NEW CONSERVATIVE v TELEVISION NEW ZEALAND LIMITED [2020] NZHC 2650

NEW CONSERVATIVE v TELEVISION NEW ZEALAND LIMITED [2020] NZHC 2650 [7 October 2020]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2020-404-001850[2020] NZHC 2650UNDER the Judicial Review Procedure Act 2016 andPart 30 of the High Court Rules 2016BETWEEN NEW CONSERVATIVEFirst ApplicantL J BAKERSecond ApplicantAND TELEVISION NEW ZEALAND LIMITEDRespondentHearing: 7 October 2020Appearances: T Mijatov and M McCarthy for the ApplicantsB Davies and M Ferrier for the RespondentJudgment: 7 October 2020Reasons: 8 October 2020JUDGMENT OF WOOLFORD JThis judgment was delivered by me on Thursday, 8 October 2020 at 4:00 pmpursuant to r 11.5 of the High Court Rules.Registrar/Deputy RegistrarSolicitors: Franks Ogilvie (S Franks and B Morten), WellingtonMinterEllisonRuddWatts, WellingtonCounsel: T Mijatov, Wellington[1] The first applicant, New Conservative, is a registered political party. It iscontesting the 2020 general election and has 72 candidates standing in all general andMāori electorate seats. The leader of New Conservative is the second applicant,Mr Leighton Baker. The respondent is Television New Zealand Ltd (TVNZ), a Crownentity and broadcaster.[2] TVNZ is to hold a multi-party debate at 7.00 pm on Thursday, 8 October 2020.New Conservative has not been invited to participate. The applicants say that is wrongand now apply for an order requiring TVNZ to invite Mr Baker to participate in thedebate as leader of New Conservative.[3] The application is opposed by TVNZ.[4] I heard argument from the parties on Wednesday, 7 October 2020. Afterhearing argument, I dismissed the application for an order requiring TVNZ to inviteMr Baker to participate in the debate and indicated that my reasons would follow.These are my reasons. Given the circumstances, however, it has not been possible tocanvass in detail all arguments advanced during the hearing.Factual background[5] The general election is to be held on Saturday, 17 October 2020. TVNZ is tohold a multi-party debate at 7.00 pm on Thursday, 8 October 2020 (the debate).[6] TVNZ developed criteria prior to the 2011 general election, which it hascontinued to apply, as a means of providing an objective and reasonable basis uponwhich to select party leaders to participate in multi-party debates prior to generalelections. TVNZ's General Counsel, Mr Brent McAnulty, explains that a number offactors influenced TVNZ at the time:(a) the Dunne v CanWest TVWorks Ltd decision of 2005, in which it wasmade clear that limiting criteria to just one poll and no otherconsiderations was regarded as arbitrary;11 Dunne v CanWest TVWorks Ltd [2005] NZAR 577 (HC).(b) the public interest in hearing from leaders of registered political partieswhich have a realistic prospect of gaining one or more seats inParliament at the election;(c) the different ways that such parties come to Parliament in New Zealand(as new parties, through party changes by sitting MPs and as incumbentparties); and(d) the desire as a news organisation to be as fair and balanced as possiblewithin the context of a commercial enterprise with certain resourceconstraints.[7] The criteria which TVNZ initially applied to this year's multi-party debatewere, therefore, the same as the last election (the initial criteria);(a) Leaders of parties currently represented in Parliament (criterion one);and/or(b) Leaders of registered parties not represented in Parliament that scorethree per cent in at least one of the two 1 News Colmar Brunton pollspreceding the debate (criterion two); and/or(c) Members of Parliament elected to Parliament in 2017 who are leadersof registered parties (criterion three).[8] On the basis of these criteria, the following parties would have been eligible toparticipate in the debate — Labour, National, NZ First, Greens and ACT undercriterion one, and Advance NZ under criterion three. (Its leader, Jami-Lee Ross, beingan MP). Labour and National have chosen not to participate in the debate.[9] Following some criticism from excluded political parties, on or about8 September 2020, TVNZ revised criterion two to be more inclusive such thatconsideration was to be given to polls up to six months prior to the debate rather thanjust the two polls immediately preceding the debate. More significantly, it also revisedcriterion three to read as follows:Leaders of registered parties where the leader has been a MP or party has beenrepresented, in either/both of the past two parliaments.This has led to the inclusion of the leader of the Māori Party in the debate.[10] TVNZ explained the major change in criterion three as follows:TVNZ accepts the Māori Party's concern that the current criteria does notadequately consider parties who are only contending Māori electorate seats.We also accept success in Māori electorate seats impacts the make-up ofParliament, and viewers need to be aware of parties and politicians who mayhave a viable path to Parliament by winning these seats.To address this imbalance, while still ensuring fairness to other parties,TVNZ's multi-party criteria will be broadened to acknowledge viablecontenders for electorate seats. Given TVNZ does not poll in Māorielectorates, or a number of other electorates, previous parliamentaryrepresentation will be used to demonstrate a strong possibility of future seatsuccess.