The TV3 case

The High Court in Wellington has ordered a privately owned television channel to change the format of a programme in advance of it being broadcast.

TV3 decided to broadcast a "Leaders Debate". It announced that a poll would be held, and that the outcome would determine who would be invited to participate in the debate. The leaders of the six highest polling political parties would be invited to appear. The poll was conducted, and the leaders of the six highest polling parties were duly invited.

The United Future New Zealand Party (with 1.4% of the poll) placed 7th, and the Progressive Party (with 0.4%) placed 9th. Not content to accept either the process of selection of only six leaders, or the result of the public poll, the leader of the United Future New Zealand Party (Peter Dunne) and the leader of the Progressive Party (Jim Anderton) filed Court proceedings seeking an interim injunction to order Canwest (the owner of TV3) to include them both in the televised debate.

Mr Dunne and Mr Anderton claimed that such televised debates are of particular importance to smaller political parties in the MMP system, that they attract large audiences, are therefore important in the political process, and were important to the electoral success of their parties. They believed that their representation in the current Parliament should ensure their presence at such a debate. They also believed that the decision to exclude them could influence the outcome of the election and the formation of the next Government. They claimed that to exclude them from the debate would be contrary to the public interest. They argued that TV3 had public law responsibilities not to act arbitrarily or to discriminate between political parties on unreasonable, irrational or disproportionate grounds.

TV3 indicated that in order to present an intelligible debate in one hour would require limiting participants to six. It noted that as the selection was made on the basis of an opinion poll TV3 could not be accused of bias in the selection. It stated that it would give United Future and the Progressive Party opportunities of regular news and current affairs programmes to present their point of view. It stated that it had reviewed its decision and had concluded that there were no compelling reasons to depart from it. TV3 also pointed out that it is not a public body and that its decisions ought not therefore to be subject to judicial review by the Courts.

The Judge considered that although TV3 was a private company it had chosen to enter the public arena with its leaders debate and was performing a public function and exercising a public power in its election coverage. He therefore concluded that TV3's decision was susceptible to review. He considered that a single poll with small percentage differences and a high margin of error provided little or no guidance on actual relative electoral support. He considered that TV3's decision was arbitrary and failed to take relevant factors into account. He concluded that there had been a breach of an obligation not to act unreasonably or arbitrarily.

Although noting that Courts are reluctant to grant mandatory interim injunctions, which in this case would involve a Judge essentially deciding how a television programme is to be presented, the Judge considered that he should nevertheless do so in view of the time constraints (the programme was to be broadcast that night) and the consequences that would flow from not making the order (the position being significantly more disadvantageous to Mr Dunne and Mr Anderton if the order were refused than to TV3 if it were granted). He accordingly ordered TV3 to allow Mr Dunne and Mr Anderton to appear in the leaders debate.

The matter was determined urgently and on the basis of the evidence available at the time. It is nevertheless an important precedent as it demonstrates a willingness of the Court to intervene in areas that had previously been generally considered to be matters of private editorial discretion outside the reach of the Court's powers of judicial review. Two other minor parties have already indicated that they now expect to be included in such debates in future. It has been signalled that the decision may be appealed.

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