Gareth Morgan v TVNZ: TOP leader loses High Court argument over debate

Gareth Morgan had gone to the High Court in a bid for The Opportunities Party to be included in a TVNZ minor parties debate. Photo / Mark Mitchell

Gareth Morgan will not join Television New Zealand's political debates in the final weeks before this month's election, a court has ruled.

The founder and leader of The Opportunities Party (TOP) filed an application for an urgent judicial review yesterday after TVNZ excluded him from its political debates in the lead-up to September 23.

The hearing was heard before Justice Geoffrey Venning in the High Court at Auckland this afternoon.

The judge ruled against allowing Morgan's application for judicial review.

The decision was made just after 5pm.

Venning said this year's election campaign was proving "extremely volatile" with poll results shifting greatly.

The broadcaster played an important role in a free and democratic society to provide voters with the opportunity to make an informed decision, the judge said.

However, he said he was not satisfied Morgan had a case.

TVNZ's top executives were sitting in the public gallery, including head of news and current affairs John Gillespie.

"Debate about debate is a good thing. Scrutiny about what we do in this election cycle is really important," Gillespie said after the decision.

He was "really happy" the court had validated its selection criteria.

Broadcaster and TOP press secretary Sean Plunket was also in court.

TVNZ excluded TOP from tomorrow's debate, hosted by Mike Hosking, and next week's TVNZ youth debate at Auckland University.

It said the party, founded last year, was not polling high enough to warrant a place in the minor parties debate.

There are 16 registered parties competing in this year's election.

TVNZ has a policy not to include parties that were outside Parliament in election debates unless they had reached a 3 per cent threshold in at least one of the most recent 1 News Colmar Brunton polls.

TOP has not reached the 3 per cent mark.

The court heard that a 1 News Colmar Brunton poll expected to be released tonight had TOP at 1.9 per cent.

TOP reached 2.1 per cent in early August, according to a 1 News Colmar Brunton poll.

Gareth Morgan's lawyer, Francis Cooke QC, argued the role that TVNZ was assuming.

"TVNZ are promoting that leaders' debate as a debate bringing together potential coalition partners," Cooke said.

"The problem with that role being assumed is that Mr Morgan's party has been excluded from the process."

Cooke said TVNZ assumed Morgan was not a potential coalition partner, which he said was irresponsible given evidence from previous elections.

"You're going back to the worm?" Justice Venning asked.

"The worm," Cooke affirmed.

Following a televised debate in 2002, which gauged instantaneous audience reactions, then United Future leader Peter Dunne's support surged after he was included in the event and put forth a strong performance (0.4 per cent to 6.9 per cent by election day).

In 2005 the High Court also ordered TV3 to include Dunne and then Progressives leader Jim Anderton in its debate after it tried to exclude them.

Justice Ron Young said excluding them was detrimental to New Zealand's democracy.

And in 2014, the litigious Colin Craig successfully had his Conservative Party included in TV3's minor parties leaders' debate after applying for an injunction to prevent the event from airing without him.

Gareth Morgan. Photo / Mark Mitchell

"That's the very point of these debates," Cooke said.

"It's to allow these parties to present their ideas to move public opinion," he said, adding to exclude a "significant participant" was irrational.

"Televised leaders' debates are critical to the election and critical to the outcomes," he argued.

He said Morgan, a businessman, economist and philanthropist, did not realise TVNZ's rules were being applied until this week.

Cooke said TOP was currently polling higher than the Act Party, United Future and the Maori Party.

"Most New Zealanders will not know who [United Future leader] Damian Light is."

However, under TVNZ's policy, Light is afforded the right to join the debate.

Cooke said TOP also did worse in the 1 News Colmar Brunton polls than other polls.

"Polling is only an attempt to assess how people will vote come election day," he said.

He said other broadcasters and media organisations had included and invited Morgan to political debates, but because of TVNZ's "arbitrary" rule he was being left out.

TVNZ's lawyers, led by Stacey Shortall, argued that it was not TVNZ's desire to exclude Morgan.

It was TVNZ's desire to be open and fair, she said, but Morgan "does not qualify" for its debates.

Shortall urged the court to not rely on previous judicial decisions, adding that "a lot has changed over the years", including the quantity of political debates.

The advent of smartphones and other technology has allowed potential voters to stream various debates, which were not available in the past, she argued.

Shortall said TVNZ's policy was set prior to the 2011 leaders' debate, to establish an "objective and reasonable basis to select which parties would participate".

TVNZ's 3 per cent policy had also "rounded up" in the past, she said, allowing parties polling at 2.5 per cent to be allowed at the debates.

She argued that by allowing Morgan to join, further judicial applications from other minor parties may be filed, using further court resources.

"Well that's what we're here for," Justice Venning smiled.

It is understood TOP has also taken umbrage at being excluded from candidates' panels on other TVNZ shows and a youth debate next week.

The Internet Party, via candidate Bruce King, has also filed papers with the High Court asking to be included in the debate, the court heard.

"Mr King, you're really putting your hand up and saying me too, aren't you? Along with Mr Morgan's TOP party," Justice Venning said.

"It would seem that way, Sir," King said.

The judge ruled that he wasn't going to formally include the Internet Party in the proceedings.

The Internet Party's leader Suzie Dawson is living in exile in Moscow.

Dawson said in a tweet that her party's application was filed in consideration for court resources and timeliness.

"Our case is based on its own merits," she wrote.