LibertyWorks Inc v The Commonwealth

HIGH COURT OF AUSTRALIA

KIEFEL CJ,
GAGELER, KEANE, GORDON, EDELMAN, STEWARD AND GLEESON JJ

LIBERTYWORKS INC  PLAINTIFF

AND

COMMONWEALTH OF AUSTRALIA  DEFENDANT

LibertyWorks Inc v Commonwealth of Australia

[2021] HCA 18

Date of Hearing: 2 March 2021
Date of Judgment: 16 June 2021

S10/2020

ORDER

The questions of law stated in the Amended Special Case filed on 1 March 2021 be answered as follows:

1.Is the Foreign Influence Transparency Scheme Act 2018 (Cth) invalid, to the extent it imposes registration obligations with respect to communications activities, on the ground that it infringes the implied freedom of political communication?

Answer:No.

2. In light of the answer to question 1, what relief, if any, should issue?

Answer:None.

3. Who should pay the costs of and incidental to this special case?

Answer:The plaintiff should pay the defendant's costs. 

Representation

P J Dunning QC with R Scheelings for the plaintiff (instructed by Speed and Stracey Lawyers)

S P Donaghue QC, Solicitor-General of the Commonwealth, with B K Lim and S Zeleznikow for the defendant (instructed by Australian Government Solicitor)

M G Sexton SC, Solicitor-General for the State of New South Wales, with S Robertson for the Attorney-General for the State of New South Wales, intervening (instructed by Crown Solicitor's Office (NSW))

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

LibertyWorks Inc v Commonwealth of Australia

Constitutional law (Cth) – Implied freedom of communication about governmental or political matters ("implied freedom") – Where Foreign Influence Transparency Scheme Act 2018 (Cth) ("Act") included registration requirement for persons undertaking communications activity on behalf of foreign principal for purpose of political or governmental influence – Where foreign principal defined to include foreign political organisation – Where plaintiff undertook registrable activities on behalf of foreign political organisation in holding annual Conservative Political Action Conference events which constituted communications activity – Whether Act to extent it imposes registration obligations with respect to communications activity undertaken on behalf of foreign principal effectively burdens implied freedom ­– Whether provisions for legitimate purpose – Whether provisions suitable, necessary and adequate in balance.

Words and phrases – "adequate in its balance", "burden", "communications activity", "compelling justification", "disclosure", "foreign influence", "foreign interference", "foreign political organisation", "foreign principal", "legitimate purpose", "narrowly tailored", "necessary", "political or governmental influence", "prior restraint", "register", "registration", "scheme information", "structured proportionality", "suitable", "transparency", "undisclosed influence".

Foreign Influence Transparency Scheme Act 2018 (Cth), ss 11, 12, 13, 16, 18, 21, 38, 42, 43, 45, 46, 52, 53.
Foreign Influence Transparency Scheme (Disclosure in Communications Activity) Rules 2018 (Cth).
Foreign Influence Transparency Scheme Rules 2018 (Cth), s 6.

1. KIEFEL CJ, KEANE AND GLEESON JJ.   The plaintiff, LibertyWorks Inc, was incorporated in 2015 under the Associations Incorporation Act 1981 (Qld). It presently has 1,290 members in Australia. It is described in the Amended Special Case 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". Since its incorporation the plaintiff has organised political conferences in Australia and made submissions to parliamentary enquiries on freedom of political speech. It maintains a website from which it has published more than 200 posts which seek to raise awareness of individual freedom in public policy and it maintains a social media presence.

2. The American Conservative Union ("the ACU") was established as a corporation in the United States of America for the promotion of political freedom and for the purpose of influencing politics and politicians in that country from what is described in the Amended Special Case as a "conservative/classical liberal" perspective. Its Articles of Incorporation refer to its objects as being to foster and develop "a greater understanding and awareness of the tenets set forth in the Constitution of the United States and the Declaration of Independence to the end that the individual citizen shall understand, preserve and defend his or her inherent rights, liberties and responsibilities and cherish the principles upon which the Republic was founded".

3. A statement on the website of the ACU refers to its purpose as being to "harness the collective strength of the conservative movement and support the campaigns of conservative candidates". To this end the ACU organises and holds an annual multi‑day political conference in the United States called the "Conservative Political Action Conference" ("CPAC"). Prominent people, including the immediate past President and Vice‑President of the United States, government officials and sections of the media have attended CPAC.

4. At a meeting in 2018 between the President of the plaintiff and the Executive Director of the ACU it was agreed that the plaintiff and the ACU would collaborate in a CPAC event to be held in Australia in 2019, and that the ACU would provide the plaintiff with the names of speakers and otherwise assist to ensure its success. Since then the ACU has registered the word "CPAC" and a CPAC logo as trademarks in Australia. The CPAC event the subject of the discussions was held in Sydney in August 2019 and was widely marketed by the plaintiff. The CPAC event featured speakers from Australia, the United States, England and Japan. It included politicians (past and present), media personalities, members of "think tanks", economists and social commentators. The promotional material for the event described the ACU as the "Think Tank Host Partners" and a "co‑host" of it with the plaintiff. The Chairman, Executive Director and another board member of the ACU, together with ACU staff, attended the CPAC event. According to the Amended Special Case, another CPAC event was proposed to be held in Australia in November 2020.

5. A Deputy Secretary of the Attorney-General's Department wrote to the President of the plaintiff in August 2019 concerning the upcoming CPAC event to be presented by the plaintiff and the ACU. The Deputy Secretary outlined the scheme of the Foreign Influence Transparency Scheme Act 2018 (Cth) ("the FITS Act"), and observed that the ACU would appear to fall within the definition of a "foreign political organisation" and therefore would be considered a "foreign principal" and that an event such as the CPAC event would appear to be a "communications activity". The plaintiff was asked to consider whether it was required to register its arrangements with the ACU under the scheme. Further correspondence followed, including a notice purporting to be given under s 45 of the FITS Act, which required information and documents which might enable the Deputy Secretary to determine whether the plaintiff was liable to register. The notice was not complied with and ultimately was not further pursued. The plaintiff has not to date registered under the FITS Act.

6. The plaintiff claims that the provisions of the FITS Act respecting communications activity by a person who acts on behalf of a foreign principal burden the freedom of political communication which is implied by the Constitution, cannot be justified and are therefore invalid.

   Foreign influence – agreed facts

7. It is agreed between the parties to this Amended Special Case that in recent years there has been a global trend of attempts at the foreign influence of democratic processes. Official reports[1] have concluded that a foreign country sought to undermine the Brexit referendum in the United Kingdom, the 2016 Presidential election in the United States and the 2017 French Presidential election. Foreign actors in many countries have also sought to exert covert influence through the use of both traditional and social media, including by spreading disinformation and propaganda. Two social media platforms have taken action against cyber troops engaged in foreign influence operations in at least seven countries[2].

   [1]Mueller, Report on the Investigation into Russian Interference in the 2016 Presidential Election (2019), vol 1 at 1-5, 14-15; United Kingdom, House of Commons, Digital, Culture, Media and Sport Committee, Disinformation and 'Fake News': Final Report (2019) at 68-71, 72; United Kingdom, Intelligence and Security Committee of Parliament, Russia (2020) at 5, 9.

   [2]Bradshaw and Howard, The Global Disinformation Order: 2019 Global Inventory of Organised Social Media Manipulation (2019) at 2.

8. At the time that the FITS Act was enacted the Australian Security Intelligence Organisation ("ASIO") had warned that espionage and foreign interference activity against Australia's interests was "occurring at an unprecedented scale"[3]. Australia was experiencing undisclosed foreign influence both in respect of government and political systems and processes and more broadly in the Australian community. ASIO identified foreign powers clandestinely seeking to shape the opinions of members of the Australian public, media organisations and government officials to advance their own countries' political objectives, including through the recruitment and co‑opting of influential and powerful Australian voices to lobby decision‑makers. It identified ethnic and religious communities in Australia as the subjects of covert influence operations designed to diminish their criticism of foreign governments[4].

   [3]Parliamentary Joint Committee on Intelligence and Security, Advisory Report on the Foreign Influence Transparency Scheme Bill 2017 (2018) at 2.

   [4]Australian Security Intelligence Organisation, ASIO Annual Report 2017-18 (2018) at 3, 25; Parliamentary Joint Committee on Intelligence and Security, Advisory Report on the Foreign Influence Transparency Scheme Bill 2017 (2018) at 2-5.

9. The parties agree that there is a distinction to be drawn between foreign interference and foreign influence. The parties agree that foreign influence may be taken to refer to activities undertaken on behalf of a foreign principal that influence government and political systems and processes. Foreign influence will amount to foreign interference if it is undertaken using covert, deceptive, corrupting or threatening means to damage or destabilise the government or political processes of a country[5].

   [5]Australian Security Intelligence Organisation, ASIO Annual Report 2017-18 (2018) at 25; Parliamentary Joint Committee on Intelligence and Security, Advisory Report on the Foreign Influence Transparency Scheme Bill 2017 (2018) at 6-7, 9-11, 17, 166-167; Australian Security Intelligence Organisation, Director-General's Annual Threat Assessment (2020) at 9.

10. In Australia, ASIO reports, foreign principals often pursue their own interests by engaging Australians to seek to influence governments and others on their behalf. Almost every sector of the Australian community is a potential target for foreign influence but this is said to be particularly true in relation to parliamentarians and their staff, government officials, business leaders, the university community, and the media and opinion‑makers[6].

    [6]Australian Security Intelligence Organisation, Director-General's Annual Threat Assessment (2020) at 9.

11. Even when the purpose of the foreign influence is not to damage or destabilise Australia, if left undisclosed it can impede the ability of decision‑makers in Australia, and the Australian public, to make informed decisions because it can conceal the nature of the competing interests at play. The parties agree that transparency of foreign influence can contribute to the effective functioning and accountability of Australian government institutions and help protect their integrity by reducing the risk that foreign influence will result in foreign interests prevailing over domestic interests by ensuring that the Australian public can assess the nature, level and extent of foreign influence in respect of particular decisions or processes accurately[7].

    [7]Parliamentary Joint Committee on Intelligence and Security, Advisory Report on the Foreign Influence Transparency Scheme Bill 2017 (2018) at 10-12; Attorney-General's Department, Parliamentary Joint Committee on Intelligence and Security, Attorney-General's Department Submission, Inquiry into the Foreign Influence Transparency Scheme Bill 2017 (2018) at 3, 9-10.

    The FITS Act

12. The FITS Act was enacted as part of a package of legislative reforms alongside the Electoral Legislation Amendment (Electoral Funding and Disclosure Reform) Act 2018 (Cth) and the National Security Legislation Amendment (Espionage and Foreign Interference) Act 2018 (Cth). As the name of the latter Act implies, it is addressed to the risk of foreign interference.

13. The object of the FITS Act is stated in s 3 to be:

    "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."

14. A "foreign principal" is defined by s 10 to mean:

    "(a)a foreign government;

    (b)a foreign government related entity;

    (c)a foreign political organisation;

    (d)a foreign government related individual."

15. Each foreign principal is then further defined. Attention in this matter is focussed on the entity in para (c), which is defined by s 10 to include a foreign organisation that exists primarily to pursue political objectives. It is accepted that it applies to the ACU.

16. Broadly speaking and as relevant to the primary question before the Court the scheme of the FITS Act may be understood to require a person to register details about themselves and their foreign principal with the Secretary[8] where the person communicates or distributes information or material to the Australian public or a section of it under an arrangement with, in the service of or under the order or direction of a foreign principal; where the person and the foreign principal expect that that activity will be undertaken; and where it is undertaken for the sole or substantial purpose of political or governmental influence, which includes influencing the public.

