Supreme Court says anything more than a token gift is a corrupt benefit

10 November 2011

In an interesting juxtaposition, the Auditor General launched the New Zealand public sector Fraud Survey just a week after the Supreme Court dismissed the Philip Field appeal – he being the first MP convicted of corruptly accepting benefits in connection with his political role.  The outcome of both is “keeping fraud at bay”.  The Fraud Survey identifies areas of threat to the integrity of public entities and promotes measures to minimise that threat.  In keeping with all international research the survey confirms that a strong ethical culture is the primary factor in countering fraud. That culture depends on a zero tolerance for fraud; promoting fraud awareness, establishing relevant policies and procedures, encouraging managers and their staff to talk regularly about doing the right thing, and reporting suspected fraud to enforcement agencies..

The judgment of the Supreme Court focuses on the legal test for assessing a bribe.  The Court was clear that … “it is simply wrong for an official to accept money or like benefits in return for what has been done in an official capacity”. In a somewhat circular statement the Court said that “the offering and accepting of substantial benefits in relation to official acts is corrupt because it has a tendency to promote corruption”.  This is because officials will then come to expect benefits and the public will develop a belief that the way to obtain public services is to provide officials with such benefits.

The Supreme Court was emphatic that there is a “fundamental inconsistency between the performance of official functions and the acceptance of private rewards for doing so”.

In what is a reinforcement of OAG guidance that items like pens and calendars are the only acceptable tokens of appreciation that officials may keep, the Supreme Court found 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”.

Agencies must ensure that their staff understand what is of “token value”. The State Services Commissioner’s advice to chief executives that gifts of less than $100  need not form part of their six monthly gift and hospitality disclosures,  suggests he has an interesting perspective of what is “token”. It would seem to be a departure from the plain English meaning of perfunctory, minimal or merely symbolic.

Gifts costing more than $ 100  are unlikely to be considered “of token value” and within the de minimis defence referred to by the Supreme Court.  Acceptance of such a benefit by anyone working in the public sector, whether elected, appointed or employed, may constitute a corrupt act, regardless of whether they declare receipt and openly record it in their agency gift register.

http://oag.govt.nz/2011/public-sector-fraud

www.courtsofnz.govt.nz/from/decisions/judgments

www.ssc.govt.nz/sites/all/files/disclosure-ce-expenses-gifts-hospitality-nov2010.pdf

Do gifts and ‘revolving doors’ corrupt?

9 November 2011 

Yesterday’s release of the Office of the Auditor General fraud survey was the focal point of a seminar entitled “Cleanest public sector in the world: Keeping fraud at bay” . The Auditor General’s presentation was supported by contributions from a panel comprising Suzanne Snively (Transparency International NZ), Malcolm Burgess (New Zealand Police), Adam Feeley (Serious Fraud Office) and Alex Tan (PricewaterhouseCoopers). Few in the sizable gathering would have been surprised by the findings of the survey or the observations of the panel. Much of the commentary seemed like a promo for Transparency International although the TINZ Annual Meeting on 24 November did not get a mention. 

One of the questions put to panelists was about the corrupting influence of gifts and hospitality and of the revolving door. Responses lacked the passion and emphasis which the questioner would have expected of the country’s leading anti fraud campaigners.

The Auditor General referred to the minimalist standard in her office, where receiving personal gifts is unacceptable, where any edibles should go to a food bank and items like conference satchels should be given to charities. ( The expectation in the OAG’s 2007 Controlling Sensitive Expenditure guidelines is that agencies allow staff “to personally acquire only infrequent and inexpensive gifts that are openly distributed by suppliers and clients – for example, pens, badges, and calendars”.) The SFO director commented on the exemplary value of the six-monthly publication of chief executives’ gifts and hospitality disclosures. None of the panelists saw concerns in the growing revolving door or any need for controls which have become commonplace throughout the OECD. 

The low key response of the panelists to these corrupting influences was surprising, made more so in light of the content of the Jack Abramoff biography published last week, and his remarks in a “60 Minutes” interview. He recently completed 3 years imprisonment for extensive peddling of influence in Washington. He claims that the US political system remains corrupt, and that new rules will have no effect as nearly all politicians engage in influence-for-bribes at some level. “I am talking about giving a gift to somebody who makes a decision on behalf of the public and at the end of the day that’s really what bribery is,” he says. “But it’s done every day and it’s still being done…. 

