Corruption

The recent ICAC findings [the formal report is a pdf link] that Tonette Kelly, the Acting General Counsel for NSW Maritime:

engaged in corrupt conduct by misusing agency resources and grossly downplaying her secondary employment details in relation to her private conveyancing business which had an annual turnover of approximately $120,000.

intrigue me, even though at the same time the factual circumstances strike me as utterly banal.

The banality is the energy that some people have for earning money. One job is more than enough for me, but some people for various reasons are prepared to take on more. Just as a matter of fact, it doesn’t matter if those reasons are motivated by need or greed – and supposing these two, at least as between each other, cover the field, where exactly do you join the line?

On either greed or need, Ms Kelly is at the very least a statistical outlier.

The significance of the turnover figure is that this included disbursements on each conveyancing practice. The commission arrived at this figure on the basis that from 2003 (in reality as a result of a change which started by some time in 2002) she opened about 100 files a year, and that the current rate of income was about $1200 per file opened. It’s a pretty crude estimate. The significance of the turnover figure is that a business with a turnover of $75,000 or more is obliged to collect and remit GST, which Ms Kelly does not appear to have done.

The turnover figure is gross and includes disbursements. Without knowing the mix of vendors’ and purchasers’ files and how far the matters proceeded, it’s not possible to estimate Ms Kelly’s income from the business. It’s too long since I’ve looked carefully at the disbursements side of a settlement statement (I’m generally only interested in the source of the funds or where they have been paid in my line of work) for me to even make a guess of what the normal figure on a completed sale and completed purchase would be).

Only the failure to declare income or pay tax or remit GST, though undeniably a common-or-garden variety of greed, would for that reason be closer to the middle of the field. I am sure there are quite a lot of people in absolute numbers who do not pay tax which they ought to pay in amounts like that, though as a proportion of the population as a whole they might not even be as many as 1% (maybe more if low-level GST is included). That’s just a hunch based on my exposure to fact of this nature commonly disclosed in litigation, and I could even be setting the number too high because I am case-hardened.

Assuming it was greed in Ms Kelly’s case, subject to the question as to whether doing the extra work was preventing her from fairly devoting her attention and energies to her responsibilities at work, I don’t really see a strong case of corruption.

Any corruption comes from the cover-up and the impunity with which Ms Kelly was able to continue her practice even after she had officially denied this in the inquiry conducted by Mr Clark on a kind of special commission from her employer. That was at the end of 2004. Basically, Ms Kelly denied doing any conveyancing apart from that which she knew, presumably and possibly quite properly obtained by disclosure to her of the evidence against her, was the extent of any of her accusers’ knowledge.

She told Mr Clark:

since receiving an approval from the former Waterways Authority Chief Executive on 18 March, 2003, to conduct
such work I have undertaken a limited amount of paid conveyancing work (2003 – 6 paid matters and 2 unpaid
matters for family/friends 2004 – 9 paid matters and 1 unpaid matter for family/friends).

She made this statement, which is consistent with the relatively low level of activity reported by her colleagues, secure in the knowledge that no one had said otherwise.  She informed Mr Clark that she conducted all her conveyancing work at home, apart from making and receiving fewer than two phone calls per week while at work.

Based on this Mr Clark found that she wasn’t conducting a business to any significant extent and not to any significant extent using the premises of NSW Maritime or with the assistance of a Ms Dacombe, so exonerating a further accusation that Ms Kelly had employed Ms Dacombe irregularly and that Ms Dacombe might be helping her run her conveyancing business from the office.

Some of Ms Kelly’s files were seized by ICAC in the source of the investigation: it seems they were kept at home, and it may be that there was relatively little paperwork being kept or done in business hours. There was some evidence of receipt and possibly of sending of faxes in business hours.

As a practical matter I find it difficult to imagine how Ms Kelly can have run a conveyancing practice opening 2 files a week (even if these didn’t all lead to actual settlements) without somebody assisting her in the office, because things need to be attended to in business hours in real time.

That Ms Kelly got away with her denials and then continued to to conduct her practice in business hours enlivens a justifiable suspicion of an abuse of power. But apart from entirely secret frauds or forgeries, abuses of power within an organisation necessarily involve other people going along with them, as either fellow-abusers or victims and even bystanders, just because they only stood by.

That makes me all the more ready to believe other allegations about abuse of power or mismanagement within the legal services branch of which she was the head and, if only in a general way but necessarily to the extent that Ms Kelly’s superiors were implicated, within and even, as a result, by the organisation as a whole.

The risk of that, which the perception alone poses, seems to me to be the gist of corruption.

2 Responses to “Corruption”

  1. Jerry Says:

    Incorrect spelling. Ms Dalcombe is ‘Bonita Rose Dacombe’ or Bonny, Bonnie Dacombe. Her brother Nicholai Dacombe [pleaded guilty on 7th Feb 2012 to giving false evidence to ICAC for which, on appeal, the sentence of four months’ imprisonment was suspended.] Link

    • marcellous Says:

      I have edited the info you gave about Nicholai Dacombe. There is a bit more about life in the legal services branch at here which gives some flavour and shows the wider effects of corruption. Rather charitably to Ms Kelly, the tribunal finds that it was within Ms Kelly’s authority to say to the Supreme Court that she was the “solicitor on the record” for NSW Maritime in order to obtain access to documents on the court file when, clearly, she was nothing of the sort. See also here.

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