    [8]The Secretary of the Attorney‑General's Department: see Acts Interpretation Act 1901 (Cth), s 19A and the example therein; Administrative Arrangements Order (Cth), 5 December 2019.

    Liability to register

17. Part 2 of the FITS Act deals with registration under the scheme. Section 16(1) ("Requirement to register") provides that:

    "(1)A person who:

    (a)becomes liable to register under the scheme in relation to a foreign principal; and

    (b)is not already registered under the scheme in relation to the foreign principal;

    must apply to the Secretary for registration in relation to the foreign principal, no later than 14 days after becoming liable."

    "Person" is defined widely[9].

    [9]See s 10.

18. Section 16(2) lists the requirements for an application, including that it be accompanied by any information or documents required by the Secretary[10].

    [10]s 16(2)(d).

19. Section 18(1) identifies the persons who are liable to register:

    "(1) If a person:

    (a)undertakes an activity on behalf of a foreign principal that is registrable in relation to the foreign principal; or

    (b)enters a registrable arrangement with a foreign principal;

    the person becomes liable to register under the scheme in relation to the foreign principal."

20. For the purposes of s 18(1)(a), s 11(1) provides that a person "undertakes an activity on behalf of a foreign principal" if:

    "(a)the person undertakes the activity in any of the following circumstances:

    (i)under an arrangement^[[11]] with the foreign principal;

    [11]"Arrangement" is defined to include a contract, agreement, understanding or other arrangement of any kind, whether written or unwritten: s 10.

    (ii)in the service of the foreign principal;

    (iii)on the order or at the request of the foreign principal;

    (iv)under the direction of the foreign principal; and

    (b)at the time the arrangement or service is entered into, or the order, request or direction made, both the person and the foreign principal knew or expected that:

    (i)the person would or might undertake the activity; and

    (ii)the person would or might do so in circumstances set out in section 20, 21, 22 or 23 (whether or not the parties expressly considered the existence of the scheme)."

    It does not matter whether consideration is payable for the purposes of s 11(1)[12].

    [12]s 11(2).

21. Section 18(1)(a) directs attention to what is a "registrable activity". A "registrable arrangement", referred to in s 18(1)(b), is defined by s 13A to be an arrangement between a person and a foreign principal to undertake, on behalf of the foreign principal, one or more activities that, if undertaken by the person, would be registrable in relation to the foreign principal in circumstances where the person is not exempt. The definition therefore also directs attention to registrable activities.

    Registrable activities

22. The definition of "registrable activity" in s 10 directs the reader to ss 20 to 23 inclusive, which provisions also appear in Pt 2. Section 20 concerns parliamentary lobbying on behalf of a foreign government; ss 22 and 23 deal respectively with activities involving "former Cabinet Ministers" and "recent designated position holders". Section 21 concerns "activities in Australia for the purpose of political or governmental influence".

23. In a table in s 21(1), four activities undertaken in Australia are listed together with the kind of foreign principal on whose behalf the person acts in connection with those activities. To be registrable an activity must be one covered by an item of the table; the foreign principal must be the kind of foreign principal specified for the activity in the table; and the person who undertakes the activity on behalf of the foreign principal must not be exempt under Div 4 in relation to the activity[13]. Item 1 of the table refers to the activity of parliamentary lobbying on behalf of a foreign government related entity, a foreign political organisation or a foreign government related individual. Items 2 and 4 respectively refer to general political lobbying and disbursement activity with any kind of foreign principal. Each of the activities listed in Items 1, 2 and 4 is further defined[14]. The focus of the plaintiff's case is on Item 3 of the table. It refers to "communications activity" carried out on behalf of any kind of foreign principal.

    [13]s 21(1)(a), (b) and (c).

    [14]See s 10.

24. A person is said by s 13(1) to undertake "communications activity" if:

    "(a)the person communicates or distributes information or material to the public or a section of the public; or

    (b)the person produces information or material for the purpose of the information or material being communicated or distributed to the public or a section of the public."

    Information or material may take any form[15].

    [15]s 13(2).

25. To be registrable, each of the activities listed in the table in s 21(1), including communications activity, must be carried out "for the purpose of political or governmental influence". "Influence" includes "affect in any way"[16].

    [16]See s 10.

    The purpose of political or governmental influence

26. Section 12(1) provides that:

    "A person undertakes an activity for the purpose of political or governmental influence if the sole or primary purpose, or a substantial purpose, of the activity is to influence one or more of the following:

    …"

27. There are seven processes or proceedings then listed in the sub-section. They include those relating to a federal election, a federal government decision, proceedings of a House of the Parliament, a registered political party, a candidate who is not endorsed by a registered political party and a registered political campaigner[17].

    [17]See s 12(1).

28. Section 12(2) provides that:

    "A person also undertakes an activity for the purposes of political or governmental influence if the sole or primary purpose, or a substantial purpose, of the activity is to influence the public, or a section of the public, in relation to a process or proceedings mentioned in subsection (1)."

29. By s 14, the purpose of an activity must be determined having regard to:

    "(a)the intention of the person undertaking the activity or that person's belief (if any) about the intention of any foreign principal on whose behalf the activity is undertaken; and

    (b)either or both of the following:

    (i)the intention of any foreign principal on whose behalf the activity is undertaken;

    (ii)all of the circumstances in which the activity is undertaken."

    Exemptions

30. The provisions of Pt 2, Div 4 render a person exempt from registration in relation to certain activities that the person undertakes on behalf of a foreign principal. They include humanitarian aid or assistance[18]; the provision of legal advice or representation[19]; religious activities[20]; registered charities[21]; artistic purposes[22]; and the activities of members of certain professions[23]. A person is exempt in relation to diplomatic or consular activities[24] and activities undertaken in the person's capacity as an officer or employee of a foreign government in the name of that foreign government[25].

    [18]s 24.

    [19]s 25.

    [20]s 27.

    [21]s 29C.

    [22]s 29D.

    [23]s 29F.

    [24]s 26.

    [25]s 29(1).

    Responsibilities following registration

31. A person is registered under the scheme from the day the application is given to the Secretary until the registration ends[26]. Provision is made for ending registration where a person is satisfied, in effect, that they are no longer required to register[27].

    [26]s 17.

    [27]ss 31, 32.

32. A person who is registered under the FITS Act has certain responsibilities, which are set out in Pt 3, Divs 2 and 3. The person is required to report material changes in circumstances[28]; report disbursement activity for the purpose of political or governmental influence[29]; review the information given at registration and give notice that it is up to date or update it when a voting period[30] for federal elections and referendums begins[31]; and during the voting period give the Secretary notice of any registrable activity undertaken other than disbursement activity[32]. A person who remains liable to register must renew the registration annually[33].

    [28]s 34.

    [29]s 35.

    [30]"Voting period" is defined: see s 10.

    [31]s 36.

    [32]s 37.

    [33]s 39.

33. Section 40(1) requires a person who is registered under the scheme in relation to a foreign principal to keep records whilst registered under the scheme and for three years after the registration ends. The matters in respect of which records must be kept are registrable activities undertaken by the person on behalf of the foreign principal; benefits provided to the person by the foreign principal; information or material forming part of any communications activity that is registrable; registrable arrangements between the person and the foreign principal; and other information or material communicated or distributed to the public or a section of the public in Australia on behalf of the foreign principal[34].

    [34]s 40(2).

    Disclosure in communications activity

34. Although s 38 ("Disclosure in communications activity") appears in Pt 3, Div 3 ("Other responsibilities"), it places an obligation on any person, not just a registered person, to make a disclosure about the foreign principal when undertaking communications activity on their behalf. It provides that:

    "(1)If:

    (b)a person undertakes communications activity on behalf of a foreign principal; and

    (c)the communications activity is registrable in relation to the foreign principal within the meaning of section 21 (activity in Australia for the purpose of political or governmental influence);

    the person must make a disclosure about the foreign principal in accordance with rules made for the purposes of subsection (2).

    (2)The rules^[[35]] may prescribe any or all of the following:

    (a)instances of communications activity;

    (b)when and how disclosures are to be made in relation to instances of communications activity;

    (c)the content, form and manner of disclosures;

    (d)circumstances in which a person is exempt from making a disclosure."

    [35]"Rules" means rules made under s 71: see s 10.

35. The Foreign Influence Transparency Scheme (Disclosure in Communications Activity) Rules 2018 (Cth) ("the Disclosure Rules") provide in a detailed way for the form and manner of disclosure of different types of communications activity. By way of example, s 5(1) requires that printed material which is communicated or distributed contain a disclosure at the end or bottom of each page of the printed material in a type size that can be easily read. Section 5(2) prescribes the content of the disclosure. It requires the person undertaking the communications activity and the foreign principal to be identified, that a statement that the communications activity is undertaken on behalf of the foreign principal be included and that there be a statement that the disclosure is made under the FITS Act.

    The register, the Secretary and scheme information

36. Part 4, Div 2 of the FITS Act deals with the register of scheme information which is required to be kept by the Secretary[36]. The information that is required to be kept on the register includes the name of the person and the foreign principal, the application for registration and any accompanying information, any notices in the nature of reports given to the Secretary, any information prescribed by the rules and any other information the Secretary considers appropriate[37].

    [36]s 42(1).

    [37]s 42(2).

37. The Secretary is required to make available to the public, on a website, information relating to a person who is registered in relation to a foreign principal. That information includes[38] the name of the person and the foreign principal, a description of the kind of registrable activities the person has undertaken or is undertaking on behalf of the foreign principal and any other information required to be made available by rules. However, the website is not to contain any information which the Secretary is satisfied is commercially sensitive, affects national security or is of a kind prescribed by the rules[39]. The Secretary may correct or update the information made available[40]. Part 4, Div 4 deals with how scheme information may otherwise be dealt with. It assumes no relevance to the plaintiff's case.

    [38]s 43(1).

    [39]s 43(2).

    [40]s 44.

38. If the Secretary reasonably suspects that a person might be liable to register under the scheme but is not registered, the Secretary may give a notice under s 45 requiring the provision of information relevant to the person's liability to register in relation to a foreign principal. Where the Secretary reasonably believes that a person whether registered or not has information or a document that is relevant to the operation of the scheme, the Secretary may give a notice under s 46 requiring such information or documents, or production of copies of such documents. There are requirements respecting the contents of the notice[41].

    [41]s 46(3), (7).

    Offences and penalties

39. Part 5 deals with enforcement and includes provisions creating offences arising from a person's failure to register or to renew their registration when liable to do so[42]; giving notice that a person's liability to register has ended while still liable to do so[43]; and failing to fulfil a person's responsibilities under the scheme[44]. Offences of the last kind may result in a penalty; those earlier mentioned may result in imprisonment on conviction for terms ranging between six months and five years.

    [42]s 57.

    [43]s 57A.

    [44]s 58.

    The questions on the Amended Special Case

40. The parties have agreed to state the following questions for the opinion of the Full Court:

    1.Is the Foreign Influence Transparency Scheme Act2018 (Cth) invalid, to the extent it imposes registration obligations with respect to communications activities, on the ground that it infringes the implied freedom of political communication?

    2.In light of the answer to question 1, what relief, if any, should issue?

    3.Who should pay the costs of and incidental to this special case?

