LibertyWorks Inc. v Commonwealth of Australia

• Jurisdiction: Australia Federal only
• Court: High Court
• Judge: Kiefel CJ,Keane,Gleeson JJ.,Gageler J.,Gordon J.,Edelman J.,Steward J.
• Judgment Date: 16 June 2021
• Neutral Citation: [2021] HCA 18
• Docket Number: S10/2020
• Date: 16 June 2021

[2021] HCA 18

HIGH COURT OF AUSTRALIA

Kiefel CJ, Gageler, Keane, Gordon, Edelman, Steward AND Gleeson JJ

S10/2020

Libertyworks Inc

Plaintiff

and

Commonwealth of Australia

Defendant

Representation

P J Dunning QC with R Scheelings for the plaintiff (instructed by Speed and Stracey Lawyers)

S P Donaghue QC, Solicitor-General of the Commonwealth, with B K Lim and S Zeleznikow for the defendant (instructed by Australian Government Solicitor)

M G Sexton SC, Solicitor-General for the State of New South Wales, with S Robertson for the Attorney-General for the State of New South Wales, intervening (instructed by Crown Solicitor's Office (NSW))

Foreign Influence Transparency Scheme Act 2018 (Cth), ss 11, 12, 13, 16, 18, 21, 38, 42, 43, 45, 46, 52, 53.

Foreign Influence Transparency Scheme (Disclosure in Communications Activity) Rules 2018 (Cth).

Foreign Influence Transparency Scheme Rules 2018 (Cth), s 6.

Constitutional law (Cth) — Implied freedom of communication about governmental or political matters (“implied freedom”) — Where Foreign Influence Transparency Scheme Act 2018 (Cth) (“Act”) included registration requirement for persons undertaking communications activity on behalf of foreign principal for purpose of political or governmental influence — Where foreign principal defined to include foreign political organisation — Where plaintiff undertook registrable activities on behalf of foreign political organisation in holding annual Conservative Political Action Conference events which constituted communications activity — Whether Act to extent it imposes registration obligations with respect to communications activity undertaken on behalf of foreign principal effectively burdens implied freedom — Whether provisions for legitimate purpose — Whether provisions suitable, necessary and adequate in balance.

Words and phrases — “adequate in its balance”, “burden”, “communications activity”, “compelling justification”, “disclosure”, “foreign influence”, “foreign interference”, “foreign political organisation”, “foreign principal”, “legitimate purpose”, “narrowly tailored”, “necessary”, “political or governmental influence”, “prior restraint”, “register”, “registration”, “scheme information”, “structured proportionality”, “suitable”, “transparency”, “undisclosed influence”.

ORDER

The questions of law stated in the Amended Special Case filed on 1 March 2021 be answered as follows:

• 1. Is the Foreign Influence Transparency Scheme Act 2018 (Cth) invalid, to the extent it imposes registration obligations with respect to communications activities, on the ground that it infringes the implied freedom of political communication?

  Answer: No.

• 2. In light of the answer to question 1, what relief, if any, should issue?

  Answer: None.

• 3. Who should pay the costs of and incidental to this special case?

  Answer: The plaintiff should pay the defendant's costs.

1 Kiefel CJ, Keane AND Gleeson JJ. The plaintiff, LibertyWorks Inc, was incorporated in 2015 under the Associations Incorporation Act 1981 (Qld). It presently has 1,290 members in Australia. It is described in the Amended Special Case as “a private think-tank with an aim to move public policy in the direction of increased individual rights and freedoms, including the promotion of freedom of speech and political communication”. Since its incorporation the plaintiff has organised political conferences in Australia and made submissions to parliamentary enquiries on freedom of political speech. It maintains a website from which it has published more than 200 posts which seek to raise awareness of individual freedom in public policy and it maintains a social media presence.

2 The American Conservative Union (“the ACU”) was established as a corporation in the United States of America for the promotion of political freedom and for the purpose of influencing politics and politicians in that country from what is described in the Amended Special Case as a “conservative/classical liberal” perspective. Its Articles of Incorporation refer to its objects as being to foster and develop “a greater understanding and awareness of the tenets set forth in the Constitution of the United States and the Declaration of Independence to the end that the individual citizen shall understand, preserve and defend his or her inherent rights, liberties and responsibilities and cherish the principles upon which the Republic was founded”.

