James Cook University Law Review
|
|
Home
| Databases
| WorldLII
| Search
| Feedback
James Cook University Law Review |
|
The Sports Grants Scandal: Constitutional Protection of Socioeconomic Rights as a Remedy for Pork-Barrelling
Bede Harris[1]*
Abstract
Pork-barrelling, defined as the allocation of public resources for the purpose of securing political advantage, is rampant in Australia. Inquiries by the Australian National Audit Office have revealed that funds from numerous grants programmes have been abused in this way. The most prominent recent occurrence was the scandal that occurred following the revelation that the Coalition government led by Prime Minister Scott Morrison had engaged in blatant pork-barrelling in the allocation of funds from the Community Sports Infrastructure Grant programme. This article discusses the phenomenon of pork-barrelling in Australia and the inadequacy of legal remedies to prevent it. It then examines how constitutional protection of socioeconomic rights could provide an avenue for the suppression of pork-barrelling by showing how courts in South Africa have interpreted socioeconomic rights provisions in that country’s Constitution in such a way as to require that government funding spent in fulfilment of socioeconomic programmes be allocated in accordance with a standard of reasonableness. The courts have also created novel remedies which require the executive to revise the way in which it distributes funds within programmes in cases where the standard has been breached. If socioeconomic rights were protected in the Commonwealth Constitution, and grant applications which had been denied funding as a result of pork-barrelling but which would have been successful had the criterion of reasonableness been complied with, courts could mandate that the state adjust its distribution of funds so as to ensure that all applications that met objective criteria were funded. The availability of this remedy would constitute a powerful disincentive against governments using public funds for political purposes.
I Introduction
In the months before the 2019 federal election, the government of then Prime Minister Scott Morrison faced public criticism over the manner in which funds had been allocated to sporting bodies that had applied for grants under the Community Sport Infrastructure Grant (CSIG) programme. The controversy, which came to be referred to as the sports grants scandal, was not the first instance where Australian governments had engaged in pork-barrelling – that is, the allocation of allocated funds in accordance with party-political advantage instead of on the basis of objective criteria such as community benefit and value for money. However, the factors that set this instance apart from others was its temporal proximity to an election and the brazenness with which it was conducted.
Part II discusses the concept of pork-barrelling and its incidence in Australia. Part III relates the history of the sports grants scandal as a particular example of pork-barrelling, including both the manner in which grants were allocated and the findings of inquiries by the Australian National Audit Office, by the Office of Prime Minister and Cabinet and by the Senate Select Committee on Administration of Sports Grants. Part IV discusses what remedies are currently available in cases of pork-barrelling, their scope and their limitations. Part V examines the concept of socioeconomic rights and the support for their protection voiced in submissions to the National Human Rights Consultation in 2008. This part also examines way in which socioeconomic rights are upheld under the South African Constitution, and the remedies developed by the courts to ensure that the state acts reasonably in distributing funding allocated to programmes falling within the ambit of socioeconomic rights. In Part VI the discussion reverts to Australia and explains how judicial review under a bill of rights in which socioeconomic rights were protected could provide a mechanism for the suppression of pork-barrelling by providing a remedy for unsuccessful applicants who could demonstrate that while they met the threshold of eligibility for funding, their applications were unsuccessful because funds had been awarded other than in accordance with rational criteria. The article concludes in Part VII by arguing that constitutional recognition of socioeconomic rights would provide a mechanism whereby executive decisions on the allocation of funds could be reviewed on the basis of reasonableness.
II What is Pork-Barrelling?
The term ‘pork-barrelling’ originated in the United States in the 1860s as a metaphor for the distribution of largesse to voters, and is now used to refer to the allocation of public funds in order to further partisan political interests rather than for the benefit of the public as a whole.[1] Although promises made during election campaigns to spend money on projects in particular electorates are commonly referred to as pork-barrelling, it is important to distinguish between a promise to spend money in a manner designed to secure political advantage from the act of doing so in contravention of the obligation resting on a government to act for the benefit of the public as a whole.
Pork-barrelling is a common phenomenon of both Commonwealth and state politics. Recent examples include the allocation of grants under the Commonwealth Government’s Urban Congestion Fund,[2] the Safer Communities Fund,[3] the Building Better Regions Fund[4] and the Community Health and Hospitals programme,[5] which were the subject of adverse reports by the Australian National Audit Office.
The most notorious recent example of pork-barrelling took place in relation to the allocation of grants under the Community Sport Infrastructure Grant (‘CSIG’) programme in the months leading to the 2019 federal election. This article is confined to a discussion of that programme, although the conclusions drawn are applicable to any incidence of pork-barrelling.
III A History of the Sports Grants Scandal
A Origins of the Controversy
The CSIG programme was one of three grants programmes that the Commonwealth government established for the purpose of fostering community participation in sport. The government provided a total of $102.5 million to the programme, allocated in three application rounds between 2018 and 2020. Of this, $100 million was awarded.[6] The programme was administered by the Australian Sports Commission (‘ASC’), which was usually (albeit informally) referred to during the relevant period as ‘Sport Australia,’ which is how it is referred to in this article. The ASC is a corporate entity charged with the task of receiving applications from community sports groups and recommending which of them should receive a grant. Its activities are regulated by the Australian Sports Commission Act 1989 (Cth).
Controversy over the way in which grants were allocated was sparked by press reports in February 2019 containing a photograph of Georgina Downer, a Liberal candidate in the election due to be held in May 2019, presenting a mock cheque bearing her name and the Liberal party logo to a community sports organisation that had been awarded a grant and which was located in the electorate for which she was standing. The picture was widely interpreted as conveying the meaning that Downer – and by extension the governing Liberal party – were claiming credit for the fact that the sports organisation had succeeded in obtaining the grant. The opposition Labor party asked the Australian National Audit Office (‘ANAO’) to investigate how the grants programme was being administered.
B The Report by the Australian National Audit Office
The ANAO presented its report to Parliament in January 2020. The report stated that in the first round of funding, Sport Australia had made grant recommendations consistent with the criteria against which CSIG applications were to be ranked, but that a parallel process had been conducted by the Minister for Sport, Bridget McKenzie, under which she had over-ridden the merit-based assessments by Sport Australia and had instead ordered that grants be awarded in accordance with assessments conducted by her office. These assessments were unsupported by any published criteria. In the case of the second and third rounds, Sport Australia played no role at all in determining which applications should be funded.[7] The report also stated that there was no evident legal authority that justified McKenzie’s intervention in the process.[8]
The report contained an analysis of grants that were awarded over all three stages which the ANAO said was indicative of a ‘distribution bias’[9] arising from the fact that the Minister’s office had awarded grants by applying political considerations.[10] A damning revelation was that in assessing applications her office had used a spreadsheet in which applications were colour-coded in such a way as to identify which party held the electorate from which each application came.[11] The spreadsheet was subsequently amended so indicate those seats which were marginal or which the Coalition has targeted to win in the 2019 election.[12]
Bias was also starkly revealed by the figures: In the first round, 41% of the $28.7 million awarded went to 47 marginal seats or seats being targeted by the government, which meant that, on average, each of these seats received $610 000. By contrast, the remaining 59% of funds was distributed among the other 103 non-marginal seats, giving an average of $164 000 per seat. Furthermore, taking all three rounds into consideration, 61% of grants were awarded to 417 projects which fell below the threshold set by Sport Australia as being deserving of funding.[13] Conversely, 125 projects whose score exceeded the threshold received no funding.[14] An analysis by Leigh and McAllister revealed that on average a marginal electorate was likely to receive $244 900 more in funding than a very safe electorate.[15] In other words, funds were allocated to projects that were, on an objective basis, not deserving of funding, but which were located in seats that the government needed either to retain or win in order to stay in office, whereas funds were denied to other projects which would have been funded had money been allocated on the basis of merit but which were not located in politically important electorates.[16]
C The Report by the Department of Prime Minister and Cabinet
Prime Minister Scott Morrison refused to accept the conclusions reached by the ANAO and commissioned an internal review by Phil Gaetjens, secretary to the Department of Prime Minister and Cabinet (‘DPMC’), to investigate whether McKenzie had breached ministerial standards. Significantly, Gaetjens was not asked to determine whether McKenzie had had legal authority to intervene in the administration of the programme or to investigate the process by which she had made decisions. Gaetjens’ appointment was criticised on the ground of his obvious lack of independence given his position in the DPMC.[17] A number of revelations additional to what had been discovered in the ANAO report emerged in the press prior to the end of the Gaetjens investigation. These included that McKenzie had approved grant applications that had been lodged after the closing date for applications[18] and that among the grants awarded was one to a shooting club of which she herself was a member.[19]
Gaetjens presented his report in February 2020. The government published a summary of the report while refusing to release the report itself. The summary stated that McKenzie had not breached ministerial standards of fairness in her distribution of grants but had done so in relation to her having a conflict of interest in so far as approval of the grant to the shooting club was concerned.[20] Gaetjens stated that there were shortcomings in the process by which the CSIG had been administered and expressed concern at the divergence between the recommendations by Sport Australia and the Minister’s decisions, but said that there was no evidence that grants were awarded on a political basis,[21] only that it was not evident as to why McKenzie had departed from the recommendations. Gaetjens accepted at face value McKenzie’s evidence that she had not seen the colour-coded spreadsheet that had been sent to her office.
