Would Dotcom's "Party Party" have breached electoral law? Maybe yes, maybe no ... which is (for me) a shame.

Although I think the whole Kim Dotcom "Internet Party" is destined for failure as a political force (which is a topic for a whole other post), it does concern me that simply by saying he plans to set it up, he forgoes his right to hold a large, hedonistic celebration of himself and his "music" (insofar as that EDM nonsense the kids seem to like so much can be given that term ... I want to know what's so wrong with good, old-fashioned standing around in darkened basements while a trio of masked men in orange unitards perform a free noise recital with broken vacuum cleaners!)

First up, a quick word on why the "Party Party" never took place. Dotcom himself said; "Sadly we must cancel my birthday party after we received advice that the event could risk breaching electoral laws." Apparently this was after the Electoral Commission emailed his legal advisors to warn them that he (as well as all those who attended the Party Party) risked breaching the Electoral Act - the NBR has a copy of that email here.

While this last message is the only part of the correspondence I've seen, I expect what happened was something like this. Dotcom's legal advisors (I read on the Twitter that Chen & Palmer perform this role) went to the Electoral Commission and sought assurance from it that the Party Party he intended to hold at Vector Arena would not breach any electoral laws (given that one of its original intentions was to serve as the launching pad for Dotcom's new political party). The Electoral Commission took a look at the event, a look at the relevant law, and came back with advice that while it really can't say for certain one way or the other, there's an at least arguable case that the event might breach the Electoral Act (even if he dropped the official political party launch aspect to it). Whereupon Dotcom decided he had enough legal problems on his plate for the moment, and acted in a safety-first fashion by pulling the plug on it altogether.

I'm not surprised that this is what the Commission told Dotcom, because I, too, can't be certain whether the event would have broken the law. My personal view, as intimated in the opening paragraph, is that it shouldn't do so - I think that to strip the political realm of energy, excitement and (dare I say it) the frisson of electricity that celebrity brings risks further alienating the sorts of people who already are tuning out and turning off. Indeed, the message that cancelling the Party Party sends - "sorry, kids, your fun is off because ... democracy and laws and shit" - is pretty regrettable. 

But I just don't know with 100 percent certainty (or, even a high-degree of certainty) whether the existing law would be interpreted in line with my own personal preferences. Meaning that, were I in the Commission's shoes, I'd most likely have said the same thing to Dotcom. Here's why:

The particular bit of the Electoral Act 1993 that Dotcom might have fallen afoul of is section 217:

(1) Every person is guilty of a corrupt practice who commits the offence of treating.

(2) Every person commits the offence of treating who corruptly, by himself or herself or by any other person on his or her behalf, either before, during, or after an election, directly or indirectly gives or provides, or pays wholly or in part the expense of giving or providing, any food, drink, entertainment, or provision to or for any person—

(a) for the purpose of corruptly influencing that person or any other person to vote or refrain from voting; or

(b) for the purpose of procuring himself or herself to be elected; or

(c) on account of that person or any other person having voted or refrained from voting, or being about to vote or refrain from voting.

Here's how I discuss this offence provision in my text, Electoral Law in New Zealand: Practice and Policy (2nd edition available now, as paperback or ebook!)

The original purpose of this offence was to end the practice of candidates lavishing alcohol and other inducements to vote upon the electorate at large. A contemporary account of an Auckland election held in 1855, for example, describes how one candidate “rolled a hogshead of rum into the street, and invited the electors to fall in”. However, because the breadth of the prohibition on providing food and drink to electors technically precludes providing any refreshments at all at pre-election events, an exception [in subsection 4] permits the offer of “a light supper after any election meeting”. What constitutes “a light supper” is a little uncertain, but candidates and their agents should stick to sandwiches, cakes and hot beverages at any public, election-related proceedings and especially avoid providing alcoholic beverages.

