It’s a Sports Rorts whitewash. Scott Morrison’s former chief-of-staff and top bureaucrat Philip Gaetjens fortuitously found “no evidence” of pork barrelling by Senator Bridget McKenzie. Rex Patrick on how disappearing documents and political double-speak converged for an artful cover-up.
Very few people knew about prime minister Scott Morrison’s ‘Governance Committee of Cabinet’. It was almost as secret as his multiple ministerial appointments.
Its role was stated to “provide advice and oversight of governance and integrity issues, which include, but are not limited to, the Statement of Ministerial Standards and issues arising from the Lobbyist Code”.
The reality was, it was a committee of the federal cabinet set up to bury all of the Morrison government’s dirty little secrets. The committee was made up of Morrison, deputy prime minister Barnaby Joyce, treasurer Josh Frydenberg and the attorney-general and minister for industrial relations Michaelia Cash.
When a controversy arose, Morrison would get the Secretary of Prime Minister and Cabinet (PM&C), Philip Gaetjens, to write up a report and have it sent to the Governance Committee where cabinet rules would assure the report would remain under lock and key in the National Archives for decades.
Publicly, the prime minister could then declare that the matter had been properly dealt with … an inquiry held, due process observed; move along, nothing to see here.
The committee was itself an abuse of cabinet conventions.
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 Community Support and Infrastructure Grants (CSIG) program was spawned by the publication of an image showing the Liberal candidate for Mayo, Georgina Downer, presenting a mock cheque featuring her image and Liberal Party branding, to the Yankalilla Bowling Club.
The shadow attorney-general, Mark Dreyfus, KC, requested the Auditor-General investigate the circumstances surrounding the grant and photo opportunity.
McKenzie has a Barry
On January 15, 2020, the Auditor-General 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 Morrison to initiate damage control.
On January 17, 2020, Morrison wrote the then Secretary of Prime Minister & Cabinet (PM&C), Philip Gaetjens, asking him to advise on any “apparent” breaches by McKenzie of ministerial standards.
Gaetjens formed a small team to write the review. He finished the report on February 1, 2020 and sent it to the Governance Committee for a ceremonial burial.
Presto, a whitewash
What the government didn’t count on was a transparency warrior taking on PM&C and, using errors caused by their own haste, getting the report released under Freedom of Information (FOI) laws yesterday evening.
In October, the FOI Commissioner ordered its release.
Prime Minister’s department ordered to come clean on Sports Rorts cover-up
The 13-page report, released in full, but without attachments is a whitewash.
Yes, it does make a finding that the Senator McKenzie had a conflict of interest in being a member of the Wangaratta Clay Target Club while approving a grant for her club, but that finding was necessary, some finding was necessary, to create the impression the report wasn’t a whitewash.
Bear in mind that half the grant recommendations made by Sport Australia were ignored while the senator’s “ministerial discretion” and the Coalition’s politically motivated colour-coded spreadsheets had informed which applicants got the grants. They appeared skewed so as to favour marginal electorates, win votes that is.
It allowed the Governance Committee of Cabinet to determine a minor breach of the Statement of Ministerial Standards by McKenzie had occurred, to facilitate her temporary resignation from the government’s front bench so that the story would be lost in a past news cycle and the government could move on without media distractions.
Good cop, bad cop
The report plays out like a ‘good cop – bad cop’ police interrogation, except Gaetjens plays both parts.
Wearing his good cop hat, he states the following:
My advice only relates to apparent breaches of the [Statement of Ministerial] Standards. It does not cover the matter of whether or not the Minister had legal authority to provide final approval for eligible applications. I note you have sought advice from the Attorney-General [Christian Porter] on this legal matter.
Bad cop Gaetjens then somehow concludes with legal conviction:
Having considered the findings of the Australian National Audit Office (ANAO) Report into the Community Sport Infrastructure Grant Program (the Program), and information gained through my subsequent inquiries, I conclude that, in exercising her role as decision maker for the Program, Senator McKenzie acted within the remit of the Community Sport Infrastructure Grant Program: Program Guidelines (August 2018).
If, but, could, would be
Good cop Gaetjens carefully examines the issue of fairness and transparency:
I cannot reconcile such large variations in the final approval results compared to recommendations based on the published assessment criteria with the Minister’s view that the published assessment criteria were the “key decision factor”. I find that other factors had a material impact on the Minister’s final approvals being different from Sport Australia’s own recommendations.
It could be argued that the selection criteria against which applications were assessed would be the dominant deciding factor in approvals, with other factors being made transparent and published or made known with respect to further rounds of the Program. On this interpretation, questions could arise around procedural fairness, but the guidelines did not require publication of reasons for approval.
The lack of transparency in the process, with no consultation, revisions to the published Guidelines, or any indication that distributional impacts would be taken into account, provided no line-of sight to or for the members of the community applying for the grants. This was in part a result of the clear disconnect throughout the period of the Program between the assessment process undertaken by Sport Australia and the Minister’s final approval process.
