The Eminem decision and National’s electoral return

Written By: - Date published: 4:20 pm, December 19th, 2018 - 27 comments
Categories: elections, Media, national, same old national, Steven Joyce - Tags:

The Court of Appeal has ruled on the Eminem v National case and reduced the damages from $600,000 to $225,000.

The salient passage of the decision was this passage:

[123] Mr Gough considered that the political use of the licensed work would not warrant an increase in the licence fee. For the reasons we have explained that is not our view. Consequently an upward adjustment would be required to his estimate to reflect the objective concern which a licensor would have about the future licensing implications of use in a divisive context. However it appears to us that the “decent fee” to which Mr Gough referred in re-examination did not reflect any discount for short duration which he recognised in his brief.

[124] Political usage was a factor in Mr Donlevy’s assessment, no doubt influenced by the statement about reluctance in the brief to experts. However it is apparent that he factored in not only objective but also subjective reluctance on the part of the licensor. Furthermore he included in his key factors the point that the advertisement used was a sound-a-like or re-recording that was not produced under the control of the artist. As Mr Donlevy explained recourse to such factors had outweighed the relevance of the smaller New Zealand territory in his assessment.  Reflecting our conclusions on the relevance of those considerations, deductions must be made from his estimate of the fee.

[125] Once appropriate allowance is made for those adjustments to Mr Gough’s and Mr Donlevy’s estimates we consider that the evidence on both sides of the case supports a finding of a reasonable licence fee for the use in the advertisement primarily in the New Zealand territory of NZ $225,000. That assessment also recognises the point made in Copinger that the licence terms must reflect the actual infringement. Hence our conclusion takes account of both the duration of the infringement and the fact that the licensed work was not the music and lyrics of Lose Yourself but part only of the music.

I am sure that a few within National’s ranks, particularly Steven Joyce, breathed a sign of relief.

But I have this nagging feeling that there are still issues that National will need to address that will involve not only the signing of a big albeit reduced cheque.

This is because National’s return for the 2014 election may no longer be accurate.  And it may have blown its spending cap.

Following is an entry from its 2014 electoral return.

Stan 3 Limited was the first third party in the original case and I presume this is what they paid for the eminemesque track that they thought was pretty legal.

The Court of Appeal decision means that National effectively has to pay $225,000 for music for campaign purposes.  I presume they will seek and are entitled to a discount from Stan 3 Limited for selling them a dodgy music track.

So why is this significant?

In 2014 National ran 64 electoral candidates.  The spending cap was $1,091,000 for the party plus $25,700 per electorate candidate making a total of $2,735,800.  They went close to this limit and declared spending of $2,556,473.30.

And if you add to this sum the recently confirmed Eminem bill and subtract the Stan 3 bill you get …

$2,765,817.10

Which is above the cap.

Looks like National may have a few problems to sort out.  The first one being does it file an amended return.  And how Eminem gets paid so late and how it happens without someone committing a corrupt practice.

I might be wrong.  But I suspect someone in National’s ranks may want to lose themselves.

27 comments on “The Eminem decision and National’s electoral return ”

  1. Mr Marshy 1

    Gotta love socialists, when all they have to report on is a party and its promo song. Sad little bunch.

  2. miravox 2

    I guess now the person responsible is gone, they’ll argue it’s not their fault?

    I don’t know the penalty, but would love if it was the overspend was deducted from the next election spending cap.

    • mickysavage 2.1

      The problem as I see it is that National now has a bill to pay for campaign expenses but as soon as it pays the bill it blows its spending cap. What can it do? It looks like the person paying this particular bill will be engaged in a corrupt practice. And leave will be needed. There are some quite juicy legal issues at play here.

  3. SHG 3

    Has Winston paid his money back yet?

  4. SaveNZ 4

    Ha Ha. And the rest of the politicians and the public and the media need to hold them to account for cheating. Especially when it is becoming common aka Brexit that political parties are cheating on this rule! Much greater penalties need to be made to stop this practise!

