Sport Australia has refused to provide its communications with former minister Bridget McKenzie regarding the sports rorts program, prompting lawyers to seek their release in the federal court.
Maurice Blackburn, which acts for the Beechworth Lawn Tennis Club challenging the legality of the $100m Community Sport Infrastructure grants program, on Wednesday announced it had applied for documents relating to project approvals.
In January, a scathing auditor general’s report found the former sport minister had skewed the program towards target and marginal seats by running a parallel assessment process, awarding funding to more than 400 projects that would not have received funding if Sport Australia’s recommendations were followed.
Beechworth’s federal court case argues that Sport Australia inappropriately took direction from the government about which projects to award grants to.
The suit also asks the court to quash the decision to give a $35,980 grant to the Wangaratta Clay Target Club, of which McKenzie failed to declare she was a member in breach of ministerial standards, prompting her resignation.
Maurice Blackburn principal Josh Bornstein said: “Unfortunately, we have been unable to reach agreement with the [Sport Australia] over access to what we say are highly relevant documents regarding the former sports minister’s role in the grants program.”
Beechworth’s lawyers are seeking all documents relating to McKenzie’s role in funding approvals including communications, notes or recordings of meetings or phone calls between Sport Australia, the then minister and her office.
They are seeking orders to compel the production of the documents along with others relating to the Wangaratta Clay Target Club.
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Bornstein said it “remains open to [Sport Australia] to provide these documents willingly and we again urge them to do so”. “If there is nothing to hide then there should be no reason not to hand these documents over so that this important test case can continue to proceed,” he said.
Bornstein said the auditor general’s report highlighted “the misuse of taxpayer funds in the sports grant process in order to assist the Liberal and National parties in the last election” but “those responsible have not been held to account”.
“Through this test case we are hoping to have the decision to reject [Beechworth’s] application overturned and in doing so, our client hopes to ensure that there is appropriate accountability for those who allowed the sports rorts saga to happen.”
The Labor shadow sport minister, Don Farrell, called on the Morrison government to “end the cover-up” over sports rorts, suggesting the sport minister, Richard Colbeck, should “give Sport Australia the green light to provide relevant documents and evidence to the court”.
Farrell noted Sport Australia had offered to give its legal advice to the Senate inquiry, but Colbeck had blocked it citing the federal court case. “The government can’t have it both ways.”
Legal academics have identified a number of issues with the CSIG program, including that there may be no constitutional power for the federal government to give sports grants and that McKenzie failed to formally direct Sport Australia to substitute her decisions for its own.
In its report, the ANAO said it was “not evident” what McKenzie’s authority was to approve grants and overturn Sport Australia’s recommendations.
In May 2020, Guardian Australia revealed that Sport Australia had failed to identify an independent source of McKenzie’s authority to award grants and had not obtained legal advice on the point until February 2020.
“The legal basis for Sport Australia’s role in each program was Sport Australia’s own powers under the Australian Sports Commission Act 1989,” the organisation told the Senate inquiry when answering questions on notice.
“In exercising its powers, it was open to Sport Australia to take account of the minister’s approval.”
Although McKenzie resigned over her undisclosed membership of the Wangaratta club she has never conceded any other wrongdoing in the administration of the program.
McKenzie has said the government decided to run the program through Sport Australia and the public service failed to advise her of any potential legal issue.