In December 2014 I co-authored a media law article on minority party politicians using courts to shoehorn their way into TV leaders’ debates.
Talking about the 3-year New Zealand term, we said: “Almost on the same three-year cycle, another case arose involving a political aspirant standing for Parliament seeking to obtain an injunction against a private media business planning televised coverage of election debates.”
Bang on schedule, the TOP party run by Gareth Morgan turned up in the Auckland High Court in September 2017 arguing the same.
On this occasion, however, the Court found for the broadcaster and not the politician.
Gareth Morgan, the leader and founder of The Opportunities Party (TOP) made an application for judicial review of the decision of New Zealand’s leading nationwide broadcaster, TVNZ, to exclude him and his party from its televised debates. Mr Morgan sought from the High Court an order prohibiting TVNZ from holding two of its proposed debates if they excluded the TOP party (effectively forcing TVNZ to include him if they wished the debates to go ahead).
There can be a lot of minority parties, in an MMP environment especially, and TVNZ had given some thought to where to draw the line on who they could sensibly fit into a TV studio stage and televised format. This included TVNZ excluding the leaders of parties not represented in Parliament from participating in the debates if they did not score 3% in at least one of the two 1 News-Colmar Brunton polls preceding the debate. Consequently, TVNZ did not invite TOP to participate in its debates.
The High Court agreed that TVNZ’s decision to exclude the party was a matter that could be subject to judicial review, given TVNZ’s state-owned status, and its role in performing a public function which has important consequences.
TOP argued, among other things, that the polling level should be at 1% or 2% rather than 3%. It was held that there were good reasons for not reducing the level below 3%, especially given the number of minority parties and TVNZ’s practice of rounding up poll results of 2.5% to 3%.
While the High Court acknowledged the importance of TVNZ’s role to inform the public on the political parties, their policies and its leaders, Chief High Court Judge Venning J dismissed Mr Morgan’s application on the basis that TVNZ’s criteria for selecting who could participate in the debates was not unreasonable. The Court also expressed its reluctance to direct how a television programme is presented.
Thanks, Gareth, for enabling a repeat screening of the article (while at my previous firm) covering the previous Colin Craig and Peter Dunne / Jim Anderton case rulings.
FULL TEXT BELOW – International Law Office newsletter, December 2014
High Court intervenes (again) at election time in broadcaster’s planned political debate
New Zealand has just come through another Parliamentary general election, with the incumbent National-led coalition returned by a handsome margin for another 3-year term in government. Also coming to attention, almost on the same 3-yearly cycle, was another case involving a political aspirant standing for parliament seeking to obtain an injunction against a private media business planning televised coverage or debate at election time.
Mr Colin Craig leads a relatively new political party, the Conservatives, not currently represented in parliament. He was standing as a candidate in the upcoming general election, and successfully obtained an urgent interim injunction preventing MediaWorks, one of New Zealand’s largest television broadcasters, from screening a Saturday morning political debate, without him being allowed to participate.
This is the latest occasion in New Zealand where politicians have sought to use judicial review, combined with urgent injunctive court orders, to force media organisations to include them in election coverage. This case possibly represents another expansion of the circumstances in which the High Court will be willing to grant such relief in future.
Challenge to an intended TV political debate
In New Zealand, voting is carried out a form of proportional representation called MMP – the Mixed Member Proportional system. Its defining characteristics are a mix of MPs from single-member electorates and those elected from a party list, and a Parliament in which a party’s share of the seats roughly mirrors its share of the overall nationwide party vote. A minimum 5% voting threshold exists before a minor party can claim MPs up to its overall share, unless it secures an electorate MP instead.
Mr Craig is the founder and leader of The Conservative Party, a minor political party that was formed in 2009. It contested the 2011 election, but did not reach the 5% vote threshold and Mr Craig did not win an individual electorate seat. Hence it has never been represented in parliament.
