No Right Turn Gets it :-
So, National has responded to Chris Finlayson’s contemptuous refusal to fully disclose his pecuniary interests by calling for the rules to be reviewed to allow more opportunities for MPs to hide their interests. In other words, change the rules to make it legal. Why am I not surprised? National’s pretext is that the rules are “confusing”. I think not. Here for example is the clause Finlayson fell afoul of:
1) Every return of pecuniary interests must contain the following information as at the effective date of the return: (a) the name of each company of which the member is a director or holds or controls more than 5 percent of the voting rights and a description of the main business activities of each of those companies, and…
The agenda here is clearly more secrecy around MP’s business interests. And that runs directly counter to clean government and open democracy. These rules are the first line of defence against corruption. The fact that MPs must declare their interests helps prevent them from attempting to enrich themselves while in office. If anything, the rules need to be strengthened (by e.g. busting trusts and forcing MPs to declare everything), not weakened. But National has always opposed this sort of transparency, and they are taking the opportunity to roll it back. And we will all be the losers if we allow them to get away with it.
As I noted earlier, only a lawyer with a desire to hide things could convince themselves to ignore the plain reading of the words for a perverse, self-serving interpretation that it allowed some directorships to not be declared. And only a lawyer with a desire to hide things would think that the appropriate way of resolving such “confusion” was to pay another lawyer to say what you wanted them to say give an “independent” opinion, rather than ask the registrar directly.
“Ignorance” is bliss
National shifting the goal posts to suit them.
And that runs directly counter to clean government and open democracy.
It seems that National has more of an interest in clean government and open democracy than Labour, given that we had to wait for a National government to learn how Ministers (of all stripes) have been using their credit cards.
They are circling the wagons! If we can’t fudge our way out we will review the rules – smoke screen approach.
He is the Attorney General, I can understand Lockwood getting confused, which he hasn’t, this alone tells you something.
Probably equally inspired by John KEYS blind independently advised trip around the London underground.
I remember Labour changing the law retrospectively when it was “confusing”.
Ironic.
On another note have New Zealand First paid it back yet?
Typical approach of the privileged here, it’s not that he broke the rules it’s that the system ‘failed’ him (Brownlee’s word). Nice to see Brownlee fronting for Finlayson though…at least someone has the nerve to front on this…and the AG is where exactly…?
Dave is a bit silly about the “Labour changing the law retrospectively when it was “confusing”. ”
Remember that Labour repaid the disputed amount and paid for years by constant harping from media and National MPs, that the law was retrospectively changed. (National still hasn’t repaid their $100,000)
Now in this case retrospective rewriting the rules to protect the AG deserves the same retribution and condemnation.
Wish I could have that done each time I got a speeding ticket!
I appreciate no right turn are not the most business law astute, however that is a very badly drafted provision that is open to all manner of interpretation and whoever has drafted it shows a complete lack of understanding of company law principles/rules.
1. Is a Director by vitue of holding more than 5%?
2. Is a Director appointed by a share class interest?
3. Holds an interest?
4. Controls an interest?
Someone with any legal knowledge could quite justifiably apply the principle of Noscitur a Solcis and have their interpretation significantly coloured by the structure and context of the wording.
In any event rights attach to classes of shares on an individual bases so one could have 99% of the shares in a company and no voting rights etc….
I think Labour really is biting air on this one!
Ben: Thankyou for proving my point about lawyers. There’s an obvious meaning, and a number of perverse, self-serving ones. The clear intent at the time of passing, the public expectation, and the registrar’s rulings all back the former.
Giday Ben – On registering a company you state who the directors are, correct? I thought that would be the first test.
I’m not a lawyer; so I go with the plain reading interpretation and I think that is the intent. The noscitur a sociis argument is redundant as the intent is clear and everybody else got it.
Anyway, why try and be clever, why get independent advice, why not just declare it. If in doubt they can check with the Registrar of pecuniary Interests and other MPs do so.
Dame Margeret Beazley has already said he has breached the rules
http://www.spcs.org.nz/2010/attorney-general-chris-finlayson-in-breach-of-parliamentary-rules-stuff-news/
I agree with idiot Savant more transparency….bust the trust!
If they had split the clause up and applied better plain english drafting and simply said “director” and left it at that then that would have been fine. However they have really muddied the waters by throwing into all manner of shareholder issues which interact with director issues in a very intricate and complicated way that is the issue here.
Na he broke the rules no matter which way you read it, the ref called it and he should be outta here
He shoulda played by the rules!
Ben, which part of “the name of each company of which the member is a director” is unclear?
For the record, I don’t think Finlayson has deliberately lied, but he’s certainly made an error (and btw, Idiot/Savant, it may surprise you to learn that not all lawyers are dishonest). He doesn’t appear to have had anything to gain by lying.
@ Scott
As I said that on its own would have been fine but the way in which it has been inloped with shareholding issues is where the problems start, it is indicative of drafting by policy wonks with no grasp of business realities.
Trying to make vague and insubstantial excuses for the man caught out, Ben?
Or making a case for refining the wording of the rules?
Can’t quite tell.
