Car parks: certainly corrupt and probably illegal

Jul 30, 2021

An Audit Office report led to condemnation of ‘processes’ behind Commonwealth funding of commuter car parks.  This is like merely looking at – not even touching – deckchairs on the Titanic.

The Audit Office implied – others shouted – the car park scheme was a vote-buying rort.  There is plenty of evidence for, and none against, that.  Including the whip-around of Coalition MPs to identify electorate projects, and slovenly administration by the Department of Infrastructure etc.

The Audit Office’s example of a car park at Woy Woy (NSW) drove home one consequence, waste: cost $210,000 per space, four times the benchmark.

Funding came from an ‘urban congestion’ program, under the National Land Transport Act (2014).  It somehow relates to a ‘national partnerships agreement’ with State Governments.

While the Audit Office slammed the spending ‘process’, it didn’t explore the question of program legality.

Earlier posts noted the Commonwealth Government can only spend money under the authority of legislation.

Parliament can only legislate on matters allocated by the Constitution.  Agreements with States, even ‘partnerships’, do not add to those matters.  A word search of the Constitution does not show car parks, urban congestion or land transport among those matters.

An a priori question is whether the Land Transport Act is able to relate to urban congestion or car parks.  Hence, the legality of carpark funding – rort or not – is highly doubtful, as eminent Constitutional expert Cheryl Saunders AO reportedly said.  Less doubtful is the Department having advice on whether that is so.

True, the Commonwealth can provide money to States with conditions about how it is spent – for example requiring it be spent on carparks.  If so, the money must be paid to the States who then arrange for construction, pay contractors etc. – the Commonwealth is not to undertake those tasks.  Importantly, such a scheme requires Parliament – not the Government – to authorise the payments (to the States).  Yet no one has mentioned direct Parliamentary authorisation of spending on carparks.

Perhaps the National Land Transport Act delegates Parliamentary authority to make such payments and conditions?  No doubt the Department has advice on that too, including about who might exercise such delegation and how.

Yet the public has not seen such advice.

Given the unlikelihood of the Government coming clean with what it has been told about legality, non-Government Parliamentarians should immediately commission their own advice and table the results.  The Senate must do so lest its repeated complaints about Parliament being sidelined by the Government – via delegation – be exposed as hot air.

Further, given doubts about legality of such schemes, both Government and Opposition must guarantee their electoral promises comply with Constitutional requirements.

Another point about carparks: previous posts suggested rorts are inevitable because the Government uses ‘Jack Sparrow’s’ compass to point money at anything it likes, forgetting Commonwealth purposes.  Advisers, like Infrastructure Australia, in failing to even suggest Commonwealth purposes might be limited, have encouraged such an environment of misbehaviour.

The root cause, lack of respect for Australia’s legal framework, comes out of seeking short term political gain – for example by handing out pork and seeking to pass the buck on accountability.  It now manifests more widely in public policy – including in health where some on-the-ground functions are the mirror reverse of Constitutional responsibilities.  To my mind the festering of that attitude is the overwhelming failure of the Morrison Government.

While the Government is getting lots of sports and carpark grants flak – deservedly – the Opposition needs to take action and not merely prattle smug cliches like ‘rort’.

Readers may recall its supposed ‘nation building’ policy for the 2019 election had over 200 ad hoc spending promises – on matters such as a shared footpath at Wanniassa.  The process used by the Opposition for that seemed remarkably similar to the Government’s carpark methodology.  Both offered a carpark for Woy Woy.

In that environment, asking for better ‘processes’ – as most commentators do – is not even touching deckchairs on the Titanic.

Let’s hope the major parties get off their backsides, stick to Commonwealth purposes and present real infrastructure policies instead of the directionless extra-legal bilge they have served up until now.

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