BY PENNY BRIGHT
5 October 2008
Just before 5pm Friday 3 October 2008, I lodged a formal complaint
with the Serious Fraud Office about National Party leader John Key’s
failure to declare his pecuniary interest in Tranz Rail shares at a
time it was an ‘Item of
Business’ before Parliament.
A complaint will be similarly lodged with the Police, on the same
grounds – which are attached to this email, for your information and
consideration.
As all evidence I have provided is in the ‘public domain’, and there
has been considerable media coverage and public interest in the recent
Privileges Committee deliberations and Report on ‘Members Pecuniary
Interests – Gifts and Donations’, interests of ‘open, transparent
and democratically accountable’ government – I am making details of
this complaint public.
I look forward to all members of the media, MPs and parties who
expressed concern about the transparency required about MP’s pecuniary
interest’, over Winston Peters/ NZ First and the ‘Owen Glenn’
political donation issue – showing equal – if not more concern over
John Key’s failure to disclose his pecuniary interest in Tranz Rail
shares.
In my considered opinion, failure to declare this obvious ‘conflict of
interest’, is a form of misuse of public office for private gain –
which is the internationally accepted definition of corruption.
NZ, according to ‘Transparency International’ has the status of the
‘least corrupt country in the world’.
Failure to declare this pecuniary interest, this very clear conflict
of interest, including trying to flush out commercially sensitive
information at a time he had an undisclosed shareholding in Tranz
Rail, is – in my considered opinion – a form of corrupt practice.
John Key wishes to lead New Zealand – the ‘least corrupt country in the world’.
That is why I have asked the SFO to investigate, and will also being
laying a complaint with the Police.
Following is the complaint I have made so that people can see for themselves:
COMPLAINT TO THE SERIOUS FRAUD OFFICE REGARDING MP JOHN KEY’S FAILURE
TO DISCLOSE HIS PECUNIARY INTEREST IN TRANZRAIL:
3 October 2008
SUMMARY OF COMPLAINT:
National Party Leader John Key, at the time he was the Member of
Parliament for Hellensville, failed to declare his pecuniary interest
in Tranz Rail at a time it was an ‘Item of Business’ before the House.
The pecuniary interest was in the form of shares in Tranz Rail held in
a ‘family trust’, and shares held by John Key himself, from 16
February 2002 to 13 June 2003.
It is clear requirement under the Parliamentary Standing Orders
applicable at the time, that MPs declare such pecuniary interest.
John Key asked oral and written questions in the House, seeking
commercially sensitive information about Tranz Rail at a time he had
an undisclosed pecuniary interest in Tranz Rail.
John Key then requested commercially sensitive information about Tranz
Rail from the Minister of Finance in the form of an Official
Information Act request, at a time he had an undisclosed pecuniary
interest in Tranz Rail.
When the Minister of Finance declined to provide the above-mentioned
information, John Key wrote a letter of complaint to the Ombudsman, in
order to attempt to ‘flush out’ this commercially sensitive
information about Tranz Rail, at a time he had an undisclosed
pecuniary interest in Tranz Rail.
In my view, this represents a clear ‘conflict of interest’.
In my view, this represents ‘misuse of public office for private gain’.
My understanding is that decision-making should be guided by the
principles of integrity, honesty, transparency, openness,
independence, good faith and service to the public.
My understanding is that an MP should declare if there is a clear
legal requirement or written rule, and the onus to comply is with the
MP.
My understanding is under ‘common law’, any financial conflict of
interest (except one which is trivial), amounts to an automatic
disqualification from participating in the decision.
ie: Where conflict of interest is financial – bias is presumed to exist.
New Zealand has the status of the ‘least corrupt country in the world’
(along with Denmark and Sweden).
‘Misuse of public office for private gain’ is a widely-used definition
of corruption.
The public interest in making this complaint is, in my view,
significant, because these are the actions of the man who seeks to
lead the ‘least corrupt country in the world’ – New Zealand.
Please be advised that I am also lodging a complaint with the Police.
(I was advised that I could make a complaint to either the Serious
Fraud Office, the Police, or both.)
Please also be advised, that in the public interest, I am making
details of this complaint publicly available.
All the evidence I have provided is in the public domain.
‘Trust’ – has become a very significant issue in this election campaign.
As a ‘judicially recognised Public Watchdog,’ who has defended the
rights of citizens to ‘open, transparent and democratically
accountable’ local government, equally I believe that citizens have
the right to expect these principles to be upheld at central
government.