41. Question 1 reflects a substantial narrowing of the plaintiff's case concerning the implied freedom of political communication. Prior to its amendment the question was stated as whether the FITS Act is "invalid, either in whole or in part (and if in part, to what extent)" on the ground that it infringes the freedom.

42. The relief sought by way of declaration, as relevant to question 2, has correspondingly narrowed. The original declarations sought were that the FITS Act is wholly invalid or invalid so far as it purports to apply to foreign political organisations or to the plaintiff; and in the alternative that s 45 and the offence provisions relating to it are invalid. The reference to s 45 may be explained by an earlier controversy about the notice given to the plaintiff by the Attorney‑General's Department requesting information[45]. The declaration now sought is "that the [FITS Act] is invalid, to the extent it imposes registration obligations with respect to communications activities".

    [45]See [5] above.

43. In oral argument the plaintiff identified the objectionable feature of the FITS Act as Item 3 of the table in s 21(1), which treats communications activity as a registrable activity and in doing so engages ss 16 and 18 and the requirement of registration. The primary question raised by the parties in the Amended Special Case might be understood in this way.

    The implied freedom, burdens and justification

44. The constitutional basis for the implication in the Constitution of a freedom of communication on matters of politics and government is well settled[46]. The freedom is recognised as necessarily implied because the great underlying principle of the Constitution is that citizens are to share equally in political power[47] and because it is only by a freedom to communicate on these matters that citizens may exercise a free and informed choice as electors[48]. It follows that a free flow of communication is necessary to the maintenance of the system of representative government for which the Constitution provides[49]. The freedom operates as a constitutional restriction on legislative power and should not be understood to be a personal right[50].

    [46]Lange v Australian Broadcasting Corporation (1997) 189 CLR 520; see also McCloy v New South Wales (2015) 257 CLR 178 at 200 [23].

    [47]Harrison Moore, The Constitution of the Commonwealth of Australia (1902) at 329.

    [48]Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 560.

    [49]Unions NSW v New South Wales (2013) 252 CLR 530 at 551 [27].

    [50]Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 560; Wotton v Queensland (2012) 246 CLR 1 at 31 [80]; Unions NSW v New South Wales (2013) 252 CLR 530 at 551 [30], 554 [36]; McCloy v New South Wales (2015) 257 CLR 178 at 202-203 [30]; Brown v Tasmania (2017) 261 CLR 328 at 360 [90].

45. The freedom is of such importance to representative government that any effective statutory burden upon it must be justified[51]. That process commences with the identification of the purpose which the statute seeks to achieve. That purpose must be legitimate, which is to say compatible with the constitutionally prescribed system of representative government[52]. If the statute does not have a legitimate purpose no further consideration will be necessary, for invalidity will be made out.

    [51]McCloy v New South Wales (2015) 257 CLR 178 at 213 [68]; Brown v Tasmania (2017) 261 CLR 328 at 369 [127]; Comcare v Banerji (2019) 267 CLR 373 at 399 [29].

    [52]Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 561-562, 567; McCloy v New South Wales (2015) 257 CLR 178 at 203 [31].

46. In addition to having the requisite purpose, the law must be shown to be proportionate to the achievement of that purpose. In order to justify a burdensome effect on the freedom a law must be a proportionate, which is to say a rational, response to a perceived mischief[53]. A law will satisfy the requirements of proportionality if it is suitable, necessary and adequate in its balance[54]. The parties' arguments on the Amended Special Case address these matters.

    [53]Clubb v Edwards (2019) 267 CLR 171 at 199-201 [66]-[70]; see also McCloy v New South Wales (2015) 257 CLR 178 at 213 [68].

    [54]McCloy v New South Wales (2015) 257 CLR 178 at 193-196 [2]-[4]; Brown v Tasmania (2017) 261 CLR 328 at 368 [123], 416 [278]; Clubb v Edwards (2019) 267 CLR 171 at 200-202 [70]-[74], 264 [266], 311 [408], 330 [463]; Comcare v Banerji (2019) 267 CLR 373 at 400 [32].

47. The plaintiff's submissions also address another question: whether the provisions of the FITS Act are "reasonably appropriate and adapted". The submissions do so by reference to the test of reasonable necessity, but not the other tests of proportionality, and a criterion of whether the provisions are "closely tailored" to the achievement of the statutory purpose, which criterion is not further explained.

48. In Lange v Australian Broadcasting Corporation[55], the final question as to the validity of a law effecting a burden on the freedom was stated to be whether the burden is "undue" having regard to its purpose[56]. Whether that question should be determined by reference to a test of whether the law is "reasonably appropriate and adapted" or of whether it is "proportionate" was left open by the Court, as were the means by which those conclusions might be reached. But in McCloy v New South Wales[57] a majority of this Court provided the answer, holding that the final question to be addressed is whether a law is a proportionate response to its purpose and that that is to be ascertained by a structured method of proportionality analysis. That approach has consistently been maintained by a majority of this Court in each of the cases concerning the implied freedom since McCloy[58] and, more recently, it has been applied by a majority to the freedom guaranteed by s 92 of the Constitution[59].

    [55](1997) 189 CLR 520.

    [56]Langev Australian Broadcasting Corporation (1997) 189 CLR 520 at 569, 575; see also McCloyv New South Wales (2015) 257 CLR 178 at 214-215 [71]; Clubb v Edwards (2019) 267 CLR 171 at 200 [67].

    [57](2015) 257 CLR 178 at 193-195 [2], 217 [79].

    [58]Brown v Tasmania (2017) 261 CLR 328 at 368-369 [123]‑[127], 416-417 [278]; Unions NSW v New South Wales (2019) 264 CLR 595 at 615 [42], 638 [110], 653-656 [161]-[167]; Clubb v Edwards (2019) 267 CLR 171 at 208-209 [96]-[102], 266-269 [270]-[275], 341-345 [491]-[501]; Comcare v Banerji (2019) 267 CLR 373 at 402-405 [38]-[42], 455-458 [202]-[206]. See also Spence v Queensland (2019) 93 ALJR 643 at 670-671 [93], 671 [97], 719 [324]-[326]; 367 ALR 587 at 613, 614, 677.

    [59]Palmer v Western Australia (2021) 95 ALJR 229 at 242-243 [52], 284 [264]; 388 ALR 180 at 193, 247.

49. The plaintiff's submissions make mention of notions of strict scrutiny. It is said that the present case is "a rare example of in terms regulation of political communication, which is presumptively 'direct' or non-incidental in its burden and so automatically attracts stricter scrutiny". The error in that statement, that the FITS Act regulates political communication, may be put to one side. As New South Wales, intervening, submits, there has been no majority support in this Court for the proposition that there may be a class of laws that under Australian constitutional law automatically attract stricter scrutiny. Although there has been some mention of the "strict scrutiny" doctrine in United States constitutional jurisprudence, it has never been accepted by a majority of this Court as relevant to the implied freedom[60].

    [60]Tajjour v New South Wales (2014) 254 CLR 508 at 551 [37], 575 [132].

50. Before turning to address the arguments advanced by the plaintiff in support of its case, we note that the plaintiff did not seek to advance an argument that the Act was invalid as imposing on the plaintiff a form of "prior restraint" upon the exercise by the plaintiff of a right of free speech. In particular in that regard, the plaintiff did not suggest that the Act operated as a regime for the licensing of political communication. That the plaintiff eschewed any such argument is hardly surprising. The Act is not concerned to permit only communications allowed by the government; rather it is concerned to ensure that the identity of the source of such political information as is disseminated on behalf of foreign principals is known to the public and to government decision‑makers.

    The plaintiff's case

51. The plaintiff accepts that the ACU is a foreign principal for the purposes of the FITS Act because it is a foreign corporation that is a foreign political organisation. It acknowledges that the ACU exists primarily to pursue political objectives[61]. It is agreed that, subject to the question of validity, the plaintiff has registration obligations under the FITS Act because it undertakes registrable activities on behalf of the ACU in the form of holding annual CPAC events which constitute communications activity. It follows that such events involve the communication or distribution of information or material to the public or a section of the public in Australia for the purpose of political or governmental influence.

    [61]See the definition of "foreign political organisation" in s 10.

52. The plaintiff does not contend that the other activities itemised in the table in s 21(1), aside from communications activity, are activities which might not lawfully attract a requirement of registration. It does not contend that s 16 or s 18 ought not apply to lobbying and disbursements. It says that the fact that a measure may be appropriate for those activities does not mean it is appropriate for all. Communications activities should warrant separate treatment because they most clearly involve communications on matters of politics and government, which are the subject of the freedom.

53. There is no dispute that a purpose of the FITS Act is to promote transparency in political discourse by requiring or facilitating disclosure of the relationship between a person and their foreign principal. There is no dispute that such a purpose is a legitimate one in the sense referred to above. Essentially the plaintiff's case is that the requirement of registration cannot be justified because it is not necessary. It is not necessary because s 38 read with the Disclosure Rules requires the disclosure of the relationship between the person and the foreign principal at the time a communication is made. Registration therefore adds nothing to the achievement of the purpose of transparency. The relevant provisions of the FITS Act may be framed so that registration is not required where communications activity is undertaken.

    A burden on the freedom

54. The defendant concedes that the FITS Act, in its requirement of registration where communications activity is undertaken on behalf of a foreign principal, is effective to burden the freedom. The concession is properly made. Conditioning political communication to a requirement of registration is effective to burden the freedom. That is sufficient to require that the relevant provisions of the FITS Act be justified.

    Purpose and legitimacy

55. The plaintiff identifies the purpose of the FITS Act as that referred to in s 3, namely to render transparent the fact that activities in the nature of political communication which are carried out by a person in Australia are undertaken on behalf of a foreign principal. The plaintiff submits that it is thereby to be inferred that the concern of the FITS Act is to overcome covert, deceptive or clandestine conduct.

56. Both parties refer in this regard to what was said by the then Prime Minister, in the Second Reading Speech for the National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017 (Cth), concerning the three Bills then before the Parliament. In that Speech[62] the Prime Minister said that the Bills being introduced were shaped by a set of principles one of which was that "foreign influence activities that are in any way covert, coercive or corrupt" would not be tolerated. That, he said, is "the line that separates legitimate influence from unacceptable interference".

    [62]Australia, House of Representatives, Parliamentary Debates (Hansard), 7 December 2017 at 13146.

57. The Prime Minister went on to say[63] that the Counter Foreign Interference Strategy undertaken through the three pieces of legislation has four pillars: sunlight, enforcement, deterrence and capability. Of these, he said, "sunlight is at the very centre". To "ensure activities are exposed to sunlight" a Foreign Influence Transparency Scheme was being introduced. In essence it requires that if "a person or entity engages with the Australian political landscape on behalf of a foreign state or principal then they must register accordingly". This, the Prime Minister said, "will give the Australian public and decision-makers proper visibility when foreign states or individuals may be seeking to influence Australia's political processes and public debates". The requirement of registration is not to be seen as a taint but rather the application of "basic principles of disclosure to allow the public and policymakers to assess any underlying agenda"[64]. To similar effect, in the Revised Explanatory Memorandum[65] it is said that it is essential that there is transparency where communications activity is undertaken on behalf of a foreign principal. This allows the public or a section of the public or a government decision‑maker to assess the interests which are being represented by the person undertaking the communications activity.

    [63]Australia, House of Representatives, Parliamentary Debates (Hansard), 7 December 2017 at 13148.

    [64]Australia, House of Representatives, Parliamentary Debates (Hansard), 7 December 2017 at 13148.

