Sports rorts funding could escape constitutional challenge if rebooted as coronavirus stimulus
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Version 0 of 1. Submission to Senate inquiry argues commonwealth now has authority to give grants due to Covid-19 crisis The troubled community sport infrastructure grant program could be saved from constitutional challenge by being rebooted as a stimulus program to combat the Covid-19 economic contraction, a constitutional academic has argued. In a submission to the sports rorts Senate inquiry adjunct professor Gary Rumble argued that, despite warnings to the contrary, in “the current economic crisis there is no doubt that it is within commonwealth constitutional power to fund such activities”. It comes as the committee examining the community sport infrastructure grant program meets this week to take its inquiry off the backburner by considering further hearings after parliament returns on 12 May. A new submission from the Australian Capital Territory also reveals that several clubs which lease facilities from the ACT failed to get its consent to apply, resulting in at least one project granted funding being unable to proceed. The inquiry had stalled for two months due to the outbreak of Covid-19, delaying expected appearances from Bridget McKenzie, and the secretary of the department of prime minister and cabinet, Phil Gaetjens. Although McKenzie continued to deny wrongdoing in a submission published on Thursday, the former sports minister is yet to front the inquiry to explain the prime minister’s office’s role in the program and a series of late changes to the list of approved projects, made after she gave sign-off on 4 April 2019. The future of the program is in doubt because the Beechworth Lawn Tennis Club has threatened – but not begun – legal action against it on the basis Sports Australia, and not McKenzie, had the power to make grants. Academics including Anne Twomey have also warned the program is not constitutional because the commonwealth has no authority to give sports grants. But Rumble argued that any “doubt about the constitutional power” has now evaporated due to the “current economic crisis associated with the Covid-19 health crisis”. Rumble called on the Morrison government to fund projects that scored well but were not awarded grants, because “in the current economic crisis these projects are ideal candidates for stimulus support”. In a scathing report, the auditor-general found McKenzie’s office had run an assessment process separate to that conducted by Sports Australia, skewing $100m in grants to marginal and target seats. Twomey told Guardian Australia that in the Pape case the high court had previously upheld the constitutional validity of “short-term fiscal measures” to combat the global financial crisis. But she said the sports grant legislation “was not enacted as a short-term fiscal stimulus in response to a national emergency”. “It was general legislation which … may have been supported to a limited extent by the external affairs power … but could not constitutionally extend to things such as the resurfacing of a local football oval.” Twomey argued that although the Covid-19 pandemic and risk of recession does not affect the validity of the existing legislation allowing Sports Australia to make grants, the parliament could enact new legislation for sports grants as part of a stimulus package. “But it could also be argued that giving sports grants to local clubs is not something that is peculiarly within the capacity or resources of the commonwealth.” In its submission, the ACT noted that where it was the relevant landowner, applicants “required evidence of consent or support” from the territory, but some ultimately successful applicants were “awarded funding for works to territory facilities where consent was not requested or provided”. “In one such example where the landowner (the territory) was not consulted by the applicant, the project could not be supported due to the impact on other tenants in a shared facility and limitations to disability access.” The ACT government said it had warned Sport Australia, “yet the project was awarded funding”. According to program guidelines, a landowner consent form was mandatory for projects seeking funding of between $200,000 and $500,000, but optional for those seeking less than $200,000. The ACT government also argued the “limited timeframe” had resulted in some insufficiently scoped or costed applications, with organisations now seeking to revise the project scope or asking the ACT to top-up a funding shortfall. In January Scott Morrison suggested unsuccessful clubs may yet receive funding. The sport minister, Richard Colbeck, said “any future investment in community sport infrastructure will be considered as part of the budget process”. |