Particularly by those in leadership positions – who, in my view, must
be seen to ‘practice what they preach’, and lead by example.
DETAILS OF COMPLAINT AND EVIDENCE PROVIDED
TO SUBSTANTIATE THIS COMPLAINT:
A) STANDING ORDERS OF THE HOUSE OF REPRESENTATIVES 1999: EXHIBIT “A (1)”
PECUNIARY INTERESTS
165 Pecuniary Interests
(1) A pecuniary interest is a direct financial benefit that might
accrue to a member personally, or to any trust, company or other
business entity in which the member holds an appreciable interest, as
a result of the outcome of the House’s consideration of a particular
item of business.
(2) A pecuniary interest –
(a) includes a pecuniary interest held by a member’s spouse or
domestic partner or by any child of the member who is wholly or mainly
dependent on the member for support.
(b) does not include any interest held by a member or any other person
as one of a class of persons who belong to a profession, vocation or
other calling or who hold public offices or an interest held in common
with the public.
166 Declaration of pecuniary interest
A member must, before participating in the consideration of any item
of business, declare any pecuniary interest in which the member has in
that business.
STANDING ORDERS OF THE HOUSE OF REPRESENTATIVES 2004:
EXHIBIT “A – (2)”
PECUNIARY INTERESTS
164 Pecuniary Interests
(1) A pecuniary interest is a direct financial benefit that might
accrue to a member personally, or to any trust, company or other
business entity in which the member holds an appreciable interest, as
a result of the outcome of the House’s consideration of a particular
item of business.
(2) A pecuniary interest –
(a) includes a pecuniary interest held by a member’s spouse or
domestic partner or by any child of the member who is wholly or mainly
dependent on the member for support.
(b) does not include any interest held by a member or any other person
as one of a class of persons who belong to a profession, vocation or
other calling or who hold public offices or an interest held in common
with the public.
165 Declaration of pecuniary interest
A member must, before participating in the consideration of any item
of business, declare any pecuniary interest in which the member has in
that business.
B) SHARES HELD BY MP FOR HELENSVILLE, JOHN KEY FROM 16/02/2002 – 13/06/2003:
(1) COMPUTERSHARE INVESTOR SERVICES LIMITED
(EXHIBIT “B – (1)”)
HISTORICAL REGISTER FOR THE PERIOD 01/01/2002 TO 31/12/2002
24120 JOHN PHILLIP KEY & BRONAGH IRENE KEY & KENNETH
GREY WHITNEY,
PO BOX 1822, AUCKLAND.
NZ 24252 16/02/2002 30,000
24392 19/02/2002 20,000
(2) COMPUTERSHARE INVESTOR SERVICES LIMITED
(EXHIBIT “B – (2)”)
HISTORICAL REGISTER FOR THE PERIOD 01/01/2003 TO 31/12/2003
34120 JOHN PHILLIP KEY & BRONAGH IRENE KEY & KENNETH
GREY WHITNEY,
PO BOX 1822, AUCKLAND.
NZ 41565 13/06/2003 50,000-
**** HOLDING DELETED
861244 JOHN PHILLIP KEY , C/O MR M WHITNEY PO BOX
1822, AUCKLAND.
NZ 37610 7/05/2003 50,000
41135 10/06/2003 50,000 –
**** HOLDING DELETED
C) SUPPLEMENTARY QUESTION ON TRANZRAIL ASKED BY MP JOHN KEY TO ORAL
QUESTION 8 ON 9 APRIL 2008:
(EXHIBIT “C”)
ORDER PAPER, DEBATES (HANSARD), QUESTIONS, DAILY PROGRESS, JOURNALS
QUESTIONS FOR ORAL ANSWER
Date: 9 April 2003
8. Tranz Rail – Rail Network
[Volume:607; Page:4969
John Key: What instructions has the Minister issued to Treasury
regarding the many secret meetings it has held in recent months with
Tranz Rail’s management, and can he confirm the reasons that all
proposals to spend the $30 million allocated to Transfund in the
alternatives to roading scheme have indeed been stonewalled by him to
ensure Cabinet had the resources to buy back the tracks, once Treasury
reports back to him in a month?
