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16 December 2014
New Zealand has just come through another Parliamentary general election, with the incumbent National-led coalition returned by a handsome margin for a further three-year term in government. Almost on the same three-year cycle, another case arose involving a political aspirant standing for Parliament seeking to obtain an injunction against a private media business planning televised coverage of election debates.
Colin Craig leads the relatively new Conservative Party, not currently represented in Parliament. He was standing as a candidate in the upcoming general election and successfully obtained an urgent interim injunction(1) preventing MediaWorks (one of New Zealand's largest television broadcasters) from screening a Saturday morning political debate without his participation.
This is the latest occasion in New Zealand where politicians have sought to use judicial review, combined with urgent injunctive court orders, to force media organisations to include them in election coverage. This case may represent further expansion of the circumstances in which the High Court may grant such relief in future.
In New Zealand, voting is carried out through a form of proportional representation called the mixed member proportional system. Its defining characteristics are a mix of members of Parliament (MPs) from single-region electorates and those elected from a party list, and a Parliament in which a party's share of the seats roughly mirrors its share of the overall nationwide party vote. A minimum 5% voting threshold exists before a minor party can claim MPs up to its overall share, unless it secures an electorate MP instead.
Craig is the founder and leader of the Conservative Party, a minor political party that was formed in 2009. It contested the 2011 election but did not reach the 5% threshold and Craig failed to win an individual seat. Hence, the party has never been represented in Parliament.
The television debate was to be broadcast on MediaWorks' The Nation, a political and current affairs programme shown on Saturday mornings. It was promoted as a minor party leaders' debate, part of a series of debates being broadcast in the weeks ahead of the general election on September 20 2014.
During the week leading up to the scheduled debate, Craig became aware that he had not been invited to take part. Craig demanded that he be included in the programme and, when MediaWorks did not accede, he sought an urgent injunction the day before broadcast, asking the court to prevent the debate from being broadcast without him in attendance.(2)
Craig's claim was an application for judicial review. He argued that the nature and timing of the debate during the election period meant that MediaWorks was performing a "public function", and that it was arguable that MediaWorks had acted arbitrarily and unreasonably in the way it had selected which parties or politicians to invite. The grounds for alleging arbitrariness were that the Conservative Party had received more votes at the 2011 general election, and was currently polling better in opinion polls, than some of the parties whose leaders had been invited.
MediaWorks argued that in broadcasting the debate it was not exercising a public function. It argued that the planned debate was not significant in the context of televised coverage of the 2014 general election and was unlikely to have a significant effect on the election. Therefore, the 'impact test' that had been applied in earlier cases attempting to subject decisions of private companies to judicial review was not met and judicial review was unavailable.
MediaWorks further contended that, even if its decision was reviewable, the choice to exclude Craig was not unreasonable or arbitrary, as it was based on selection criteria that focused on whether the leader's political party had attained representation in Parliament at the 2011 general election rather than current opinion polls. This criteria was considered fairer and more accurate than opinion polls. Such polls are known to be volatile and minor political parties tend to poll close to or within the margin of error. Polls do not account for features of the mixed-member proportional system, where minor parties regularly enter Parliament by winning electoral seats, despite having potentially lower voter support than otherwise required for entry to Parliament.
MediaWorks also argued that funding, production logistics and timing constraints made it unreasonably difficult to extend the debate to seven participants, and that this would negatively affect production values. It argued that the court should not interfere with a media organisation's freedom to determine its own editorial content, and to do so without having newsworthiness assessed for it by a court.
In an oral judgment delivered late on the eve of the scheduled debate, Justice Gilbert granted the injunction sought by Craig.
The judge referred to a previous High Court decision in Dunne v Canwest TVWorks Limited(2) and relied on its reasoning to conclude that it was at least arguable (at interim injunction stage) that MediaWorks' decision was amenable to judicial review.
The court was satisfied that it was at least arguable that MediaWorks' decision was unreasonable, because it should not have been made by considering solely whether particular parties had been successful in gaining seats at the previous election. MediaWorks' selection criteria had arguably failed to consider relevant events that had occurred since the previous election. In reaching these conclusions, the judge emphasised that it was not his function to determine whether the decision was unreasonable, but merely whether it was arguably so.
The court also considered that both the balance of convenience and public interest favoured the granting of an injunction. This was on the basis that exclusion from the debate was likely to diminish the prospects of Craig and the Conservative Party at the upcoming election, and that this outweighed any inconvenience suffered by MediaWorks, which the court saw as confined to issues relating to the production resources and studio facilities available for the planned debate.
