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A brief history of NZ minor parties taking broadcasters to court over debates
For the past few years minor parties in NZ have taken broadcasters to court over not being included in their televised debates. We’ve dug into the history of the challenges, and why we think cases bought by this year's minor parties won’t win.
Broadcasters have criteria to assess who they invite to be part of televised debates. Pressure can be applied to change or broaden the criteria, including through the courts, but in general, that doesn’t work. No, it’s not to silence minor parties. It’s a matter of programming.
By not being included in televised debates, minor parties are being silenced. This is to control what the public think and make them not vote for change. It’s cancel culture taking our freedom of speech.
Broadcasters have historically selected participants of televised debates based on a set of criteria that has been updated regularly. The changes are made to reflect the changing political landscape in New Zealand due to our MMP system. They strive to be fair while maintaining watchability, inform the public, and include those in or who have a good chance of representation in parliament. And yes, sometimes the updates to the criteria are made due to being challenged in court. That is how our system works. Excellent.
In 2020, TVNZ’s criteria was:
1. Leaders of parties currently represented in Parliament (criterion one); and/or
2. Leaders of registered parties not represented in Parliament that score three per cent in at least one 1 News Colmar Brunton polls in the last six months preceding the debate (criterion two); and/or
3. Leaders of registered parties where the leader has been a MP or party has been represented, in either/both of the past two parliaments.
Mediaworks criteria was:
Leaders whose parties have won seats in Parliament over the past two terms, and who could be King-or-Queen makers come September.”
This year we may see challenges from the myriad of minor parties that have sprung from the so-called freedom movement. But the above criteria will rule most of them out.
There have been several court cases against broadcasters by politicians who have been excluded from televised debates. Most have been unsuccessful. They tend to hinge upon the reasonableness of the broadcasters’ criteria, and after years of being tested, there are now fewer cases won by political parties.
Back in 2005 Jim Anderton (Progressive Party leader and Wigram MP) and Peter Dunne (United Future New Zealand party leader and Ohariu-Belmont MP) took TV3 to court over their exclusion from their televised debate and they won. TV3 had announced the leaders’ debate would include six leaders, who were the front runners in a commissioned poll. The leaders’ parties were not in the top six positions (Anderton’s party was in ninth!). The judge ultimately decided that Mr Dunne and Mr Anderton should also be invited to the debate on the basis that all leaders of political parties then represented in Parliament would be present. It was a controversial decision.
TV3 argued that leaders would only have about three minutes each of actual speaking time during the hour-long (including ads) debate if eight leaders took part. And said that they doubted debates sway voters’ decisions (very unsure about that assertion!). But mostly, TV3’s Mark Jennings (now co-editor of Newsroom) was “deeply concerned” about the precedent the ruling had created. “We believe the ruling has significant implications regarding media freedom in New Zealand.”
Justice Ron Young admitted that it was dangerous territory for a judge to decide who a private company can include in their debate. He still did. The judge as a representative of the state compelling the free-media to include people in a debate can be seen as government interference in our democracy. But it can also be seen as fairness, in aid of democratic process, allowing more diverse voices at the table.
Since that decision many cases have been heard, and mostly failed. In 2014 Colin Craig (Conservative Party) won his case against Mediaworks, and in 2017 Gareth Morgan (The Opportunities Party (TOP)) lost against TVNZ. In 2020 New Zealand courts heard two cases. Jami-Lee Ross and Billy Te Kahika (Advance NZ) lost to Mediaworks and Leighton Baker (New Conservatives) lost to TVNZ.
In 2020 TVNZ held a minor party debate which included parties represented in parliament; ACT’s David Seymour, the Green Party’s James Shaw, NZ First’s Winston Peters, the Māori Party’s John Tamihere and Advance NZ’s Jami-Lee Ross. Jami-Lee’s inclusion was controversial. He entered parliament as a National MP, only starting Advance NZ that year. TVNZ’s criteria said that all current party leaders in parliament got to stand at a podium. The party gained only 1% of the votes.
