Wednesday 23 November: Court refuses to rule on teapot tapes

Tasman drift at forefront as Goff and Key clash in final debate and High Court declines to rule on privacy of cafe chat.

9.20pm: The leaders’ debate Jane Clifton’s verdict

At this late stage of the hustings, I simply cannot bestir myself to “call” this one, because unlike the actual poll, these debates are really not “won” or “lost” in any meaningful sense. For a start, the audiences for them only represent a proportion of voterdom. And while they’re not uninfluential at the margins, by now most people who will actually vote have made up their minds, and will listen and discount accordingly. Both leaders have said the same things repeatedly – albeit with increasing aplomb – throughout the campaign, and for a considerable time before then.

We are almost at the Chinese menu stage, where Key’s assertion No 47 is met with Phil’s Response No 66 and Phil’s policy pledge No 32 with Key’s rebuttal No 17 and so on. Jon Johansson is dead right, that their competing fiscal assertions are utterly impossible for us voters to judge, so it is down to whose general narrative we most trust, and whose version of events we most want to believe.

Diversions – chiefly the damned tea spill – have probably near-exhausted voters’ decision-making reserves, and I can’t see how this debate will change anybody’s mind, any more than – to judge from the polls’ consistency – any of the other formal clashes have.

I hate to write this, and it’s taken quite a big slug of chardonnay to nerve me to this point but … the big marginal questions now seen to revolve around You Know Who.

A. Will the potential restoration of Winston to Parliament drive a whole lot more people to vote against MMP?; it’s very possible;

B. Will his looming presence nerve voters in Epsom and Ohariu to peg their hooters and vote for Banks and Dunne even as it kills them to do so?; and

C. Will the Greens now have to think rather more seriously about holding their noses and doing at least a sideline deal with National if Winston does get back into the House, simply to crowd him out of the agenda? Their future depends heavily on the continuation of MMP, and if Winston has any room at all to start throwing his weight around in the next parliament, MMP’s rep is going to plummet. The Greens may get some policy trophies from the Nats, and be in the position to contrast that handsomely with an undoubtedly noisy and vandallous Winston achieving precisely nothing.

While this has the disadvantage of also being to the Nats’ benefit, it also has the potential to set the Greens up as an even more attractive option for mainstream voters: give them some power and they do not abuse it, they use it constructively, etc, so MMP can work.

On the other hand, maybe I need to start on the top shelf…

For the live blog of The Apprentice leaders’ debate, go here.

9.00pm: The Washington Post, birthplace of the inescapable -gate suffix, have picked up an Associated Press report on events in little New Zealand: 3 days from election, New Zealand police search media outlets for PM’s recorded conversation.

For the live blog of The Apprentice leaders’ debate, go here.

6.50pm: EVENING BULLETINS

Checkpoint leads with the judge’s non-decision on the teapot recordings. (see 3:30pm), and the confirmation from Bryce Johns that the offices of the Herald on Sunday (see 5.20pm) have been visited by the police. Mary Wilson speaks to Bradley Ambrose’s lawyer, Ron Mansfield. He says anyone who sees the footage who is sensible would not consider it private. Ambrose has not yet been contacted by the police, he says. John Banks chirps in to say it is a smart ruling but he is busy in Epsom.

Next up the Greens‘ challenge to the ombudsman to order the release of Treasury information on the asset sales.

Mary speaks to Russel Norman who wants the public to know if MFAT has given any advice to the Government over whether restricting foreign ownership is possible under our current trade agreements and has referred the ombudsman to the 2005 election when Labour were ordered by the ombudsman to release student loan costings.

Next up it is the recent statistics on migration to Australia and then on to Egypt.

One News leads with the helicopter crash on Auckland’s waterfront earlier today, and the pilot’s miraculous escape. Next up is more on drug use in Fairfield school. The growing pressure on National to release details of the five Treasury documents about asset sales is first in the election coverage. “It’s slightly commercially sensitive,” says Key of the suppression. TVNZ, like the Greens, has written again to the ombudsman protesting the public’s right to know what is inside ahead of the election.