McKenzie subsequently resigned, Morrison announcing that this was because of her approval of the grant to the shooting club, not her administration of the CSIG as a whole.[22] Morrison and did not explain the contradictions between Gaetjens’ findings and those of the ANAO. McKenzie’s resignation over the shooting club grant was widely seen as a tactic designed to divert attention from the far greater problem of the corruption inherent in the way in which the entire programme had been administered.
D The Report of the Senate Select Committee on the Administration of Sports Grants
In February 2020 the Senate appointed a Select Committee on the Administration of Sports Grants to investigate the way in which the programme had been run. The Committee tabled its report in March 2021. The Committee’s inquiries were hampered by refusals by Sport Australia and by government ministers to provide various documents requested by the Committee.[23] The level of non-co-operation was evidenced by the fact that in an Appendix to its report, the Committee identified 20 documents to which it had been denied access.[24] These included legal advice which Sport Australia and various government ministers said they had obtained during the consideration of grant applications, as well as a full list of grant applications of which the Committee had been provided with only incomplete or redacted versions.
The report stated that it had received evidence that there was nothing in the Australian Sports Commission Act 1989 (Cth) which authorised the Minister to make grants decisions.[25] The Committee accepted the evidence of political bias that had been identified by the ANAO.[26] It also found that not only the Minister for Sport but also the Prime Minister had been involved in the determination of grant applications[27] despite the matter obviously not falling within the Prime Minister’s portfolio. The report stated that in the runup to the 2019 election, the involvement of the Prime Minister’s office in directing grants to marginal or contestable electorates was evidenced by the fact that his office requested that the announcement of grants be co-ordinated with the government’s campaign headquarters.[28] As the ANAO had done, the Committee drew attention to the fact that the original version of the grant applications had been amended so as to indicate which seats were either marginal or were ones which the Coalition had targeted to win.[29]
The Committee also learned that Sport Australia had received a final list of approved projects from McKenzie’s office after the calling of the 2019 general election – that is, after the government entered caretaker mode under which convention prohibits governments from making major policy decisions or decisions which are likely to be contentious.[30]
In its summation of its findings relating to political bias, the Committee stated that:[31]
The evidence examined by the committee clearly shows that the minister deviated from the merit-based assessment process adopted by Sport Australia’s program administrators and assessment panel. Given the minister has not been able to provide any credible or documented rationale for her decision making the committee can only conclude that she applied considerations that were politically motivated and inconsistent with the published guidelines.
Whilst the committee has been denied access to the unredacted versions of the colour-coded spreadsheets prepared by the minister’s office, enough evidence is available to assert that the colour-coded spreadsheets were developed using vastly different assessment criteria than those published in the guidelines. The committee is of the view that the parallel assessment undertaken by the minister’s office drew upon considerations of electorate status, and whether a project was in a marginal or targeted seat for the Liberal and National party election campaigns. In other words, the CSIG program was turned into a $100 million pre-election slush fund.
The Committee further held that the evidence showed that the Prime Minister and his office were intimately involved in and aware of decision-making and that many deserving applications failed because the applicants were not located in marginal or targeted electorates.[32]
E Attitudes and Responses to Pork-Barrelling
As we have seen, evidence presented to the ANAO and the Senate Select Committee revealed a high level of sophistication in the execution of the strategy of using public money for partisan benefit – not to mention the allocation of significant time and resources by the offices of both the Minister for Sport and the Prime Minister that should instead have been devoted to serving the interests of the public. Yet there were still voices that sought to justify the practice. Even after being confronted with the ANAO report, Prime Minister Scott Morrison proclaimed that no pork-barrelling had taken place[33] – which serves only to highlight the flagrancy in which pork-barrelling is engaged.
Of particular note in relation to pork-barrelling was the conduct of National Party MP Barnaby Joyce who, when serving as Minister for Agriculture, ordered the relocation of the Australian Pesticides and Veterinary Medicines Authority (‘APVMA’) from Canberra to his own electorate – a decision that was found to be unjustifiable when subject to a cost-benefit analysis which the government subsequently resisted releasing.[34]
Joyce’s attitude towards pork-barrelling was shown by his statement that if a federal anti-corruption commission was established, inquiries into the manner in which government grants were allocated should be excluded from its ambit of operation.[35] His justification for this was that the disadvantage in accessing services experienced by people living in regional and remote areas justified the disproportionate allocation of funding to them – an argument which ignores the fact that the criteria used in recommending grants distributions already take into account disadvantage deriving from remoteness. Indeed, in the case of the CSIG itself, the programme guidelines expressly mentioned the inadequacy of sporting facilities in regional areas as a matter to be remedied through the programme, and nominated educational institutions in remote areas as being a specific category of organisations eligible to apply for grants.[36] Furthermore, despite Joyce’s arguments about the needs of non-metropolitan areas, the ANAO found that in the case of funds allocated to Building Better Regions Fund by the government for the purpose of improving regional infrastructure, not only was there a bias in favour of government-held seats but 55% of the money was distributed to projects in major cities, while only 4% was distributed to remote parts of the country.[37]
Dale suggests that pork-barrelling is so pervasive that it is now seen as a normal part of politics in Australia.[38] This is most starkly illustrated in the case of New South Wales Premier, Gladys Berejiklian, who was investigated by the state Independent Commission Against Corruption (‘ICAC’) following allegations that she had allocated grants to projects in an electorate held by an MP with whom she was engaging in an undisclosed relationship. Her response to this was, ‘I don’t think it would be a surprise to anybody that we throw money at seats to keep them ... At the end of the day, whether we like it or not, that’s democracy.’[39]
Berejiklian resigned when it became apparent that the evidence against her was overwhelming, ultimately leading ICAC to find that she had engaged in serious corrupt conduct.[40] Alarmingly, Scott Morrison, who was Prime Minister at the time of the investigation, defended Berejiklian and condemned the Commission’s investigation,[41] while his successor as leader of the Liberal Party declared that Berejiklian was ‘a wonderful person’ and ‘not a corrupt person’ after the ICAC report was published.[42]
The deadening of public sensitivity to pork-barrelling poses the danger that its acceptance as a day-to-day part of political practice will ultimately lead to a belief that it is morally acceptable – in other words, that what is normalised becomes licensed. This in turn erodes public trust in government and an expectation that governments will act in their own political interests rather than those of the public they serve.[43] An example this is the fact that, given the wasted effort involved in developing grant applications which meet the objective threshold for success but which are denied because giving them confers no advantage on the government,[44] some potential grants applicants located in safe electorates take the view there is no point expending time and energy in applying for grants because a negative outcome is all but guaranteed.
What arguments by Joyce and others amount to is, in essence, the assertion of a right to be corrupt. Corruption in relation to sports may do no harm other than to induce a sense of injustice in the minds of the unsuccessful applicants, but what if, for example, the same thinking was adopted in relation to funding for kidney dialysis (an example which, as we shall see in Part V, was the subject of a case brought in vindication of the right to access health care in South Africa)? What if access to that service was determined not on the basis of medical priorities but rather in accordance with which electorates potential recipients lived in? How would unsuccessful patients and their families feel in such circumstances?
After the election of the Labor government the Joint Committee on Public Accounts and Audit conducted an inquiry into a range of grants programmes administered by the previous government. The committee found that the award of grants on a political basis was evident in the case of all of the programmes, but was particularly egregious in the case of the Urban Congestion Fund and the Regional Grants Fund, leading committee chair, Labor MP James Hill, to characterise the conduct of the previous government as ‘rorting on an industrial scale’[45] The committee made a range of recommendations relating to how the award of grants should be administered, including the amendment of the Commonwealth Grants Rules and Guidelines (discussed in Part IV below) so as to impose an obligation on decision-makers to adhere to the guidelines, to provide that a competitive merits-based approach be the default for the award of grants and to require that where a minister departed from an award recommendation by public servants or other agencies, the reason for that departure be made public.[46]
The new government also passed the National Anti-Corruption Commission Act 2022 (Cth). The National Anti-Corruption Commission (‘NACC’) is empowered to investigate corrupt conduct that is referred to it by any person,[47] provided that the alleged conduct passes the threshold of amounting to corruption that is ‘serious or systemic’.[48] The Commission is empowered to hold hearings,[49] to summons people[50] and to order the production of documents.[51] After concluding an investigation the Commission must table its report in Parliament.[52] It would be expected that, if a report discloses possible criminal conduct, the government would refer the matter to law-enforcement agencies.
