UNDERSTANDING LEGISLATION – STATUTORY INTERPRETATION

UNDERSTANDING LEGISLATION – STATUTORY INTERPRETATION
CLINIC WEEK 2
Look at the example below. You be the judge.
Crimes Act 1961
216B. Prohibition on use of listening devices—(1) Subject to subsections (2) and (3) of this section, everyone is liable to imprisonment for a term not exceeding 2 years who intentionally intercepts any private communication by means of a listening 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 XIA of this Act; or
(ii) Part I of the Telecommunications Act 1987; or
(iii) The New Zealand Security Intelligence Service Act 1969; or
(iv) The Misuse of Drugs Amendment Act 1978; or
(v) The International Terrorism (Emergency Powers) Act 1987.]]
(3) s216A provides a definition of “intercept” for the purposes of this Part of the Act.
 
Intercept, in relation to a private communication, includes hear, listen to, record, monitor, or acquire the communication while it is taking place:
 
Section 216A also defines “listening device” for the purposes of this part of the Act.
 
“Listening device” means any electronic, mechanical, or electromagnetic instrument, apparatus, equipment, or other device that is used or is capable of being used to intercept a private communication; but does not include a hearing aid or similar device used to correct subnormal hearing of the user to no better than normal hearing; and does not include a device exempted from the provisions of this Part of this Act by the Governor-General by Order in Council, either generally, or in such places or circumstances or subject to such other conditions as may be specified in the order:
There have been no Orders in Council exempting any particular devices
Section 216D prohibits dealing or trading in
any listening device—
(i) The sole or principal purpose of which he knows to be the surreptitious interception of private communications; or
(ii) That he holds out as being useful for the surreptitious interception of private communications (whether or not he also holds it out as being useful for any other purpose).
Study the above and then consider the problem below.
Nick and Russell share a flat. There is one telephone line with two extensions, one in Nick’s bedroom, the other in Russell’s bedroom. Bernie rings Nick, and Russell answers the phone on his extension. He calls out to Nick but receives no answer as Nick is in the shower. Russell puts the receiver down while he goes to tell Nick that there is a call for him. Nick comes out of the shower and takes the call in his own room. While Nick is talking to Bernie, Russell goes back into his bedroom. Russell becomes aware that he has not put his receiver back on the rest. As he goes to do so, he realises that Nick and Bernie are talking about him and are enjoying a joke about his new jacket, which Russell thinks is very smart but which Nick and Bernie think is really very unfashionable. Later that day Russell complains to Nick about this and says that he does not appreciate his clothes being held up to ridicule in this way. Nick, who is reading law,1 says that people should not listen to other people’s telephone conversations and that Russell has committed an offence under s216(B) of the Crimes Act 1961. Write a brief opinion on whether you agree with Nick’s view.
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