LibertyWorks Inc v Commonwealth of Australia

[2021] HCATrans 35

[2021] HCATrans 035

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S10 of 2020

B e t w e e n -

LIBERTYWORKS INC

Plaintiff

and

COMMONWEALTH OF AUSTRALIA

Defendant

KIEFEL CJ
GAGELER J
KEANE J
GORDON J
EDELMAN J
STEWARD J
GLEESON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 2 MARCH 2021, AT 10.00 AM

Copyright in the High Court of Australia

MR P.J. DUNNING, QC:   May it please the Court, I appear with my learned friend, MR R. SCHEELINGS, for the plaintiff.  (instructed by Speed and Stracey Lawyers)

MR S.P. DONAGHUE, QC, Solicitor‑General of the Commonwealth of Australia:   May it please your Honours, I appear with my learned friends, MR B.K. LIM and MS S. ZELEZNIKOW, for the defendant.  (instructed by Australian Government Solicitor)

MR M.G. SEXTON, SC, Solicitor‑General for the State of New South Wales:   If the Court pleases, I appear with my learned friend, MR S. ROBERTSON, for the Attorney‑General for the State of New South Wales who intervenes in the proceedings.  (instructed by Crown Solicitor’s Office (NSW))

KIEFEL CJ:   Yes, Mr Dunning.

MR DUNNING:   Thank you, your Honours.  Your Honours, an amended version of the writ of summons and special case was provided to the Court in light of the correspondence in relation to the decision in Palmer, and also some discussions with the Commonwealth.

KIEFEL CJ:   Yes, you are no longer pursuing the section 92 limb, yes.

MR DUNNING:   That is correct, your Honours, yes.  Do I need to speak to those amendments any more than that or is that sufficient?

KIEFEL CJ:   No, I do not think so, thank you, Mr Dunning.

MR DUNNING:   Thank you.

GORDON J:   Mr Dunning, before you start, with this new configuration, we find it very difficult on the wings to hear you.  We would be very grateful if you could speak up.

MR DUNNING:   Of course, Justice Gordon, yes.

GORDON J:   Thank you.

MR DUNNING:   Thank you.  Your Honours, if I can commence our discussion in relation to the challenge to the Act in this way, by taking your Honours, please, if we may, to what I will call, if it is okay, the FITS Act.  Your Honours will find that in volume 1 of the joint book of authorities, starting at page 14.  On page 21, your Honours will find the stated objects of that Act.  Where Parliament has identified what the scheme is to achieve one sees, in the last three lines:

in order to improve the transparency of their activities on behalf of those foreign principals.

Your Honours see more of that, in our submission, in the history of the enactment.  In that regard, if I can ask your Honours, please, to go to the explanatory memorandum, which your Honours will find in the joint book of authorities, volume 8, at 2516.  If I may ask your Honours, please, to notice paragraphs 399 to 401 and, in particular, your Honours, 401. 

KIEFEL CJ:   The purpose of the Act is – the early point at which you and the Commonwealth depart – the plaintiff and the Commonwealth depart – it is argued against you that the purpose is much broader than transparency.  Transparency is something that is sought on the way towards a wider purpose of reducing the risk of foreign influence.

MR DUNNING:   Yes, Chief Justice, and we would accept that in respect of other aspects of the Act in relation to, for example, lobbying or disclosure of funding.  But, in our submission, when one looks at the objects – both as one sees them crisply stated in section 3 and elsewhere, to be discerned from the Act, and the history of the Act ‑ that when it comes to communication per se, transparency was the objective. 

KIEFEL CJ:   But lobbying is a communication?

MR DUNNING:   Yes, and it is understandably more tightly regulated because it is not part of the general community discussion which the implied freedom ‑ sorry, the general community discussion in relation to political matters, which the implied freedom is concerned to protect.  Lobbying is a different consideration which is – and I will take your Honours to the definition of it shortly ‑ ‑ ‑ 

KIEFEL CJ:   Yes.  Well, I have interrupted you, in any event, you should develop your argument in relation to the purpose for which you contend and then, of course, deal with the Commonwealth’s argument.

