Inside Politics

Confusion swirls over which gifts a senator can and can't accept

In the aftermath of today's revelation that the the PM's right-hand man Nigel Wright cut embattled Conservative senator Mike Duffy a personal cheque for more than $90,000 to close the books on his controversial expense claims, there has been no shortage of confusion over what, exactly, constitutes a permissible "gift" under the Senate Conflict of Interest Code.

Here's the relevant section on "gifts and other benefits":

Prohibition: gifts and other benefits

17. (1) Neither a Senator, nor a family member, shall accept, directly or indirectly, any gift or other benefit, except compensation authorized by law, that could reasonably be considered to relate to the Senator's position.

Exception

(2) A Senator, and a family member, may, however, accept gifts or other benefits received as a normal expression of courtesy or protocol, or within the customary standards of hospitality that normally accompany the Senator's position.

Statement: gift or other benefit

(3) If a gift or other benefit that is accepted under subsection (2) by a Senator or his or her family members exceeds $500 in value, or if the total value of all such gifts or benefits received from one source in a 12-month period exceeds $500, the Senator shall, within 30 days after the gift or benefit is received or after that total value is exceeded, as the case may be, file with the Senate Ethics Officer a statement disclosing the nature and value of the gifts or other benefits, their source and the circumstances under which they were given.

The code, however, does not provide any additional guidance on what, exactly, constitutes a gift or benefit -- nor under what circumstances a senator can accept such an offering.

A scan of past reports from the Senate Ethics Office, however, reveals a previous instance in which the question seems to have come up --and gives a bit more insight into what factors should be taken into consideration when determining whether a gift is allowed: namely, whether the putative giver and senatorial recipient have a social relationship outside the parliamentary context, and whether the gift could affect the senator's judgement "could be influenced in the course of his official duties."

From the 2007-2008 Annual Report

[...]

14. Issue

A senator inquires whether he or she may accept free hockey tickets from a friend under the Code.

Considerations

Subsection 19(1) of the Code prohibits the acceptance of gifts and benefits that could reasonably be considered to relate to a senator's position, with some limited exceptions. If the gift or benefit is not related to a senator's parliamentary duties and functions - for example, if it is provided on the basis of a friendship - it may be accepted depending upon the particular circumstances.

Both the nature of the relationship, and whether the senator's judgment could be influenced in the performance of his or her official duties in the particular circumstances, are key.

The questions that would require some consideration include the following:

(1) whether there were any exchanges of gifts and benefits between the two parties in the past;

(2) whether the relationship existed prior to the senator's appointment to the Senate;

(3) whether social meetings between the senator and the donor took place in which Senate business was not discussed;

(4) whether the donor has, at present or in the foreseeable future, any official dealings with the Senate or any of its committees; and

(5) whether the donor is a registered lobbyist.

In other words, the particular circumstances will determine whether the relationship between the donor and the senator in question can be characterized as a "friendship" and whether the gift may be accepted under the Code.

EDITOR'S NOTE: The section of the Code that deals with gifts was renumbered following the adoption of unrelated amendments that were adopted in 2012. The provision itself remains identical to the version cited above.

So what, you ask, does all that mean in the context of the current controversy? 

 Well, if Wright and Duffy can demonstrate that they were buddies -- gift-exchanging buddies, even -- both before and after the latter's ascension to the Upper House, a six-figure cheque could be deemed acceptable -- in every sense of the word -- as it would not relate to Duffy's position, and, as such, would not be covered by the rules .

He wouldn't even have to include it when he files his next annual disclosure statement.  

If, however, such a friendship could not be established, the cheque itself would almost certainly fall under the general prohibition laid out in 17(1), which could mean that it would have to be repaid, in full, lest the senator run the risk of breaching the Code. 


 

Tags: blackberry jungle, nigel wright, senate conflict of interest code

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