In the Media

The Corruption Bill makes it virtually impossible to accept gifts

PUBLISHED April 12, 2006

THE proposed Corruption Bill published last December could represent a side door to the end of patronage. As presently drafted, it would make it virtually impossible for donors to fund political parties.

The essence of corruption is conduct threatening the relationship of trust between two parties where one acts as agent for the other, such as an employer and his employee. 
According to the Bill, an advantage will be given or obtained ?corruptly? if the donor intends the recipient (employee) to commit or omit an act ?primarily? motivated by the gift. The recipient must know or believe that the donor thought in this way. In other words, the employee has betrayed his employer for the gift.

There would be no offence of giving an advantage corruptly in the private sector where the employer, who is aware of all the circumstances, consents to the advantage (such as a commission) being given by the donor to the employee. But there is no equivalent defence for an agent of the public, such as a politician.

The Bill?s definition of ?corruptly? may also criminalise normal procedures in the financial services sector ? for example, the payment of commission to financial advisers by product providers (such as investment funds) ? as the initial relationship is between the financial adviser and its client.

And it may make it virtually impossible for a donor to give money to a political party where there is any suggestion that the donor will receive some benefit. There may almost be a presumption that if a donor later receives an honour or benefit, the gift was made with that intention and was therefore ?corrupt?. So unless the Bill is clarified, political parties may have to decline contributions.

There have already been criticisms of the proposal that, to prove corruption, a gift must be ?primarily? motivated by advantage. The reason is that this could make it difficult to prove, particularly in relation to bribery in the public sector. One suggested change is to replace ?primarily? with ?substantially?. But that would make the position even more difficult for the private sector ? ?substantially? is easier to prove and so may prove unworkable because it is so broad that it could cover too many scenarios.

An alternative is to have clear exemptions for ordinary commercial activities that would take the financial services sector out of the Bill?s scope. This exemption could also be applied to political party funding. So contributions to political parties could escape the Bill?s reach ? provided they are public, attributed and declared.