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Cover-up over: Scott Morrison’s ‘Sports Rorts’ advice finally released

by Rex Patrick | Jan 26, 2025 | Government, Latest Posts

After an epic five year FOI battle that involved two court cases and >$400K of taxpayer-funded legal fees, Christian Porter’s ‘legal’ advice to Scott Morrison on Sports Rorts has finally been released. Rex Patrick reports on what it says and why the Government has surrendered in the transparency fight.

The battle has finally been won. The Department of Prime Minister and Cabinet has released Attorney-General Christian Porter’s advice to Prime Minister Scott Morrison on the legality of Sports Rorts. MWM has reported extensively on the fight.

Rex v the A-G: will Labor keep Liberal dirt under the carpet?

Winners and Losers

The fight has produced winners and losers.

Morrison was the big winner. Without revealing its contents, he was able to use Porter’s letter to legitimise Senator McKenzie’s ‘Sports Rorts’ conduct and defuse the ‘Sports Rorts’ scandal, and the long drawn out FOI fight would ensure that the advice would not be seen until he had left Parliament.

Porter ends up a loser. As described below, his advice is erroneous and will be used by others to assess his legal competence as he engages in his post-parliamentary legal practice.

Current Labor Attorney-General Mark Dreyfus has lost what little credibility he had a ‘champion for transparency’ when he took up, and lost, the fight for the right of ministers to shred official documents when they leave office.

The same goes for the Australian Government Solicitor’s Office, which had to walk into the Federal Court with its tail between its legs in the middle of a legal fight where the government claimed to no longer be in possession of the Porter’s advice, to confess one of their lawyers had a copy of the letter in his possession all along.

I walk away a winner, having successfully finished a transparency fight that I started in the public interest. But that victory would not have happened without barristers Stephen McDonald SC (now a Federal Court justice), Brendan Lim and Dr Amanda Sapienza and both Maurice Blackburn’s social justice legal team and the Grata Fund.

Regrettably, the public is also a big loser, with the taxpayer-funded legal fees exceeding $400K.  

But the public share my win on finally seeing the document, but perhaps more importantly from the Full Federal Court’s decision that ministers don’t own their documents, we do, and they are not permitted to shred them.

That’s indeed a pretty important precedent that supports democratic accountability and the integrity of government.  

The political fix

When a Prime Minister wants legal advice, he or she goes to the Solicitor-General. When a Prime Minister wants a political fix, he or she goes to the Attorney-General. This Porter letter is absolute proof of this.

At the time of the Sports Rorts scandal, Morrison needed a counter to an Auditor-General’s report that stated that Sports Minister Bridget McKenzie had acted without legislated authority to direct the Sports Commission in awarding grants.  

Auditor-General's findings (FOI)

Auditor-General’s findings

Auditor-General’s findings

If she had acted within the statutory framework of the Australian Sports Commission Act, she would have had to first consult with the Commission’s chief executive and then publish and table her directions in Parliament. She didn’t want that sort of scrutiny for what were very obviously partisan political decisions.  

Porter gave Morrison the ‘fix’ in his letter by insisting that a minister didn’t have to rely on statutory powers to direct the operation of a government agency.

In Porter’s view, ministers should be free to intervene politically in the work of statutory agencies, regardless of any legislated authority to do so. 

For the first time, Porter’s letter can be found here: 

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Constitutional law professor Anne Twomey has now read Porter’s letter and advised MWM she stands by the submission she provided to the Senate’s ‘Sports Rorts’ 2020 inquiry.

“The Australian Sports Commission was created as an independent corporate entity.  It is not a government department created under s 64 of the Constitution. Its existence, functions and powers are determined by legislation. Its relationship with the Minister is also determined by legislation  …

“The Australian Sports Commission Act is explicit about the Minister’s powers …

“Section 11 gives the Minister power to direct the Commission with respect to the ‘policies and practices to be followed by the Commission in the performance of its functions and the exercise of its powers’. It does not permit the Minister to exercise those powers. It only permits her to direct the Commission in its exercise of them.  Further, any such direction must be in writing, published in the Government Gazette and tabled in Parliament. No such direction was ever made.

“This provision is manifestly directed at transparency and accountability in its exercise and evinces the absence of any general or informal power to direct the Commission. There would be no point in requiring that the Minister’s directions be gazetted and tabled if the Minister had an unwritten parallel power to direct the Commission that avoided tabling and gazettal.”

Professor Twomey’s full views can be found here

Porter was wrong. Senator McKenzie acted beyond power.

Surrender by the Albanese Government

The question must be asked, Why did the Albanese Government belatedly give up a letter that was clearly legal advice?

Lost and found. Porter’s missing ‘Sportsrorts’ advice reappears. What’s the scam?

The answer to this question is political in nature and twofold.

The first reason is … there’s an election coming!

The Albanese Government has already taken a transparency dent with its unsuccessful fight to try to preserve the right of ministers to shred documents. Having been twice defeated in the Federal Court, they’ve lost their appetite for a further highly publicised fight to keep a scandalised document secret.

The second reason is … the Attorney-General doesn’t want a loss of status put on the record.

It might come as a surprise to some, but the Attorney-General has no constitutional or statutory role as government legal adviser. He’s been divested of the responsibility for giving legal advice under various Acts that allocate the legal work of the Commonwealth to the Solicitor-General, the Australian Government Solicitor, the Office of Parliamentary Counsel and the Director of Public Prosecutions.

The Attorney-General has no statutory responsibility for the giving of legal advice. Indeed, there’s no requirement in the Australian Constitution or Federal legislation for the Attorney-General to be a lawyer.

Senator Katy Gallagher, who has no legal degree, was sworn into the role of Attorney-General as part of an interim five-person ministry for nine days until the full Albanese ministry was commissioned.

An extract from Rex Patrick’s legal submissions

An extract from Rex Patrick’s legal submissions

Significantly, the Attorney-General lacks the legal independence to formally give advice.  The Attorney is a member of the party of the government and, indeed, the Cabinet to which they purportedly give advice.

In circumstances where the Cabinet does not agree with or accept the Attorney-General’s legal advice, the collective responsibility of the Cabinet would cause the Attorney, as a Minister, to have to abandon public support for his own advice.

The Attorney-General’s fortunes are totally at the pleasure of the Prime Minister to whom the Attorney gives the advice. As a political appointee, the Attorney cannot bring a disinterested mind to the task of providing legal advice to the Prime Minister and Cabinet.

Rather, it will be affected by personal loyalties to the Prime Minister, the Cabinet and his party.

The Australian Government Solicitor was aware of the fight I wanted to have to formally strip the Attorney-General of his purported legal advisor role. That’s not a precedent they want sitting on the public record. That’s why they rolled over and surrendered Porter’s advice without a further battle.

A repugnant saga

This whole repugnant saga, executed across both Liberal and Labor governments, has been an improper attack on the transparency and accountability of Government and a disgraceful waste of taxpayer’s money. 

While the advice has now been released, it’s historical information that can’t be used to hold a current government to account.

That’s what both major parties like. It’s been a five-year legal battle that’s revealed very clearly their underlying opposition to transparency and their unity ticket on avoiding accountability.  

Rex Patrick

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, Rex is running for the Senate on the Lambie Network ticket next year - www.transparencywarrior.com.au.

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