The debate was to be broadcast on MediaWorks’ “The Nation”, a political current affairs programme that screens weekly on Saturday mornings. It was promoted as a “Minor Party Leaders’ debate”, part of a series of debates being broadcast in the weeks ahead of New Zealand’s general election on 20 September.
During the week leading up to the scheduled debate, Mr Craig became aware that he had not been invited to the debate. Mr Craig demanded that he be included in the programme and, when MediaWorks did not accede, he sought an urgent injunction on the Friday prior to broadcast, asking the Court to prevent the debate from being broadcast without him in attendance.
Mr Craig’s claim was an application for judicial review. He argued that the nature and timing of the debate during the election period meant that MediaWorks was performing a “public function”, and that it was seriously arguable that MediaWorks had acted arbitrarily and unreasonably in the way it had selected which parties or politicians to invite. The grounds for alleging arbitrariness were that the Conservative Party had received more votes at the 2011 general election, and was currently polling better in opinion polls, than some of those parties whose leaders had been invited.
In opposition, MediaWorks argued that, in broadcasting the debate, it was not exercising a public function. It argued the planned debate was not significant in the context of televised coverage of the 2014 general election, was not likely to have a significant impact on the election, and, therefore, the “impact test” that had been applied in earlier cases attempting to judicially review decisions of private companies was not met, and judicial review was unavailable.
MediaWorks further contended that, even if its decision was a reviewable one, the choice not to include Mr Craig was not unreasonable or arbitrary, as it was based on selection criteria that focused on whether the leaders’ political party had attained representation in parliament at the 2011 general election rather than current opinion polls. MediaWorks had selected this criteria as it was considered more fair and accurate than opinion polls. Such polls were known to be volatile, the minor political parties tended to poll close to or within the margin of error, and such polls did not account for features of the MMP system where minor parties regularly enter parliament through the winning of electoral seats, despite potentially having lower voter support than otherwise required for entry to parliament.
MediaWorks also argued that funding, production logistics, and timing constraints made it unreasonably difficult to extend the debate to seven participants, and that this would negatively impact on production values. It argued that the Court should not lightly interfere with a media organisation’s freedom to determine its own editorial content, and to do so without having newsworthiness assessed for it by a Court.
Oral decision granting injunction
In an oral judgment delivered late on the eve of the scheduled debate, Justice Gilbert granted the injunction sought by Mr Craig.
His Honour referred to a previous High Court decision in Dunne v Canwest TVWorks Limited and relied on its reasoning to conclude it was at least arguable (at interim injunction stage) that MediaWorks’ decision was amenable to judicial review.
The Court was also satisfied that it was at least arguable that MediaWorks decision was unreasonable, because it should not have been made solely by considering whether particular parties were successful in gaining seats at the previous election. MediaWorks’ selection criteria had arguably failed to consider relevant events that had occurred since the previous election. In reaching these conclusions, Justice Gilbert emphasised that it was not his current function to determine whether the decision was unreasonable, merely whether it was arguably so.
The Court also considered that both the balance of convenience and public interest favoured the granting of an injunction. This was on the basis that exclusion from the debate was likely to diminish the prospects of Mr Craig and the Conservative Party at the upcoming election, and that this outweighed any inconvenience suffered by MediaWorks, which his Honour saw as confined to issues related to the production resources and facilities available for the planned debate.
There is precedent in New Zealand for injunctions preventing the media from broadcasting pre-election political debates in circumstances where certain parties are excluded, though the decision in Craig potentially marks a significant extension of the circumstances in which an injunction will be granted. The Dunne case broke new ground in establishing that a private broadcaster’s decision regarding whom to invite to pre-election political debates could be, in principle, “one of those comparatively rare cases” where a private company is susceptible to judicial review, and that injunctive relief could be available to excluded politicians in appropriate cases. Despite Justice Ronald Young noting that courts are most reluctant to make mandatory orders, he granted an injunction to two sitting MPs who led minor parties and had been excluded from a prime time leaders debate to be broadcast just days before the 2005 general election.
