A High Court judge has dismissed the New Conservative Party's bid to be included in TVNZ's multi-party debate.
TVNZ has ruled the party out of its debate tomorrow evening on the grounds it is polling below its 3 percent threshold and has not been in Parliament for the past two election cycles.
It's a decision New Conservative Party leader Leighton Baker has described as unfair and incompatible with a healthy democracy.
Baker was present to hear his party's application for injunctive relief before Justice Woolford in the High Court at Auckland this morning.
Party lawyer Tiho Mijatov told the court TVNZ had erred on several grounds; changing its debate entry criteria, misapplying criteria and not exercising discretion.
He acknowledged the New Conservative Party would be included in the debate if tomorrow night's Colmar-Brunton poll had them above 3 percent but said it was still in the overall interests of justice for injunctive relief to be granted today.
"This is a case of little prejudice to TVNZ but quite major prejudice to the New Conservatives."
He told the court this was a unique and strong feature of the New Conservatives' case, given the last general election and referendum clash was in 2011 and the referendum's subject was whether or not to retain MMP.
"Here, you've got a credible minor party with strong opposition on both of those social issues; they oppose both the legalisation of cannabis and the euthanasia referendums.
"That's a relevant factor because it's quite a unique feature of this election. Part of what will animate voters in this election may well be what parties' positions are on this unique feature of this election," Mijatov said.
He said other parties who hadd polled lower than the New Conservative Party had so far been included in such debates and cited various email exchanges; suggesting unfair dealings between the party and TVNZ in the lead up to their exclusion from tomorrow's event.
Mijatov said last week's failed attempt by Advance Party to be included in Newshub Nation's Powerbroker's debate was different to the New Conservative Party's case.
"It wasn't a general minor parties debate but was specifically pitched as what was marked as the potential kingmakers or queenmakers ... that was the niche and very particular purpose of that debate."
He said previous case law on minor parties contains "clear statements" around the importance such parties are included in public debates.
As a final point, the lawyer said no matter what TVNZ's debate criteria may be, the television station was able to exercise genuine discretion in considering parties' inclusion in debates.
In response, TVNZ's lawyer said the station had only sought to apply its own criteria the party simply did not qualify for.
"TVNZ's overarching desire in these debates is to be fair, reasonable and objective in deciding who is to participate and who isn't.
"There really hasn't been any desire or motive to exclude the New Conservative Party or its leader."
She told the court it was not viable for TVNZ to include every single party with a stake in the general election and so had developed, and altered over time, objective debate criteria.
"As we've said the line has to be drawn somewhere, so if not where we've drawn it then where?"
Justice Woolford dismissed the New Conservative Party's application.
Speaking outside court, Baker said the result was disappointing but the legal attempt was "worth a crack".
"We're a party that's standing strong against both euthanasia and the cannabis referendums. We believe that was a really important thing to bring to the debate.
"So we've had a good crack. We've done our best, didn't quite make it but that's alright it was worth a crack."
He said the party was "trying really hard" to get to the 3 percent threshold required to be in the multi-party debate and would eagerly await tomorrow night's poll.
"We wouldn't put all this work in for nothing. It's been years of effort with people right throughout New Zealand putting up signs, delivering leaflets and getting out there so obviously we wouldn't put that [in] with no hope of success."
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