MR DUNNING:   Yes.

KIEFEL CJ:   But it was really ‑ my interruption was by way of pointing out that this would seem to be a very important aspect of the arguments. 

GAGELER J:   You mentioned in your answer other aspects of the Act.  Will you be precise in identifying those aspects of the Act that you are seeking to challenge? 

MR DUNNING:   Certainly, Justice Gageler.  I can tell you that now.  That is item 3 of section 21.  And once item 3 of section 21 is challenged the Act would not then apply to political communication per se.  We would still have an application to lobbying in the different variations that are identified by the Act, and it would still have its financial disclosure area of operation. 

GAGELER J:   On the way to item 3 of section 21, we have a foreign principal because we have a foreign corporation that is a foreign political organisation.  Is that right?

MR DUNNING:   Correct.

GAGELER J:   And then the activities engaged in in Australia, you accept constitute a communications activity within the definition?

MR DUNNING:   Yes.

GAGELER J:   You also accept that the communication activity is carried on by your client on behalf of that foreign principal, within the definition?

MR DUNNING:   Within the definition, yes.

GAGELER J:   Yes, thank you.

MR DUNNING:   Thank you. 

STEWARD J:   Which bit of the definition – I am so sorry?

MR DUNNING:   Not at all.  The definition, your Honour, builds ultimately in this way.  Perhaps if it is convenient I might work my way back from section 21.  So section 21, which your Honours will find in the joint book of authorities, volume 1, on page 47, in Division 3 which deals with registrable activities - we need not concern ourselves in this regard with section 20 dealing with lobbying – section 21 picks up an activity on behalf of a foreign principal that is registrable, from the meaning of that expression.  Then when one goes to item 3, one sees:

Communications activity:

(a)in Australia; and

(b)      for the purpose of political or governmental –

interference.  The consequence of that would be, once I have taken your Honours to the definitions as we go back, sections 16 and 18 would then create the obligation of registration.  If I can ‑ ‑ ‑

GORDON J:   So do you challenge those sections?  I am sorry to interrupt, Mr Dunning.  I am just trying to make clear what the targets are here.  Do you challenge sections 16 and 18?

MR DUNNING:   In their operation in respect of section 21, item 1, item 3.

GORDON J:   Are you going to explain to us why and how?

MR DUNNING:   Yes, your Honour.  Then if I can take your Honours please to the definition of “communications activity” in section 13, page 36 of the record, one sees there in subsection (1):

A person undertakes communications activity if:

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

Then if I may take your Honours please back to section 12, which starts on page 33:

Activity for the purpose of political or governmental influence

(1)A person undertakes an activity for the purpose of political or governmental influence if the . . . substantial purpose, of the activity is to influence one or more of the following -

If I can give your Honours some illustrations, if we take, for example, (1)(b):

a process in relation to a federal government decision -

and then if I can ask your Honours please to notice subsection (4) on the next page, your Honours will see that that gives a very wide operation to a purpose of political or governmental influence.  And can I also ask, your Honours, please to notice subsection (2):

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

Which, in effect, amplifies all of them, but then from subsection (3) onwards, one sees these references to specific examples of those matters contained in subsection (1).

GORDON J:   Do you rely upon the definition of the influence in section 10?

MR DUNNING:    Yes, I do.  Perhaps I might deal with those provisions of the Act now.  The other provisions that we asked your Honours please to notice is on page 25, the definition of arrangement, and, Justice Gageler, my answer to your Honour’s earlier question was that is why an agreement or understanding would pick up the collaborative endeavours that were the matters that provoked this case.  Can I ask your Honours, please, on the next page, to notice disbursement activity, that is not the subject of challenge here but for your Honours to understand what item 4 of section 21 is concerned with.