The Teapot non-ruling follows, Ron Mansfield appears to say they will hand over Ambrose’s affidavit and recordings when the Police call and are confident he will not face charges.

Then we hear the reaction to Kyle Chapman’s  “right wing resistance” appearance at a campaign meeting in Christchurch last night. Apparently he plans protests outside polling booths on election day, which, according to the Electoral Commission, could land him on the wrong side of the law.

Guyon Espiner appears next to tell us what will happen in tonight’s leaders’ debate. He shows us a nice table where they will all sit. Follow our coverage here.

The helicopter crash leads on 3News also followed by the teapot recording decision and the search warrants.

The asset sales plans are next with Key saying “we can just make that as law” on capping foreign ownership. Phil Goff and Russel Norman provide the reaction soundbites. Duncan Garner talks about the growing traction opposition parties are getting on this issue.

“No asset sales,” say the Greens to Patrick Gower during their tea with Wellington Mayor Celia Wade-Brown. This, along with welfare reform and deep sea drilling, is an obstacle to a working relationship with National. Gower asks if it is a possibility. “Highly unlikely,” they reply.

Then we are off to a Kaitaia foodbank in Hone Harawira’s electorate after his state of the nation speech today. He is on  the defensive. “What do you want me to do, visit every single foodbank?”. He has created 200 jobs in his own electorate, he says.

After the news on Egypt, Kyle Chapman gets more airtime.

5.20pm: The Herald reports that Police executed search warrants on the Herald on Sunday and TVNZ this afternoon.

5.05pm: I’m off to the Media 7 recording – back for the debate, which will appear in a new window here. Philip is poised to roundup the bulletins.

4.40pm: Forget the imitators, the original (or original-er) DEBATE BINGO has landed. Four different cards so the whole family (or posse or whatever) can play together. (PDFs.) Bingo!

Debate Debingo

4.25pm: The police have said they will execute search warrants on four media organisations with tea tape material either this afternoon or tomorrow, reports Newstalk ZB.

It would be fun if they stormed the studios at, say, 7.15pm.

3.30pm: From the judgment this afternoon by High Court Chief Justice Helen Winkelmann:

I make it clear that I have not reached any view on whether this was a private communication … Because of the timing of this hearing I would add to the considerations identified … the risk that such a declaration will have an inhibiting effect on an on-going police investigation, and eventually upon the exercise o the prosecutorial discretion, (should the matter proceed that far) … The plaintiff’s application, for a declaration that the discussion between the Prime Minister, the hon. John Key, and the Act Party candidate for Epsom, John Banks, at the Urban Cafe on 11 November 2011 was not a “private conversation” as defined in s216A of the Crimes Act 1961, is declined.

That’s via Scoop, where you will also find a link to a PDF of the full judgment.

3.15pm: Breaking news sometimes has a double meaning. The race to report the news from the Auckland High Court this afternoon led to a number of erroneous, over-hasty reports of the judge’s ruling. Was it private, public or did she refuse to provide the declaratory judgement Bradley Ambrose had sought? It was the last of these, we now know – and here’s the RNZ report - but initial reports had it every which way. We didn’t help: having seen Newstalk ZB report that it had been ruled private, I tweeted the news (I tweeted a correction, as did most).

Here’s some of that muddle:

2.40pm: BREAKING

High Court Chief Justice Helen Winkelmann has refused a declaratory judgement on whether the teapot tape conversation was private – which means the situation is unchanged. More soon, including a real media hasty-reporting muddle.

The one thing this does mean, however, is that police are likely now to pursue the search warrants, which they delayed until the ruling was made.

2.25pm: Standing by for a ruling from the Auckland High Court on the teapot tapes.

2.00pm: Hone Harawira, leader of the Mana party, has delivered a “state of the nation” address today. Read it here. The Wordle below will give you a good summary of the themes he focused on:

1.05pm: The One News exclusive last night on Treasury advice over asset sales and keeping shares in New Zealand hands (the version of the story on the TVNZ site is here) has got a good bit of traction today. Phil Goff has issued a bellicose press release:

[John Key] has deceived Kiwis by claiming he had information from Treasury that would ensure a 10% cap on foreign ownership of our assets. It now appears there was no such advice. Rather it seems John Key was relying on advice from his spin doctors and so-called market contacts, who are likely to be the corporates wanting to gobble up the shares.

