Ron Smith: Spying and the public interest

It is widely understood that, as a general principle, ‘eaves-dropping’ on the activities or conversations of others without their knowledge or permission, is an invasion of privacy and is to be deplored. This is reflected in our law.

On the other hand, it is accepted that covertly observing the activities of drug-dealers, or terrorists, or listening-in to their conversations may be justified. We override their normal rights to privacy in the wider public interest. This is different from a public interest in the doings of the rich and famous. Here, though the interest may be acknowledged, we do not usually accept that it is sufficient to outweigh the right to privacy of the persons concerned. In a similar way, we do not accept that a public interest in knowing the detail of crimes that may have been committed, justifies hacking into the communications of victims or other third parties, by media agents wishing to gain an advantage on their competitors. The reason for the distinction is that, in these latter two cases, there are generally no grounds for presuming the persons who are the subject of this surveillance are engaged in serious antisocial activities. It is also worth noting that even in the first category (drug dealers, or terrorists) there are frequently administrative processes to test the justification for what is a serious breach of human rights.

It is clear that bugging the private exchanges of political persons is in the second category (‘rich and famous’, or otherwise prominent) and not the first, notwithstanding how interesting the content of such conversations might be to potential electors and, especially, to rival political interests. It may be that indiscreet things will be said in such conversations, which might reflect adversely on the character of the speakers but it cannot be presumed that this will usually be the case, or (still less) that the content of the exchange will rise to the sort of threat to society envisaged in the case of serious criminal activity. On this basis, the ‘cup-of-tea’ conversation of Mr Key and Mr Banks, provocative though it was, must be seen as protected, and this applies even if the media was permitted (even invited) to the early part of the proceedings. It was clear to all that the talk was intended to be private and should have been recognised as such. Even if the recording of the conversation had been accidental (which does not strike this writer as at all plausible), respect for the law and for the generally-recognised human right not to be spied upon could have been demonstrated by immediately handing over the tape. It is a bit like seeing somebody drop their wallet and instead of handing it over to them, you take your mates to the pub for a drink.

Similarly, calls to the Prime Minister to allow the release of the tape, if he has nothing to hide, are simply disingenuous. To accede to this, would be to concede the principle that private conversations are protected. The future challenge would then be to secure an illegal recording and invite the victim to collaborate in his embarrassment, particularly if he could be induced to attempt an account of what was said on the basis of recollection, whilst his political foes have access to a verbatim record. But this is all beside the point. It is clear from the nature of the public discussion of this matter that it is not a question of morality, or legality, it is nakedly a matter of politics.

In his first comment, Winston Peters was dismissive. Taping the conversation was ‘simply illegal’. But that was before he discovered that there was political advantage to be taken. Then he revealed something of the content, thereby (presumably) committing an offence, as did the persons who supplied the information. Of course, opposition leader Phil Goff had no scruples from the outset. This was a political opportunity, which he grasped with all the desperation of a drowning man. After looking like a political ‘dead man walking’ for most of the last three years, this offered the prospect of salvation.

And then there was the media. As with so many other issues, there has been little attempt at balance in the treatment of this topic, with a procession of ‘expert’ commentators agreeing on the main points and reinforcing the dubious claim that this particular private conversation was ‘fair game’ and that the Prime Minister’s attempts to move on to discuss other election issues are a sign of weakness. It will be interesting to see whether the collaborating political interests that are operating in this way will be successful in frustrating the democratic process, or whether ordinary New Zealand electors will nonetheless make their judgement next week on the fundamental questions that affect us all.