff”, Joe Blow) and their indigenous flunkies all had a simultaneous explosion of mass-amnesia about, was the fact that John Key and the National Party unanimously voted for the “Anti Smacking Law”!!!

      Key the Populist Tout/Tart jumped onto the repeal of Section 59 because Crosby-Textor told him that it would not look good publically for him to be seen to oppose the repeal of of a Law that was enabling lawyers to get child murderers off the hook, especially as New Zealand has got one of the highest child murder rates in the world.

      The maniacal hostility of the foreign-owned mass-media and their New Zealand media lackey’s against Sue Bradford to this very day has never stopped, and it is this “Tarring” that lost Sue her rightful place as female co-leader of The New Zealand Green Party when Jeanette Fitzsimmons retired.

      Sue is intelligent enough, wise enough, and understanding enough, to know how this happened, and how the relentless, vicious attacks against her by the media had made it impossible for her to be able to be the Co-Leader of the New Zealand Green Party.

      Joe Bloggs: Russell Norman is paranoid about the media, and can you blame him? He saw what they did to Sue.

      http://bowalleyroad.blogspot.com/

    34. By Joe Blow on Nov 20, 2011 | Reply

      @ Leon

      I’d blame it on the media AND that most NZers think it’s okay to smack their children (before you think it, I’m not one of them).

      I agree, the Greens have changed (much like the Maori Party) and are prepared to compromise as they realise that their traditional extremist Mana Party like stance was not going to result in any meaningful changes any time soon…

      If Sue is so clear on everything why is she saying all that stuff about the Greens being middle of the road centrist capitalists content with greening capitalism Leon?

    35. By Cullen's Sidekick on Nov 21, 2011 | Reply

      Can’t digest the fact that your communist mates will be consigned to the opposition benches for another 3 years ah? Chill out Gordon.

    36. By Leon Henderson on Nov 21, 2011 | Reply

      Joe Blow, well, of course, Sue is not exactly dilirious with joy about being shunted aside concerning the NZ Green Party Female Co-Leadership position, and she obviously is pretty miffed about it, and hence the occasional sniping at the NZ Green Party; but having said that, be well assured that Sue knows that, because of the relentless attacks against her, and vicious, lying, pillorying of her by practically the entire mass-media (including National Radio), that she was simply made to be by the media far too much of a political “Hot Potato”, and an extremely vulnerable target for the NZ Green Party to be savagely attacked by the media, and their image dangerously damaged. Even without Sue they are maniacally attacked again and again by the likes of Michael Laws who, along with the rest of his media Chums, claim that the NZ Green Party are “nothing more than a mob of dirty hippies who don’t wash, and whose women don’t shave their legs and armpits”. As said earlier, the media is SATURATED with Michael Laws clones, all venomously spouting this lying drivel.

      Will also emphatically repeat again, Joe Blow, that The NZ Green Party and The Mana Party are natural Allies.

      Finally, it’s “off topic”, but as the Activists at Global Research and elsewhere have always known, the USA had (and has) no intention whatsoever of leaving Afghanistan, and they have just concluded “negotiations” with their puppet Hamid Karzai, to maintain a permanant USA/NATO military presence in Afghanistan.

