Transparency Times June 2016

From the Chair

Suzanne Snively

Suzanne Snively
TINZ Chair

These last two and a bit months has seen the TINZ team working harder than usual, what with activities going on at the same time in New Zealand, Panama and London. Thanks to TINZ virtual office with the timely assistance of Ferdinand Balfoort, currently residing in London, and a Board member working there that week, it has been possible to work 24/7 to be sure that New Zealand was one of six countries to have fully committed to the Tackling Corruption Conference and the Anti-corruption Summit. TINZ was able to make an informed contribution there while at the same time analysing foreign trust and company law to prepare its submission to the Shewan Inquiry by 20 May.

This hard work has paid off as it means TINZ Board members have been well-prepared to answer the questions asked by everyone they meet to gain an understanding of the nature of these structures and why it matters to New Zealand to tidy them up.

Previous to 4 April, how many of us would have been aware that the former Brazilian Speaker of the House, since indicted for corruption, used foreign-based shell companies and trusts to “transfer” US$16 million outside Brazil? While the London Review of Books had already published evidence of this on 22 April, further evidence was provided through the 30 May release of the Panama Papers linking the speaker to the Brazilian Petrobas scandal. As well, there are connections with Malta, Kazakhstan, countries not normally regarded as our major trading partners.

Amongst other things, the discussion of what to do has highlighted the challenges in a modern society of getting the right balance between privacy and publicity. Transparency means that there is clear access to information by those with a right to it. When TINZ asks for a register of foreign trusts and companies, it is asking to for there to be policy developed to ensure New Zealand authorities have the ability to effectively meet their international obligations and commitments of sharing and collaborating with other jurisdictions in cases where there are illicit assets being transferred. It is most important for law and enforcement authorities to have access for the purposes of investigation.

This requires an accessible Beneficial Ownership Register. For example, the UK has recently introduced the Register of Persons with Significant Control (PSC Register). It provides for open access to any member of the public, unless there are certain conditions and a company advises the courts of its decision to refuse. The PSC register is also likely to be introduced in British Overseas Territories, including the Cayman Islands, in the near future.

A feature of the Register of Persons with Significant Control is that it looks at the matter of beneficial ownership, regardless of the form of legal persons with all layers of ownership investigated, to determine control. While this may seem unduly complex to the majority of us who own things directly, it is essential for the scoundrels of our world who deliberately use convoluted, complex, many-layered structures to hide their ill-gotten gains from sight.

While this dark side of humanity has been percolating, a fresh picture of a better future has been emerging.

Speaking in Wellington on 4 April, L’Oréal’s Vice President, Ethics noted that by using the principles of integrity, respect, courage and transparency, New Zealand corporates could….increase customers and business returns…”

And at David Cameron’s Anti-corruption Summit, New Zealand was represented and made a commitment to nominate a representative to the International Anti-Corruption Coordination Centre.

Finally, my previous “From the Chair” reported that the State Services Commissioner, Iain Rennie had joined up a number of central government agencies with TINZ Partner LGNZ to contribute funding so that TINZ could have a professional approach to its activities. Our website includes details of the position and the appointment process. TINZ Volunteer Board is pleased to be in a position to recruit some fresh legs to further boost our reach and effectiveness. Please circulate this news widely.

Suzanne Snively, Chair
Transparency International New Zealand Inc.

Transparent ethical sustainable business

Emmanuel Lulin 3-4th April 2016 Business Leadership

Emmanuel Lulin presenting to business leaders in New Zealand 3-4th April 2016

Emmanuel Lulin and leveraging our reputation for integrity for New Zealand Corporates

Big business and ethical conduct are often held up as contradictory. However, business has a massive role to play in our economic wellbeing, so when Emmanuel Lulin, Senior Vice-President and Chief Ethics Officer at L’Oréal, and recipient of the prestigious 2015 Carol R. Marshall Award for Innovation in Corporate Ethics from the Ethics & Compliance Initiative (ECI), offered to come to New Zealand at his own expense to talk to our corporates we jumped at the chance!

