High Court declares implied freedom of political communication alive and well (mostly)
LibertyWorks Inc v Commonwealth of Australia [2021] HCA 18
Summary
The High Court of Australia, by majority of 5-2, has held that the Foreign Influence Transparency Scheme Act 2018 (Cth) (FITS Act) does not impermissibly burden the implied freedom of political communication by imposing registration obligations with respect to communications activities. The majority comprised a plurality of Kiefel CJ, Keane and Gleeson JJ, Edelman J and Steward J (Gageler and Gordon JJ in dissent).
Facts
The FITS Act was enacted on 28 June 2018, forming part of the Foreign Influence Transparency Scheme (Scheme). The Scheme requires a person to register details about themselves and their foreign principal with the Attorney-General's Department in certain circumstances. These included where they communicate to the Australian public information about an activity that they expect will be undertaken, where that person is under an arrangement with, in the service of, or under the order or direction of a foreign principal, and where the activity is to be undertaken for the sole or substantial purpose of political or governmental influence.[1]
In August 2019, LibertyWorks held a political event called the Conservative Political Action Conference Australia. The conference mirrored a conference held by the American Conservative Union. Organisers of the American event supported and attended the Australian event.
Pursuant to powers granted under the FITS Act, the Attorney-General's Department sought from LibertyWorks copies of invitations, letters and other correspondence, which LibertyWorks refused to provide. LibertyWorks commenced proceedings in the High Court, seeking, among other things, a declaration that the provisions of the FITS Act concerning communications activity by a person acting on behalf of a foreign principal were invalid on the ground that they infringed the implied freedom.
Decision
Kiefel CJ, Keane, Edelman, Steward and Gleeson JJ formed the majority upholding the validity of the impugned provisions, applying a three-step structured proportionality analysis[2] (described in our case note on Clubb v Edwards (2019) 267 CLR 171):
Does the law effectively burden the implied freedom in its terms, operation or effect?
Is the law legitimate by reference to its purpose? The plurality noted that a law will be legitimate if the burden imposed is 'compatible with the constitutionally prescribed system of representative government' [45].
Is the law a proportionate response to the purpose sought to be achieved? The plurality addressed this question by considering whether the response was suitable, necessary and adequate in its balance [46]. Consistent with earlier decisions concerning the implied freedom, however, the High Court did not uniformly endorse the structured proportionality analysis; although Justice Gageler (in the minority) ultimately expressed a view 'in the language of structured proportionality' [119]. Justice Gordon preferred the predecessor 'reasonably appropriate and adapted' formulation [134].
The first and second stages of the analysis were uncontroversial, the parties agreeing that, although the registration requirement imposed by the FITS Act burdened the implied freedom, the FITS Act sought to promote the legitimate purpose of transparency in political discourse by mandating disclosure [53].[3]
In relation to the proportionality assessment, the plurality found that:
Suitability requires a rational connection between the law's purpose and the measures adopted by the law. A clear, rational connection existed between the risk of foreign interference in political matters and a scheme seeking to minimise that interference by making transparent the identity of the foreign principal [76]–[77].
Necessity requires an obvious and compelling alternative measure available which is equally practicable and at the same time is less restrictive of the freedom. The plurality rejected the plaintiff's submission that the registration requirement did not assist the scheme to achieve its purpose, finding that that registration better informed public debate because members of the commentariat would be alerted to the presence of foreign influencers in public affairs [78]–[83].
Adequacy requires that the benefit sought to be achieved is not manifestly outweighed by the adverse effect on the Freedom. The FITS Act had a 'powerful public, protective purpose' which was not outweighed by the burden [85].
Edelman and Steward JJ concurred in the result and substantially endorsed the reasoning of the plurality.
Commentary
Extent of the burden
As is customary in debates about constitutional validity, the conclusions reached by the Court with regard to validity correlated precisely with the characterisation of the burden imposed by the law as either broad or narrow.
The plurality perceived a narrow burden, noting that registration was required only where the ideas of a foreign government or principal are communicated through a local intermediary. LibertyWorks was free to engage in political communications on its own behalf; it was the agreement with ACU that gave rise to the obligation to register [65]. Further, only a limited category of people would be required to register under the FITS Act, and only a small proportion of those people were likely to be deterred from engaging in political communication by the registration requirement [74].
Dissents by Justices Gageler and Gordon expressed concern about an unjustifiable gap that their Honours perceived in two repositories of information maintained by the Secretary and established under the FITS Act: a private register maintained by the Secretary, and a publicly accessible website:
The contrast between the precisely defined obligation of the Secretary to publish a subset of the information from the register on the website and the discretions of the Secretary both to collect information from registrants to be included on the register and to share information from the register with Commonwealth, State and Territory agencies and authorities highlights that the fundamental problem with the scheme is not that the discretions to collect and share information are overbroad but that they exist at all (Gageler J at [116]).
Justice Edelman, in siding with the majority, cautioned against overstating the powers of the Secretary under the scheme:
The only information or documents that the Secretary can require are those that are reasonably necessary for the Secretary to assess whether registration is required and to keep information on the register accurate. If "the general character of the statute" reveals that "powers were intended to be exercised only for a particular purpose, then the exercise of the powers not for such purpose but for some ulterior object will be invalid. Where the power is one to obtain information, the general character of a statute will define the purpose for which that information can be used. Registration, which is at the core of the FITS Act, is plainly the "general character" of the statute. A request for information or documents by the Secretary … will be ultra vires if it is not necessary for assessing whether registration is required or whether registration information needs to be corrected [221].
Does the implied freedom exist?
Although forming part of the majority, Steward J's judgment differed from the rest of the bench in one significant respect: it queried whether the implied freedom exists at all:
… for my part, and with the greatest of respect, 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 division within the Court over so important an issue may justify a reconsideration of the implication itself. [249]
This observation was surprising in light of the fact that there were no submissions before the Court challenging the existence of the Implied Freedom.[4] Steward J supported this observation by reference to three judgments of the High Court in particular [298]: Dawson J in Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104 (dissenting), Callinan J in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 (dissenting) and Heydon J in Monis v The Queen (2013) 249 CLR 92.
The plurality, by contrast, described the constitutional basis for the implication of the freedom as 'well settled' [44] by reference to the decisions in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520, Unions NSW v New South Wales (2013) 252 CLR 530 and McCloy v New South Wales (2015) 257 CLR 178, a conclusion expressed in similar terms by Gordon J [131]–[133], Gageler J [93]–[99] and Edelman J at [200]–[201].
The full judgment is available here.
Patrick O'Bryan is a lawyer at Allens.
[1] [16].
[2] [45]–[48]; [194]; [247].
[3] [60]; [126]–[127]; [198], [208]
[4] [304].