Those submitting grant funding applications had, in my view, a right to more fully understand the basis on which the funding decisions were being made. As the ANAO observed, Sport Australia “was unable to communicate the full and actual reasons for the rejection of their application, or otherwise provide those applicants with advice on the reasons for their application being unsuccessful”. Future grant program guidelines should take this into account.
And then this:
Two additional factors that relate to the reference to good decision making in the fairness section of the Standards are the systematic application of the additional actors and the maintenance of appropriate records. In response to my question “Did your office weight its assessment criteria to ensure a systematic approach and unbiased outcomes?”, the Minister replied she “…was satisfied that a systematic approach was used to ensure there was fairness in awarding grants across state, sport type and funding stream”. In the absence of any records, there is no evidence to support that they were applied systematically.
When no evidence is the best evidence
And on the ‘absence of any records’ and ‘no evidence’ statement, good cop Gaetjens drops this, perhaps deliberate, poor administrative process bombshell:
With respect to record keeping, I note that the Minister acknowledges that because Sport Australia is not subject to the Commonwealth Grant Rules and Guidelines (CGRG)”… there is no requirement for ministerial decisions to be documented in the way we would normally expect of a department.” And while “…working documents were authored by ministerial office staff to support decision making and to ensure fairness in grant distribution across sports, states electorates and funding streams…records not required to be kept were destroyed.”
Where the Minister was the final approver and approvals departed materially from official recommendations (whether or not they were delivered to the Minister and her office), I am concerned there is no evidence of the reasons that supported the Minister’s final approvals.
‘Significant shortcomings in the process’
Good cop Gaetjens then goes to his findings:
I find there were significant shortcomings in the process undertaken by the Minister and her office that give rise to issues around the fairness and probity of that process …
One might have thought that this damning statement might be have been given some weight, except then bad cop Gaetjens weighs in with his counter findings:
Further, while I consider that an additional (undisclosed) process was conducted within the Minister’s Office, I do not find evidence that this process was unduly influenced by reference to ‘marginal’ or ‘targeted’ electorates.
Of course, he couldn’t find evidence, because it had been destroyed. But that didn’t stop Gaetjens’ doppelganger finding further:
After careful analysis I can find no basis for the suggestion that political considerations were the primary determining factor in the Minister’s decision to approve the grants …
Look, the Auditor-General!
I do not find evidence that this process was unduly influenced by reference to ‘marginal’ or ‘targeted’ electorates. The ANAO Report places very significant import on a spreadsheet prepared in November 2018 which identified ‘marginal’ and ‘targeted’ electorates, as well as an associated briefing note. The Report goes on at 4.24 to suggest that this was the basis of the Minister’s process. I do not find evidence of this.
Thankfully, because the evidence in the Minister’s office was destroyed … bad cop could conclude all was well. And interviewing the Minister’s staff didn’t seem to cross Mr Gaetjens’ mind.
In his summary, bad cop wrote this:
The Australian National Audit Office Report into the Community Sport Infrastructure Grant Program and information gained through my subsequent inquiries, I conclude that, in exercising her role as decision maker for the Program, Senator McKenzie acted within the remit of the Community Sport Infrastructure Grant Program: Program Guidelines (August 2018).
I note in particular Section 8.1 of those Guidelines which give the Minister “final approval” rights, and specify that “other factors may be considered when deciding which projects to fund”. This Ministerial discretion is not constrained by the Guidelines.
I also note Senator McKenzie’s advice that her decisions were intended to ensure a fair spread of grants according to state, region, party, funding stream and sport, in addition to the criteria assessed by the Australian Sports Commission (Sport Australia), and that the data available to me supports this advice.
Finally, I note that I found no evidence that the outcomes of the Minister’s decisions were biased towards marginal or targeted seats.
Lack of evidence had saved the day.
The full report can be found here:
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Open in new tab It’s a most interesting report for those interested in the fine art of cover-ups. Gaetjens was good at it. That his lack of independence from Scott Morrison (having been elevated to the top public servant role from Morrison’s chief of staff) has been scrutinised throughout wasn’t to be a worry because the document was never meant to surface until the early 2040s, when perhaps it could be buried further by the distraction of the arrival ceremony for the first of our US built nuclear-powered submarine.
The dog ate my legal advice
Noting process evidence was destroyed, maybe it’s appropriate to turn to the advice given by Cash’s predecessor as attorney-general, Christian Porter, on whether or not the minister had legal authority to provide final approval for the Sports Rorts grants.
The good news is that this advice is subject to two Freedom of Information requests that are with the Information Commissioner now. One is to Porter’s office, but sadly his office has advised the FOI Commissioner that that particular formal Commonwealth Record has disappeared.
No worries, because the other FOI request is to PM&C because the advice went to Cabinet, and so will be safety in their care and custody, right? Wrong! PM&C have lost it. That’s the PM&C that Gaetjens headed.
I guess it’s a case of ‘‘mission accomplished’’.
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.