Yesterday Inq reported on the National Party’s blurred lines when it comes to conflict-of-interest questions. Today we ask if Senator Bridget McKenzie’s flawed decision-making during the sports rorts affair is actually part and parcel of how the Morrison government does business.
Exhibit D: a minister’s right to do what they want
Senator McKenzie has consistently refused to concede she breached the law or convention in overriding 73% of grant approvals recommended by Sport Australia bureaucrats, recommendations which followed a merit assessment.
In the first week of March — six weeks after her administration was eviscerated by a report by the independent Australian National Audit Office (ANAO) — she posted a defiant message to her website, saying. “I make no apology for applying ministerial discretion to ensure fairness across funded projects.”
Earlier this year, she maintained that elected representatives were “responsible for public expenditure and take advice, not direction, from the public service and others”.
“The operation of ministerial discretion is important to our democratic process,” she asserted.
McKenzie’s statement is a near word-for-word echo of the prime minister’s doctrine of ministerial authority, which he articulated in a speech to Australia’s public service heads last year:
Ultimately it is the minister who must decide whether to approve or not approve … because ultimately it is the minister who will be held accountable by the public. And that’s how it should be. Only those who have put their name on a ballot can really understand the significance of that accountability. As much as you might appreciate the Westminster system, until you put your name on a ballot, that changes everything.
“One of the worst criticisms I can tell you, in the locker room of politicians, that one politician can make of another, is that they’ve become a captive of their department as a minister,” said Morrison, using a sporting analogy which would not be lost on Senator McKenzie.
In an inquiry ordered by the prime minister, secretary of the Department of Prime Minister and Cabinet Phil Gaetjens endorsed McKenzie’s right to decide as minister.
In a brief public summary of his report (the full report is secret) Gaetjens concluded: “It is clear to me from the guidelines that, after an assessment process, Senator McKenzie was the final approver of funding decisions … I concluded therefore that, in exercising her role as decision maker for the program, Senator McKenzie acted within the remit of the guidelines.”
Exhibit E: the law? Yeah… nah
In maintaining that she has done no wrong, McKenzie claims there was no law stopping her from making whatever decisions she wished. Morrison and, critically, Gaetjens, agree that McKenzie’s actions were lawful.
Yet, according to the ANAO the grants had no legal authority.
The ANAO reported that Sport Australia had “recorded” that the legislation governing Sport Australia required that it – and not the minister – approve funding.
Sport Australia’s parent body, the Department of Health, “identified” that if the minister was to be the approver then legal advice “may be required”. The ANAO found that legal advice was not sought, and concluded “there was no legal authority evident to the ANAO under which the minister was able to be the approver” of sports program grants using the money of Sport Australia.
Sydney University Constitutional Law Professor Anne Twomey is one of three legal experts who assert that the grants were unconstitutional and unlawful because McKenzie had no legal power to override Sport Australia.
Ultimately it appears that Senator McKenzie’s integrity breaches are no aberration at all – rather they are the inevitable result of a failure of checks and balances in government.