Advance NZ has lost its court action after it was excluded from a televised "Powerbrokers debate" alongside other minor parties.
Co-leaders Billy Te Kahika Jr and former National Party MP Jami-Lee Ross filed an urgent interlocutory injunction application against MediaWorks in the High Court at Auckland on Tuesday.
They hoped to prevent MediaWorks from staging and then broadcasting any debate which
excludes one of them.
Promoted as the Powerbrokers and "King and Queen makers" debate, the event they were excluded from will be filmed tonight in Auckland but air on Newshub Nation on Saturday morning.
It will include Act leader David Seymour, Green Party co-leader Marama Davidson, Māori Party co-leader John Tamihere and NZ First leader Winston Peters.
After hearing arguments from Advance NZ's lawyers Honor Lanham and Jordan Grimmer and MediaWorks' counsel Justin Graham yesterday, Justice Tracey Walker delivered her decision this afternoon.
Based on the limited evidence before her, she was satisfied the criteria applied by MediaWorks for the debate "is neither unreasonable nor arbitrary".
"A line needs to be drawn somewhere," she said. "After all, there are 17 parties contesting the 2020 New Zealand election and resources, including available broadcasting time, are limited."
Justice Walker also said the onus is not on the media to justify its selection criteria.
"Nor is the essential question whether other criteria might better serve the public interest in the democratic process. That is not the point of this judicial exercise. Courts will not lightly interfere with editorial decisions of media because an independent media, divorced from political influence, is critically important for a functioning democracy."
She said media have editorial discretion to choose how to run their debates, just as they have a constitutional right to determine what is newsworthy.
If the injunction was granted, she added, then MediaWorks will also suffer some hardship.
"The venue has been booked and paid for. If I granted the injunction and Advance NZ was allowed to participate, there is a risk that the floodgates will open, and a number of other minor parties will seek to be added to the debate."
If the debate, which is due to have a live audience of 60 political scientists and commentators, was unable to proceed it wouldn't be rescheduled, the court heard.
Justice Walker also took aim at Advance NZ's argument that social media was an indicator of the party's popularity and chances of Te Kahika winning the Te Tai Tokerau electorate.
"Reliance on social media 'popularity' is a blunt approach," she said.
"First, the number of followers Advance NZ has on its social media accounts will not necessarily correlate with voters or votes. Second, it is impossible to ascertain whether those who engage with Advance NZ's social media accounts are eligible, New Zealand-based voters.
"Third, social media may be susceptible to manipulation. It is therefore a poor gauge of electoral chances. Fourth, Mr Lanham is relying on social media statistics to argue that Mr Te Kahika has a good chance of winning a specific electorate seat. There is no evidence that people from his electorate are engaging with Advance NZ's online content."
Most telling, Justice Walker said, was Ross' own evidence that the Act party have 21,000 followers on Facebook compared to Advance NZ's 43,000 followers, yet Act is polling at between 6 and 8 per cent compared to Advance NZ's 1 per cent.
"This suggests that social media popularity does not necessarily correlate even with polling success."
While the Māori Party was not polling significantly differently from Advance NZ, Justice Walker said there are distinguishing features.
"Namely, the Māori Party is competitive in a number of Māori electorate seats and has a history of competing in and winning those seats. Further, the Māori Party has a history in Government, with previous members acting as Ministers in both Labour-led and National led governments. They have some 'form' as coalition partners."
After the judgment, Ross and Te Kahika said in a statement that Justice Walker's decision was "another example of the media stacking the deck against democracy".
"We took this case because we believe in free speech," Ross said.
"We also took this case because we know hundreds of thousands of New Zealanders are asking for a new direction that isn't the same old tired Labour and National path."
Ross said voters deserve to see how Te Kahika matches up against politicians from the other parties set to enter Parliament.
"Right now there's a far higher likelihood of Advance NZ entering Parliament than NZ First or the Māori Party," he said.
"We will keep campaigning hard, and use the peoples voice on the ground and via social media. We will keep bypassing the media bias that continues to prevail in elections."
The party will take part in TVNZ's minor party debate because its criteria includes current sitting members of Parliament. Ross is Botany's MP but has dropped out of the race for ahead of the October 17 election.
Advance NZ has been questioned for seemingly propagating internet conspiracy theories about Covid-19, the United Nations, and 5G, among others.
Thousands of the party's followers have marched and rallied against Covid-19 restrictions and lockdowns this year.
It was also not the first time a minor party had gone to court over its exclusion from a debate.
In three of the last five general elections in New Zealand, a minor or small party has challenged its exclusion from a televised leaders' debate in court.
Before the 2017 election, The Opportunities Party (TOP) filed an application for an urgent judicial review after TVNZ excluded its founder and then leader Gareth Morgan from its debates.
The High Court ruled against TOP and Morgan.
However, in 2014 then Conservative Party leader Colin Craig successfully challenged MediaWorks in court after not being invited to the minor parties' debate.
And in 2005, the High Court also ruled in favour of United Future leader Peter Dunne and Progressive Party leader Jim Anderton being added to TV3's leaders' debate.