Senator Bridget McKenzie did not appear to have the constitutional power to make decisions about the $100 million community sports grant program, says a leading law expert who has also cast doubt on the lawfulness of the entire process.

Key points: Professor Anne Twomey says the Minister "does not have the power" to make decisions on the sports grants

Professor Anne Twomey says the Minister "does not have the power" to make decisions on the sports grants The entire Commonwealth sports grant program may be unconstitutional, she says

The entire Commonwealth sports grant program may be unconstitutional, she says A Nationals MP has called for "increased transparency" around grants to restore public trust

University of Sydney professor of constitutional law Anne Twomey said the Commonwealth had limited powers under the constitution, and these did not extend to sport.

"The Minister herself does not have the power to make these decisions in relation to these grants," Professor Twomey told the ABC.

"That's a power that's been vested by the legislation in Sports Australia, as the Australian Sports Commission.

"And that means that there are some difficulties there in terms of working out how it is that the Minister could make the final decision in relation to these grants."

Senator McKenzie has defended her handling of the program. ( ABC News: Nick Haggarty )

Senator McKenzie is facing growing pressure to resign over the handling of the sports grant program after a federal auditor-general's report found marginal seats were targeted before the election by the then-sports minister.

The report discovered "evidence of distribution bias in the award of grant funding" and noted there did not appear to be any legal authority for the Minister to have picked recipients.

It has since been revealed Prime Minister Scott Morrison's local soccer club also boasted about funding for a clubhouse weeks before a grant was announced.

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Senator McKenzie has defended herself by saying she had every right to involve herself in the process.

"Ministerial discretion was actually written into the guidelines for a purpose," she said.

Entire program may be unconstitutional, Twomey says

Professor Twomey has also cast doubt on the entire sports grants program, citing the case of a Queensland father who challenged the school chaplaincy program in the High Court in 2014.

"The High Court said, 'Well, the Commonwealth can't spend money on things unless there's parliamentary authorisation for it and unless there's some support in the constitution for it'," Professor Twomey said.

"In this particular case, the Commonwealth might rely on what's sometimes called its nationhood power.

"But that means you either need some kind of national emergency, like the bushfires or the global economic crisis … or it has to be something that peculiarly only the Commonwealth can do and the states are unable to do.

"And we know that the states can, and do, give out sports grants, so it doesn't seem to fit either of those.

"Which means that there's a bit of a problem in terms of supporting this program."

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Government minister Darren Chester also weighed in on the controversy surrounding his Nationals colleague, suggesting increased transparency around grants could help restore public trust.

"I've said this many times publicly in the past — the integrity of the way we deliver these types of programs needs to have the transparency that people can have confidence that a fair system is in place," he told the ABC.

"Because people need to have confidence when they make a bid for a program."

"Increasing the transparency, I think, will be good for us as politicians at local, state and federal level, to restore that trust with our voters."



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