During an election, getting on TV sometimes appears to be the sole goal of all party leaders. As demonstrated by the infamous “worm” debate, participation can be vital to success.

However, the TV networks themselves set the rules and format of these debates - they decide who is able to appear. And if you miss out under those rules, it is a problem. Minor party leaders have repeatedly brought judicial review proceedings to try and force their way into these TV debates. Fifteen years ago, it was Peter Dunne and Jim Anderton. Colin Craig brought proceedings in 2014 and Gareth Morgan did the same at the last election. 

This time, it was John Tamihere and the Māori Party who challenged the rules - with what appears to be complete success - and without having to go to court. How did they achieve this?

Short history on the law of TV political debates

Before we look at the Māori Party, a short history of the litigation that has got New Zealand to this point.

• First, there aren’t that many cases. For obvious reasons, this matter only comes up every three years.
• Secondly, the cases are brought urgently - so they are decided in the context of interim injunction applications. As a result, while there must be real merits to the underlying claim, the Court also looks at the balance of convenience and the immediate impact on the applicant. The decisions need to be delivered more quickly, which does not allow the same time for deliberation and considered decisions as ‘ordinary’ judicial review.

Dunne and Anderton’s challenge was the watershed for all disgruntled minor leaders, as it established that in holding a leaders’ debate, the broadcaster was performing a “public function” under the NZ Bill of Rights Act. This was a fundamental development - it established that the broadcaster (not a traditional Crown or public decision maker) was susceptible to judicial review. Next, the High Court held that a broadcaster is responsible for ensuring a fair and balanced presentation of the leaders’ debate, given their importance and impact on the outcome of elections. 

For Dunne and Anderton, the Court considered that the broadcaster had arbitrarily excluded them, and that this decision could affect the fundamental right of voters to be as informed as possible before voting. They succeeded in securing an injunction which forced the broadcaster to invite Dunne and Anderton to attend the debate.

[For the Judge-Spotters among you, counsel for Dunne and Anderton were the now Goddard and Palmer JJ].

Nine years later, Colin Craig sought court intervention when Mediaworks excluded him from a leaders’ debate on the Nation. In setting their criteria, Mediaworks had only invited leaders of parties who held seats in Parliament that term. Again, the Court found for the leader, finding that an exclusion would cause Craig “irreparable damage” to his prospects at the election. 

Three years ago, Gareth Morgan was not so successful. In that instance TVNZ’s criteria included all parties consistently polling more than three per cent - and that did not include TOP. The court considered that this was not unreasonable - unlike in Dunne, the broadcaster had applied a criterion to decide who it would invite and it was reasonable.

So, what happened this year?

Initially, the Māori Party were going to be excluded from the minor party debates. TVNZ’s criteria required that the party's leader be a member of Parliament or that the party was polling at least 3%.   

However, TVNZ have now changed their criteria and the Māori Party are back. As there wasn’t a judicial decision (much to the disappointment of all of us who enjoy a good political judicial review), and TVNZ have not yet published their amended criteria, it is not completely clear. Tamihere mentioned both the New Zealand Bill of Rights Act and the Human Rights Act in his interviews.

In announcing his “victory”, Tamihere emphasised that the Māori seats, where the Māori Party has held all of its previous seats and where it is contesting this year’s elections, are not polled. He also talked at some length in media interviews about the long history of Māori representation in the House and the importance of those seats in impacting on the government. 

Assessing these arguments, the lack of polling in Māori seats has promise. It is possible that the Māori Party met the criteria of 3% polling, but could not prove it, due to the lack of polls. That may have undercut the reasonableness of the criteria for parties like the Māori Party.

TVNZ have now changed their criteria to “acknowledge viable contenders for electoral seats”. As a proxy for this, previous parliamentary representation will be used to demonstrate a strong possibility of future seat success. Tamihere is now in - and so is Advance NZ, given the involvement of Jami-Lee Ross.

Still no luck for TOP however - they miss out for the second election cycle in a row.

Thanks to Sam Hart for his assistance with this Note.

*An occasional series of case notes, and observations on interesting New Zealand public law and regulatory cases from Simpson Grierson's Public Law and Government Team.

Contributors sam.hart@simpsongrierson.com