II Grants Politicisation: History, Context and Prevalence

There are definitional issues in determining whether grants allocations have been politicised, and there may be room for disagreement as to whether public funding has been misused. While there is no bright line delineation as to what constitutes a proper compared to an improper use of public funds, there are several indicators of the politicisation of grants allocations. These include the disproportionate allocation to government or marginal electorates compared to opposition electorates, proximity of time to an election, departure from departmental merit-based advice or negative reports from the Auditor-General about the administration of the grant.^{Footnote 11} As such, this article defines politicisation of grants funding as the allocation of public funds to government or marginal electorates for predominantly partisan reasons, rather than based on merit. This suggests that grants funding has been allocated contrary to public interest and skewed towards the interests of the political party in power.

The ability of governments to redistribute funds at a local level in a discretionary and potentially partisan manner leaves open the door to political manipulation. Literature on the partisan allocation of discretionary grants has tended to focus predominantly on the United States, with its single member district plurality system, where the incentive for pork barrelling is particularly strong.^{Footnote 12} The rigid separation of the legislature and executive in the US, coupled with its weak party structure within a single member district plurality system and centralised committee-based legislative process, leads to incentives for individual legislators to shore up personal support through their local districts.^{Footnote 13} The belief is that politicians who ‘bring home the bacon’ are electorally rewarded for doing so.^{Footnote 14}

By contrast, in parliamentary systems with strong mass parties, pork barrelling is submerged within a disciplined party system, as each parliamentarian has a limited ability to secure funding for their own electorates.^{Footnote 15} There is also potentially a distinction between a representative arguing for benefits for their own electorate, compared to the party in power seeking to keep its member in Parliament. Nevertheless, countries with single-member electorates such as Australia are more predisposed to pork barrelling than countries with multi-member electorates (such as Greece, Spain and Norway), as voters in multi-member systems are unsure which politician to reward for a particular benefit.^{Footnote 16} In addition, there are incentives for the central cabinet in single-member electorates to strategically apportion funding to marginal local constituencies to enhance their electoral prospects.^{Footnote 17} The distribution of funds is also expected to have a partisan character, with an incentive to skew the distribution of funds towards the party in power.^{Footnote 18} The introduction of outcome budgeting in Australia with the enactment of the Financial Management and Accountability Act 1997 (Cth) (now merged into the Public Governance, Performance and Accountability Act 2013 (Cth) (‘PGPA Act’)) further enabled this, as it meant that discretionary grants are ‘a key source of administrative freedom and rarely appear separately in the appropriation bills’, resulting in both an expansion of ministerial discretion and a lack of transparency in the allocation of grants funding.^{Footnote 19}

Due to the ample opportunity and incentives for politicians to distribute funds in a partisan manner, the politicisation of grants programs has had long provenance in Australia by all sides of politics. The practice of targeting funding to government electorates for political reasons has existed for centuries.^{Footnote 20} While there is an abundance of research on this topic in the United States,^{Footnote 21} there has been relatively little study of the practice in Australia, given the comparatively tight political control exercised by political parties over individual politicians.^{Footnote 22} Prior to 1993, discussion of the issue in Australia was subsumed into more general consideration of the question of electoral corruption, particularly the use of electoral legislation to ‘control the bringing of improper influences to bear on voters and on candidates’,^{Footnote 23} including bribery of voters, and ‘treating’, or the ‘provision of food, drink or entertainment’ to influence electors.^{Footnote 24} In public discussion, the question of pork barrelling in the distribution of money between elections tended to be conflated with that of corruption during elections, as well as more general forms of political corruption such as that existing during the 1980s in Queensland, under then Premier Joh Bjelke-Petersen.^{Footnote 25} However, the blunt conflation of quid pro quo corruption such as direct bribery of individuals, to a more general inducement for voters in an electorate to elect a member whose party has engaged in pork barrelling, does not encapsulate the complexities of the issue of misuse of grants allocation processes. The spotlight was shone upon this issue during the mid-1990s, when the first ‘Sports Rorts’ affair in the period of the Keating Labor Government first concentrated public attention on the particular form of impropriety we are considering here: the allocation of grants for partisan purposes, rather than according to merit. In the 1993 ‘Sports Rorts’ affair, the Auditor-General found anomalies in the allocation of the $30 million Community Recreational and Sporting Facilities Grants Program, and noted that the department’s administration of the program was weak.^{Footnote 26} The Minister resigned as a result of this controversy.^{Footnote 27}

