By Anthony Whealy, originally published in the Australian Financial Review 22nd January 2020.

The ‘Sport’s Rort’ scandal reflects a new low in our political system.

Bridget McKenzie’s actions were much worse than mere pork-barrelling, detestable though that practice is.

Here, there was a large scale program appropriately informed by a carefully laid out assessment and selection process. In good faith, community sports groups, both large and small, submitted applications in the expectation that the selection process would be fair and in accordance with clear guidelines.

Sports Australia painstakingly assessed each project against a set of criteria, giving each applicant an overall aggregate score. This process was designed to ensure that, irrespective of political considerations, the most deserving and worthy applications would receive the benefit of the grants. This did not happen. Over 400 of the applicants who ultimately received funds fell below the score which Sport Australia considered necessary to succeed.

More significantly some 618 groups,assessed as worthy and deserving applicants by Sports Australia, received not a penny.

How did this happen? The Audit Office found that the Minister ignored and effectively tore up the guidelines. She disregarded the proper process and Sports Australia’s recommendations in favour of her own approach –  namely to prefer marginal and targeted electorates. This was done to bolster the prospect of success in the 2019 election.

It is hard to imagine a more egregious misuse of power. Any thinking member of the community, no matter their political persuasion, would find this conduct appalling. To make matters worse, the Minister – and sadly now the Prime Minister — far from apologising for this monumental failure of good governance, have sought to defend the indefensible.

Senator McKenzie says ‘no rules were broken’ but here there is a clear misuse of power and money for political gain. This was contrary to the process that had been established to ensure fairness and a level playing field. The Senator says all approved applicants were ‘eligible’. If this had not been the case, she would now be facing a serious case of criminal fraud. She is saying in effect…. “ Well, I may have been a little bit corrupt but at least I didn’t commit a criminal fraud”.

There is a serious question that Senator McKenzie may be in breach of the Ministerial Standards approved and signed by Prime Minister Morrison in August 2018.

These standards require that Ministers act with “due regard for integrity, fairness, accountability and the public interest”. In particular Ministers must “act with integrity – i.e. through the lawful and disinterested exercise of the statutory and other powers available to their office, appropriate use of the resources available to their office for public purposes in a manner which is appropriate to the responsibilities of the Minister.”

Finally, both Senator McKenzie and the Prime Minister claim that the projects funded represented a positive impact on their communities. However, this argument is of little comfort to the hundreds of groups that had been deemed worthy of a grant, but denied much needed financial assistance and benefit because of blatant electioneering bias.  This was in deliberate defiance of Sports Australia’s careful selection of deserving projects.  Even if Senator McKenzie had the power to confer these funds – a point which was seriously queried by the audit office – she plainly abused that power.

How would we as a community feel if the many millions of dollars about to be distributed to bushfire survivors were given to marginal and targeted electorates for political gain, rather than to those in most need and deserving of help? The answer is obvious.

There is, however, a second and more alarming corollary to all this.

Here we have, at first blush, a clear case of corrupt conduct by any reasonable standard: the wilful and deliberate abuse of money and power for political gain. The coalition is proposing a Federal Integrity body whose model in relation to politicians, bureaucrats and public servants would not permit this scandal to be investigated.

The threshold for the investigation of politicians under the Attorney General’s model is ‘reasonable suspicion’ that the conduct in question constitutes a criminal offence. Thus, this scandal would escape investigation.

All state anti-corruption agencies recognise that serious corruption can exist – and be investigated –  where the corrupt behaviour falls below the threshold of a criminal offence. However, this standard, clearly acceptable to the Australian community, is disregarded in the Coalition’s C.I.C. model.

The government simply does not understand that the role of an anti-corruption body is not to obtain convictions for criminal offences. Its primary aim is to uncover serious corruption in the field of public administration and to expose it publicly where appropriate.

Even if the present case were capable of being investigated, the Commonwealth model does not allow for public hearings or the publication of ‘corrupt conduct’ findings in the case of politicians.  A corrupt policeman may face a public hearing but not a corrupt politician.

“Keep it hidden” is the present government’s answer to the cry for transparency and openness in relation to the exposure of serious corrupt practises by politicians.

This shameful incident involving Senator McKenzie will further undermine the community’s trust in our politicians and the political process at a time when we are most desperate for ethical leadership and good governance.

The Hon. Anthony Whealy Q.C.
Formerly a Justice of the Supreme Court of NSW, Court of Appeal.
Currently Chair of The Centre for Public Integrity.