The Department of Prime Minister and Cabinet has been ordered to hand over the Gaetjens Report into the Sports Rorts Affair after a two and a half year fight by Rex Patrick against fake Cabinet confidentiality. Rex Patrick reports.
After a two-and-a-half-year Freedom of Information (FOI) battle with the Department of Prime Minister and Cabinet (PM&C), the Department has been ordered by FOI Commissioner, Leo Hardiman PSM KC, to hand over the Gaetjens Review into the administration of the Community Sports Infrastructure Grant (CSIG) Program, better known as the Gaetjens ‘Sports Rorts’ Review.
It’s a very important decision for two reasons. It provides transparency around the whole ‘Sports Rorts’ saga and also sets a precedent that will help prevent future improper Cabinet confidentiality claims by ministers and officials.
Sports Rorts
‘Sports Rorts’ was a scandal that rocked the Morrison Government in early 2020.
In February 2019 public concern about the award of grant funding under the CSIG program was spawned by the publication of an image showing Liberal candidate for Mayo, Georgina Downer, presenting a ‘mock’ cheque featuring her image and Liberal Party branding, to the Yankalilla Bowling Club.
Georgina Downer (left)
The Shadow Attorney-General, Mark Dreyfus KC, requested that the Auditor-General investigate the circumstances surrounding the grant and photo opportunity.
On 15 January 2020 the Auditor released his report into the CSIG Program revealing more than half of the grants awarded under the program, weeks out from the 2019 election, had not been initially recommended by Sport Australia, rather by reference to a colour coded spreadsheet showing Labor and Liberal electorates. Senator Bridget McKenzie had used her ministerial discretion to favour marginal or targeted electorates in the allocation of the grants.
The Auditor’s report generated extensive media coverage and pressure on the Government. It only took a couple of days for Prime Minister Scott Morrison to initiate damage control.
On 17 January 2020 he wrote the then Secretary of PM&C, Philip Gaetjens, asking him to advise on any “apparent” breaches by McKenzie of ministerial standards.
Gaetjens, Morrison’s personal fix-it man, formed up a small team to write the review.
On 31 January 2020 the review was concluded and Gaetjens wrote back to Morrison providing him the report. Gaetjens indicated that the report was developed on the understanding that the “advice is being sought for the consideration of the Governance Committee of Cabinet.” (This post-facto claim was important in the decision to order the Review’s release, as shall be explained below).
The dirty little secrets committee
The Governance Committee of Cabinet was Morrisons dirty little secrets committee, a committee which dealt with any controversy around his Ministers (such as when Christopher Pyne left his role as Minister for Defence to immediately offer consultancy services to Defence companies), knowing that Cabinet confidentially rules would bury the issue for 20 years. The Committee itself was an abuse of Cabinet conventions.
On 2 February 2020 the Governance Committee met. Later that day Senator McKenzie resigned as deputy leader of the Nationals and from her ministerial portfolio. The Gaetjen’s Review found she’d breached ministerial standards by not declaring her membership of one of the clubs which had received funding under the program.
As far as Morrison was concerned, that was the end of the matter. He’d dealt with a major pork barrelling scandal by calling out a minor ministerial indiscretion. He did so confident the truth would not come out for decades.
On 3 February 2020 I applied under Freedom of Information laws for access to the Gaetjens Review.
Cormann and Senate investigation
On 5 February 2020 the Senate stood up a Select Committee to investigate the CSIG program. The Government frustrated the Committee with Cabinet confidentiality claims over information critical for the Senate Committee to conduct its inquiry.
On 11 February 2020 I lodged a notice of motion signed by all non-government parties that was to order that Senator Mathias Cormann was not permitted to answer questions at question time (another Minister would have to answer them), attend Senate Estimates or sit at the table in the centre of the Senate, rather on the front bench instead, until such time as the Gaetjens’ Review was handed over.