Since then, empirical studies have consistently shown that successive governments of all political persuasions have distributed discretionary grants funds in a partisan manner to government-held electorates. This included the Labor Government’s 1993 $60 million Community Recreational and Sporting Facilities Grants Program (the first ‘Sports Rorts’ incident),^{Footnote 28} the Coalition Government’s 1998 $1.2 billion Natural Heritage Trust Environmental Fund,^{Footnote 29} and the Coalition Government’s Roads to Recovery, Stronger Families and Communities, Sustainable Regions, and Regional Partnerships in 2001–4.^{Footnote 30} In these three examples, the government retained power in the elections, which suggests that pork barrelling may potentially be effective towards attaining electoral success. However, it is arguable that these grants may not have been crucial to the strong electoral victories in 1993 or 2004, and possibly not to the narrower victory in 1998. The frequency of pork barrelling regardless of which political party is in power may lead to the risk of the public being inured to such improprieties, despite the misuse of taxpayer funds. At any rate, these election successes may have reinforced the perception that pork barrelling may result in successful electoral outcomes.

Following these continual controversies, the Commonwealth Government commissioned a comprehensive strategic review of grants administration, which reported in 2008.^{Footnote 31} The Review recommended that whole-of-government guidance be issued on grants that aligned with the financial management legislation, and that a public database for grants be created.^{Footnote 32} This led to the development of the Commonwealth Grants Rules and Guidelines as a legislative instrument to the Financial Management and Accountability Act 1997 (Cth) (but such rules are not possible under the Commonwealth Authorities and Companies Act 1997 (Cth), covering corporate Commonwealth bodies).^{Footnote 33} In addition, the centralised publication of grants was initiated via the GrantConnect website.^{Footnote 34} The reforms thus standardised policy direction across the federal government on grants administration and enhanced the transparency of grants awarded.

The financial management framework was overhauled in 2013. The PGPA Act was introduced, which combined the previous Financial Management and Accountability Act 1997 (Cth) and the Commonwealth Authorities and Companies Act 1997 (Cth) (‘CAC Act’).^{Footnote 35} The CAC Act was

Nevertheless, the previous provisions were carried forward: the Commonwealth can make grant rules for non-corporate Commonwealth entities, but not corporate Commonwealth entities. There was no overt documentation for the reason for this delineation in 1997, but in that year, the Review of GBE Governance Arrangements (‘Humphry Report’) recommended that ‘all new GBEs [government business enterprises] should be companies’ and all existing GBEs in statutory form ‘should become companies’.^{Footnote 37} This suggested an assumption that statutory corporations would not be used going forward, and government companies would be the preferred structure. It follows from this line of reasoning that government companies under the CAC Act, as ostensibly arms’ length commercial entities, should not be distributing public money in the form of grants, nor be governed by grant rules. As we will see, this exclusion in 1997 has created significant loopholes in the grants administration framework, as there are a significant number of statutory corporations today,^{Footnote 38} including those that distribute grants.

Despite the reforms to the grants schemes, as discussed above, pork barrelling scandals have continued to plague Australian governments in recent years, where the Auditor-General has issued numerous reports on the partisan distribution of discretionary grant funding.^{Footnote 39} Thus, it is clear that pork barrelling of grants funds continues, and shortcomings in the regulation of grants administration persist.