    [65]Australia, Senate, Foreign Influence Transparency Scheme Bill 2017, Revised Explanatory Memorandum at 72 [401].

58. The mischief identified in the Second Reading Speech to which the FITS Act is directed is the risk that foreign states and individuals may seek to influence Australia's political processes and public debates. This implies that the influence sought to be achieved may have adverse effects on processes in our democracy. The Revised Explanatory Memorandum refers, in the context of penalties for enforcement, to the "serious implications that unchecked and unknown forms and sources of foreign influence can have on Australia's democratic system of government"[66]. An improper influence is most likely to succeed and amount to an interference in those processes if its source remains undisclosed. The purpose of the FITS Act, as the defendant correctly submits, may be understood as being to seek to achieve transparency, in the sense of the exposure of foreign influence, as a means of preventing or minimising the risk that foreign governments or other foreign principals will exert influence on the integrity of Australia's political or electoral processes, as has occurred elsewhere.

    [66]Australia, Senate, Foreign Influence Transparency Scheme Bill 2017, Revised Explanatory Memorandum at 150 [853].

59. Long ago this Court recognised the risk that greater influence over electoral processes might be gained by concealment of the source of expressions of view. In Smith v Oldham[67], a section of the Commonwealth Electoral Act 1902 (Cth), by which the Commonwealth Parliament sought to regulate the conduct of persons with regard to elections, was unsuccessfully challenged. It required that after the writs for an election or referendum had issued, any articles or reports commenting upon candidates or political parties were to be signed by the author, whose name and address were also to appear in the article or report. Griffith CJ observed that "[i]t is a notorious fact that many persons rely upon others ... in forming their opinions". The weight that they attribute may be greater or less if they know the real authors. He went on to say that "Parliament may, therefore, think that no one should be allowed by concealing his name to exercise a greater influence"[68].

    [67](1912) 15 CLR 355.

    [68]Smith v Oldham (1912) 15 CLR 355 at 358-359.

60. A requirement of registration in order to protect the processes of a representative government in a democracy is not new[69]. The importance of that purpose has been recognised by the Foreign Agents Registration Act of 1938 ("the US Act"), which provides that a person must not act as an agent of a foreign principal without filing a registration statement with the Attorney General[70]. The statement must include details about the registrant, the foreign principal, and agreements between them, and a comprehensive statement of the activities the registrant performs on the foreign principal's behalf, money received from the foreign principal and money spent in connection with those activities. Agents are required to provide supplementary information and to keep records, and are subject to disclosure requirements. The US Act provides for exemptions from registration and for penalties by way of enforcement. The constitutionality of the US Act, in the context there of the right of freedom of expression, has been regarded as well settled[71].

    [69]See also Lobbying Act, RSC 1985, c 44 (4th Supp).

    [70]22 USC §612.

    [71]Attorney General of United States v Irish People Inc (1982) 684 F 2d 928 at 935.

61. Even on the plaintiff's somewhat narrower description of purpose, the FITS Act must be understood as one supportive of the processes necessary to our democracy. The Act seeks to ensure that those making decisions in government, those making political judgments, those involved in the election of candidates to the Commonwealth Parliament and other interested persons are aware of the true actors and interests concerned when statements are made or information is provided on political matters. So understood, not only is that purpose legitimate, as consistent with the constitutionally prescribed system of representative government, it serves to protect it[72]. Such a purpose may be a very important factor in the justification of a law[73].

    [72]McCloy v New South Wales (2015) 257 CLR 178 at 207-208 [46]-[47].

    [73]McCloy v New South Wales (2015) 257 CLR 178 at 218 [84].

62. It should be noted here that, although the focus of argument in this Court was upon political communication on behalf of a foreign principal directed to the general public, the defendant, rightly, identified a purpose of the Act as being to minimise the risk of undisclosed foreign influence upon the integrity of governmental decision‑making. That the Act does indeed pursue such a purpose is clear from the terms of ss 12 and 21 of the Act as well as from the extraneous materials referred to in these reasons. There can be no doubt as to the legitimacy of this purpose, or as to the suitability of the Act as a rational response to the risk so identified. As was said by Brennan J in Australian Capital Television Pty Ltd v The Commonwealth[74]:

    "[T]he salutary effect of freedom of political discussion on performance in public office can be neutralized by covert influences".

    [74](1992) 177 CLR 106 at 159.

    The extent of the burden

63. The defendant correctly submits that whilst the extent of the burden effected by the requirement of registration in connection with communications activity is not relevant to the threshold question as to whether justification is required, it may assume some importance when considering what has to be justified and the questions to be addressed in that process. It most clearly assumes relevance to the question whether a law is necessary in order to achieve its purpose and to the question whether it is adequate in its balance, where the burden effected is considered in light of the importance of the purpose sought to be achieved[75].

    [75]McCloy v New South Wales (2015) 257 CLR 178 at 218 [84].

64. It is instructive to observe what political communication is not affected by the relevant provisions of the FITS Act. As the defendant points out, the Act does not place any burden on a person in Australia engaging in political communication on their own behalf, unaffected by any relationship with a foreign principal. To illustrate this point it may be observed that if the plaintiff had not entered into an arrangement with the ACU it could have conducted the CPAC event without incurring an obligation to register.

65. Foreign governments and other foreign principals may also communicate ideas and information to those in the Australian political or governmental sphere or to the Australian public without registering so long as the ideas and information are communicated directly by them. It is only if they are communicated through an intermediary, which has the effect that the source of the ideas or information conveyed is disguised, that registration becomes necessary under the FITS Act.

66. Contrary to the plaintiff's submissions, the FITS Act, in its provisions respecting communications activity, does not operate directly on political communication and is not discriminatory. It does not prohibit political communication and does not seek to regulate its content. The FITS Act is directed to exposing the relationship between the person making the communication and the foreign source.

67. In its written submissions the plaintiff said that the definitions of "on behalf of" and "arrangement" are over‑inclusive. This terminology may suggest that the FITS Act has a wide application. The principal factors which would reduce its breadth are the requirements of purpose and intention in ss 12(1) and (2), 21(1) and 14. These matters need not be further explored. The plaintiff does not contend for invalidity on this basis. The point it seeks to make by these observations is that the terms of the FITS Act will be productive of wide coverage, in support of its argument that registration is not necessary.

68. The defendant concedes that conditioning political communication to a requirement of registration effects some burden, but contends that it is modest. The plaintiff likewise submits that the requirement to register alone operates as some disincentive to political communication. It makes the not unimportant point that registration is required with the government itself. But it goes too far in suggesting that it will have a "chilling effect".

69. The plaintiff describes the process attending registration and its consequences as "onerous" and therefore operating as a deterrent to political communication. It points to the information which must be supplied with an application to register, the fact that the Secretary may require further information, the obligations which accrue from registration, such as updating the information initially provided and the requirement to keep records of communications activity, and the additional obligation to disclose communications activity undertaken.

70. The plaintiff accepts that there are limits to what information the Secretary could lawfully require under s 46. If the Secretary's demands went beyond what is reasonably required for the purpose of the FITS Act it might be expected that challenges in the nature of judicial review might be sought in the courts. For present purposes the point to be made is that the requirement to provide information cannot be regarded as at large.

71. It is difficult to accept that the requirements to take particular steps following registration are likely to be unduly onerous. Several of them are similar to what is required by other legislation. Part XX of the Commonwealth Electoral Act 1918 (Cth)[76] requires a Transparency Register to be maintained by the Electoral Commissioner. The Act requires persons such as political campaigners and associated entities to register with the Commissioner and provide certain information and keep that information up to date, in order to support the object of transparency of schemes in the Act relating to donations, electoral expenditure and the authorisation of electoral matter. Prior to 2018, when the provisions for the Transparency Register were introduced, the Commonwealth Electoral Act contained requirements for the registration of political parties and the parties' agents and had done so since at least 1990[77]. It required the provision of some information which is now contained in the Transparency Register. The Lobbying of Government Officials Act 2011 (NSW) requires third-party lobbyists to register with the New South Wales Electoral Commission, which publishes the Register on a website maintained by it. Third-party lobbyists are required to keep information updated and their registration can be suspended or cancelled if it is not[78].

    [76]As amended by the Electoral Legislation Amendment (Electoral Funding and Disclosure Reform) Act 2018 (Cth).

    [77]Registration of political parties was introduced by the Commonwealth Electoral Legislation Amendment Act 1983 (Cth). Registration of party agents was introduced by the Electoral and Referendum Amendment Act 1989 (Cth); a Register of Candidates was established by the Commonwealth Electoral Legislation Amendment Act 1983 (Cth) but was abolished in 1987 by the Commonwealth Electoral Amendment Act 1987 (Cth).

    [78]See also Integrity Act 2009 (Qld); Lobbyists Act 2015 (SA); Integrity (Lobbyists) Act 2016 (WA).

72. In submitting that the provisions of the FITS Act requiring registration have a deterrent effect on persons who might wish to engage in political communication, the plaintiff's submissions place some weight upon the criminal sanctions which are imposed for breach. True it is that criminal sanctions are imposed for failure to register or renew registration or failure to fulfil the responsibilities of a registrant in order to deter non-compliance. But the offences are not directed to the making of political communication; rather they are directed to ensuring that the exposure of the relationship between the maker and the foreign principal is achieved.

73. The plaintiff takes no issue with the obligation imposed by s 38 to disclose the fact of the relationship between the person communicating information and their foreign principal at the time the disclosure is made. The plaintiff's answer to the question why this obligation is an acceptable burden but that of registration is not is that the disclosure obligation can be discharged easily and involves no ongoing obligations. That is to say the plaintiff's argument respecting the burden effected by registration and the obligations which follow is essentially one of deterrence.

74. It may be accepted that the FITS Act's requirement of registration with respect to communications activity may operate so as to deter some persons from making political communication. But in determining the extent of that burden it must be borne in mind that there will be a very small proportion of persons in Australia who will be in that position. The only communication affected is that made under an arrangement with or at the direction of a foreign principal with the intention that it be used for the purpose of political or governmental influence. The requirement will apply to only a small subset of political communication. Even before one considers the extent of the exemptions provided for in the FITS Act, this leaves most political communication unaffected. Of the limited category of persons who are required to register under the Act, only a small proportion could be expected to be deterred by the requirement of registration. The burden effected is likely to be modest.

75. It may be observed here that the implied freedom is engaged at all only as an incident, albeit an indispensable incident, of the system of representative government established by the Constitution. It would be distinctly jejune to insist that participation in the public affairs of the nation must not involve a cost to one's privacy or other individual interests[79].

    Proportionality analysis

    [79]Comcare v Banerji (2019) 267 CLR 373 at 398 [28], 401-402 [35]‑[36].

    Suitability

76. The test of suitability requires that there be a rational connection between the purpose of the statute in question and the measures adopted by it to achieve that purpose[80]. This is an enquiry which logic demands[81]. In this case the purpose of minimising the risk of influence being exerted by foreign principals on Australia's political or election processes is sought to be achieved by measures which seek to make transparent the identity of the foreign principal on whose behalf the person making the communication or providing information intended to influence acts. Clearly, both disclosure by direct means and making publicly available the name of the person and their foreign principal through the process of registration have the requisite connection to the purpose of the FITS Act.

    [80]McCloy v New South Wales (2015) 257 CLR 178 at 209-210 [54]; Brown v Tasmania (2017) 261 CLR 328 at 370 [132]-[133]; Clubb v Edwards (2019) 267 CLR 171 at 205 [84].

