As one does we have just been studying the Crimes Act. It would seem to be legal to intercept a private conversation that one is party to, but it would be illegal for someone not actually party to a conversation to do the intercepting. We wonder who did the intercepting. Was it someone in actual conversation with the National MPs or was it someone standing near by? The security footage investigation will be interesting
216A
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.
216 B 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.
(2) Subsection (1) does not apply where the person intercepting the private communication—
(a) Is a party to that private communication; or
(b) Does so pursuant to, and in accordance with the terms of, any authority conferred on him or her by or under—
(i) Part 11A of this Act; or
(ii) [Repealed]
(iii) The New Zealand Security Intelligence Service Act 1969; or
(iiia) the Government Communications Security Bureau Act 2003; or
(iv) The Misuse of Drugs Amendment Act 1978; or
(v) The International Terrorism (Emergency Powers) Act 1987.
(3) Subsection (1) of this section does not apply to the interception by any member of the Police of a private communication by means of an interception device where—
(a) An emergency has arisen in which there are reasonable grounds for believing that any person (in this section referred to as the suspect) is threatening the life of, or serious injury to, any other person in his presence or in the immediate vicinity; and
(b) The use of the interception device by that member of the Police is authorised by a commissioned officer of the Police who believes on reasonable grounds that the use of the interception device to intercept any private communication to which the suspect is a party during the emergency will facilitate the protection of any person who is threatened by the suspect.
(4) Subsection (1) does not apply to monitoring prisoner call under section 113 of the Corrections Act 2004.
(5) Subsection (1) does not apply to the interception of private communications by any interception device operated by a person engaged in providing an Internet or other communication service to the public if-
(a) the interception is carried out by an employee of the person providing that Internet or other communication service to the public in the course of that person's duties; and
(b) the interception is carried out for the purpose of maintaining that Internet or other communication service; and
(c) the interception is necessary for the purpose of maintaining the Internet or other communication service; and
(d) the interception is only used for the purpose of maintaining the Internet or other communication service.
(6) Information obtained under subsection (5) must be destroyed immediately if it is no longer needed for the purpose of maintaining the Internet or other communication service.
(7) Any information held by any person that was obtained while assisting with the execution of an interception warrant must, upon expiry of the warrant, be—
(a) destroyed immediately; or
(b) given to the agency executing the warrant.
Part 9A (comprising sections 216A to 216E) was inserted, as from 6 August 1979, by section 2 Crimes Amendment Act 1979 (1979 No 5).
The heading to section 216B was amended, as from 1 October 2003, by section 10(1) Crimes Amendment Act 2003 (2003 No 39) by substituting the words “interception devices” for the words “listening devices”.
Subsection (1) was amended, as from 14 October 1999, by section 10(1) Penal Institutions Amendment act 1999 (1999 No 114) by substituting the expression “to (4)” for the words “and (3) of this section”.
Subsection (1) was amended, as from 1 October 2003, by section 10(2) Crimes Amendment Act 2003 (2003 No 39) by substituting the expression “(5)” for the expression “(4)”.
Subsection (1) was amended, as from 1 October 2003, by section 10(3) Crimes Amendment Act 2003 (2003 No 39) by substituting the words “an interception device” for the words “a listening device”.
Subsection (2)(b)(i) was substituted, as from 1 January 1988, by section 10(2) Telecommunications Act 1987 (1987 No 116).
Subsection (2)(b)(iii) was amended, as from 1 September 1987, by section 22(1) International Terrorism (Emergency Powers) Act 1987 (1987 No 179) by inserting the word “or”.
Subsection (2)(b)(iv) was inserted, as from 1 September 1987, by section 22(2) International Terrorism (Emergency Powers) Act 1987 (1987 No 179).
Subsection (2) was substituted, as from 1 February 1998, by section 4(1) Crimes Amendment Act (No 2) 1997 (1997 No 93).
Subsection (2)(b)(ii) was substituted, as from 20 December 2001 by section 158 Telecommunications Act 2001 (2001 No 103).
Subsection (2)(b)(ii) was repealed, as from 1 October 2003, by section 10(4) Crimes Amendment Act 2003 (2003 No 39).
Subsection (2)(b)(iiia) was inserted, as from 2 April 2003, by section 26(1) Government Communications Security Bureau Act 2003 (2003 No 9).
Subsection (3) was amended, as from 1 February 1998, by section 4(2)(a) Crimes Amendment Act (No 2) 1997 (1997 No 93) by omitting the words “, other than a telephonic communication,”.
Subsection (3) was amended, as from 1 October 2003, by section 10(3) Crimes Amendment Act 2003 (2003 No 39) by substituting the words “an interception device” for the words “a listening device”.
Subsection (3)(b) was amended, as from 1 February 1998, by section 4(2)(b) Crimes Amendment Act (No 2) 1997 (1997 No 93) by omitting the words “(other than a telephonic communication)”.
Subsection (3)(b) was amended, as from 1 October 2003, by section 10(5) Crimes Amendment Act 2003 (2003 No 39) by substituting the words “the interception device” for the words “the listening device” in both places where they appear.
Subsection (4) was inserted, as from 14 October 1999, by section 10(2) Penal Institutions Amendment act 1999 (1999 No 114).
Subsection (4) was amended, as from 1 June 2005, by section 206 Corrections Act 2004 (2004 No 50) by substituting the words “prisoner call under section 113 of the Corrections Act 2004” for the words “an inmate call under section 21O of the Penal Institutions Act 1954”. See clause 2 Corrections Act Commencement Order 2005 (SR 2005/52).
Subsections (5) to (7) were inserted, as from 1 October 2003, by section 10(6) Crimes Amendment Act 2003 (2003 No 39).
216 C Prohibition on disclosure of private communications unlawfully intercepted
(1) Subject to subsection (2) of this section, where a private communication has been intercepted in contravention of section 216B of this Act, 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 of this Act.
(2) Subsection (1) of this section does not apply where the disclosure is made—
(a) To a party to the communication or with the express or implied consent of such a party; or
(b) In the course, or for the purpose, of—
(i) An investigation by the Police into an alleged offence against this section or section 216B of this Act; or
(ii) Giving evidence in any civil or criminal proceedings relating to the unlawful interception of a private communication by means of an interception device or the unlawful disclosure of a private communication unlawfully intercepted by that means; or
(iii) Giving evidence in any other civil or criminal proceeding where that evidence is not rendered inadmissible by the Evidence Act 2006 or section 25 of the Misuse of Drugs Amendment Act 1978 or any other enactment or rule of law; or
(iv) Determining whether the disclosure is admissible in any civil or criminal proceedings.
Part 9A (sections 216A to 216E) was inserted, as from 6 August 1979, by section 2 Crimes Amendment Act 1979 (1979 No 5).
Subsection (2)(b)(ii) was amended, as from 1 October 2003, by section 11 Crimes Amendment Act 2003 (2003 No 39) by substituting “an interception device” for “a listening device”.
Subsection (2)(b)(iii) was amended, as from 1 August 2007, by section 216 Evidence Act 2006 (2006 No 69) by substituting “Evidence Act 2006” for “Evidence Act 1908”. See clause 2(2) Evidence Act 2006 Commencement Order 2007 (SR 2007/190).