Goff has also signed a pledge never to sell KiwiBank, and challenged Key to do the same.

Green co-leader Russel Norman is singing a similar tune. “National is repeating their privatisation mistakes of the 1990s,” he says in a release. “It is a victory of ideology over experience.”

Meanwhile the National leader has said they could legislate to ensure a cap of 10% ownership by a single shareholder. “We can just make that as law. Telecom has a cap, it’s just a matter of making legislation [to that effect],” he said, according to the Herald.

12.45: Thanks to Cam in the comments for highlighting this interesing piece at Scoop by Keith Rankin of Unitec. It considers the possible ruling configurations, and warns against demonising the NZ First factor. Rankin concludes: “It is looking, to me at least, like a National-Green-Maori government will be the sensible outcome, given the numbers that the voters are likely to deliver.”

12.35pm: Some reminders

This morning’s paper review is here.

We’ll be live blogging tonight’s debate on a new post, which I’ll provide a link to later this afternoon. We’ll knock out a new set of Bingo cards – any suggestions welcomed.

An index of the last four weeks in live blog is here.

A guide to all the election night TV, radio and online coverage is not here. Philip is working on it now, though, and we’ll slap it online on Friday.

We’ll be online as soon as the clock strikes 7pm on Saturday night, absorbing all the coverage intravenously and regurgitating all the things that seem significant, or remarkable, or jolly, in a typo-ridden, swivel-eyed scrawl. There will be a party pack coming your way to help fill the gaps if you’re congregating for election-night fun times.

12.05pm: John Key has released a “Post-election Action Plan”, setting out the priorities in the event – just imagine – that National should be re-elected on Saturday. At a glance it appears to include most of the policy announced in the last four weeks, under the headings economy, welfare, law and order, education, health and the Canterbury rebuild.

“We will get straight back to work on making our economy stronger, by balancing the books, repaying debt, and creating more jobs,” says Key. “The plan outlines the next critical actions a National-led Government will take in several important areas – debt and the economy, welfare, law and order, education, health, and rebuilding Canterbury.”

The statement also attempts to forestall any complacency among the faithful. “A number of opinion polls are saying National is in a strong position going into polling day on Saturday,” says Key. “However, the reality is that Saturday is the only poll that counts, and the result will be much closer than some people think.”

The release is here; and the two-page PDF document here. The one-page release includes the word “stable” five times, and the word “strong” seven times.

11.50am: BLOGGERS

At Kiwiblog, David Farrar explains why he’ll be voting against MMP and for STV. He also dissects the numbers from this morning’s poll (see 7.10am) and urges National supporters against complacency on polling day.

Scott Yorke of Imperator Fish issues a similar get-out-and-vote rallying cry to Labour supporters (or, at least, opponents of National).

At No Right Turn, Idiot/Savant explains why he’s ticking Green for his party vote, and backing MMP.

Whaleoil aka Cameron Slater says there’s a dirty deal afoot in Auckland Central, but because it’s Labour and Green conspiring, there is less media criticism.

Gordon Campbell at Scoop discusses last night’s Bryan Bruce documentary on child poverty and judges that “the Greens seem to have fashioned the most co-ordinated policy package to address the problems that Bruce has highlighted”.

(Update: I’ve just seen Lew Stoddart taking on the complaints of rightwing bloggers about the screening of that documentary at KiwiPolitico.)

“Those who lament the salience of ‘Cuppagate’ in the current campaign simply don’t understand the nature of electoral politics,” writes Chris Trotter at Bowalley Road.

Cathy Odgers continues at her Cactus Kate blog an examination of the youth candidates standing for election.

A panel of experts including Ginsberg, Lenin and Sartre assess the campaign to date at Denis Welch’s Opposable Thumb.

And for something more reflective, Giovanni Tiso’s semiotic analysis of campaign posters at Bat, Bean, Beam is a terrific read.

11.35am: The Tasman drift numbers – and John Key’s reaction – has been covered by the Australian Associated Press. At the Sydney Morning Herald site it is headlined, NZ PM stands by brain drain promise.

