[My Constitutional Law is rusty and so this is an attempt to start a conversation, not to make a definite argument on this issue. I really welcome thoughtful debate.]
The NSW government has recently issued new ‘Principles for Funding of Legal Assistance Services‘ (‘Principles’) in which they have included a new paragraph designed to limit the capacity of community legal centres (‘CLCs’) and Legal Aid centres to carry out political advocacy or activism:
3. In addition NSW Legal assistance services funded by Legal Aid and Public Purpose funding will not include activities which may reasonably be described as political advocacy or political activism. This may include but is not limited to:
(i) Lobbying governments and elected officials on law reform and policy issues (that goes beyond the activities described at principle 2(vii));
(ii) Public campaigning and advocacy, including use of traditional and social media and participating in rallies or demonstrations for causes seeking changes to government policies or laws;
(iii) Conducting workshops directed to political activism (that goes beyond the activities described at principle 2(v));
(iv) Providing representation or advice (other than initial legal advice as described at principle 1(iii)) to activist groups, lobbying groups and action groups.
The question is whether these Principles breach the implied freedom of political communication under the Australian Constitution. The established test for determining the answer to this question is set out by the High Court in Lange v. Australian Broadcasting Corporation (1997) 189 CLR 520, 567–8:
First, does the law effectively burden freedom of communication about government or political matters either in its terms, operation or effect? Second, if the law effectively burdens that freedom, is the law reasonably appropriate and adapted to serve a legitimate end the fulfilment of which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government and the procedure prescribed by s 128 for submitting a proposed amendment of the Constitution to the informed decision of the people… If the first question is answered ‘yes’ and the second is answered ‘no’, the law is invalid.
The first issue that must be considered in this case is whether the Principles could be considered to be ‘law.’
The Principles do not appear to be grounded or reflected in legislation or regulations, but they are executive actions of the NSW government and may be subject to the Constitution on this basis. (I’ll return to this issue further below.)
If so, does the ‘law’ effectively burden freedom of communication about government or political matters either in its terms, operation or effect?
By prohibiting CLCs from carrying out political advocacy and activism, the Principles do burden political communication. Of course, the High Court has been clear that ‘the freedom of communication which the Constitution protects is not absolute. It is limited to what is necessary for the effective operation of that system of representative and responsible government provided for by the Constitution.’ [Lange: 561]. As Dan Meagher has argued here, the implied freedom is, thus, directed at protecting political communication that ‘may reasonably be relevant to the federal voting choices of its likely audience.’ (For an extended discussion on how broadly this could – even ought to – be interpreted, see Adrienne Stone here, but for the purposes of this post I’ll confine my arguments to a very limited definition.)
The NSW State government, not the Commonwealth, has imposed the Principles. However, the relevant issue is the effect of the ‘law’ in question, not whether they originate at the Commonwealth level (see, for example, Anne Twomey on this issue here] and these guidelines have been very broadly drafted so as to limit political advocacy and activism on both State and Federal issues. It could certainly be argued that paragraph 3 of the Principles (quoted above) expressly limits the capacity of citizens to receive political communication on issues relevant to the free and informed election of the Commonwealth Senate and Legislative Assembly. Sub-paragraph (iv) also limits the capacity of other groups to freely communicate on these issues. Therefore, (subject to the question of whether they constitute a ‘law’) the answer to the first leg of the Lange test is ‘yes.’
What about the second limb of the test?
Are the Principles ‘reasonably appropriate and adapted to serve a legitimate end the fulfilment of which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government…?’ Well, the NSW government claims that the purpose (or ‘end’) of the Principles is to ensure ‘that taxpayers’ dollars are earmarked for core legal services and advice.’ This leads to two separate possible arguments.
First, it might be argued that this claimed purpose is not, in fact, the true end of the Principles being imposed by the NSW government. Instead it is arguable that the true purpose of these laws is to suppress political advocacy and activism by CLCs, in which case it could be further argued that the fulfilment of such an end is incompatible with ‘the maintenance of the constitutionally prescribed system of representative and responsible government…’ But this argument would require establishing that the NSW government is being dishonest about its purposes and that wouldn’t be easy.
The second possible argument is that the guidelines in question are not reasonably appropriate and adapted to serve a legitimate end. If the NSW government wants to ensure that its funding of legal services is targeted to specific activities then it could simply specify that its grants are so directed. Instead paragraph 3 of the Principles prohibits CLCs from carrying out political advocacy at all. Since a significant proportion of CLC funding comes from the Commonwealth and private donations (see this Report which states that ‘[i]n 2011/12, the Commonwealth Government provided funding of $7.65M, the NSW Government provided $5.39M, and the PPF provided $5.26M. CLCs also receive some funding from philanthropic organisations and through donations.’), paragraph 3 is drafted overly broadly and serves to suppress political activities even where they are not funded by the NSW government and, thus, unconnected to the stated purpose of the ‘law.’ On the basis of this argument, the answer to the second limb of the Lange test would be ‘no,’ thus making the ‘law’ invalid.
Nonetheless, the remaining issue to be determined is whether this executive action of the NSW government is ‘law’ for the purposes of the Lange test, particularly since it could be argued that as a condition of funding it is not coercive. I’m not sure of the answer to this question. However, I would argue that there are good public policy reasons for including this kind of action under the Lange test.
There are a wide range of public and community institutions that receive government funding and which are essential to the free communication of political information in Australia. These include the ABC, SBS, public libraries, the Australian Film Institute, and a wide range of other service and institutions. If the government were to use conditional funding to severely limit the capacity of all of these institutions to host or participate in political communication (in a similar manner to that recently adopted by the NSW govt towards CLCs) then political communication in Australia would be severely restricted – despite the supposed democratisation of public debate via the medium of social media.
The targeting of CLCs (and Legal Aid) is particularly concerning, because these services are specifically established to support and champion the most disadvantaged groups in Australia. While wealthier groups may have access to either the education or paid advice necessary to properly analyse and critique the laws and policies that affect their lives (and, thus, the informed decision of voters at election time), many disadvantaged groups do not. For these groups to properly engage in public debate on issues of law reform and other complex policy issues, legal support from CLCs is sometimes necessary. To prohibit CLCs from providing this support is to target the political freedom of Australia’s most disadvantaged groups.
[I’ve not touched on the possible relevance of section 96 – the Commonwealth’s power to make conditional grants to the States – because I think the analogy is a bit stretched given that the Constitution makes specific provision for the Commonwealth to attach these conditions to its grants. I also wonder if these conditions could still be challenged where they were to directly breach the Constitution – rather than on the grounds of Commonwealth overreach. For example, would a condition that threatened freedom of interstate trade still be valid?]