Gareth Morgan's attempt to have the High Court thrust him into tonight's TVNZ minor party leaders' debate failed. On the whole, taking everything into account, that's probably a good thing. 

In what is becoming a somewhat predictable election campaign gambit, Gareth Morgan yesterday unsuccessfully went to the High Court to try and force his way into tonight’s minor party leader’s debate on TVNZ, as well as its young voters’ debate next Thursday.

 The case was worth a crack. After all, this tactic worked for Peter Dunne and Jim Anderton back in 2005, as well as for “the litigious Colin Craig” last election.

If Morgan likewise had won in court, he and his ideas would be screened before the hundreds of thousands of people who likely will watch the two events. Maybe just as important, he gets marked down as a “serious” competitor in the electoral contest.

And while he ended up losing, the case nevertheless got him a bunch of headlines and news stories that reminded the voters he exists. That probably is worth the lawyers’ fees and court costs that he will have incurred.

But what was Morgan actually arguing? After all, TVNZ doesn’t have to let every party leader onto its debate stage, does it?

Even such a flying-by-the-seat-of-its-pants outfit as, say, The Spinoff drew the line at inviting representatives from the Internet Party, the Ban 1080 Party, or the New Zealand Peoples Party to its debate. So surely a grown up and responsible outlet like TVNZ also can exercise some discretion as to whom it deems “worthy” of inclusion?

That’s what TVNZ claimed it was doing when it decided only to include those leaders of “minor parties” (i.e. not National or Labour or, apparently, NZ First) that had an MP in the last Parliament, or that have achieved a poll rating of 3% or better in one of the last two 1 News-Colmar Brunton polls. Actually, the latter threshold was effectively 2.5%, as TVNZ said they would round any poll result to the nearest whole number.

Such parties, TVNZ presumably reasoned, are the only ones with a realistic hope of getting any MPs elected and so it is important that the public get a chance to hear as much from them as possible.

Other minor parties, no matter how strongly they may believe they have the right solutions to New Zealand’s problems, simply aren’t going to be in a position to deliver. It then does viewers little good to hear from them at the expense of time spent interrogating those who will be running the country.

Of course, events have transpired to make a bit of a mockery of TVNZ’s criteria. Peter Dunne’s decision not to stand again in Ohariu effectively ends United-Future’s chances of being in Parliament post-September 23. Nevertheless, their new party leader – you all know who that is, right? – still qualifies to participate in TVNZ’s debates.

So, the effort to establish a facially neutral method of selection has resulted in a pretty absurd outcome. I don’t think there would be anyone (beyond of the occasional 0.1% of the population who say they still will vote for United Future) who thinks TVNZ’s debates will be substantively better with Damian Light in them rather than Gareth Morgan.

That absurdity – that TVNZ’s criteria actually doesn’t distinguish properly between “real” electoral contenders and “no-hopers” – lay at the core of Morgan’s argument. It was backed up by a “sawn afterdavided” (as I believe the kids call it these days) from the media’s favourite political studies voice, Dr Bryce Edwards, outlining his concerns that TVNZ’s criteria were effectively a self-fulfilling prophecy.

By in effect deeming Morgan and his TOP to be “no-hopers”, TVNZ were stopping him from gaining the attention needed to gain political support. Contrariwise, allowing Morgan to participate gives him the chance to reproduce Peter Dunne’s famous “worm debate” performance and gain the poll bump needed to surmount the 5% threshold.

All of which is true, but what is the alternative? Do we want media companies – especially the State-owned media company – to make their own subjective, gut level determinations of who will be a “real” contender come election day? As if they don’t face enough allegations of favouritism and bias already!

After all, if TVNZ says that Morgan is a “real” contender (because he has lots of money and has been making lots of noise), then what about the Mana Party and its leader Hone Harawira? If he wins Te Tai Tokerau, then it will be in Parliament. What should be the subjective, gut level determination on that issue?

Or, why would a 1 or 2 percent qualifying threshold necessarily be better than the (effective) 2.5% one that TVNZ adopted? Yes, it potentially allows more party leaders to participate, but that participation comes at a cost. Tim Watkin has written about his first-hand experience of having to rejig a debate to accommodate an extra participant and how this can produce a worse overall outcome.

And while TVNZ accepted that it could accommodate Morgan without the practical difficulties that Watkin describes, adding a sixth voice has the inevitable consequence of reducing everyone else’s speaking time by 20%. Are we better off hearing from Morgan as well, or hearing more from James Shaw, David Seymour, Te Ururoa Flavell and (we thought) Winston Peters about their plans for New Zealand?

Because if we’re going to be honest, the chances of a party that hasn’t polled 2.5% just four days before advance voting begins making it into Parliament are negligible. Yes, in 2002 Peter Dunne went from 1.1% to 6.8% during the last 10 days of the campaign. But we all remember that because it was just so freaking weird. And it occurred in a time when advance voting wasn’t the phenomena that it’s expected to be this time around.  

Furthermore, as the slightly obsessive Spinoff staff writers have collated, there are a multitude – nay, a plethora! – of pre-election debates occurring across a variety of media. Morgan has been invited to and participated in a number of these; albeit only after some (shall we say) quite unusual negotiations. So, to claim that Morgan cannot be seen by voters because of TVNZ’s decision to exclude him is off the mark.

All of which means I’m pretty OK with Justice Venning’s decision to refuse to force TVNZ to let Morgan participate. As the judge in another case where a candidate sought to force his way onto a TV debate, Alp v TVNZ, noted back in 2011:

in this constitutionally fraught area, where courts are being invited to make orders which will impact on the media’s rights of freedom of expression and editorial independence, judicial intervention should be saved for ‘exceptional and compelling cases’.