III Grants Funding: The Constitutional Context

Before delving into the legal and political regulation of grants administration, it is necessary to examine the constitutional superstructure that overlays Commonwealth grants funding. The Australian Constitution provides for the appropriation powers of the Commonwealth. Section 81 provides that all moneys received by the Commonwealth executive shall form a consolidated revenue fund, and that moneys appropriated from the consolidated revenue fund must be ‘for the purposes of the Commonwealth’. Section 83 provides that all appropriations must be made by law. This means that appropriations have to be statutorily authorised by Parliament.^{Footnote 40}

The cases of Williams v Commonwealth (‘Williams (No 1)’)^{Footnote 41} and Pape v Commissioner of Taxation (‘Pape’)^{Footnote 42} limited the Commonwealth executive’s power to expend the money it had appropriated under sections 81 and 83 by drawing a firm distinction between appropriation and expenditure. Although the constitutional jurisprudence relating to the Commonwealth’s spending power has ebbed and flowed over time with alternatively broad and narrow views of the power,^{Footnote 43} it was previously assumed that the Appropriations Acts were sufficient statutory authorisation for spending.^{Footnote 44} The High Court in Pape overturned this assumption and found that although the power to appropriate money from the consolidated revenue fund was broad, sections 81 and 83 were not sufficient bases for the expenditure of funds,^{Footnote 45} and the power for the Commonwealth executive to spend must be found in valid legislation or in the Constitution.^{Footnote 46} This was affirmed in Williams (No 1), where the majority of French CJ, Gummow, Bell and Crennan JJ found that, apart from limited exceptions, the Commonwealth will need statutory authority to enter into contracts and spend public money, due to the principle of responsible government.^{Footnote 47} In Williams (No 2), the High Court confirmed that there needed to be a valid Commonwealth head of legislative power for legislation authorising financial expenditure.^{Footnote 48} In sum, this means that the Commonwealth executive requires statutory authority to spend public money on grants programs, within a recognised head of Commonwealth legislative power.

The legislative authorisation for grants can take several forms. For the ‘ordinary services and functions of government’, section 23 of the PGPA Act, which empowers non-corporate Commonwealth entities to enter into arrangements relating to the affairs of the entity, serves as sufficient authorisation.^{Footnote 49} Further, following the Williams (No 1) case, section 32B of the Financial Framework (Supplementary Powers) Act 1997 (Cth) was introduced, which empowers the Commonwealth government to ‘enter into, vary or administer a grant of financial assistance if it is specified in Schedule 1AA or Schedule 1AB’ to the Financial Framework (Supplementary Powers) Regulations (Cth).^{Footnote 50} However, as Williams (No 2) makes clear, this authorisation is only valid where there is a Commonwealth head of legislative power.^{Footnote 51} Where neither of these situations apply, then specific legislation within the Commonwealth’s legislative competencies must provide the Commonwealth with the power to enter into the financial arrangement.^{Footnote 52} This means that Commonwealth funding to individuals or organisations in areas without obvious heads of legislative power may be susceptible to constitutional challenge, such as in the areas of education, the environment, sports or the arts, provided the High Court rules that the person who makes the challenge has sufficient standing to bring an action.^{Footnote 53} However, as Twomey points out, the constitutional risk of individuals challenging grant decisions by government is low, as recipients of grants are normally happy to receive the funds, and others do not have standing to challenge such decisions.^{Footnote 54}

Despite the strength of case law subjecting executive expenditure to parliamentary scrutiny, a broader issue is the interrelationship between Parliament and the executive over the control of public money. Although Australia’s system of responsible government is predicated upon Parliament providing oversight over executive spending,^{Footnote 55} the reality is that Parliaments tend to rubber stamp the executive’s decisions over grants distribution for constitutional, institutional and practical reasons. As Bateman notes:

Constitutional provisions constrain the ability of the Senate compared to the House of Representatives, where the government has the majority. Sections 53 and 54 of the Constitution limit the Senate’s ability to amend annual appropriation acts to only that expenditure which is not part of the ‘ordinary annual services’ of government.^{Footnote 57} The definition of ‘ordinary annual services’ of government has been continually renegotiated between the government and Parliament; however, under the current compact, grants to States, individuals or entities would not be within that definition.^{Footnote 58}

More significantly, section 56 of the Constitution restricts the introduction of appropriation bills to the House of Representatives, which effectively gives the executive the ultimate power to determine the content of spending legislation, leaving Parliaments with only a power to either ratify the executive’s decision or block supply, triggering a reformulation of government.^{Footnote 59} As blocking supply is the ‘nuclear option’, it is generally not practicable to invoke. Even apart from this constitutional straitjacket, the Senate would generally be reluctant to block government spending programs due to the political consequences of any potential public uproar if individuals or groups do not receive proposed government benefits. In addition, the Senate does not have the resources to closely scrutinise the thousands of grants program that are proposed by the government each year. These factors leave the Senate in a supine position relative to the government in public finance. Therefore, the executive is preeminent in controlling the public purse.

Section 96 of the Constitution is another relevant provision, as it provides the ability of the Commonwealth to provide financial assistance to the States on such terms and conditions as it sees fit.^{Footnote 60} This provision has been interpreted expansively by the High Court to enable the Commonwealth to provide tied grants to the States with onerous terms and conditions without a head of legislative power, exacerbating the vertical fiscal imbalance between the Commonwealth and the States.^{Footnote 61} The constitutional interpretation of section 96 has been roundly criticised by academics, but the orthodoxy has remained unchanged.^{Footnote 62} Due to its broad interpretation, section 96 is an alternative mechanism for Commonwealth funding programs where it is otherwise not possible due to a lack of head of Commonwealth legislative power.

Thus, constitutional provisions specify broad parameters for the use of Commonwealth public funds, generally requiring parliamentary authorisation of funding based on the principle of responsible government, while more generous provisions apply to grants channelled through the States. However, due to constitutional, institutional and practical factors, parliamentary control over public finance is an illusion, rather than the practical reality of executive governance. This points to the need for more robust legal and political regulation of grants administration.

IV Legal and Political Regulation: From Investigation to Rectification

This article will now examine the legal and political regulation of grants administration by reference to three main stages. The first is the initial reporting and investigation of agency grants administration by scrutiny bodies, which brings to light any mismanagement or politicisation of grants processes. Second, the legal accountability framework will be examined, including the Commonwealth Grants Rules and Guidelines 2017 (Cth) and ministerial codes of conduct. The third aspect is rectification, which involves consequences of breaches of the rules, such as providing remedies to those aggrieved or imposing sanctions on those who transgress the rules.

V Evaluation, Recommendations and Reform

As we have seen above, the legal and political regulation of grants programs operates through a complex network of legislation, ‘soft law’ guidance, and the operation of scrutiny bodies. The previous section has shown that political regulation, involving the initial identification of grant maladministration and investigation of issues through the scrutiny bodies of the Auditor-General, Ombudsman and parliamentary committees, is effective in bringing to light any bias or partisanship in the apportionment of grant funding. However, parliamentary committees cannot always be expected to provide dispassionate, non-partisan reviews of a grants program, because the committees are made up of parliamentary colleagues of those responsible for the program and their Opposition, who may later be in government. Auditors-General, despite having a more neutral vantage point, are always examining programs from the preceding election, which was fought long ago and likely won by the party-in-government using the benefits of the grants schemes being examined. A Minister may lose his or her cabinet position, but the larger effect on the election outcome was long ago written in stone. For the same reason, reliance on Ministerial Codes of Conduct, which would have an offending Minister front the Prime Minister to answer for their malfeasance, seems ironic at minimum: the Prime Minister retained their power in part because of these distributive schemes, and the schemes likely were put into place with the leader’s knowledge and support. Thus, due to temporal and political reasons, political accountability has not been effective in preventing the ongoing practice of pork barrelling in government. To compound this, the legal regulation of grants funding has been deficient, due to the loopholes in the coverage of the CGRGs, the lack of enforcement mechanisms for breaches of the rules, as well as the lack of remedies for those aggrieved by grant decisions.

