Who’s afraid of advocacy?

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.

/Public Release. View in full here.