      http://www.globalresearch.ca/index.php?context=va&aid=27776

    37. By James on Nov 21, 2011 | Reply

      Here is my analysis of whether a crime has been committed (organised like a crims answer). As you note, it falls down on intention, but also contemporariness. I think it is moot whether a “private communication” was intercepted.
      LEGAL POSITION OF BRADLEY AMBROSE
      Crimes Act 1961
      Part 9A
      Crimes against personal privacy
      **216B Prohibition on use of interception devices**
      (1) Subject to subsections (2) to (5), 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*.
      To commit a crime in New Zealand, generally (and there are some minor exceptions), the prosecution must prove beyond reasonable doubt, that the defendant committed the offence (the actus reus), intentionally (the mental element / mens rea) and that they do not have a defence.
      I can identify two elements that make up the actus reus:
      i. interception of a private communication
      ii. using an interception device
      I can identify one element that makes up the mens rea
      i. intentionally
      I. So, has Ambrose intercepted a “private communication”?
      According to the Act:
      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.
      The circumstances would indicate that Key and Banks intended the communication to be private. They excluded themselves from the media. They shoed them outside. The content of their apparent discussions indicates that they were talking about politically sensitive topics.
      The only argument that could be made to counter this, would be that because they were in a public place, ie a café, they could not “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”. So, if there were people walking around the café that may have been able to overhear parts of the conversation, then this may lower the standard or expectation of privacy. Probably not though, as efforts were made to ensure privacy.
      II. Was an using an interception device used?
      interception device—
      (a) means any electronic, mechanical, electromagnetic, optical, or electro-optical instrument, apparatus, equipment, or other device that is used or is capable of being used to intercept a private communication;
      I think this is pretty obvious.
      III did Ambrose act intentionally?
      This is the interesting part. Intention under law requires absolute intention. Ie, the party acted with intention, and the outcome was so obvious that the crime can be attributed to their mental state. Ambrose has said that he left the tape recorder on the table by accident. There was an apparent melee before the tea party, and in the confusion it was left there. If this is true, and there is no reason to believe it is not, Ambrose lacks intention under the Act and has thus not committed a the crime.
      The counter argument is that he did act with intention, and this can be evidenced by the fact that the recorder was in a black bag, and hidden. You could also say that because he used the tape, he intended to capture the recording seripticiously.
      If it had been hidden under the table, I think intention would speak for itself, but because this is one way or the other I don’t think he can be convicted as intention cannot be proven beyond reasonable doubt. Therefore, I think that he has not committed the crime.
      LEGAL POSITION OF SUBSEQUENT PUBLISHER
      216C Prohibition on disclosure of private communications unlawfully intercepted
      (1) 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.
      Note how this section is subsequent to section 216B – now because I don’t think that that crime has been committed (for lack of intention) it would under my interpretation of the Act / crime, not be an offence to publish it. This, however, would be contingent upon Ambrose having not committed the crime, because he lacked intent.
      Some people I have spoken to think that indirect or oblique intention could apply. This relates to situations where there was a certainty of the consequences, like throwing a baby, or shooting a person in the face. It also requires foresight. So it would have to be proven that he left the recorder there knowing full well that it was certain he would record a “private conversation”.
      It is questionable whether the conversation was private at all, and my understanding of the situation (which I have take from journos present) is that the media thought they were going to be in the cafe whilst the conversation took place, but were shoed out by security at the bequest of the owner.
      Finally, the acus reus and mens rea have to combine (contemporariness) for there to be an offence where both are elements of the crime. Therefore, because it was legal to initially place the recorder on the table, the alleged crime would be better worded as an omission. This means that there was no way for either intention or indirect intention to exist when the act was committed.

    38. By Joe Blow on Nov 21, 2011 | Reply

      @ Leon

      If they aren’t leaving, why are they transfering governance in Bamiyan over to the corrupt Karzai regime then?

      Kind of off topic, but tell me Leon, have you ever heard of the ‘responsibility to protect’ doctrine?

    39. By Leon Henderson on Nov 21, 2011 | Reply

      No Joe Blow, cannot recall having encountered anywhere the “responsibility to protect” doctrine, but it looks like the kind slogan that the Council on Foreign Relations, or The Carnagie Institute would dream up so that the crypto-fascist gang who rule the USA/Jewish-American Empire, can use this “doctrine” as a pretext for sabotage and military attacks on weak countries such as has just been gruesomely seen in Libya.

    40. By Leon Henderson on Nov 21, 2011 | Reply

      Dammit, another typo in the above post: it should have said “… but it looks like the kind of slogan that the Council on Foreign Relations (etc)”

    41. By Leon Henderson on Nov 22, 2011 | Reply

      Hey Joe Blow, look at the “protection” the USA and its lapdogs such as the Pommies “provided” for Iraq:

      http://www.prisonplanet.com/israels-plan-to-destroy-irans-civilian-infrastructure.html

    42. By Joe Blow on Nov 22, 2011 | Reply

      @ Leon

      Who are the “officials” that have provided the information for the allegations against Israel in that article above?

      Here’s an article on how the ‘responsibility to protect’ or R2P doctrine is thought to have applied to Libya by Geoffery Robertson QC (let me know what you think – note the article is written before NATO decided to invade Libya):

      http://www.independent.co.uk/opinion/commentators/geoffrey-robertson-using-force-to-stop-slaughter-is-lawful-2232975.html

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