Emmanuel came to New Zealand specifically to contribute to our discussion by outlining the ethical features of the L’Oreal’s business model that have enabled it to grow a customer base of 1 billion and to forecast that this will be doubled to 2 billion by 2020.

By building strong integrity systems in the current economic growth environment, TINZ believes there is opportunity to demonstrate that there is infinite potential for business and economic growth. The constraints that exist can be more easily overcome with clear understanding of accountability and the opportunity to work collaboratively that trusted governance ‎provides.

Increasingly, some very big corporates are building their business on the base of their reputation for integrity and ethical dealing. L’Oréal is one of them. In March 2016, L’Oréal was recognised for the seventh time as one of the “World’s Most Ethical Companies” by the Ethisphere Institute.

To provide an atmosphere of quiet contemplation and focus, TINZ hosted a Corporate Integrity Initiative Retreat on the 4th of April at Kingfish Lodge, at Whangaroa Harbour titled “Growing Business and the Economy with an Ethical Culture”.

Laurence Kubiak from the New Zealand Institute of Economic Research (NZIER) set the context for the retreat with a background brief of the current state of business affairs and the outlook for business growth under different scenarios.

Following a discussion of business performance up to now and specifying an achievable future state, attendees progressed the development of business integrity practices, leading to a statement of what these are and how they contribute to accelerating business results.

Emmanuel explained to attendees that while compliance is important, ethics are beyond compliance and why this is core to L’Oréal’s business strategy. He noted that by using the principles of integrity, respect, courage and transparency New Zealand Corporates could mine our valuable deposit of principles to increase customers and business returns through integrity systems like L’Oréal’s. “Good ethical practices are now strategic. Companies who want to be leaders in our 21st century must address them to win trust and keep their license to operate. Innovative thinking, and strong cooperation of the players, is required to address the deep ethical challenges of today and of tomorrow.”

The topics discussed included:

  • Why does New Zealand need greater business-led growth? What are the likely business and economic benefits?
  • What attributes does the L’Oreal model have that New Zealand business can adapt and what are the opportunities and risks of the model?
  • What are the barriers preventing New Zealand business from adapting their business models to focus explicitly on ethics and strong integrity systems?
  • Developing a business and economic development strategy based on integrity and the key elements of a Corporate Integrity Initiative Statement

The outcome of the retreat was the Whangaroa Statement signed by all 14 attendees.

Open Government Partnership – Red Card for NZ?

New Zealand risks being formally ejected from the Open Government Partnership (OGP).

The Government has sent a letter to the OGP citing the need for a four-month extension on submitting its second Open Government Partnership National Action Plan (NAP). The explanation given is that the processes being considered to make the engagement processes more inclusive means that New Zealand will not be able to submit its 2016-18 National Action Plan by 30 June 2016, but will undertake to do so by the end of October 2016.

The OGP does not grant extensions

While TINZ is thrilled to hear that the engagement process is a priority, this delay has put New Zealand's membership of the OGP at risk.

The OGP does not grant extensions. Their Government Point of Contact Manual states:

  1. Countries should deliver their NAP and Self-Assessment Reports on time. This calendar provides advance notice on all due dates in order to avoid future delays. In order to take full advantage of economies of scale, and to ensure transparency in operations so all OGP countries are treated fairly, the IRM will not modify or rearrange any of their product deadlines to accommodate delays from countries. NAPs and Self-Assessment Reports will be considered delivered when they are uploaded to the OGP website.
  2. If a country submits their NAP or Self-Assessment Report late, the delay will be noted in the IRM report.
  3. If a country delivers its new NAP more than four months late, the IRM will document this and, working with the Support Unit, will refer the case to the Criteria and Standards Subcommittee of the OGP Steering Committee. The country will receive a letter from the Support Unit noting this occurrence. The same rules apply to the late submission of the self-assessment reports.

New Zealand has already received one letter from the OGP Support Unit by failing to meet the July deadline (known well in advance), and we can anticipate a second one.  We will then be subject to review by the OGP's Criteria and Standards subcommittee placing New Zealand at serious risk of being ejected from the OGP.

The Government must take its commitment to this agreement seriously by ensuring that we are not dropping the ball in a move that could jeopardise our participation in this critical global initiative.