EDELMAN J:   Just before you move away from arrangement, and the definition of arrangement is similar but not identical to that which one sees in relation to restrictive trade practices, for example, but in this context does arrangement carry with it any connotation that it should be for the benefit of the foreign principal?  I think there is a reference to that in the explanatory memorandum.

MR DUNNING:   In our submission, when one looks at the language actually employed, no, it does not because the language is ambulatory enough to simply pick up that association.  Typically, one might expect that it would be considered advantageous by the foreign principal as that expression is used in the Act, otherwise they are unlikely to enter into the arrangement with the domestic individual.

KEANE J:   That is the point of collaborative arrangements, it benefits both sides ‑ ‑ ‑

MR DUNNING:    That is right, yes.

KEANE J:   ‑ ‑ ‑ and the fact that it benefits the principal and benefits the agent does not mean that it is – the fact that it benefits the agent does not mean it is not benefiting the principal.

MR DUNNING:    That is correct, yes.

STEWARD J:   Just pausing there for one moment, can you have an arrangement here and be caught by this Act in circumstances where you are not acting as an intermediary on behalf of the foreign principal?

MR DUNNING:   In ordinary parlance, the answer to your Honour’s question would be yes, but not as it is framed in the Act, because the Act is so wide in its reach to pick up ‑ if we use the current case as an illustration – in fact the plaintiff here was seeking to promote in Australia the sort of meeting, and discussion, that had been a feature of like‑minded persons in the United States, so the advantage here was in fact for the Australian entity, not for the U.S. entity.

STEWARD J:   It is just that the Solicitor‑General says that it is only if a communication is made for an intermediary that the Act is engaged, and the question becomes, do you say that your client was the intermediary of the American Conservative Union when it held the conference?

MR DUNNING:   Well, what we submit is that our client is caught by the definition of the Act, and to ‑ ‑ ‑

STEWARD J:   I understand that, but engage with what the Solicitor‑General has put, are you an intermediary or are you not?

MR DUNNING:   Well, your Honour, our submission is yes, because we come within the definition of section 11, and therefore we are in the relevant statutory sense acting on behalf of. 

STEWARD J:   So, would this, for example, capture academics who are collaborating and who otherwise meet the definition of communications activity for political purposes?

MR DUNNING:   Yes, it would, provided they met the description of undertaking an activity with, for example, an arrangement with a foreign principal.  So, we are concerned here with people who wish to canvass views about classical liberalism, but the same would apply, for example, for somebody who wanted to run a co‑operative conference in Australia dealing with matters of the environment, dealing with matters of human rights. 

That is, there could be an organisation abroad that exists for advocating in the political process in relation to, let us say, the environment or human rights and in respect of the topics of interest of that organisation, domestic persons in Australia wish to create the same public discussion here and wish to avail themselves of the assistance of that entity.  And, yes, they would be so, an academic, for example, who had an interest in a topic of that sort would thereby by caught by the operations of the Act if that person was held to be engaged in the activity for which section 11 is concerned.  

STEWARD J:   Thank you. 

MR DUNNING:   Thank you, your Honour. 

KIEFEL CJ:   While you are interrupted, Mr Dunning, do we find the stated objects of the plaintiff anywhere in the material?  I know that the model rules under the Act, the Associations Act are there but it is only a blank form. 

MR DUNNING:   Yes, your Honour.  I will have that turned up. 

KIEFEL CJ:   I do not think it is stated in the special case unless I am ‑ ‑ ‑ ‑

MR DUNNING:   Would your Honour excuse me, I will get someone to have a look at that.  Chief Justice, can I come back to you?

KIEFEL CJ:   Yes, thank you.

MR DUNNING:   Thank you.  While that is occurring, might I just close out the reference to the explanatory memorandum and second reading speech before I move back to the Act, and can I ask your Honours please to take up special case book volume 2, and starting at page 896 your Honours will find the second reading speech, and can we just give your Honours please these references.  The speech is introduced by the then Prime Minister at about lines 5 to 10, and then if we go down to about line 25, can we ask your Honours to read from about line 25 through to the top two lines of next page ‑ ‑ ‑ 

KIEFEL CJ:   Sorry, what page was this again, Mr Dunning?