Abramoff indicated that the most effective way to influence a member of Congress was the promise of a future job made to politicians’ staff. Almost all them want PR jobs. By offering work “…I would own (them) and, consequentially, the entire office,” Abramoff said that suddenly, every move that staffer made, he made with his future at my firm in mind. His paycheck may have been signed by the Congress, but he was already working for me.” His answer is to bar lobbyists from making any kind of gift at all —”even buying a hot dog” — and prohibiting anyone from lobbying decision-makers after having worked in government. 

www.oag.govt.nz/2011/public-sector-fraud/index.htm

http://redgreenandblue.org/2011/11/07/how-does-the-1-percent-fix-the-game-convicted-lobbyist-jack-abramoff-spills-the-beans-on-60-minutes/

 

Are we really squeaky clean?

8 November 2011 

The Auditor General today released the findings of a survey of fraud awareness, prevention and detection in the New Zealand public sector.  Her report is titled “Cleanest public sector in the world: Keeping fraud at bay”.

The findings confirm the generally satisfactory perception that exists about the penetration of ethical conduct throughout most sectors in New Zealand.

What is interesting is attempting to reconcile the findings of this survey compiled from about 1500 responses from agencies in the wider public sector (approximately 500 agencies subject to Audit NZ oversight – including local government), with the views of 8238 respondents in the 2010 State Services integrity survey (who were representative of the 136 agencies subject to the State Services code of conduct) and the biennial fraud surveys by PriceWaterhouseCoopers and KPMG.

The OAG survey used a broad definition of fraud, covering all forms of dishonesty. Bullying and misuse of the internet do not appear to be encompassed by the definition. Responses indicate that 22.5% of public sector employees have seen fraud at some stage in the previous 2 years. In the State Services integrity survey, if bullying and misuse of the internet are excluded, 21% of respondents reported observing misconduct in the preceding 12 months.

In the public sector survey 91.6% of respondents indicate their agency has a code of conduct, and almost 70% say that there are at least annual communications about it. By comparison, 97% of State Services agencies have a code but only 56% of staff reported that they were aware of integrity training.

As would be expected, the conclusions of the OAG survey are not dissimilar to the State Services integrity survey.

The OAG is promoting 3 crucial elements for fraud prevention:

  • Having a receptive culture
  • Communicating policies regularly
  • Reporting fraud to the Police.

The SSC advocates “6 Trust Elements”

  • Having integrity standards
  • Promoting those standards
  • Integrating those standards into agency operations
  • Managers modelling the standards
  • Staff being aware of the consequences of breaches
  • Agencies taking decisive action where breaches occur.

www.oag.govt.nz/2011/public-sector-fraud/index.htm 

www.ssc.govt.nz/2010-survey-report 

www.pwc.com/nz/fraudsurvey

www.kpmg.com/nz/en/issuesandinsights/articlespublications/pages/fraud-survey-2010.aspx 

www.ssc.govt.nz/sites/all/files/guide-to-central-govt-agencies-1sept11.pdf

What happened to Yes Minister!

7 November 2011

British constitutional theory about the relationship between senior officials and their Ministers seems to be in the process of being rewritten. Allegations this weekend are of the Whitehall machine again thwarting Ministers’ expectations relating to the management of immigration and border controls.

This comes on top of claims last month of moves to “tighten a department’s grip on Ministers”, requiring Ministers to have an official with them whenever discussing substantive policy issues with external organisations. Where some saw the Cabinet Secretary’s recommendations in the “Fox Report” about the former Defence Secretary as constraining Ministers, the moves now against some senior officers may be a reaction.

The announcement that the director of the UK Border Force (described by “Home Office sources” as a “rogue civil servant”) could be sacked without a pay-off by the end of this week and may face action for malfeasance in a public office, may be interpreted as a a strike back Ministers.

The Home Secretary is to make an emergency statement to Parliament today following her suspension of the director and two other civil servants, having been advised that passport and anti-terrorism checks at airports had been watered down – apparently without Ministers’ consent.

 

www.telegraph.co.uk/news/uknews/immigration/8872371/Civil-servants-face-questions-over-border-fiasco.html

www.guardian.co.uk/politics/2011/oct/19/civil-servants-monitor-ministers

Blowing hot and cold on bribery

3  November 2011

The Transparency International Bribe Payers Index, published this week, confirms that there has been no reduction in corrupt practices in most jurisdictions, despite an increased focus on enforcement. Although bribes often relate to business in a developing jurisdiction, in many cases the bribe payer is from an OECD state and corrupt payments are likely to end up in the banking system of OECD states ( or tax havens like the British Virgin Islands, which has a population of 25,000 people but is home to 500,000 international firms, a number growing by 70,000 each year.)

