The New Conservative party has lost its court bid to be included in TVNZ’s multi-party leaders debate.
The party headed to the High Court in Auckland this morning wanting an urgent injunction ahead of the debate tomorrow, with an order made for TVNZ to invite the party.
But after hearing two hours of submissions, Justice Woolford gave an immediate order dismissing the application with his reasons to follow later.
Speaking outside court, New Conservative leader Leighton Baker said he was disappointed but that there would be no appeal.
"Obviously, we're disappointed," he said. "We just think as the fifth-highest polling party, we'd love to be at the debate.
"We've had a good crack, we've done our best, didn't quite make it but that's alright - it's worth a crack."
TVNZ argued there would be a “serious floodgates issue” if the party was allowed to take part and it was not a viable option to have 20 or more parties in the same debate.
The broadcaster’s own rules for taking part in the debate do not allow New Conservative in but the party argued those rules were flawed and that it was disadvantaged by them.
TVNZ lawyer Briony Davies said Television New Zealand had an "over-arching desire to be fair and reasonable and objective" in deciding which parties can be in its debate.
She said TVNZ was seeking to apply criteria used for the last three elections and New Conservative does not meet the threshold for a prima facie case.
Davies said it was "quite telling" that the party had not offered alternative criteria.
She told the court the world has "moved on quite significantly" since the Dunne decision of 2005 which also involved a legal bid to take part in a televised debate.
TV3 was ordered in that High Court case to include Peter Dunne and the Progressive Party's Jim Anderton after they were excluded based on the network's last opinion poll.
TVNZ argued in today’s case that New Conservative had “no right” to be included in the debate and the party had multiple avenues for coverage.
Its criteria were not unlawful, the broadcaster said.
When it announced the court action, New Conservative said it is the fifth highest polling party and that it is an "established political option" with candidates in all 72 electorates.
It said the application for an injunction was a last resort after several attempts to discuss the issue with TVNZ executives.
New Conservative lawyer Tiho Mijatov told the court the broadcaster was changing its criteria and applying it incorrectly.
He said the rules were being used inconsistently and are being applied "rigidly" to New Conservative.
"Whereas that's not necessarily the case for other parties," he said.
Mijatov said the live debate was tomorrow, that voting had already started and that "clearly we are in an urgent category here".
He argued New Conservative was also a "credible minor party with strong positions" on the two referenda this election, which the judge should also take into account.
New Conservative registered 1%, down 1%, in the last 1 News Colmar Brunton Poll.
That is the same level of support as New Zealand First and The Opportunities Party.
TVNZ would allow the party to take part if it hit a rounded 3% in tomorrow’s 1 News Colmar Brunton poll.
Labour, National, New Zealand First, the Greens, Act, Advance New Zealand qualify at the moment to take part in the debate.
The Maori Party is also now included after the broadcaster accepted concerns raised at its initial exclusion.
TVNZ’s current criteria for inclusion:
1. The leaders of registered parties are currently represented in Parliament.
2. The leaders of registered parties not represented in Parliament score 3 per cent in at least one 1 NEWS Colmar Brunton poll in the six months prior to the debate.
3. The leaders of registered parties where the leader has been an MP, or the party has been represented, in either or both of the past two Parliaments.
Note: Television New Zealand is the publisher of 1 NEWS.