‘Corrupt conduct’ is defined in s 8 of the Act as including conduct adversely affecting the honest or impartial exercise of public power, breach of public trust or abuse of office. When the legislation was at Bill stage, Attorney-General Mark Dreyfus stated that the NACC would have the power to investigate pork-barrelling.[53] On the face of it, pork-barrelling would fall within s 8, as it breaches the requirement of impartiality and involves both a breach of public trust and abuse of power.
However, both Labor and the Coalition united to defeat an amendment proposed by an independent MP that would have expressly stated that pork-barrelling lay within the Commission’s jurisdiction, the Attorney-General arguing that it was already captured within the concept of breach of public trust and could be investigated if it met the threshold of being ‘serious or systemic.’[54] Given that pork-barrelling was one of the issues that led to the establishment of the NACC, it would have been preferable had the Act made specific reference to it. How the Commission interprets the Act, and in particular the ‘serious or systemic’ requirement, will be determine whether the Commission is capable of suppressing pork-barrelling.
IV Legal Remedies
A number of academic writers have explored the question of what legal remedies are available where ministers have allocated public funds on the basis of political advantage rather than merit. In contrast to the states where there have been successful prosecutions for political corruption,[55] the fact that at Commonwealth level pork-barrelling has thus far been attended by no legal consequences for its perpetrators points to the inadequacy of such legal remedies as currently exist.
A Administrative Law
It might be thought that administrative law review would provide an obvious avenue for redress where pork-barrelling has resulted in meritorious grants applications failing while less meritorious applications have succeeded. Several grounds for review provided for in the Administrative Decisions (Judicial Review) Act 1977 (Cth) are relevant to pork-barrelling.
Section 5(1)(e) of the Act provides that a person may apply for review of a decision on the ground that the making of the decision amounted to an improper exercise of the power conferred by the enactment in pursuance of which it was purportedly made. Section 5(2) then lists circumstances in which an improper exercise of power will be considered to have taken place, including the taking into account of an irrelevant consideration (s 5(2)(a)), exercise of a power for purposes other than those for which it is conferred (s 5(2)(c)), exercise of a power which is so unreasonable that no reasonable person could have exercised the power in that way (s 5(2)(g)) and exercise of a power in any other way that constitutes an abuse of the power (s 5(2)(j)). In addition to review on the grounds of improper exercise of power, s 5(1)(a) states that a decision may be challenged on the grounds that natural justice was denied, which would include review on grounds of bias.
On the face of it, these grounds for review offer scope for a court to overturn decisions in which applicants were denied grants as a result of pork-barrelling. Since the essence of pork-barrelling is the taking of political factors into consideration when making decisions pertaining to the allocation of public resources, and since political factors are self-evidently an irrelevant consideration, a person who had been unsuccessful in obtaining a grant despite having met eligibility criteria could argue that the rejection of their application was unlawful under s 5(2)(a) and could also argue that the award of grants for political purposes rather than for the purposes for which the grants programme was established was unlawful under s 5(2)(c) and constituted an abuse of the power under s 5(2)(j). It could also be argued that such a decision was challengeable on grounds of unreasonableness under s 5(2)(g) because it departed from the criteria against which applications were assessed. Finally, it could be argued that such a decision involved a breach of natural justice and so is reviewable under s 5(1)(a) in that it was made as part of a scheme biased in favour of projects in electorates held by the government or marginal electorates that it hoped to win.
Assuming that a person seeking judicial review could prove that their application was ranked above the threshold objectively set in light of the programme criteria but was denied funding, what would be the likelihood of success? Although in light of the foregoing paragraphs one might think that an application for review would be successful, Ng points out that a court is likely to see the award of a grant as a policy decision by the executive and thus not something in which it is appropriate for the judiciary to intervene. The consequence of this is that, so long as the decision was lawful in the narrow sense, the decision-maker had authority to make it, and so it will not be disturbed by a court. As Ng states:[56]
[J]udicial review applications do not enable challenges solely on the basis of pork barrelling, that is, the biased apportionment of grant money to marginal electorates, as courts do not tend to question the merits of government decision-making on public policy matters. This is because the merits of decisions are seen to be the province of the executive and legislature, while the judiciary is confined to the legality of decisions...Therefore, there is no scope for courts to intervene in decisions to allocate grants on a partisan basis, as this would be an intrusion into the policy decisions of Ministers. Further, it is also not possible for judicial review on the ground of bias levied against the Minister seeking to allocate funding disproportionately to government-held or marginal electorates, as that would be seen to be a policy decision. At any rate, the bias rule in administrative law is set at a lower bar for Ministers compared to judges, and courts are less willing to impute a perception of bias on Ministers as decision-makers Thus, courts would tend not to question a decision by a Minister to allocate grant funding to one particular constituency and not another, as this would be seen to be a policy decision outside the remit of the courts.
In similar vein, Connolly takes the view that administrative law is unlikely to assist a disappointed applicant because courts are reluctant to interfere in governmental decisions relating to the allocation of resources.[57] Cane and McDonald argue that courts are ill-equipped to determine polycentric problems,[58] of which the allocation of grants, which requires consideration of multiple applications against multiple criteria, is an example.
A further shortcoming in relation to administrative law is that, even if a litigant was successful in proving that the rejection of a grant application was unlawful, the only remedy that a court would be able to give would be an order requiring the decision-maker to reconsider the application – it would not be able to order that the grant be awarded.[59]
The only case in which the CSIG programme was challenged on administrative law grounds was brought by the Beechworth Lawn Tennis Club which had been denied funding even though its merit-based score exceeded the threshold set by Sport Australia. The challenge was based on the arguments that the Minister had lacked legal authority to intervene in the determination of grants and that Sport Australia had acted under direction in awarding grants in accordance with the Minister’s instructions. However, the challenge was withdrawn after the club was granted alternative funding by the Victorian government. This was unfortunate in that it left undetermined whether the process used by the government had been unlawful.
The case is nevertheless instructive in that the plaintiff’s arguments, being based on the grounds of absence of legal authority and action under dictation, were specific to the facts of the case which, it will be recalled, involved Sport Australia acting awarding grants at the behest of the minister. Those grounds will be unavailable in usual cases where the decision-maker is authorised to make decisions and takes those decisions themselves. The fact that the plaintiff’s challenge in the tennis club cases did not include the grounds of bias or the taking into account of irrelevant considerations suggests that the plaintiff’s legal representatives, like the academic authorities discussed above, took the view that judicial review would not be granted on those grounds. This appears to confirm that administrative law does not provide as promising an avenue for remedying pork-barrelling as might have been thought.
B The Offence of Misconduct in Office
The common law has long recognised the offence of misconduct in office.[60] The elements of the offence as stated in R v Quach[61] are that the offence is committed when a person who holds public office wilfully misconducts himself without reasonable excuse and to a degree of sufficient seriousness to warrant criminal punishment.[62] The breadth with which these elements are stated means that range of factual circumstances in which the offence can be manifested is not closed. An offence can manifest itself in a variety of ways, including fraud in office, wilful neglect of duty, wilful misuse of official power (where an official uses official power in order to achieve an unauthorised objective).[63] Of particular relevance to pork-barrelling are cases where the office-holder acts from the improper motive of gaining an advantage for themselves or a third party or causing harm to others or to the public interest.[64]
As examples of what could constitute wilful misuse of official power, Hall cites an official displaying favouritism in the award of benefits or acting so as unlawfully to disadvantage a person. Misconduct in office would occur where a person uses his or her position in order to achieve a personal advantage for him or her-self or for a third party or in such a way as to subvert the public interest.[65] These types of conduct are inherent in pork-barrelling: The allocation of grants on a political basis amounts to favouritism to governing-party candidates in electorates that the government holds or hopes to win. The award of grants other than in accordance with merit causes disadvantage to grant applicants who would have been successful had grants been awarded on the basis of merit. The award of grants for political reasons self-evidently amounts to conduct designed to achieve an advantage for government candidates and is also contrary to public benefit, objectively determined.
