Covid-19 is pushing sports rorts from the news. But at least one potential crime must be investigated | Tony Harris | Opinion

There is nothing good about Covid-19 but it does distract from the imbroglio called the community sports infrastructure program. This advantages the Morrison government but it detracts from those wanting a government that governs without deceit.

To simplify the corruption problem, we need to forget that the commonwealth has no constitutional power to fund barbecues, toilets, pools, changing rooms and other facilities the government agreed to provide before the election. After all, ministers who took an oath to uphold the law, including the attorney general, Christian Porter, won’t be bothering with this apparently trivial inconvenience, so why should we?

But the 300 or so applicants denied a grant because they were in the wrong electorate do have a case to be compensated. The question they face is who pays?

The prime minister, Scott Morrison, gave an early clue. He mused that the budget for 2020-21 might include appropriations for all worthy applicants who missed out. Another $100m would be enough to overcome concerns. And if grievances were met, Morrison’s political problems might be solved. According to lawyers involved in seeking recompense, this possibility has caused applicants to forgo legal rights lest they miss largesse a second time.

But there are applicants who are sufficiently aggravated to sue the Australian Sports Commission. They argue that the ASC unlawfully acquiesced to the wishes of the former minister Bridget McKenzie. They have a strong case: the grant moneys were provided to the ASC not for the former minister’s political frolics.

If these civil suits succeed, the taxpayer will ultimately meet the claims. But the government may, under the Public Governance, Performance and Accountability Act 2013, sue ASC board members for making grants inconsistent with the law. The irony of this would be so delicious – the government suing a board for doing what the government wanted – that it will not happen.

The same legislation allows the government to sue McKenzie for usurping the role of the ASC by making decisions she had no power to make. The thought that a minister might be financially liable for misfeasance has alarmed government members.

Senator Eric Abetz, a loyal Liberal party member who is on the Senate select committee examining these grants, has changed his script in the face of overwhelming evidence that McKenzie acted unlawfully. In the beginning days, Abetz argued that McKenzie had the discretion to overrule her department. Abetz now understands that the ASC is a statutory agency, not a department subject to McKenzie’s wishes. He is now arguing that McKenzie might have been acting in good faith, and because no one had advised her that she had no legal authority to do what she did, it would be unfair to punish her.

Of course, the government will not sue McKenzie. She probably cannot repay the nearly $100m of contested grants. But the pressing reason against a suit is the possibility that an aggrieved McKenzie would reveal the role of the prime minister, potentially making him similarly liable.

Another unlikely option is that the government would recover the unlawful grants made to sporting bodies. The government would then have a few hundred more furious opponents.

It is not surprising that the taxpayer will have to carry the monetary costs of this maladministration. It is nearly always thus.

Then there is the prospect of at least one crime that needs to be brought to account.

The possibility of a criminal offence stems from evidence the Australian National Audit Office provided to the Senate that the list of successful applicants the former minister finalised on 4 April, and advised to the ASC, had been altered after consultation with the prime minister’s office. That change allowed the possibility that documents had been backdated. Porter told the ABC that such backdating activities were “very serious criminal offences”. He argued that raising the possibility of such a crime needed more than baseless speculation. Porter was correct.

The public now knows, thanks to McKenzie’s public advice, that she did not authorise any change to the list; there was no backdating. That leads to the question, who made the unauthorised alteration, and would Porter describe such fraudulent changes as very serious crimes?

The Australian federal police declined to investigate the matter concerning Sydney city council’s overseas travel costs because a “low level of harm” was done and the relevant minister, Angus Taylor, apologised. But in this matter, evidence suggesting fraudulent changes necessarily implies that some applicants were unlawfully denied a grant. So will the AFP determine that this fraud also need not be investigated? Does it think that any crime involving ministers never warrants investigation?

Tony Harris is a former senior commonwealth officer and former New South Wales auditor general

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