That year an open letter was penned by Social Credit Party on behalf of themselves, TOP, New Conservative Party, Outdoors Party and Aotearoa Legalise Cannabis Party, along with a petition to parliament from TOP with 7,273 signatures, blasting the unfairness of their exclusion. This may have helped TVNZ further develop their criteria. Criterion three changed from:
“Members of Parliament elected to Parliament in 2017 who are leaders of registered parties”
to:
“Leaders of registered parties where the leader has been a MP or party has been represented, in either/both of the past two parliaments.”
It’s much broader and more inclusive criteria.
Court cases have also been brought in by-elections. In 2011, TVNZ was taken to court over exclusion from an interview with the three top-polling candidates in the Te Tai Tokerau by-election. The complainant was one Kelvyn Alp, candidate for the defunct OurNZ party. As the candidate was not polling in the top three he lost the case. He was sitting at 1%.
In the 2022 Tauranga by-election, minor parties were also angered over their exclusion from public debates. Sue Grey (NZ Outdoors and Freedoms Party) even took a seat on the stage in a debate she was not invited to and was led away by security, and not allowed into another event. The minor parties then went on to hold their own debate run by Brian Tamaki and the Freedom and Rights Coalition, including Sue Grey, Andrew Hollis (New Nation Party), and Allan Cawood (ONE Party).
So, what does this have to do with the 2023 election?
Considering quite a few of the previous complainants or their parties are still active, it would not be surprising if parties bought new cases against NZ broadcasters who for whatever reason do not include all leaders in televised debates. And those broadcasters (TVNZ and Warner Bros. Discovery New Zealand) will hopefully have their robust and fair criteria in place, ready for any challenge.
The number of cases won by plaintiffs has substantially decreased since 2005. That could be due to broadcasters bringing in more robust and reasoned debate inclusion criteria after being tested in court.
But that doesn’t mean that the parties won’t try it. And in fact, the parties may see it as a way to drum up support, to gain access to the media in a way that makes them seem the underdog.
So are the parties victims of “cancel culture,” being silenced, or is their free speech being taken away?
No. This is good-old-fashioned programming. Basically, TV is reliant on advertisers. If they cannot pull in an audience, they won’t get much interest in businesses buying ads. So, things that don’t have an audience or might be too controversial, will not attract advertisers. There is a responsibility for our broadcasters to “ ensure reasonable opportunities are given to present significant points of view” (s 4 of the Broadcasting Act 1989). But this does not require every point of view to be given a platform.
And what do we think?
We can understand why it is better for only a few parties to be in the same debate. Too many people on one stage may not allow for each to have a fair say. And that’s why most televised debates do not include all candidates.
The separation of media and state is also extremely important. Having a state representative compel a broadcasting company to include some voices could easily be used by authoritarian governments to sway public opinion. As
But the exclusion of some voices, if the media did have ulterior motives, is also a concern. This is why the cases have fallen upon one question: is the debate inclusion criteria reasonable? And most of the time, the Court has said it is.
We would like to see more debates from all parties, especially with strong moderators to keep order and real-time fact checking.
We’d like to see the media ignore blatant attempts to gain media attention through taking unwinnable cases to the high court.
Conclusion
Right now there are 15 registered parties, with five more waiting for the go-ahead from the Electoral Commission. When eight candidates spoke, each had approximately 3 minutes to get their message across. And with some political debates already becoming a “rushed, uninformative melee” we’re not sure the best way to showcase them is in a royal-rumble style debate. Or breaking them into two rumbles, or even three. And, is this what the audiences want? Will advertisers want to advertise?
What broadcasters need is some sort of criteria…
…wait?
