High Court: August 2021

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 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, s 10(c) of the FITS Act defines ‘foreign principal’ to mean, inter alia, a ‘foreign political organisation’. The FITS Act, under s 18, provides that if a person undertakes a ‘registerable activity’ on behalf of a foreign principal that person becomes liable to register under the FITS Act. A ‘registerable activity’ is defined to include, in s 21(1) of the FITS Act, a ‘communications activity’. A ‘communications activity’ is defined, under s 13(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 FITS Act has certain responsibilities. These include, among other things, keeping records and giving disclosure of the foreign principal. The FITS 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 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’ (at [1]). Since incorporation, LibertyWorks has organised political conferences, made submissions to Parliament and maintains a website promoting individual freedom in public policy. A not disimilar organisation to LibertyWorks was established in the United States of America: the American Conservative Union (‘ACU’). The stated purpose of the ACU is to influence politics and politicians in the United States from a ‘conservative/classical liberal perspective’ (at [2]). 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 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 politicans (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 FITS Act. The Deputy Secretary subsequently issued a notice to LibertyWorks, under s 45 of the FITS Act, requiring LibertyWorks to provide information to assist the Deputy Secretary to determine whether registration under the FITS 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 FITS 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.