D) QUESTION FOR WRITTEN ANSWER ON TRANZRAIL ASKED BY MP JOHN KEY ON
14 APRIL 2008:
(EXHIBIT “D”)
ORDER PAPER, DEBATES (HANSARD), QUESTIONS, DAILY PROGRESS, JOURNALS
QUESTIONS FOR WRITTEN ANSWER
Date: 14 April 2003
3444 (2003) John Key to the Minister of Finance (14 Apr 2003)
Further to his response to my supplementary question to oral question
8 on 9 April 2003, how many meetings have taken place between Treasury
officials and Tranzrail during 2003, on what dates did they occur, who
was present at each meeting and what was the agenda for each of the
meetings.
E) MP JOHN KEY’S OFFICIAL INFORMATION ACT (OIA) REQUEST TO THE
MINISTER OF FINANCE MICHAEL CULLEN, REQUESTING COMMERCIALLY SENSITIVE
INFORMATION ABOUT TRANZRAIL DATED 23 APRIL 2003:
(EXHIBIT “E”)
23rd April 2003 John Key
MP for Helensville
Hon Dr Michael Cullen
Minister of Finance
Level 7 Exec Wing
Dear Dr Cullen
Further to your response to written question 03444(2003), I would like
to request, under the Official Information Act, copies of the minutes
of the meetings between Treasury officials and Tranzrail
representatives, which were held on Tuesday 11 March, Wednesday 26
March and Wednesday 16 April, as well as minutes of any such meeting
held after the date on which you responded to the above numbered
written question.
In addition, I would like a copy of the list of invitees and attendees
of the meetings, including their designation, if these are not
included on the official minutes.
Yours sincerely
………… (unreadable signature )
pp John Key
MP for Helensville
F) ACKNOWLEDGMENT FROM MINISTER OF FINANCE MICHAEL CULLEN’S OFFICE OF
THE ABOVE-MENTIONED OIA REQUEST, DATED 23 APRIL 2003:
(EXHIBIT “F”)
23 April, 2003
John Key
MP for Helensville
Parliament Buildings
WELLINGTON
Dear John
On behalf of the Hon Dr Michael Cullen, Minister of Finance, I
acknowledge receipt of your letter of 23 April 2003 requesting:
“copies of the minutes of the meetings between Treasury officials and
Tranzrail representatives, which were held on Tuesday 11 March,
Wednesday 26 March and Wednesday 16 April, as well as minutes of any
such meeting held after the date on which you responded to the above
numbered written question.
In addition, I would like a copy of the list of invitees and attendees
of the meetings, including their designation, if these are not
included on the official minutes.”
Your request was received in this office on 23 April 2003 and will be
responded to under the provisions of the Official Information Act.
Yours sincerely
Fleur Hivon
Ministerial Assistant
G) LETTER FROM THE OFFICE OF THE OMBUDSMAN, DATED 27 MAY 2003,
REGARDING A COMPLAINT RECEIVED FROM MP JOHN KEY, ABOUT MINISTER OF
FINANCE MICHAEL CULLEN’S FAILURE TO PROVIDE THE REQUESTED
COMMERCIALLY SENSITIVE INFORMATION ABOUT TRANZRAIL. (EXHIBIT “G”)
Office of the Ombudsmen
Ref: W50303
Our Contact: Andrew McCaw
Hon Michael Cullen
Minister of Finance
Parliament Buildings
WELLINGTON
Dear Mr Cullen
OFFICIAL INFORMATION ACT COMPLAINT
JOHN KEY, MP FOR HELENSVILLE
In the temporary absence of Anand Satyanand, Ombudsman, I am writing
to inform you that Mr Satyanand has received a complaint from Mr John
Key, MP for Helensville, about your decision not to provide him with
certain information. Mr Key has asked for an investigation and review
of this decision under the Official Information Act.
Briefly I understand the background to be as follows. On 23 April
2003, Mr Key wrote to you requesting copies of the minutes from recent
meetings between Treasury officials and Tranz Rail, and a list of
attendees at those meetings.
You responded by letter dated 20 May 2003 refusing to release the
information pursuant to sections 9(2)(a), 9(2)(b)(ii) and 9(2)(ba)(i).
It is this decision that Mr Satyanand has been asked to investigate.
…………….
Yours sincerely
Leo Donnelly
Assistant Ombudsman
H) SECTIONS OF THE CRIMES ACT 1961 WHICH MAY HAVE BEEN BREACHED:
105A Corrupt use of official information
Every official is liable to imprisonment for a term not exceeding 7
years who, whether within New Zealand or elsewhere, corruptly uses or
discloses any information, acquired by him in his official capacity,
to obtain, directly or indirectly, an advantage or a pecuniary gain
for himself or any other person.