That decision has been the subject of criticism, with various commentators arguing that the standard of arbitrariness for judicial intervention in a private media company’s decision making was set too low, and that there was a failure to carry out the careful balancing exercise required under the New Zealand Bill of Rights Act 1990 when freedom of expression is at stake, particularly in the context of prior restraint of a television programme.
Two subsequent cases that attempted to rely on Dunne in similar circumstances failed. In both decisions, the Court emphasised the need for exceptional circumstances before intervening to superimpose its own views upon the media’s editorial decisions.
The Dunne case was also notable in recognising that the injunction sought would effectively be the end of the matter, and therefore a rigorous approach to assessing the merits of the case was needed. The Court applied an “impact test” to the available evidence, which in that case included expert political science evidence, to determine whether the particular debate would have public consequences of such importance to make it amenable to review. The key circumstances making a sufficiently compelling case were that the debate in question was to be broadcast immediately prior to the election, was likely to have a significant nationwide audience, and from the expert evidence had a reasonable prospect of significantly influencing the outcome of the election. The selection criteria applied to determining who to invite was based on the results of a single recent opinion poll, and the Court concluded that this was sufficiently arbitrary to justify intervention. The Court commented critically on the high margin of error of opinion polls, and also that they failed to account for the ability to enter parliament by winning an electorate seat.
The circumstances in Craig were different in significant respects to those in Dunne, so it is notable that Justice Gilbert was prepared to rely on the reasoning in Dunne without analysing those differences. The Craig case represents arguably a departure from the Court’s previous reticence to grant such injunctions other than in compelling or exceptional circumstances. Unlike Dunne, the debate in Craig was not the primary leaders’ debate to be broadcast immediately prior to election day, and MediaWorks’ evidence was that it was minor in the overall context of its election coverage (being a Saturday morning show, with plenty of TV coverage likely as the election was then still a month away). Further, the Conservative Party has never had a seat in parliament, and the polls relied on by Mr Craig suggested a very real prospect that it would not be represented in parliament following the 2014 election if unable to secure an electoral seat.
It is always difficult for the Court when facing an urgent application for injunction, and making an oral decision on whatever evidence is available at the time. One reason the factual differences between the Craig and Dunne cases were not addressed may be that the Court specifically restricted analysis to whether the pleaded cause of action disclosed an arguable case, on ordinary interim injunction principles, rather than following the well established higher threshold for what would effectively be a mandatory injunction. As a result, this case appears to have extended the circumstances in which media activity is reviewable, but with arguably insufficient analysis of whether the evidence established sufficiently exceptional circumstances or, if it did, that the activity was unreasonable (in the heightened administrative law sense of “unreasonableness”).
The decision is also notably silent on how the media company’s right to freedom of expression might be factored in, the important role of an independent media in a democratic society and, where freedom of expression under the Bill of Rights Act is at stake, execution of the balancing exercise of competing rights that is required.
The long term precedent value of this decision is not yet clear. However, what is clear is that the urgent and interim nature of the applications leading to this line of decisions has resulted in the law developing in a manner which makes it difficult to predict the outcome in any given situation. Given the speed at which television news broadcast media operates, and hence at which challenges to it must be determined, it is not likely that such cases will readily come before a higher appellate Court to provide further guidance. Until that occurs, the uncertainty may well empower disappointed politicians to engage in hardball tactics with media organisations during election periods.
Gary Hughes, Partner
Ian Denton, Partner
 Craig v MediaWorks TV Limited  NZHC 1875.
 Disclosure: Wilson Harle acted for MediaWorks.
 2005 [NZAR] 377.
 As matters subsequently transpired on election day, the Conservatives did not reach the 5% overall vote threshold, and Mr Craig did not win an electorate seat.
 The authors would like to thank Guy Tompkins for assistance in preparing this article.