[11] New Conservative does not meet the initial criteria or the revised criteria. Itpolled fifth equal with NZ First in the most recent 1 News Colmar Brunton poll on28 September 2020, behind Labour, National, ACT and Greens, with 1.4 per cent. Itpolled sixth in the previous poll on 22 September 2020 with 1.6 per cent (NZ First wason 2.4 per cent). It is excluded from the debate. The Māori Party and Advance NZare, however, included in the debate with lower poll ratings — 0.8 per cent and 0.6 percent respectively. They are included because they both meet the revised criterionthree.The proceeding[12] The applicants have filed a statement of claim under the Judicial ReviewProcedure Act 2016 (the Act) in which they seek judicial review of the TVNZ decisionnot to invite Mr Baker to participate in the debate. A declaration is sought that TVNZ'sdecision is unlawful. They also seek an order requiring TVNZ to invite Mr Baker toparticipate in the debate.[13] Significantly, because of the imminence of the debate, the applicants also makean interlocutory application for interim relief (without notice) in which the samemandatory order is sought requiring TVNZ to invite Mr Baker to participate in thedebate.Reviewability[14] The applicants allege that TVNZ's decision not to invite Mr Baker toparticipate in the debate is reviewable as an exercise of a statutory power under theAct. TVNZ is a Crown entity and broadcaster bound by s 4(1)(d) of the BroadcastingAct 1989. Section 4(1)(d) requires all broadcasters to maintain in its programmes andtheir presentation, standards that are consistent with "the principle that whencontroversial issues of public importance are discussed, reasonable efforts are made,or reasonable opportunities are given, to present significant points of view either inthe same programme or in other programmes".[15] In facilitating debates through its programmes and their presentation, theapplicants allege TVNZ is performing a public function with public consequences,namely, informing voters about the views of parties in the general election andreferenda in order that voters may make informed decisions on voting in the electionand referenda on 17 October 2020.[16] On the other hand, TVNZ maintains that it is not a public body and, indeveloping and applying the criteria for the debate, is not exercising any publicfunction, power or duty and therefore is not amenable to review. However, it acceptsfor the purposes of the interlocutory application for interim relief, that it is exercisinga public function, power or duty and is amenable to review. In other words, it seeksto preserve its position, but is willing to engage with the substance of the applicationbecause of the urgency of the matter.Interim relief[17] Section 15 of the Act provides that, before the final determination of anapplication for judicial review, the Court may make an interim order prohibiting arespondent from taking any further action that is consequential on the exercise of astatutory power. The Court may make an order where it is necessary to do so in orderto preserve the position of the applicant.[18] Although s 15 does not appear to contemplate the granting of mandatoryinterim orders, r 30.4 of the High Court Rules 2016 provides that the High Court maymake an interim order on whatever terms and conditions the Court thinks fit. Whilethis is an application for interim relief, the decision of this Court on this applicationfor interim relief will effectively determine the proceedings. In such circumstances,the plaintiff is required to demonstrate a prima facie case rather than merelydemonstrating a serious question to be tried.2[19] The first issue is therefore whether there is a prima facie case that TVNZ'sapplication of the criteria is unreasonable or in some other way flawed through failureto take into account a relevant consideration or by fettering its own discretion.Importantly, the onus is on the applicants to persuade the Court that there is such aprima facie argument, rather than on the media to justify its criteria.3 If this thresholdis met, the next issue is where the balance of convenience and overall justice lie. Thebalance of convenience is a descriptor for weighing the respective harm to the partiesby making or declining the order sought.4[20] To grant interim relief I must also be satisfied that the order sought isreasonably necessary to preserve the position of the applicant. If it is, then the Courthas a wide discretion to consider all the circumstances, including the apparent strengthor weakness of the claim for review and/or the repercussions, both public and private,of granting interim relief.5Grounds of review[21] The applicants plead three grounds of review:(a) TVNZ acted unreasonably in declining to invite Mr Baker to participatein the debate;(b) TVNZ failed to take into account relevant considerations; and(c) TVNZ unlawfully fettered its discretion.2 Ross v MediaWorks Holdings Ltd [2020] NZHC 2574 at [31].3 At [48].4 At [32].5 Minister of Fisheries v Antons Trawling Co Ltd [2007] NZSC 101 at [8].Is there a prima facie case against TVNZ?Did TVNZ act unreasonably?[22] First, the applicants allege that TVNZ's decision not to invite Mr Baker toparticipate in the debate is based on an inconsistent articulation and application of thecriteria for inclusion in the debate.