How free is free speech?

In LibertyWorks Inc v Commonwealth of Australia [2021] HCA 18, a majority of the High Court (5-2) found that provisions of the Foreign Influence Transparency Scheme Act 2018 (Cth) (“the Act”) which imposed registration obligations with respect to communication activities did not infringe the implied freedom of political communication (“the freedom”).

A Scheme for Transparency:

The Act was part of a suite of laws passed in 2018 designed to counter the threat of foreign states exerting improper influence over the Australian political landscape. The Act aims to ensure transparency when foreign principals use intermediaries to advance their political or governmental interests (for example through lobbying and other political communication).

The Facts:

In August 2019, LibertyWorks organised and held a political conference (“CPAC”) in collaboration with the American Conservative Union (“ACU”). It was asked to consider its obligations under the Act and was issued with a formal notice. It filed an action in the High Court arguing the obligation to register infringed the freedom.

The Freedom:

The Court has suggested that the freedom is implied by the Constitution and is necessary to ensuring citizens may exercise a “free and informed choice as electors”. The freedom is a “restriction on legislative power” rather than a personal right. In considering whether a law infringes the freedom, the Court will ask whether the law:

  1. is a burden on the freedom;
  2. has a legitimate purpose; and
  3. is “reasonably appropriate and adapted” to achieving its purpose.

If “yes” to the first two questions, the majority of the High Court suggest a “proportionality test” is required in response to the third question, which involves consideration of whether the law is justified as “suitable, necessary and adequate in its balance”.

The Decision:  

Justices Kiefel, Keane and Gleeson delivered a joint judgment. The registration requirements were a burden but achieving transparency and exposing foreign influence was a legitimate purpose necessary to Australia’s democracy. Turning to proportionality, their honours found:

  1. Suitability: the requirement to register had a rational connection to the purpose of achieving transparency. It was irrelevant that LibertyWorks’ arrangement with ACU was not covert or clandestine.
  2. Necessity: registration and disclosure were both required to achieve transparency. Disclosure alone would be insufficient.
  3. Adequacy in the balance: the important “powerful” and “protective” purpose of the Act was not outweighed by any “modest” burden on the freedom.

The Dissenting Judgments:

In separate judgments, neither Justices Gageler nor Gordon relied on a proportionality test.  Their honours thought that provisions in the Act which allowed for information to be included on a “secret register” able to be shared with Commonwealth, State and Territory agencies and authorities imposed a greater burden than was necessary.

The Concurrent Judgments:

Justices Edelman and Steward delivered separate judgments.

Justice Steward was concerned with the reach of the Act and left open for consideration whether the extent of the burden was “manifestly excessive”. Justice Steward also commented on the division in the Court concerning the test for the application of the freedom and concluded that the division may warrant a “reconsideration” of the existence of the freedom itself.