Police have confirmed Prime Minister John Key has laid a formal complaint over the recording of him and John Banks.

The complaint was "concerning an allegation that a private conversation between himself and the honourable John Banks has been unlawfully recorded."

"This is potentially an offence under s216B Crime Act 1961 carrying a maximum penalty of two years imprisonment," police said in a statement.

JOHN SELKIRK/Fairfax NZ BANK ON IT: Prime Minister John Key with ACT's Epsom candidate John Banks at an Auckland cafe, with the pouch containing the alleged recording device on the table.

It was an offence to disclose private communications unlawfully intercepted.

"This offence is punishable by up to two years imprisonment where any person discloses the private communication, or the substance, meaning, or purport of the communication or any part of it, or discloses the existence of the private communication if he knows that it has come to his knowledge as a direct or indirect result of an offence against s216B Crimes Act."

The Herald on Sunday obtained a covert tape of the "cup of tea" meeting between Key and Epsom candidate John Banks on Friday.

The newspaper did not publish details of the tape on what it said were ethical grounds, but it did publish the broad themes and suggested the contents of the tape would be "a game-changer".

The cameraman said he had not listened to the full tape of the private conversation.



Key said he had taken legal advice over night and would lay a complaint over the tape at 4pm today.



He said he did not accept the arguments of the videographer who said he had inadvertently left a recording device on the table at the café and been prevented from getting it back.



"He will be able to answer those in due course to the police," Key said.



He said the complaint would be "in the first instance" against the cameraman.



"But I guess ultimately, that may well be the Herald on Sunday," he said.



"It was made clear by my chief of staff that all recording devices should be taken off the table. That's the responsibility of the individuals involved.



"And if somebody doesn't take the recording device off the table, that is their responsibility."

Cameraman Bradley Ambrose said he listened to the end of the tape and was embarrassed when he heard the prime minister spot the recording device.

"I felt I'd embarrassed him, so I felt quite embarrassed about that. He [Key] says something like 'is this yours, is this yours, hey it's a recording device and that's when the PR woman says we'll take that."

Ambrose said he recorded the conversation by accident and could not believe it had been blown into "such a big thing".

"It was a simple mistake in a hectic and chaotic media scrum that just has been blown out of all proportion."

Ambrose said he disputed some of the version of events circulated by the prime minister's office but did not want to get into a row with him.

"I'm not going to stand there and start arguing with the prime minister ....he's got a battallion of PR people to help him and protect him and I don't."

He said if the prime minister's office had returned his microphone "no one would have heard about it".

Other journalists who were there that day have described the prime minister's office warning media to remove their taping devices but Ambrose said he could not recall that.

"I can't recall that at all. I was getting quite a wide shot of the media scrum."

There was not a lot room and he had grabbed the microphone "with one hand and threw it on the corner of a desk between a couple of people".

"I placed it on the corner of the desk and I have absolutely no idea how it got to the prime minister."



John Key said he had not noticed the device at the time because he was focused on Banks.



He repeated that he was "not in the slightest" concerned about the content of the conversation being known.



There was a "significant number of inconsistencies" in the Herald on Sunday story.



"You and I both know that if there was something explosive on that tape, they would have printed it and asked questions later," he said.



"The reality is, in my view, they deliberately sought to get a tape and they deliberately sought to try and get information. That's News of the World tactics and there is no place for it in New Zealand."



There had been "a number of questions" posed about the story which hadn't been answered, he said.



"I'm not going to put up with News of the World tactics against me," Key said.



SHOW US THE TAPE

Labour and the Greens have called on Key to release a transcript of the secret recording.

Labour's campaign manager Grant Robertson believes the prime minister is trying to put up a smokescreen by focusing on the motives and legality of taping the conversation.

''Frankly that is a side issue to what was actually said between the two Johns.''

New Zealanders should be able to judge for themselves whether the conversation was as bland as Key asserted.

''Otherwise speculation will continue to mount. What did they say about the role of other parties in the government they would like to form? Did the sale of further state assets come up?''

Key and Banks put themselves into the public domain by hosting a media stunt, he said.

''New Zealanders deserve to know what deals and promises are being made if National and ACT get to form a government.''



"If I was Key I'd release the tape," Greens co-leader Russel Norman said this morning.

"It is a private conservation... they thought they were having a private conversation people have a right to a private conservation...."

Norman said if there was nothing in the conversation, he could see no reason for it not being released.

He was also critical of the deal between National and ACT at the centre of the conversation.

"ACT is saying they will keep National accountable, but the National Party now owns ACT. ACT only exists because National lets it exist."

Norman said the ACT Party had a dog-eat-dog philosophy but its survival now depended on a piece of welfare from the National Party.

EMBARRASSING FOR THE PM

The recording was embarrassing for the Prime Minister and was likely to change the way some people vote, the Herald of Sunday editor claimed this morning.

Bryce Johns said Key was doing "an exceptional job at deflecting the attention in this saga from what he said".



"I've got a bit of disdain for the prime minister right now and the lines they are running."



Senior editorial staff had expected the conversation to be boring but for Key and Banks to "traverse into the areas they did with the media pack less than one metre away is unfathomable".



However, the tape was not Watergate "by any stretch of the imagination".



"It's just some silly 'this is how we are going to rule the world stuff'.



"It's nothing that is going to bring down the Government but it's certainly embarrassing."



Johns said there was one "injudicious" comment that could change the way some people vote.



The freelance cameraman was "absolutely, 100 per cent not a staff member" and Johns said he had no reasons to doubt his motives or his story.



Key said National party staff were now handling the issue and would look at whether any legal action would be taken.



It is illegal to tape a conversation if neither party knows they are being recorded.



The cameraman had never approached his staff to get the device back during the meeting or told staff at the cafe he had a recording. The newspaper claimed he discovered it when he got back to his office.



Key said he would not give permission for the tape to be released because "once you start News of the World tactics from a tabloid like the Herald on Sunday, you just encourage them to do it to everyone else".



"Once you start with me, then it just goes to other well known New Zealanders.



"The British public saw what that was like and in the end it's very distasteful."



Johns said the Herald On Sunday may be a tabloid paper in its physical size but "certainly not in its approach to journalism".



"I'm not aware of anybody in journalism in this country who would deliberately tape a conversation outside the bounds of the law.



"Certainly none of my journalists, none of the contractors are ever instructed to do that.



"It's in the public interest and we would love to publish it but ethically we are the ones that have made the right call here by not doing it."