MR DUNNING:   Page 896, your Honour.  It is the number right at the bottom of the page.

GAGELER J:   The little one or the big one?

MR DUNNING:   The large one - sorry, right at the bottom of the page.

GAGELER J:   So many numbers.

MR DUNNING:   There are and, regrettably, there is one at the side that is very close chronologically.

KIEFEL CJ:   Yes, thank you.

MR DUNNING:   Thank you. 

GORDON J:   So these are, as I understand the second reading speech, the policy outcomes and principles that are identified by the government for the introduction of this package of bills, of which this is one?

MR DUNNING:   Yes.

GORDON J:   They are said to inform the enactment of all three?

MR DUNNING:   Yes.

GORDON J:   Of which this one is directed at sunlight, to put it in general terms?

MR DUNNING:   That is correct.

GORDON J:   But is it your position that these three principles that are identified are applicable to this Act as well, which is what seems to be the opening line under the heading “Our principles”?

MR DUNNING:   That is correct.  They are identified as being referable to the Act generally.  But when one looks at them, it becomes clear that some have a particular application to the sunlight principle, as your Honour has identified, and the sunlight principle seems to be another expression for transparency.

GORDON J:   So the first principle is:

activities of foreign states and their agents –

as I read it.  The second is:

interference is unacceptable from any country –

The third is they will not tolerate interference activities that are:

covert, coercive or corrupt.

MR DUNNING:   Yes.

GORDON J:   Then you have these four pillars, of which one is sunlight?

MR DUNNING:   That is correct.

GORDON J:   What are we to make of those in the context of this Act?

MR DUNNING:   In the context of this Act, that if the vice that is sought to be responded to is influences that are covert, coercive or corrupt, transparency is the – and discernible is the answer to that – when it comes to communication generally.  Different considerations might apply in relation to lobbying and financial disclosure, but in relation to communication itself the concern is that it not be covert because it does not have an application in relation to coercion or corruption.  That is dealt with in relation to those other two matters. 

May I give your Honours just one other reference to the second reading speech on page 898, at about line 18, under a heading “The Legislation” through to about line 30.

GORDON J:   Again I am being slow, Mr Dunning, and I apologise but could you explain to me what you make of those – sitting under the heading “The Legislation”.  It is dealing with what is described as the:

Counter Foreign Interference Strategy –

sunlight is at its centre.  We have the:

Foreign Influence Transparency Scheme –

which is said to be reflected in the FITS Act.  What do you make of that?  What do you use it for?

MR DUNNING:   What we use it for is if we take the last of the sentences I took your Honours to, just above line 30, that what was required of the Act was to give the:

public and decision‑makers proper visibility when foreign states or individuals may be seeking to influence –

the processes.  Now, when one gets to communication per se, that is achieved by transparency.  Registration itself does not add to that process.

GORDON J:   So is the endpoint that disclosure under 38 is sufficient and you do not need registration, so you are attacking registration?

MR DUNNING:   Correct, your Honour, yes.  That is exactly right.  I was coming to that point but perhaps I might deal with the matter, Justice Gordon, because you raised an allied point in relation to this topic before.  The objectionable feature is 21(1), item 3 – because it is that which makes communication activities registrable and, therefore, engages 16 and 18.  So, it is not said that 16 and 18 do not and should not have work to do in relation to lobbying and financial disclosure because that is not the basis of the challenge.  The challenge is to making communication activities registrable under the Act. 

When we come to test whether it offends the implied freedom, central to our response of a compelling alternative or that it is not reasonably appropriate and adapted more generally is that section 38 and the rule regime underneath it would of itself create adequate disclosure to produce the desired transparency.