In October, UNDOC reported the annual value of criminal business (excluding tax evasion) was estimated at more than US$2 trillion, with $1.6 trillion of that sum being laundered into “legitimate” assets. This gives support to the Transparency InternationaI recommendation that all countries should be increasing their commitment to the UN Convention Against Corruption and reinforcing their anti-bribery laws. TI identified the need for Germany and Japan (which together with New Zealand are the only OECD states not to be members of UNCAC) to ratify the convention.

An interesting example of the extent of bribery is the US Commission on Wartime Contracting estimate that of US Government spending of $62 billion to rebuild Iraq, $72 billion for Afghanistan and $206 billion for joint logistical support, nearly 25% had been lost to waste and fraud – particularly bribery and kickbacks.

This week the U.K Serious Fraud Office set up a whistle-blower hotline called ‘SFO Confidential’. The SFO Director said: “I want people to come forward and tell us if they think there is fraud or corruption going on in their workplace. Company executives, staff, professional advisors, business associates of various kinds or trade competitors can talk to us in confidence. I have set up a special team to make the SFO readily accessible to whistleblowers, with trained staff sympathetic in dealing with any anxieties people might have about coming forward. I want whistleblowers to feel comfortable about it and use SFO Confidential to help flush out fraud.”

www.unodc.org/unodc/en/press/releases/2011/October/unodc-estimates-that-criminals-may-have-laundered-usdollar-1.6-trillion-in-2009.html 

http://euobserver.com/22/114121

www.thenational.ae/news/worldwide/us-recovers-millions-in-misappropriated-aid

TI’s Bribe Payers Index 2011 published

2 November 2011

Transparency International today published the 2011 Bribe Payers Index. This compiles survey responses from more than 3,000 business executives from developed and developing countries.

Aspects reported in the Index include:

  • bribing officials is a regular occurrence when businesses trade abroad
  • perceptions of the frequency of foreign bribery have not improved since the last survey in 2008
  • businesses that lack integrity in domestic operations are perceived as being more likely to bribe abroad
  • the perception of public sector corruption in a business’s home country is strongly related to the perceived likelihood that it will bribe abroad
  • bribery occurs in all business sectors but is perceived as most common in the public works contracts and construction sector.

The Index ranks 28 leading  exporting economies by the likelihood that their firms will pay bribes abroad. The perception of firms engaging in bribery and exerting undue influence on governments is assessed across 19 business sectors.

The survey results, largely unchanged since last carried out in 2008, rank countries in a pecking order that is comparable to the Corruption Perceptions Index. Netherlands and Switzerland are seen as the countries with businesses that are least likely to pay bribes. Companies from China and Russia are seen as most likely to pay bribes.

New Zealand has not been included in this year’s Index nor in the previous four surveys. The Index was first compiled in 1999.

http://bpi.transparency.org/results/http://transparency.org/policy_research/surveys_indices/bpi

Chooks getting the better of the fox?

31 October 2011

 British commentators have noted that an outcome of the inquiry into the conduct of Britain’s former Defence Minister is a tilting of the balance of power in favour of the civil service. Recommendations in the Secretary to the Cabinet’s report to the Prime Minister will “tighten a department’s grip on its minister”.

In what seems an extraordinary exposition of the institutional status of departments, Sir Gus O’Donnell’s report indicates that departmental staff should attend any meeting at which official matters might be raised, “and should be told if any ministerial acquaintances are ‘involved in policy development’ ” . Some see this as “an alarmingly catch-all phrase” attacking the ministerial practice of obtaining advice and support from outside the public service.

This will reinforce the way officials can constrain challenges to departmental advice. The commitment last year by the UK Government to establish a register of lobbyists is likely to lessen the willingness of some parties to be seen influencing ministers. With the involvement of officials at all meetings “the influence of …mandarins is likely to grow”.