Ben
The requirements are crystal clear. The rules say:
“Every return of pecuniary interests must contain the following information as at the effective date of the return:
(a) the name of each company of which the member is a director or holds or controls more than 5 percent of the voting rights …”
Finlayson was at different times a director of two different companies. He did not declare this. Prima facie he has made a false declaration and an investigation is justified.
The case is that open and shut that I am amazed you should try and defend it.
@ Micky
its nowhere near open and shut,
The mixing of shareholder rights and director powers in the drafting is what has clearly created this issue.
Added to that the companies also look like trustee companies which adds another layer of complications, being a director by viture of appointment under a trust deed severely restricts ones powers as they are often bound by the directions of the deed etc….
If you take a look at Section 126 of the Companies Act the definition of who is a director is not clear cut and open to all manner of shades of grey.
Open shut case closed. A schoolkid, Dame Margaret, all other MPs other than J Young understood.
Finlayson was being a smartarse and was caught.
A-G is not a job for someone who plays fast and loose with declarations.
oh yes Trevor, some midwife thinks its a breach send for a marching band!
@Ben
I’m not sure how this could be clearer. Finlayson signed a consent to act as director of Diana Bremner Trust Nominees Ltd on 4 October 2001 (it’s on the Companies Office website). He was listed on the Companies Office as a Director until he resigned in March 2006.
Sane story for Te Puhi Trustee (2) Ltd – signed a consent, listed as director.
The “deemed director” provisions of s126 aren’t relevant, because he was an actual director.
How can you continue to assert it wsn’t clear whether he was a director?
The deemed director provisions are just one part of the wider definitions in terms of powers and duties
Where is our crusading Prime Minister Honest John in all this?
He sent Heately to the sin bin for a few weeks for a couple of bottles of wine; what is he going to do with an incompetent rule breaking, muck slinging, Attorney General.
Come on Mr Key what is your comment on this one; given what you said about Heatley?
“In my opinion he wasn’t attempting to rort the taxpayer but they are stupid mistakes, silly mistakes and I wouldn’t expect my ministers to make them.”
http://www.stuff.co.nz/the-press/news/3363564/Ministerial-credit-card-misuse-disappoints-PM
Ben, you demonstrate to me how its so easy to not understand something simple when your livelihood depends on not understanding it
Or in this case Finlays.’s livelihood
@Ben, you’re just digging a bigger hole for yourself.
It’s got nothing to do with powers and duties. Finlayson held himself out as a director. He signed a director consent form. He is listed as a director. He has not denied being a director.
So the only question is whether a directorship must be declared. And the answer to that question is obvious from a plain English reading of the rules.
What I am saying is the confusion is understandable from the interpretation particularly in terms of the bad drafting linking to shareholding etc…
Does it mean an active/operational director?
Does it mean a nominee director?
There are thousands of directors in this country but not all of them are functional in business etc…. was this provision supposed to apply to those appointed as Directors for an entity functional arrangment like a holding mechanism for a nominee trust?
Seems odd that so many MPs can get the interpretation ‘right” if it really is so confusing.
This is exactly like the Trust rorters, rather than take measures to track and punish the rorters, you lower the trust tax rate to the highest pt rate BUT you lower Company tax a further 5% and give the rorters a place to run for the next rort.
Did National call for Parker’s resignation or did they suggest the rules were confused and needed review?
ben, in my experience this kind of legislation is not accidentally able to have a tractor driven through it, it is the result of ridiculous ammendments through the political process of pass the legislation and or the desire of a political party to have it appear they are doing one thing while actually making no difference to the status quo for thier lobbying mates (whether nat or Labour)
Gosh haven’t heard a peep from Rortney Hide over this affair?
http://new.nbr.co.nz/article/parker-forced-out-attorney-general
“Prime Minister Helen Clark said Mr Parker came to her this morning after talking with “a range of senior colleagues” and offered his resignation from Cabinet.
Asked whether she would have asked for his resignation if he had not offered it, Helen Clark said: “It probably would have come to that but it didn’t need to. He’s an honourable person and that’s the step he’s taken.”
She said Mr Parker resigned as Attorney-General because he considered it carried “the very highest of standards”.”
“Parker says while he felt resigning as attorney general was the right thing to do, after taking advice from outside parliament he did not feel the need to go further.
But the National Party believes otherwise.
Advertisement
National’s deputy leader Gerry Brownlee says Parker has admitted multiple breaches of the law.
“While he may wish to describe it as a mistake, falsification of documents is very clearly a serious matter,” says Brownlee.
He says Parker made a deliberate decision to infer that everything had been done appropriately, when it hadn’t been.
“Helen Clark must explain why it is acceptable for a minister who has admitted ‘cutting corners’ on returns to the
Companies Office to retain the critical transport and energy portfolios,” says Brownlee.
The maximum penalty for filing a false return is a fine of $200,000 or five years imprisonment”
I don’t always agree with Graeme Edgler but respect the arguments he advances. He is not having a bar of Finlayson – perhaps it does not pass the smell test for Graeme.
Ben, yes, applies to all directorships, end of story.
The judicial panel is on hold until Justice Wilson’s appeal is heard. Read the press statement from his QC here
http://www.lawfuel.co.nz/news/article.asp?NewsID=1231&utm_source=LawPoints&utm_campaign=913cba0a81-LawPoints_Issue_33&utm_medium=email