The Jeff Cumberbatch Column – On the Prevention of Corruption 6
As if it were not enough to file a declaration of financial affairs and, in the case of members of parliament, a statement of registrable interests, every specified person in public life other than a member or staff member of the Commission is also mandated by Clause 45 (1) to report to the Commission the receipt (offer?) of a gift worth more than $1 000. Even though it is expressly left up to the reporter to ascribe the nature of the gift, whether personal or official, the final determination is left up to the Commission itself so that the categorization of the gift by the specified person in public life is a mere preliminary assessment. The reason for this is not clear. I suppose that even though there is no penalty attached to an innocent misclassification, most will therefore seek to make use of Clause 45 (5)-
A specified person in public life who is unsure whether a gift received from a relative or friend is a personal gift or an official gift may apply to the Commission seeking its opinion as to the proper classification of the gift.
This opinion is based on the provision in Clause 47 that makes it an offence where a specified person in public life “knowingly makes a report to the Commission pursuant to section 45(1) or to the Governor-General pursuant to section 46, which is incomplete or false in any material particular.”
A gift may be retained by the individual if the Commission finds after inquiry that “a gift was given to a specified person in public life personally and
(i) was trivial; or
(ii) was not trivial, but was not intended to be a motive or reward for doing or forbearing to do anything in the course of the performance of his official functions or for causing any other person to do or forbear from doing anything,..”
It is sometimes said in law that the devil himself knows not the intention of man, but the Commission here will purport to divine the innocence of the intention of one who gives a gift worth more than $ 1 000 to a person in public life. Might it not be more in keeping with the spirit of the legislation not to permit the retention of any such gift in any circumstance at all?
If the Commission does not permit retention of the gift, then its disposal is prescribed in Clause 45 (7)(b)-
“…the Commission shall direct the specified person in public life in writing to deliver the gift to the Minister responsible for Finance within such period, not exceeding 30 days, as may be specified by the Commission; and the specified person in public life shall comply with the direction within the time so specified.
Members and staff members of the Commission similarly situated as to the receipt of gifts must make their report to the Governor General, although gifts to their spouses and children are also covered, a glaring omission in the case of the other specified persons in public life. –Clause 46.
Part VII of the Bill treats acts of corruption. These are catalogued at Clause 51 and covers essentially acts of bribery by both the offeror and the recipient of the bribe, although it also includes one who-
“pursues, in the exercise of his functions as a public official, a course of conduct with respect to another public official which amounts to offensive sexual comments, gestures or physical contact or other conduct of a similar nature”
and one who
pursues, in the exercise of his functions as a public official, a course of conduct by which he exploits his position or authority for his sexual gratification.
While these forms of behaviour clearly constitute reprehensible conduct, their immediate link to corruption in public life is not made sufficiently clear since it is not expressly required that they be linked directly or at all to any act of corruption in public life. It is conceded that they may gravely implicate integrity at one level, however.
Also specifically covered as acts of corruption are bribery in procurement of goods, works or services- Clause 52 and transnational bribery –Clause 53. Again we must note the relative insignificance of the fines prescribed, especially in the context of the likely size of a worthwhile bribe, given the existence of the legislation. There seems to be no reason why the fine payable should not equate to the amount transferred as consideration for the act of corruption, where applicable.
There appears to be, in addition, a tainted property offence, although the penalty remains in personam -against the individual- rather than in rem against the property that would thereby remain susceptible to forfeiture by the state –
A person who possesses or is in control of any property knowing that the property or part of the property or proceeds from the property were obtained or derived, directly or indirectly, from the commission of an act of corruption, is guilty of an offence and is liable
(a) on conviction on indictment to a fine of $20 000 or to imprisonment for 5 years or to both;
(b) on summary conviction to a fine of $10 000 or to imprisonment for 2 years or to both; and
(c) to be disqualified from holding any public office for a period of 5 years from the date of conviction for the offence.
The Bill provides for a rebuttable presumption of corruption in circumstances where it is established that in seeking to obtain a public contract, a person received or gave money, a gift or other consideration. This may be rebutted by disproof to the contrary on a balance of probabilities, or that it was more likely than not that the money was not so given or so accepted.
Also worthy of mention is the proposed local equivalent to the unexplained wealth order to be found in Clause 57 although this is again made an offence in personam and does not lead to forfeiture of the property to the state.-
(1) Where a person who is or was a public official is suspected to be in possession of property or a pecuniary resource disproportionate to such person’s known sources of income, the Commission, upon a complaint or of its own motion, may summon the person to produce evidence that the property or resource was lawfully obtained.
(2) A person referred to in subsection (1) who fails to produce satisfactory evidence to prove that the possession of the property or pecuniary resource was acquired by lawful means is guilty of an offence and is liable, on summary conviction, to a fine and to imprisonment for not less than 6 months or more than 3 years.
The fine may however be substantial and based on the value of the asset – See Clause 57 (3)
In imposing a fine pursuant to subsection (2) on a person found guilty of an offence under that subsection, the court shall have regard to the value of the property or pecuniary resource in the possession of the person, which cannot be accounted for by his known sources of income or other lawful means of acquisition of property or pecuniary resources and the fine shall be equivalent to one and one half times the value of the property or pecuniary resource found to be in the possession of the person and for which no such account can be made.
To be continued….