web analytics

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

  • Next steps for Christchurch Hospital campus redevelopment
    Canterbury DHB will be better placed to respond to future demand for services and continue to deliver high quality care, with the next stage of the campus redevelopment programme confirmed, Health Minister Andrew Little says. The Government has approved $154 million in funding for the construction of a third tower ...
    BeehiveBy beehive.govt.nz
    19 hours ago
  • Five Power Defence Arrangements Defence Ministers’ Joint Statement
    The Defence Ministers from Australia, Malaysia, New Zealand, Singapore and United Kingdom reaffirmed their nations’ continued commitment to the Five Power Defence Arrangements (FPDA), and commended the achievements over the past 49 years as the FPDA moves towards its 50th Anniversary in 2021.  The Ministers recognised the FPDA’s significant role ...
    BeehiveBy beehive.govt.nz
    19 hours ago
  • Jobs for Nature funding protects health of Hawke’s Bay waterways
    A joint Government and Hawke’s Bay Regional Council project will invest $4.2 million to protect local waterways, enhance biodiversity and employ local people, Environment Minister David Parker announced today.   Over two years, the Hāpara Takatū Jobs for Nature project will fence 195km of private land to exclude stock from vulnerable ...
    BeehiveBy beehive.govt.nz
    22 hours ago
  • New Year border exception for seasonal workers in the horticulture and wine industries
    2000 additional RSE workers to enter New Zealand early next year employers must pay these workers at least $22.10 an hour employers will cover costs of managed isolation for the RSE workers RSE workers will be paid the equivalent of 30 hours work a week while in isolation From January ...
    BeehiveBy beehive.govt.nz
    1 day ago
  • Government increases support for New Zealanders to work in seasonal jobs
    The Government is offering further financial support for unemployed New Zealanders to take on seasonal work. These new incentives include: Up to $200 per week for accommodation costs $1000 incentive payment for workers who complete jobs of six weeks or longer increasing wet weather payments when people can’t work to ...
    BeehiveBy beehive.govt.nz
    1 day ago
  • Government receives Royal Commission of Inquiry report into the Terrorist Attack on Christchurch Mos...
    Minister for Internal Affairs Jan Tinetti has today received the Royal Commission of Inquiry report into the Terrorist Attack on Christchurch Mosques, and will table it in Parliament on Tuesday December 8. “I know this will have been a challenging process for whānau, survivors and witnesses of the terrorist attack ...
    BeehiveBy beehive.govt.nz
    2 days ago
  • New Zealand Government to declare a climate emergency
    The Government will declare a climate emergency next week, Climate Change Minister James Shaw said today.                                       “We are in the midst of a climate crisis that will impact on nearly every ...
    BeehiveBy beehive.govt.nz
    2 days ago
  • Call for urgent action on Pacific conservation
    A declaration on the urgency of the global biodiversity crisis and the need for immediate, transformative action in the Pacific was agreed at a pan-Pacific conference today. The 10th Pacific Islands Conference on Nature Conservation and Protected Areas is taking place this week across the Pacific.  Minister of Conservation Kiritapu ...
    BeehiveBy beehive.govt.nz
    2 days ago
  • Speech from the throne
    E aku hoa i te ara o te whai, Kia kotahi tā tātou takahi i te kō, ko tōku whiwhi kei tō koutou tautoko mai. Ko tāku ki a koutou, hei whakapiki manawa mōku. He horomata rangatira te mahi, e rite ai te whiwhinga a te ringatuku, me te ringakape ...
    BeehiveBy beehive.govt.nz
    2 days ago
  • Keynote address to Chartered Accountants Australia and New Zealand conference
    Speech to the CAANZ conference - November 19, 2020 Thank you, Greg, (Greg Haddon, MC) for the welcome. I’d like to acknowledge John Cuthbertson from CAANZ, the Commissioner of Inland Revenue Naomi Ferguson, former fellow MP and former Minister of Revenue, Peter Dunne, other guest speakers and CAANZ members. I ...