TINZ is working with the SSC to try and ensure that the engagement is not only more inclusive, but effective.

This is one red card that could become a serious black mark on our hard won reputation for integrity and transparency.

Anti-Corruption Conference and Summit in London

On 12 May, the British Prime Minister David Cameron hosted an Anti-Corruption Summit in London to step up global action to expose, punish and drive out corruption in all walks of life. New Zealand Prime Minister John Key was represented by Police Minister Judith Collins.

“We have made a number of commitments which build on the work New Zealand has done in recent years and will help to maintain our reputation as one of the least corrupt countries in the world,” says Ms Collins.

“A key commitment on our part is for New Zealand to nominate a representative to the International Anti-Corruption Coordination Centre (IACCC)”. The aim of the IACCC is to help investigators of corruption work together across multiple jurisdictions.  The IACCC will focus on cases of high-level corruption with an international element where cooperation across jurisdictions can add real value.

Six countries agreed to the establishment of an accessible and central database of companies with final convictions for bribery and corruption offences, and ways of sharing information on corrupt bidders across borders. New Zealand was among a group agreeing to explore this process. A New Zealand appointed inquiry into required legislation for Beneficial Ownership Registers is currently supported by TINZ to ensure we maintain our leadership position in the world and honour our international commitments to fight corruption.

This is in line with the Rt Hon John Key's statement in his essay to the Summit—“Prime Minister John Key: New Zealand: a culture of fair play”— that “New Zealand is uniquely placed to protect itself from corruption and to work with its neighbours to combat it in their countries.”

He concludes: “As a country, we take great pride in our track record. But we know we must remain committed to ensuring that corruption does not gain a foothold, and open to views on how to prevent it. As a small part of an increasingly connected international community, we must be open to sharing our successes and our failures in order to stamp out corruption for good.”

TINZ strongly supports these comments in both spirit and action.

The main Summit documents are a  Global Declaration Against Corruption, agreed by all countries present. There are statements by individual countries including New Zealand and by international and regional organisations, setting out concrete actions they will undertake to fight corruption.

The summit was preceded on 11 May by the Tackling Corruption Together conference for leaders in civil society, business and government championing the fight against corruption. The conference was attended by over 400 individuals straining the planned capacity. Ferdinand Balfoort represented TINZ looking to support our efforts to invigorate New Zealand's global role in anti-corruption leadership.

In conjunction with the 11 May conference and 12 May summit, Transparency International UK and a number of partners created the Leaders' Anti-Corruption Manifesto: Why tackling corruption matters. As heads of government gathered in London to discuss next steps in tackling corruption worldwide, world business and civil society leaders told us why they think more needs to be done. Suzanne Snively and Ferdinand Balfoort contributed Shining a light on foreign trusts, guiding our professionals (reproduced in this newsletter) on behalf of TINZ.

An open letter “We need more than words to tackle corruption” was also produced in conjunction with these events.

Dinner after London Summit Guro Slettemark (TI Norway), Chris Moll (TI Netherlands), Denise (Forensic in financial services), Ivo Jongejan (TI UK Communications), Philip Jones (TI UK Communications) and Ferdinand Balfoort (TINZ).

London summit manifesto

Shining a light on foreign corporations and trusts,
guiding our professionals

TINZ Statement published in conjunction with the 12 May London Anti-corruption Summit

The Panama Papers have identified that there are hundreds of thousands of offshore corporate entities domiciled in countries other than the principal residences of the beneficial owners. However, in many countries, depending on the type of offshore vehicle that is registered, the only formal, and often limited, records are held at a lawyer’s office in the relevant offshore financial centre.

Offshore trusts and companies can, and have, been misused for criminal purposes including tax evasion, money laundering and corruption. For example, the World Bank Puppet Masters report found that over 70% of grand corruption cases involved the use of offshore vehicles. This finding was also highlighted by Transparency International. In spite of these observations and other reports, we should equally recognise that offshore vehicles can also be used for legitimate asset protection or other purposes.