There are significant and prevalent problems in the grants allocation process by Ministers in Australia, who have utilised discretionary grants programs to distribute funds opportunistically for partisan purposes. The recent ‘Car Park Rorts’ and McKenzie ‘Sports Rorts’ affairs have shown that the politicisation may be occurring at the highest levels of government in a centralised way, with evidence that a ministerial adviser in the Prime Minister’s Office was involved in the allocation of grants in both schemes administered by line departments.^{Footnote 152} This raises another important matter, which is to what extent advisers in a Minister’s office have ‘independent agency’ — that is, legal authority — in the administration of grants programs. In several recent pork barrelling scandals, ministerial advisers have allegedly been giving directions to public servants and making decisions in the absence of clear direction from Ministers, as well as inserting themselves into the administration of these programs. This too potentially represents an area ripe for regulation, where grants guidelines should clarify that ministerial advisers have no legal authority over grants administration.^{Footnote 153}

At a general level, the prevalence of pork barrelling has been a problem that has plagued multiple governments across different electoral systems. This is because pork barrelling distributive politics reflect an intrinsic conflation of discretionary authority and access to the public purse. Where governments have the discretion to allocate grants, there is a strong incentive to do so in a partisan fashion to their benefit, although the form it takes depends on the opportunity structures provided by the electoral system in which it occurs. Pork barrelling in Australia assumes a distinctly different form than in the United States. In the US, the locus of discretionary power is the hands of key individuals in legislative committees who seek to dissociate themselves from the vagaries of party fortunes, and parties do not become government, whereas in Australia, parties assume the mantle of government and thus have incentives to use ministerial discretionary authority for the benefit of their party, lest they lose government at the next election. This means that the temptation of pork barrelling is systemic, universal and deeply entrenched.

The early reforms of grants regulation in Australia have focussed on the transparency imperative in providing centralised public disclosure of all Commonwealth grants through the GrantConnect website.^{Footnote 154} This website provides a public database of grant opportunities as well as grants awarded. The recipients and amount of all government grants are listed and searchable on this website. Government grants must be published on this website within 21 days of a grant agreement taking place.^{Footnote 155} This is a commendable initiative as transparency in government is a democratic ideal, based on the notion that an informed citizenry is better able to participate in government, thus providing an obligation on government to provide public disclosure of information.^{Footnote 156} Enhanced transparency also goes towards the prevention of corruption; as the saying goes: ‘sunlight is … the best of disinfectants’.^{Footnote 157} The comprehensive and centralised publication of grant outcomes allows the public and interest groups to scrutinise how grants are allocated.

To further enhance transparency, the CGRGs could be amended to require Ministers to report to Parliament on all grants they have approved that were not recommended by government officials, including a statement of reasons. Currently, the requirement is only to report to the Finance Minister, who does not have an incentive to publicise this information, as they are part of the core executive. However, a requirement to report the approval of non-recommended grants to Parliament is likely to be more effective in achieving transparency, given that the Opposition and minor parties may publicise this information to embarrass the government.

However, it is acknowledged that transparency alone is inadequate to stop the deep-seated incentives for politicians to utilise partisan grant allocation for their political benefit. Thus, transparency has to be combined with other accountability mechanisms.

