On the socially contextual nature of treating voters

Meng Foon's giving $20 to a long-time acquaintance  is about respect, not corruption.

A couple of days ago, I was asked for comment* by RNZ News on a story about Gisborne mayor Meng Foon laying $20 on a pub table at a a Father's Day function. A candidate for the Gisborne council was present at the function (although didn't see the note being laid down), and complained to the Police about Mr Foon's action. It was, he alleged, "treating" voters:

Every person commits the offence of treating who corruptly, before, during, or after an election ... gives or provides, or pays wholly or in part the expense of giving or providing, any ... drink ... to or for any person for the purpose of influencing that person or any other person to vote or refrain from voting.

This is a pretty serious allegation, as beyond a possible 2 year jail sentence, a conviction for the offence of treating also automatically leads to an elected mayor (or other local body politician) being removed from office. So if this got pursued, it would make for a significant electoral law case.

However, it quickly became clear that this whole matter was pretty much froth on beer jug. In the full story on RNZ's website, we're told:

[Mr Foon] said he often gave small koha at tangi and celebrations, and said it was his culture and the culture of the Tairāwhiti too.

"I put the $20 note on the table," he said, "Because it's Beau Shane [Tuhaka]'s birthday."

"'Cause that's what I always do [when] I go to tangi, I go to birthday, and koha is what I always do - it's a normal thing."

On reading that, I realised the story wasn't going anywhere. First, you'd have a very hard time proving that the $20 was given with the intention to buy beer, and further that any such beer was provided "for the purpose of influencing that person or any other person to vote or refrain from voting." 

However, I guess you could try to run the argument that a sitting mayor laying down money that may be used to buy drinks just a few weeks out from an election at which he's standing can't help but have the purpose of influencing the recipient (and others who witness the gift) to vote for him. After all, it shows Mr Foon as a generous man who demonstrates respect to those he meets, which can't help but positively influence those who are going to be casting their votes a short time later. There's some old case law to this effect regarding candidates making large charitable donations shortly before elections.

Nevertheless, that still wouldn't be enough to constitute the relevant criminal offence. For even if the police could demonstrate the requisite purpose - "influencing that person or any other person to vote" - they would still need to show that Mr Foon provided the money/drink "corruptly". And it's clear (to me, anyway) that this test is nowhere near being met.

In the last NZ case to consider the offence of treating, the Eden Election Petition case back in 1923, the Court had this to say:

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. 

And in an older UK case, a court also said this:

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. 

More recently, our Supreme Court took a similar position when considering whether Philip Field's receipt of some tens-of-thousands of dollars worth of work from migrants who had sought his help with immigration issues constituted "bribery", on the basis that he had "corruptly" benefited from his official actions as an MP. It noted that:

We accept that too broad an approach to [the offence of bribery] and like sections carries the risk of criminalising activity involving unexceptionable token gifts or other benefits. ... In the example given of the Member of  Parliament who accepts a rugby jersey when opening a rugby club, the Member would still not be corrupt even if he or she knew in advance of the opening that there would be a gift (perhaps because of a question as to what size rugby jersey would be suitable). So if there is an exception, it must address the extent of the gift and the particular context in which it occurs. We consider, therefore, that there must be a de minimis defence in relation to gifts of token value which are just part of the usual courtesies of life.

That seems to me to quite clearly cover Mr Foon's actions - just as an MP (or other elected official) can receive small tokens of people's respect and/or appreciation as a "part of the usual courtesies of life", so too must they be able to give such tokens to others without then being guilty of bribing or treating them. 

And so, unsurprisingly, a follow up story from RNZ News today tells us that the Police will be taking no action in respect of the issue:

Detective Sergeant Kevin Ford said police spoke to "numerous" people identified as witnesses by the complainant.

"There is absolutely no evidence - or in fact any suggestion from anyone other than the complainant - that Mr Foon has in any way been trying to corruptly influence voters."

"There are also no legal issues with the circumstances surrounding $20 given to a person that Mr Foon has had an association with since childhood. Koha in correct legal circumstances and in accordance with Maori custom does not translate into an offence under the Electoral Act."

But wait, you may be thinking. Does this then mean it is fine for mayoral aspirants (or other local, or even national, candidates for office) to wander around handing out small amounts of money to potential voters, or stick money on the bar for buying voters drinks? Does it open the door to the disbursement of "street money", as takes place in the USA

 No, I don't think it does. The 

  • Mr Foon knew the recipient personally, and had known him for a long time;
  • The gift was made in recognition of a special event (a birthday);
  • Such a gift was of a size and nature that is in keeping with common social courtesies; whether you call it a "koha", or simply a "present". 

Which means that the law in this area is dependent not on hard, fast, clear lines, but rather on socially contextual factors. So, for example, a mayoral candidate who takes her or his turn in buying a round of drinks at the pub for a group he or she is socialising with won't be guilty of treating (even if they are trying to appear generous and ). But a mayoral candidate who buys a round of drinks at the pub for a group of strangers whom she or he has never met would be guilty. Why? Well, in the first case we recognise that buying the round when it's your turn is simply part of the social rituals that make up how we live together. Whereas buying drinks for complete strangers isn't - it's an oddity that calls for an explanation, and the only explanation in an electoral context is not a good one.



 A quick mea culpa here. In my comments in the RNZ story, I stated:

"You really have to go back to the 1920s for the last time that this was bought before a court where a court did overturn a candidate at a national level on the basis that the candidate had treated his voters."

I got this wrong. The case I was referring to was the Eden Election Petition case (discussed above), which didn't result in the overturn of the election in question. Rather, it found that 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 did not constitute the offence of "treating".