There is precedent in New Zealand for injunctions preventing the media from broadcasting pre-election political debates in circumstances where certain parties are excluded. However, the decision in Craig marks a potentially significant extension of the circumstances in which an injunction will be granted. Dunne broke new ground in establishing that a private broadcaster's decision regarding who to invite to pre-election political debates could be, in principle, "one of those comparatively rare cases" where a private company is susceptible to judicial review, and that injunctive relief could be available to excluded politicians in appropriate cases. Despite Justice Ronald Young noting in that case that courts are most reluctant to make mandatory orders, he granted an injunction to two sitting MPs who led minor parties and had been excluded from a prime-time leaders debate to be broadcast just days before the 2005 general election.
That decision has been the subject of criticism, with various commentators arguing that the standard for judicial intervention in a private media company's decision making was set too low, and that there was a failure to carry out the careful balancing exercise required under the New Zealand Bill of Rights Act 1990 when freedom of expression is at stake, particularly in the context of prior restraint of a television programme.
Two subsequent cases that attempted to rely on Dunne in similar circumstances failed. In both decisions, the court emphasised the need for exceptional circumstances before intervening to superimpose its own views on the media's editorial decisions.
Dunne was also notable in recognising that the injunction sought would effectively be the end of the matter, and therefore a rigorous approach to assessing the merits of the case was needed. The court applied an impact test to the available evidence, which in that case included expert political science evidence, to determine whether the particular debate would have public consequences of such importance as to make it amenable to review. The key circumstances making a sufficiently compelling case were that the debate in question was to be broadcast immediately before the election, it was likely to have a significant nationwide audience and, from the expert evidence, it had a reasonable prospect of significantly influencing the outcome of the election. The selection criteria applied to issuing invitations was based on the results of a single recent opinion poll, and the court concluded that this was sufficiently arbitrary to justify intervention. The court commented critically on the high margin of error of opinion polls, and also that they failed to account for the ability to enter Parliament by winning an electorate seat.
The circumstances in Craig were significantly different from those in Dunne, so it is notable that the court was prepared to rely on the reasoning in Dunne without analysing those differences. Craig arguably represents a departure from the court's previous reticence to grant such injunctions other than in compelling or exceptional circumstances. Unlike Dunne, the debate in Craig was not the primary leaders' debate to be broadcast immediately before election day, and MediaWorks' evidence was that it was minor in the overall context of its election coverage (being a Saturday morning show, with plenty of TV coverage likely as the election was still a month away). Further, the Conservative Party has never had a seat in Parliament, and the polls relied on by Craig suggested a real prospect that it would not be represented in Parliament following the 2014 election if unable to secure an electoral seat.(3)
It is always difficult for the court when facing an urgent injunction application and making an oral decision on whatever evidence is available at the time. One reason that the factual differences between Craig and Dunne were not addressed may be that the court specifically restricted analysis to whether the pleaded cause of action disclosed an arguable case, on ordinary interim injunction principles, rather than following the well-established higher threshold for what would effectively be a mandatory injunction. As a result, this case appears to have extended the circumstances in which media activity is reviewable, but with arguably insufficient analysis of whether the evidence established sufficiently exceptional circumstances or, if it did, that the activity was unreasonable (in the heightened administrative law sense of 'unreasonableness').
The decision is also silent on how the media company's right to freedom of expression might be factored in, the important role of independent media in a democratic society and, where freedom of expression under the Bill of Rights Act is at stake, execution of the balancing exercise of competing rights that is required.
The long-term precedent value of this decision is not yet clear. However, what is clear is that the urgent and interim nature of the applications leading to this line of decisions has resulted in the law developing in a manner which makes it difficult to predict the outcome in any given situation. Given the speed at which television news broadcast media operates, and hence the time in which challenges to it must be determined, it is unlikely that such cases will readily come before a higher appellate court to provide further guidance. Until that occurs, the uncertainty may well empower disappointed politicians to engage in hardball tactics with media organisations during election periods.
For further information on this topic please contact Gary Hughes or Ian Denton at Wilson Harle by telephone (+64 9 915 5700), fax (+64 9 915 5701) or email (email@example.com or firstname.lastname@example.org).The Wilson Harle website can be accessed at www.wilsonharle.com.
Guy Tompkins assisted in the preparation of this update.
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