John Key putting defamation costs on the public tab

So, where are we now on the Teapot Tape saga? According to Prime Minister John Key, Key was wearing his “ leader of the National Party” hat when he made his potentially defamatory remarks in November 2011 about freelance cameraman Bradley Ambrose.

As such, Key indicated, his own legal costs plus the ‘ small’ amount paid to Ambrose to settle the defamation case would either be paid for by the taxpayer - via the ‘leaders fund” set aside for legitimate parliamentary business - or if that didn’t fit the rules, the National Party would have to fund raise the money involved. As Key also signalled in an aside, his legal costs have (so far) been met from that leaders’ fund.

There are a number of issues here. ‘Small’ is a relative word. The cost to the taxpayer in the confidential settlement could be ‘ small’ in relation to the $1.25 million originally being claimed by Ambrose, and yet still be a five figure sum, or even in the low six figures. We simply don’t know what amount we’ve just become liable to pay – and we may never do so, much as the transparency principle ( see below) would seem to demand full disclosure. Secondly, the Speakers’ rules for use of the fund are here.

Yes, at clause 52 (h) “ legal costs” are mentioned as falling within the ambit of what can be paid for out of the public purse, and clause 57 also mentions that “Expenses incurred to defend legal proceedings brought against a member in his or her capacity as a member of Parliament may only be paid for with the approval of the Speaker and the relevant party leader (if any).” According to Key, some of these legal costs have already been paid – which means that the Speaker must have previously green-lit those payments.

If so, that would be surprising - since the rest of the Speakers’ rules place really strict conditions on when such costs – including legal costs – can be counted as being legitimate parliamentary business. Key can find some solace in one aspect of the Speakers Rules. Parts 5c(i) and (ii) for instance, count as valid parliamentary business : “participating in processes related to the formation of a Government; or (ii) participating in party meetings relating to post-election strategies….” Arguably, both were aspects of the Tea Party meeting in 2011 between Key and Act Party leader John Banks.

However – and fatally for Key’s position - that clause 5(d)(ii) also says that the following do not count as valid parliamentary business :

(ii) work directly related to the administration or management of a political party; or (iii) electioneering

Which is what the Tea Party meeting was more about, and what Key –wearing his hat as leader of the National Party – was actually engaged in doing. ( He might have had more chance of getting away with it if he had been wearing the PM’s hat.) Yet here’s the core problem : to allow Key to put this defamation case on the public tab, the Speaker would, in effect, be condoning the use of the leaders’ parliamentary budget as an electioneering slush fund. Clearly, that is not the intention of these rules. After all, the Speakers Rules also say ( at part 9) that the use of these funds are to be governed by the application of certain principles – accountability, which places an onus of ‘personal responsibility’ on members ; appropriateness, openness, transparency and cost effectiveness. None of which characterise the use of taxpayer funds to settle the Ambrose defamation. Key – or the National Party - have to pay up. None of these costs should fall on the taxpayer.

Finally….at yesterday’s press conference, I asked Key - whatever hat he might be wearing at the time - whether he recognised that there was a residue of personal responsibility for whatever he chose to say and do in the public sphere. Mechanically, Key insisted he had been speaking as the leader of the National Party.

What About the Police?

For a reminder of what Key - and his colleague Steven Joyce – had said about Ambrose, check this out.

On the weekend however, Key and Ambrose reached a settlement in which they agreed that Key’s comments had caused harm to Ambrose both personally and professionally. The core issues involved were handled in this fashion in the joint statement :

"Mr Key now accepts that Mr Ambrose did not deliberately record the conversation, or otherwise behave improperly".

“Mr Ambrose now accepts that Mr Key believed that the conversation had been deliberately recorded at the time Mr Key made his statements".

There are several consequences to this. Ambrose has always maintained that he had recorded the conversation by accident. This has now been confirmed. By definition, this also means that the recording was always made lawfully. (Under section 216b of the Crimes Act, the person making the recording has to do so intentionally for this to qualify as an offence.) Given the clear public interest in the matter – which could arguably over-ride the privacy rights of the public figures involved in the Tea Party incident – the subsequent publication of the material would also have always been entirely legal. Indeed, the media could argue that it would have been somewhat derelict in its Fourth Estate duty if it chose not to publish the material.

However, another cloud still hangs over the media in this matter. At the time in 2011, the Police were willing to raid newsrooms in search of possibly incriminating material .

Officers working on the case have contacted Radio New Zealand wanting unpublished material relating to interviews it conducted with the cameraman who made the recording which he gave to a Sunday newspaper," Radio NZ reports. "Radio New Zealand's head of news, Don Rood, has refused to hand over any material gathered by news staff and says the news organisation will always protect its sources."

In itself, these Police actions were a chilling, highly selective use of state power. Ultimately, the Police investigated Ambrose, but chose not to prosecute him. Yet Police Assistant Commissioner Malcolm Burgess left behind this threat to the media :

"While Police have issued a warning in this instance we are clear that the actions of Mr Ambrose were unlawful. This sends a clear message to media that the recording and distribution of conversations that are considered private is likely to lead to prosecution in the future..

Right. So, do the Police still cling to this threatening position, or not ? Because the Key/Ambrose agreement that the recording was in fact accidental renders invalid the Police opinion that Ambrose’s actions had been unlawful. Therefore, what is the current status of the threat made by Police Assistant Commissioner Burgess to the media – namely, that “the recording and distribution of conversations that are considered private is likely to lead to prosecutions in future” ? Because as things stand, the media are still operating in the dark. If they inadvertently come into possession of material about powerful public figures who would prefer that stuff to be kept private, but where there is a clear public interest in revealing the contents – do they, or don’t they face the likelihood of Police prosecution if they choose to publish it?

The Police really need to re-state their position on this matter. Their attempt to intimidate the media over the Ambrose affair wasn’t valid at the time, and it is now utterly indefensible in the light of this settlement.

Song For Today

At yesterday‘s post- Cabinet press conference, this little number by the South African band CrashCarBurn came to mind…

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