Police raid the New Zealand Herald newspaper to confiscate tapes and documents related to the conversation between the Prime Minister and the ex Police Minister 4 days before the New Zealand general election. Source The New Zealand Herald.
Police raids are continuing today on many news organisations, including, the private TV3 News channel, the state broadcaster TV New Zealand and the New Zealand Herald (New Zealand’s largest newspaper) to confiscate tape recordings, documentation and the like relating to a conversation between New Zealand’s Prime Minister and a previous Police Minister and candidate in the up coming election. This followed Justice Winkelmann’s decision not to decide, or in the words of the court, “The plaintiff’s application [Mr Ambrose who taped the conversation]… is declined”. The Application was for the court to decide if the conversation was public or private. To their credit the police waited until the court hearing was finished.
Justice Winkelmann giving her decision, or lack of decision, in the case Ambrose v Attorney General of New Zealand.
The offices of Television New Zealand and 3News were also raided.
For the full decision click here to download the pdf of Justice Winklemann’s decision Ambrose v Attorney General
Justice Winkelman was asked by Mr Ambrose, the camera operator who obtained (it is alleged illegally) a tape recording of the conversation between Mr Key and Mr Banks to make a decision indicating that the conversion was public. If it was a public conversation then the media has no barriers to printing and broadcasting the conversation to the public.
However, Justice Winklemann has decided not to decide. She essentially said that she doesn’t have enough information or time. She also indicated that she thinks that because the police are already investigating (raiding and confiscating I would argue) the matter, she thinks that this should be allowed to play out, and that in due course the police can decide to prosecute or not, and that at this future time the court can make a decision on the matter. Firstly, I would argue that she should have made a decision, she should know that case law, albeit from other countries, especially from the United States would indicate that it wasn’t a private conversation, and secondly, even if it was private, in the interests of public interest, democracy and freedom of speech, the media in this case, would be able to publish anyway (more on this point and case law later).
Mr Tim Pankhurst from the Media Freedom Committee speaks on TVNZ this morning.
Mr Tim Pankhurst of the Meida Freedom Committee said on TVNZ this morning that the police have been put in a very difficult position, and that essentially because they’ve been asked by the Prime Minister to act, and that the court has decided to pass the decision back to them, they had to raid the once free press of New Zealand. However, Mr Pankhurst was obviously shocked, worried and concerned this was happening just prior to a general election.
Now the New Zealand media are in a very difficult position. I am unsure if any tapes of the conversation are still in private hands, or if the police have managed to confiscate them all. However, in this digital age, I would expect there is at least one somewhere. Hence, should the media release this information and what will happen to those subsequently prosecuted.
New Zealand is a small country, and the variety of such cases are thin and far between. However, the United States of America have had a large number of cases such as this and many of them have found their way to the Supreme Court who have, unlike the New Zealand court, decided to hear the case and make a decision. This is because such issues are very important, are at the heart of a democracy, that often sees conflicts between the public right to know, privacy, freedom of speech, censorship, elections and such like. It was a sad day yesterday that our court decided not to make a decision, which in effect was an indication to the police to raid, confiscate, trample on freedom of speech and aid censorship just prior to an election to decide the next government of New Zealand. Looking at the photograph below, does this look like a private conversation? What was the judge thinking?
The current Prime Minister John Key, up for election, speaking to a fellow candidate of a competing party about potential coalition and doing deals to assist each other in the Urban Cafe Auckland.
Turning now to various decisions of the Supreme Court of the United States. Nixon v General Services Administration 433 US 425 (1977) in a majority decision (7-2) found that the President’s private tape recordings of conversations in the White House must be turned over to be reviewed.
In addition, the Supreme Court decided, that even when a tape has been made illegally, that in some circumstances, media defendants could not be liable for damages for publishing and broadcasting information. The Supreme Court decided, that the First Amendment principles of freedom of speech trumped privacy concerns (Bartnicki v Vopper), finding, “a profound national commitment to the principle that debate on public issues should be uninhibited, robust and wide-open”.
These are just two of many such cases. Hence, what will happen now. What will the media do?
