Withholding Government Funding

Merritt Chris , ‘Legal Centres on Collision Course over Right to Lobby’, The Australian (Sydney), 14 September 2012

Hurst Daniel , ‘NGOs Told they are Right to Remain Silent to Keep Funding’, Brisbane Times (Brisbane), 21 August 2012

Salusinszky Imre , ‘Legal Centre Pays Price for Bid to Cripple Coal’, The Australian (Sydney), 20 December 2012 NSW Govt's ‘Principles for Funding of Legal Assistance Services’, states ‘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’. <http://www.naclc.org.au/cb_pages/files/Principles%20for%20Funding%20of%20Legal%20Assistance%20Services.pdf>.

Hurst , above n 2.

Not-for-Profit Sector Freedom to Advocate Act 2013 (Cth). The passage of this Act was supported by members of the Coalition. The new federal government's view on this legislation is not clear at this point.

Mill John Stuart , Utilitarianism, On Liberty, Considerations on Representative Government (Everyman, 1910) 83.

They include, eg, Australian Capital Television v Commonwealth (1992) 177 CLR 106 (‘Australian Capital Television’); Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 (‘Lange’).

The people also have an important role in any attempt to formally amend the Constitution (s 128). Other relevant provisions include s 1, s 8, s 30, s 41, s 61, s 62 and s 64.

Lange.

Lange, as slightly reworded by the High Court in Coleman v Power (2004) 220 CLR 1.

Stephens v West Australian Newspapers Ltd (1994) 182 CLR 104.

Levy v Victoria (1997) 189 CLR 579.

Ibid; specifically the Court found it was not limited to verbal communication: 595 ( Brennan CJ ), 613 ( Toohey Gummow JJ ), 622 ( McHugh J ), 637 ( Kirby J ).

Coleman v Power (2004) 220 CLR 1.

Monis v The Queen [2013] HCA 4.

‘[T]he people have a right to convey and receive opinions, arguments and information concerning matter intended to or likely to affect voting’ (Australian Capital Television, 232 ( McHugh J )).

Lange, 560 ( Brennan CJ Toohey Dawson Gummow Gaudron McHugh Kirby JJ ). This suggestion did not form the basis of the decision in that case, and no case has been decided on the application of the implied freedom to actions of the executive.

Williams v Commonwealth (2012) 86 ALJR 713. The case also re-confirmed executive power was subject to the Constitution.

Ibid.

Such argument has impressed the High Court in the context of federal government grants to the states upon conditions. The court has interpreted broadly the Commonwealth's power to place conditions on the receipt of money, on the basis that if the state finds the conditions objectionable, it doesn't have to accept the money: As Latham CJ put it, ‘temptation is not compulsion’ (South Australia v Commonwealth (1942) 65 CLR 373, 417).

Australian Capital Television, 143 ( Mason CJ ), 150 ( Brennan J ), 169 ( Deane Toohey JJ ) and 234 ( McHugh J ).

‘Congress shall make no law…’ (First Amendment, US Constitution).

Cantwell v Connecticut 310 US 296 (1940); Gitlow v New York 268 US 652 (1925); 14th Amendment prevents states from making any law which abridges the privileges and immunities of US citizens and guarantees equal protection.

408 US 593 (1972).

Ibid 597.

Lange, 560.

357 US 513 (1958).

Ibid 518.

468 US 364 (1984).

Ibid 382.

Congress is not obliged to fund viewpoints, or subsidise fundamental rights, including freedom of speech: Rust v Sullivan 500 US 173 (1991), Regan v Taxation with Representation of Washington 461 US 540 (1983). Thus government funding to a provider on the basis it not be used to fund abortion programs as a family planning option were validated in the former case. In the latter, denial of tax-exempt status to an organisation because of its lobbying was upheld despite a First Amendment challenge; cf Arkansas Writers' Project Inc v Ragland 481 US 221 (1987), invalidating on First Amendment grounds a state sales tax law's exemptions for ‘religious, professional, trade or sports periodicals’.

531 US 533 (2001).

Ibid 549.

Australian Capital Television , 140 and 143 ( Mason CJ ), 231, 235 and 239 ( McHugh J ); Nationwide News v Wills (1992) 177 CLR 1, 32 ( Mason CJ ), 79 ( Deane Toohey JJ ); Theophanous v Herald and Weekly Times Ltd (1994) 182 CLR 104, 130 ( Toohey Mason CJ Gaudron JJ ); Monis v The Queen [2013] HCA 4, [27–28]( French CJ ); Wotton v Queensland (2012) 246 CLR 1, 21 ( Heydon J ).

‘[T]here is little to be gained (in considering the Australian implied freedom) by recourse to jurisprudence concerning the First Amendment’, Monis v The Queen [2013] HCA 4, [326] ( Kiefel Crennan Bell JJ ).

(1986) 160 CLR 171.

Ibid 202 ( Deane J ).

208 (Dawson J)

Ibid 208 ( Dawson J ).

Australian Capital Television; Lange.

Aid/Watch v Commissioner of Taxation (2010) 241 CLR 539, 551.

Lange, as slightly reworded by the High Court in Coleman v Power (2004) 220 CLR 1.

Australian Capital Television, 145 ( Mason CJ ), 239 ( McHugh J ).