High Court Judge, Justice Sally Fitzgerald, was asked to speak at Bankside Chambers recently in an exclusive collaboration with Transparency International New Zealand. Transparency International New Zealand (TINZ) is the recognised New Zealand representative of Transparency International, the global civil society organisation against corruption. TINZ takes action against corruption in New Zealand in different ways, releasing numerous reports, holding presentations, writing articles on corruption-related topics, and also by providing a free online anti-corruption training course.
Justice Fitzgerald was introduced by Kate Davenport QC, who highlighted her reputation as a prominent and accomplished leader for women in the legal profession. Kate noted that Justice Fitzgerald’s peers and colleagues regarded her as one of the best dispute resolution lawyers in the country. Kate also commented on the importance of the work undertaken by Transparency International as a global organisation fighting against corruption.
Turning to the topic of discussion, Kate recalled a defining moment for her own understanding of the nature of corruption when attending a Transparency International event in the UK and meeting the CEO of the organisation. When asked point-blank about the scale of corruption in New Zealand, Kate responded that New Zealand was not, in her view, a corrupt country. The CEO then quipped that North Korea probably did not think it was corrupt either. This anecdote picked up on a general theme that was developed throughout the presentation, that important preventative and policing measures were necessary to keep corruption at bay – even in a country such as New Zealand.
Before beginning her presentation, Justice Fitzgerald first thanked Bankside Chambers for the opportunity to be part of the event. She then discussed her own interactions with corruption in the legal profession and as a High Court judge. Her first foray into issues of corruption on the bench commenced only two weeks after her appointment last year, when she presided over a prominent corruption case involving employees from the Rodney District Council and Auckland Transport. This seven-week, judge-alone criminal trial ultimately resulted in both the official receiver and person who made the bribes being found guilty and being sentenced to terms of imprisonment.
Apart from this personal exposure, Justice Fitzgerald also referred to the broader context of the state of corruption in New Zealand, as outlined in the latest Transparency International Index. The index is based on the current perception of the scale of corruption in different countries. New Zealand and Denmark were both ranked first, perceived to be the least corrupt nations in the world with a score of 90/100 (ahead of the UK in 10th position, Australia in 12th, and the USA in 18th position). In comparison, Somalia was deemed to be the most corrupt country, in the 175th position on the Index.
The concept of “corruption” was discussed at length during the presentation. While difficult to pin down, Justice Fitzgerald shared a definition used by Professor of Law at Yale University, Susan Rose-Ackerman, and commonly relied upon in academia:
Corruption is a term whose meaning shifts with the speaker. […] [T]he common definition of corruption [is] the “misuse of public power for private or political gain”, recognizing that “misuse” must be defined in terms of some standard. Many corrupt activities under this definition are illegal in most countries – for example, paying and receiving bribes, fraud, embezzlement, self-dealing, conflicts of interest, and providing a quid pro quo in relation for campaign gifts. However, part of the policy debate turns on where to draw the legal line and how to control borderline phenomena, such as conflicts of interest, which may political systems fail to regulate.
Justice Fitzgerald commented that there was evidently a sliding scale of what acts could be captured under this definition. As to where the line should be drawn between acts that were/were not corrupt, this was a matter of public policy.
Justice Fitzgerald then turned to compare New Zealand’s corruption offences with those from other common-law jurisdictions. When she was preparing for the corruption case she presided over, her Honour was exposed to the variety of ways different jurisdictions legislate with regard to corruption-based offences. She noted that the New Zealand provisions were modelled heavily on the Canadian legislation and were substantively different from the approach adopted in the UK.
The New Zealand provisions were pointed out as being relatively broad, with Justice Fitzgerald using the case of MP Taito Philip Field as an example of this breadth. In 2009, MP Taito Phillip Field was found guilty on 11 charges of bribery and corruption and 15 charges of attempting to obstruct or pervert the course of justice. Mr Field had accepted tiling services on his New Zealand and Samoan properties from Thai workers in exchange for immigration assistance. There was no suggestion that Mr Field had carried out any “improper act” as a result of receiving the tiling benefits. Mr Field appealed his conviction to the Court of Appeal and Supreme Court unsuccessfully, with both appellate Courts having to deal with the difficult distinction between gratuities and inducement.
It was noted that a possible side-effect of these broadly-framed corruption offences is the risk of over-criminalisation. Justice Fitzgerald explained this risk using an example given by the Supreme Court in the Taito Philip Field case: if a local MP officially opened new rugby clubrooms and received a jersey from the club, this was arguably corrupt behavior as defined by the NZ provisions. However, this was arguably minimally culpable behavior that the NZ provisions could not have been intended to cover. The Supreme Court noted that the risk of over-criminalisation is partly addressed by the requirement to obtain the approval or consent of the Attorney-General to prosecute for corruption. To further guard against the risk of over-criminalisation, the Supreme Court found that the receipt of gifts deemed to be of token value as part of the “usual courtesies of life” fall outside the scope of the bribery and corruption offences in the Crimes Act.
At the end of Justice Fitzgerald’s presentation, she was thanked for her time. TINZ took the opportunity to further thank her Honour for her decisive action in the corruption case she presided over, commenting that it had been a big step forward for justice against corruption in New Zealand.