Government Control Over Health-Related Not-For-Profit Organisations: Agency for International Development v Alliance for Open Society International Inc 570 US_ (2013)

Abstract

The relationship between government and the not-for-profit (NFP) sector has important implications for society, especially in relation to the delivery of public health measures and the protection of the environment. In key health-related areas such as provision of medical services, welfare, foreign aid and education, governments have traditionally preferred for the NFP sector to act as service partners, with the relationship mediated through grants or funding agreements. This service delivery arrangement is intended to provide a diversity of voices, and encourage volunteerism and altruism, in conjunction with the purposes and objectives of the relevant NGO. Under the pretence of "accountability", however, governments increasingly are seeking to impose intrusive conditions on grantees, which limit their ability to fulfil their mission and advocate on behalf of their constituents. This column examines the United States Supreme Court decision, Agency for International Development v Alliance for Open Society International Inc 570 US_(2013), and compares it to the removal of gag clauses in Australian federal funding rules. Recent national changes to the health-related NFP sector in Australia are then discussed, such as those found in the Charities Act 2013 (Cth) and the Not-for-Profit Sector Freedom to Advocate Act 2013 (Cth). These respectively include the establishment of the Australian Charities and Not-For-Profit Commission, the modernising of the definition of "charity" and statutory blocks on "gag" clauses. This analysis concludes with a survey of recent moves by Australian States to impose new restrictions on the ability of health-related NFPs to lobby against harmful government policy Among the responses considered is the protection afforded by s 51l(xxiiiA) of the Australian Constitution. This constitutional guarantee appears to have been focused historically on preventing medical and dental practitioners and related small businesses being practically coerced into government or large-scale private corporate operations. As such, it may prohibit civil conscription arising not only from "gag clauses" in managed care contracts, but also from "gag clauses" in governmental ideological controls over taxpayer-funded, health-related NFPs.