At Commonwealth level, the common law offence has been superseded by s 142.2(1) of the Criminal Code Act 1995 (Cth) which prohibits the exercise of power with the intention of dishonestly obtaining a benefit for himself or herself or another person or of causing detriment to another person. The key hurdle that must be overcome in securing a conviction is proof that the accused exercised their power with the intention of achieving one of these improper purposes.[66] In the case of the Criminal Code Act 1995 (Cth) this element is captured by the requirements of intent and dishonesty contained in s 142.2(1)(b).
The issue of dishonest motive can be problematic. It was addressed in Porter v Magill,[67] a decision of the House of Lords in which Lord Bingham of Cornhill held that whereas it was legitimate for politicians to exercise public powers with the intention of earning voter support, that was subject to the condition that the powers were exercised for the purpose for which they had been conferred.[68] Thus he stated that:[69]
[P]ublic powers are conferred as if upon trust that those who exercise powers in a manner inconsistent with the public purpose for which the powers were conferred betray that trust and so misconduct themselves. This is an old and very important principle ...
Similarly, Lord Scott of Foscote stated:[70]
So, too, would be any misuse of municipal powers, intended for use in the general public interest but used instead for party political advantage. Who can doubt that the selective use of municipal powers in order to obtain party political advantage represents political corruption? Political corruption, if unchecked, engenders cynicism about elections, about politicians and their motives and damages the reputation of democratic government.
It may of course be that a politician takes decisions for mixed motives, some legitimate, others not. In Maitland v R[71] the New South Wales Court of Criminal Appeal applied what might be called a ‘but for’ test, holding that in such circumstances an accused can be convicted only if the prosecution proves that had the impermissible purpose not existed, the conduct would not have been engaged in.
In the case of the CSIG programme, it would seem that a prosecution for misconduct in office would have stood a reasonable chance of success, as evidence in the form of the colour-coded spreadsheet clearly indicated that power had been exercised for an improper purpose. Despite this no action was taken. In other cases, where such clear evidence of improper purpose as was provided by the spreadsheets does not exist, a successful prosecution, requiring as it does proof on the criminal standard, would be even more difficult to achieve. Unless there is a change in authority on the part of investigators and prosecutors at Commonwealth level, it seems unlikely that prosecutions for misconduct in office will be used as a tool for the suppression of pork-barrelling.
C Financial Control Legislation
Lastly, some mention must be made, even if to highlight their limited usefulness, of the controls over ministerial decision-making contained in two pieces of legislation – the Public Governance, Performance and Accountability Act 2013 (Cth) (the ‘PGPA Act’), and the Commonwealth Grants Rules and Guidelines 2017 (Cth) (the ‘CGRGs’) which were issued under the PGPA Act.
Section 71 of the PGPA Act prohibits a minister from making an expenditure unless they are satisfied that the expenditure would constitute a proper use of public moneys. Section 8 of the Act defines ‘proper’ as ‘efficient, effective, economical and ethical.’ It is difficult to see how the allocation of grants on the basis of perceived political advantage rather than objective merit could be seen as satisfying this requirement. Section 69 of the Act imposes liability on a minister to compensate the Commonwealth for loss it has suffered due to the minister’s misconduct or because of their serious or deliberate disregard of reasonable standards of care. The allocation of grants on a political basis certainly amounts to misconduct. Whether the Commonwealth could be said to have suffered a loss would depend on what findings the courts had reached on the lawfulness of the grants programme.
As discussed above, even if an unsuccessful applicant, or class of applicants, had successfully brought an action for judicial review, the order that a court would grant would be for the Commonwealth to reconsider those unsuccessful applications. It could not declare the entire process unlawful or invalidate all grants and compel those applicants who had been awarded grants, even though their applications had fallen below the threshold of merit, to return the grants (which they may in the interim have spent). Could it then be said that the Commonwealth had suffered a loss if it then had to pay grants to the unsuccessful but deserving applicants while not being able to recover from the successful underserving ones? Such an argument could be made, but its success is uncertain. Furthermore, the amounts of money involved would be beyond the resources of the malfeasant minister to pay. It therefore seems that s 69 does not provide a realistic deterrence. The only provision that would do so would be if the Act imposed a criminal penalty for expenditures in breach of s 71, but unfortunately such a sanction is absent from the Act.
The same is true of the CGRGs, issued under s 105C(1) of the PGPA Act. Paragraph 2.1 of the guidelines states that their purpose is to promote proper use of public resources. Paragraphs 11.5 and 13.10 state that grants should be allocated on the basis of a competitive, merit-based processes based on defined criteria, and that where such a process is not used the reasons therefor should be documented. Paragraphs 4.5 and 4.10(b) require that a person who approves grants must record in writing the basis for the approval relative to the grant criteria and whether the grant satisfies the requirement of value for money. As in the case of the PGPA Act it is clear that the allocation of money for partisan reasons would not satisfy the guidelines but the guidelines prescribe no penalty for non-compliance.
It is thus evident that, because of a lack of enforcement mechanisms, financial control legislation provides no impediment to pork-barrelling, despite the obvious incompatibility between pork-barrelling and the principles the legislation contains.
V Socioeconomic Rights and Their Enforcement
A Generations of Rights
Before discussing the relevance to pork-barrelling of the constitutional protection of socioeconomic rights, it is necessary to examine the distinction drawn between first, second and third generation rights so as to understand the way in which judicial review operates in respect of each of them.[72]
First generation rights, commonly referred to as civil and political rights, were the earliest type of right accorded constitutional protection. They were acknowledged in the 18th century in documents, such as the Bill of Rights in the United States and in the Declaration of the Rights of Man and of the Citizen promulgated during the French Revolution. In modern times they are reflected in the International Covenant on the Protection of Civil and Political Rights.[73] They include such traditional rights as the right to life, freedom of the person, the right to equality, the right to a fair trial, the right not to be subject to inhumane treatment, the right to vote, the right to privacy, freedom of religion, freedom of movement and freedom of expression. Such rights were said to impose essentially negative obligations on the state, in the sense that respect for them can be achieved by the state refraining from interfering with a person’s personal liberty, exercise of religion, free speech et cetera. Although that may be true as a general statement, it cannot be taken as absolute, because sometimes first generation rights do impose positive obligations on the state. For example, to be effective, the right to a fair trial requires that the state pay for legal representation for those who cannot afford it, while the right not to be subject to inhuman treatment requires that the state allocate sufficient resources to ensure minimum standards of care of prisoners.[74]
Second generation rights, commonly referred to as socioeconomic rights, were included in international human rights documents – most importantly in the International Covenant on Economic, Social and Cultural Rights[75] – from the 1960s at the instance of socialist and third-world countries, although they had been presaged by Franklin Roosevelt in his inclusion of ‘freedom from want’ in his formulation of fundamental rights in his State of the Union address in 1941,[76] and his reference to the need for a ‘second bill of rights,’ protecting socioeconomic rights, in 1944.[77] The principle underlying socioeconomic rights is that full respect for human dignity requires more than the protection of civil and political rights and must include the protection of rights to material wellbeing, such as rights to health, housing, education and welfare, without which the freedom to exercise first generation rights is illusory.
Third generation rights, often referred to as communal rights, received recognition in the second half of the 20th century. They include rights such as to a clean environment, to the preservation of cultural heritage and the rights of Indigenous people to self-determination. The feature which distinguishes them from first and second generation rights is that, in general, they protect the distinct communal interests of groups rather than individuals, although of course they also benefit the individuals which make up the groups.
B The National Human Rights Consultation’s Consideration of Socioeconomic Rights
In 2008 the Rudd government established the National Human Rights Consultation (‘NHRC’) to hold public consultations on the protection of human rights in Australia.[78] The terms of reference included a restriction that options canvassed by the committee ‘should preserve the sovereignty of the Parliament’ – in other words, should not suggest the inclusion in the Commonwealth Constitution of new rights which would restrict the legislative power of parliament. Anyone reading this clause – and in particular the word ‘preserve’ – without the benefit of knowing the Constitution would assume that the courts currently do not have the power to invalidate laws enacted by parliament and that therefore a recommendation to give them such a power would have amounted to a departure from current constitutional arrangements. Yet the courts have had that power since the Constitution came into force. The mandate given to the NHRC was therefore misleading because it suggested that the relationship between parliament and the courts was different from what it is in fact.
Hobbled as it was by its terms of reference, the NHRC ultimately recommended that the Commonwealth enact a Human Rights Act that would be similar to the type used in the ACT[79] and Victoria,[80] which list certain rights and require the courts to interpret legislation with those rights where that is possible – although the power of the courts in cases where legislation cannot be interpreted consistently with the Act is confined to issuing a declaration of incompatibility.