Section 105A was inserted, as from 1 July 1983, by section 3(1) Crimes
Amendment Act (No 2) 1982 (1982 No 157).
Section 105A was amended, as from 1 July 1993, by section 2 Crimes
Amendment Act 1993 (1993 No 33) by inserting the words “or discloses”.
107 Contravention of statute
(1) Every one is liable to imprisonment for a term not exceeding one
year who, without lawful excuse, contravenes any enactment by wilfully
doing any act which it forbids, or by wilfully omitting to do any act
which it requires to be done, unless—
(a) Some penalty or punishment is expressly provided by law in respect
of such contravention as aforesaid; or
(b) In the case of any such contravention in respect of which no
penalty or punishment is so provided, the act forbidden or required to
be done is solely of an administrative or a ministerial or procedural
nature, or it is otherwise inconsistent with the intent and object of
the enactment, or with its context, that the contravention should be
regarded as an offence.
(2) Nothing in subsection (1) of this section applies to any
contravention of any Imperial enactment or Imperial subordinate
legislation that is part of the laws of New Zealand, or to any
omission to do any act which any such Imperial enactment or Imperial
subordinate legislation requires to be done.
(3) In subsection (2) of this section, the terms Imperial enactment
and Imperial subordinate legislation have the meanings given to them
by section 2 of the Imperial Laws Application Act 1988.
Compare: 1908 No 32 s 129
Subsections (2) and (3) were inserted, as from 1 January 1989, by section 2
Crimes Amendment Act 1988 (1988 No 114).
228 Dishonestly taking or using document
Every one is liable to imprisonment for a term not exceeding 7 years
who, with intent to obtain any property, service, pecuniary advantage,
or valuable consideration,—
(a) dishonestly and without claim of right, takes or obtains any document; or
(b) dishonestly and without claim of right, uses or attempts to use
any document.
Compare: 1961 No 43 s 229A
Subsections (3) and (4) were repealed, as from 1 October 1985, by
section 9(1) Crimes Amendment Act (No 2) 1985 (1985 No 121).
Part 10 (comprising sections 217 to 305) was substituted by a new Part
10 (comprising sections 217 to 272), as from 1 October 2003, by
section 15 Crimes Amendment Act 2003 (2003 No 39).
240 Obtaining by deception or causing loss by deception
(1) Every one is guilty of obtaining by deception or causing loss by
deception who, by any deception and without claim of right,—
(a) obtains ownership or possession of, or control over, any property,
or any privilege, service, pecuniary advantage, benefit, or valuable
consideration, directly or indirectly; or
(b) in incurring any debt or liability, obtains credit; or
(c) induces or causes any other person to deliver over, execute, make,
accept, endorse, destroy, or alter any document or thing capable of
being used to derive a pecuniary advantage; or
(d) causes loss to any other person.
(2) In this section, deception means—
(a) a false representation, whether oral, documentary, or by conduct,
where the person making the representation intends to deceive any
other person and—
(i) knows that it is false in a material particular; or
(ii) is reckless as to whether it is false in a material particular; or
(b) an omission to disclose a material particular, with intent to
deceive any person, in circumstances where there is a duty to disclose
it; or
(c) a fraudulent device, trick, or stratagem used with intent to
deceive any person.
Compare: 1961 No 43 ss 246, 247, 270
Part 10 (comprising sections 217 to 305) was substituted by a new Part
10 (comprising sections 217 to 272), as from 1 October 2003, by
section 15 Crimes Amendment Act 2003 (2003 No 39).
241 Punishment of obtaining by deception or causing loss by deception
Every one who is guilty of obtaining by deception or causing loss by
deception is liable as follows:
(a) if the loss caused or the value of what is obtained or sought to
be obtained exceeds $1,000, to imprisonment for a term not exceeding 7
years:
(b) if the loss caused or the value of what is obtained or sought to
be obtained exceeds $500 but does not exceed $1,000, to imprisonment
for a term not exceeding 1 year:
(c) if the loss caused or the value of what is obtained or sought to
be obtained does not exceed $500, to imprisonment for a term not
exceeding 3 months.
Compare: 1961 No 43 s 246(2)
Part 10 (comprising sections 217 to 305) was substituted by a new Part
10 (comprising sections 217 to 272), as from 1 October 2003, by
section 15 Crimes Amendment Act 2003 (2003 No 39).
Looking forward to your prompt consideration of this complaint.
Yours sincerely,
Penny Bright
Ph (09) 846 9825
021 211 4 127
waterpressure @gmail.com