The New Conservative party has failed to convince a judge it should be included in a TVNZ debate.
Lawyers for the political party filed for an urgent injunction in the High Court at Auckland in an attempt to force the network to include them in its multi-party debate tomorrow night.
The effort was dismissed today by Justice Mark Woolford.
The legal action was yet another attempt by a small party to use the court to be included in a televised debate, which has had varying degrees of past success and has become something of an expected fixture before New Zealand's elections.
TVNZ's criteria for inclusion requires parties to hit 3 per cent in a poll in the six months prior to the debate or hold a seat in Parliament.
The most recent 1 News Colmar Brunton poll put New Conservative on 1 per cent.
The court heard today if New Conservative does reach the 3 per cent threshold, or a rounded up 2.5 per cent, in a new poll tomorrow they would be included in the debate.
Despite polling about 1 per cent, Advance NZ will be included because its co-leader Jami-Lee Ross, a former National member, is Botany's MP.
TVNZ did relax its criteria to allow the Māori Party to be included after admitting it didn't adequately consider parties only contending Māori electorate seats.
New Conservative's lawyer Tiho Mijatov argued today his client was a "credible serious minor party" and polling ahead of the Māori and Advance NZ parties.
He said this month's election was unique because New Zealanders will also be voting on two important social issues, being the cannabis and euthanasia referendums.
New Conservative stands against both legalising recreational use of cannabis and the End of Life Choice Act.
Mijatov said what party people vote for may be influenced by its views on one or both referendums.
"All New Conservative is seeking is for their leader to stand up and address the nation," Mijatov said.
TVNZ's lawyer Briony Davies said the network's overarching desire was to be fair, reasonable and objective.
It had no motive to exclude the New Conservative party and it's leader from participating.
"The applicant simply does not qualify," Davies said.
She also said TVNZ disagrees that party views on the referendums are relevant.
"That would be a different debate," she said.
After the nearly two hour hearing, Justice Woolford quickly dismissed the application by New Conservative and said his reasons will follow.
After watching the proceeding, New Conservative leader Leighton Baker told journalists outside that the courtroom foray was "worth a crack".
"Obviously we're disappointed," he said. "As the fifth highest polling party we'd love to be at the debate."
Baker yesterday said the 3 per cent threshold was "a huge hurdle" for smaller parties "lacking corporate or taxpayer funding".
He also blamed the media for "failing to do its duty" and provide information about candidates, parties, and policies.
"Journalists used to be so proud of their role in investigating and conveying the truth. It's disheartening to see them now as manipulators and propagandists," Baker said.
However, despite his criticisms, New Conservative has received media coverage, including in the Herald's 24-page Election Special this week and Baker being interviewed for the Herald's Leaders Unplugged series.
Before the 2017 election, Baker also said his party's exclusion from a University of Auckland debate was "a wee bit unjust" after originally being invited.
However, he decided then against legal action and said: "That's not how we roll."
Today he said circumstances had changed since 2017 and he wanted the party to have every opportunity to be included in tomorrow's TVNZ debate.
Just last week, the High Court ruled on another effort of a minor party attempting to join a televised debate.
Justice Tracey Walker dismissed Advance NZ's injunctive court action against MediaWorks after it was excluded from Newshub Nation's "Powerbrokers debate".
"A line needs to be drawn somewhere," Justice Walker said in her decision. "After all, there are 17 parties contesting the 2020 New Zealand election and resources, including available broadcasting time, are limited."
She also said the onus is not on the media to justify its selection criteria and have editorial discretion to choose how to run their debates and determine what is newsworthy.
"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." Justice Walker said.
After the decision, Advance NZ co-leaders Billy Te Kahika Jr and Ross said: "We will keep bypassing the media bias that continues to prevail in elections."
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 famously ruled in favour of United Future leader Peter Dunne and Progressive Party leader Jim Anderton being added to TV3's leaders' debate.