Note a couple of things about this section. First, the archiac nature of the language used in the offence provision; we're dealing with a section that has been pretty much unchanged in form since 1883. Second, the provision hasn't actually been applied by a court (that I know of) since the Eden Election Petition case back in 1923. And that case involved the vexed legal issue of whether the provision of "tea, sandwiches, cakes and strawberries and cream" (along with a rendition of "auld lange syne") at a "ladies political meeting" addressed by a candidate a few weeks before election day constituted the offence of "treating". After some 15 pages of earnest legal discussion, the court was able to conclude that it did not.

The point being that the original reason for and past application of s. 217 (and its antecedents) are not all that helpful when trying to decide if something like a large, free dance party held some ten months before the likely election date and paid for by a foreign national who can't himself stand as a candidate, but has plans to launch a political party (even though he hasn't yet done so), constitutes "treating". Certainly, when I was writing on the topic, it wasn't an issue that crossed my mind! There is an argument that you can read the literal words of the statute to cover the situation; you can claim Dotcom was "before ... an election ... pay[ing] wholly ... the expense of giving or providing, any ... entertainment ... to ... any person for the purpose of corruptly influencing that person ... to vote ... ." But a lot then hangs on the last part - the "purpose" of holding the Party Party.

Dotcom said a lot of things about what his Vector Arena gig was about. It was his birthday party. It was the launch of his new album. It was, for a while, the launch of his "Internet Party" ... until it wasn't anymore. I'm guessing that last change in purpose came about after earlier Electoral Commission advice on the matter. 

 So I guess you can still pull out of that mix that at least one of the "purposes" of the Party Party was to boost the profile of his nascent political vehicle and try to get some of the attendees to vote for it come election day (albeit that the party doesn't yet exist, and the likely election day is the better part of a year away.) The Electoral Commission indicated this was a risk in it's email to Dotcom's lawyers:

The Commission remains concerned that the action Kim Dotcom intends to take (limiting the event to his 40th birthday and the launch of his music album) may not be sufficient to eliminate the risk of the activity falling within the scope of the treating provisions. This is because the event was originally intended to include the Internet Party launch, we understand that the event will be called the Party Party and Kim Dotcom is the leader of the Internet Party. In addition, we understand that the Internet Party’s soft launch was to be scheduled for the same day as the event.

However, that still doesn't get you all the way there. Because isn't enough to show that a (or even the) purpose of providing the Party Party was to "influence" people to vote, but rather that it was to "corruptly influence" them. Which is where the rubber really hits the road - what does "corruptly" mean here?

Well, it seems to mean pretty much whatever you want it to. Here's what one of the authorities cited in the Eden Election Petition case says on the matter:

The essence of the offence is that it should be corrupt. Treating, in fact, is often innocent; and prima facie it will be taken so to be. Where refreshments are a mere incident of a political meeting there is no offence; but if persons are gathered together merely to gratify their appetites and so influence their votes, then it is corrupt treating. It is not necessarily corrupt, however, to attract people to meetings by offering refreshments of a moderate kind. All such circumstances as the open doing of whatever is done, the inclusion of persons who are not voters in the invitation, and the absence of undeserving persons from the class benefited, will be taken into consideration of the party alleged to be guilty of corrupt treating. The time at which the act is done is also a relevant consideration. A corrupt act is not less corrupt because it is done a long time before the election; but in determining whether it is reasonable to conclude that an act is done with a view to influencing votes the element of time becomes exceedingly material.

So that can be read in a number of ways. As may "guidance" from an older English authority, the Bewdley case;

In considering what is corrupt treating and what is not we must look broadly to the common-sense of the thing. There is an old legal maxim, 'Inter apices juris summa injuria'. To go by the strict letter of the law often would produce a very grave wrong. 

