The Prime Minister did a fair job of treading water on the sports rorts scandal at his National Press Club appearance yesterday, and managed to look serene enough while he was at it. Like a duck crossing a shallow pond, he may even have succeeded in muddying the waters for a while.
But he and everyone in the room knew what awaits him on the other side – the report he has sought from the head of his own department, Phil Gaetjens, on whether the National Party deputy leader Senator Bridget McKenzie has breached ministerial guidelines. And that is not all.
This affair is bad for the government. It can only get worse. And so it should, because after all the outrage at what Senator McKenzie and her office did with the community sports grants while she was sports minister in the 18 months or so before the election, after all the untidiness about who else might be involved, and beyond what this might mean for the National Party and the Coalition more broadly, this affair will be revealed for what it is.
And this is what it is: stripped to its essentials, Bridget McKenzie’s marginal-seat pork-barrelling in the distribution of funds allocated in 2018 and 2019 to the community sports infrastructure grants program was a twin assault – double-barrelled, if you like – on two fundamentals of our system.
First, it trashed the principle that governments have no money to spend except that which parliament approves. Second, it trashed the application of the rule of law to how our governments conduct themselves.
Parliament approved allocations of money to Sport Australia, beginning in Scott Morrison’s 2018 Budget. Sport Australia isn’t just another clunky brand-name for a government agency. It is a clunky trading name for the Australian Sports Commission, which is an independent corporation created by – yes, the parliament, enacting the Australian Sports Commission Act. It is a legal ‘person’, just like you and me, so when it is given money, it owns the money and it decides how to spend it. That is what the parliamentary funding approval intended.
There is no easy way for the government to put this behind it. Nor should there be.
The Australian Sports Commission Act sets out rules for what has to happen if the minister wants to tell Sport Australia what to do and how to do it. There must be a process of written exchanges which may culminate in a formal direction from the Minister, which in turn has to be tabled in parliament.
None of that appears to have happened. The Minister just insisted that she would be the approver of grants, and the thing rolled on, as the Auditor-General noted, on the footing that she would be the decision-maker. Never mind what the law says. (Some officials did mind, but we will come back to that later.)
Yet we all remember the initial response, from both the Minister and the Prime Minister, when the Auditor-General’s report became public – a bare two weeks ago, although it feels as though this has been with us forever. They said no rules had been broken. Really, Minister? Really, Prime Minister?
Then why did Auditor-General Grant Hehir, after examining the trail closely, come to the conclusion that he could find no evidence of Minister McKenzie having legal authority to decide how to spend the funds?
There is more to come on this subject, too.
Everyone has been focussed on Gaetjens’s much-touted report on the ministerial guidelines issue (and in some cases, firing off more ammunition suggestive of other breaches by Senator McKenzie). But we seem to have forgotten that the first thing the government did about all this was to ask the Australian government solicitor to advise on whether there was indeed some legal authority for her to spend the money as she did.
There are always expansive views of executive powers to be found – especially in the vicinity of US presidents – but you would have to think the government is whistling Dixie on this one. Let’s remember that, when the Auditor-General can find no legal authority for someone to spend government money, he is on home territory. It’s a core part of his day job.
And let’s also remember that, only a few months ago, in the UK, Boris Johnson got a sharp reminder from the UK Supreme Court that, whatever may seem to be the necessities of government when you’re trying to negotiate Brexit and prorogue parliament, government discretions are constrained by the law. We’re not the UK, but there’s no powerful reason to think our system is radically different from theirs on that issue.
Time now to return, as promised earlier, to those officials who did jib at the Minister taking over the decision-making. Sport Australia did note, before the grants program guidelines were published on 2 August in 2018, that it should be the decision-maker. But nothing came of that: the 24-page guidelines booklet even includes this one-liner:
The Minister for Sport will provide final approval. In addition to the application and supporting material, other factors may be considered when deciding which projects to fund.
No hint, you note, of what those other factors might be, although we now know from the Auditor-General’s detailed breakdown that the bigger your project, the more helpful it was to be in a marginal or targeted electorate for the 2019 election.
Later in the process, some official in the Health Department also put on record that, if the Minister was going to be the approver, it would be necessary to get legal advice about that. That advice was, it seems, not sought.
As well, as we are now starting to learn from judicious and targeted leaks, there was more pushback from Sport Australia about the problems of the minister’s involvement – but never enough to stop it.
All of this, and more, will be grist for the mill of a Senate inquiry, if a Senate majority can be assembled in support of setting a committee loose on the issue, as seems likely.
In short, there is no easy way for the government to put this behind it. Nor should there be.
That’s what ought to happen when you trash the sanctity of parliamentary appropriations of funds, when you trash the rule of law.
Michael Jacobs is an Adelaide freelance writer. He has been a political journalist and a lawyer.
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