The death of an EDM dancer, well it happens a lot around here

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.