  5. Chris T 5

    That is……kinda fairly desperate

  6. Mrs Muggins 6

    “The Electoral Commission says damages awarded by a court for breach of copyright would not be an election expense for the purposes of a party’s return of election expenses.”

    From NBR – https://www.nbr.co.nz/story/nats-eminem-bill-drops-appeal

    • Muttonbird 6.1

      Interesting precedent the Electoral Commission has set there.

    • alwyn 6.2

      You are a spoilsport aren’t you?
      Poor old Mickys was so sure he had found something to say about Electoral Law and it appears he isn’t too knowledgable.
      Anyway, while he is at it can he explain what the Labour Party did in 2005 about going over the limit with the money they pinched to pay for the pledge card.
      I know that made the source of the money legal but how did they get away with having gone over the limit for the election as a whole?

      • mickysavage 6.2.1

        Reread the post and explain why I am wrong.

        Nice diversion to 2005 tho …

        • alwyn 6.2.1.1

          The whole gist of your argument is that the National Party should have included these damages in their electoral return and that doing so would have taken them over the limit of expenditure.
          Well, according to the Electoral Commission they didn’t have to declare them and they didn’t have to count them in their expenditure.
          A fail on both counts for you.
          But I don’t suppose you will understand.

          By the way, why don’t you enlighten us on how the Labour Party avoided prosecution for spending more than the legal limit in 2005?
          Was it really something as simple as simply putting in the return very late so that it was after the cut-off date for prosecution? Surely the great legal minds in the party could have been more inventive than that.

          • mickysavage 6.2.1.1.1

            The whole gist of my argument is that National may be obliged to allow for this cost in its electoral return. My post has all sorts of caveats to it. Nowhere do I express a firm view. Rather I point out what could be a problem.

            And I am not sure the electoral commission is right. If you look at the definition of “Advertising expenses” in section 3A it includes the following:

            “the reasonable market value of any material used for or applied towards the advertisement, including any such material that is provided free of charge or below reasonable market value”.

            The Court has expressly ruled on the reasonable market value of the music.

            As for the 2005 example it was a while ago. If you believe so vehemently that that previous incident was wrong then shouldn’t you concede this incident is also wrong?

            • alwyn 6.2.1.1.1.1

              “shouldn’t you concede this incident is also wrong?”.
              Of course I think it was wrong. They should have been more careful.
              The 2005 case was, of course quite deliberate.
              I presume you are willing to concede that the 2005 case was wrong?

  7. greywarshark 7

    That sounds pretty legal, should go down well with this high-minded National Party. /sarc

  8. Gareth 8

    Maybe while they’re updating their 2014 election expenses return, they can explain why their 2017 return doesn’t add up either.

    Part G on p10 has some weird numbers:

    Donations exceeding 5000 but not exceeding 15000 – 438 donations totalling 2087864.35.
    Donations exceeding 1500 but not 5000 – 933 donations totalling 1389279.87.

    The problem is that the average amount of the donations exceeding $5000 is $4766.81 which doesn’t exceed $5000. The average of the $1500-$5000 donations is $1489.04. Same problem. It’s almost like some of the donations are missing.

    https://www.elections.org.nz/sites/default/files/bulk-upload/documents/national_party_-_annual_return_2017.pdf

    • alwyn 8.1

      Yes, I remember seeing this once before.
      I wondered at the time whether you had to put the donations into the amount categories based on the total amount the person had given but you counted the number of donations as being the number of bits.
      Thus if a person made 4 donations of $3,000 you would put them into the exceeding $5,000 category but count it as 4 donations.
      You see something like that spelled out in section A, for donations greater than $15,000 where some of the 59 donations listed are quite small amounts. It is the total given by a person that determines whether they have to be listed here.
      Not very clear I know but it does seem to explain the numbers.

