If the exposé about the government's use of $100m of Commonwealth sporting grants to sandbag marginal seats demonstrates one thing, it is that we should not always assume that a government decision is correct, simply because it has been made with all the power and resources of the government behind it.

Not all improper decision making is so politically scandalous. But many 'decisions' are made, affecting public and commercial interests, which may be challenged as not being 'decisions' at all. The sporting grant decision making shows how.

The decisions

Sports Australia was established by a Commonwealth law to hand out sporting grants. It is deliberately independent of the regular organs of government but unlike a private company can only act in accordance with the Cth law which expressly created it.

If Sports Australia decided to award a grant to a local netball club, that decision could be reviewed by someone else affected by it; eg. the neighbouring football club that missed out.

A review could find that the decision was not properly made because, hypothetically, Sports Australia should have considered the impact of the decision on the football club but didn't. The decision will be quashed or overturned.

That's not quite what happened in the real world here. The Minister for Sport told Sports Australia to give $100m of grants to particular groups chosen by the Minister (and rejected applications by others), many of which just happened to be in key seats.

What was wrong with it?

Under administrative law, there are 3 major problems with this;

  1. Sports Australia was required by its founding law to administer the grants. In blindly acceding to the Minister's demands, it was acting as a bank account rather than administrator of the grant scheme.
  2. The Minister was allowed to give 'directions' to Sports Australia. That's not what she did. She effectively stepped into their shoes. This undermines the whole purpose of an independent statutory authority – which is created by Parliament not by the Minister.
  3. What this means is that it does not appear that a lawful decision to pay a grant was actually made by Sports Australia or the Minister – putting any payment sent out by Sports Australia at risk.

Each of these issues may ground a claim by an unsuccessful applicant for judicial review of the "decisions", potentially undermining the validity of the grants that were made and forcing a re-do of the process. Wouldn't that be fun?

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