11.00am: Labour is pushing hard on its own-our-future line. David Parker is claiming that the lack of any pre-election answer on the fate of Crafar farms suggests “National is concealing its intention to sell off our farmland to foreign buyers”. Grant Robertson meanwhile is demanding that National release all the information (that TVNZ is pursuing) relating to asset sales and the proportion that will stay in New Zealand hands.

9.50am: Reminder: Read the Philip Pinner morning paper review here.

9.45am: KEY ON NINE TO NOON

Kathryn Ryan dives directly into the Tasman drift in her interview with John Key on Nine to Noon. Don’t yesterday’s figures show they failed in their pledge to staunch the flow and close the economic gap? Key says no, it can’t be turned around overnight, they’re making progress – and they have closed the wage gap in terms of after-tax pay. But not by other measures, says Ryan. “You can always use any statistic you like,” says John “110% pure” Key – but the government has always used that as its test. Labour, he says, would pursue a fiscal approach that would load the country with debt and stymie economic growth.

What about the underclass? Key cites a number of achievements, including immunisation programmes, and home insulations. Thanks to the Greens, says Ryan. “Actually it was ours, but we’re happy to work alongside them and that’s cool,” says Key. If you want to move people out of poverty in the long term, says Key, you have to move people off welfare and build the economy.

What’s your economic plan - Business NZ and Deloitte’s think you lack a coherent strategy, Ryan poses. “Infrastructure and skills,” he says. Infrastructure? Roads, ultrafast broadband, rail and the electricity grid  – that’s what experts from the Australian and UK Treasuries told him to do over lunch, he says. Then to assets, and off we go into a cul-de-sac on the profitability of the assets for sale, where Key effortlessly blinds us with accountancy.

Are there more asset sales down the line, asks Ryan. No plans, says Key – “because this is a big sized programme – we need to do it properly and do it well.” Is it something that might be negotiatble in the event of coalition talks? Key dodges that, saying that New Zealanders have not been fairly told the alternative, misled by Labour’s campaign of “fear and misinformation”. Ryan tries him again – is it up for debate? “I don’t think so,” he says: the alternative is higher debt, higher interest rates, but he does not rule out negotiation.

Do you want to rule alone? “I want to maximise the party vote, but I will bring other parties in … The bigger vote we get, frankly the more stability we get.” Then Key invokes the American wrangling over a budget deal – that’s not helpful he says. The next three years will be “economically volatile”, and stable government is what the country needs, he says.

What if things go belly up? What’s the plan B? “We’ll be calm … We’ll have a plan,” he says, vaguely. They’ve shown their ability to deliver a balanced budget, but they could if they had to. Repeat after Key: “Strong, stable government” – those three words will be the National drumbeat all the way to the end of Friday.

No wobbles from Key there – he’s vulnerable on poverty, and he’s vulnerable on Tasman drift given the latest numbers, but he has a mental dossier of number-based rebuttals. Also notable in that interview was Key’s keeness to underline that National had held on to the welfare state provisions that protect society’s weakest – presumably an emphasis tailorerd to the Nine to Noon audience.

9.05am: Read the Philip Pinner morning paper review here.

8.30am: The Greens have also been drawing attention to last night’s documentary on child poverty (see 7.40am). In a press release, co-leader Metiria Turei says:

The Green Party has solutions that will bring 100,000 children out of poverty by 2014. We have made this an election priority … The Green Party’s plan to lift 100,000 children out of poverty addresses many of the issues which were raised in the documentary, including ensuring kids have warm healthy houses, minimum housing standards, and making Working for Families Work for the most vulnerable.

8.20am: Here’s the latest from the Listener’s Chris Slane:

7.55am: On Breakfast, John Key is alongside Corin Dann. He begins on the story One News broke last night (see yesterday, 6.50pm), which showed Treasury has provided no advice on whether the shares in sold assets can be kept in domestic hands. “This is a major policy decision, one which has scarred a generation, asset sales, why no Treasury advice?” asks Dann.

