If we care about integrity in government, the Coalition must be held accountable for the grants saga
Before we go forward, just for a minute, I want to look back. Let’s track back to last April when the Morrison government was mulling the grants at the centre of the “sports rorts” scandal.
Politics was hurtling towards a federal election that the Coalition (well, perhaps everyone apart from the prime minister himself) fully expected to lose. Believing there were five minutes left to live, the government went into hyperdrive. There was a rush of appointments and decisions – in the press gallery it felt like a volcano was erupting in our inboxes.
My colleague Christopher Knaus tracked some of this activity contemporaneously, and found in the fortnight between 27 March and 11 April, the government announced 70 appointments to boards, statutory bodies and tribunals, and diplomatic postings. One in five people appointed to government bodies in that fortnight had links to the Liberal or National parties.
So that’s the time when the rubber was hitting the road on sports grants, round three. This is useful context to have in your mind: a government moving as fast as a retreating army, sprinkling explosive ordinance chaotically in its wake to impede the anticipated advance. Perhaps this wasn’t the high-water mark of commonwealth decision making. Perhaps people were making decisions they didn’t expect to have to defend, or explain.Politics was hurtling towards a federal election that the Coalition (well, perhaps everyone apart from the prime minister himself) fully expected to lose. Believing there were five minutes left to live, the government went into hyperdrive. There was a rush of appointments and decisions – in the press gallery it felt like a volcano was erupting in our inboxes.
My colleague Christopher Knaus tracked some of this activity contemporaneously, and found in the fortnight between 27 March and 11 April, the government announced 70 appointments to boards, statutory bodies and tribunals, and diplomatic postings. One in five people appointed to government bodies in that fortnight had links to the Liberal or National parties.
We can jump to the present now, or near enough. On Friday, Scott Morrison declined to take any questions on sports grants at his press conference. As well as that being a shocker, Morrison’s avoidance of accountability is a great pity in a substantive sense, because it multiplies the number of questions without answers. A statement issued by Bridget McKenzie on Thursday night opens brand new territory in this imbroglio, and things were already serious enough.
Anyone watching can see sports “rorts” is a gripping political story. There is pork barrelling, a gritted-teeth ministerial resignation, which in part triggered a major eruption in the National party, and a rolling effort by the prime minister to inoculate himself from the fallout of the government’s failure to administer the program through the lens of public interest.
But as well as the drama, there are questions of substance that remain comprehensively unanswered despite this mess spanning a couple of months. The question I’ve been asking about sports grants since the end of January is a foundational one: when it comes to this expenditure, did our government act lawfully?
Perhaps in the age of politics-as-reality television, in the Trump epoch, our collective expectations have now lowered to the point where these sorts of questions are now considered quaint. But for what it’s worth, I reckon these questions remain the difference between order and chaos; the difference between inhabiting a world of facts and liberal democratic norms, and a universe where the benchmark for powerful people is not the national interest but whatever you can get away with.
So let me repeat this because it’s important, because it’s a measure of things, and we still don’t have an authoritative answer. Did our government act lawfully?
There are currently three tiers of legal uncertainty associated with this program. The first is constitutional. A leading legal academic has warned that the sports grants program may be unconstitutional because the federal government lacks power to hand out money to sports clubs, a view supported by other expert submissions.
The second tier relates to whether the grants in this scheme were ever made with proper legal authority. This important question was raised by the Australian National Audit Office when it excoriated the government’s management of the program. If you want the full box and dice of the ANAO’s questioning, I went through this in some detail in a column at the end of January.
If you lack the time for that detailed recap, all you really need to know is no one has yet produced evidence indicating the process was conducted lawfully. Sports Australia, the agency at the centre of the maelstrom, has told a Senate inquiry it has legal advice from an eminent QC clearing it of exceeding authority, but the agency is yet to make that advice public.
Now we’ve reached the third tier of legal uncertainty, which are the new questions raised by the statement McKenzie posted on her website on Thursday night, just after parliament rose. Given this is still new information, let’s step through it carefully.
Bit of background first. We know, because the ANAO has told either a Senate inquiry or Senate estimates, the following things: McKenzie signed a brief detailing the successful grants (which were listed at attachments) on 4 April. Subsequent to that there was email traffic between McKenzie’s office and Morrison’s office, and between McKenzie’s office and Sport Australia. This all happened on 10 April and 11 April – the day the parliament was prorogued for the 2019 election. Caretaker conventions were in effect from 8.30am on 11 April.
During this to and fro, one project came out of the spreadsheet and another came in at the request of the prime minister’s office. Let’s pause here long enough to absorb the fact that this evidence directly contradicts the many breezy statements from Morrison declaring McKenzie was the decision maker and his office just passed on “representations” – including statements to this effect made by the prime minister in parliament. Bit of a problem, that.
Another set of changes was made before the final material was sent to Sport Australia at lunchtime on 11 April, with one project removed and nine added. The ANAO suggested McKenzie’s office made those final changes. So three versions of the material went to Sport Australia on 11 April: one at 8.46am, one at 12.35pm, and the last at 12.43pm.
I won’t divert us too much with outrage here, but this wrangling was going on at a time when official government business was supposed to have ceased, and Sport Australia was evidently perturbed enough to seek advice about whether this was OK in the caretaker period, when current governments are not supposed to bind future governments to major decisions.
Now we arrive at McKenzie’s statement on Thursday night. The former minister says she signed off on the sports grants brief on 4 April, and made no “changes or annotations to this brief or its attachments after 4 April 2019”. This matters, because it gives rise to an obvious question: if McKenzie didn’t make the changes, who did?
Stitching this all together, we are now in a position where: 1. These grants could be unconstitutional; 2. There are separate unanswered questions about whether McKenzie ever had to the legal authority to allocate the grants in the first place; and 3. Changes were made to McKenzie’s decision by unidentified people who, wait for it, weren’t the minister.
Let’s linger briefly on point three. I don’t know who made these changes, but I do know this. Ministerial advisers, no matter how senior and no matter who they work for, are not ministers and cannot exercise the legal authority of ministers, even if they think they can, or should.
We could, I suppose, seek to explain this behaviour as pre-election chaos, or someone having a bad hair day, or someone stuffing up – and perhaps there is an element of truth in all of that, which is why I situated us back in real time at the start of this column.
But if we care about integrity in government, this behaviour must not be minimised, or excused, or defended, particularly when you line this case study up with other things, like the unsolved mystery of how Angus Taylor came to use completely false figures in a political attack against the Sydney lord mayor, Clover Moore, or the government rolling out another potentially unlawful program in robodebt.
I’ve spent much of my career as a journalist in the national political sphere thinking we don’t really need an anti-corruption commission federally, for two reasons.
The first was most of the political class I watched and interacted with seemed to respect – not all of the time, but most of the time – the self-regulatory norms and conventions of the vocation to the point where there were sanctions for transgressions.
The second reason I was attentive, but sanguine, was media organisations possessed the institutional power to check the worst impulses of powerful people.
Now, 23 years after I started as a reporter in Canberra, I question both of my previous beliefs, at a fundamental level.
Our ecosystem is profoundly disrupted.
Politicians are bolder, and we who watch them on behalf of voters are weaker institutionally.
These deductions take me to the logical place. The case for a national anti-corruption commission is now entirely self-evident.
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