The Jeff Cumberbatch Column – On the Prevention of Corruption 5
Of course the proof of the pudding will ultimately lie in the eating, but the Integrity in Public Life is not short on provisions designed to ensure the reduction of opportunities for specified persons in public life to profit from corruption.
In addition to mandating the declaration of particulars by these individuals that we treated at length in the last installment of this piece two weeks ago, the Bill also requires that every Member of Parliament must also file with the Commission a statement of registrable interests that must be kept by the Commission in a Register of Interests. The content of this statement is catalogued at Clause 38 of the Bill and appears calculated to disclose the trading and commercial interests of the member and of his or her spouse and children. Oddly enough, it also includes at sub-sub-clause g-
“…particulars of any political, trade or professional association to which the person belongs…”
Since, as has been observed before, the legislation does not attempt to engage with an eminently possible source of political corruption; that of the electoral campaign financing of political parties, this particular appears anomalous in a group comprised of existing directorships, beneficial interests in land, and investments in corporate entities, among others. Even odder still is the provision in Clause 38 (2) that appears at first blush to defeat the purpose of the inquiry itself –
Nothing in this section shall be taken to require disclosure of the actual amount or extent of any financial benefit, contribution or interests.
Thus the statement alone of the interest suffices for the purpose, although it is not immediately clear, at least to this writer, how a determination of corruption might be made in the absence of an increase in the value of a particular interest.
One possible explanation for this might be the provision in Cl. 39(2) that permits the Register to be inspected by any member of the public. The need to preserve the privacy of the member, it would appear, clearly outweighs the detection of an increase in the unexplained value commercial holdings by the MP.
As it is with the declaration of assets, the Commission is empowered to request further information on the statement, although this must be read subject to Clause 38 (2) cited above, and may conduct an inquiry to ascertain whether there has been a full disclosure as stipulated.
As a matter of drafting style, the Bill introduces the notion of a prohibited interest almost by stealth in Clause 40 (2) without prior warning or definition until it does so belatedly in Clause 42.
According to the former clause,
Without prejudice to the generality of subsection (1), where the Commission is of the opinion that there are reasonable grounds to believe that a member of the House of Assembly or the Senate has failed to comply with the requirements for the registration of interests under this Part or that such member has acquired a prohibited interest… [Emphasis added]
Clause 42 later defines a prohibited interest as one where-
- (a) the member has notified the Commission of the interest as required by this Act; and
(b) the Commission is of the opinion that the interest
(i) is unlikely to affect the member’s obligations under the Code of Conduct; or
(ii) is likely to affect the member’s obligations under the Code of Conduct but that the member, his spouse or child, as the case may be, has divested himself of the interest or has placed it in a blind trust on such terms and conditions as the Commission considers appropriate.
The Bill additionally creates a number of offences in connection with the failure to file the statement; filing a knowingly incomplete statement or one that is materially false in any particular; a failure to comply with a request of the Commission and a failure without reasonable cause to attend an inquiry called by the Commission and to furnish any requested information or knowingly giving any false or incomplete information in response at the inquiry –Clause 43 (1).
Once again, it bears remarking that the primary monetary fine for these offences on summary conviction is a scarcely dissuasive $ 15 000; a sum worth significantly less in today’s coinage than the fine under the 1929 Prevention of Corruption Act.
However it is possible for this penalty to be enlarged upon by the flouting of the magistrate’s order to make a full disclosure of the property. By clause 43-
Where an offence referred to in subsection (1)(a) or (b) involves the non- disclosure, by a member of the House of Assembly or the Senate, of property which should have been disclosed in a statement of registrable interests, the magistrate shall order the member to make full disclosure of the property within a specified period.
Where a member of the House of Assembly or the Senate fails to comply with an order made pursuant to subsection (2) within the specified period, the offence referred to in subsection (1) shall be deemed to be a continuing offence and the member shall be liable to a further fine of $3 000 for each day on which the offence continues.
Arguably, even more dissuasive still is the punishment prescribed by Clause 44-
A member of the House of Assembly or the Senate who is convicted of an offence under section 36 or 43 is liable, in addition to any other penalty prescribed by law, to be disqualified from holding any public office for a period of 5 years from the date of conviction for the offence.
I propose to conclude this series next week with an examination of the treatment of gifts, the definition of acts of corruption, and analyses of the Code of Conduct and of the Bill’s protection afforded to whistleblowers.