      • Craig H 8.1.1

        That’s correct – it’s about total amounts donated by individuals, which can be made up of a number of smaller donations.

Recent Comments

Recent Posts

  • EV road user charges bill passes
    Transport Minister Simeon Brown has welcomed the passing of legislation to move light electric vehicles (EVs) and plug-in hybrid electric vehicles (PHEVs) into the road user charges system from 1 April.  “It was always intended that EVs and PHEVs would be exempt from road user charges until they reached two ...
    BeehiveBy beehive.govt.nz
    1 day ago
  • Bill targets illegal, unregulated fishing in international waters
    New Zealand is strengthening its ability to combat illegal fishing outside its domestic waters and beef up regulation for its own commercial fishers in international waters through a Bill which had its first reading in Parliament today. The Fisheries (International Fishing and Other Matters) Amendment Bill 2023 sets out stronger ...
    BeehiveBy beehive.govt.nz
    1 day ago
  • Reserve Bank appointments
    Economists Carl Hansen and Professor Prasanna Gai have been appointed to the Reserve Bank Monetary Policy Committee, Finance Minister Nicola Willis announced today. The Monetary Policy Committee (MPC) is the independent decision-making body that sets the Official Cash Rate which determines interest rates.  Carl Hansen, the executive director of Capital ...
    BeehiveBy beehive.govt.nz
    1 day ago
  • Stronger protections for apartment owners
    Apartment owners and buyers will soon have greater protections as further changes to the law on unit titles come into effect, Housing Minister Chris Bishop says. “The Unit Titles (Strengthening Body Corporate Governance and Other Matters) Amendment Act had already introduced some changes in December 2022 and May 2023, and ...
    BeehiveBy beehive.govt.nz
    1 day ago
  • Travel focused on traditional partners and Middle East
    Foreign Minister Winston Peters will travel to Egypt and Europe from this weekend.    “This travel will focus on a range of New Zealand’s traditional diplomatic and security partnerships while enabling broad engagement on the urgent situation in Gaza,” Mr Peters says.   Mr Peters will attend the NATO Foreign ...
    BeehiveBy beehive.govt.nz
    1 day ago
  • Keep safe on our roads this Easter
    Transport Minister Simeon Brown is encouraging all road users to stay safe, plan their journeys ahead of time, and be patient with other drivers while travelling around this Easter long weekend. “Road safety is a responsibility we all share, and with increased traffic on our roads expected this Easter we ...
    BeehiveBy beehive.govt.nz
    2 days ago
  • Cost of living support for over 1.4 million Kiwis
    About 1.4 million New Zealanders will receive cost of living relief through increased government assistance from April 1 909,000 pensioners get a boost to Superannuation, including 5000 veterans 371,000 working-age beneficiaries will get higher payments 45,000 students will see an increase in their allowance Over a quarter of New Zealanders ...
    BeehiveBy beehive.govt.nz
    2 days ago
  • Tenancy reviews for social housing restart
    Ensuring social housing is being provided to those with the greatest needs is front of mind as the Government restarts social housing tenancy reviews, Associate Housing Minister Tama Potaka says. “Our relentless focus on building a strong economy is to ensure we can deliver better public services such as social ...
    BeehiveBy beehive.govt.nz
    2 days ago
  • Kermadec Ocean Sanctuary plan halted
    The Kermadec Ocean Sanctuary will not go ahead, with Cabinet deciding to stop work on the proposed reserve and remove the Bill that would have established it from Parliament’s order paper. “The Kermadec Ocean Sanctuary Bill would have created a 620,000 sq km economic no-go zone,” Oceans and Fisheries Minister ...
    BeehiveBy beehive.govt.nz
    2 days ago
  • Cutting all that dam red tape
    Dam safety regulations are being amended so that smaller dams won’t be subject to excessive compliance costs, Minister for Building and Construction Chris Penk says. “The coalition Government is focused on reducing costs and removing unnecessary red tape so we can get the economy back on track.  “Dam safety regulations ...
