George McLellan: Gareth Morgan v the TVNZ Debate

In light of Gareth Morgan's application to the High Court for an injunction to get TOP included in TVNZ's leaders debate, George McLellan discusses under what circumstances might a judge interfere with editorial prerogative.

TVNZ is a publicly funded and owned entity which exercises public functions under the Broadcasting Act 1989. In exercising its discretion in making editorial and broadcasting decisions, as a public entity, TVNZ is required to act in a manner that is lawful and rational. As with the decision of any public entity pursuing a public function, TVNZ's decisions can be subject to challenge.

The common and obvious mode of challenge is through judicial review, which is where a person challenging a public decision will have an opportunity to make their case to a High Court judge, and the public authority will have an opportunity to defend its decision before the court. Judicial review is a long and complex (and expensive) process, and as a rule of thumb, the High Court will only interfere with a public entity's decision in very limited circumstances.

Usually, where it is the merit of the decision itself that is being challenged – as opposed to the legalityof the process through which the decision was made – the High Court is extremely hesitant to interfere. In fact, it is only in cases where the decision can be imputed as being so unreasonable that no reasonable person acting reasonably could have made it – where the High Court will actually overrule the decision.

The reason behind this is a very good one – generally, the entities and persons in whom we, through our elected representatives in Parliament, entrust with our power to make important decisions on our behalf – are experts in their fields. Experts, who are commonly well versed in their areas of speciality, and are familiar with their responsibilities, and who make decisions of public importance as a matter of routine.

Experts, such as the editors and broadcasters at TVNZ, tend to make more informed decisions – about broadcasting and editing – than do High Court judges. Further, it is important for the functioning of the constitution that the Courts observe their duty of comity to those who are empowered to exercise public functions and executive power; just as they must respect the supremacy of Parliament (and those institutions must respect the Courts). Where would we ever find resolution to problems if every exercise of public authority were to be subject to judicial opinion (not just in the High Court, but in the Court of Appeal and the Supreme Court too).

Where the courts will rightly interfere with an executive decision is where the power entrusted by Parliament has been improperly used, or where the public authority has acted beyond any power so conferred, or where the public authority has acted in contravention of the law, or where the public authority has been improperly influenced by bias, or corruption, or malice, etc. That is both the essence and the point of judicial review and other public law proceedings – not to give unsatisfied litigants further 'bites at the cherry'.

So where the decision is characterised as unfair, or sad, or stupid, or boring – but is in all other respects lawfully exercised, and save for it being irrational to the point that no reasonable person could entertain it – the Courts will leave it be and will not interfere.

Another interrelated form of challenge, and uncommonly used in respect of public law decisions, is to ask the High Court to exercise its equitable jurisdiction and to issue a mandatory injunction – for example, compelling TVNZ to welcome Gareth Morgan into their leaders' debate. The clear advantage of an injunction, for Mr Morgan, is that it is quick and fast, and if successful, is highly effective. But, in light of how hard it is to succeed in challenging the merits of a public decision through judicial review, surely, it must be a higher threshold to obtain an injunction?

The answer is unclear in this context. On the one hand, Peter Dunne and Jim Anderton did succeed in obtaining an injunction against TV3, when TV3 made an editorial decision that was alleged to be arbitrary and irrational – limiting participation in its 2005 Leaders' Debate to the top six polling parties – excluding Dunne and Anderton.

In the Dunne case, a mandatory interim injunction was applied for on the evening of the 10th of August, the case was heard by Justice R Young on the 11th of August, and the Leaders' Debate was scheduled to occur on the evening of the 11th of August 2005. A complexity is that in the usual context, interim injunctions are interim – they are by their nature a temporary order pending the full adversarial moot and consideration of the claim. Additionally, when granting an injunction, the Court must balance the possible harm associated with granting an injunction against the harm of not granting one. In the Dunne case, it was recognised that the interim injunction would be determinative in the matter – as there was no prospect of the matter being considered further in a substantive hearing. Consequently, it was understood that should the debate be postponed or cancelled, it would not serve the public interest; if Dunne was authorised by an injunction to participate it might impact upon a political outcome; as well as if the Court refused to interfere it might also have impacted upon a political outcome.

In the circumstances, the parties had less than 24 hours to formulate their entire case, to put it to the Court, for the broadcaster to respond, and for Young J to issue his decision. The essence of the Dunne claim was that the broadcaster was exercising a public function, and that its decision to limit participation in its debate was contrary to the public interest, and was arbitrary and irrational – and therefore there existed a serious issue to be tried. The Court agreed with Dunne, and said that in the context of a public interest decision – the threshold for irrationality was lower.

The defence to the claim failed. They should have strongly argued that TV3 had exercised editorial judgement, and that such judgement had a legitimate aim of improving debating conditions for the benefit of the public. Instead they made the absurd claim that TV3 does not exercise a public function and is therefore not subject to the High Court's inherent jurisdiction. In this regard, the broadcaster failed to produce evidence supporting why a debate with six or fewer participants is superior, and that the decision to limit participation based on polling figures was both rational and fair, and in any event not irrational.

TV3 should also have argued that the threshold for interfering with an exercise in public authority (not to mention the additional matter of press freedom) is rightfully high, and that the power entrusted upon broadcasters by the public and by Parliament is best exercised by broadcasters. Finally, although the decision to exclude Dunne was arguably (prima facie) a serious issue to be tried, interim relief is entirely inappropriate in any situation where the relief will become determinative. Because of that, unless irrationality is established at the interim hearing, the balance of convenience should be weighted in the favour of the public authority, in lieu of the matters being substantively considered in a judicial review hearing.

So now the Opportunities Party has all of these matters to contend with in their application for interim orders – notwithstanding that broadcasters have couched their decisions on these matters very carefully subsequent to Dunne. They have said that they will argue that TVNZ's policy is unfair and unlawful and that they want a 'fair suck of the Sav'. The policy they refer to, being an exercise of public discretion, is not to include parties that were outside Parliament in election debates unless they had reached three per cent in at least one of the most recent 1 News Colmar Brunton polls.

Clearly, the current case is distinguishable on the ground that, unlike both Dunne and Anderton, on current polling the Opportunities Party will not be represented in Parliament after the election (in fact they are a long way off). So to the extent that it might be possible to construe any exercise of public authority as being on a sliding scale of arbitrariness (and therefore, on a scale of irrationality as per Justice R Young), it is arguably both more convenient and more rational to exclude them, than it is to allow them to enjoy a gulp of Sauvignon Blanc that is disproportionately large when accounting for the polling trends of the party. In other words, if TOP must be represented, then so must the Fascists, the Communists and the Aotearoa Legalise Cannabis Party.

George McLellan is a public lawyer currently practicing in London.

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