    [81]McCloy v New South Wales (2015) 257 CLR 178 at 217 [80]; Brown v Tasmania (2017) 261 CLR 328 at 370 [133].

77. In its written submissions the plaintiff correctly stated the test for suitability. But it then contended that there is no rational connection between the purpose of the FITS Act and its situation because the arrangement between it and the ACU was not covert or clandestine; it has always been transparent. This is not a correct approach to the question of suitability. Whilst the facts of a particular case may illuminate aspects of the effect of a statute on the freedom it is necessary to consider the effect on the freedom as a whole in order to determine the question of constitutional invalidity[82]. The question is not whether the FITS Act can be seen to have application to the plaintiff's circumstances. It is whether there is a rational connection between the statutory purpose and the requirement of registration. Clearly there is.

    [82]Comcare v Banerji (2019) 267 CLR 373 at 395-396 [20].

    Necessity

78. This aspect of proportionality analysis involves the enquiry whether there is an alternative measure available which is equally practicable and at the same time is less restrictive of the freedom[83] and which is obvious and compelling[84]. The test of reasonable necessity has consistently been applied in cases involving the implied freedom and in cases concerning the s 92 freedom, where it has been held to be a doctrine of the Court[85].

    [83]Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 568; Unions NSW v New South Wales (2013) 252 CLR 530 at 556 [44]; McCloy v New South Wales (2015) 257 CLR 178 at 210 [57], 217 [81]; Brown v Tasmania (2017) 261 CLR 328 at 371-372 [139].

    [84]Monis v The Queen (2013) 249 CLR 92 at 214 [347]; Tajjour v New South Wales (2014) 254 CLR 508 at 550 [36]; McCloy v New South Wales (2015) 257 CLR 178 at 210-211 [57]-[58]; Brown v Tasmania (2017) 261 CLR 328 at 371-372 [139]; Clubb v Edwards (2019) 267 CLR 171 at 186 [6], 262 [263], 264-265 [266(3)], 265-266 [267]-[268], 269-270 [277], 337 [478]-[480]; Comcare v Banerji (2019) 267 CLR 373 at 401 [35].

    [85]Betfair Pty Ltd v Western Australia (2008) 234 CLR 418 at 477 [103]; Palmer v Western Australia (2021) 95 ALJR 229 at 240 [37], 242 [50]; 388 ALR 180 at 190, 193.

79. The alternatives the plaintiff points to in its submissions include adding to the list of exemptions in Pt 2, Div 4 communications that identify their connection to a foreign principal at the time they are made; or amending the definition of the types of relationships with foreign principals that the FITS Act is legitimately seeking to reveal. In reality these are merely methods of re-drafting the relevant provisions of the FITS Act so as to effect an exclusion of the requirement of registration for communications activity from s 21 in order that ss 16 and 18 do not apply. The crux of the plaintiff's case is that disclosure under s 38 and the Disclosure Rules is sufficient for the purpose of identifying the relationship between a person and their foreign principal and the requirement of registration adds nothing.

80. More commonly an alternative is identified by reference to a provision in another statute or to a measure which could readily be applied to the statutory scheme in question. A difference in the plaintiff's approach to the test of reasonable necessity from other cases is that the plaintiff points to an existing provision of the statute in question. It submits that nothing more than s 38 is necessary to the scheme of the FITS Act to achieve its purpose. If it is true that registration makes no real contribution to achieving the FITS Act's purpose, there seems no reason in logic why the plaintiff cannot contend that it is not reasonably necessary.

81. Section 38 and the Disclosure Rules cover many methods of communication. They include television and radio broadcasting, social media and printed mediums. In some circumstances the disclosure will be to the public at large and in others it will be only to a small group of persons. The plaintiff's example is of the latter kind. At a conference such as the CPAC event a disclosure will be made by a speaker only to those present unless the speaker's paper is subsequently published more widely. Likewise, where a communication is made on a social media page which is restricted to a small group or in a newspaper in a foreign language, the disclosure will be limited.

82. In circumstances such as these, if what is conveyed by way of political communication is further disseminated by those receiving or reading the communication the disclosure of the relationship between the person making it and their foreign principal may not be more widely published. Information or opinions which might be influential may gain currency within political discourse or public debate without the source of the communication being revealed. This is the very risk which the FITS Act seeks to prevent. Registration enables both the relationship between the person and their foreign principal and a description of the political communication undertaken by the person in that capacity to be matters of public record.

83. It may also be said that, in the nature of things, those persons most interested in, and capable of, subjecting to scrutiny the interests of a foreign participant in the political affairs of this country will be members of the commentariat, such as journalists. The skill and experience of the commentariat, if brought to bear, can ensure effective disclosure of the nature and extent of foreign interests at play in the affairs of this country that might otherwise remain undisclosed or dimly understood. The requirement of registration established by the FITS Act allows the commentariat to be alerted to the presence of foreign influencers in public affairs, and thus enables public debate to be informed in a way that would not be achieved by source disclosure to the recipients of a particular communication at the time of the communication.

84. Both disclosure and registration are necessary for the achievement of the FITS Act's purposes. To the contrary of registration being unnecessary, disclosure under s 38 is not enough. The plaintiff is speaking of a more limited obligation than the FITS Act scheme requires for its purposes.

    Adequacy in the balance

85. Recently it has been confirmed that a law is to be regarded as adequate in its balance unless the benefit sought to be achieved by the law is manifestly outweighed by the adverse effect on the implied freedom[86]. In this regard a powerful public, protective purpose assumes a special importance[87]. The FITS Act clearly has such a purpose. The limited submissions made by the plaintiff on this topic do not deny that the purpose of the FITS Act is protective of Australia's political and electoral processes. That important purpose cannot be said to be outweighed by a burden on the freedom which is modest.

    [86]Comcare v Banerji (2019) 267 CLR 373 at 402 [38].

    [87]McCloy v New South Wales (2015) 257 CLR 178 at 218-219 [86]-[87]; Clubb v Edwards (2019) 267 CLR 171 at 209 [101]-[102]; Comcare v Banerji (2019) 267 CLR 373 at 402-403 [38], 404 [42].

    Questions not addressed

86. These reasons do not address questions as to whether the Secretary's power to require information from a person, prior to or following registration, extends to information intended to be used for governmental purposes beyond those necessary for the purposes of the FITS Act. They do not address questions of this kind because such questions do not arise from the Amended Special Case for the opinion of this Court.

87. The outer limits of the plaintiff's case, as detailed in these reasons, were confirmed by the plaintiff on more than one occasion during the hearing. The plaintiff at no point sought to expand its case or to amend the Amended Special Case by arguing that the provisions of the FITS Act which permit information to be required constitute overreach, are disproportionate on that account and are therefore invalid. The only point made by the plaintiff concerning the Secretary's power under s 46 was that information‑gathering might be onerous. The arguments put by both parties proceeded upon the footing that the Secretary's power is necessarily limited to the purposes of the Act.

88. A case for invalidity premised on questions of the kind referred to above has not been put to the parties for their considered response. During the course of the hearing the Solicitor‑General of the Commonwealth was asked whether information might be collected for executive purposes under the Secretary's discretionary powers and not be made public. The Solicitor‑General answered to the effect that provisions which enable governmental use of information do not change the purpose for which the information can be gathered. He did not concede that information might be required other than for the purpose of ensuring the transparency of any relationship between a person and their foreign principal. If such information was provided, the Solicitor‑General explained, it would be incidental and it would be of narrow compass. The Solicitor‑General was responding to an enquiry. He was not concerned to, and did not, argue a case for the defendant in response to a case that the defendant was required to meet. No such case was advanced against the validity of the Act. For its part, the plaintiff did not pursue the subject of the enquiry.

89. Questions as to the Secretary's powers and the purposes served by these powers are large questions. No basis for these questions is to be found in the Amended Special Case agreed by the parties. It is not contended that information of this kind was sought from the plaintiff for the purposes mentioned. If pressing for answers to such questions could result in invalidity it would be necessary to consider other questions, such as whether the information was relevant to the integrity of governmental decision-making, and, if that question were answered in the negative, further questions would arise, such as whether the application of familiar techniques such as severance, reading down or disapplying the provisions affected might save them from invalidity. None of these matters were adverted to, much less addressed, by the parties. It is certainly not to be supposed that the defendant could not have advanced compelling arguments in relation to these matters.

90. In Lambert v Weichelt[88], Dixon CJ explained that "[i]t is not the practice of the Court to investigate and decide constitutional questions unless there exists a state of facts which makes it necessary to decide such a question in order to do justice in the given case and to determine the rights of the parties". This approach has been taken to mean that it is ordinarily inappropriate for the Court to be drawn into a consideration of whether a legislative provision would have an invalid operation in circumstances which have not arisen and which may never arise if the provision, if invalid in that operation, would be severable and otherwise valid[89]. The same applies where a provision may be read down[90]. For a constitutional question to be decided by the Court it needs to be shown by the special case "that there exists a state of facts which makes it necessary for that question to be decided"[91]. That condition is not met here.

    [88](1954) 28 ALJ 282 at 283.

    [89]Knight v Victoria (2017) 261 CLR 306 at 324-325 [32]-[33].

    [90]Tajjour v New South Wales (2014) 254 CLR 508 at 587-588 [173], referring to The Commonwealth v Queensland (1987) 62 ALJR 1 at 1-2; Coleman v Power (2004) 220 CLR 1 at 56 [110].

    [91]Duncan v New South Wales (2015) 255 CLR 388 at 410 [52].

    Answers

91. The answers to the questions referred are then as follows:

    1.Is the Foreign Influence Transparency Scheme Act 2018 (Cth) invalid, to the extent it imposes registration obligations with respect to communications activities, on the ground that it infringes the implied freedom of political communication?

    Answer:No.

    2.In light of the answer to question 1, what relief, if any, should issue?

    Answer:None.

    3.Who should pay the costs of and incidental to this special case?

    Answer:The plaintiff should pay the defendant's costs.

92. GAGELER J.   The compulsion to be registered under the Foreign Influence Transparency Scheme Act2018 (Cth) ("the FITS Act") as a precondition to engaging in political communication with the public or a section of the public on behalf of a foreign principal is in my opinion incompatible with the constitutional freedom of political communication. The incompatibility arises because the scheme of registration established by the FITS Act has incidents which burden political communication by a registrant to a substantially greater extent than is necessary to achieve the sole identified legislative object of improving transparency.

93. Repeated elucidation of the constitutional freedom of political communication in recent cases and thorough exposition of the scheme of registration established by the FITS Act in other reasons for judgment in this case permit me to express my reasoning with minimal elaboration. My reasoning applies the precedent-mandated Lange-Coleman-McCloy-Brown analysis of the compatibility of a law with the constitutional freedom using an analytical approach I have adequately explained in the past[92] to the application of the third stage of that analysis, which requires consideration of whether a law burdening freedom of communication in pursuit of a legitimate purpose is reasonably appropriate and adapted to advance that purpose in a manner compatible with the maintenance of the constitutionally prescribed system of government.  

    [92]Tajjour v New South Wales (2014) 254 CLR 508 at 579-581 [148]-[152]; McCloy v New South Wales (2015) 257 CLR 178 at 231-234 [129]-[138], 238-239 [150]-[152]; Brown v Tasmania (2017) 261 CLR 328 at 389-391 [200]-[206]; Clubb v Edwards (2019) 267 CLR 171 at 225 [161]-[162]; Comcare v Banerji (2019) 267 CLR 373 at 408-409 [53]-[54].

