This interim report is to inform the Senate about a claim for public interest immunity received from Senator the Hon Richard Colbeck, Minister for Youth and Sport (minister), in the course of the Senate Committee on Administration of Sports Grants (committee) inquiry into the administration and award of funding under the Community Sport Infrastructure Grant program (program).
The committee has resolved not to accept the claim on the grounds provided by the minister, which are detailed in its considerations below.
Context of the claim
On 27 February 2020, the committee held a public hearing for the inquiry and received evidence from the Chair of the Australian Sports Commission (ASC/Sport Australia), Mr John Wylie, concerning whether the provisions of the Australian Sports Commission Act 1989 (ASC Act) give the Minister for Sport the power to approve the award of funding under a grant program administered by the ASC/Sport Australia. Mr Wylie responded that:
Since the board in proper execution of its role has directors responsibilities and saw fit to obtain legal advice from a senior Queen's Counsel after this issue was raised, I would be happy to provide that opinion to this committee to you if you would like.
Senator Gallagher asked the ASC/Sport Australia to provide the committee with any records of legal advice obtained by the ASC/Sport Australia board. Senator Chisholm also put a written question on notice about the same issue. The ASC/Sport Australia provided answers to the written questions on notice on 13 May 2020, stating that:
Sport Australia will provide the Senate Select Committee with a copy of the advice summary it received from Counsel in February 2020. Given the confidential and privileged nature of the legal advice, Sport Australia requests that the advice summary be kept confidential by the Committee.
At its private meeting on 10 June 2020, the committee agreed to accept the records of legal advice in camera, but the advice was never provided by ASC/Sport Australia.
On 16 July 2020, the committee received correspondence from Senator the Hon. Richard Colbeck, Minister for Sport (minister), claiming public interest immunity in relation to the questions taken on notice from Senators Gallagher and Chisholm discussed above.
On 17 July 2020, the committee received the ASC/Sport Australia's answer to Senator Gallagher's question on notice from the 27 February hearing advising that the content requested was addressed within the answers to the written questions on notice provided on 13 May.
As noted above, in the answers to questions on notice received on 13 May 2020, Sport Australia undertook to provide the committee with a copy of the advice summary it received from Counsel in February 2020 and asked that it be kept confidential. Sport Australia also told the committee that 'the advice obtained from Counsel was not provided to the Minister, the Minister’s office or any other person outside Sport Australia’s Board, management and legal advisors'.
Grounds for the claim
The minister's claim appears to be made on two grounds: legal professional privilege and prejudice to legal proceedings.
The minister sets out a claim of public interest immunity in relation to:
… legal advice obtained by the Commission … as the release of this advice could prejudice pending legal proceedings.
The Minister further notes that 'it has been a long standing practice of Australian Governments over many decades, on both sides of politics not to disclose the fact or content of privileged legal advice'.
The committee notes that legal professional privilege has not been accepted in the Senate as grounds for refusing to provide information or documents. The Senate has rejected government claims that there is a long-standing practice of not disclosing legal advice; legal advice to the federal government is often disclosed by the government itself.
Regarding prejudice to legal proceedings, the committee recognises that this may be an accepted ground for refusing to provide documents. The committee notes the minister's claim that disclosure of the information may materially affect the Commonwealth's position in pending legal proceedings.
However, the committee is not satisfied that the minister's correspondence explains the specific harm to the public interest that would result.
The committee notes that Maurice Blackburn Lawyers has initiated legal proceedings in the Federal Court on behalf of the Beechworth Lawn Tennis Club (BLTC) against the ASC/Sport Australia seeking an order that its decision to reject BLTC’s application for a community sports grant be overturned and requiring the ASC/Sport Australia to consider the application again, this time lawfully.
The committee also notes that the minister's correspondence does not conform with the requirements for public interest immunity claims under Procedural Order 10(4), as it fails to address whether the perceived harm to the public interest could result only from the publication of the information, or could result equally or in part from in camera disclosure to the committee.
The committee further notes that the Chair of the ASC/Sport Australia offered to provide the legal advice in camera to the committee and that this offer has not been addressed in the minister's correspondence.
Change of position from the Chair of the ASC/Sport Australia
The committee also wishes to inform the Senate about the context in which the Chair of the ASC/Sport Australia appeared to have changed his position from initially undertaking to share the legal advice in camera with the committee to later acquiescing to the minister's claim of public interest immunity.
The committee notes that there have been previous cases where an independent statutory officeholder has made a public interest immunity claim that was opposed by the responsible minister. However, the committee has not been able to identify a case where the statutory officeholder has been willing to provide information, but the responsible minister has subsequently determined that the provision of this information is not in the public interest.
The question of who ought to make public interest immunity claims in relation to statutory officers turns on the autonomy of the office. Previous procedural statements concerning public interest immunity claims made by a statutory officeholder indicate that this matter, whilst not analogous, is within the purview of the Chair of the ASC/Sport Australia board—a statutory officer not subject to general direction—to determine the response to the committee's request. Such a claim ultimately, of course, is a matter for the Senate itself.
The committee notes that the Chair of the ASC/ Sport Australia, Mr Wylie, at a public hearing on 27 August 2020, when asked if the minister had discussed the public interest immunity claim or the legal advice more broadly with him, responded 'that has not been discussed with me'. He further added:
My understanding of the procedures within government is that the answers that we provide to questions on notice go through the minister's office, and so they're technically provided by the minister's office to this inquiry, and so it's subject to the decision of the minister. The nature of our position is that we have to respect the position of the minister. It's not our decision.
The committee was informed in an answer to questions on notice that Mr Wylie was alerted to the public interest immunity claim as a result of being copied into the correspondence from Senator Colbeck to the committee secretary of the Senate Select Committee for Administration of Sports Grants.
The committee notes that communication between the minister and the Chair appears to have been sparse, if not non-existent, in relation to discussing the public interest immunity claim, which in effect overrides the decision of the Chair. It raises further questions about ministerial interferences in the program's decision-making process and ASC/Sport Australia's grant administration, a matter which will be explored in detail in the committee's final report.
The committee has resolved that the minister's claim for public interest immunity does not sufficiently justify withholding the information requested by the committee.
The committee considers that the requested information is vital evidence for the inquiry into the Senate Select Committee on Administration of Sports Grants, as it goes to the legal foundation of the program and its administration.
The committee also wishes to bring to the attention of the Senate that the work of this committee has been impeded by the Government's unwillingness to provide information to the matters the Senate has directed the committee to investigate. This systemic lack of disclosure has materially obstructed the inquiry's ability to properly scrutinise the governance of the program. The legal advice to Sport Australia is among several key pieces of evidence that the inquiry is yet to receive, including evidence from the then Minister, Senator the Hon Bridget McKenzie, on how the final list of grant recipients in round three was changed without her knowledge or approval. Senator McKenzie has so far yet to accept an invitation to provide evidence before the committee.
The Senate and the Australian public have the right to know whether the minister had the legal authority to intervene in the awarding of the CSIG grants in 2018−19, which is now commonly referred as the 'sports rorts' affair.
The committee recommends that the Senate adopt the following resolution requiring the production of documents:
That there be laid on the table by the Chair of the Australian Sport Commission / Sport Australia no later than 10 am on Thursday 3 December 2020, the advice the ASC/Sport Australia received from Counsel in February 2020 in relation to the issue of legal authority of the minister and as to whether Sport Australia had acted within its power in carrying out its role in the Community Sport Infrastructure Grant (CSIG) program.
Senator Anthony Chisholm