LibertyWorks Inc v Commonwealth of Australia
High Court of Australia · 2021
LibertyWorks Inc v Commonwealth of Australia (2021) 274 CLR 1
An Australian think-tank co-hosted a Sydney conference with an American political group, and the Commonwealth said the arrangement had to be registered. Can Parliament require that?
LibertyWorks reasons through suitability, necessity and adequacy in balance, and that is no longer a required sequence. Gageler CJ and Jagot J say that structured proportionality "can be a way of organising reasons", that its flexible application is to be understood as a "tool of analysis", and that "express or ritual invocation" of its steps "is by no means necessary in every case" ([49]). Gordon J agreed with that paragraph and said that in that case it was not "necessary (or helpful) to apply the three steps of structured proportionality" ([72]). LibertyWorks still shows how the Court weighed a registration scheme, but an answer should not treat the three stages as steps the law requires.
Edelman J, who was in the LibertyWorks majority, now writes that the first question in the structure is "redundant" and the third "has little role to play", and that these things, with the antipathy a majority has expressed, "may mean that a test based on structured proportionality should now be treated as dead", though he would keep the second question, on the transparency of the burden's necessity ([86]-[87]). That is one Justice's view, so LibertyWorks is not overruled; it does mean the staged analysis in these reasons is a method of organising the justification, not a settled doctrinal test.
What happened?
LibertyWorks Inc is an Australian think-tank that promotes freedom of speech and organises political conferences. In 2019 it co-hosted a Conservative Political Action Conference in Sydney with the American Conservative Union, a United States organisation that exists primarily to pursue political objectives ([1]-[4], [51]). The Attorney-General's Department wrote to say that, under the Foreign Influence Transparency Scheme Act 2018 (Cth), the Union appeared to be a "foreign political organisation" and the conference a "communications activity", and asked whether LibertyWorks had to register ([5]). LibertyWorks did not register. It brought the matter in the High Court by special case, and asked whether the Act was invalid, to the extent it imposes registration obligations for communications activities, because it infringed the implied freedom of political communication ([6], [40]).
What did the Court decide?
The Act was not invalid on that ground. The Court answered "No" to the question, ordered no relief, and ordered LibertyWorks to pay the Commonwealth's costs.
Five Justices reached that answer. Kiefel CJ, Keane and Gleeson JJ gave joint reasons ([1]). Edelman J agreed with their conclusions, with their reasons on the legitimacy of the Act's purpose, and with structured proportionality as the test, but took a different approach to the burden ([194]). Steward J agreed with their answers "largely for the reasons their Honours give" ([246]). Gageler J ([92]) and Gordon J ([122]) dissented, each holding the registration requirement invalid in its application to communications activity ([121], [192]).
Proposition
What is the principle?
By a majority of five to two, a requirement that a person who communicates on behalf of a foreign principal, for the purpose of political or governmental influence, register that fact does burden the implied freedom of political communication, but is justified and so valid. The purpose of making foreign influence on Australia's political and governmental processes transparent is legitimate; registration is suitable, and it is reasonably necessary because disclosure to the audience at the time of each communication would not make the source of the influence a matter of public record; and the benefit of the purpose is not manifestly outweighed by the burden on the freedom. ([53]-[54], [61], [76]-[85], [194]-[195])
Why does this case matter?
It shows where a challenge to a transparency law is won or lost, and the answer is not the stage most students reach for first. LibertyWorks argued that its arrangement had been transparent from the start, so there was nothing for registration to expose. The joint reasons treat suitability as a question about the law as a whole: "The question is not whether the FITS Act can be seen to have application to the plaintiff's circumstances" ([77]). Edelman J put the same point differently: overreach is considered when asking whether the means were reasonably necessary, "not part of the assessment of suitability" ([239]). The Court accepted that the facts of a case may illuminate the effect of a statute on the freedom, but the inquiry is into the effect on the freedom as a whole ([77]).
The case also shows what a proposed alternative has to do. LibertyWorks' alternative would burden the freedom less, and that was not enough. A less burdensome measure counts as an alternative if it achieves the legislative purpose to the same extent, and the joint reasons test the alternative against the purpose rather than against the burden alone ([81]-[82]).
How heavy the burden is stays contested even among the Justices who upheld the Act. The joint reasons called it modest ([74]); Edelman J, also in the majority, called it substantial but justified ([195]). Gageler J, dissenting, characterised the registration requirement as a prior restraint that needed "compelling justification" ([94], [100]). The joint reasons record that stricter scrutiny as a category has not been supported by a majority of the Court ([49]), and the plaintiff did not run a prior restraint argument ([50]). Gageler J's approach is therefore a dissenting view, though it shows how the same facts can be framed to raise the standard of justification.
Finally, the case decided less than the headline suggests. The joint reasons expressly left open whether the Secretary's information-gathering powers go beyond the Act's purpose, because no such case was put ([86]-[90]), and Steward J flagged the breadth of "arrangement" in s 11 for another day ([248], [297]). It is also the case in which Steward J wrote that the implied freedom may not exist ([249]); his Honour added that, for now, it is his "current duty to continue to apply it faithfully".
Exam and application relevance
When a problem involves a registration, licensing or disclosure obligation attached to political communication, work through the stages rather than asserting that the law is "a restriction on speech". Say what the law actually requires and of whom, because the extent of the burden turns on who is caught: here communications made under an arrangement with, or at the direction of, a foreign principal, with the intention that they be used for political or governmental influence ([74]). State the purpose at the level of the mischief, and say whether it protects or threatens the system of representative government. On necessity, name the alternative, then show whether it achieves the same purpose to the same extent; a less burdensome measure that delivers less is not an alternative in the relevant sense.
If you want to argue prior restraint or a higher standard of justification, present it as a dissenting approach and say why you adopt it. Do not state that the Act as a whole was upheld: the question was confined to registration for communications activity.
Check your understanding
A think-tank is asked to register because it co-hosts a conference with a foreign political organisation. It says the arrangement was publicly announced, so registration serves no purpose. At which stage of the analysis does that argument belong, and why did a version of it fail in LibertyWorks?