Libertyworks Inc v Commonwealth of Australia
Libertyworks Inc sought a declaration from the High Court of Australia that the registration provisions under the Foreign Interference Transparency Scheme Act 2018 (Cth)(FITS Act) were beyond the power of the Commonwealth Parliament to enact because they contravened the implied constitutional freedom of political communication.
Speed and Stracey Lawyers (one of the Rule of Law Education Centre’s major supporters) represented Libertyworks Inc, a Queensland based think tank that aims to move public policy in the direction of increased individual rights and freedoms, including the promotion of freedom of speech and political communication. It is largely a conservative organisation.
Speed and Stracey will in appropriate cases represent a party to Court proceedings involving a substantial rule of law issue. Most proceedings are against a government or government agency that has exceeded its powers. Those powers can be found in statutes, or other legislative instrument. However there are usually limits on the exercise of the powers. Those limitations can be found in the statutes creating the power, but also under the Australian Constitution.
Implied Freedom of Political Communication
Click here to see the Rule of Law Education Centres resources and case notes on Implied Freedom of Political Communication
Foreign Interference Transparency Scheme Act 2018 (Cth)(FITS Act)
On 20 December 2018 the Foreign Interference Transparency Scheme Act 2018 (Cth)(FITS Act) commenced. The object of the Act is said to be to provide for a scheme of registration of person to undertake certain activities (including lobbying) on behalf of foreign governments and other foreign principles to improve the transparency of their activities. The FITS Act was enacted partly in response to ASIO advice that espionage and foreign interference activity against Australian interests is occurring at an unprecedented scale. The FITS Act was part of a range of strategies by the Government to counter foreign interference. The Department tasked with oversight of the FITS Act is the Attorney-General’s Department.
Relevantly, registration under the FITS Act is required if a person undertakes lobbying on behalf of a foreign principal. Due to the wide definitions of ‘foreign principal’, ‘on behalf of’ and ‘lobby’, it was not doubted that Libertyworks in undertaking its 2019 conference was lobbying on behalf of ACU and was accordingly required to register.
Failure to register under the FITS Act is a criminal offence punishable by up to 5 years imprisonment, and failure to provide information and documents is also a criminal offence punishment by imprisonment for up to 6 months.
In certain circumstances information obtained by the Attorney General’s Department under the FITS Act can be publish on a website. Other information obtained can be provided to the Australian Taxation Office, any of the State Revenue Offices, any Australian police force including the AFP and State Police Forces, any department, agency of the Commonwealth or State, and 20 Commonwealth and State enforcement bodies.
In August 2019, the Plaintiff co-hosted a CPAC (conservative political action conference) event in Sydney. The CPAC event was a 3-day political conference with 30 speakers and 581 attendees. Libertyworks sought and obtained the assistance of the American Conservative Union (ACU) to conduct and run the conference. The ACU is a conservative organisation which, among other things, has contributed and assisted Republican presidential campaigns in the United States. The ACU has for many years conducted its own CPAC and had agreed to assist Libertyworks in conducting its 2019 Conference. Libertyworks and the ACU co-hosted the Sydney Conference and ACU provided a number of conservative speakers for the event. Other speakers at the conference included Nigel Farage (past leader of the UK Independence Party and Founder of the Brexit Party) and Tony Abbott, a former prime minister of Australia.
Shortly before the conference the Attorney General’s Department wrote to Libertyworks and Tony Abbott informing them of their registration obligations under the FITS Act. No response was made to those communications.
Shortly after the conference the Attorney General’s Department issued a written request to Libertyworks for information and documents concerning the conference. The request include any understanding between Libertywork’s and the ACU, invitations and correspondence with individuals invited to speak at the conference, copies of video or audio recordings of speeches made at the conference, summaries of topics covered by speakers of the conference and material distributed by Libertyworks at the conference.
It was not in dispute that Libertyworks was required under the FITS Act to register and to provide the information and document sought by the Attorney General’s Department. However Libertyworks commenced proceedings in the original jurisdiction of the High Court 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.
There is little doubt that the Federal Government by requiring registration of Libertyworks and seeking information and documents about its 2019 Conference, burdened the freedom of political communication that is implied by the Constitution. But the freedom is not absolute. There may be legitimate reasons why it is necessary for Commonwealth or State legislation to burden the freedom. The question for the Court was whether or not the burden on the freedom was legitimate and if so whether the burden was reasonably appropriate and adapted to advance the legitimate object of the legislation.
On 2 March 2021 the full bench of the High Court (all 7 judges) heard the application by Libertyworks seeking to have provisions of the FITS Act declared unconstitutional on the basis that they inappropriately burdened the implied freedom of political communication. A copy of the transcript of the hearing is available here and also on the Court’s website for those interested in the matter.
The Court has reserved its decision.
Would it change your position if the Attorney General at the time the Attorney General’s Department issued its correspondence to Libertyworks and Tony Abbott, was a Labor Party Minister?
What would be your view if a Coalition Government was in power and the Attorney General’s Department issued similar correspondence with respect to a conference in support of Labor Party policies?
– Malcolm Stewart, Managing Director of Speed and Stracey Lawyers and
Senior Vice President, Rule of Law Education Centre