However the government decided not to adopt even this limited recommendation, and instead enacted the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth) which requires only that a Parliamentary Joint Committee on Human Rights examine legislation and report to both houses of Parliament on the compatibility of the legislation with the international human rights documents Australia has ratified, and that anyone introducing Acts to parliament or promulgating delegated legislation must similarly report to Parliament on its compatibility with those documents. The Act expressly states that a finding of incompatibility does not affect the validity of the legislation concerned.
Although the Consultation represented a missed opportunity to confer constitutional protection on human rights, the responses it obtained from members of the public are useful in that they indicate which matters pertaining to human rights were of particular concern to them. Of specific relevance to this article is the fact that although protection of second generation rights is usually seen as more radical than protection of civil and political rights, and might therefore be thought to have been unlikely to be favoured by respondents given the conservatism if Australian voters, a significant number of respondents to the Consultation expressed support for the inclusion of socioeconomic rights if human rights were given statutory protection.[81]
For example, one submission argued that such rights ‘protect the basic living conditions that are necessary in order for human beings to live a life of dignity and freedom,’[82] while another argued that socioeconomic rights ‘are the human rights that often have the greatest relevance and meaning for the community, particularly those most disadvantaged.’[83] The Law Council of Australia submitted that:[84]
Some of the most disturbing incidences of rights violations in Australia, such as the comparatively low life expectancy of Indigenous Australians and the growing homelessness epidemic, concern the denial of economic, social or cultural rights.
The results of a public survey commissioned by the Consultation showed that, taking the range of rights that might be protected, Australians tended to give priority to what were referred to as ‘survival’ rights. Their survey indicated that 96% of respondents considered the right to food, water and clothing an important or very important right, while 95% of respondents though the same in relation to health care.[85]
In light of this, it was unsurprising that the Consultation report found that the protection of socioeconomic rights was important to the community because the extent to which they are realised has a major impact on people’s everyday lives.[86] It follows from this that if Australia was ever to have a bill of rights, socioeconomic rights would be as important an inclusion as civil and political rights.
C Interpretation of Socioeconomic Rights Provisions – The Example of South Africa
The Bill of Rights contained in the South African Constitution protects a range of second[87] and third[88] generation rights, and cases interpreting the provisions containing these rights thus assist in understanding their effect.
In contrast to some (but not all) first generation rights, protection of second and third generation rights casts a positive obligation on the state to provide housing, education, water et cetera. But this means that their realisation is contingent on the state’s resources, which themselves depend on the economic condition of the country from time to time, on the diverse demands on government expenditure and on changing spending priorities and how these should be prioritised.
In the case of the South African Constitution, this reality is recognised by the fact that the obligations cast on the state by the socioeconomic rights provisions require that the state should ‘take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation’ of such rights. The effect of this is that these provisions do not confer an absolute right to the goods they guarantee, but rather a right relative to available resources.
In bringing a case in which a plaintiff alleges that the state has failed to discharge a positive duty resting on it by virtue of a socioeconomic right, the plaintiff bears the onus of making a prima facie case that the right has been infringed – in other words, of adducing evidence that the steps that the state has taken are unreasonable. The onus then shifts to the state to rebut that claim and to prove that the steps it has taken are reasonable.[89] A mere assertion by the state that it lacks funds is insufficient to discharge this onus[90] – the state must present budgetary evidence to show that such funds as have been allocated to a programme have been spent in such a way as to be consistent with the relevant socioeconomic right, and that even having done so, it is unable to satisfy the claims made against it in the instant case.
In deciding such cases, courts are mindful of the need to respect separation of powers while still discharging their responsibility to enforce the Constitution.[91] This means that the role of the courts is not to direct parliament which funds government or the executive which administers those funds as to how the budget should be drafted. Rather the role of the courts is to ensure that such funding as is allocated to programmes relating to matters covered by the socioeconomic rights provisions is spent in a manner that is reasonable in light of the obligations of the state to fulfil those rights.[92]
An explanation of the way in which the test of reasonableness is interpreted by the courts is provided by the seminal case of Government of the Republic of South Africa v Grootboom,[93] which concerned a claim to housing by people living under plastic sheeting in a field, who said that the failure of the state to provide them with shelter amounted to a breach of the right to housing in s 26(1). The Court held that the constitutional requirement to take ‘reasonable steps’ gave the government a degree of leeway: There might be a wide range of possible steps that could be taken and it was not for the Court to say which of these might be the best. So long as the steps that are taken were reasonable, the constitutional guarantee will have been complied with.
In determining what constitutes reasonable steps, the Court held that what is required is that such resources as are available must be allocated on a rational basis. In other words, a litigant who challenges the failure of the state to provide him or her with a resource will not necessarily succeed in having that resource allocated to him or her specifically, but will be able to ensure that such resources as there are will be allocated on in accordance with objective criteria and taking into account the circumstances of those having a claim on them.
In Grootboom, the Court found that the fact that the government had begun implementing a coherent national plan to provide housing amounted to such reasonable steps. However, the evidence also showed that the plan did not make reasonable provision for the short term needs of those most desperately in need of assistance. For this reason, the Court found that the respondent’s rights had been breached, and ordered that the state devise, fund, implement and supervise, a programme to provide measures to assist those in desperate need. As Yacoob J stated:[94]
The precise contours and content of the measures to be adopted are primarily a matter for the legislature and the executive. They must, however, ensure that the measures they adopt are reasonable. In any challenge based on section 26 in which it is argued that the state has failed to meet the positive obligations imposed upon it by section 26(2), the question will be whether the legislative and other measures taken by the state are reasonable. A court considering reasonableness will not enquire whether other more desirable or favourable measures could have been adopted, or whether public money could have been better spent. The question would be whether the measures that have been adopted are reasonable. It is necessary to recognise that a wide range of possible measures could be adopted by the state to meet its obligations. Many of these would meet the requirement of reasonableness. Once it is shown that the measures do so, this requirement is met.
It should be noted that the Court did not make an order that the particular respondent be provided with immediate relief, rather it ordered that the state implement a general plan for the benefit of all similarly situated people, which would be assessed against the criterion of reasonableness in the light of available resources. The Court also stated that there is no minimum core of any socioeconomic right that has to be provided by the state[95] – all that is required is that such resources as it is able to allocate are allocated in accordance with a rational plan and on an equitable basis.
The Grootboom case therefore shows that there is no reason to think that the recognition of socioeconomic rights would lead to judicial micro-management of government spending, still less the courts mandating that the government spends money that it does not have. So long as a government can show that it is acting within the bounds of reasonableness in light of the resource constraints and the competing demands it faces, its spending decisions will not be overturned, nor will particular individuals be able to claim immediate provision of public services from the state. Indeed, the satisfaction of any particular claim might itself cause socioeconomic injustice if there are other claimants whose needs are even more pressing, to whom the state ought therefore give preference in the orderly implementation of its plan.
The reasonableness test has been elucidated in other decisions of the Constitutional Court. In Soobramoney v Minister of Health: Kwa-Zulu Natal,[96] the plaintiff who was unable to access dialysis argued that his right to health care under s 27(1) had been denied. The Court held that in applying the test of reasonableness it would inquire whether the state ‘acted in good faith in allocating resources to the programme and have the beneficiaries of the programme been selected in a rational manner.’[97] In other words, where a programme involves the allocation of resources for which there are more applicants than there are available funds, reasonableness requires that the state use criteria which are rationally related to the purpose of the programme in determining who should benefit from it. In the instant case the Court held that allocation to dialysis was determined in accordance with objective clinical criteria, and that therefore denial of dialysis to the applicant in accordance with those criteria did not breach s 27(1).
The Constitutional Court has also held that reasonableness may involve the application of proportionality to the methods used by the state in protecting socioeconomic rights. This the courts do by balancing the rights of those excluded from a programme against those who are included in it. Thus in Khosa v Minister Social Development,[98] in which permanent resident non-citizens of South Africa challenged the denial to them of social security benefits that were provided to South African citizens, the Court held that the denial of rights to indigent permanent residents simply on the basis of non-citizenship caused disproportionate harm that outweighed the benefit of greater availability of resources to serve the needs of citizens if services were provided exclusively to them. It therefore held that the criterion of reasonableness required the payment of benefits on an equitable basis to all who met the threshold of need.
What remedies do courts in South Africa grant when they find that the way in which the state has allocated funds in fulfilment of socioeconomic rights fails the test of reasonableness? South Africa’s Constitution contains open-ended provisions relating to remedies. Section 38 says simply that a court must provide ‘appropriate relief’ in cases where rights have been breached, while s 172 empowers the courts to make any order that is ‘just and equitable.’ Courts have interpreted this to mean that they have the power to fashion new remedies in order to give effect to the Constitution.[99]
The most usual remedy that the courts grant in cases where they find that the state’s allocation of resources fails the test of reasonableness is to require the state to devise a new spending plan which will be consistent with that requirement. To take a hypothetical example, if a resident of a community without piped water brought an action to compel the government to provide it in accordance with s 27(1) of the Constitution, a court could order the government to reallocate such funding as had been allocated to the provision of water in such a way as to be consistent with objective need, which might in turn lead to state to divert resources that were to be allocated to upgrade infrastructure in community that already had a level of water supply to instead provide a basic supply to the community that had none.
