The Rorts, the Guidelines and the Minister

By Scott Hamilton

In episode seven, season three of ‘Yes Minister’, the Right Honourable Jim Hacker MP visits his local sporting club to watch his beloved Aston Wanderers play a game of football. At a drink afterwards in the board room, he learns the club is about to go bankrupt and needs half a million quid to stay alive. Hacker initially takes the high moral ground and gives his fellow barrackers a polite brush-off. But then politics get the better of him.

A fiendishly clever plan is developed where an old arts gallery building would be sold and the proceeds used to save the club. This is to the displeasure of Sir Humphrey, who decides it must be stopped.

The episode revolves around how an independent planning inquiry could be persuaded to come up with the desired outcome. The solution: the guidelines.

Sir Humphrey and Sir lan will give him some informal guidelines.

How do you mean, ‘informal guidelines’?

Guidelines are perfectly proper.

Everyone has guidelines for their work.

I thought planning inspectors were impartial?

Oh, really, Minister! So they are.

Railway trains are impartial too.

But if you lay down the lines for them, that’s the way they go!

The sports rorts on steroids saga has shone a light on the murky role of guidelines in contemporary public sector responsibility accountability and governance. In a 27 February hearing of the Senate Select Committee on the Administration of Sports Grants, the word ‘guidelines’ was spoken 110 times in one sitting.

The Minister’s own submission to the Senate inquiry (29 April) is littered with references to the guidelines that applied to the infamous program. The guidelines, said the Minister, were developed in consultation with ‘my office.’ Key actions were supposedly ‘in keeping with the Guidelines’, such as when the Minister’s then Chief of Staff ‘emailed Sport Australia… for these project inclusions.’

The former Minister made the remarkable claim that ‘practices deemed usual across other government agencies and departments were not required because [Sport Australia] was not governed by the Public Governance, Performance and Accountability (PPGA) Act 2013 nor the Commonwealth Grant Rules and Guidelines 2017 (CGRG).’ The Minister is correct about the CGRG, but incorrectly points to the ANAO report to substantiate her assertion that the PGPA Act doesn’t apply to Sport Australia. It does.

The sports grants guidelines were the vehicle for giving the Minister for Sport the role of ‘final approver’ in what became a $100 million campaign slush fund. ‘It was, under these program guidelines, ultimately the minister’s prerogative to make decisions as the minister saw fit,’ said John Wylie, Chair of Sport Australia’s board, at the hearing on 27 February.

While Sport Australia says it ‘did its job in this process’, concerns with the role of the Minister’s Office were raised and ‘discussed in depth’ at a sub-committee of Sport Australia. Independent Member of the Finance, Audit and Risk Committee and now acting CEO Sport Australia, Robert Dalton, told the committee ‘we were comfortable that those risks were being managed, because we’d communicated.’ They’d sent two emails to the Minister’s Office.

‘It was not considered to be a matter that needed to be elevated further,’ Wylie told the Senate Committee. On the contrary, it was a matter that was a serious threat to the organisation and should have been raised and discussed in depth at the board level. Further, Sport Australia should have taken more action than sending two emails. It had a duty to escalate and to speak out.

At different points in the sports saga, key people have had to channel Sir Humphrey. For example, John Wylie:

‘We would love to see more funding going into community sport. It is the backbone of this country… So we would have loved there to have been more funding to go around… As an organisation, we have an obligation to comply with the published basis [e.g. guidelines] for decisions and programs. And the published basis for this program was that we were to go through this process: applications were invited, they’d be assessed on a particular criteria and we would come up with an assessment based on those criteria. But, ultimately, the role of the approver was the minister. So the minister had wide discretion under the program guidelines… We would love to see more worthy applicants successful. We would love that. But there are rules and guidelines… and those were the rules and guidelines for this particular program.’

Thank heavens for those program guidelines laying down the outcome wanted. But, who approved the guidelines in the first place and why didn’t the board approve them? ‘Broadly speaking they were developed by our grants management team as program guidelines normally are,’ Wylie told the Senate Committee. It turns out the last senior person to have actually seen the infamous program guidelines was the executive director of sports partnerships, Robin O’Neill – who incidentally has resigned from the embattled organisation.

It is contested whether the role of the Minister and these sports grants was constitutional. But let’s assume that it was reasonable for the accountable entity to involve the minister in the approval process. The program guidelines specify that the Minister for Sport will provide final approval – but they do not absolve the responsibilities of the board to perform its lawful duties, including compliance with the PPGA Act.

Further, while the guidelines indicate the Minister for Sport may consider ‘other factors’ when deciding which projects to fund, the assessment criteria outlined in the guidelines ‘will remain applicable’ and the discretion to consider other factors is limited to ‘otherwise further the objectives of the program.’

So where does this all lead? The Minister for Sport, or whoever was deciding on which projects to fund, still had to do so on merit and in accordance with the objectives of the program. Furthermore, it was the duty and responsibility of the accountable entity, the Sport Australia board, to ensure this occurred. Sport Australia ‘cut the cheques’ (as the Prime Minister said) but it failed to fulfil its obligations.

Sir Humphrey also says, ‘never set up an inquiry unless you know in advance what its findings will be.’ Well that was clearly the case with the Gaetjens inquiry into the sport grants. (He was formerly Chief of Staff of the PM’s private office and now heads the Australian Public Service.) But when it comes to the Senate inquiry (which has cross-party support) it might be a case of being hoisted on one’s own petard, or one’s own guidelines.

Scott Hamilton is a Melbourne-based author and consultant.

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