    BeehiveBy beehive.govt.nz
    2 days ago
  • Drought support extended to parts of North Island
    The coalition Government is expanding the medium-scale adverse event classification to parts of the North Island as dry weather conditions persist, Agriculture Minister Todd McClay announced today. “I have made the decision to expand the medium-scale adverse event classification already in place for parts of the South Island to also cover the ...
    BeehiveBy beehive.govt.nz
    2 days ago
  • Passage of major tax bill welcomed
    The passing of legislation giving effect to coalition Government tax commitments has been welcomed by Finance Minister Nicola Willis.  “The Taxation (Annual Rates for 2023–24, Multinational Tax, and Remedial Matters) Bill will help place New Zealand on a more secure economic footing, improve outcomes for New Zealanders, and make our tax system ...
    BeehiveBy beehive.govt.nz
    2 days ago
  • Lifting economy through science, tertiary sectors
    Science, Innovation and Technology Minister Judith Collins and Tertiary Education and Skills Minister Penny Simmonds today announced plans to transform our science and university sectors to boost the economy. Two advisory groups, chaired by Professor Sir Peter Gluckman, will advise the Government on how these sectors can play a greater ...
    BeehiveBy beehive.govt.nz
    2 days ago
  • Government announces Budget priorities
    The Budget will deliver urgently-needed tax relief to hard-working New Zealanders while putting the government’s finances back on a sustainable track, Finance Minister Nicola Willis says.  The Finance Minister made the comments at the release of the Budget Policy Statement setting out the Government’s Budget objectives. “The coalition Government intends ...
    BeehiveBy beehive.govt.nz
    2 days ago
  • Government to consider accommodation solution
    The coalition Government will look at options to address a zoning issue that limits how much financial support Queenstown residents can get for accommodation. Cabinet has agreed on a response to the Petitions Committee, which had recommended the geographic information MSD uses to determine how much accommodation supplement can be ...
    BeehiveBy beehive.govt.nz
    3 days ago
  • Government approves extension to Royal Commission of Inquiry into Abuse in Care
    Cabinet has agreed to a short extension to the final reporting timeframe for the Royal Commission into Abuse in Care from 28 March 2024 to 26 June 2024, Internal Affairs Minister Brooke van Velden says.                                         “The Royal Commission wrote to me on 16 February 2024, requesting that I consider an ...
    BeehiveBy beehive.govt.nz
    3 days ago
  • $18m boost for Kiwis travelling to health treatment
    The coalition Government is delivering an $18 million boost to New Zealanders needing to travel for specialist health treatment, Health Minister Dr Shane Reti says.   “These changes are long overdue – the National Travel Assistance (NTA) scheme saw its last increase to mileage and accommodation rates way back in 2009.  ...
    BeehiveBy beehive.govt.nz
    3 days ago
  • PM’s Prizes for Space to showcase sector’s talent
    The Government is recognising the innovative and rising talent in New Zealand’s growing space sector, with the Prime Minister and Space Minister Judith Collins announcing the new Prime Minister’s Prizes for Space today. “New Zealand has a growing reputation as a high-value partner for space missions and research. I am ...
    BeehiveBy beehive.govt.nz
    3 days ago
  • Concerns conveyed to China over cyber activity
    Foreign Minister Winston Peters has confirmed New Zealand’s concerns about cyber activity have been conveyed directly to the Chinese Government.     “The Prime Minister and Minister Collins have expressed concerns today about malicious cyber activity, attributed to groups sponsored by the Chinese Government, targeting democratic institutions in both New ...
    BeehiveBy beehive.govt.nz
    4 days ago
  • Independent Reviewers appointed for School Property Inquiry