Cormann spent the next 24 hours trying get someone to flip in their support for the motion. On 12 February 2020 Senator Pauline Hanson did exactly that and, in a huge loss for Government accountability, the vote went down.
The Senate Inquiry concluded in March 2021, incomplete because of evidence withheld on false public interest immunity claims.
False Cabinet Claim
On 3 March 2020 I was formally denied access to the Review by PM&C in response to my FOI request. On 3 March 2020 I appealed the decision to the Office of the Australian Information Commissioner.
Two and half years later the FOI Commissioner has ruled that the document is not Cabinet confidential.
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In order to stop ministers and officials from wheeling politically sensitive or embarrassing documents through the Cabinet room on a coffee trolly and then classifying them as ‘Cabinet in Confidence’ the law requires that the documents’ dominant purpose at birth must have been for submission to Cabinet.
The FOI Commissioner wrote in his decision:
Having found that the Report was submitted to the Governance Committee, I must now consider whether the Report was brought into existence for the dominant purpose of submission for consideration by Cabinet.
The dominant purpose for which a document is brought into existence is a question of fact and must be determined objectively …
PM&C were relying on the post facto comments in Gaetjens’ 31 January 2020 letter to Morrison stating he understood the “advice is being sought for the consideration of the Governance Committee of Cabinet” and other statements well after the Review was completed.
PM&C were unable to provide any objective evidence that the Review was commissioned for Cabinet; no written instructions, no handwritten notes, no security metadata from the Cabinet IT system, CABNET, nothing!
I pleaded with the FOI Commissioner:
Particularly in circumstances where there are, properly, very formal obligations and processes associated with Cabinet documentation, there must be more information or evidence of some probative value to ground the claim, rather than a post facto statement.
It is not enough for the Prime Minister to simply state that he took a rolled-up document that was shoved in his trousers’ back pocket into the Cabinet Room to establish the document’s dominate purpose at birth.
The FOI Commissioner agreed, and in doing so has sent a very strong message to PM&C that if a document is to attract Cabinet confidentiality, there must be proper records made at the birth of the document to show it is intended for Cabinet. Sham claims, as were made for the Gaetjens’ Review, will not be entertained.
Public Interest Arguments
The FOI Commissioner did find that the documents were deliberative in nature, a proper FOI exemption claim that can cause a document to be kept under lock and key, provided its release would not be in the public interest.
Unsurprisingly, for a Department that has lost a lot of respect over the past few years, PM&C claimed it was not in the public interest to release the Review.
The Information Commissioner rejected this using very strong words that gives hope to those interested in transparency and accountability.
While I have considered the Department’s contention, having regard to the contents of the Report, it is unclear why its disclosure would not be in the public interest. Relevantly, the subject matter of the Report pertains to allegations of misconduct by the former Minister for Agriculture in her administration of public funds. As set out in the Ministerial Standards, Ministers are entrusted with considerable privilege and wide discretionary power and, in light of this, there is an expectation that Ministers will act with due regard for integrity, fairness, accountability, responsibility, and the public interest’.
I consider that there is a significant public interest in assisting members of the public to understand the content of the Government’s consideration of alleged misconduct by Ministers and the matters taken into account by the Government when responding to such allegations. In our Westminster system of Government, the executive is accountable to the people, albeit generally through the Parliament. There is an obvious public interest in disclosure of information which is pertinent to issues at the core of executive accountability (in this context, issues around ministerial conduct in relation to expenditure of public funds), and which is relevant to maintaining that accountability and improving public administration.
The public interest in disclosure of information contained in the Report is not lessened merely because the relevant minister has resigned or, indeed, because there has been a change of government. The Report relates to decisions made while the former Minister was in office, and where concerns have been raised regarding the integrity and fairness of those decisions.
The FOI Commissioner decided against the Department’s claims and has ordered the document be released. PM&C have 28 days to appeal the decision.
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Rex Patrick is a former Senator for South Australia and earlier a submariner in the armed forces. Best known as an anti-corruption and transparency crusader - www.transparencywarrior.com.au.