High Court answers conservative think tank query on foreign influence laws

A privately-run conservative think tank has failed in its bid to challenge Australia’s foreign influence laws on the basis they conflict with the basic perceived right to freedom of speech.

The High Court of Australia last week answered questions stated in a special case concerning whether the Foreign Influence Transparency Scheme Act 2018 was invalid to the extent that it imposed registration obligations with respect to communications activities, thus infringing the freedom of political communication implied by the Constitution.

In a written summary published on 16 June, the court said: “LibertyWorks Inc. is a private think-tank with 1290 members in Australia. The American Conservative Union (ACU) is a corporation in the United States of America which holds an annual political conference called the ‘Conservative Political Action Conference’ (CPAC).”

In 2019, LibertyWorks organised a conference in Sydney which attracted conservative voices from around Australia, including former Australian Prime Minister Tony Abbott and federal Australian Labor Party and Opposition Leader turned NSW One Nation Party Senator Mark Latham.

It also included controversial foreign speakers such as Brexit supporter Nigel Farage and British conservative Raheem Kassam.

LibertyWorks also linked up with the American Conservative Union to organise the conference.

In the United States, the CPAC conference attracts tens of thousands of people, and has regularly been addressed by former President Donald Trump.

“In 2018, the President of the plaintiff met with the Executive Director of the ACU and it was agreed that the plaintiff and the ACU would collaborate in a CPAC event to be held in Australia in 2019,: the court said.

“In August 2019, the plaintiff was asked by the Attorney-General’s Department to consider whether it was required to register its arrangements with the ACU under the Act.

“(LibertyWorks) plaintiff has not to date registered under the Act. The Act’s stated object is to provide a scheme for the registration of persons who undertake certain activities on behalf of foreign principals in order to improve the transparency of their activities on behalf of those foreign principals.

“The Act relevantly requires a person to register details about themselves and their foreign principal with the Secretary of the Attorney-General’s Department (the Secretary) where the person undertakes communications activity on behalf of the foreign principal for the purpose of political or governmental influence.

“A person undertakes communications activity if they communicate or distribute information or material to the Australian public or a section of it. The parties agreed in the special case that, subject to the question of validity, the (LibertyWorks) had registration obligations under the Act because it undertakes communications activity, in the form of holding annual CPAC events, on behalf of the ACU, a foreign principal for the purposes of the Act.”

The High Court, by majority, answered the primary question regarding whether the provisions of the Act respecting communications activity by a person who acts on behalf of a foreign principal were not invalid on the ground that they infringed the implied freedom.

A majority of the court found that the Act, in its requirement of registration where communications activity is undertaken on behalf of a foreign principal, burdened the implied freedom but held that the burden was justified.

“The provisions were held to have a legitimate purpose, namely to achieve transparency as a means of preventing or minimising the risk that foreign principals will exert influence on the integrity of Australia’s political or electoral processes,” the High Court summary said.

“The provisions were proportionate to the achievement of that purpose.”

The majority concluded that other questions, concerning the extent of the Secretary’s power to require information from a person prior to or after registration, did not arise for the opinion of the court in the absence of a case advanced against the validity of the Act on that basis.

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