If we relied on Prime Minister Scott Morrison, we would think the grants made under the Community Sport Infrastructure program were all for eligible applications. That's what he told us. If we believed Morrison, we would accept that he did not try to influence the choice of grants, but merely relayed the views of others to the former sport minister, Bridget McKenzie.
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Unfortunately, the Prime Minister misled the public in each of these statements. Unfortunately for him, and sadly for us.
Morrison might have been wrongly advised that all grantees were eligible when 43 per cent were not. But he surely knew his office was promoting selected applicants. His office had several iterations of the spreadsheets of possible grantees, identifying the marginal and contestable electorates in which they resided. This adds to evidence that the Prime Minister was trying to buy an election - to buy a miracle.
We know Morrison was not truthful thanks to the Senate Select Committee investigating the sports grants saga. Last Thursday, the committee heard evidence from the Australian Audit Office which contradicted Morrison's claims.
But unresolved in that hearing is whether McKenzie had any statutory power to choose grantees. McKenzie's department wondered whether the sport minister could lawfully make any grant decision. The Australian Sports Commission also wondered. So did the Auditor-General, who could find no basis in law for McKenzie to be the arbiter.
It is no small matter to wonder whether the minister acted lawfully. If she did not, it allows the suspicion that there was misconduct in office.
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Although concerned about the law, neither McKenzie's department nor the Australian Sports Commission sought a legal opinion. It seems these agencies knew or suspected what the legal opinion would say. They knew the grant money was provided to the ASC, not the minister. They knew that the ASC, not the minister, had the authority to award the grants. It seems that these agencies were fearful of frustrating their minister.
Morrison tried to reassure us about this legal issue. He said the Auditor-General's concerns about the law were unfounded. But we know Morrison is not always accurate.
And this is not the first time that our government has acted unlawfully.
You need no law to realise that a government should not lightly write to pensioners and the unemployed to assert that they owe a debt. And more than suspicion is needed for the government to garnish the tax returns of these people. That such action is unlawful should have been obvious to all before the program known as robodebt began.
It seems that no legal opinion about robodebt was sought at its inception, probably because public servants did not want to frustrate ministers by telling them the obvious.
Ministers might swear to uphold the law, but they seem to be doing a poor job. And the fact that the public service stands aside to allow the government to break the law puts it in a sorry place.
Someone should tell the Minister for Finance, Senator Mathias Cormann, that he too risks flouting the law. Cormann does not want to table in the Senate the report on McKenzie's administration of the sports grants program, prepared at Morrison's request by the head of Morrison's department, Phil Gaetjens. Morrison told us that the report cleared McKenzie, except for the non-disclosure of club memberships - but he will not release it to the public.
Gaetjens revealed a little of his report last Friday in a submission he made to the Senate. He says there that he was asked to consider McKenzie's behaviour against the Commonwealth's Statement of Ministerial Standards. The first in those standards is that ministers exercise with disinterest the statutory powers of their office. But it seems Gaetjens failed to explore whether McKenzie had any power to make grant decisions.
The Gaetjens report will not remove concerns about McKenzie's actions, but the Senate deserves to see it. Cormann should be advised that the NSW Court of Appeal decided in 1998 (Egan v Chadwick) that all documents other than those prepared in cabinet or those revealing deliberations of cabinet must be available to the NSW upper house. The High Court came to a similar finding in 1998 (Egan v Willis & Cahill). Cormann should follow these findings. If he needs reassurance, Cormann could seek legal advice. The Commonwealth Solicitor-General could easily advise Cormann that the Senate has the right to see Gaetjens' full report.
Unfortunately, Cormann is unlikely to ask the Solicitor-General. He might know that the answer would be disagreeable.
- Tony Harris is a former senior Commonwealth officer and NSW Auditor-General.
