TV3 to fight court debate ruling

Mark Jennings

TV3 will seek the backing of other media organisations to challenge an unprecedented High Court judgment that ordered the channel, against its will, to include two political leaders in its televised election debate last night.

The network had to reverse its earlier decision to exclude the leaders of the two lowest-polling parliamentary parties, United Future's Peter Dunne and the Progressives' Jim Anderton, or it would have faced contempt-of-court charges.

TV3's director of news and current affairs, Mark Jennings, said he would follow the ruling by Justice Ron Young in the High Court at Wellington but was "deeply concerned at the serious precedent this ruling has created".

Herald editor Tim Murphy said it was a "deeply unfortunate interference" in editorial freedom and raised a question about whether, using the judge's logic, other parties such as Destiny should be excluded.

TV3 will explore legal options for having the ruling set aside by a higher court and will seek the support of the cross-industry Media Freedom Committee.

"I think it is a topic of major concern for the committee and all editors in this country," Mr Jennings told the Herald.

"If this has happened to a broadcaster, it must surely happen to a newspaper at some point."

He said TV3 would probably appeal the substance of the decision.

Justice Young expressed reluctance in issuing such a decision, acknowledging it would "effectively be directing TV3 how to run its business, at least in part".

Although that, in principle, was objectionable, in a practical sense it was likely to cause "no more than inconvenience" to TV3.

But not to make the order meant Mr Dunne and Mr Anderton could suffer "significant electoral disadvantage - irrecoverable - which has the capacity to affect the make-up of the next Parliament and therefore the Government of New Zealand".

Justice Young did not accept the rationale of TV3 using its last poll to decide which parties would make the cut, saying the margin between the bottom five parties was less than the margin of error.

He believed there was more logic and rationale to the case for inviting leaders whom Victoria University political science Professor Stephen Levine considered would probably be represented in the next Parliament.

Courts were anxious to protect fundamental rights.

"And here this court is anxious to protect what I see as the fundamental right of citizens in a democracy to be as well-informed as possible before exercising their right to vote and to ensure the electoral outcome is, as far is as possible, not subject to the arbitrary provision of information."

Justice Young was satisfied this was one of those "comparatively rare cases where a private company is performing a public function with such important public consequences that it should be susceptible to judicial review".

Mr Jennings told the Herald after the decision was announced that it was the first time judges had "decided our editorial policy for us".

"You'd have to think 'what's next? Where does it stop?'

"It suddenly seems to have escalated a run-of-the-mill debate into the most significant debate in political history, which is a bit hard to believe."

Freedom committee chairman Tim Pankhurst said the decision was "bizarre" and the courts should not meddle in that area.

"It is a dangerous precedent for the democratic process when judges are allowed to dictate which politician should be included in specific programmes," said Mr Pankhurst, who is editor of the Dominion Post in Wellington.

TV3 might have been misguided in excluding the pair in the first place but the judiciary was not the avenue to seek redress.

He thought the committee would be likely to pursue the issue with TV3.

Mr Murphy said the decision brought "new meaning to judicial activism" and it was illogical.

"Why, now, should the Destiny Party or the Alliance be excluded? They are political parties which register some faint blip at some time over the campaign season."

TV3 should be able to make its own judgments for its own reasons, he said.

But the response was not all critical. New Zealand First leader Winston Peters said democracy had been served and there had been no justification for omitting two of the eight party leaders.