- Court rules against Jami-Lee Ross, Billy Te Kahika over debate exclusion | RNZ News: https://www.rnz.co.nz/news/election-2020/427336/court-rules-against-jami-lee-ross-billy-te-kahika-over-debate-exclusion
- New Conservatives fail in bid to feature in TVNZ debate | RNZ News: https://www.rnz.co.nz/news/political/427794/new-conservatives-fail-in-bid-to-feature-in-tvnz-debate
- Election 2020: Advance NZ loses injunction against MediaWorks after being excluded from TV debate – NZ Herald: https://www.nzherald.co.nz/business/election-2020-advance-nz-loses-injunction-against-mediaworks-after-being-excluded-from-tv-debate/DEWOG57RBC5IOAAOK5ZIPBJZOI/
- TV Debate Criteria Condemned | Scoop News: https://www.scoop.co.nz/stories/PO2009/S00084/tv-debate-criteria-condemned.htm
- Petition · New Zealand needs a minor parties debate in 2020 · Change.org: https://www.change.org/p/new-zealand-needs-a-minor-parties-debate-in-2020
- Minor parties’ debate becomes a rushed, uninformative melee | RNZ News: https://www.rnz.co.nz/news/political/427918/minor-parties-debate-becomes-a-rushed-uninformative-melee
- MPs win bid to be included in TV3 debate – NZ Herald: https://www.nzherald.co.nz/nz/mps-win-bid-to-be-included-in-tv3-debate/FTCBNXPZPJQ6NWJUBI6JESKSXM/?c_id=260&objectid=10340293
- Advance NZ challenges Mediaworks’ decision to exclude them from debate in High Court | RNZ News: https://www.rnz.co.nz/news/political/427284/advance-nz-challenges-mediaworks-decision-to-exclude-them-from-debate-in-high-court
- ALP V TELEVISION NEW ZEALAND LIMITED HC AK CIV-2011-404-3586 17 June 2011: https://www.justice.govt.nz/jdo_documents/workspace___SpacesStore_2d9c8f86_ac8d_4284_b2ea_b5adb71a27d0.pdf
- CRAIG v MEDIAWORKS LTD [2014] NZHC 1875 [8 August 2014]: https://www.justice.govt.nz/jdo_documents/workspace___SpacesStore_9c1da790_1a45_4238_977d_f8cf70bc152e.pdf
- MORGAN v TELEVISION NEW ZEALAND LTD [2017] NZHC 2178 [7 September 2017]: https://www.justice.govt.nz/jdo_documents/workspace___SpacesStore_714e8166_3b8f_47e4_be8a_b3c86240d28f.pdf
- ROSS v MEDIAWORKS HOLDINGS LIMITED [2020] NZHC 2574 [1 October 2020]: https://www.justice.govt.nz/jdo_documents/workspace___SpacesStore_6d65c738_0af5_49ff_a602_63eb1173f422.pdf
- NEW CONSERVATIVE v TELEVISION NEW ZEALAND LIMITED [2020] NZHC 2650 [7 October 2020]: https://www.justice.govt.nz/jdo_documents/workspace___SpacesStore_e2574ea7_8b33_49d1_b8fe_f5000583e173.pdf
- Dunne, Anderton v Canwest – High Court Judgment | Scoop News: https://www.scoop.co.nz/stories/PO0508/S00149.htm
- Dunne v Canwest TVWorks Ltd: enhancing or undermining the democratic and constitutional balance?: https://openaccess.wgtn.ac.nz/articles/journal_contribution/Dunne_v_Canwest_TVWorks_Ltd_enhancing_or_undermining_the_democratic_and_constitutional_balance_/21258126
- Election 2017: Few winners from court battle over debate | RNZ News: https://www.rnz.co.nz/news/political/338835/election-2017-few-winners-from-court-battle-over-debate
- Tauranga byelection: Protest, ‘fascism’ claim, and people kicked out at debate – NZ Herald: https://www.nzherald.co.nz/bay-of-plenty-times/news/tauranga-byelection-protest-fascism-claim-and-people-kicked-out-at-debate/KWPWV235FA3YKQKZHSSABJ5N2Y/
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Open letter from FACT Aotearoa (Fight Against Conspiracy Theories) to the political parties in the 2023 General Election.
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