[23] I accept that Ms Claire Silvester, the Q&A Executive Producer at TVNZ,emailed Mr Simon Gutschlag, the national campaign manager for New Conservative,on 25 September 2020 with the criteria for inclusion in the debate, which she had notedwere "The same as for the last election" when the criteria had been altered earlier thatmonth as a result of criticism from the Māori Party. That was an error on her part.That "inconsistent articulation" does not, however, make the revised criteriaunreasonable. Nor does the fact that the criteria have been revised following publicdebate lead to "inconsistent application" of them. New Conservative knew of therevised criteria on 8 September 2020 when it and four other minor parties emailedTVNZ to acknowledge that the revised criteria were an improvement, but they were"still unjust, unfair, and an affront to voters".[24] Although there is no single standard of unreasonableness in administrative law,which can vary according to the subject matter, the articulation and application ofcriteria in the present case cannot be seen as unreasonable. In Morgan v TelevisionNew Zealand Ltd, Venning J held that the 2017 criteria were not unreasonable:6[59] As Mr Cooke also accepted, broadcasters including TVNZ, must beable to make decisions on who to include in the leaders' debates. His argumentwas that the decisions must be justified given the potential impact they haveon the actual process and that a television network could only justify theexclusion of leaders of parties who genuinely do not have a realistic prospectin the election. But that selection should be based on reasonable and objectivecriteria. For the reasons given above, I consider the criteria chosen by TVNZto be transparent and workable. Mr Cooke submitted that TVNZ is effectivelydeciding who the viable candidates for election are. But as Ms Shortallsubmitted it is not TVNZ that suggests Mr Morgan or TOP will not reach thethreshold to gain a seat in Parliament rather it is the current poll results.6 Morgan v Television New Zealand Ltd [2017] NZHC 2178, [2017] NZAR 1485.[25] Secondly, the applicants say that the Māori Party and Advance NZ have beenincluded in the debate, but there have been no public polling results indicating that theMāori Party or Advance NZ would win an electorate seat in 2020 or receive more thanthree per cent of the party vote. On the other hand, there have been public pollingresults which indicate that New Conservative will receive materially more party votesthan will be received by either the Māori Party or Advance NZ.[26] However, while New Conservative may have received more support in thelatest 1 News Colmar Brunton poll than either the Māori Party or Advance NZ, thoseparties were invited to participate in the debate through their qualification by anothercriterion (criterion three), which New Conservative does not meet. The fact is all threeparties do not meet the three per cent threshold for qualification under criterion two.[27] Thirdly, the applicants say New Conservative polled 1.4 per cent support in thelast 1 News Colmar Brunton poll, which had an approximately 1.4 per cent margin oferror — a total of 2.8 per cent. The applicants point to TVNZ's policy or practise ofrounding up results of 2.5 per cent or higher to three per cent and, accordingly,New Conservative says it conceivably meets the criteria for inclusion in the debate.[28] With respect, I do not consider it proper to add a margin of error to a poll resultto reach a higher figure. The poll result should be taken at face value. In any event,the margin of error of 1.4 per cent used by New Conservative is said to apply to a pollresult of around five per cent. The margin of error on 1.4 per cent is much less.[29] TVNZ seemingly has a policy or practise of rounding up results of 2.5 per centor higher to three per cent, which reflects its desire to be more inclusive, butNew Conservative does not come close to 2.5 per cent. Ultimately, as noted byVenning J in Morgan:7[60] The strongest point for the applicant is that TVNZ's criteria [are]limited to existing parties and the 3% threshold without having regard to thelikelihood of a party breaking through the 5% threshold. The difficulty for theapplicant is that he has not been able to suggest an alternative workable criteriato identify those issues. Essentially TOP's argument is that the level shouldbe at 1% or 2%, rather than 3% in the polls, but as noted, there are goodreasons for not reducing the level below the 3%, particularly given the number7 Morgan v Television New Zealand, above n 6.of minority parties and given the element of discretion applied by TVNZ inrounding up the poll results from 2.5% in the event that was achieved.Did TVNZ fail to take into account relevant considerations?[30] First, the applicants allege that TVNZ did not take into account the impact ofMāori electorate seats in Parliament. New Conservative is running candidates in allMāori electorates, which was a relevant consideration that TVNZ was required to takeinto account.