Another important aspect of grants administration reform is to enhance the skills of the public service in grants administration. As discussed, one recurring issue is that the design of administrative arrangements for grants programs, such as the selection criteria, who applies them and how, record-keeping, and who decides eligibility and funding, is not being scrutinised and questioned sufficiently at the inception phase. The Auditor-General has criticised the handling of grants by certain departments on a number of occasions as being ineffective, ‘not fully informed by an appropriate assessment process or sound advice’, or in breach of the CGRGs.^{Footnote 158} This suggests that public servants would benefit from upskilling in terms of grants administration. The Department of Finance should play a greater role in actively scrutinising and advising agencies that may be less experienced at designing grants schemes, on the probity of their grants administration processes. Alternatively, there could be specialised grants administration training for public servants or independent advice on grants administration could be commissioned, such as by hiring a probity adviser to provide advice on grants funding. Centralised grants training for public servants exists in the United Kingdom. The Government Grants Academy, run by the UK Cabinet Office, is tasked to develop a strategy for increasing grant-making capability across government, including developing training modules covering specialisms and key areas of weakness in the grant-making process.^{Footnote 159}

The upskilling of the public service will enable them to design grants criteria and guidelines in a robust manner and to provide better advice to Ministers in conducting their roles in administering government grants. However, this reform, while improving departmental grants administration, does not prevent the issue of pork barrelling, that is, in terms of Ministers overriding merit-based recommendations by public servants and allocating funds in a partisan manner.

A radical proposal that would completely remove the partisan element of grants administration is to transfer the responsibility for grants administration from politicians to public servants. Another possibility is to introduce an independent statutory body that makes grants determinations, with Ministers specifying the criteria for democratic participation but being unable to override grants decisions. This will wrest control of this aspect of discretionary spending from those who relish the dishonest political gains it provides and completely insulate grants administration from any political pressures. Public servants, making decisions based on clearly defined criteria, would be more likely to make decisions based on merit. One disadvantage is that this reform may put too much power in the hands of public servants, who are not directly accountable to the electorate. However, it is noted that decisions of public servants would be subject to judicial review. Another issue is that Ministers may nevertheless seek to unduly influence public servants to allocate grants according to their desires. Thus, the institutional independence of public servants remains an issue, with senior public servants on fixed term contracts being particularly susceptible to ministerial pressure. However, if a public servant acted under the dictation of the Minister, this would be a ground of judicial review. Despite the benefits of such a proposal, this kind of wholesale reform is not realistic from a political point of view, given the strong incentives for politicians to retain the power to distribute discretionary funding.

Given that the removal of ministerial discretionary authority over grants allocation is unlikely to occur in the near future, there are nevertheless other reforms that should be considered to improve the existing system. This article has shown that the current legal regulation of grants funding has been deficient, due to the loopholes in the coverage of the CGRGs, the lack of enforcement mechanisms for breaches of the rules, as well as the lack of remedies for those aggrieved by grant decisions.

The implementation of whole-of-government rules in the form of the CGRGs has been a positive measure, which provides detailed guidance on the selection and allocation processes for grants. However, these are beset by loopholes where, due to definitional and structural issues, the rules do not apply to major grant programs conducted through corporate Commonwealth entities and through the States, as discussed in Part IV above.

The government has taken promising first steps by agreeing that CGRGs should be extended to corporate Commonwealth entities, in line with the recommendation of the Auditor-General following the 2019 ‘Sports Rorts’ affair,^{Footnote 160} although this has yet to be implemented. Alongside this reform, the PGPA Act should be amended to enable the Commonwealth to make legislative instruments relating to Commonwealth corporate entities, in addition to non-corporate Commonwealth entities. In addition, it is recommended that the CGRGs be extended to payments made to the States towards achieving Commonwealth grants programs. The extension of the coverage of the CGRGs to both corporate Commonwealth entities and grants channelled through the States will ensure that the regime of detailed policy guidance applies uniformly to all grants programs across the Commonwealth, irrespective of the structure of the programs.

