30 March 2019
Jonathon Hunyor and Cassandra Goldie
Advocacy by independent groups in civil society is vital to a healthy democracy and makes for better government decisions and outcomes. Civil society plays a vital role in ensuring a more diverse range of voices are heard and the interests of those who may otherwise be excluded or marginalised are represented.
However, governments and some powerful interest groups do not always like advocacy by civil society, and regularly object to government funds being used for that purpose. While often expressed as an ideological position that funding advocacy is ‘not a role for government’, it’s a view that also aligns with the realpolitik: why support groups that may publicly criticise you?
It is an issue that has been played back and forth in recent decades. This article looks at the most recent battleground on which it is being fought out, namely whether the Constitution itself may pose a barrier to Commonwealth government funding for advocacy.
‘Gag’ clauses and ‘frontline’ services
In the late 1990’s, the Howard Government not only cut advocacy funding to civil society organisations, but went further to include explicit ‘gag clauses’ into Commonwealth funding contracts. In response to these developments, the Gillard Government made it unlawful, under the Not-for-profit Sector Freedom to Advocate Act 2013 (Cth) for Commonwealth agreements to contain ‘gag’ clauses, restricting or preventing not-for-profit entities from ‘commenting on, advocating support for or opposing a change to any matter established by law, policy or practice of the Commonwealth’.
Under subsequent Coalition governments, a number of developments have raised serious concerns about what appear to be further attempts tosilence criticism by civil society groups. This has included cutting funding to organisations engaged in advocacy, changing funding contracts so that funds can only be spent on so-called ‘frontline services’ and proposing new regulatory red tape about ‘political communications’ regarding issues which may be the subject of debates in Federal Elections.
For example, the current National Partnership Agreement on Legal Assistance Services provides that ‘Commonwealth funding should not be used to lobby governments or to engage in public campaigns’. This aligns with the emphasis on funding direct service-delivery in the Agreement, which provides: ‘Commonwealth funding should be directed to the delivery of front-line services and focused on meeting the legal needs of priority clients’. In this way, advocacy is not prohibited in itself – provided it is not undertaken with Commonwealth funds.
A right to political communication?
Despite the existence of an implied Constitutional right to freedom of political communication, there is nothing that legally obliges government to fund advocacy. While we regard advocacy by civil society as essential to the enjoyment of this freedom, particularly by members of minority groups that may otherwise be excluded from political debates, it still doesn’t mean that government is under a legal obligation to fund it. Professor Anne Twomey has suggested that it is ‘extremely unlikely’ that cutting funding to an organisation involved in advocacy ‘could be successfully challenged as a breach of the implied freedom, even if it had the effect of withdrawing support for the facilitation of political communication’.
It’s also the case that some organisations are able to comply with restrictions on their use of Commonwealths funds without being completely silenced, because they can find other sources of income to support advocacy activities. But others cannot, particularly those representing people who are least powerful and most poorly resourced.
An additional consequence is that organisations are unable to simply make their own assessment of how they can be most effective in achieving the purposes of a grant or what activities they should undertake to meet the needs of the community. Instead, they need to take care that their ‘advocacy’ work can be separated from their ‘frontline’ work to ensure it doesn’t fall foul of the dictates of funding agreements. The message to civil society is clear and an insidious ‘chilling’ effect prevails.
You can read more about the implications and impact of this silencing of civil society – as well as other developments that have threatened the ability of NGOs and charities (particularly environmental charities) to engage in advocacy – in the report of the ‘Civil Voices’ project undertaken by Pro Bono Australia and the Human Rights Law Centre and the HRLC’s ‘Defending Democracy’.
Don’t mention ‘the vibe’
Most recently, the Commonwealth Government has upped the ante, informing a number of organisations, including ACOSS, that they would no longer receive funding for ‘advocacy activities’ because such funding is not permitted under the Constitution.No legal advice has been provided in support of this position and the precise reasoning behind it remains unclear. When pushed, the Commonwealth has asserted that prohibited activity was very narrowly confined to advocacy to promote the peak body itself, rather than on the wider issues it exists to address.
The Government’s position is said to follow from the decision in Williams v Commonwealth, which examined the power of the Commonwealth to provide funding for the school chaplaincy program. Following this decision, it is clear that Commonwealth government expenditure must be ultimately supported by a Constitutional head of power.
This argument that the Commonwealth lacks constitutional power to fund advocacy is new, and has potentially far-reaching (and startling) consequences if correct. The Commonwealth has been providing advocacy funding to organisations, such as the ACOSS, for many decades.
ACOSS has sought advice on the issue from eminent senior counsel with expertise in constitutional law. The Public Interest Advocacy Centre was the solicitor engaged by ACOSS for that work. The advice, which ACOSS has provided to government, is clear and unequivocal: there is no Constitutional barrier to Commonwealth funding for advocacy.
Where the power lies
Now it is certainly true there is no explicit head of power to make laws – and accordingly provide funding – for ‘advocacy’ in the way that there is, for example, in relation to ‘lighthouses, lightships, beacons and buoys’. But nor does the Constitution specify a power for ‘advertising’, and yet the Commonwealth Government continues to enter into contracts for advertising to promote government programs.
The critical point is that the Commonwealth has the power to fund ‘advocacy’ in relation to subject matters (such as taxation, social security and so on) over which the Commonwealth can legislate. The subject matters over which the Commonwealth can legislate are very broad, particularly under the external affairs power, which incorporates subjects covered by international treaties to with the Commonwealth is a party, including human rights treaties that deal with health, housing, education and a range of other issues affecting people who are less powerful in Australian society.
The real issue, then, is whether advocacy activities are being undertaken in relation to one of the subject matters set out in the Constitution: in the case of civil society groups like ACOSS, that would include areas such as social security, taxation, migration and the whole range human rights, under the ‘external affairs’ power.
ACOSS has engaged extensively with the Commonwealth on this issue. The Government maintains its view, but has refused to release its legal opinion. As noted above, when pressed on the scope of ‘advocacy’ it insists it cannot fund, the only example that has been provided is ‘activities that advocate/promote/pursue the interests of the peak body itself or its members’.
In practice, for an organisation like ACOSS, the implications of this Commonwealth contention have been minimal. The few activities which fall within the Commonwealth’s current definition of advocacy in this context can be funded from other funding sources. And ultimately, ACOSS has renewed its funding contract with the Commonwealth for another three years. ACOSS will continue to fearlessly fulfil its advocacy role in the interests of its constituents, people affected by poverty and inequality, and has not lost funding for that purpose. However, not all civil society organisations are in this position. Further, the perceived uncertainty over what activities constitute advocacy can act as a further ‘chilling effect’ particularly on small organisations or organisations that rely heavily on government funding.
Time to restore trust
It is, of course, entirely sensible and proper for government to make sure it is acting within its constitutional power. It seems, however, that the real issue here is not whether government can fund advocacy by civil society. It’s whether it wants to.
The opposition to Commonwealth government funding for advocacy is wrong in principle, and concerns about a Constitutionalbarrier to doing so appear legally unfounded. A commitment to funding advocacy and removing restrictions that constrain organisations from undertaking it should bea pre-Election commitment by any political party that seeks to form the next Federal Government.
Such a commitment is essential to helping restore trust and confidence in our political system and ensuring a voice for those who often struggle to be heard.
Jonathon Hunyor is the CEO of the Public Interest Advocacy Centre.
Cassandra Goldie is the CEO of the Australian Council of Social Service.