Judge denies Morgan bid for access to TV debate

The chief High Court judge has ruled against Gareth Morgan in his application to get into TVNZ’s minor parties debate tomorrow.

The leader of The Opportunities Party (TOP) sought an interim injunction to get him in into TVNZ’s minor parties debate and another youth debate to be held later this month.

Delivering his decision in the High Court at Auckland this afternoon, Justice Geoffrey Venning says the state broadcaster could be subject to judicial review: "Despite TVNZ’s submission, and for the reasons given by Justice Ronald Young [in the Dunne case] I accept there is jurisdiction, although commercially funded it is performing a public function and therefore it can be reviewed.”

He rejected the contention, however, that TOP will be irrevocably harmed, saying that while it will be affected, there are have been a number of other party debates which have included Dr Morgan.

"The real issue is whether the criteria is so unreasonable that the decision should be reviewable.”  

Justice Venning says TVNZ’s criteria was “‘transparent and workable,” and said the court is reluctant to tell TVNZ what to do. 

"Standing back and looking at the matter overall I am not satisfied has made out a case that the criteria is unreasonable. For those reasons I decline the application for judicial review."

Earlier TVNZ's lawyer warned the floodgates will open if Gareth Morgan got his way and is allowed to gatecrash tomorrow's TVNZ minor parties debate. 

Dr Morgan was not invited to the debate and went to the High Court at Auckland arguing it was unfair that leaders from other parties were able to make the cut despite their parties polling lower than TOP.

The state broadcaster’s rules say the party has to be in Parliament or polling at 3%. The court heard TOP is sitting on 1.9% in the latest Colmar Brunton poll, which TVNZ uses.

What the lawyers argued

For Dr Morgan, Francis Cooke QC told the court TVNZ is promoting the debate as bringing together potential coalition partners, and had to take a non-arbitrary approach in doing so. He referred to an affidavit of political scientist Bryce Edwards which explained how a more holistic approach to determine who attends debates might work.

He says the bright line test TVNZ was using was arbitrary and other broadcasters weren’t behaving in this way.

"I accept that the broadcaster gets to make decisions but you can’t exclude someone on the fact there is a rule, there needs to be genuine approach to see who is a contender,” he says.

State broadcaster’s reply

Minter Ellison Rudd Watts partner Stacey Shortall, who represented TVNZ, placed heavy emphasis on the fact if TOP wins, many other parties could come to court arguing the same thing. 

She says the threshold Mr Morgan had to reach to win the case should be higher than establishing a serious question to be tried (the usual standard for interim injunctions), which was the standard which Colin Craig had met when he won his case against The Nation. Ms Shortall says this is because while interim relief was sought, with the debate being tomorrow this means whatever happens essentially determines the case.

Ms Shortall also says previous court decisions for MP Peter Dunne and for Mr Craig were different situations, where the then broadcasters TV3 had only one criterion, while TVNZ has used many for this debate.  

She says TOP has gone down in the polls, with a poll out tonight which puts it at 1.9%, due to the self-inflicted wound, and therefore is trying to get around the 3% criteria. 

The lawyer rebutted arguments surrounding the Electoral Commission’s approach to determining funding, saying TVNZ does not have the ability to investigate in this way. She also pointed out TVNZ's approach was uncontroversially used in the last election. TVNZ submitted evidence from the state broadcasters general counsel Brent McAnulty which refers to political scientist Raymond Miller saying Dr Edwards approach is not necessarily the best one.

Read the full decision here.