And in the Eden Election Petition case itself, 

A lavish supply, or a frequent supply, even of tea and cakes might, according to the circumstances, warrant the inference of corruption, but here the provision was on quite a modest scale and the instance was isolated. The social was openly held, and, moreover, the cards were sent out from a list of the women of Glen Eden compiled by the Postmistress, and they included not only the ladies' names but their "lady friends", and so the invitation extended to ladies whether electors or not. These are circumstances which the authorities show are to be taken into account with the rest of the circumstances in determining whether the treating was corrupt.

Of course, the law has moved on since the 1920s, and so on top of these older authorities we now must also layer the New Zealand Bill of Rights Act 1990, and the guarantee it contains of freedom of expression, peaceful assembly and freedom of association. In other words, the word "corruptly" in section 217 of the Electoral Act must be read in a way that imposes only "demonstrably justified" limits on the rights of people like Dotcom (and the 15,000 folks who reportedly wanted to come to Vector Arena) to get together and dance the night away. Which adds yet another complicating factor to the analysis.

All of which drops us deep into a penumbra of uncertainty. There's aspects of Dotcom's proposed Party Party that make it look like an attempt to "corruptly influence" voters. It would have been very expensive to run, and he was paying the whole amount himself. The entertainment provided was the whole point of the event - it wasn't "incidental to" a political meeting, but rather the entire reason virtually all of the attendees would be there. 

Then again, there are other aspects that look like it was not "corrupt". It was right out in the open. Anyone who applied for tickets in time could go along - it wasn't limited to just people who could vote (although there was an R18 limit on attendance). It was held right at the start of election year, some 10 months before the likely election day. By dropping the official party launch aspect, any connection between the Party Party and the Internet Party would be indirect (at best). 

So, I just don't know. If Dotcom had been smarter, or a bit more on the ball, he could have applied to the High Court for a declaratory judgment on the matter. But without the safety of such a ruling, he'd have had to roll the legal dice. And I guess he's already got too much to lose in the courts.

Comments (16)

by mandy jane on January 17, 2014
mandy jane

There’s a good chance Dotcom’s “Internet Party” will get the 5% of the national vote he would need to get into Parliament. He is a very popular figure here likely to attract (a) many young voters whose only issue is the availability of free media, (b) others who have problems with the way the current right-wing government and its spy agencies behave – largely to oblige the Americans, (c) a general dislike in this country of the USA and its foreign policies, and (d) people who admire his charisma.

He will energise people who have not voted before and people dissatisfied with the established parties. The National Government has associated itself with a zany religious conservative party in the hopes it will also get 5%, combine with National, and help keep it in government.

Dotcom is a huge spoke in those wheels. And in the wheels of the US Department of Justice, which is trying to extradite him on charges that are here highly unpopular.

Of course, if he becomes a political figure, the US DoJ will find the going even harder than it has been so far.

by mandy jane on January 17, 2014
mandy jane

Don’t under-estimate older age groups. I am 73 and am sorely tempted to vote for the Internet Party. Assuming its other policies are palatable. I imagine, with Bradbury at the helm, they will fit my view of how a society should be run.

The Internet Party is not just about internet freedom. It is also a powerful symbol of resistance to the monetarisation and corporatisation of our society which reduce our freedoms in all sorts of areas. Take the TPPA, for example.

by mandy jane on January 17, 2014
mandy jane

It doesn’t matter who Dotcom is. It matters what he stands for.

So he has a distant criminal past. So he has money. So what? He will not be in Parliament. He’s not an NZ citizen.

The calibre of his party will be measured by the calibre of the candidates who stand. And the integrity of his policies.

Fortunately, thanks to his money, they will be well resourced. Does anyone think Key is not?

by mandy jane on January 17, 2014
mandy jane

For right-wingers who hope that the Internet Party will take votes off Labour and the Greens, think again.

It may take some. But its main constituency is the people you fervently hoped would never vote for anything. The young, alienated and disaffected have finally been offered another choice.

They may take it.

