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Constitutional law – implied freedom of political communication

In the High Court decision of LibertyWorks Inc v Commonwealth of Australia [2021] HCA 18 (16 June 2021), the High Court was required to determine whether the Foreign Influence Transparency Scheme Act 2018 (Cth) (FITS Act) was invalid, to the extent that it imposed registration obligations with respect to communications activities, because it infringed an implied freedom of political communication.

The stated object of the FITS Act (the Act) is “to provide for a scheme for the registration of persons who undertake certain activities on behalf of foreign governments and other foreign principals, in order to improve the transparency of their activities on behalf of those foreign principals”.

Relevantly, s10(c) of the the Act defines ‘foreign principal’ to mean, inter alia, a ‘foreign political organisation’. Section 18 provides that if a person undertakes a ‘registerable activity’ on behalf of a foreign principal, that person becomes liable to register under the Act. A ‘registerable activity’ is defined to include, in s21(1), a ‘communications activity’. A ‘communications activity’ is defined, under s13(1), to consist of the communication, distribution or production (for communication or distribution) of material to the public or a section of the public.

A person who is registered under the Act has certain responsibilities. These include, among other things, keeping records and to giving disclosure of the foreign principal. The Act includes provisions creating offences, which may result in a penalty (including imprisonment), arising from breaches of the Act.

The plaintiff (LibertyWorks) is an incorporated association and has been described, at [1], 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 incorporation, LibertyWorks has organised political conferences, made submissions to parliament and maintains a website promoting individual freedom in public policy.

A not dissimilar organisation to LibertyWorks was established in the United States of America: the American Conservative Union (ACU). The stated purpose of the ACU, at [2], is to influence politics and politicians, in the United States, from a ‘conservative/classical liberal perspective’. In order to “harness the collective strength of the conservative movement and support the campaigns of conservative candidates”, the ACU organises an annual multi-day political conference in the United States called the Conservative Political Action Conference (CPAC).

The immediate past President and Vice President of the United States and government officials have attended CPAC. In 2018, LibertyWorks and the ACU agreed that they would collaborate in a CPAC event to be held in Sydney, Australia, in August 2019. The event was widely marketed by LibertyWorks. It featured speakers from Australia and overseas and included politicians (past and present), media personalities, members of ‘think tanks’, economists and social commentators. The promotional material described the ACU as the “Think Tank Host Partners” and a “co-host” with LibertyWorks.

Another event was proposed to take place in Australia in November 2020. But in August 2019, a Deputy Secretary of the Commonwealth Attorney-General’s Department wrote to LibertyWorks and asked LibertyWorks to consider whether it was required to register its arrangements with the ACU under the Act. The Deputy Secretary subsequently issued a notice to LibertyWorks, under s45 of the Act, requiring LibertyWorks to provide information to assist the Deputy Secretary to determine whether registration under the Act was required.

LibertyWorks did not respond to the notice. Instead, LibertyWorks issued proceedings in the High Court, in its original jurisdiction, seeking a declaration that the registration provisions under the Act were beyond the power of the Commonwealth Parliament to enact because they contravened the implied constitutional freedom of political communication. But the High Court in a 5:2 split rejected LibertyWorks’ claim.

All members of the High Court, save for Steward J, recognised the existence of an implied freedom of communication on matters of politics and government: Keifel CJ and Keane and Gleeson JJ at [44], Gageler J at [99], Gordon J at [131]-[132] and Edelman J at [198]. Keifel CJ and Keane and Gleeson JJ explain, at [44], that the basis for the implication is “well settled” and the freedom is “necessarily implied because the great underlying principle of the Constitution is that citizens are to share equally in political power and because it is only by a freedom to communicate on these matters that citizens may exercise a free and informed choice as electors”.

But Steward J expressed, at [249], skepticism about the existence of such an implied right. His Honour declared “it is arguable that the implied freedom does not exist. It may not be sufficiently supported by the text, structure and context of the Constitution and, because of the continued division within this Court about the application of the doctrine of structured proportionality, it is still not yet settled law”.

The plurality went on to recognise (indeed the Commonwealth conceded) that the registration provision under the Act did burden the implied freedom. But, the plurality considered that the burden was justified. The plurality held that the Act had a legitimate purpose to achieve transparency and obviate the risk that foreign principals will exert influence on the integrity of Australia’s political processes, and the registration provisions were proportionate to that purpose: Keifel CJ and Keane and Gleeson JJ at [76]-[85], Edelman J at [198] and Steward J at [287]. Gageler and Gordon JJ, in dissent, considered that the registration provisions of the Act impermissibly burdened the implied freedom.

Dr Michelle Sharpe is a Victorian barrister practising in general commercial, real property, disciplinary and regulatory law, p: 9225 8722, msharpe@vicbar.com.au. The full version of these judgments can be found at www.austlii.edu.au.

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