Making a complaint under the Crimes Act about the recording of John Key and John Banks' public-private conversation presumably seemed like a good idea to someone in National's campaign at the time.
Now that the police have told Radio New Zealand it will be subject to a search warrant in pursuit of "unpublished material" related to the complaint, I suspect there are some second thoughts. Because things get serious when you involve the police. (I actually would not discount the possibility that the police are acting as they are to make that very point.)
The extraordinary thing is that there is no evidence that RNZ actually has a copy of either Bradley Ambrose's original recording or its transcript. The public broadcaster's news chief Don Rood says the police are seeking "unpublished material relating to interviews it conducted" with Ambrose.
RNZ should, of course, on no account, surrender any such material. To do so would be to compromise its ability to conduct sensitive interviews in future. Even if there is nothing of note in any material it holds -- and, frankly, it's not clear it even holds anything it hasn't broadcast -- to willingly hand it over is tantamount to giving up a source. That it has even been subject to such a request is extremely troubling.
What the police are doing here is criminalising journalism.
It's not clear who made the decision to escalate a political embarassment to the level of a criminal complaint, or whether the complaint was made in an attempt to shut down the story, or out of a genuine sense of injury.
It is also unclear whether the law has actually been broken, or what prospect there is of charges being brought, or against whom.
What is clear is that the decision to respond with maximum aggression to the incident -- and remember, the Herald on Sunday sought permission to publish a transcript and did not do so when permission was refused -- has escalated the "teapot tapes" into the story of the 2011 campaign.
The nuclear response began on Sunday with that psychotically aggressive press statement by Steven Joyce. Joyce made a number of claims that now seem unsustainable.
He accused the Herald of Sunday of lying when it said Ambrose was a freelancer, not a staff member. We now all know that Ambrose is a freelancer, and even took the recording to one of his other regular sources of work, 3 News, before the HoS.
Joyce also claimed that the HoS "deliberately arranged the taping". We should all now know that is an absurd claim. No plotter could have known that Key's DPS staff would shoo journalists out of a media event; it's clear that no one expected that. No plotter -- short of the power of Jedi mind tricks -- could have counted on the radio mic being left behind, in open view, at Key's elbow when every other device was removed. And, of course, it's fatuous to suppose that the HoS would have arranged this miracle so that the story could be shopped to one of its competitors.
And, finally, Joyce characterised the incident as an "unwelcome introduction of UK-style News of the World tabloid tactics into the New Zealand media environment." As the Commonwealth Press Union's Media Freedom Committe said yesterday (I paraphrase) that's silly.
It didn't have to be this way. As Bryan Gould pointed out on Morning Report yesterday, there is barely a senior political leader in the country who hasn't had an open-mic accident. It happened to Michael Cullen last term, when he did not realise he was being recorded before an interview with Guyon Espiner. When Joanne Black inadvertently recorded an emphatically (far more so than the Key-Banks chat) private conversation in which Geoffrey Palmer was given a dressing-down by his adviser Karren Beanland, the contents of the recording were used almost verbatim by National MP Ruth Richardson to humiliate Palmer. By my reading, Richardson would have faced charges had Palmer made a criminal complaint. He didn't do that.
[Edit: I'm wrong on the above -- perils of writing quickly. As Graeme Edgeler points out, Richardson's use of the Palmer tape wouldn't have been a breach of the Crimes Act for two reasons. One: She recited it in Parliament, where she had absolute privilege. Two: the recording was not deliberately made. I should have phrased that differently -- as something for National's outraged blogerati to consider when they fume over the political use of a private conversation.]
I don't claim to know how the greater public will see this -- it's clear that many people do accept John Key's depiction of himself as the victim of a privacy invasion. I spoke to a journalist yesterday who said that his understanding was that National's campaign team felt this thing was playing out well for them. In some sense, maybe it is.
But even if the incident doesn't knock a single point off National's polling, its handling -- and the decision to drive a wedge between the public and the news media -- has done enduring damage. This thing has gone to a very bad place.