Bridget McKenzie sports rorts
(Image: AAP/James Ross)

The $500,000 that Bridget McKenzie gifted to the Mosman Rowing Club has been spent, along with the rest of the $100 million that she, how can I put this delicately, ah yes, seized from public funds and stuffed into marginal pork barrels.

The apparent bare-faced corruption and basic illegality of the exercise aside, the sports rorts affair raises another, bigger problem: a constitutional one.

Professor Anne Twomey casually dropped into her conversation this week the question of whether the federal government had any power at all to spend one cent of the Commonwealth Sports Infrastructure Grants Program. The implications of that go wide.

I’ll try to do this non-tediously (constitutional law being a frequently fatal conversation topic). It is kind of important to have a basic understanding of how the Australian federation works.

The basic fact is that the Australian constitution is the only source of the Commonwealth parliament’s power to make laws, and the executive government’s power to implement them. Anything that the constitution doesn’t cover is left to the states.

The constitution has a shopping list of subject matter areas that it gives to the Commonwealth for legislating, including some obvious ones (foreign affairs, defence, currency) and some oddities (“the influx of criminals”).

Because it was written in 1900, it left out some biggies, such as aviation and space exploration, but accidentally included others (the internet is caught as a “like service” to telephony). Point is, it’s a bit random and sometimes anachronistic, but it is also definitive.

For a long time, it was thought that the federal government might have much broader powers in between the lines of the constitution, but that was shut down by the High Court in a series of cases about a decade ago.

Most famously, the court ruled in 2012 that the Commonwealth did not have power on any basis to maintain the program set up by the Howard government to directly fund schools to pay for the provision of school chaplains.

A parent was aggrieved that his children’s school was collecting federal money to provide a religious service that he didn’t want his kids to receive, and took the government to the High Court twice, winning both times.

The court agreed with his central argument: the government had no power given by the constitution to spend its money on school chaplains. As the constitution hadn’t given the power, it didn’t exist. That made the whole program illegal.

The government (by then under Tony Abbott) quickly channelled the money into an indirect program instead, under which it gives it to the states on condition that they spend it on chaplains. Call it coercive federalism.

Back to the present, then, and Twomey’s point, which is that the constitution also contains no words that suggest the Commonwealth government has a power to make laws or spend money in relation to sport.

There are 38 specific powers in the constitution, and none of them relates in any way to the resurfacing of tennis courts, installation of solar panels on the Royal Adelaide Golf Clubhouse or the new toilets at the Wangaratta Clay Target Club, which happens to be in McKenzie’s own electorate.

Pretty simply, the government does not have any power to make a law with respect to sport. Actually, come to think of it, I’m not even sure that it had power to pass the Australian Sports Commission Act that created Sport Australia and the Australian Institute of Sport in the first place.

But of immediate relevance, the government has no power to appropriate funds and give them to sporting organisations.

The same question mark hangs over a huge raft of federal government funding programs, such as the money it gives to the arts and the environment.

There is a recognised power, outside the specific shopping list, called the “nationhood power”, which recognises that the federal government performs a national function and needs to be able to do things that no state government could effectively do. An example might be that of pumping urgent stimulus into the economy in the face of a global financial crisis.

That’s not relevant to the sports grants program, unless one could argue that obesity is a crisis sufficiently existential to warrant federal intervention. Still, hard to argue that one golf club’s need to renovate its foyer and attract more wedding bookings (for which it was slung $190,000 by McKenzie) qualified as a response to a national emergency.

In practical reality, the government is unlikely to face constitutional challenge for the simple reason that nobody who would like to be a beneficiary of the pork-barrelling rorts of the future will be lining up to sue the ham supplier because they missed out this time around.

As the president of the Applecross Tennis Club was happy to say, in respect of the $500,000 his club received to upgrade its courts on the foreshore of Perth’s Swan River, “it’s only a rort if you are not in it.”

Or, as I like to say, justice may be blind but corruption wears night vision goggles.

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Peter Fray
Peter Fray
Editor-in-chief of Crikey
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