The legality of the Morrison government’s $100m so-called sports infrastructure program may never be tested in court because a tennis club that missed out on funding has dropped its challenge.
The Beechworth Lawn Tennis Club pulled its federal court case after winning half the funding for its project from the Victorian government, a $250,000 grant that put it at risk of a potential finding the case against Sport Australia no longer had practical utility.
The club’s president, Andy Carr, told Guardian Australia it was a “difficult decision to make, particularly because I had a high level of confidence we’d win the legal argument” that Sport Australia “acted unlawfully” and didn’t comply with requirements of the community sport infrastructure grant programme.
Beechworth launched the challenge in mid 2020, asking the court to quash Sport Australia’s decision refusing it a $500,000 grant in part because of the parallel assessment of projects conducted by the then sports minister Bridget McKenzie’s office.
On Thursday Justice David O’Callaghan dismissed the case by consent, with no order as to costs.
Carr said the outcome was not “a good reflection of actual justice” because the club was still $250,000 short for its proposed project.
“We have been able to build our tennis courts, but we now have a concrete slab instead of a clubhouse, toilets and changing rooms … for our members and for our community.
“More than that – it was over three years we had no tennis facilities at all in our town … and that covered entirely the period of some pretty harsh lockdowns in Victoria, and tennis was one of the few sports able to continue in some form through that.”
Carr said he took his daughter to neighboring Myrtleford “so she could play tennis on a Saturday morning”, a 60km round trip, while “a lot of people stopped playing tennis” as a result of the lack of facilities.
“It’s unacceptable and disappointing for the club – we were all that time without courts we probably should’ve had.”
Carr said the Morrison government’s sport infrastructure program “clearly demonstrates the necessity of a federal integrity commission” so clubs had some form of recourse short of court action against the government, which he described as a “classic David-and-Goliath battle”.
Maurice Blackburn principal Josh Bornstein said while the firm was “proud to have taken up the fight against sports rorts on behalf of our client, this is a less than perfect outcome”.
“Beechworth Lawn Tennis Club is a small, volunteer-run community sports organization and should not have to find law firms willing to act pro bono to contest the validity of the politicized sports rights program.”
Beechworth had argued that Sport Australia inappropriately took direction from the Morrison government about which projects to fund.
It had also asked the court to quash a $35,980 grant to the Wangaratta Clay Target Club, which McKenzie failed to declare she was a member in breach of ministerial standards, prompting her resignation in February 2020.
Sport Australia had admitted the Beechworth project was included in funding recommendations to the minister’s office on 3 April 2019.
Beechworth alleged that on 11 April 2019, McKenzie’s office returned a signed brief that excluded the Beechworth project, one of 184 that Sport Australia had recommended that were subsequently not approved.
The $100m sports infrastructure program was the subject of a scathing auditor general’s report that found McKenzie’s office had skewed the program towards targeted and marginal seats.
In its defence, Sport Australia had argued that McKenzie selected projects but did not approve final grants, claiming its own guidelines that suggested otherwise were wrong and based on a finance department “template”.
Sport Australia insisted it retained the final say on which applications would be approved for funding despite a flurry of late changes to grant recipients requested by the former federal sport minister or her office.
McKenzie has consistently denied wrongdoing in relation to the programme, insisting she was not improperly influenced by whether projects were located in marginal or target seats.
A spokesperson said Sport Australia “is pleased that the proceeding has been dismissed with the consent of the parties”.