EDELMAN J:   Do you say then that the registration provisions add nothing to the disclosure requirements in terms of prophylaxis deterrents preventing the possibility of any further covert or undesired communications?

MR DUNNING:   Yes, Justice Edelman, we do, though, in our submission – we will take your Honours back to what Chief Justice Mason had to say in Australian Capital Television in due course but the fact that one might be able to point to a theoretical advantage that it might confer, in our submission, is not sufficient.  If what one is actually seeking to do is ensure that in the marketplace of Australian ideas – if a foreign entity is impacting on those ideas – that the recipients of it know that to be the case and registration, in our submission, is not enhanced by that.

EDELMAN J:   But you accept that registration goes further than merely disclosure, for example, it creates a regime that will apply prior to any subsequent activity.

MR DUNNING:   Yes.  I do, Justice Edelman.  But, respectfully, I would submit that it does not make a difference in terms of the topic your Honour and I have been discussing because the same would apply to a disclosure obligation.  Let us say section 38 were to be re‑enacted in a way that made it a requirement of somebody in the position of the plaintiff who wished to enter into a collaborative arrangement, that would also apply before the entry into it. 

Sorry, it had the same practical effect because, at the moment of wishing to make the communication you would be obliged to make the disclosure.  So, in one sense, it would not apply to you while you were just thinking about it, but nor is that in itself something that addresses a concern that had been raised by the Parliament.

KIEFEL CJ:   So, your reference to section 38 as an alternative means – I take it that you do not challenge the power under section 38(2) to make rules in the terms of (a) to (d).

MR DUNNING:   No.

KIEFEL CJ:   And you do not challenge the rules themselves?

MR DUNNING:   That is correct.  In fact, one of the compelling alternatives we submit is either – is in fact to pick up the rules and make them one of the recognised exemptions.

KIEFEL CJ:   And under the amended special case and the question of law which is now narrowed to say that the Act is invalid to the extent it imposes registration obligations with respect to communication activities, we could understand that to say that the – the question is whether or not section 21 item 3 is invalid.

MR DUNNING:   That is correct, yes.  Can I just qualify that in this way, Chief Justice?  If we have understood the structure of the Act correctly, that would not automatically produce an operation for section 38 of the kind that we have identified as an equally compelling alternative, because that seems to be part of the ‑ ‑ ‑ 

KIEFEL CJ:   So, you have framed the question broader to pick that up?

MR DUNNING:   Exactly.

KIEFEL CJ:   But the question of invalidity that is on your argument is directed only to section 21 item 3. 

MR DUNNING:   That is correct.  So that we would accept – indeed we make the point that the corollary of that argument is were we to be successful and the question answered in the way we ask, no part of our argument would be inconsistent with the Parliament then creating a requirement to provide the disclosure at the time of making the communication.  And we posited two ways in which we say that could happen.  It is not for us to do – that is not for the Court ultimately to do that but it is for us to identify that it is readily capable of being done. 

KIEFEL CJ:   But insofar as your argument involves the notion of overreaching by the statute, it is only section 21 item 3 ‑ ‑ ‑

MR DUNNING:   That is right.

KIEFEL CJ:   ‑ ‑ ‑ and that is because it is not necessary, registration is not necessary?

MR DUNNING:   That is correct.  If it is convenient, your Honours, and I am sorry, I have managed to not do it quite as smoothly as I might have endeavoured to ‑ ‑ ‑ ‑

KIEFEL CJ:   I think you could be forgiven for having been taken in all kinds of directions.  Are you trying to get back to the purposes of the Act? 

MR DUNNING:   Yes.  And I have identified the stated object of the Act and the imperative which the Parliament had identified to it, but it is also a matter that is illustrated, in our submission, in relation – by the special case, the amended special case, when one sees the risks that the legislation was concerned to deal with.

