The Dunne Decision

Like everyone else, I'm uneasy about the Dunne decision. While there is no question that TV 3's decision was arbitrary, it may have been a decision they were entitled to make. Freedom of speech - a right enjoyed under the BORA by legal persons as well as natural ones - necessarily entails the freedom to make your own editorial decisions; infringing on this should require meeting an extraordinarily high burden. And OTOH, there are few things more important in a democracy than an election. We limit freedom of speech with regard to electoral advertising by forbidding third party advertisments and limiting television advertising on this grounds, and my natural instinct towards electoral fairness is to regard it as a justified infringement in this case. Furthermore, public broadcasters have a statutory duty of fairness under the Broadcasting Act 1989; they must make reasonable efforts or give reasonable opportunities to present "significant points of view" if discussing a controversial public issue (though notably, it can be in a different programme). Still, it is unclear exactly where the boundaries lie, and I am pleased that TV 3 will be appealling the decision. Certainty with respect to the balance between the freedom of a media institution to make its own editorial decisions and its duty of fairness (strengthened in election time) will be good for all concerned.

As for the other half of the issue - whether the court had the power to intervene in the first place - I don't think there's any question that it did. In New Zealand as well as other common law countries, the power of judicial review has gradually been extended from the government to private institutions exercising a regulatory function (professional bodies such as the College of Surgeons), incorporated societies (such as the Rugby Union and SPCA), unincorporated societies (such as the Advertising Standards Complaints Board or the Takeovers Commission), and utilities and monopolies (wholesale electricity supply and postal services have both been ruled to be "public functions"). The relevant standard is whether the function concerned is a public one - not strictly whether it is performed by the government (more information on this can be found in Rishworth, et al, The New Zealand Bill of Rights Act; while strictly talking about the BORA, it notes the the "public function" standard for review under the BORA matches that under the Judicature Amendment Act 1972 and common law. Also see Jospeh Constitutional and Administrative Law in New Zealand).

Contrary to TV 3's claims, this is hardly a new precedent. TV 3 itself has previously been subject to judicial review with regards to its editorial decisions - and lost. I guess they just have a short memory.