Further, internal and external monitoring of compliance and sanctions for breaches of the PGPA Act grants provisions and the CGRGs should be introduced, so that there is centralised scrutiny of grants administration and repercussions for non-compliance with the rules. Under the current legislation, breaches of the CGRGs by Ministers or public officials attract no sanction, and there is therefore no legal disincentive from breaking the rules. These sanctions could include significant fines to individuals who breach the rules, which would reduce the benefits accrued from pork barrelling.

One possibility to bolster enforcement is to internally police compliance with grants rules by ensuring that the Department of Finance conducts regular audits of agencies on compliance with the grants guidelines. As the Auditor-General’s critical reports have shown,^{Footnote 161} there has been a growing trend for public servants to give non-compliant advice to government and a failure of central agencies to take any responsibility for compliance with the rules they establish, under the guise of devolution of responsibility. The entrenchment of the responsibility of the Department of Finance as a central agency in auditing compliance, in addition to their roles in establishing the rules (including the CGRGs) and training public servants, will improve grants administration across government.

However, the Department of Finance is an administrative body that lacks independence from the core executive and thus does not have the incentive to strongly enforce breaches of the rules. Hence, alongside this internal auditing mechanism, another potentially more effective option is to provide power to external scrutineers to impose sanctions for breaches of the CGRGs and PGPA Act, such as a statutory commissioner introduced to police financial governance under the PGPA Act. Increasing both internal and external scrutiny of agency grants administration, in addition to implementing repercussions for breaching the rules, may deter undesirable conduct and thereby improve the performance of public officials in administering public funds responsibly.^{Footnote 162}

Another potential reform option is to expand legislation such as the Government Procurement (Judicial Review) Act 2018 (Cth) (‘GPJR Act’) to cover grants and thereby provide standing and remedies to those who have been denied grants due to the allocation process not being on merit. The GPJR Act enables judicial review in the Federal Court or Federal Circuit Court for breaches of the Commonwealth Procurement Rules (‘CPRs’) by non-corporate Commonwealth departments and agencies, specified statutory corporations and wholly owned government companies.^{Footnote 163} A supplier also has the statutory ability to complain to a relevant Commonwealth entity about a contravention of the CPRs, which the Commonwealth entity is obliged to investigate.^{Footnote 164}

In a judicial review proceeding under the GPJR Act, the Court has the power to order an injunction to prevent a Commonwealth entity from engaging in conduct that breaches the CPRs and to order the Commonwealth entity to take actions directed by the Court.^{Footnote 165} In addition, the Court may order the payment of compensation for a contravention of the CPRs, although this is limited to expenditure incurred by the supplier in preparing a tender, and making or resolving a complaint.^{Footnote 166} If the GPJR Act is extended to grants, this would provide unsuccessful grant applicants with a mechanism for making a complaint to the government agency administering the grant that must be investigated, as well as streamlined standing for judicial review, and potentially more effective remedies in terms of an injunction or compensation for costs.

In this vein, it is noted that some grant processes involve procurement to select a contractor to determine grant allocation and administer the funding once recipients have been chosen. There is therefore a significant crossover between the application of the CPRs and the CGRGs, and it is argued that the two should be combined. Rather than being seen as questioning the merits of government decision-making on public policy matters, it is arguable that the issue of pork barrelling should be construed as holding the government to account for the expenditure of public funds (in the same way as procurement), thus enabling greater transparency and accountability. An overarching problem in terms of reforms of this nature is that any regulatory reforms would require legislation being passed to put those new mechanisms into place — thus requiring politicians to put shackles on their own wrists in terms of grants administration. There is therefore no political will for governments to introduce these and other accountability mechanisms. The most likely avenue of change, much like the establishment of anti-corruption commissions, is for the government or Opposition parties to electorally campaign based on integrity reforms, including reform of grants administration, and then when in government be politically compelled to fulfil their election promises. Nevertheless, the strengthening of these rules and regulations are essential to combating the deep-seated incentives of politicians to continue to misuse the system of grants funding.