Can I ask your Honours please to take up the amended special case starting at paragraph 14, and these are the matters that our learned friends rely upon, ultimately to submit that in respect of communications, as well as the other two matters, there is a broader requirement than just transparency.  But, in our submission, that is not made out when one looks at the actual concerns that are engaged.  So, for example, I can give your Honours just a couple – if we take 15, it said:

There is a growing global trend of foreign influence operations that attempt to influence democratic processes.

Now, to the extent that is a concern, one can readily understand the basis for it being closely regulated in relation to lobbying, or in relation to financing, but in fact that concern is addressed, in our submission, by knowing – in terms of communication generally, out in the community – knowing of the foreign connection.  We would say the same of what is recorded at 16:

Foreign actors in many countries have also sought to exert covert influence ‑

through the various means identified.  Now, in our submission, that concern is addressed by publication and if we may turn to what is put against it, it is not advanced, in our submission, by registration. 

KIEFEL CJ:   Does your argument in this regard come down to, or involve, drawing a distinction between a concern held and what the legislation actually and in a concrete way seeks to achieve?

MR DUNNING:   Yes.

GAGELER J:   Why do you say these concerns are not addressed by registration?

MR DUNNING:   Because, in our submission, Justice Gageler, a matter will cease to be covert, if I can use that example, in circumstances where the person at the time of making disclosure announces to anybody who cares to listen, their connection with the foreign agent, because if that is not sufficient, and we test it this way, then registration has a utility because it has some utility to somebody who never heard the matter disclosed in the first place.  In our respectful submission, that just does not logically follow.  In fact, respectfully, we would submit the opposite follows.

So, if disclosure is made at the time the statement is made, then concerns about covert or undisclosed activities are dealt with, and the recipient knows, and can make his or her own assessment of the utility and validity of the remark otherwise.  And to that person, whether registration has occurred is neither here nor there, because they have ‑ ‑ ‑

GAGELER J:   Mr Dunning, that must be so in relation to lobbying as well?

MR DUNNING:   But in the case of lobbyists, lobbyists are looking to do something more than adjust, influence the public debate, and influence the extent of political communications – and I will take your Honour to the definition of lobbying in a moment and why there are special concerns in that regard.  It is illustrated by the fact that references are given by our friends ‑ and in particular your Honours have before you the New South Wales Lobbying Act which contains an analogous provision to the FITS Act insofar as it deals with lobbying, but it does not see the need to go on to regulate discussion.

The same with the equivalent provision in the United States which has existed for generations, which has also seen fit to not operate in the way that this Act operates.  But can I, if I may, close out the illustration I was intending to give.  If we have a situation where somebody makes a disclosure at the time, it is not covert, and the person who has heard what has been said, knows its association, is not advanced by the register.

On the flipside, somebody who never heard it in the first place, but can go and have a look at the register, is not advanced either because all they know is that there is somebody on the register who said something they did not hear.  Now, in our submission, there is no getting around that, and that it does not have a meaningful, other than theoretical, advantage, registration.

KEANE J:   But is there not a question of timing here?  I mean, there is a publication to the public, or a section of the public, for example that your client is making this publication on behalf of CPAC.  Now, that may or may not mean anything to the people who receive that publication but it may mean something in a broader context of political debate where registration has occurred and where other participants in political debate are then alerted to the association, so that other communicators within the political milieu are in a position to comment on what that association means.

For example, by saying that the public should understand that CPAC is an organisation of a particular kind, of a particular view.  Just as one might have, for example, some other organisation in Australia that is registered as being associated with the Chinese Communist Party.

The significance of that may only be brought home to the recipients of information by other commentators who were aware of or are in a position to speak about the nature and provenance of the foreign entity.  Its registration is not just about the recipient of the information, it is about what can be made of the knowledge that other people have before the speech occurs, or what they can make of the knowledge they have obtained before the speech occurs, when the speech occurs.

MR DUNNING:   I understand the point your Honour puts to me, that is that there is a protective element as it were in the fact that somebody can go and inspect the register to see who might be active in ‑ ‑ ‑

KEANE J:   A transparency aspect.