The Financial Action Taskforce (FATF) has been working for over 25 years to make the beneficial ownership of offshore entities transparent, to prevent their illegal misuse. However, implementation by jurisdictions needs improvement as many countries do not have effective mechanisms to identify the ultimate beneficial ownership of corporate vehicles set up in their jurisdiction. For example, anti-money laundering (AML) legislation in many countries doesn't currently apply to lawyers and accountants. In New Zealand, the professional coverage of accountants and lawyers is planned to be included in Phase 2 of the AML reforms.

The development of beneficial ownership registers is equally being pushed globally, to varying degrees. Unless all countries globally are aligned we will experience a race to the bottom whereby arbitrage will occur between jurisdictions for the registration of offshore entities that are used for inappropriate and illegal purposes.

Recommendations:

  • The New Zealand AML/CFT Act (2009) should be extended to cover all professionals, including lawyers and accountants that are engaged in setting up New Zealand corporate vehicles.
  • New Zealand should establish a corporate registry that includes beneficial ownership of relevant corporate to enable review and audit by law enforcement and compliance bodies.
  • The entity operating the corporate registry should be adequately resourced and funded to be effective.
  • New Zealand should equally ensure similar transparency of trusts to understand the ultimate beneficial owners. To achieve this, New Zealand should consider establishing a similar registry for trusts.

TINZ submission to Shewan trust inquiry

into foreign trust disclosure rules

John Shewan

Former PwC chairman has been chosen by the Government to head the government inquiry into foreign trust disclosure rules

Transparency International New Zealand has made its submission to the Shewan Inquiry on 20 May, calling on the government to widen the Inquiry’s terms of reference to future proof our laws following the release of the Panama Papers.  It is important that we take steps now to ensure New Zealand is not supporting money laundering, tax fraud, reputation cleansing and hiding of illicit assets

New Zealand's international reputation for integrity generates immense returns to the economy, including a major contribution to the billions of dollars that make up our foreign exchange earnings.  By assuming an aggressive leadership role in international efforts to eliminate misuse of trusts and corporate entities, New Zealand stands to enhance both its reputation and the return to the economy.

The looseness of New Zealand's disclosure rules undermines international efforts to combat the illicit financial and asset flows which enable organized crime, tax evasion, funding of terrorism, money laundering, corruption and impunity.

“Our submission urges firm action to thwart corrupt politicians, organized criminals, fraudsters, bribe payers, arms dealers and terrorists from using New Zealand’s loose regulatory environment to support their activities,” says TINZ Chair, Suzanne Snively.

Specific recommendations by TINZ to the Shewan Inquiry include:

  1. Establish a comprehensive and accurate register of the beneficial owners of all types of legal constructs including foreign trusts and companies.  This requires the registration of all trusts and companies, whether foreign or domestic, the maintenance of accurate and up-to-date information, resourcing of the capability to interrogate in domestic and international criminal investigations, and integration with the international Common Reporting Standard initiative to proactively report on foreign nationals' activities.
  2. Extending the New Zealand Anti-money Laundering and Countering Financing of Terrorism (AML/CFT) Act (2009) to cover all professionals, including lawyers, accountants and real estate agents who are engaged in setting up or managing assets of New Zealand corporate vehicles and trusts.

TINZ is confident that the scope of the inquiry can be widened because of the substantial government policy work already done in this area. This means seeking genuinely effective solutions to tackle the broader spectrum of financial crime risks associated with New Zealand companies and trusts.

Positive initiatives include the existing AML/CFT regime, the Common Reporting Standard initiative, participation in the International Anti-Corruption Law Enforcement Coordination Centre and New Zealand’s support for the UN Convention Against Corruption.

These initiatives will actually be weakened if known gaps, now internationally publicised as ‘system failings’ in New Zealand’s framework of rules, are not corrected, and seen to be corrected.

Suzanne Snively says, “New Zealand is well placed to take its own expert officials’ advice and through this, show leadership in tackling international corruption by going much further than simply processing a ‘light touch’, lightly resourced, poorly conceived review.”

