A legal challenge to the sports grants program has suffered a setback, after the federal court refused access to documents relating to former sports minister Bridget McKenzie’s input into $100m of grants.
On Friday justice David O’Callaghan ruled that Beechworth Lawn Tennis Club can only access documents relating to McKenzie’s input into the decision to refuse it a grant, and the $36,000 grant to Wangaratta Clay Target Club.
In a mixed result for Beechworth, justice O’Callaghan did agree to order the production of physical versions of documents “specifically about the role which the minister was to have in decisions”.
Beechworth and its lawyers, Maurice Blackburn, had argued Sport Australia should be compelled to provide all documents relating to McKenzie’s “input or views into decisions as to which grant applications to accept or reject” in the community sport infrastructure grant program.
Beechworth is seeking to challenge Sport Australia’s assertion McKenzie selected projects but did not approve final grants.
In his written judgment, O’Callaghan said documents evidencing McKenzie’s views of other grants were “not directly relevant” to the case, which challenges only the failure to give Beechworth a grant and the Wangaratta grant.
“There is no case raised … in the pleadings that there existed a practice, policy, system or pattern of behaviour, by which Sport Australia acted at the behest or direction of the minister, or that ‘tendency reasoning’ might be or become relevant,” he said.
Before the interlocutory application, Maurice Blackburn principal Josh Bornstein said that limiting documents to those related to the Beechworth and Wangaratta grants was “entirely insufficient”.
“To truly get to the bottom of this matter in seeking to determine the lawfulness of [Sport Australia’s] actions we need all relevant documents relating to the former minister’s role in the sports grants program,” he said earlier in August.
“While the misuse of taxpayer funds in the sports rorts grant program at the last election has been highlighted by both a report from the auditor general and within the parliament, those responsible have not been held to account.”
In January 2020 a scathing auditor general’s report found the former sports minister’s office had skewed the program towards target and marginal seats by running a parallel assessment process, awarding funding to more than 400 projects which would not have received funding if Sports Australia’s recommendations were followed.
McKenzie resigned over her undisclosed membership of the Wangaratta Clay Target Club but has denied any wrongdoing in the administration of the wider program.
Beechworth’s case argues that Sport Australia “took direction” from the government in breach of its governing act and as a result grants “were not made on merit”.
Sport Australia argues that McKenzie did not approve final grants, claiming its own guidelines that suggested otherwise were wrong and based on a finance department “template”.
Sport Australia insists it retained the final say on which applications would be approved for funding despite a flurry of late changes to grant recipients requested by the former federal sport minister or her office.
Legal academic Anne Twomey has argued that Sport Australia’s case has been undercut by evidence to the Senate inquiry, citing two documents:
Minutes from Sport Australia’s finance audit and risk committee, which revealed that in December 2018 it believed the then sport minister had “overturned” its recommendations, a “variation in the approval process” that it noted as a risk
A ministerial submission signed and dated 4 April 2019, which sought McKenzie’s approval for 245 grants recommended by Sport Australia, but was amended by hand to instead select grant recipients “approved by the minister”
