The election may be ancient history by now, but the controversy over the recorded conversation between John Key and John Banks is still brewing away. See what I did there?
Given that the misnamed "tea tapes" (I guess "tea digitally recorded conversation" is a bit much of a mouthful) was one of the two most important things to happen during the election campaign, it shouldn't be that great a surprise that it hasn't gone away as an issue.
(Note I've refrained from saying it was the most important thing to happen, as otherwise I would be giving an open invite to every wiseacre to jump into the comments section and say "but what about ...?" So, yes, yes - all those other very important events were just as crucial, too.)
The most recent development has nothing to do with either the substance of the "tapes" content, nor the question of its legality. Goodness knows when the police will make a decision on whether to lay any charges against Bradley Ambrose; apparently they have yet to even speak with him. It would seem they have a little less time to spare on this issue than John Key thought.
Not that I'd be overly worried about the police if I were Mr Ambrose. As I said here, I don't think they will lay charges in this case, much less a conviction occur. Of course, the unsolicited advice of some guy on the internet is not exactly reassuring if you actually are living in the shadow of the law, especially if your professional life is on hold till that decision is finally made. So I hope for Mr Ambrose's sake the police can get this tidied away asap.
Instead, the "tape" is back in the news because of Crown Law's decision to seek an order of costs totalling $13,669.45 against Mr Ambrose. The Crown incurred these (and then some) due to its successful involvement in his attempt to get a judicial declaration that the coversation between John Key and John Banks was not "private" in terms of the Crimes Act. But the decision to try and get them off Mr Ambrose has been met with suspicion and hostility in some quarters.
Bryce Edwards, me old mucker from the Otago Pols Department, thinks it is part of a broader attack on those media that prove inconvenient to the Government. The Herald on Sunday - the paper for which Mr Ambrose was working under contract - not surprisingly also describes the decision is "churlish and vindictive", while its stablemate the NZ Herald thinks the Crown (i.e. you and me) should pay its own costs.
That last conclusion probably is the right one, but it's still not unreasonable for the Crown (who, remember, provided the legal arguments that the court agreed were the right ones to adopt) to at least ask that the expenses it incurred when doing so be met by the person who forced the issue into court in the first place. After all, who else is meant to pay for the Crown's costs here - the nation's taxpayers, or those lenders giving us the $300 million a week (or whatever it is) we need until National returns us to surplus in 2014 (supress your giggles, please)?
So the decision to ask for costs is a pretty routine one for the victor in a legal stoush - which the Crown was, here. However, isn't this case one where the public actually stood to gain a benefit from the case going to court? That's the view of the NZ Herald's editorial writer, anyway: "the incident raises important questions of public interest that remain unresolved." And so if the case had a potential general public benefit, then isn't it unfair to ask Mr Ambrose to carry the full cost of it on his own?
Well, perhaps. But the particular issue on which a declaration was sought - was the discussion between Mr Banks and Mr Key a "private" one - is pretty narrow and unlikely to arise again. Mr Ambrose's reason for asking the court to give an answer to that question simply was to stop any police investigation into the matter and clear his name of the taint of criminality. So in itself it hardly represents a pressing matter of legal uncertainty that other potential eavesdroppers would benefit from having resolved via a declaration on the matter. Rather, any potential public benefit would have been in clarifying whether or not the media could publish the content of the tapes without potentially falling afoul of the Crimes Act themselves. And as others have noted, this question was particularly important in the context of the looming election.
I guess that has enough of a "public interest" flavour to justify a court hearing at which tax-payers cover the Crown's legal costs. However, I would note that APN - the publishers of both the NZ Herald and the Herald on Sunday - didn't think the issue important enough to justify paying for legal counsel to put the public interest argument at the declaratory judgment hearing, despite being served as parties to the case. So there's a whiff of hypocrisy in the NZ Herald now saying "Mr Ambrose deserves credit for trying to test the central issue in court", while sternly condemning the Solicitor General for "[choosing] not to grapple with the substance of the subject."
If I were a betting man, then, I'd put my money on the police not laying any charges against Mr Ambrose, and the High Court knocking back the Crown's request for costs. Does that then mean that the tea tapes saga soon will be over? Well, maybe ... but that depends on Winston Peters.
You see, not only did the tea tapes (and National's pretty inept handling of his rise in the public eye, despite what this moron said about that at the time) give him the oxygen he needed to bring the embers of his career back to flame, but it could be the gift that keeps on giving. He's already rushed out a press release on the attempt to get costs from Mr Ambrose, claiming that "the National Party, acting for political purposes, is using taxpayer resources to have a fight with a private citizen. This is abuse of power and it is also illegal." He's wrong about this, of course, but that's never been the issue with Winston.
And there's been some gossip around the traps that when the House reconvenes for the new year he might use the cloak of parliamentary privilege to disclose the contents of the "tapes". If he were to do so, he'd be completely safe from any legal consequences. And provided the police had not yet laid charges in the case - a real possibility, given how slowely the matter is progressing - there wouldn't be anything in Standing Orders to stop him as the matter would not yet be sub judice.
But here's the (mildly) interesting question. If Winston did verbatim disclose the contents of the "tea tapes" in the House before the police decide whether or not to lay charges against Mr Ambrose, could the media safely report what he has said?
Public law afficiandos can have at it in the comments section.