The essence of the remedy is therefore not that the state can be compelled to spend money it does not have – all the courts can do is require that such money as is allocated under any policy is spent in accordance with rational criteria directed towards its realisation on an equitable basis.[100] Courts cannot engage in macro level review the state’s budgetary allocation between government services.[101] In the words of the Court in Minister of Health v Treatment Action Campaign (No. 2):[102]
[D]eterminations of reasonableness may in fact have budgetary implications, but are not in themselves directed at rearranging budgets. In this way the judicial, legislative and executive functions achieve appropriate constitutional balance.
So, when a court orders that such funds as are available for a programme be allocated in accordance with reasonableness, it is up to the state to determine how to adjust its budget for that service. Thus, in Government of the Republic of South Africa v Grootboom,[103] the state was ordered to adjust the distribution of funding that it allocated to various projects falling under the broad heading of housing by planning and implementing measures to provide shelter for people who were in most desperate need. Another example is provided by Khosa v Minister Social Development,[104] in which the Court ordered that funds available for the payment of social security benefits be allocated on an equal basis to both citizens and non-citizens.
As stated above, South Africa’s Constitution gives the courts flexibility in crafting remedies. This has proved particularly useful in cases involving socioeconomic rights, where the courts have developed what is called the ‘structural’ or ‘supervisory’ interdict to assist in ensuring that the state complies with court orders requiring it to act positively in fulfillment of those rights. The interdict requires the state to draft a plan outlining the way in which it will remedy the breach of a socioeconomic right, which it must then present to the court for approval. The state may also be ordered to provide periodic reports either to the court or to a court-appointed supervisor, detailing progress towards implementation.[105]
To take some examples, in Section 27 v Minister of Education,[106] the Court ordered the respondent to consult with schools, teachers, parents and students to formulate a plan that would enable students to recover educational ground they had lost because of the non-provision of textbooks, and to report back to the Court once the plan had been drafted. A court may also appoint an expert or panel of experts with knowledge of the particular policy area who, under supervision of the court, formulates a remedial plan.[107]
In Mwelase v Director-General for the Department of Rural Development and Land Reform,[108] the Land Claims Court appointed a Special Master to be an agent of the Court to aid the Department in processing land claims.[109] In EN and Others v Government of RSA and Others (No. 1)[110] the Court issued a structural interdict requiring the state to provide a plan stating how it would implement the Court’s order to provide retroviral treatment to a number of HIV-positive prisoners after the government had delayed in giving effect to the order.[111] In Occupiers of 51 Olivia Road v City of Johannesburg,[112] where the appellants alleged that their right to housing would be breached by the city evicting them from sub-standard apartments without providing alternative accommodation, the Court required the city to negotiate a plan with the appellants and to report back to the Court for its approval. This led the city to agree to respect the right to housing by making repairs to the apartments so as to make them habitable until alternative housing could be found. In Residents of Joe Slovo Community, Western Cape v Thubelisha Homes and Others,[113] where residents of an informal settlement were to be relocated so as to enable the construction of low-cost housing, the Court held that adequate temporary accommodation, along with schools and medical facilities, should be established at the relocation site prior to the eviction taking place, and that 70% of the housing in the new development should be reserved for the evictees upon their return.
VI Protection of Socioeconomic Rights as a Mechanism for the Suppression of Pork-Barrelling
A Socioeconomic Rights and Pork-Barrelling
Returning to the issue of pork-barrelling in Australia, it is evident that in addition to being a good in itself, constitutional protection of socioeconomic rights could provide a mechanism for suppression of pork-barrelling. Clearly, given the fact that of 45 attempts to change the Commonwealth Constitution only eight have been successful, the inclusion of such rights would be difficult to achieve. Nevertheless, a demonstration of how the inclusion of such rights could serve to suppress pork-barrelling provides an argument additional to those usually advanced in support of the constitutional protection of rights.
As the case law from South Africa shows, once such rights are given constitutional protection, litigants are able to challenge the manner in which programmes are administered, including the way in which funds are allocated, against the standard of reasonableness. The relevance of this to pork-barrelling is obvious: Since the essence of pork-barrelling is the allocation of funding on a basis other than that of objective criteria – in other words, on a basis that does not meet the standard of reasonableness – litigants would be able to challenge fund distributions directed towards political ends.
The extent to which this mechanism would be available would depend on how broad was the range of socioeconomic rights that were afforded constitutional protection. Assuming that commonly protected socioeconomic rights – to health care, education, shelter and social support – were included in the Commonwealth Constitution, any programme falling within the ambit of those rights would be subject to review.
As noted in Part I, reports by the ANAO have disclosed pork-barrelling in a wide range of government programmes. Although not all grants programmes would fall within the ambit of a socioeconomic right, many would. A clear example of this is the Community Health and Hospitals programme, under which the government allocated $2 billion (in other words, twenty times the amount of money as it had under the Community Sports Infrastructure Grant programme) to specialist health services (such as cancer treatment), mental health services and the prevention and management of chronic diseases. The ANAO found that 45% of funds were allocated to marginal electorates,[114] that in the case of some programmes the government deliberately failed to comply with the requirement to formulate guidelines for the award of funds, that even where guidelines were written they did not comply with the Commonwealth Grant Rules and Guidelines,[115] and that application processes were not consistent with ensuring value for money.[116] There is no doubt that if the right to health was protected by the Constitution, these facts would support a challenge on grounds of failure to act reasonably in the distribution of funding.
B Is there a Socioeconomic Right to Sport?
Turning to the specific issue of funding for sports, are there grounds for the inclusion of a right to participate in sports among socioeconomic rights? An analysis of international human rights documents reveals that the right is recognised either by implication or expressly: Article 24 of the Universal Declaration of Human Rights[117] states that everyone has the right to leisure, while art 27 states that everyone has the right to participate in the cultural life of the community. Both these provisions are restated arts 7 and 15 respectively of the International Covenant on Economic, Social and Cultural Rights.[118]
A broad interpretation of ‘leisure’ and ‘culture’ supports the contention that these provisions impliedly protect the right to access sports.[119] Similarly, art 31 of The United Nations Convention on the Rights of the Child[120] recognises the right of children to engage in recreational activities. More useful is the fact that express protection is conferred on the right to sport by the International Charter of Physical Education, Physical Activity and Sport,[121] issued by the United Nations Educational, Scientific and Cultural Organization, art 1.1 of which states that ‘Every human being has a fundamental right to physical education, physical activity and sport.’ The right to sport is also protected in national constitutions, either impliedly as an aspect of the rights to health[122] and to education,[123] or expressly in constitutions which impose on the state an obligation to ensure access to sports facilities, examples being those of the Philippines,[124] Ecuador[125] and Ethiopia.[126]
These examples support the inclusion of a right to sport in an Australian bill of rights. The consequence of this would be that the pork-barrelling that took place in the administration of the CSIG programme could be challenged on the grounds that the allocation of funds in order to achieve political objectives was inconsistent with the obligation of the state to act reasonably in the fulfilment of the right.
C Applying the Constitutional Standard of Reasonableness
As indicated in the analysis of remedies for pork-barrelling in Part IV, such remedies as might have been thought to provide redress to litigants whose applications for public grants were denied on political grounds are of limited usefulness. Although administrative law appeared to offer the most likely avenue for redress, closer examination revealed that an application for judicial review would be likely to fail, given the reluctance of the courts to engage in review on the ground of reasonableness of the allocation of public funding among multiple applicants. An applicant’s claim for review would, in its essence, be founded on an argument which required a comparison with other grant applications, which would require a court to embark on an analysis of the entire grants programme.
Furthermore, in the unlikely event that a court did embark upon such an analysis and found that an application, or a class of applications, had been unlawfully rejected, the only remedy it could provide would be to order that the application(s) be reconsidered. It would not be able to reassess the entire programme and order the payment of grants to meritorious applicants.
By contrast, if the Constitution protected a socioeconomic right to access to sports and obligated the state progressively to achieve its realisation, an action brought for breach of a socioeconomic right on the ground that an application for a grant that met the programme’s selection criteria had been denied as a result of pork-barrelling would, as the South African cases show, not only enable, but would mandate, the courts to apply the concept of reasonableness in a very different – and far broader – way than is the case under administrative law.