    Independent Reviewers appointed for School Property Inquiry Education Minister Erica Stanford today announced the appointment of three independent reviewers to lead the Ministerial Inquiry into the Ministry of Education’s School Property Function.  The Inquiry will be led by former Minister of Foreign Affairs Murray McCully. “There is a clear need ...
    BeehiveBy beehive.govt.nz
    4 days ago
  • Brynderwyns open for Easter
    State Highway 1 across the Brynderwyns will be open for Easter weekend, with work currently underway to ensure the resilience of this critical route being paused for Easter Weekend to allow holiday makers to travel north, Transport Minister Simeon Brown says. “Today I visited the Brynderwyn Hills construction site, where ...
    BeehiveBy beehive.govt.nz
    4 days ago
  • Speech to the Infrastructure Funding & Financing Conference
    Introduction Good morning to you all, and thanks for having me bright and early today. I am absolutely delighted to be the Minister for Infrastructure alongside the Minister of Housing and Resource Management Reform. I know the Prime Minister sees the three roles as closely connected and he wants me ...
    BeehiveBy beehive.govt.nz
    4 days ago
  • Parliamentary network breached by the PRC
    New Zealand stands with the United Kingdom in its condemnation of People’s Republic of China (PRC) state-backed malicious cyber activity impacting its Electoral Commission and targeting Members of the UK Parliament. “The use of cyber-enabled espionage operations to interfere with democratic institutions and processes anywhere is unacceptable,” Minister Responsible for ...
    BeehiveBy beehive.govt.nz
    4 days ago
  • NZ to provide support for Solomon Islands election
    Foreign Minister Winston Peters and Defence Minister Judith Collins today announced New Zealand will provide logistics support for the upcoming Solomon Islands election. “We’re sending a team of New Zealand Defence Force personnel and two NH90 helicopters to provide logistics support for the election on 17 April, at the request ...
    BeehiveBy beehive.govt.nz
    4 days ago
  • NZ-EU FTA gains Royal Assent for 1 May entry to force
    The European Union Free Trade Agreement Legislation Amendment Bill received Royal Assent today, completing the process for New Zealand’s ratification of its free trade agreement with the European Union.    “I am pleased to announce that today, in a small ceremony at the Beehive, New Zealand notified the European Union ...
    BeehiveBy beehive.govt.nz
    4 days ago
  • COVID-19 inquiry attracts 11,000 submissions
    Public consultation on the terms of reference for the Royal Commission into COVID-19 Lessons has concluded, Internal Affairs Minister Hon Brooke van Velden says.  “I have been advised that there were over 11,000 submissions made through the Royal Commission’s online consultation portal.” Expanding the scope of the Royal Commission of ...
    BeehiveBy beehive.govt.nz
    4 days ago
  • Families to receive up to $75 a week help with ECE fees
    Hardworking families are set to benefit from a new credit to help them meet their early childcare education (ECE) costs, Finance Minister Nicola Willis says. From 1 July, parents and caregivers of young children will be supported to manage the rising cost of living with a partial reimbursement of their ...
    BeehiveBy beehive.govt.nz
    4 days ago
  • Unlocking a sustainable, low-emissions future
    A specialised Independent Technical Advisory Group (ITAG) tasked with preparing and publishing independent non-binding advice on the design of a "green" (sustainable finance) taxonomy rulebook is being established, Climate Change Minister Simon Watts says.  “Comprising experts and market participants, the ITAG's primary goal is to deliver comprehensive recommendations to the ...
    BeehiveBy beehive.govt.nz
    4 days ago
  • Chief of Army thanked for his service
    Defence Minister Judith Collins has thanked the Chief of Army, Major General John Boswell, DSD, for his service as he leaves the Army after 40 years. “I would like to thank Major General Boswell for his contribution to the Army and the wider New Zealand Defence Force, undertaking many different ...
    BeehiveBy beehive.govt.nz
    4 days ago
  • Minister to meet Australian counterparts and Manufacturing Industry Leaders