    BeehiveBy beehive.govt.nz
    3 days ago
  • Expert independent advisory group appointed to strengthen the future of Māori broadcasting
    A panel of seven experts are adding their support to help shape the future of Māori broadcasting, Minister for Māori Development Willie Jackson has announced today. “Today I will meet with some of the most experienced Māori broadcasters, commentators and practitioners in the field. They have practical insights on the ...
    BeehiveBy beehive.govt.nz
    3 days ago
  • Government to review housing settings
    New Zealand’s stronger-than-expected economic performance has flowed through to housing demand, so the Government will review housing settings to improve access to the market, the Finance Minister Grant Robertson announced today. “Our focus is on improving access to the housing market for first home buyers and ensuring house price growth ...
    BeehiveBy beehive.govt.nz
    4 days ago
  • Crown accounts reflect Govt’s careful economic management
    The better-than-expected Crown accounts released today show the Government’s careful management of the COVID-19 health crisis was the right approach to support the economy. As expected, the Crown accounts for the year to June 2020 show the operating balance before gains and losses, or OBEGAL, was in deficit. However that ...
    BeehiveBy beehive.govt.nz
    4 days ago
  • Community launch marks next step in addressing racism in education
    The launch of Te Hurihanganui in Porirua today is another important milestone in the work needed to address racism in the education system and improve outcomes for Māori learners and their whānau, Associate Education Minister Kelvin Davis says. Budget 2019 included $42 million over three years to put Te Hurihanganui ...
    BeehiveBy beehive.govt.nz
    4 days ago
  • Government to consider recommendations on DNA use in criminal investigations
    The Minister of Justice has received the Law Commission’s recommending changes to the law governing the way DNA is used in criminal investigations. The report, called The Use of DNA in Criminal Investigations – Te Whahamahi I te Ira Tangata I ngā Mātai Taihara, recommends new legislation to address how ...
    BeehiveBy beehive.govt.nz
    4 days ago
  • Speech to Wakatū Nelson regional hui on trade
    First, I want to express my thanks to Te Taumata for this hui and for all the fantastic work you are doing for Māori in the trade space. In the short time that you’ve been operating you’ve already contributed an enormous amount to the conversation, and developed impressive networks.  I ...
    BeehiveBy beehive.govt.nz
    4 days ago
  • Speech to Primary Industries Summit
    Thank you for the opportunity to speak to you today about the significant contribution the food and fibres sector makes to New Zealand and how this Government is supporting that effort. I’d like to start by acknowledging our co-Chairs, Terry Copeland and Mavis Mullins, my colleague, Agriculture Minister Damien O’Connor, ...
    BeehiveBy beehive.govt.nz
    4 days ago
  • Fast track referrals will speed up recovery and boost jobs and home building
    The Government is taking action to increase jobs, speed up the economic recovery and build houses by putting three more projects through its fast track approval process. “It’s great to see that the fast-track consenting process is working. Today we have referred a mix of potential projects that, if approved, ...
    BeehiveBy beehive.govt.nz
    5 days ago
  • Papakāinga provides critically needed homes in Hastings
    A papakāinga opened today by the Minister for Māori Development the Hon Willie Jackson will provide whānau with much needed affordable rental homes in Hastings. The four home papakāinga in Waiōhiki is the first project to be completed under the ‘Hastings Place Based’ initiative. This initiative is a Government, Hastings ...
    BeehiveBy beehive.govt.nz
    7 days ago
  • New Zealand ready to host APEC virtually
    Prime Minister Jacinda Ardern took over the leadership of APEC earlier today, when she joined leaders from the 21 APEC economies virtually for the forum’s final 2020 meeting. “We look forward to hosting a fully virtual APEC 2021 next year. While this isn’t an in-person meeting, it will be one ...