The Economist reports on a “tension in the government between reforming ministers, keen to push power away from central government in areas such as education, welfare and policing, and their more cautious civil servants. In this war of attrition, each side scores victories. It was recently announced that Sir Gus will soon be replaced by Jeremy Heywood, who shares the government’s enthusiasm for decentralising the state. That was a coup for the government. But Whitehall might be about to strike back. ”

A similar situation is most unlikely in New Zealand, where ministers have shown no embarrassment about getting non departmental advice, and are wholly unconvinced about the need for any limitations on lobbying, despite international good practice advocated by the OECD.

www.guardian.co.uk/politics/2011/oct/19/civil-servants-monitor-ministers

 

Crossing the Line


28 October 2011

The reputation of state sector standards in Victoria will take another knock with the publication of a report by the Office of Police Integrity. The State parliament was in an uproar yesterday after a debate about the tabled report, with a member ejected and then almost all Opposition members walking out.

“Crossing the Line” as the OPI has titled the report, criticises the machinations of a policing adviser to the Deputy Prime Premier (and Police Minister), the junior Police Minister (and parliamentary spokesman) and the former Deputy Police Commissioner.  The adviser appears to have seen himself as the king maker in a conspiracy involving the resignation of the Police Commissioner, an industrial relations deal with the Police Association, and a reappointment of the Deputy Commissioner.

The OPI  commented on a small number of people whose actions were completely inconsistent with government policy. The adviser was found to have “… no sense of boundaries, neither where they were or when he crossed them, and even when the scale of his conduct had been exposed by the OPI he had no real insight into its manifest excesses and impropriety”.

The circumstances earlier this year revolved around feuding between the Police Commissioner and his deputy, a loss of political support for the Commissioner, and ultimately both the Commissioner and the deputy resigning.  The OPI began an investigation which was subsequently criticised by the Ombudsman as inappropriately managed. And in the background, despite the public commitment of the Premier when taking office last year, to strengthen integrity institutions, legislation establishing an Independent Broad-based Anti-corruption Commission has yet to come into force.

www.theage.com.au/victoria/lied-leaked-and-abused-power-explosive-opi-report-claims-scalps-20111027-1mkyt.

www.theage.com.au/opinion/police-chiefs-resignation-may-not-be-the-cure-20110616-1g649.html

www.optuszoo.com.au/news/state/news-com-au/report-questions-vicpol-conduct/481370

www.heraldsun.com.au/news/more-news/spies-trail-victoria-police-deputy-commissioner-sir-ken-jones/story-fn7x8me2-1226164375966

 

UNDOC prices corruption at $2.1 trillion

27 October 2011

Money laundering remains very big business according to a report published at a U.N. Convention Against Corruption conference in Marrakesh this week.  The UN assesses that in 2009 approximately 2.7% of global GDP was illicitly recycled  through international mechanisms. Not surprisingly, the most profitable form of transnational organized crime is the drug trade, which accounts for about one-fifth of all crime proceeds. Of that, the cocaine market is the most lucrative at about $84 billion. Taken together, all proceeds of crime (excluding tax evasion) reached $2.1 trillion in 2009. Less than 1% of illicit financial flows were being seized or frozen. UNDOC in conjunction with the World Bank also reported on mechanisms being used to facilitate these illicit transactions. This second report estimates that internationally, US$1 billion is “siphoned off” in bribes each year.

“O would some power the giftie gie us…”

26 October 2011

The media has moved on from its spotlight on the leadership characteristics of the Director of the Serious Fraud Office and the rash way he chose to mark agency accomplishments.  Criticism, including that by the Criminal Bar Association and the Police Association has come to nothing following the State Services Commission report  that the Director …”recognises that he has caused embarrassment to his Minister and has expressed his regret and apologised for his actions…” This related to his sharing with staff, a bottle of champagne that had its origins at Bridgecorp, a company currently subject to SFO prosecution.

The situation in Tasmania however continues to rumble.  The resignation of the Director of the Integrity Commission is generating public ire.  Comment by the Chairman of the Commission that there is no systemic corruption in Tasmania has polarised sectors of the community. The outspokenness of some is typified in a Tasmanian Times contributor observing that “My view and experience is that Tasmania’s public sector is marred by incompetence, stupidity, small mindedness; lack of adherence to procedural fairness”, and another that “In Tasmania the fox has always been in charge of the hen house – well, lots of foxes are in charge of all the hen houses.” The suggestion that there is no continuing need for the Integrity Commission after just 12 months in operation concerns many who believe that public sector ethics are usually beneficially served by an effective watchdog.

www.ssc.govt.nz/statement-sfo-17oct11
http://tasmaniantimes.com/index.php?/comments/18129/