    25 March 2024 Minister to meet Australian counterparts and Manufacturing Industry Leaders Small Business, Manufacturing, Commerce and Consumer Affairs Minister Andrew Bayly will travel to Australia for a series of bi-lateral meetings and manufacturing visits. During the visit, Minister Bayly will meet with his Australian counterparts, Senator Tim Ayres, Ed ...
    BeehiveBy beehive.govt.nz
    5 days ago
  • Government commits nearly $3 million for period products in schools
    Government commits almost $3 million for period products in schools The Coalition Government has committed $2.9 million to ensure intermediate and secondary schools continue providing period products to those who need them, Minister of Education Erica Stanford announced today. “This is an issue of dignity and ensuring young women don’t ...
    BeehiveBy beehive.govt.nz
    6 days ago
  • Speech – Making it easier to build.
    Good morning, it’s great to be here.   First, I would like to acknowledge the New Zealand Institute of Building Surveyors and thank you for the opportunity to be here this morning.  I would like to use this opportunity to outline the Government’s ambitious plan and what we hope to ...
    BeehiveBy beehive.govt.nz
    7 days ago
  • Pacific youth to shine from boost to Polyfest
    Minister for Pacific Peoples Dr Shane Reti has announced the Government’s commitment to the Auckland Secondary Schools Māori and Pacific Islands Cultural Festival, more commonly known as Polyfest. “The Ministry for Pacific Peoples is a longtime supporter of Polyfest and, as it celebrates 49 years in 2024, I’m proud to ...
    BeehiveBy beehive.govt.nz
    1 week ago
  • 2024 Ngarimu VC and 28th (Māori) Battalion Memorial Scholarships announced
    ...
    BeehiveBy beehive.govt.nz
    1 week ago
  • Speech to Breast Cancer Foundation – Insights Conference
    Before moving onto the substance of today’s address, I want to recognise the very significant and ongoing contribution the Breast Cancer Foundation makes to support the lives of New Zealand women and their families living with breast cancer. I very much enjoy working with you. I also want to recognise ...
    BeehiveBy beehive.govt.nz
    1 week ago
  • Kiwi research soars to International Space Station
    New Zealand has notched up a first with the launch of University of Canterbury research to the International Space Station, Science, Innovation and Technology and Space Minister Judith Collins says. The hardware, developed by Dr Sarah Kessans, is designed to operate autonomously in orbit, allowing scientists on Earth to study ...
    BeehiveBy beehive.govt.nz
    1 week ago
  • Speech to the New Zealand Planning Institute
    Introduction Thank you for inviting me to speak with you today and I’m sorry I can’t be there in person. Yesterday I started in Wellington for Breakfast TV, spoke to a property conference in Auckland, and finished the day speaking to local government in Christchurch, so it would have been ...
    BeehiveBy beehive.govt.nz
    1 week ago
  • Support for Northland emergency response centre
    The Coalition Government is contributing more than $1 million to support the establishment of an emergency multi-agency coordination centre in Northland. Emergency Management and Recovery Minister Mark Mitchell announced the contribution today during a visit of the Whangārei site where the facility will be constructed.  “Northland has faced a number ...
    BeehiveBy beehive.govt.nz
    1 week ago
  • Celebrating 20 years of Whakaata Māori
    New Zealanders have enjoyed a broader range of voices telling the story of Aotearoa thanks to the creation of Whakaata Māori 20 years ago, says Māori Development Minister Tama Potaka. The minister spoke at a celebration marking the national indigenous media organisation’s 20th anniversary at their studio in Auckland on ...
    BeehiveBy beehive.govt.nz
    1 week ago
  • Some commercial fishery catch limits increased
    Commercial catch limits for some fisheries have been increased following a review showing stocks are healthy and abundant, Ocean and Fisheries Minister Shane Jones says. The changes, along with some other catch limit changes and management settings, begin coming into effect from 1 April 2024. "Regular biannual reviews of fish ...
    BeehiveBy beehive.govt.nz
    1 week ago

Page generated in The Standard by Wordpress at 2024-03-29T11:12:56+00:00