    BeehiveBy beehive.govt.nz
    1 week ago
  • Revival of Māori Horticulturists
    The rapid revival of Māori horticulture was unmistakeable at this year’s Ahuwhenua Trophy Awards, with 2020 marking the first time this iconic Māori farming event was dedicated to horticulture enterprises. Congratulating finalists at the Awards, Māori Development Minister Willie Jackson said growing large-scale māra kai is part of Māori DNA. ...
    BeehiveBy beehive.govt.nz
    1 week ago
  • Emergency benefit to help temporary visa holders
    From 1 December, people on temporary work, student or visitor visas who can’t return home and or support themselves may get an Emergency Benefit from the Ministry of Social Development, Social Development and Employment Minister Carmel Sepuloni announced today. Previously, temporary visa holders in hardship because of COVID-19 have had ...
    BeehiveBy beehive.govt.nz
    1 week ago
  • School sustainability projects to help boost regional economies
    Forty one schools from the Far North to Southland will receive funding for projects that will reduce schools’ emissions and save them money, Education Minister Chris Hipkins announced today. This is the second round of the Sustainability Contestable Fund, and work will begin immediately. The first round announced in April ...
    BeehiveBy beehive.govt.nz
    1 week ago
  • Farmer-led projects to improve water health in Canterbury and Otago
    More than $6 million will be spent on helping farmers improve the health of rivers, wetlands, and habitat biodiversity in Canterbury and Otago, as well as improving long-term land management practices, says Agriculture Minister Damien O’Connor. Four farmer-led catchment group Jobs for Nature projects have between allocated between $176,000 and ...
    BeehiveBy beehive.govt.nz
    1 week ago
  • Tupu Aotearoa continues expansion to Pacific communities in Nelson, Marlborough, Tasman & Northl...
    Pacific communities in Nelson, Marlborough, Tasman and Northland will benefit from the expansion of the Tupu Aotearoa programme announced today by the Minister for Pacific Peoples, Aupito William Sio. The programme provides sustainable employment and education pathways and will be delivered in partnership with three providers in Northland and two ...
    BeehiveBy beehive.govt.nz
    1 week ago
  • New primary school and classrooms for 1,200 students in South Island
    Education Minister Chris Hipkins unveiled major school building projects across the South Island during a visit to Waimea College in Nelson today. It’s part of the Government’s latest investment of $164 million to build new classrooms and upgrade schools around the country. “Investments like this gives the construction industry certainty ...
    BeehiveBy beehive.govt.nz
    1 week ago
  • Minister of Māori Development pays tribute to Rudy Taylor
      Today the Minister of Māori Development, alongside other Government Ministers and MP’s said their final farewells to Nga Puhi Leader Rudy Taylor.  “Rudy dedicated his life to the betterment of Māori, and his strong approach was always from the ground up, grassroots, sincere and unfaltering”  “Over the past few ...
    BeehiveBy beehive.govt.nz
    1 week ago
  • Prime Minister to attend APEC Leaders’ Summit
    Prime Minister Jacinda Ardern will attend the annual APEC Economic Leaders’ Meeting and associated events virtually today and tomorrow. “In a world where we cannot travel due to COVID-19, continuing close collaboration with our regional partners is key to accelerating New Zealand’s economic recovery,” Jacinda Ardern said. “There is wide ...
    BeehiveBy beehive.govt.nz
    1 week ago
  • Speech to Infrastructure NZ Symposium
    Tena Koutou, Tena Koutou and thank you for inviting me to speak to you today. This is a critical time for New Zealand as we respond to the damage wreaked by the global COVID-19 pandemic. It is vital that investment in our economic recovery is well thought through, and makes ...
    BeehiveBy beehive.govt.nz
    1 week ago
  • Pike River 10 Year Anniversary Commemorative Service
    Tēnei te mihi ki a tātau katoa e huihui nei i tēnei rā Ki a koutou ngā whānau o te hunga kua riro i kōnei – he mihi aroha ki a koutou Ki te hapori whānui – tēnā koutou Ki ngā tāngata whenua – tēnā koutou Ki ngā mate, e ...
