Sports rorts and muddy waters

Last summer, just like much of the country, the federal political landscape was ablaze.  Scott Morrison was caught out taking a secret holiday in Hawaii; and those who weren’t evacuating from bushfires were very angry about sports rorts. 

One of the cunning ways by which Morrison and his Attorney-General, Christian Porter, sought to lower the temperature on sports rorts was to muddy the waters as to whether the whole exercise was illegal.

Many observers expected that the scandal would have blown over by now.  Those observers seem to have underestimated the deep impact that sports rorts affair had on many of John Howard’s old “battlers”. They were angered that wealthy clubs of the rich and famous got the grants which, according to Sport Australia’s careful analysis, battling clubs in the suburbs and the regions should have got.  Bridget McKenzie telling us that one tennis club is just the same as another – White City of White Cliffs?  Kooyong or Quambatook? – was just petrol on the fire.  (The Quambatook tractor pull is certainly better than Kooyong’s).

Many battlers’ family members have been on committees of sports clubs that struggle to keep sports and sporting teams alive in the bush and the suburbs – grass roots, community building sports clubs, kept alive by the extraordinary efforts of dedicated volunteers.  Many would have felt for volunteers who worked night after night preparing grant applications in the naive belief that the program would be conducted on its merits.  They were angry when that demonstrably didn’t happen, and the program was shown to be just a political plaything, cynically manipulated by political smarties to save vulnerable political seats.

They were further angered at the lack of candour from the smarties about why some clubs that hadn’t even applied for a grant got one; and why a club that scored 50% in an objective assessment of its application by Sport Australia won out with a grant of half a million dollars over a club that scored 98%.  Some 73% of the projects that McKenzie approved did not make the cut, according to Sport Australia’s careful analysis.

The continuing anger is very much about those factors.  The battlers have been dudded again.

The observers who expected the scandal to blow over by now also did not reckon with the persistence of a few journalists – most notably Paul Karp of the Guardian – who in the face of bluster, spin, dissembling and half-truths/half-lies from Morrison, have kept it alive.

So, what about legality?  The legality issue remains very important.

At the beginning of February, Morrison said he had referred the legality issue to Christian Porter for advice.  A short time later, Morrison said Porter had told him the auditor general was wrong in his assessment that the grants were legally questionable; and apparently quoting Porter, said that the auditor’s commentary about the potential legal exposure was “with respect, not correct”.  So what is presumably a legal advice was summarised in just six words, including the often patronising “with respect”.

Morrison has refused to release any actual written advice.  In this way, for eight months and with a vague pre-Covid suggestion that in the next budget the Government would make things right for the clubs that were dudded, Morrison has been able to keep the legality issue on the back-burner.  The next budget is upon us, but the budgetary climate could not be more different than it was pre pandemic.

The fact of the matter is that the grants were plainly illegal.  The relevant legislation is crystal clear that the decisions on grants are for Sport Australia to make.  They cannot legally be upwardly delegated to the Minister or the Prime Minister.  So who knows what question Porter was asked, and what advice he gave about what.  If he advised that the Sports Minister acted legally in allocating the sports grants, he was incorrect.

The Beechworth Tennis Club has taken the government to the Federal Court over missing out on a grant.  On 18 September, Sport Australia was ordered to put on affidavit evidence illuminating two decisions – not to give the Beechworth Club its grant; and to give a grant to Bridget McKenzie’s Wangaratta Clay Target Club.  That has to happen by 8 October – two days after the federal budget.

As Robodebt showed just last November, it can be more difficult for the federal government to spin courts along with word games than it is with Parliament, interviewers and press throngs.

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Lawyer, formerly senior federal public servant (CEO Constitutional Commission, CEO Law Reform Commission, Department of PM&C, Protective Security Review and first Royal Commission on Intelligence and Security; High Court Associate (1971) ; partner of major law firms. Awarded Premier's Award (2018) and Law Institute of Victoria's President's Award for pro bono work (2005).

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