This is because, whereas under administrative law the focus of a court’s inquiry is the legality (in the narrow sense) of the decision made in relation to the particular applicant who is seeking review, the application of the constitutional standard of reasonableness as developed in the context of socioeconomic rights jurisprudence would require a comparative analysis of all grants awarded in order to determine whether the way in which the state has distributed grants met the test of reasonable realisation of the right or rights that the programme purported to serve.
A comparative analysis of all grants awarded would be essential to the role of a court of such a case, because it would need to examine the basis upon which the entire programme was administered in order to determine whether the award of grants was decided on the basis of rational factors such as comparative need and value for money, or whether it was tainted by irrelevant, and thus irrational, factors such as political advantage. In so doing the courts would have reference to overall programme delivery, not just the merits of an individual or class of decisions. This is obviously a very different inquiry from that which courts embark upon under administrative law and is the key reason why the constitutionalisation of socioeconomic rights would offer relief currently not available under the law as it stands.
D Remedies
The final question is what remedies should be available to the courts in cases where a grant was found to have been denied as a consequence of a failure of the state to act reasonably? In contrast to review under administrative law, where the remedy a court could grant would be limited to referring a decision back to the administrator to be made anew, the case law from South Africa show that courts can adopt a far more interventionist approach when determining remedies for the breach of a constitutional right.
An obvious remedy would be for the courts to order that the executive devise a plan in terms of which all grant applications are considered on their merits, and that applications which would have been successful on those terms be granted funding – a remedy which might mean that the state has to adjust its spending priorities. How that adjustment is achieved is not a matter in which the courts should become involved - all they would be required and able to do is to mandate that the state present a plan that satisfies the constitutional norm of reasonableness. It would then be up to the state to decide how to adjust its budget so as to comply with that order.
The fact that such orders could be granted would have a sobering effect on governments that might be tempted to use public funds in pursuit of political objectives. The knowledge that such conduct would have the consequence of requiring the state not only to fund applications unreasonably denied but also suffer the inconvenience of engaging in budgetary adjustment would provide a powerful disincentive to pork-barrelling.
VII Conclusion
The ability of members of the executive to allocate sports grants on a political basis provides just one example among several of programmes whose administration has been tainted by political considerations. Protection of socioeconomic rights would, depending on the range of socioeconomic rights protected, have a profound effect on the behaviour of the executive. Because decisions on state expenditure – including the allocation of grants – would be subject to constitutional review, governments would be forced to make decisions in accordance with the principle of reasonableness, in marked contrast to the current position where there is an incentive for the government to base its decisions on factors which confer political advantage on it.
Whether Australians will ever enjoy the benefit of being able to hold the executive to account in this way depends on the broader question of whether constitutional protection will ever be afforded to the broad range of rights such as those protected by the South African Constitution. But the prospect of bringing an end to corruption in the allocation of hundreds of millions of dollars in public funds provides a heretofore unconsidered argument in favour of a bill of rights.
* * BA(Mod) Dublin, LLB Rhodes, DPhil Waikato, Senior Lecturer in Law, Faculty of Business, Justice and Behavioural Sciences, Charles Sturt University.
[1] Amy Dale, ‘Pork Barrelling – past its use-by date? 2012 (76) Law Society Journal 33, 35.
[2] Australian National Audit Office, Administration of Commuter Car Park Projects within the Urban Congestion Fund (Auditor-General Report No 47, 2020-21).
[3] Australian National Audit Office, Award of Funding under the Safer Communities Fund (Auditor-General Report No 16, 2020-21).
[4] Australian National Audit Office, Award of Funding under the Building Better Regions Fund (Auditor-General Report No 1, 2021-22).
[5] Australian National Audit Office, Administration of the Community Health and Hospitals Program (Auditor-General Report No 21, 2022-23).
[6] Australian National Audit Office, Award of Funding under the Community Sport Infrastructure Program (Auditor-General Report No. 23 of 2019-20) 16.
[7] Ibid 43.
[8] Ibid 25.
[9] Ibid 52-57.
[10] Ibid 8-11.
[11] Ibid 38.
[12] Ibid.
[13] Ibid 6.
[14] Ibid 54.
[15] Andrew Leigh and Ian McAllister, ‘Political Gold: The Australian Sports Grants Scandal’ (2021) Political Studies 1, 8.
[16] Australian National Audit Office (n 6) 52.
[17] Tony Harris, ‘Remember sports rorts? Here's why we mustn't forget that shameful episode,’ The Sydney Morning Herald (online, 2 October 2020) <https://www.smh.com.au/national/remember-sports-rorts-here-s-why-we-mustn-t-forget-that-shameful-episode-20200925-p55z8x.html>.
[18] Andrew Probyn and Jack Snape, ‘Nationals candidates the big winners in late pre-election sports grants bonanza,’ ABC News (online, 31 January 2020 <https://www.abc.net.au/news/2020-01-31/nationals-big-winners-in-late-sports-grants/11918526>.
[19] Matthew Doran, ‘Bridget McKenzie downplays membership of shooting club given almost $36,000 in controversial sports grants program,’ ABC News (online, 22 January 2020) https://www.abc.net.au/news/2020-01-22/bridget-mckenzie-sports-grants-linked-to-shooting-club/11888402>.
[20] Senate Select Committee on the Administration of Sports Grants, Parliament of Australia, Final Report (March 2021) 4.
[21] Paul Karp, ‘Phil Gaetjens rejects claim McKenzie's grants program targeted marginal seats,’ The Guardian Australia (online, 14 February 2020) <https://www.theguardian.com/australia-news/2020/feb/14/phil-gaetjens-rejects-claim-mckenzie-grants-program-targeted-marginal-seats>.
[22] Senate Select Committee on the Administration of Sports Grants (n 20) 4.
[23] Ibid 60.
[24] Ibid 125-34.
[25] Ibid 28-9, 41.
[26] Ibid 45-56.
[27] Ibid 48-50.
[28] Ibid 50.
[29] Ibid 90.
[30] Ibid 52-3.
[31] Ibid 60.
[32] Ibid.
[33] Andrew Tillett and Tom McIlroy ‘Why the sports grant scandal won’t go away,’ Australian Financial Review (online, 3 February 2020) <https://www.afr.com/politics/federal/sports-grants-scandal-refuses-to-go-away-20200203-p53x5a>.
[34] Anna Vidot, ‘Deputy PM blocks Labor from accessing the cost-benefit analysis of moving the chemical regular from Canberra,’ ABC News (online, 19 October 2016) <https://www.abc.net.au/news/rural/2016-10-19/apvma-barnaby-joyce-senate-estimates/7945022>.
[35] Michael Koziol, ‘Nationals MPs rebel over government’s integrity commission plans,’ The Sydney Morning Herald (online, 29 November 2018) <https://www.smh.com.au/politics/federal/nationals-mps-rebel-over-government-s-integrity-commission-plans-20181129-p50j51.html>.
[36] Australian Government, Community Sports Infrastructure Program – Program Guidelines (August 2018) ii, 4 <https://d2n3eh1td3vwdm.cloudfront.net/agendas-minutes/attachments/H.06-Australian-Sports-Commission-Community-Sport-Infrastructure-Grant-Program-19-September-2018.pdf>.
[37] Katina Curtis and Shane Wright, ‘Collingwood Football Club got ‘regional development’ grant for Melbourne site,’ The Sydney Morning Herald (online, 19 October 2021) <.https://www.smh.com.au/politics/federal/more-than-half-the-grants-for-regional-areas-went-to-major-cities-auditor-general-20211019-p591a8.html>.
[38] Dale (n 1) 35.
[39] Christopher Knaus, ‘Gladys Berejiklian says pork barrelling would not ‘be a surprise to anybody’ – but it’s not democracy either,’ The Guardian Australia (online, 2 November 2021) < https://www.theguardian.com/australia-news/2021/nov/02/gladys-berejiklian-says-pork-barrelling-would-not-be-a-surprise-to-anybody-but-its-not-democracy-either>.
[40] Independent Commission Against Corruption, Investigation into the Conduct of the then Member of Parliament for Wagga Wagga and the Premier and others (Operation Keppel) (29 June 2023) 13-14.
[41] David Crowe, ‘Morrison defends Berejiklian, rejects calls for stronger corruption commission,’ Sydney Morning Herald (online, 25 November 2021) < https://www.smh.com.au/politics/federal/scott-morrison-defends-gladys-berejiklian-rejects-calls-for-stronger-corruption-commission-20211125-p59c6v.html>.
[42] Sean Kelly, ‘Dutton’s disturbing defence of Berejiklian,’ The Sydney Morning Herald (online, 3 July 2023) <.https://www.smh.com.au/politics/federal/dutton-s-disturbing-defence-of-berejiklian-20230630-p5dkrp.html>.
