Former Federal Sports Minister Bridget McKenzie could be personally liable over infrastructure grants

A legal expert addressing the Senate inquiry into the allocation of funds from the controversial Community Sport Infrastructure Grant Program has suggested that former Federal Sports Minister Bridget McKenzie could be personally liable for failing to seek advice on whether she had the authority to approve allocations.

Geoffrey Lindell, Emeritus Professor in law at the University of Adelaide, said he had “serious doubts” that Senator McKenzie (pictured) had authority to approve the grants, echoing concerns of the Australian National Audit Office (ANAO) and other experts including Professor Anne Twomey.

As reported by Guardian Australia, Professor Lindell told the Senate committee on the administration of sports grants in Adelaide that the same “cloud” hung over whoever made late changes to the final round of grants on 11th April, which the former Sports Minister has said she was unaware of.

The guidelines for the Program said the Minister was the final decision-maker, but Professor Lindell told the Senate inquiry into sports grants he had searched in good faith for the source of that authority and was “yet to find it”.

Professor Lindell noted that the Federal Attorney-General has defended Senator McKenzie’s conduct by arguing a Minister’s discretion to direct their department, but responded that Sport Australia was an independent statutory authority, not a department.

He told the hearing “despite what the attorney said, I find myself in disagreement.”

Professor Lindell noted that Sport Australia had a power of delegation, but the Minister was not listed as a possible delegate, and the minister had a power to set “practices and policies” but that did not allow her to supplant Sport Australia as the decision-maker.

Professor Lindell noted several law firms have threatened to bring legal challenges over the funding allocations, suggesting that if they succeeded the minister’s decisions would have “no legal effect” and Sport Australia would have to decide grants afresh.

Maurice Blackburn has written to Sport Australia on behalf of the Beechworth Lawn Tennis Club, an unsuccessful applicant, asking that it approve its grant application by 17th March or face legal action in the Federal Court.

Professor Lindell said legal actions would take their course but “wherever possible I would’ve thought the right thing to do would be to fund the very deserving (projects) that missed out”.

In his submission, Professor Lindell noted that the Public Governance Performance and Accountability Act could allow the commonwealth to recover grant money from Senator McKenzie for “loss of relevant money”.

Professor Lindell submitted “for this liability to be established it would have to be shown that the payments resulted from her ‘misconduct or by a deliberate or serious disregard of reasonable standards of care’.”

Professor Lindell went on to suggest that Senator McKenzie should be censured by Parliament for failing to check if she had legal authority to give grants, or else her staff should be held responsible, or else a “vacuum” of responsibility would develop.

Senator McKenzie and Prime Minister, Scott Morrison, have repeatedly defended the program on the basis that Sport Australia assessed all projects ultimately funded as eligible under the guidelines.

Professor Lindell said his concerns about the legality of the program were shared by colleagues of “unquestioned” credibility: Anne Twomey, Michael Crommelin and Cheryl Saunders. He said the only doubt on the question was if the attorney general could “pinpoint the legal authority” that they had overlooked.

Earlier, the committee heard from South Australian clubs that scored above the 74% cut off that the ANAO found would have resulted in a grant if Sport Australia’s advice had been followed, including the Coromandel Valley Ramblers Cricket Club, with a score of 90, and McLaren Football Club, with a score of 88.

Witnesses from clubs told the committee they had spent up to 400 hours completing applications for a process they believed was merit-based, but received no feedback from Sport Australia about why they were unsuccessful.