94. Analytically important from the start is to be categorical about the nature of the burden that the compulsion to register imposes on political communication. To be forced under pain of criminal sanction to register under a statutory scheme as a precondition to being permitted to engage in a category of political communication at all is to be subjected to a prior restraint on political communication.

95. "A system of prior restraint is in many ways more inhibiting than a system of subsequent punishment: It is likely to bring under government scrutiny a far wider range of expression; it shuts off communication before it takes place"[93]. "If it can be said that a threat of criminal or civil sanctions after publication 'chills' speech, prior restraint 'freezes' it at least for the time."[94]

    [93]Emerson, The System of Freedom of Expression (1970) at 506.

    [94]Nebraska Press Assn v Stuart (1976) 427 US 539 at 559, citing Bickel, The Morality of Consent (1975) at 61.

96. Prior restraint of political communication was understood in Australia even before representative and responsible government to derogate from an inherited common law freedom which had been recognised in England after the expiration of the licensing laws in 1695[95] and taken to be established by the time Sir William Blackstone published the fourth volume of his Commentaries on the Laws of England in 1769[96]. The common law freedom was described variously as a "common right", a "constitutional right" and a "constitutional privilege" by Forbes CJ in reasons he gave in 1827 for refusing to certify[97] that a legislative proposal by Governor Darling to license newspapers was consistent with the laws of England so far as the circumstances of the colony of New South Wales would then admit[98]. The lucidity and present-day resonance of those reasons justify them being set out in full.

    [95]Emerson, "The Doctrine of Prior Restraint" (1955) 20 Law and Contemporary Problems 648 at 650-651.

    [96]Blackstone, Commentaries on the Laws of England (1769), bk 4, ch 11 at 151.

    [97]Under 4 Geo IV, c 96, s 29.

    [98]See Spigelman, "Foundations of the Freedom of the Press in Australia", in Castle (ed), Speeches of a Chief Justice: James Spigelman 1998-2008 (2008) 373; Campbell, "Colonial Legislation and the Laws of England" (1965) 2 University of Tasmania Law Review 148 at 157-159.

97. Forbes CJ wrote[99]:

    "By the laws of England[100], the right of printing and publishing belongs of common right to all His Majesty's subjects, and may be freely exercized like any other lawful trade or occupation. So far as it becomes an instrument of communicating intelligence and expressing opinion, it is considered a constitutional right, and is now too well established to admit of question that it is one of the privileges of a British subject. The text is comprehensively laid down by Mr Justice Blackstone as follows: – 'The liberty of the press consists in laying no previous restraint upon publications, and not in freedom from censure for criminal matter when published. Every free man has an undoubted right to lay what sentiments he pleases before the public – to forbid this is to destroy the freedom of the press.'

    To subject the press to the restrictive power of a licenser, as was formerly done, both before and since the revolution, is to subject all freedom of sentiment to the prejudices of one man, and to make him the arbitrary and infallible judge of all controverted points in learning, religion and government[101]. In affirmance of this doctrine, the late Lord Ellenborough is reported, in a celebrated case of libel, to have delivered himself in these words – 'The law of England is a law of liberty, and, consistently with this liberty, we have not what is called an imprimatur, there is no such preliminary license necessary.'[102]

    In a recent work, of which the great lawyer, whom I have just cited, was pleased to express his approbation, the principle of the law is stated in the following terms: – 'There is nothing upon which Englishmen are justly more sensible than upon whatever has the appearance of affecting the liberty of the press. But popular writers have certainly extended the notion of this liberty beyond what in reason it will bear. They have converted it into a native, an original, a primitive right, instead of considering it only as a right derivative and deductive from the joint rights of opinion and of speaking. This, including an exemption from the control of a licenser, and all previous restraint upon the mere suspicion of abuse, is the proper notion of the liberty of the press.'[103]

    It were unnecessary to multiply authorities; it is clear that the freedom of the press is a constitutional right of the subject, and that this freedom essentially consists in an entire exemption from previous restraint; all the statutes in force are in accordance with this first principle of law; they facilitate the means of proof; in certain cases, they encrease the measure of punishment; but in no instance do they impose any previous restraint either upon the matter of publication or the person of the publisher. Indeed to admit the power of selection among publishers would be more repugnant to the spirit of the law than to impose a direct imprimatur; it would be not merely to confine the right of publishing within partial bounds, but it would be to establish a monopoly in favor of particular principles and opinions, to destroy the press as the privilege of the subject, and to preserve it only as an instrument of government. 'The press', continues Blackstone, 'can never be used to any good purpose, when under the control of an inspector.'

    By the laws of England, then, every free man has the right of using the common trade of printing and publishing newspapers; by the proposed bill, this right is confined to such persons only as the Governor may deem proper. By the laws of England, the liberty of the press is regarded as a constitutional privilege, which liberty consists in exemption from previous restraint; by the proposed bill, a preliminary license is required, which is to destroy the freedom of the press, and to place it at the discretion of the government."

    [99]Historical Records of Australia, Series I, Volume 13 at 292-294. See also Newspaper Acts Opinion [1827] NSWKR 3. The paragraphing has been added. The emphasis is in the original. The footnoting is also in the original but has been modernised.

    [100]Bacon, A New Abridgment of the Law, 6th ed (1807), vol 4 at 764-768; Mitchel v Reynolds (1711) 1 P Wms 181 at 183 [24 ER 347 at 348]; The Clothworkers of Ipswich Case (1614) Godbolt 252 at 253 [78 ER 147 at 147-148].

    [101]Blackstone, Commentaries on the Laws of England (1769), bk 4, ch 11 at 151.

    [102]Trial of William Cobbett (1804) 29 St Tr 1 at 49.

    [103]Holt, The Law of Libel, 2nd ed (1816) at 59-60.

98. Forbes CJ had earlier explained in official correspondence that the freedom of political communication that existed at common law even in a penal colony was such that a prior restraint on publication "requires to be carefully examined". "[I]f you take away the freedom of public opinion upon matters of government", he wrote, "you take away a legal right; necessity you will say justifies it; then the limit of that justification is the necessity which compels it; it should go no further"[104].

    [104]Historical Records of Australia, Series IV, Section A, Volume 1 at 682.

99. The constitutionally entrenched freedom of political communication which came to be recognised 165 years later in Australian Capital Television Pty Ltd v The Commonwealth[105] and Nationwide News Pty Ltd v Wills[106] to derive from the national system of representative and responsible government established by the Constitution is a systemic structural imperative as distinct from an individual right or privilege. That difference from the common law freedom of political communication expounded by Forbes CJ acknowledged, application of the Lange-Coleman-McCloy-Brown analysis to a prior restraint on political communication requires no lesser intensity of scrutiny and demands no lesser standard of justification than that identified by Forbes CJ.

    [105](1992) 177 CLR 106.

    [106](1992) 177 CLR 1.

269. The potential extensive reach of the FITS Act, arguably achieved by the inclusion of s 11(1)(a)(i), may be seen in the basal obligation to register in s 16 with respect to communications activities for the purposes of item 3 of the table in s 21(1)[407]. A person must apply for registration if the person "becomes liable to register under the scheme in relation to a foreign principal" and is not already so registered. Pursuant to s 18, a person relevantly becomes liable to register if that person "undertakes an activity on behalf of a foreign principal that is registrable in relation to the foreign principal".

     [407]The other obligations are described by Kiefel CJ, Keane and Gleeson JJ at [36]-[38].

270. Division 3 of Pt 2 of the FITS Act identifies what activities are registrable. It includes, pursuant to item 3 of the table in s 21(1), a "[c]ommunications activity ... for the purpose of political or governmental influence". Section 13 defines what is a "communications activity". It includes the communication or distribution of information or material to the public. Section 13(3) contains an important exemption for certain activities, including those undertaken "in the ordinary course of [a] disseminator's business" and which involve communicating or distributing information or material produced by another person, whose identity is apparent in the communication or distribution.

271. Section 12 of the FITS Act defines when an activity is undertaken for the purpose of "political or governmental influence". It includes an activity if the "sole or primary purpose, or a substantial purpose" is to influence "a process in relation to a federal government decision". Section 12(4) elaborates on what sort of decision is intended to be caught. It includes a decision of "any kind in relation to any matter, including administrative, legislative and policy matters ... whether or not the decision is final". The word "influence" is defined broadly in s 10 of the FITS Act to include "affect in any way". Here the plaintiff accepted that the 2019 Conservative Political Action Conference ("CPAC"), discussed further below, involved the undertaking of communications activities for the purpose of political or governmental influence.

272. It follows that, if a person undertakes a communications activity for the purpose of "political or governmental influence" "on behalf of" a foreign principal, then that person is liable to be registered. A person will undertake such an activity "on behalf of" a foreign principal if, relevantly, the person does so "under an arrangement with the foreign principal" and at the time the arrangement is entered into both that person and the foreign principal "knew or expected" that the person would undertake that activity for the purpose of political or governmental influence[408]. The word "under" connotes a necessary causal relationship between the activity and the existence of an arrangement.

     [408]FITS Act, s 11(1)(b).

273. As noted in the reasons of Kiefel CJ, Keane and Gleeson JJ[409], the FITS Act creates a number of offences that can apply to registrants, potential registrants and those who undertake registrable communications activities.

     [409]At [39].

274. It would seem that no part of the foregoing statutory regime, as it applies to arrangements, necessarily requires the person undertaking the activity to be acting in fact at the behest of, or on behalf of, a foreign principal or as some kind of intermediary. A person, for example, might enter into an arrangement to collaborate with a foreign principal, on equal terms, to make a submission to government concerning a matter of public policy. A person might form an equal alliance with a foreign principal to pursue a commonly held political point of view. A person might jointly host a conference with a foreign principal concerning political or governmental issues. Each of these activities might well constitute registrable activities. In each case, the person in Australia may be independently advancing their own interests, thereby acting solely for themselves. In each case also, the requirement in s 11(1)(b) of the FITS Act for joint knowledge or expectation concerning the proposed activity would not necessarily prevent the activity from being liable to be registered.

275. The Solicitor-General of the Commonwealth agreed with the foregoing. He did not suggest that the definition of "arrangement" should be in any way read down. He did not seek to rely on s 15A of the Acts Interpretation Act 1901 (Cth). He agreed that a person, acting wholly in his or her interests, could be caught by the FITS Act if he or she had entered into an "arrangement" with a foreign principal (on the assumption that the other requirements of that Act are fulfilled). On that basis, an Australian academic who prepares a paper (that constitutes a communications activity for the purpose of political or governmental influence) under an arrangement or understanding (perhaps to deliver the paper at an international conference) with a foreign academic (who is a foreign principal) who proposes to prepare her or his own paper might be liable to be registered. The Solicitor-General submitted that this was a necessary by-product of important legislation which is broad-based and neutral. He submitted, however, that only a very small number of people might be caught this way.

276. Appearing as intervener, the Solicitor-General for New South Wales submitted that the term "arrangement" in s 11(1)(a)(i) should be read down by reference to the words "on behalf of" in s 11(1). With very great respect, I cannot agree with that particular submission; "[i]t would be quite circular to construe the words of a definition by reference to the term defined"[410].

     [410]Owners of "Shin Kobe Maru" v Empire Shipping Co Inc (1994) 181 CLR 404 at 419 per Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ, citing Wacal Developments Pty Ltd v Realty Developments Pty Ltd (1978) 140 CLR 503.

     Was the plaintiff an intermediary?

