Opinion: People might wonder why – amid a pandemic, a recession and the most challenging budget since World War II – we should hark back to sports rorts but here's why
Before the Morrison government starts the hard sell of its budget, it's worth recalling a recent episode it would rather the community forget. The sports rorts affair shows us that the public service is becoming a political service, that the Morrison ministry is adept at using public money for private benefits, that it is content to ignore unlawful activity, and that misleading Parliament and public is a matter of no moment.
But many, including the Audit Office, find that McKenzie had no evident legal power to make any grant decision. Senior lawyers told the Senate select committee examining the matter that the power to make grants was vested solely in the Sports Commission. No lawyer provided contrary evidence. The secretary of the Department of Health is an ex-officio member of the commission. This commonly used provision allows the responsible minister an insider's view of an independent agency. The arrangement can, however, cause conflicts of interest: the ex-officio member has a responsibility both to advance the minister's and the commission's sometimes conflicting interests.
Gaetjens concluded that McKenzie breached the standards by failing to declare membership of two organisations and she had an actual conflict of interest when awarding funding to one of these. Gaetjens perfectly accommodated the government's political problems. The uproar following the Audit report meant McKenzie could not remain in the ministry. But her failings had to be personal; they could not reveal governmental failures.
What then of Christian Porter, the Attorney-General, who swore an oath to uphold the law? It seems the need of politics was greater than the need of law. Porter seems unperturbed that the government has no constitutional power to fund change rooms or toilets for sporting groups. And he shows no concern over McKenzie's decision-making.Morrison, with Porter at his side, suggested – mumbled is the better term – that he had legal advice that McKenzie could be the decision-maker.
McKenzie has advanced the defence of ignorance. Last May, she told the ABC: "If there was any issue around the legality of how this program was going to be run, then my expectation of the Australian public service is that they would've raised it with me." McKenzie's actions might allow a common-law claim of misfeasance in office. The Federal Court recently found that Senator Joe Ludwig, former agriculture minister, committed misfeasance in 2011 when he acted unlawfully in prohibiting the export of live animals to the detriment of graziers. The court ordered the government to compensate affected parties. Sport applicants who unfairly lost grants would similarly have cause to sue for compensation.
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