With apologies to Steve Braunias – an account of Morgan v TVNZ [2017] NZHC 2178

The registrar had fetched more chairs for the press bench in Courtroom 14 but the reporter from NBR still had to perch in the jury box.

The public gallery was perhaps a third full.  Sean Plunket wedged himself into a seat in the front row of a half-full public gallery.  His Hand of the King badge was, one assumes, pinned to his other jacket.

Justice Geoffrey Venning entered and bowed to the parties.  But before matters could commence there had been new papers filed over lunch.

“Is a Mr King, from the Internet Party, here?”

Mr King stood up in the public gallery.  Justice Venning asked him to confirm he had filed the new papers and that they were an application for the Internet Party to be joined to these proceedings.  His Honour seemed unconvinced.

“Mr King, you’re really saying ‘me too’, aren’t you?”

“It could be characterised that way,” Mr King conceded.

Perhaps, one of the lawyers suggested, they could wait to see what happened with Mr Morgan’s application before figuring out what to do with Mr King’s.

Francis Cooke then began the submissions for Gareth Morgan.

Francis Cooke QC’s family tree is the same oak that they use for courtroom wall panelling.  Small slips of his language betrayed his familiarity with appellate advocacy where there is normally a three or five judge bench.  Twice he referred to Justice Venning as the plural “your Honours”.

He dived right in.  Gareth Morgan, leader of The Opportunities Party is not invited to TVNZ’s minor parties leaders’ debate tonight.  TVNZ are billing the debate as bringing together the potential coalition partners of the next government, and by not inviting TOP they are saying that TOP has no chance.  That can’t be right, said Cooke.  Especially when TOP is polling higher than ACT, United Future and the Maori Party (all of whom are invited).

The courts have intervened in televised election debates twice before.  In 2005 Peter Dunne and Jim Anderton were excluded from a debate because the test for inclusion was based on the results of a single pre-election poll.  Dunne and Anderton both led parties with multiple seats in the House at the time.  Justice Ronald Young said let them in.

In 2014 Conservative Party leader and budding litigant Colin Craig was excluded from a debate because Mediaworks was only going to invite representatives of parties who had MPs in Parliament.  Craig was polling higher than several of those parties.  Justice Gilbert forbade TV3 from airing the debate without Craig.

TVNZ had learned from both cases.  This time invites are sent if a party has had an MP in Parliament this term (not Gareth Morgan), or if they have polled at 3% in either of the preceding two Colmar Brunton polls (also not Gareth Morgan).  And since the polling figure will be rounded up, a party only really needs to get to 2.5% to be invited (still not Gareth Morgan).

Was this new process enough?  Cooke claimed no.  “You don’t make a reasonable decision by bringing together the thing that was wrong in Dunne and the thing that was wrong in Craig.”

The difficulty, suggested Cooke, was that the process still produces irrational results.  The political party polling fifth will be excluded from the debate, but Damian Light (of United Future) will be there.  Damian Light, Mr Cooke suggested, “most New Zealanders won’t know”.  At that point it is not good enough for TVNZ to hide behind claims of a reasonable process or to simply say “this is the rule”.  Exclusion of any candidate needs to be “demonstrably justified”.

All very good, said Justice Venning.  “But to assist the Court it would help if you could articulate a test.”

Cooke tried.  There is no problem with using poll results and sitting MPs as a general guide, as long as you stand back at the end and look at matters in the round.

“A catch-all?” asked his Honour.

“Precisely,” Cooke confirmed, before proceeding to use the term “catch-all” at every opportunity.

Justice Venning seemed unconvinced.  That introduces subjective criteria.  Wouldn’t a plain percentage and sitting MPs rule be easier?

No, explained Cooke.  The problem with bright line tests is that they may exclude people that should be there.  The Electoral Commission uses a multi factor process to allocate election funding.  And other broadcasters have invited Morgan.  So other tests exist.  A bright line test isn’t necessarily a better test.

Then it was Stacey Shortall’s turn for TVNZ.  There were a lot of TVNZ managers in the back of the court.  They had an air of truculence at facing having to be told for a third time by politicians and judges just who they had to have on their debate stage.

Shortall channelled that. Her submissions were punchy.  She referred to “applicant” in the American style, instead of “the applicant”.

She also started on a loser.  In deciding the rules about who would and wouldn’t be invited, she submitted, TVNZ were not exercising a public power.

Justice Venning was having none of it.  “I don’t think we’re going to revisit Dunne on that point.”

Shortall persisted.

If having the ability to influence the election means that TVNZ’s decision is reviewable then a whole range of decisions by ostensibly private bodies will be reviewable.  Unlike in 2005, when Dunne was decided, there are now dozens of debates – proliferated by the internet.  All of the decisions about who to include will be open to review.  The judge remained unconvinced.

Shortall then put the boot into Cooke’s argument that TVNZ was deciding the election.  It wasn’t TVNZ saying that Mr Morgan wasn’t going to be in Parliament.  It was the voters that had been polled.  If his poll results were higher then he’d be invited.

It didn’t get better for Morgan.  Ms Shortall could reveal that Morgan’s one last chance hadn’t come through.  That night new Colmar Brunton poll results would be released.  If TOP were to poll 3% (or even just 2.5%) then TVNZ would invite Morgan.  That poll would say that TOP was only polling 1.9%.  Not enough.

Shortall pressed the point even more. It wasn’t TVNZ damaging Mr Morgan in the polls.  Rather, Mr Morgan’s poll results were attributable to his lipstick on a pig comments.

His judicial oath compelled Justice Venning to sprint in the opposite direction from that submission.  “I’m not sure how helpful this is…” he ventured.

His Honour was more interested in whether TVNZ’s criteria produced arbitrary results.  Isn’t it a little strange that Mr Light is included?

The criteria have worked for three elections now, insisted Shortall.

“They haven’t been challenged in the past,” said Justice Venning.  That doesn’t mean they’re right.

“But if this challenge works there’ll be many more challenges,” countered Shortall.

“Well,” said the Chief Judge of the High Court, “that is what we’re here for.”

Shortall finished strongly.  These were clear rules meant to encourage participation but allow debates to function with a manageable number of participants.  There are 16 parties contesting the election.  They can’t all be on the stage and TVNZ needs to decide somehow.  This is what it’s chosen and the rules are neither unreasonable nor arbitrary.

When Mr Cooke stood up again the “catch all” had changed its name to an “amelioration consideration” but there was little more to add.

Justice Venning adjourned for 45 minutes.  When the parties returned he delivered an oral judgment.  The entire judgment can be found here and brighter minds than mine will analyse it properly.  The Court would not order TVNZ to invite Mr Morgan.  The Dunne and Craig decisions were distinguished.  Andrew Geddis will have something to say, I’m sure.

That left the washing up.  This was an application for interim orders only.  The substantive proceeding still continues for now.  Would a call next week suit, asked Justice Venning.  Yes, said the parties.

From the public gallery the Internet Party’s Mr King indicated it suited him too.  At least, as the proceeding continues, there is someone for Gareth Morgan to share the stage with after all.

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