“Well firstly, this is National party policy, and we can set that policy,” says Key, stubbornly. They have taken some oral advice he says, including from the Treasury, that suggests to them the ambition to keep 85%-90% in New Zealand hands is plausible. He says NZ investors need good things to put their money into, and Kiwisaver and iwi funds are likely to invest in these assets; but no preferential treatment for iwi, he reiterates.

But people don’t support the asset sales, says Dann. “Misinformation,” says Key. “Depends on the question.”

What about the education policy? It’s controversial: why release it in the last week? “To absolutely signify the critical nature of education. We want to say that this is the policy that we’re releasing in the last week of the campaign and it’s about increased participation for youngsters …” And performance related funding for schools? “It’s about saying those very high performing schools … how can we build in greater incentives there?” The introduction of personality tests, he says, are essential to ensuring the best teachers are recruited.

Dann says teapot tapes, Key says, “I’m interested in the issues that matter …” And you know the rest.

7.40am: Phil Goff is on Firstline to discuss the documentary screened last night on TV3, Bryan Bruce’s Inside Child Poverty – A Special Report. Why aren’t we doing more to address the plight of children, asks Rachel Smalley. Our children’s agenda (see Monday 7 November), says Goff, does exactly that. “It’s almost a blueprint of what Bryan Bruce was saying that documentary last night.”

Goff says that National rebuffed their offer of a bipartisan approach. Labour, he says, will do more for housing, including accelerating the home insulation programme, making it compulsory in both private and state rental homes. And with that, he’s away – a bit of an easy ride, really; no challeges on Labour’s own record nor where the funding is coming from.

7.30am: MORNING BULLETINS

At 7am National Radio’s Morning Report leads with the Act party saying the numbers leaving for Australia are a blight on the National party. Second is Lincoln Crawley of Man Power Australia recommending a taskforce on the drift of New Zealanders across the Tasman. Third: John Banks says he can win in Epsom. Fourth: the High Court ruling on the teapot tapes. FIfth, a constituency meeting disrupted in Christchurch Central by that odd fellow who used to run the National Front. Sixth, the Fairfax poll (see 7.10am)

That disrupted Christchurch meeting is a strange choice of lead in the 7am bulletin on One’s Breakfast. Next is a preview of tonight’s televised debate. Then the teapot tape judgement expected this afternoon.

On TV3′s Firstline, the High Court teapot tapes ruling tops the bulletin. Then a wrapup of the busy last few days on the campaign trail. Third, the Fairfax poll.

7.20am: Bill English and David Cunliffe have been on Morning Report with their different takes on the figures (see yesterday 3.30pm) showing the flight of New Zealanders across the Tasman. English disputes the suggestion that National’s approach has failed – “considered and consistent change over time” is the answer, he says. Cunliffe is in full flow; it’s a damning indictment of National’s economic record.

7.10am: Days out from the proper poll, National remain way out in front, according to the Fairfax / Media Research International Poll this morning.”Policy shocks, teapot tapes, billboard vandalism campaigns – throughout it all the polls have been largely unmoved,” writes John Hartevelt. Indeed it’s as if people made up their minds at the start and haven’t budged since.

The numbers:

National 54% (up 1.5)

Labour 26% (up 0.1)

Greens 12% (down 0.6)

NZ First 4% (up 1.2)

Maori party 1.1% (up 0.4)

Mana party 1.1% (up 0.4)

Act party 0.7 (down 0.3)

United Future 0.1 (down 0.2)

Those numbers refer to those who have indicated a preference, of course. Labour’s remaining hope is the number of undecideds, which, remarkably, has gone up again, by 1.3% to 15.6%. (My bet is the potential for most of those to go to Labour is what John Campbell would call the Mike Moore theory – but I can’t be sure, because he’s refusing to divulge it, upsettingly.)

6.50am: Good morning. It looks like things will be busy today. John Key is on a tour of the state-owned broadcasters, doing both Breakfast on One, then Kathryn Ryan on RNZ. We await a declaratory judgement – or, perhaps more likely, the refusal of one – on the legality of the teapot tapes. And tonight the final debate between Key and Phil Goff is on One.

In a moment the bulletins, soon the papers.