The full Transparency International New Zealand submission can be found at TINZ Submission to the Shewan Inquiry on Foreign Trusts

Lessons learned from the Panama Papers

Daniel King

Brendon Wilson

by Daniel King & Brendon Wilson

Transparency International New Zealand

Writing for Employers and Manufacturers Association

BusinessPlus Magazine

We’re all bemused by the recent media excitement over the John Doe leaks of the Panama Papers.  But amongst this excitement, the leaks have highlighted the need in New Zealand for more transparency and strengthening of existing legislation covering foreign trusts. Rightly or wrongly, New Zealand has received less than desirable global media coverage for our role in many cases.  The Panama Papers have caused a stir globally by identifying huge numbers of offshore legal/financial structures or ‘vehicles’ located in countries other than the residences of their beneficial owners.

The implication is that many times, even this huge number of publicised cases also exist under other ‘arranger’ companies and countries.  In many countries the only formal records are held by a law firm in the offshore country – the true owner of the assets is not identified and cannot be discovered.  Where New Zealand is that offshore country, this lack of transparency and record-keeping in our legal requirement is problematic and damaging to our reputation.

We can assume that not all foreign trusts are involved in illegal behaviour, but given the lack of information captured, who knows if the proportion is high or low? In many cases these trusts have been established for legitimate purposes and take advantage of the confidentiality and relative security of New Zealand’s financial and legal systems and New Zealand’s good reputation.  However, it is important to remember that 80% of money-laundering involves trusts – structures which have been deliberately used for this purpose to make it easier for the perpetrators to hide from justice.

Transparency International New Zealand identified this risk in their benchmark 2013 National Integrity System Assessement report.  Without a central register holding basic information, funds can be hidden in New Zealand-based foreign trusts with no identification of beneficial owners, whether they be of good or bad repute, and whether the funds they involve are of legal or illegal origin.

We do welcome the New Zealand government’s current inquiry into New Zealand’s foreign trust rules, but we are most concerned that its limited scope won't tackle the risks of financial crime links to the country's companies and trusts.  New Zealand has consistently scored highly (but recently dropping) in the Transparency International Corruption Perception Index, and New Zealand has an enviable reputation for integrity in business.  To retain this reputation, it is essential that New Zealand takes early, firm action to keep our world standing in this area, and reassumes the leadership position we’re proud to hold.

We recognise that global focus is required in order to address these issues. It is important that New Zealand is strongly involved in international efforts to combat misuse of trusts and companies, in co-operation with both countries and NGO’s globally – and not, as at present, become complacent in this activity.

In our efforts to maintain our integrity as a nation, we owe it to ourselves to widely discuss and agree workable remedies, both here in New Zealand and in international forums, and to firmly and quickly implement the best solutions.

Why would New Zealand not aim at holding a reputation for high integrity world-wide?

Corruption in Sport

by James Brown

TINZ delegated authority for Sport

At its best, sport is about the honorable pursuit of victory. It is not just about playing by the rules; it is also about playing within the spirit of the rules. It requires sportsmanship, fair play, playing clean, and respect. Ethics violations and the desire to win at any cost threaten the inherent value of sport around the globe.

So the question for me is why, why do athletes choose to cheat?

The answer is simple, people are inherently greedy and a large portion of the population still see success as the size of a mans wallet (quote from Wall Street).

With so much money in prize winning and sponsorship more and more athletes are faced with ethical challenges everyday. Young kids are now taking steroids in the gym way before they even try to qualify for the rugby team.

In cycling it was always the drugs now it is motorised bikes. (See Cycling Has Moved From Actual Doping to 'Mechanical Doping' ) In the latest reports of ongoing corruption in pro cycling, the international governing body Union Cycliste Internationale confirmed that a 19-year-old rider Femke Van den Driessche cheated in the World Championships using a small motor to power the rear wheel.

The report by Michael Nunez is somewhat shocking given the nature of cheating scandals in major American sports: historically some of the most well-known cheating scandals have been socially engineered like paying referees or using performance-enhancing drugs. The reason that the UCI revelation was so big was that it marks the first time a cheater in a sport competition has been caught using motorized technology to receive an unfair advantage.

