The Senate committee investigating the sports rorts has rejected sport minister Richard Colbeck’s claim for public interest immunity, and has accused the government of impeding on the inquiry through its “unwillingness to provide information”.
Colbeck’s claim had prevented Sport Australia from handing over key evidence to the inquiry into the administration of funding under the commonwealth’s controversial Community Sport Infrastructure Grant program, despite the entity having already agreed to do so.
In the audit report which sparked the inquiry, published in January, national auditor-general Grant Hehir said it was “not evident to the [audit office] what the legal authority was” for former sport minister Bridget McKenzie to approve grant funding.
Then in late February, Sport Australia chair John Wylie told the inquiry he “would be happy to provide” the legal opinion the entity obtained from a senior Queen’s Counsel about whether McKenzie had the power to approve funding. Sport Australia later told the inquiry it would provide the advice as long as it was kept confidential, to which the committee agreed.
Current sport minister Colbeck contacted the committee on July 16, claiming public interest immunity on the grounds that the release of the legal advice “could prejudice pending legal proceedings” initiated by an unsuccessful grant applicant.
The following day, Sport Australia advised the committee that the request for legal advice had already been addressed in a previous response to questions on notice, despite not having provided the advice.
In its interim report, tabled on Tuesday, the committee rejected Colbeck’s argument that “it has been a long standing practice of Australian governments over many decades, on both sides of politics not to disclose the fact or content of privileged legal advice”.
“The committee notes that legal professional privilege has not been accepted in the Senate as grounds for refusing to provide information or documents,” it wrote.
“Regarding prejudice to legal proceedings, the committee recognises that this may be an accepted ground for refusing to provide documents … However, the committee is not satisfied that the minister’s correspondence explains the specific harm to the public interest that would result.”
The committee has argued the legal advice is “vital evidence” for the inquiry, and has recommended the Senate demand for it to be handed over by Thursday morning.
Government actions ‘obstructed’ inquiry
The committee said its investigation has been “impeded by the government’s unwillingness to provide information”.
“This systemic lack of disclosure has materially obstructed the inquiry’s ability to properly scrutinise the governance of the program,” it wrote.
The committee noted the legal advice is “among several key pieces of evidence that the inquiry is yet to receive”, including evidence from McKenzie on how the final list of grant recipients in round three was changed without her knowledge or approval — while the government was in caretaker mode.
“Senator McKenzie has so far yet to accept an invitation to provide evidence before the committee,” the report said.
“The Senate and the Australian public have the right to know whether the minister had the legal authority to intervene in the awarding of the CSIG grants in 2018−19, which is now commonly referred as the ‘sports rorts’ affair.”
Questions raised about ‘ministerial interferences’
In regards to Wylie’s change of heart on providing the advice, the committee noted that in the past there have been instances of independent statutory officeholders — like Sport Australia — making public interest immunity claims that were then opposed by the minister.
“However, the committee has not been able to identify a case where the statutory officeholder has been willing to provide information, but the responsible minister has subsequently determined that the provision of this information is not in the public interest,” the committee said.
It noted that communication between Colbeck and Wylie about the public interest immunity claim was “sparse, if not non-existent”, and has raised “further questions about ministerial interferences in the program’s decision-making process” and administration.