277. The agreed facts of this case appear to bear out the foregoing and may be illustrative of how the FITS Act might apply to a person acting in their own interests. The plaintiff is a private "think tank" which aims to move public policy in the direction of increased individual rights and freedoms, and a reduction in governmental control over all individuals' personal and economic lives. The American Conservative Union ("the ACU") is an American corporation established for the promotion of political freedom and for the purpose of influencing politics and politicians in the United States. It was not disputed that the ACU was and is a "foreign political organisation" for the purposes of the FITS Act.

278. The ACU holds an annual conference – the CPAC – in the United States at which talks are given by prominent people in politics, media, arts, sports and academia. The plaintiff wanted to hold a CPAC with the ACU in Australia in 2019, and so an oral agreement to collaborate for that purpose was reached. The plaintiff organised this event, and was responsible for all running and venue costs, scheduling and liaising with all Australian and many overseas speakers and attendees. The speakers included politicians, media personalities, members of think tanks, economists and social commentators.

279. In promotional material, the ACU was advertised as one of the "Think Tank Host Partners" of the CPAC and described as one of the "co‑hosts" in a newspaper article. The ACU facilitated the attendance of some overseas speakers, and some members of the ACU also attended. The CPAC was held in August 2019.

280. Prior to the conference being held in 2019, the plaintiff received a letter from an officer of the Department. The letter recited that the Department was aware of the upcoming CPAC, was of the view that the ACU was a foreign political organisation and therefore a foreign principal, and was of the view that the CPAC appeared to constitute a communications activity for the purposes of political or governmental influence. The letter invited the plaintiff to consider whether it needed to register under the FITS Act.

281. On 21 October 2019, a notice was sent to the plaintiff by the Department obliging the plaintiff to produce, pursuant to s 45(2) of the FITS Act, any information or documents relevant to the question of whether the plaintiff is liable to register because of its relationship with the ACU. The notice stated that the information would include, but not be limited to, the following:

     "Any agreement, contract or other document detailing any understanding or arrangement between [the plaintiff] and the ACU

     Any invitations, letters or other correspondence from [the plaintiff] or the ACU sent to individuals invited to speak at or attend the Conference, including correspondence subsequent to the initial invitation

     Copies, transcripts or video or audio recordings of speeches made by speakers at the conference, including of speeches by members of [the plaintiff] or the ACU to introduce or conclude the Conference or a specific day or event at the conference

     Summaries of the topics covered by speakers at the Conference, and

     Material produced or distributed by [the plaintiff] promoting the Conference or the ACU."

282. Section 45(2) of the FITS Act empowers the Secretary of the Department to obtain by notice "any information that may satisfy the Secretary as to whether [a] person is liable to register in relation to [a] foreign principal" if the Secretary "reasonably suspects that [the] person might be liable to register under the scheme in relation to [the] foreign principal" and the person is not so registered[411]. Section 59 relevantly provides that it is an offence not to comply with a notice issued pursuant to s 45.

     [411]FITS Act, s 45(1).

283. The plaintiff declined to comply with the notice on the ground that it was invalid. The Department decided not to take any further action because, whilst it was of the view that the plaintiff may have had registration obligations in relation to the ACU and the CPAC, it was also satisfied that the arrangement between the plaintiff and the ACU was "made transparent" through statements to the media and promotional materials.

284. At the time it agreed the facts of this case with the Commonwealth, the plaintiff was planning to hold another CPAC, in November 2020, with the ACU as a "Think Tank Partner", but the plaintiff expected that COVID-19 restrictions would prevent anyone from the ACU from physically attending the conference. Two speakers from the 2019 CPAC had expressed by telephone a reluctance to participate in the 2020 CPAC given the possibility of correspondence having to be made public pursuant to the FITS Act.

285. There is no suggestion from the agreed facts that the plaintiff has ever undertaken communications activities on behalf of, or at the behest of, the ACU, or that any of the speakers at the 2019 CPAC made speeches on behalf of anyone else or that anybody was an intermediary for the ACU. As the promotional material and other media communications made clear, the 2019 CPAC was jointly hosted by the plaintiff and the ACU.

286. Nonetheless, in my view, the collaboration that took place between the plaintiff and the ACU fell within the ordinary meaning of the words used in the definition of an "arrangement" in s 10 of the FITS Act. Given, as noted above, that it was not disputed that the ACU is a foreign principal and that it appears to have been accepted that the CPAC constituted a communications activity for the purposes of political or governmental influence, it follows that the plaintiff was liable to be registered under the FITS Act.

     The implied freedom and an "arrangement" under the FITS Act

287. I generally agree with the reasons of Kiefel CJ, Keane and Gleeson JJ concerning the application of the test expressed in McCloy v New South Wales[412] ("the McCloy test") to item 3 of the table in s 21(1) of the FITS Act and to the FITS Act more generally. The FITS Act falls within that category of laws identified by Vinson CJ in Douds as being necessary precisely because, if a democratic government is to endure, it must have the power to protect itself against unlawful conduct or corrupting influences[413]. Such a law, as Black J observed in Viereck, ultimately promotes freedom of political expression[414]. And as Brennan J (as his Honour then was) has recognised, "the salutary effect of freedom of political discussion on performance in public office can be neutralized by covert influences"[415].

     [412](2015) 257 CLR 178 at 193-195 [2] per French CJ, Kiefel, Bell and Keane JJ.

     [413](1950) 339 US 382 at 394.

     [414](1943) 318 US 236 at 251.

     [415]Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106 at 159.

288. Nonetheless, I am less confident that the FITS Act will deter only a very small proportion of persons from making political communications. For my part, however, what is critical here is that it was an agreed fact that at the time of the enactment of the FITSAct, Australia was experiencing undisclosed foreign influence in respect of government and political systems and processes and more broadly in the Australian community. It was agreed that the Australian Security Intelligence Organisation ("ASIO") had identified foreign powers clandestinely seeking to shape the opinions of members of the Australian public, media organisations and government officials to advance their own countries' political objectives, including through the recruitment and co-opting of influential and powerful Australian voices to lobby decision makers. It was further agreed that ASIO's view was that espionage and foreign interference activity against Australia's interests was "occurring at an unprecedented scale". Based upon such agreed facts, it should be accepted that the judicial branch of government is not well equipped to invalidate Parliament's solution to this threat as being, for example, not suitable, necessary and adequate in its balance. That is especially so given that national security and the maintenance of the Commonwealth is at issue; in such cases there must necessarily be a very large measure of judicial deference in determining the reach of the implied freedom[416].

     [416]cf Harisiades v Shaughnessy (1952) 342 US 580.

289. For the purposes of applying the McCloy test, as helpfully distilled by the plurality in Clubb v Edwards[417], the Commonwealth admitted that the obligation to register under the FITS Act creates a burden on the implied freedom, albeit one that was said to be "modest". The plaintiff then accepted that the purpose of the FITS Act is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government. As to the test of structured proportionality, the plaintiff also conceded that the FITS Act is "suitable" because it exhibits a rational connection to its purpose[418]. I otherwise generally agree with the reasons given by Kiefel CJ, Keane and Gleeson JJ[419] in relation to the two other limbs of structured proportionality as applied to item 3 of the table in s 21(1) of the FITS Act.

     [417](2019) 267 CLR 171 at 186 [5] per Kiefel CJ, Bell and Keane JJ.

     [418]Comcare v Banerji (2019) 267 CLR 373 at 400 [33] per Kiefel CJ, Bell, Keane and Nettle JJ, citing Tajjour v New South Wales (2014) 254 CLR 508 at 563 [81]-[82] per Hayne J; McCloy v New South Wales (2015) 257 CLR 178 at 217 [80] per French CJ, Kiefel, Bell and Keane JJ, 232-233 [132]‑[133] per Gageler J, 262 [234] per Nettle J; Brown v Tasmania (2017) 261 CLR 328 at 370 [132]‑[133] per Kiefel CJ, Bell and Keane JJ, 418 [281] per Nettle J; Clubb v Edwards (2019) 267 CLR 171 at 186 [6] per Kiefel CJ, Bell and Keane JJ, 264 [266(2)] per Nettle J, 330-331 [463] per Edelman J.

     [419]At [78]-[85].

290. However, as I have explained, the FITS Act may oblige an individual to register, in the circumstances described above, when she or he may truly be acting only on behalf of her‑ or himself, ostensibly contrary to the very express object and purpose of that Act. That raises for consideration whether the inclusion of the word "arrangement", as an instance of when a person may be seen to be undertaking an activity "on behalf of" a foreign principal, itself offends the implied freedom in so far as it is applied for the purposes of item 3 of the table in s 21(1). For that purpose, I accept, applying the second limb of the McCloy test, that the inclusion – because, I infer, it is concerned with avoidance arrangements – is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government.

291. That leaves the third limb of the McCloy test and its concern with a law's suitability, necessity and adequacy in its balance. For the moment, it can be properly assumed that s 11(1)(a)(i), in so far as it is engaged when applying item 3 of the table in s 21(1) of the FITS Act, is both a suitable and necessary law in the required senses[420]. That is because I accept that the concept of an "arrangement" provides a means of capturing those foreign principals who seek covert influence by ways which avoid s 11(1)(a)(ii), (iii) and (iv)[421]; it is also because no party suggested that there is an obvious and compelling alternative means of addressing foreign principals who so act[422]. This leaves the issue of adequacy in the balance.

     [420]Clubb v Edwards (2019) 267 CLR 171 at 186 [6] per Kiefel CJ, Bell and Keane JJ.

     [421]Comcare v Banerji (2019) 267 CLR 373 at 408 [53] per Gageler J.

     [422]Clubb v Edwards (2019) 267 CLR 171 at 186 [6] per Kiefel CJ, Bell and Keane JJ.

     Adequacy in the balance

292. It has been said that a law which is found to be suitable and necessary may nonetheless impermissibly burden the implied freedom if "the benefit sought to be achieved by the law is manifestly outweighed by its adverse effect on the implied freedom"[423]. In other words, the question is "whether the law imposes a burden on the implied freedom which is 'manifestly excessive by comparison to the demands of legitimate purpose'"[424]. The inquiry is not a comparison of the benefits of the law with the benefits of an unburdened implied freedom, but a comparison of the effects of the law and the extent of the burden[425]. An overreach of means over ends may well demonstrate an excessive burden on the implied freedom which is disproportionate to the purpose or object of the impugned law[426]. In that respect, a "manifestly" excessive burden on the implied freedom is, in my view, a reference to a legislative means of achieving a legitimate purpose that is so extreme in its effect on that freedom that it cannot, in any sensible way, be justified. The hurdle to be jumped is very high. As Nettle J observed in Brown v Tasmania[427]:

     "[I]n the Australian constitutional context the description 'adequate in its balance' is better understood as an outer limit beyond which the extent of the burden on the implied freedom of political communication presents as manifestly excessive by comparison to the demands of legitimate purpose".

     [423]Comcare v Banerji (2019) 267 CLR 373 at 402-403 [38] per Kiefel CJ, Bell, Keane and Nettle JJ, citing Clubb v Edwards (2019) 267 CLR 171 at 186 [6], 199-200 [66]-[69], 209 [102] per Kiefel CJ, Bell and Keane JJ, 266-269 [270]-[275] per Nettle J, 344 [497]-[498] per Edelman J. See also Davis v The Commonwealth (1988) 166 CLR 79 at 99-100 per Mason CJ, Deane and Gaudron JJ (Wilson and Dawson JJ agreeing at 101); Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 at 30‑31, 34 per Mason CJ, 78 per Deane and Toohey JJ, 94-95 per Gaudron J, 101-102 per McHugh J; Cunliffe v The Commonwealth (1994) 182 CLR 272 at 324 per Brennan J; McCloy v New South Wales (2015) 257 CLR 178 at 219 [87], 220 [91] per French CJ, Kiefel, Bell and Keane JJ; Brown v Tasmania (2017) 261 CLR 328 at 422-423 [290] per Nettle J.

