Justice Ron Young acknowledged he had been thrust into "inappropriate" territory for a judge in deciding who TV3, a private company, should include in last night's leaders' debate. Yet even that sense of apprehension failed to stop him coming up with an astoundingly inappropriate ruling. In paying heed to the sideshow of the broadcaster's selection process, he demonstrated a cavalier disregard for fundamental issues of media freedom and private-company rights.
Justice Young's ruling that United Future's Peter Dunne and the Progressives' Jim Anderton must appear on the debate sets a precedent that is wholly unfortunate in nature and utterly untenable in terms of its repercussions. Taken to a logical conclusion, it suggests all parties have the right to have their views acknowledged whenever the media assess or debate policy.
The Herald's current series of policy grids, for example, would have to include the likes of the Destiny Party, indeed any party that showed up, courtesy of a handful of supporters, in an opinion poll. The time is now right for the rebirth of the McGillicuddy Serious Party. Finally, it would have to be taken seriously. Likewise, the ruling implies that every time Mr Anderton, or any other MP, expresses a view during a parliamentary debate, the media will be obliged to report it.
This, of course, makes a nonsense of the judgment normally applied by the media in dissecting and deciding what their readers, listeners or viewers want and need to know. That process incorporates an essential fairness in allotting space or time to major and minor parties over time. It does not and cannot measure its achievement of balance by looking at any one bulletin or any one edition of a newspaper. Equally, it gives due weight to a party's popularity. Major parties must be accorded most of the coverage simply because one of them will lead the next Government. Their policies will decide the country's future path. The coverage of minor parties reflects their ability to influence that process.
Part of the weighting judgment includes presenting policies in a way that is easily accessible to a readership or audience. TV3 decided that hosting eight leaders in a one-hour debate would be too cumbersome. It would mean each of them would have only three minutes of actual speaking time.
Quite possibly, TV3 erred in deciding how to cut that number to six. Mr Dunne and Mr Anderton could justifiably argue that, despite their low polling, they had a greater claim to be involved in the debate than Act leader Rodney Hide, given they are likely to retain their electorate seats and form part of the next Parliament. But it was not, as Justice Young concluded, an "arbitrary" decision. It was based, however mistakenly, on the broadcaster's latest poll. Most importantly, this was TV3's decision to make, and its alone.
It is easy to see why Mr Dunne, in particular, was angry at his omission. United Future came from virtually nowhere at the last election to win almost 7 per cent of the party vote and eight seats after he scored heavily in a television 'worm' debate. Its hopes of replicating that depend largely on a similar scenario this year. This, however, should not have been the uppermost consideration for Justice Young.
His focus should have been the freedom of the media to cover political events as they see fit, and the right of private companies to make their own decisions about their operations. Contrary to Justice Young's view, what makes "ideal" television was the major consideration. His decision sets the scene for warped and witless coverage of political campaigning. The ultimate loser will be the voting public.