Expect fireworks.

by Andre Terzaghi on January 17, 2014
Andre Terzaghi

McCready's going to be disappointed. But Dotcom's head might not fit on his wall anyway.

by Peter Matthewson on January 17, 2014
Peter Matthewson

As for Bomber, why would any intelligent and self-respecting left wing activist join a political venture with this obese poser, with his net worth of $200million gained from dubious sources, his outrageously ostentatious lifestyle including palatial property complete with pet giraffes, the pink Cadillacs, Lamborghinis etc and for when he's really in a hurry the helicopter (which is also handy when he blows half a million on a fireworks display), and his convictions back home for 11 counts of computer fraud, 10 counts of data espionage, insider trading and embezzlement among other offences, and whose first political action in this country was to donate $50,000 to John Banks???

by Peter Matthewson on January 17, 2014
Peter Matthewson

The Internet Party could well be doomed to failure by virtue of having no website

by mandy jane on January 18, 2014
mandy jane

@Matthewson

 

I suspect that might be because the party has not yet launched?

by Stephen on January 18, 2014
Stephen

Let's wait till the 20th and see what he actually says. (Sorry about the split infinitive, I think.)

by Andrew Osborn on January 19, 2014
Andrew Osborn

I do so want Kim to launch his party!

He'll get a couple of percent of the vote and any space cadet who votes for him would previously probably have been a Green or Labour voter.

 

by william blake on January 19, 2014
william blake

...dotcom will probably attract kids who have never voted before and introduce them to the world of politics, like magillacuddy serious did. Dot com isn't left wing he's just anti Key.

The big vote splitter (and laughing stock coalition partner) is the Conservative Party.

 

by Ian MacKay on January 19, 2014
Ian MacKay

I think that I read in the Herald today somewhere that Kim's Birthday Party is rescheduled to February - I think. If so it would have nothing to do with poitics - would it?

by Andrew Osborn on January 19, 2014
Andrew Osborn

William: ...dotcom will probably attract kids who have never voted before and introduce them to the world of politics, like magillacuddy serious did. Dot com isn't left wing he's just anti Key.

You're right - and I suppose that's a good thing in the long run.

As for being anti-Key, doesn't that make up a significant proportion of the Left already? I often speak to Left voting people who will readily tell me they don't like John Key but at the same seem are unsure of what they do like. That seems to be a widespread dilemma for the Left at the moment - little in the way of a solid policy platform but endless internal faction fights.

Let's see what Cunliffe comes up with next week - so far he's done little more than make personal attacks on JK. That's got him the Labour leadership role but I doubt it will win him a general election.


by Ross on January 20, 2014
Ross
Has an aspiring MP been charged with treating? I find it interesting that buying someone a few drinks could be seen to be treating but offering tax cuts to every voter is hunky dory. I'm not sure I understand.
by Rich on January 21, 2014
Rich

Some background:

http://www.nzhistory.net.nz/politics/election-day/under-the-influence

The proscription of "treating" in NZ predated the secret ballot, so was enacted at a time when candidates could easily gauge the success of their largesse.

It's unlikely that a reasonable voter would, in the absence of other factors, be influenced to change their vote by means of food, drink and entertainment. It's much more likely that they would attend the "party" because of the goodies on offer and in doing so learn of the existence and policies of the "Party". But would that be "corrupt"?

 

by stuart munro on January 24, 2014
stuart munro

I'd be inclined to think Dotcom could not be done for treating, if his party did not yet exist, given that he himself cannot stand, if he did not introduce his candidates. It's a matter of distance.

Treating used to be by way of buying drinks on election day - there's a chapter covering it in Upton Sinclair's The Jungle. Although a time delay does not destroy the notion of treating, it may weaken it. Dotcom has other reasons to party, his birthday, his album, and this kind of event is not out of character for a guy who gave an apparently rather good firework show to celebrate his residency. The time delay, the fact that Dotcom can't stand, the non-existence of the political party, the absence of candidates are probably enough disconnects to render the idea of treating invalid unless some truly stupid overt vote contract were somehow attached to them. I think KDC was poorly advised.

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