     [424]Clubb v Edwards (2019) 267 CLR 171 at 200 [69] per Kiefel CJ, Bell and Keane JJ, citing Brown v Tasmania (2017) 261 CLR 328 at 422-423 [290] per Nettle J and McCloy v New South Wales (2015) 257 CLR 178 at 219-220 [89]-[92] per French CJ, Kiefel, Bell and Keane JJ.

     [425]Clubb v Edwards (2019) 267 CLR 171 at 201 [72] per Kiefel CJ, Bell and Keane JJ.

     [426]Brown v Tasmania (2017) 261 CLR 328 at 365 [109] per Kiefel CJ, Bell and Keane JJ.

     [427](2017) 261 CLR 328 at 422 [290], citing McCloy v New South Wales (2015) 257 CLR 178 at 219-220 [89]-[92] per French CJ, Kiefel, Bell and Keane JJ; Kiefel, "Section 92: Markets, Protectionism and Proportionality – Australian and European Perspectives" (2010) 36(2) Monash University Law Review 1 at 12.

293. In Clubb, Edelman J emphasised that a conclusion that a law is inadequate in the balance after nevertheless making a finding that the law has a legitimate purpose "could have large consequences"[428]. As a result, as his Honour pointed out, in some other jurisdictions this test has been effectively abandoned[429]. This limb of structured proportionality should, accordingly, be approached with very considerable trepidation.

     [428]Clubb v Edwards (2019) 267 CLR 171 at 341‑342 [492].

     [429]Clubb v Edwards (2019) 267 CLR 171 at 342 [493].

294. The agreed facts of this case illustrate, and only illustrate, the difficulty with the inclusion of s 11(1)(a)(i) in the FITS Act. They do not suggest that the plaintiff was in any way an agent of the ACU or in any way doing the ACU's bidding when holding the 2019 CPAC. As far as one can tell, the plaintiff has acted in its own right at all times in organising and hosting the CPAC. It did so with the collaboration and co-operation of the ACU. The ACU was, in that respect, apparently an equal partner. The plaintiff was in no way any kind of intermediary for the ACU. It follows that it is unlikely that any object or purpose of the FITS Act was fulfilled, or in any way enhanced, by making the plaintiff liable to be registered.

295. Given the breadth of the definition of "arrangement", contrary to the submission of the Commonwealth, the position of the plaintiff may not be unique. For example, there was material before us from the Department requiring one former prime minister, who was to attend merely as a speaker at the 2019 CPAC, to consider registration. More broadly, as already mentioned, the FITS Act arguably has the capacity to require registration by any person who might organise a conference with a foreign principal at which political communications are to take place; it might also apply to collaboration between local and overseas academics in relation to political communications. Other potential examples of its reach might include international law and accounting firms who might lobby in their own right the government from time to time; and it might apply to companies in joint ventures with foreign principals. In each of these examples the local individual or entity may not in any way be acting as an intermediary for a foreign principal. Whether this aspect of the FITS Act will affect only a small number of Australians is not known to me. No list of currently registered individuals or entities was before the Court. However, the foregoing reasoning suggests that there is a potential for application on many occasions. It follows that if s 11(1)(a)(i) of the FITS Act is a valid law, in so far as it is engaged by item 3 of the table in s 21(1), such individuals or entities, as described above, may be obliged to register for no reason whatsoever connected with the object and purpose of the FITS Act. No one has suggested that Parliament, in any way, intended that Australians undertaking political activities in their own interests needed to register or make disclosures of any kind pursuant to the FITS Act.

296. The FITS Act, by s 3, proclaims that its object is to improve the transparency of activities undertaken on behalf of foreign principals. The Commonwealth states that the object of the Act is the minimisation of undisclosed foreign influence on political affairs. But if a person does not truly act for a foreign principal, there is no need for transparency; there is no covert source of foreign influence to disclose. It follows that it is arguable that the extension of the FITS Act to those with nothing relevantly to disclose, to those who have nothing relevantly to hide, and to those who act only for themselves, but who, in each case, are nonetheless associated with a foreign principal by participation in an arrangement, is a manifestly disproportionate legislative solution to the aim of minimising undisclosed foreign political influence. The disproportion may be said to be manifest because it treats the innocent as if they are guilty of being undisclosed intermediaries for a foreign principal. That conclusion may well be strengthened when one considers the obligations imposed, on pain of potential imprisonment, on registrants, potential registrants and those who undertake registrable communications activities. The disproportion here is arguably so stark that it overcomes any necessary judicial deference concerning matters of national security.

297. In other words, it is arguable that by reason of s 11(1)(a)(i) of the FITS Act when applied by item 3 of the table in s 21(1) of that Act, the extent of the burden on the implied freedom presents, to use the language of Nettle J, "as manifestly excessive by comparison to the demands of legitimate purpose"[430]; the legitimate purpose here being to address unacceptable arrangements with foreign principals that fall outside the reach of s 11(1)(a)(ii), (iii) and (iv). For the reasons already given, it may not be possible to read down the term "arrangement" to save it from invalidity[431]. However, I express no final view. The plaintiff did not contend for invalidity on this specific basis. If necessary, the reach of s 11(1)(a)(i) may be considered on another occasion.

     [430]Brown v Tasmania (2017) 261 CLR 328 at 422 [290], citing McCloy v New South Wales (2015) 257 CLR 178 at 219-220 [89]-[92] per French CJ, Kiefel, Bell and Keane JJ; Kiefel, "Section 92: Markets, Protectionism and Proportionality – Australian and European Perspectives" (2010) 36(2) Monash University Law Review 1 at 12.

     [431]cf Knight v Victoria (2017) 261 CLR 306 at 324-325 [32]-[33] per Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ; Clubb v Edwards (2019) 267 CLR 171 at 192-193 [32]-[36] per Kiefel CJ, Bell and Keane JJ, 216-217 [135]-[138] per Gageler J, 248-249 [230] per Nettle J, 287 [329] per Gordon J.

     The existence of the implied freedom

298. The divergence of views in this Court concerning the test for the application of the implied freedom perhaps may illustrate the tenuous nature of that implication. If the content of the implied freedom cannot even now be agreed upon, then, for my part, that may demonstrate that it was never justified. In Theophanous v Herald & Weekly Times Ltd, Dawson J rejected the existence of the implied freedom and said[432]:

     "Whilst it may disappoint some to find that the Australian Constitution provides no guarantee, express or implied, of freedom of speech, that is because those who framed the Constitution considered it to be one of the virtues of representative government that no such guarantee was needed. I have elsewhere dealt with the manner in which the founding fathers placed their faith in the democratic process rather than constitutional guarantees to secure those freedoms regarded as fundamental in any democratic society[433]. They took the view that constitutional guarantees operate as a fetter upon the democratic process and did not consider it necessary to restrict the power of Parliament to regulate those liberties which the common law recognizes and nurtures.

     If a constitutional guarantee of freedom of speech or of communication is to be implied, the implication must be drawn from outside the Constitution by reference to some such concept as 'the nature of our society'[434]. That is not an implication which can be drawn consistently with established principles of interpretation.

     The Engineers' Case[435] may have given rise to the misconception that no implications may be drawn from the Constitution and to have led to some imbalance in the interpretation of the federal division of powers[436]. But it is now clear that implications can and must be drawn in the interpretation of the Constitution to give effect to its intention[437]. However, it has never been thought that the implications which might properly be drawn are other than those which are necessary or obvious having regard to the express provisions of the Constitution itself. To draw an implication from extrinsic sources, which the first defendant's argument necessarily entails, would be to take a gigantic leap away from the Engineers' Case, guided only by personal preconceptions of what the Constitution should, rather than does, contain. It would be wrong to make that leap."

     [432](1994) 182 CLR 104 at 193-194.

     [433]See Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106 at 186; and see also at 133-134 per Mason CJ.

     [434]See, eg, McGraw-Hinds (Aust) Pty Ltd v Smith (1979) 144 CLR 633 at 670 per Murphy J.

     [435]Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129.

     [436]See, eg, Craven, "The Crisis of Constitutional Literalism in Australia", in Lee and Winterton (eds), Australian Constitutional Perspectives (1992) 1 at 4-9.

     [437]See West v Commissioner of Taxation(NSW) (1937) 56 CLR 657 at 681-682 per Dixon J.

299. I am afraid that I still respectfully agree with much of the foregoing.

300. The grave importance of the freedom to speak about political and governmental issues to a democratic society is undeniable. But whilst implying a legal guarantee of such freedom from the text and structure of the Constitution may be understandable, that text and structure may not supply a clear answer for when and how that freedom may permissibly be limited. The daunting search for a unifying principle of limitation is yet to uncover a principle that has been agreed upon by the Justices of this Court. It may not clearly be found in the text and structure of the Constitution; nor, as Dawson J observed, can it be found outside the Constitution. If that is so, then it may be that it cannot be found at all.

301. So concluding does not deny, for example, the ability of this Court to protect the means by which representatives are "directly chosen" by the people for the purposes of ss 7 and 24 of the Constitution. As Dawson J recognised in Australian Capital Television Pty Ltd v The Commonwealth, legislation which, for example, purported to have the effect of denying electors access to information necessary for the exercise of a true choice in an election would be incompatible with the Constitution[438].

     [438]Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106 at 187. See also Goldsworthy, "Constitutional Implications Revisited" (2011) 30 University of Queensland Law Journal 9 at 28-29.

302. On one view, the implication has, since its birth, been a source of uncertainty. Perhaps, and subject to the Constitution, if a law exhibits a sufficient connection with a head of constitutional power, that is enough[439]; it may be better for its reasonableness and legitimacy to be otherwise matters reserved to the legislative branch of government[440].

     [439]cf Plaintiff M68/2015 v Minister for Immigration and Border Protection (2016) 257 CLR 42 at 80 [77] per Bell J, citing Plaintiff S156/2013 v Minister for Immigration and Border Protection (2014) 254 CLR 28 at 43 [26]. See also Grain Pool of Western Australia v The Commonwealth (2000) 202 CLR 479 at 492 [16] per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ; New South Wales v The Commonwealth (2006) 229 CLR 1 at 143 [275] per Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ.

     [440]cf Gerner v Victoria (2020) 95 ALJR 107 at 112-113 [18] per Kiefel CJ, Gageler, Keane, Gordon and Edelman JJ; 385 ALR 394 at 399.

303. I am not the only Justice of this Court who has been concerned about the implied freedom. Callinan J was critical of its existence in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd[441], as was Heydon J in Monis v The Queen[442]. There is no need at this stage to set out what each of these Justices said.

     [441](2001) 208 CLR 199 at 330-339 [337]-[348].

     [442](2013) 249 CLR 92 at 181-184 [243]-[251].

304. The current division of opinion in this Court may, in my view, justify a reconsideration, with leave if necessary, of the existence of the implied freedom. Nonetheless, as already mentioned, neither party challenged the existence of the implied freedom in this special case. For the disposition of this proceeding, it is therefore not appropriate to deny its application here. It should, if required, be a matter for full argument to be considered on another occasion.

     Conclusion

305. I agree with the answers to the stated questions proposed by Kiefel CJ, Keane and Gleeson JJ.