[43] Danielle Wood, Kate Griffiths and Anoka Stobart, New politics – Preventing pork-barrelling (Grattan Institute, 2022) 9-10.
[44] Senate Select Committee on the Administration of Sports Grants (n 20) 13-19.
[45] Joint Committee of Public Accounts and audit, Parliament of Australia, Report 495: Inquiry into Commonwealth grants administration (June 2023) iii.
[46] Ibid xvii-xix.
[47] National Anti-Corruption Commission Act 2022 (Cth) s 32.
[53] Lisa Visentin, ‘New Attorney-General promises national corruption watchdog will have power to investigate pork-barrelling’ The Sydney Morning Herald (online, 8 June 2022) <https://www.smh.com.au/politics/federal/new-attorney-general-promises-national-corruption-watchdog-will-have-power-to-investigate-pork-barrelling-20220602-p5aqhr.html>.
[54] Phillip Coorey, ‘Anti-corruption commission to cast a wide net: Dreyfus’ Australian Financial Review (online, 26 September 2022) <https://www.afr.com/politics/federal/anti-corruption-commission-to-cast-a-wide-net-dreyfus-20220926-p5bkyd>.
[55] See for example the prosecutions of former New South Wales MP and former Minister Eddie Obeid, discussed in Anne Twomey, ‘When is pork-barrelling corruption and what can be done to avert it?’ (2022) 52 Australian Bar Review 270, 273-74, 290.
[56] Yee-Fui Ng, ‘Regulating the Rorts: The Legal Governance of Grants Programmes in Australia (2023) 51 Federal Law Review 205, 223.
[57] Susanna Connolly, ‘The regulation of pork barrelling in Australia, (2020) Australasian Parliamentary Review 35, 41.
[58] Peter Cane and Leighton McDonald, Principles of Administrative Law – Legal Regulation of Governance (Oxford University Press, 2nd ed, 2012) 79-81.
[59] Ng (n 56) 223.
[60] R v Bembridge (1793) 3 Doug 327; (1793) 99 ER 679.
[61] [2010] VSCA 106; (2010) 27 VR 310 [46] (Redlich J).
[62] David Lusty, ‘Revival of the common law offence of misconduct in public office’ (2014) 38 Criminal Law Journal 337. See also Joseph Campbell, ‘Some Legal Implications of Pork-barrelling’ (2022) 52 Australian Bar Review 129, 183.
[63] Peter Hall, Investigating corruption and misconduct in public office: commissions of inquiry: powers and procedures (Lawbook Company, 2004) 19.
[64] Ibid 18.
[65] Ibid 19.
[66] Twomey (n 55) 274.
[67] [2002] 2 AC 357.
[68] Ibid 466 [21] (Lord Bingham of Cornhill).
[69] Ibid 463-64 [19] (Lord Bingham of Cornhill).
[70] Ibid 503 [132] (Lord Scott of Foscote).
[71] [2019] NSWCCA 32; (2019) 99 NSWLR 376, 394 [84].
[72] The origin of this taxonomy of rights can be found in Karel Vašák, ‘Human Rights: A Thirty-Year Struggle: the sustained efforts to give force of law to the Universal Declaration of Human Rights,’ (1977) 30 UNESCO Courier 11, 29–32.
[73] International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976).
[74] Nicholas Haysom, ‘Constitutionalism, Majoritarian Democracy and Socioeconomic Rights’ (1992) 8 South African Journal on Human Rights 451, 456-58.
[75] International Covenant on Economic, Social and Cultural Rights, opened for signature 16 December 1966, 993 UNTS 3 (entered into force 3 January 1976).
[76] Johannes Morsink, The Universal Declaration of Human Rights: Origins, Drafting and Intent (2000, University of Pennsylvania Press) 1.
[77] Kurt Keiser, ‘Our Toxic Bill of Rights’ (2022) 56 Journal of Economic Issues 607.
[78] National Human Rights Consultation Report (online, September 2009) <http://apo.org.au/node/19288> .
[79] Human Rights Act 2004 (ACT).
[80] Charter of Human Rights and Responsibilities Act 2006 (Vic).
[81] Ibid 78-82.
[82] Ibid 78.
[83] Ibid 79.
[84] Ibid.
[85] Ibid 80.
[86] Ibid 96.
[87] These are housing (s 26), health care, food, water and social security (s 27), the social rights of children (s 28) and education (s 29).
[88] These include the right to a health environment (s 24), the right to language (s 30) and the rights of cultural, religious and linguistic communities (s 31).
[89] Pierre de Vos et al, South African Constitutional Law in Context (Oxford University Press, 2014) 696.
[90] City of Johannesburg Metropolitan Municipality v Blue Moonlight Properties 39 (Pty) Ltd [2011] ZACC 33; 2012 (2) SA 104 (CC), [68]-[74] (van der Westhuizen J).
[91] For a masterful discussion of the interaction between separation of powers and the enforcement of socioeconomic rights see Marius Pieterse, ‘Coming to Terms with Judicial Enforcement of Socioeconomic Rights’ (2004) 20 South African Journal on Human Rights 383.
[92] De Vos et al (n 89) 687-9.
[93] [2000] ZACC 19; 2001 (1) SA 46 (CC).
[94] Ibid [41] (Yacoob J).
[95] Ibid [32] (Yacoob J).
[96] [1997] ZACC 17; 1998 (1) SA 765 (CC).
[97] Ibid [29] (Chaskalson P). See also the discussion in Mazibuko v City of Johannesburg [2009] ZACC 28; 2010 (4) SA 1 (CC) [48]-[68] (O’Regan J).
[98] [2004] ZACC 11; 2004 (6) SA 505 (CC).
[99] Fose v Minister for Safety and Security [1997] ZACC 6; 1997 (3) SA 786, [19] (Ackerman J).
[100] Stuart Wilson and Jacki Dugard, ‘Constitutional Jurisprudence: The First and second Waves’ in Malcolm Langford (ed) Socioeconomic rights in South Africa: symbols or substance? (2014, Cambridge University Press) 35, 50-52.
[101] De Vos et al (n 89) 719.
[102] [2002] ZACC 15; 2002 (5) SA 721 (CC), [38].
[103] Grootboom (n 93).
[104] Khosa (n 98).
[105] De Vos et al (n 89) 721.
[106] [2012] ZAGPPHC 114; 2013 (2) SA 40 (GNP).
[107] Ropafadzo Maphosa, ‘Are judicial monitoring institutions a legitimate remedy for addressing systemic socioeconomic rights violations?’ (2020) 36 South African Journal on Human Rights 362, 370-71.
[108] [2016] ZALCC 23; 2017 (4) SA 422 (LCC).
[109] The case is discussed in Gaurav Mukherjee and Juha Tuovinen, ‘Designing remedies for a recalcitrant administration’ (2020) 36 South African Journal on Human Rights 386, 388-91.
[111] See the discussion of the case in Christopher Mbazira, ‘From Ambivalence to Certainty: Norms and Principles for the Structural Interdict in Socioeconomic Rights Litigation in South Africa’ (2008) 24 South African Journal on Human Rights 1, 10-11.
[112] 2008 (3) SA 208 (CC).
[113] [2009] ZACC 16; 2010 (3) SA 454 (CC).
[114] Australian National Audit Office (n 5) 97.
[115] Ibid 9.
[116] Ibid.
[117] Universal Declaration of Human Rights, GA Res 217A (III), UN GAOR, UN Doc A 8/10 (10 December 1948).
[118] International Covenant on Economic, Social and Cultural Rights, opened for signature 16 December 1966, 993 UNTS 3 (entered into force 3 January 1976).
[119] Tony Veal ‘Sport and human rights: assessing the performance of nation states in assuring the right to sport participation’ (2023) 20 European Journal for Sport and Society 140, 140-1
[120] The United Nations Convention on the Rights of the Child, opened for signature on 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990).
[121] United Nations Educational, Scientific and Cultural Organisation, International Charter of Physical Education, Physical Activity and Sport (2015).
[122] Sven Messing et al, ‘Physical activity as a human right? (2021) 23 Health Human Rights 201.
[123] Daniel Ireland-Piper and Kim Weinart, ‘Is there a ‘Right’ to sport?’ (2014) 21 Sports Law eJournal.
[124] Constitution of the Republic of the Philippines (1987) Article I, s 17 and Article XIV, s 19(1).
[125] Constitution of the Republic of Ecuador (2008) Articles 24, 32, 39; 45, 66(2) and 381.
[126] Constitution of the Federal Democratic Republic of Ethiopia (1995) Article 41, s 9.
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/journals/JCULawRw/2023/4.html