Broadcasting to the nation: the public’s interest in Gareth Morgan and TOP?
Legal challenges over exclusion from minor party leaders' debates are something of a feature of general election campaigns. In 2005, the High Court ordered TV3 to include United Future’s Peter Dunne and the Progressives leader Jim Anderton in its debate. In 2014, the Conservatives’ Colin Craig successfully applied for an injunction to prevent TV3’s The Nation from hosting a debate without him.
TOP's challenge to TVNZ
Leading up to 2017’s election, it was Gareth Morgan’s turn to protest. TVNZ had not invited The Opportunities Party’s (TOP) founder to its multi-party political leaders' debate to be aired on 8 September. Seeking inclusion, Mr Morgan filed for judicial review of the decision arguing that the network’s criteria for participation did not further democracy but instead protected “the incumbents”.
As TVNZ explained to the court, the network had applied a set of criteria used in both the 2011 and 2014 elections. The candidates needed to be:
- The leaders of parties currently represented in Parliament,
- MPs elected in 2014 who are leaders of parties registered on the register of political parties,
- The leaders of registered parties not represented in Parliament that score 3% in at least one of the two 1 News-Colmar Brunton polls preceding the debate.
Party leaders who announced that they would not seek re-election were not invited.
Relying on evidence that TOP was polling higher than the Māori Party and ACT combined, and arguing that poll results were fundamentally uncertain, Mr Morgan claimed that TVNZ’s criteria were unreasonable by being arbitrary. He sought an order from the court to prohibit TVNZ from holding the debate without him.
Justice Geoffrey Venning heard the claim at the Auckland High Court the day before the debate was scheduled to air.
Commenting that the election campaign had been “extremely volatile”, Justice Venning considered that TVNZ's decision was reviewable, but he ultimately ruled in TVNZ’s favour. Unlike Mr Dunne or Mr Craig, Gareth Morgan was denied the opportunity to broadcast his message through this forum. (Morgan v Television New Zealand Ltd  NZHC 2178).
Why could TVNZ be reviewed?
In making the decision about participation, was TVNZ making a “public” decision amenable to review?
TVNZ said no, and opposed the claim on the basis that it was not a public body. The network argued that it was not exercising a public function, power or duty that made its decisions open to judicial review.
Justice Venning disagreed and held the network's decision was reviewable, a decision consistent with earlier precedents.
In both Dunne v Canwest TV Works Ltd  NZAR 577 and Craig v Mediaworks Ltd  NZHC 1875, the court was satisfied that TV3’s election coverage made it a body performing an essentially public function and exercising public powers (even if not a public body exercising statutory functions). As a commercially funded, yet state-owned network, it was not difficult for the court to find TVNZ’s decisions over participation in its election debates were reviewable.
What is a “public function” during an election?
Both the Dunne and Morgan decisions refer to s 4 of the Broadcasting Act 1989 that requires broadcasters to ensure reasonable opportunities are given to present significant points of view. Under the Act, statutory control is also extended over broadcasters on the basis of the public function and nature of the broadcast.
More broadly, in Dunne, the High Court was concerned to protect the fundamental right of citizens in a democracy to be as well informed as possible before voting. Justice Venning followed Dunne, and found that the debates were the performance of a public function by informing voters how to vote.
Our changing media landscape, and the emergence of new media, was a plank of TVNZ's attempt to resist being subject to review. It argued that “the world had moved on” since 2005 and the Dunne decision, with parties now able to promote and publicise their candidates and policies in new ways. Justice Venning rejected this argument without analysis. He later concluded, in considering the prejudice to Mr Morgan, that there would be limited impact on his position because there were “other means of promotion” of his cause.
With new forums and more debates, TVNZ also pointed out, comes greater potential for judicial review applications. Justice Venning does not address this point: in the future, how wide could “public function” be?
This campaign saw an expansion of election coverage. The Spinoff website hosted a debate on Facebook Live which featured "the mouthiest and most passionate politicians and wannabes" –Paula Bennett (National), Kelvin Davis (Labour), Marama Davidson (Greens), David Seymour (ACT), Shane Jones (New Zealand First), Marama Fox (Māori Party), and Gareth Morgan. The Spinoff was widely read, and its stories shared, throughout the campaign.
There may be some force in TVNZ’s concerns about the possible expansion of review. Would such sources of journalism, such as The Spinoff, be open to legal challenge in future elections? Possibly.
The Justice and Electoral Committee's Inquiry into the 2014 General Election included proposals for updating election broadcasting rules to reflect new media usage. In August 2016, the Government also announced that changes would be made to the Broadcasting Act to reflect the new ways that New Zealanders are consuming, and broadcasting, news content.
These reforms are not yet before the House. However, by the 2020 election the law may have broadened its scope to capture a wider category of judicially reviewable 'broadcasters'.
Were TVNZ’s criteria unreasonable?
Having decided TVNZ could be reviewed, Justice Venning felt that the “real issue” in this case was whether TVNZ’s criteria were unreasonable. Mr Morgan argued that the criteria, and their application, were arbitrary and failed to afford parties not yet in Parliament an achievable opportunity to participate in the debate.
His main contention was directed at the legitimacy of poll results and the network's reliance on them. He argued polls were generally uncertain and inherently movable, with a margin of error that made them inaccurate.
The method of polling was also challenged. In Dunne the criteria used by TV3 was found to be arbitrary because it was based on one polling result.
TVNZ's criteria relied on two poll results from the same company, Colmar Brunton. Mr Morgan argued that sourcing polls exclusively from one company would lead to inaccuracy, and other official polls had placed his support closer to the network’s 3% threshold. At the time of the debate, TOP was polling higher than many of the other minor parties invited, with the fifth highest level of national support.
In assessing the criteria, the High Court took a wider look, and considered TOP’s poll results from March to late August 2017. On those, the court did not consider that TOP was “building momentum” towards the 5% MMP threshold. Against that background, whether or not reliance on two polls from the same company was sufficient for a selection process for a leaders' debate was not explicitly discussed in the decision.
Gareth Morgan also argued more broadly that the criteria should look at other factors beyond polls to accurately recognise the viable contenders for the election. For example, party membership or number of candidates. In Justice Venning's view, the network's criteria reflected the “practicality” of MMP that there were two ways for parties to be represented in Parliament. They were therefore not unreasonable. The fate of a party seeking to break into Parliament was clearly not persuasive.
Nor was the court persuaded that the order sought by Mr Morgan was reasonably necessary to preserve his position going into the election. The court observed that while TOP would miss out on an opportunity to promote its cause and policies, Mr Morgan had already participated in a number of other debates involving party leaders including one hosted by TVNZ called the "Contenders Debate".
As the application for interim relief would effectively determine the outcome of any further proceeding, the court also considered it was required to adopt a “more robust attitude”.
Ultimately, the court found TVNZ’s criteria to be transparent and workable and the debate went ahead without a TOP representative.
It is clear that there is a mismatch between the criteria and later electoral performance. The final election results showed TOP as the fifth-ranked party with 2.4% – ACT won 0.5% of the party votes (13,075), the Māori Party, 1.2% (30,580), and United Future 0.1% (1,782). TOP ranked nearly 20,000 votes higher than these parties combined with 63,261 votes.
So with minor parties losing electoral seats, do the broadcaster’s criteria need revisiting? Justice Venning noted that minor parties tend to hold the balance of power and their voices are legitimate ones to be heard. In 2020, these voices may need to find avenues in the new media.
It will be interesting to see if judicial review also extends that far.
Last updated on the 3rd November 2017