3 A statement on the website of the ACU refers to its purpose as being to “harness the collective strength of the conservative movement and support the campaigns of conservative candidates”. To this end the ACU organises and holds an annual multi-day political conference in the United States called the “Conservative Political Action Conference” (“CPAC”). Prominent people, including the immediate past President and Vice-President of the United States, government officials and sections of the media have attended CPAC.

4 At a meeting in 2018 between the President of the plaintiff and the Executive Director of the ACU it was agreed that the plaintiff and the ACU would collaborate in a CPAC event to be held in Australia in 2019, and that the ACU would provide the plaintiff with the names of speakers and otherwise assist to ensure its success. Since then the ACU has registered the word “CPAC” and a CPAC logo as trademarks in Australia. The CPAC event the subject of the discussions was held in Sydney in August 2019 and was widely marketed by the plaintiff. The CPAC event featured speakers from Australia, the United States, England and Japan. It included politicians (past and present), media personalities, members of “think tanks”, economists and social commentators. The promotional material for the event described the ACU as the “Think Tank Host Partners” and a “co-host” of it with the plaintiff. The Chairman, Executive Director and another board member of the ACU, together with ACU staff, attended the CPAC event. According to the Amended Special Case, another CPAC event was proposed to be held in Australia in November 2020.

5 A Deputy Secretary of the Attorney-General's Department wrote to the President of the plaintiff in August 2019 concerning the upcoming CPAC event to be presented by the plaintiff and the ACU. The Deputy Secretary outlined the scheme of the Foreign Influence Transparency Scheme Act 2018 (Cth) (“the FITS Act”), and observed that the ACU would appear to fall within the definition of a “foreign political organisation” and therefore would be considered a “foreign principal” and that an event such as the CPAC event would appear to be a “communications activity”. The plaintiff was asked to consider whether it was required to register its arrangements with the ACU under the scheme. Further correspondence followed, including a notice purporting to be given under s 45 of the FITS Act, which required information and documents which might enable the Deputy Secretary to determine whether the plaintiff was liable to register. The notice was not complied with and ultimately was not further pursued. The plaintiff has not to date registered under the FITS Act.

6 The plaintiff claims that the provisions of the FITS Act respecting communications activity by a person who acts on behalf of a foreign principal burden the freedom of political communication which is implied by the Constitution, cannot be justified and are therefore invalid.

Foreign influence – agreed facts

7 It is agreed between the parties to this Amended Special Case that in recent years there has been a global trend of attempts at the foreign influence of democratic processes. Official reports 1 have concluded that a foreign country sought to undermine the Brexit referendum in the United Kingdom, the 2016 Presidential election in the United States and the 2017 French Presidential election. Foreign actors in many countries have also sought to exert covert influence through the use of both traditional and social media, including by spreading disinformation

and propaganda. Two social media platforms have taken action against cyber troops engaged in foreign influence operations in at least seven countries 2

8 At the time that the FITS Act was enacted the Australian Security Intelligence Organisation (“ASIO”) had warned that espionage and foreign interference activity against Australia's interests was “occurring at an unprecedented scale” 3. Australia was experiencing undisclosed foreign influence both in respect of government and political systems and processes and more broadly in the Australian community. ASIO identified foreign powers clandestinely seeking to shape the opinions of members of the Australian public, media organisations and government officials to advance their own countries' political objectives, including through the recruitment and co-opting of influential and powerful Australian voices to lobby decision-makers. It identified ethnic and religious communities in Australia as the subjects of covert influence operations designed to diminish their criticism of foreign governments 4.

9 The parties agree that there is a distinction to be drawn between foreign interference and foreign influence. The parties agree that foreign influence may be taken to refer to activities undertaken on behalf of a foreign principal that influence government and political systems and processes. Foreign influence will amount to foreign interference if it is undertaken using covert, deceptive, corrupting or threatening means to damage or destabilise the government or political processes of a country 5.

10 In Australia, ASIO reports, foreign principals often pursue their own interests by engaging Australians to seek to influence governments and others on

their behalf. Almost every sector of the Australian community is a potential target for foreign influence but this is said to be particularly true in relation to parliamentarians and their...