[31] However, it is clear that TVNZ did have regard to this very point when revisingits criteria for inclusion in the debate. It addressed the Māori Party's concern that theinitial criteria did not adequately consider parties who were only contesting Māorielectorate seats. The same concern does not apply to New Conservative given it isfielding candidates in all electorates. It has national coverage and is not disadvantagedby the nationwide polling undertaken by Colmar Brunton, as is the Māori Party.[32] Secondly, the applicants allege that TVNZ did not take into account the futurelikelihood of parties being in Parliament after the election. Instead, the criteria arefocused on historic performances of the parties and their leaders in previous elections.[33] However, New Conservative has not identified an electorate seat which it saysit may have a chance of winning. When asked how New Conservative had a crediblepathway to parliamentary representation, counsel pointed to the fact that they had acandidate standing in all general and Māori electorate seats, were polling in fifth place,and the profile garnered through participation in the debate and the two publicreferenda. As to the chance of securing a list seat, the highest the party has polled inrecent times is 1.6 per cent, when there is a threshold of five per cent for securingrepresentation in Parliament. Its support has been as low as 0.4 per cent in May 2020.The fact that New Conservative has candidates in all Māori electorates does not changethis assessment.[34] Thirdly, the applicants also allege that TVNZ did not have regard to the impactof the referenda on the decisions that voters were making in deciding their generalelection votes. The applicants allege that the parties' position on the referenda are arelevant consideration that TVNZ was required to take into account as they are aunique feature of the 2020 general election compared with the debates ahead of pastgeneral elections.[35] The applicants say that as a result of failing to have regard to the referenda, thedebate will proceed with participation by parties who support one or both of thereferenda and without participation by a party (namely, New Conservative) whichopposes both referenda.[36] However, I am not persuaded that the fact that two public referenda are to beheld at the same time as the general election has any relevance to the inclusion ofMr Baker in the debate.[37] The statement of claim alleges that the referenda will impact on the decisionsthat voters will make in deciding their general election votes; the parties that putforward strong positions for or against the referenda; and whether voters took intoconsideration those strong positions when considering their general election votes.[38] The applicants have not put forward any empirical evidence about any suchimpact. The allegation that there will be some impact is completely unproven. Theapplicants were also not able to explain how any such impact might be demonstrated.The fact that New Conservative advocates a no vote to both referenda cannot, in myview, be a relevant consideration that TVNZ must take into account when determiningwho to invite to participate in the debate.Did TVNZ unlawfully fetter its discretion?[39] Notwithstanding the formulation of criteria for inclusion in the debate, theapplicants allege TVNZ was required to remain willing to exercise its genuinediscretion. TVNZ informed New Conservative on 25 September 2020 that "I knowyou are keen to be involved, but the final decision is based on the polls, being one ofthe criteria." Further, TVNZ informed the applicants on 2 October 2020 that "We haveeliminated discretion as much as we can". Accordingly, the applicants allege thatTVNZ failed to exercise or consider exercising its genuine discretion.[40] I do not consider that those comments amount to an unlawful fettering ofdiscretion. The reality of the situation is that TVNZ has adopted criteria to guide itsdecision-making, but has recognised it could not be inflexible and so revised thecriteria this year. I apprehend it would do so again if circumstances warranted it.[41] In comments made at the time it revised the criteria, TVNZ acknowledged thatvoters needed to be aware of parties and politicians who might have a viable path toParliament by winning any of the Māori electorate seats.[42] There is no evidence that New Conservative has engaged TVNZ in seriousdebate during the course of which TVNZ has displayed unreasonable rigidity. Thecomment by a TVNZ employee about polls is a reflection that that is the pathwaythrough which New Conservative could be invited to participate in the debate. NewConservative has not suggested any other route. It has not put forward any alternativecriteria. Its leader may, however, still be invited to participate in the debate if NewConservative polls three (or 2.5) per cent in the latest 1 News Colmar Brunton polldue to be released today.Decision[43] I accordingly was of the view that the applicants had not established a primafacie case for the making of an interim order requiring TVNZ to invite Mr Baker toparticipate in the debate as leader of New Conservative. In those circumstances, I donot need to consider the balance of convenience.[44] The application for interim orders was therefore dismissed. The substantiveapplication is adjourned to the Judicial Review list at 9.00 am on Thursday,21 October 2020._________________________Woolford J