    BeehiveBy beehive.govt.nz
    1 week ago
  • Huge investment in new and upgraded classrooms to boost construction jobs
    Around 7,500 students are set to benefit from the Government’s latest investment of $164 million to build new classrooms and upgrade schools around the country. “The election delivered a clear mandate to accelerate our economic recovery and build back better. That’s why we are prioritising construction projects in schools so more ...
    BeehiveBy beehive.govt.nz
    1 week ago
  • Keeping Pike River Mine promises 10 years on
    Ten years after the Pike River Mine tragedy in which 29 men lost their lives while at work, a commemorative service at Parliament has honoured them and their legacy of ensuring all New Zealand workplaces are safe. Prime Minister Jacinda Ardern attended the event, along with representatives of the Pike ...
    BeehiveBy beehive.govt.nz
    1 week ago
  • Additional testing to strengthen border and increase safety of workers
    New testing measures are being put in place to increase the safety of border workers and further strengthen New Zealand’s barriers against COVID-19, COVID-19 Response Minister Chris Hipkins said today. “These strengthened rules – to apply to all international airports and ports – build on the mandatory testing orders we’ve ...
    BeehiveBy beehive.govt.nz
    1 week ago
  • More public housing delivered in Auckland
    The Government’s investment in public housing is delivering more warm, dry homes with today’s official opening of 82 new apartments in New Lynn by the Housing Minister Megan Woods. The Thom Street development replaces 16 houses built in the 1940s, with brand new fit-for-purpose public housing that is in high ...
    BeehiveBy beehive.govt.nz
    1 week ago
  • Agreement advanced to purchase up to 5 million COVID-19 vaccines
    The Government has confirmed an in-principle agreement to purchase up to 5 million COVID-19 vaccines – enough for 5 million people – from Janssen Pharmaceutica, subject to the vaccine successfully completing clinical trials and passing regulatory approvals in New Zealand, says Research, Science and Innovation Minister Megan Woods. “This agreement ...
    BeehiveBy beehive.govt.nz
    1 week ago
  • Jobs for Nature funding will leave a conservation legacy for Waikanae awa
    Ninety-two jobs will be created to help environmental restoration in the Waikanae River catchment through $8.5 million of Jobs for Nature funding, Conservation Minister Kiritapu Allan announced today. “The new funding will give a four-year boost to the restoration of the Waikanae awa, and is specifically focussed on restoration through ...
    BeehiveBy beehive.govt.nz
    1 week ago
  • New Dunedin Hospital project progresses to next stage
    As the new Dunedin Hospital project progresses, the Government is changing the oversight group to provide more technical input, ensure continued local representation, and to make sure lessons learnt from Dunedin benefit other health infrastructure projects around the country. Concept design approval and the release of a tender for early ...
    BeehiveBy beehive.govt.nz
    1 week ago
  • Jump in apprentice and trainee numbers
    The number of New Zealanders taking up apprenticeships has increased nearly 50 percent, and the number of female apprentices has more than doubled. This comes as a Government campaign to raise the profile of vocational education and training (VET) begins. Prime Minister Jacinda Ardern and Education Minister Chris Hipkins announced ...
    BeehiveBy beehive.govt.nz
    1 week ago
  • ReBuilding Nations Symposium 2020 (Infrastructure NZ Conference opening session)
    Tena koutou katoa and thank you for the opportunity to be with you today. Can I acknowledge Ngarimu Blair, Ngati Whatua, and Mayor Phil Goff for the welcome. Before I start with my substantive comments, I do want to acknowledge the hard work it has taken by everyone to ensure ...
    BeehiveBy beehive.govt.nz
    1 week ago
  • New Zealand's biosecurity champions honoured
    Biosecurity Minister Damien O’Connor has paid tribute to the winners of the 2020 New Zealand Biosecurity Awards. “These are the people and organisations who go above and beyond to protect Aotearoa from pests and disease to ensure our unique way of life is sustained for future generations,” Damien O’Connor says. ...
    BeehiveBy beehive.govt.nz
    2 weeks ago