Media release: Federal Government removes ‘gag’ clause imposed on community legal centres, a move welcomed by sector peak body

 

For release: 30 November 2022

The Federal Government has announced it will remove ‘gag’ clauses that restricted community legal centres’ ability to participate in law reform and advocacy, campaign for systemic change, and challenge unjust laws. 

In 2014, the former Federal Government introduced a clause into the National Legal Assistance Partnership that specifically banned community legal centres from using Commonwealth funding to participate in political advocacy and ‘lobbying’. ‘Lobbying’ was defined broadly as undertaking any campaign designed to challenge or support any “administrative, legislative or policy decision”. Community legal centres who receive federal funding have operated under the ‘gag’ clause for the past eight years. 

Community legal centres play an important role in advocating for our communities in matters of public interest, whether it’s Redfern Legal Centre challenging unjust Covid fines, the Environmental Defenders Office protecting future generations from the harms of proposed coal mines, or Women’s Legal Service NSW fighting for a fair laws and policies for victim-survivors of violence and abuse, to name just a few. 

In a public statement released today, Attorney General Mark Dreyfus recognised the important role that community legal centres play when it comes to our role as advocates for progressive policy and law reform. 

Katrina Ironside, Executive Director at Community Legal Centres NSW said: 
“Attempts to gag the advocacy of community legal centres fly in the face of robust and open democracy. The funding agreement introduced by the former government had a chilling effect on community legal centres. It was introduced to deter us from challenging injustice and to restrict our ability to advocate for legislative and policy.” 

“As services at the coalface, community legal centres are uniquely placed to identify structural and systemic issues and develop meaningful solutions to these barriers to justice.” 

“We wholeheartedly welcome this announcement. It shifts us from an environment that deterred advocacy, to one that embraces it. We’re a sector that really believes that change is possible. And this decision shows that the federal government understands the value of community legal centres as advocates for change.” 

Media contact 
Stella Maynard, Media & Communications Officer, Community Legal Centres NSW
stella@clnsw.org.au | 0481 567 482 

Background

Community legal centres were established almost fifty years ago to provide legal services for people who experience deep and persistent disadvantage, and advocate for systemic change. Community Legal centres are community-based and take a holistic approach, combining casework, law reform, community development, and advocacy.  Community legal centres operate independently from government but for over two decades, governments have introduced gag clauses into funding agreements with community legal centres in an attempt to limit participation in public debate. 

A history of community legal centres and gag clauses

1998: Under John Howard’s Federal Government, contracts with community sector organisations “routinely included gag clauses and reserved the right to censor public statements before they were released” (Source). At the time, Louis Schetzer from the Federation of Community Legal Centres in Victoria argued that this threatened community legal centres’ core values. The Environmental Defenders Office had a funding restriction not to undertake litigation, and the Job Watch Community Legal Centre in Victoria was forbidden from making comment publicly on the laws affecting their work without prior approval of the relevant Minister (Source). Being independent of government is key being able to vigorously advocate for systemic change. Shetzer argued that gag clauses, restrictive funding agreements, and competitive tendering processes devalued that independence and prioritised legal casework services above law reform and community development work; in doing so, the core work of community legal centres was under threat. (Source)  

 2008: Labor Government removes gag clauses introduced during the Howard Government’s era.  (Source

2010: After a four-year legal battle (Aid/Watch incorporate v Commissioner of Taxation 2010), the High Court determined that charities engaging in political debate is in the public interest. A majority of the High Court held that organisations were not necessarily excluded from charitable status (or its resulting tax concessions) because it had a main or dominant political purpose. According to Joyce Chia, this “pave[d] the way for organisations to primarily and wholly engage in advocacy,” removing “the ‘chilling’ uncertainty caused by the doctrine which had deterred charities from engaging in advocacy”. (Source)  

2013: Following the Queensland Government, the NSW Government introduces gag clauses into state funding agreements with community legal centres. The new NSW Legal Assistance Services Funding Principles places limits on “lobbying governments and elected officials on law reform and policy issues” as well as “public campaigning and advocacy, including the use of traditional and social media, participation in rallies or demonstrations for causes seeking changes to government policies or laws”. (Source

2013: Julia Gillard’s Federal Labor Government passes the Not-for-Profit Sector Freedom to Advocate Bill 2013. This invalidates past, present and future clauses in Commonwealth agreements with the not-for-profit sector that restrict or prevent not-for-profit entities from advocating on Commonwealth law, policy, or actions. (Source

2014: The Federal Government, led by Tony Abbott, removed a ‘no-gag’ clause from community legal centres’ federal funding contracts that explicitly recognised the right to advocate. Funding agreements now included an explicit clause that states organisations cannot use Commonwealth money for “any activity directed towards law reform or advocacy”. As Liana Buchanan from Victoria's Federation of Community Legal Centres said at the time, “It's a gag clause that will say that community legal centres can work every day with vulnerable and disadvantaged people, but they're not allowed to talk about it and you're certainly not allowed to talk about it with media or with politicians” (Source).    

2015: Shadow Attorney General Paul Lynch introduces Non-profit Bodies (Freedom to Advocate) Bill 2015 into the NSW Parliament. The Bill does not pass Parliament.   

2021: The Federal Government, led by Scott Morrison, introduces new regulations that would have given the charities regulator sweeping powers to deregister charities for speaking out on behalf of the communities they serve. As the Hands off Our Charities Alliance said, “It was an attack on civil society, free speech, and our democracy. And charities fought back”. After a concerted campaign from the sector, on November 25 the Senate voted 24-19 in favour of Independent Senator Rex Patrick’s disallowance motion, meaning that the regulations would never come into effect. (Source)  

2022: The Federal Government ends the former government’s censorship of community legal centres by removing the ban on political advocacy introduced under Tony Abbott. Attorney General Mark Dreyfus said:   

Community legal centres, legal aid commissions, and Aboriginal and Torres Strait Islander Legal Services play a crucial role in ensuring that all Australians can access our justice systems. They understand better than most the challenges in their sector and the impacts of unmet need on vulnerable Australians.  

Ending censorship, and easing the administrative and bureaucratic burden will allow Community Legal Centres and other legal assistance providers to focus on doing what they do best - providing much-needed front-line legal assistance services.  

 Legal assistance providers are superbly well placed to provide advice on law reform and legal assistance. (Source)