Even the IOC has not been without question, in the last 25 years, rumors of questionable practices by members of the IOC have surfaced, particularly related to the bidding process for hosting the Olympic Games. These rumors were largely ignored until late 1998, when a respected IOC member from Switzerland, Marc Hodler, publicly discussed IOC membersʼ involvement in bribery and vote “selling” and “buying” as long-standing practices involving individuals from cities bidding to host the Games.

So how do we prevent “corruption in sport”? For me it is simple, the penalty should exceed the crime. If you are worth millions based on your results and subsequent endorsements a 3 month ban or $100,000 fine is no deterent. A ban for life and all prize money and a proportion of endoresements related to the wins should be paid into a central fund to help support youth development and the continuation of the abolishment of corruption in sport.

Pacific update

Janine McGruddy

TINZ Deputy Chair

I was asked to provide an update on our courageous TI Pacific Chapters in Vanuatu, Solomons, Fiji and Papua New Guinea. I wish I had better news to report and this is the hardest article I have had to write for the Transparency Times.

How do I put into words the sadness and frustration at the lack of funding for these incredibly brave grassroots civil society members and the invaluable work they do?

Can anyone think of anything more important in this part of the world, where powerful nations are competing to gain control/influence over their fishing, forestry and extractive industry resources, and where the rest of the worlds contributions to climate change will hit hardest, than transparency, anti-corruption education and the courage to speak truth to power?

How is this not valued above all other possible development funding priorities by the New Zealand and Australian governments?

Janine McGruddy

Janine McGruddy
TINZ Deputy Chair

Our friends in the Pacific will soon be out of funding; the main problem with getting funding is the lack of available funding for the basics: office, staff, power, etc. Funding for projects exists but how can they bid for that funding without the infrastructure to ensure project success? Potential private sector supporters have been verbally supportive, but are less willing to provide financial support due to the risk to their own business activities from political pressures!

Examples of what they have been doing are inspiring and the thought that this work may end is deeply frustrating:

  • TI Solomon Island (TSI) – In mid-April, the Chief Justice delivered a judgement on an issue which began from TSI and was taken to court by five citizens (including TSI board members). The High Court ordered MPs to pay tax and re-pay all other entitlements that they unconstitutionally awarded themselves 2015.
  • TI Vanuatu (TIV) – A large programme of anti-corruption training over May, including: with NGOs (run with UNDP): two trainings with youth in Malekula; and presenting at the “Integrity and National Anti-Corruption Policy Workshop for senior civil servants (a UN Pacific Regional Anti-Corruption Project) in partnership with the Government of Vanuatu.
  • TI Fiji (TIF) – Reshaped its priorities following Tropical Cyclone (TC) Winston. This includes extending the training offered to youth-focused partners and stakeholders to include training for on Preventing Corruption in Humanitarian Operations, and researching and tracking TC Winston relief and aid.
  • TI Papua New Guinea (TIPNG) – Preparing school-based civic education publications and a new Election Awareness Campaign MOU has been signed between the integrity institutions: Ombudsman Commission, Royal PNG Constabulary, PNG Electoral Commission and TI PNG.  TI PNG has also hosted its Youth Against Corruption (YACA) forum in partnership with Correctional Services themed ‘Crime & Youth in the City’.

TINZ is still hopeful that Transparency International, will be able to find funding to ensure that years of experience in the anti-corruption fight in the Pacific are not lost.

GOPAC reconstituted

New Zealand GOPAC 25 May 2016

The New Zealand branch of The Global Organization of Parliamentarians Against Corruption (GOPAC) was formally reconstituted on 25 May 2016. Chaired by Claire Curran (Lab), with David Bennett (Nat) and Kennedy Graham (Green) as Deputy Chairs with a NZ First member and around ten members from most parties. Marama Fox represented the Maori Party.

GOPAC is an international network of parliamentarians dedicated to good governance and combating corruption throughout the world. Since its inception, GOPAC has provided information and analysis, established international benchmarks, and improved public awareness through a combination of global pressure and national action.

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Sports

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London Summit

Prime Minister John Key: New Zealand: a culture of fair play

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Anti-Corruption Summit – London 2016 – New Zealand Country Statement

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