DAVID SOLOMON. Sports rorts – illegal, unconstitutional and shonky

Feb 28, 2020

Illegal, unconstitutional and shonky. The sports rorts affair, like climate change, is not fading away. Both raise major political challenges for the government, but in somewhat different ways.

The latter involves an existential challenge for the Prime Minister, thanks to the refusal of the Nationals and some within his own party to allow him any scope for adopting policies that meet public expectations.

On the other hand the danger with sports rorts (and the numerous other rorts being exposed) is that they draw attention to Mr Morrison’s own faults and failure to properly enforce the Ministerial Standards that are supposed to apply to his government.

The more we learn about sports rorts, the more offensive the whole affair becomes – and the less credible the defences raised by the Prime Minister, the former Minister, the relevant Commonwealth agencies, and Mr Morrison’s go-to man, the secretary of his department and his former chief of staff, Philip Gaetjens.

And we will learn more, thanks to the Select Committee on Administration of Sports Grants, established by the Senate. It is currently publishing submissions and holding hearings. Its report is not due for another four weeks.

At the time of writing, two submissions that have been published by the Senate Committee deal with the legality and constitutional validity of the Minister’s grant decisions. Both the joint submission of Professors Cheryl Saunders and Michael Crommelin of the Centre for Comparative Constitutional Studies at Melbourne University, and Professor Anne Twomey of Sydney University argue that the grants were unconstitutional.

The more detailed submission of Professor Twomey examines the unlawfulness of the grants – making grants without constitutional power, the Minister approving grants without the legal power to do so, the breach of administrative law requirements for fair and impartial decision-making, breach of grant guidelines and breach of the Statement of Ministerial Standards.

Not only did the Minister have no lawful power to approve the grants, but the offices of the Prime Minister and the Deputy Prime Minister had no power to direct how decisions were to be made.

The constitutional problem is that there is no power given to the Commonwealth Parliament to make laws with respect to sport or local community facilities, so it cannot authorise direct grants for those purposes. The closest, roundabout authority would come under the external affairs power which was used to ratify international conventions concerning discrimination against women and the rights of persons with disabilities. Professor Twomey suggests this would allow funding to be provided for change rooms for women or facilities and access for people with a disability. But that’s the extent of the grants that could be made.

The legislative problem is that the Australian Sports Commission Act did not give the Minister power to make any grants, or give the Commission (known as Sport Australia) power to delegate its power to the Minister. As the Audit Office report pointed out, both Sport Australia and the Health Department raised concerns about the legality of the Minister being the decision maker and thought legal advice should be obtained. But apparently it wasn’t.

To get around the problem, Professor Twomey said it appeared that the Minister, either directly or through her office, insisted that the Program Guidelines should nominate her as the approver of grants but she said that was ‘contrary to the law, and that the Australian Sports Commission allowed this to occur, despite knowing that it was unlawful’.

Incidentally (though it is a matter of considerable importance) Mr Gaetjens in his submission to the committee, relied on this delegation in the guidelines and the discretion it appeared to give the minister to consider factors other than the grant guidelines. This was the only time he referred to the legality of the Minister making decisions, though this issue had been raised in the Audit report. He also said that because she acted within the Guidelines and because political considerations were not the primary determining factor in her grant decisions, she did not offend the standards’ requirement of ‘fairness’.

However Professor Twomey says bluntly that the guideline stating the Minister was the final approver of the grants was ‘invalid as it was inconsistent with the Act.’ She continued, ‘Any instruction by the Minister or her office to include clause 8.1 in the Program Guidelines would also have been unlawful (both because the Minister did not exercise a valid power to make the direction, and because the substance of the direction was unlawful).’

She then examined the Minister’s compliance with the Statement of Ministerial Standards, suggesting there were numerous breaches. For example, she quotes Mr Gaetjens reporting to the Senate committee that the Minister informed him that she considered the distribution of grants among electorates held by political parties as a factor, among others, in her consideration in approving grants.

‘Mr Gaetjens also stated that he did not find evidence that the Minister’s office was “unduly influenced” by reference to marginal or targeted electorates or that political considerations were the “primary determining factor in the Minister’s decisions to approve the grants”. This however suggests that he accepted that it was an influence and a factor, if not the primary determining one.’

The Statement of Ministerial Standards says that in carrying out their duties Ministers must act in the lawful and disinterested exercise of the statutory powers available to their office. But Mr Gaetjens did not address the issues of lawfulness and ‘disinterested’ actions by the Minister.

The standards also require that ministers must ensure that official decisions made by them are unaffected by bias of irrelevant considerations such as considerations of private advantage or disadvantage. Professor Twomey concluded, ‘If a Minister, in making an official decision, takes into account considerations of private advantage or disadvantage, including the advantage or disadvantage to political parties and the advancement to the Minister’s career that would flow from helping her colleagues to be re-elected, this would appear to breach the standard.’

It is clear (from a huge flow of emails from Mr Morrison’s office to the Minister’s) that the Prime Minister’s office (if not Mr Morrison himself) was heavily involved in the Minister’s assessment process and that most of the work in preparing for the grant selection process was carried out by staffers in the Minister’s office.

This does not excuse the Minister from responsibility for the whole process. Nor is the Prime Minister’s responsibility for enforcing the Statement of Ministerial Guidelines lessened by his reliance on Mr Gaetjens to review the Minister’s actions.

Professor Twomey’s analysis suggests that the whole sports rort affair was shonky, failing basic legal and ethical tests. Political interests rather than the public interest characterised the whole affair. And the Prime Minister was a party, at least through his office, to what was happening.

David Solomon is a former political and legal journalist.

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