Law firm Slater and Gordon is considering launching a class action over the Coalition government's so-called "sports rorts scandal".
Subscribe now for unlimited access.
$0/
(min cost $0)
or signup to continue reading
The Australian Auditor-General on Wednesday revealed Deputy Nationals leader Bridget McKenzie's office made up its own rules for doling out sporting grants, and ignored merit lists compiled by Sport Australia in favour of clubs in marginal or contested seats.
There was also no evidence the former sport minister had the legal authority to decide where grants went.
Now Slater and Gordon's practice group leader Andrew Baker said clubs that were deemed worthy of funding by Sport Australia but were overlooked may be able to challenge the decisions.
"Every dollar that went to a club whose application should have been unsuccessful is a dollar that didn't end up with a club that Sport Australia had identified and recommended for funding in the course of proper processes," Mr Baker said.
"These community organisations, clubs and groups have lost out because it appears public funds were used for political gain."
READ MORE:
Maurice Blackburn lawyer Josh Bornstein has also offered free legal advice to clubs considering a challenge of the grants program.
Mr Bornstein said a test case with one affected organisation could pave the way for other clubs to mount a challenge.
"The minister effectively usurped the role of Sport Australia under the relevant grant system, which was supposed to make decisions about grants to sporting clubs and organisation," Mr Bornstein said.
"It raises questions as to whether the decisions are invalid as they don't comply with the proper legal process to deal with grants on merit."
However, a legal challenge may not be so straightforward.
Dr Janina Boughey, who is a senior lecturer in administrative law with UNSW, said courts were historically reluctant to meddle in grants schemes.
"Courts are very disinclined to get involved in government decisions that involve the allocation of resources, so generally where there's a legal discretion to allocate finite resources amongst competing applications courts are going to be very reluctant to weigh in on that," Dr Boughey said.
Another issue was many grants schemes operated through guidelines or non-legal rules, not legislation, so they could not be enforced by a court.
"So basically if the unsuccessful groups are arguing the minister should have followed the guidelines and that's their main legal argument, they're not going to succeed probably because the guidelines aren't law," Dr Boughey said.
"That's a real challenge in Australian law, that promises made by ministers and guideline-type policy documents aren't legally binding, which limits the sorts of arguments that you can make in a court.
"So it depends on the status of those guidelines and how they interact with whatever statute empowers the grant."
If a legal challenge was successful though, there's a lingering question over what would happen to clubs who were successful in getting grants originally.
Mr Bornstein said if the grants program was found to be unlawful, there may be flow-on consequences.
"Whether the federal government would require repayment of the grants is unclear," he said.
"It would be very unpopular for the government to effectively punish the beneficiaries of the grants, where the government itself acted unlawfully.
"It may be you get situations where if the court quashes original decision some of the clubs would still receive grants if the decision was properly made on merit. But it's very early days."
Senator McKenzie - who is also facing a possible parliamentary inquiry - has defended her administration of the grants program as "reverse pork barrelling".
"The reality is, thanks to my decision-making as minister, 34 per cent of the projects delivered went into Labor Party electorates," Senator McKenzie said.