Fran O'Sullivan on business

Business analysis and comment from Herald columnist Fran O'Sullivan

Fran O'Sullivan: Complacency led to Sir Doug's disgrace

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Letting Doug Graham keep his knighthood is a bit like saying, "He has been embarrassed enough. Move on." Photo / Mark Mitchell
Letting Doug Graham keep his knighthood is a bit like saying, "He has been embarrassed enough. Move on." Photo / Mark Mitchell

So, Sir Doug Graham gets to keep his knighthood having a paid a "very heavy personal price" over the Lombard Finance collapse.

It's probably been just a tad too close to home for the political establishment to have two former Justice Ministers criminally convicted for making false statements in the Lombard Finance prospectus and then to strip the knighthood from one of them. It doesn't send a great international message.

Prime Minister John Key says the High Court found that Sir Doug and other defendants "acted honestly" at all times. And in Sir Doug's case he was awarded the knighthood for his leadership role in Treaty of Waitangi settlements.

And further, Sir Doug was "convicted of a strict liability offence where dishonest or criminal intent is not required for conviction".

It was all a bit like "he has been embarrassed enough. Move on".

I'm afraid I don't have much sympathy for Sir Doug or his fellow defendants. The Lombard Four knew the rules. Both Sir Doug and Bill Jeffries are former Justice Ministers.

They may well have acted honestly. But in my view they, of all people, should have recognised the implications of a strict liability legal framework.

In a previous life as a financial investigative journalist I was sued in 1991 for $8 million over a series of articles I wrote in the now-defunct Examiner newspaper raising the prospect of potential insider trading at the time of the 1990 Bank of New Zealand bailout.

Graham, who was then Justice Minister, told me he wouldn't get involved by asking the then Securities Commission to investigate the relevant transactions, fatuously claiming that it might create a double jeopardy.

It took a gutsy small BNZ shareholder, Donald Kincaid, to step up to do the job that the so-called financial watchdog would not do without political blessing as it would have needed more funds from the Government to take the action.

Ultimately - using much of the same material that underpinned my articles - Kincaid's lawyers convinced Justice John Henry there was an "arguable cause of action" relating to claims of insider trading.

There was more besides.

The BNZ's accounts were a crock. Profits were euphemistically "smoothed" using an insurance scheme. But despite having to restate their accounts, no action was taken against the BNZ directors. Unlike Australia - where commissions of inquiry were ordered into major financial collapses such as the Bank of South Australia's so lessons could be learned and legislative changes made to protect future generations of shareholders - there was no similar probe here by the National Government, of which Graham was a member, into the BNZ collapse.

Herald columnist Brian Gaynor and myself slugged it out for years with the watch poodles, who then ran the show, to try to get them to enforce more accountability on directors to discharge their obligations to small shareholders and depositors.

It would not wash these days. The finance companies' collapse was a financial tsunami that was much too big for the Government or the authorities to ignore given its impact on the many middle New Zealanders who lost their savings.

Sir Doug and Jeffries are intelligent men.

But it's my own belief the failure of successive Governments to ram home any accountability for the high-profile financial collapses of 1989 and 1990 (when both were Justice Ministers) may have made them complacent about the potential risks they faced in a different environment as directors of finance firms two decades later.

The major finance company collapses finally shamed our financial watchdogs into baring their teeth, investigating the failed companies and taking action where it was warranted.

It's obvious one reason Sir Doug has been cut some political slack is that the law has now changed. The Financial Markets Conduct Act enacted in August marks a shift to favouring civil remedies for misleading or defective disclosures and reserving criminal sanctions for the most serious offending.

The upshot is legal risk for directors will be increased but the prospect of going to jail is lessened.

It won't lessen the anger of Lombard's investors.

But curiously, it seems to be the polar opposite of the approach the Government is taking on the health and safety issues that rose to the surface after the Pike River disaster.

A new Health and Safety bill will place the onus on directors to ensure such systems are up to scratch and managers discharge their duties.

But it doesn't go far enough.

The Pike River mine explosions - where 29 workers lost their lives - and their aftermath have exposed dreadful incompetence by that company's board and management.

The royal commission of inquiry into the disaster concluded that "the board of directors did not ensure that health and safety was being properly managed and the executive managers did not properly assess the health and safety risks that the workers were facing".

This week, the shareholders in NZ Oil & Gas (Pike River's effective founder and biggest shareholder) said they would not stump up towards the $3.41 million compensation that a High Court judge imposed on Pike River this year.

NZ Oil & Gas may have chipped in for Pike River after the explosion but as a secured creditor it was also a prime beneficiary of the latter's insurance policy.

In my view a crime of corporate manslaughter must be introduced and the law also changed so that when a court orders compensation for the loss of human life, that takes precedence over any payment to secured creditors.

What we have now is heartless and immoral sheltering behind limited liability structures.

- NZ Herald

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