MR DUNNING:   In our submission, Justice Keane, it does not add to that for this reason.  Knowing that alone would not in fact assist that person to make a meaningful contribution because – let it be assumed that on the situation that was posited to me that the attraction is somebody else can go and search the register and find, let us say, that LibertyWorks is on the register.

But in terms of, let us say, offering a contrary point of view, and saying, look you want to be weary about, for example, what LibertyWorks have to say because they are collaborating with this entity in the United States, and it has certain characteristics that we think you should know about – you still cannot do that without making it referrable to what has actually been said.  In our submission, it does not, in terms of achieving the transparency, take it further than the disclosure at the time of making the communication, because it is not possible to have that discussion without it being referrable to ‑ ‑ ‑

EDELMAN J:   But it might provide further context for what is being said that would not otherwise be available.

MR DUNNING:   In our respectful submission, the only context it would provide is that the government has made you register and so respectfully what we would submit the only thing that it might be said to do is it might allow somebody who wishes to interrogate the register to then go around and try and find ‑ ‑ ‑

EDELMAN J:   Further information but provide further context.

MR DUNNING:   But that further information would be to go and listen to what is being said.

EDELMAN J:   Or to talk about the activities that the foreign principal is engaged in or roles that the foreign principal has undertaken that were not otherwise readily apparent.  Does that not chime with the prophylactic type purpose that the Prime Minister was taking about when he introduced this package of legislation?  This is why sunlight is one of the driving principles – before you get to questions of enforcement or questions of deterrence, it is about as much visibility as possible.

MR DUNNING:   I accept that as a proposition, Justice Edelman, but what we would respectfully not accept is that the act of registration is effective to achieve that because, in our submission, one cannot make use of the registration without the actual communication – you have the communication, you have the sunlight, because you cannot meaningfully go out and contextualise ‑ if I can use that shorthand expression ‑ the activities of the person who is collaborating with the foreign entity without saying – LibertyWorks is saying these things but if they are saying these things, you need to know that they are associated with the ACU, and here are some things you should know about the ACU.  That does not have, in our submission, a standalone existence separate from the communication itself, and that is why, in our submission, it does not add to it.

KIEFEL CJ:   Mr Dunning, could we clarify just what it is that is registered and what is made available to the public? 

MR DUNNING:   Certainly.

KIEFEL CJ:   Under section 42, the Secretary keeps a register of information but the information which is made publicly available from that register is dealt with in section 43 and that is made available on a website.

MR DUNNING:   That is correct.

KIEFEL CJ:   So, we are not in the common situation – or the more usual situation – where the public can access a register kept to find the information.  It is made separately available.  The register is kept by the Secretary within the Department. 

MR DUNNING:   That is correct, and a significantly expurgated version of what is found on the register is ‑ contains, as your Honour points out, in section 43(1).

KIEFEL CJ:   So, section 43(1):

(a)      the name of the person and the foreign principal;

(b)a description of the kind of . . . activities the person undertakes . . . on behalf of the foreign principal;

(c)      any other information prescribed by the rules ‑ ‑ ‑

MR DUNNING:   Yes.

KIEFEL CJ:   How does the communication get to the public?

MR DUNNING:   When your Honour says, how does the communication ‑ ‑ ‑

KIEFEL CJ:   Under this system, how does the communication made by the person on behalf of the foreign principal get to the public?

MR DUNNING:   It does not via this route.  It gets there by being alive to public debate.  That was the point I was endeavouring to make.

KIEFEL CJ:   Does not the person have to advise of communications made on behalf of the principal?

MR DUNNING:   Yes, it does, but ‑ ‑ ‑

KIEFEL CJ:   Where does that appear?

MR DUNNING:   That occurs ‑ ‑ ‑

KIEFEL CJ:   In part of the respondent obligations.

MR DUNNING:   It does, yes.  It is ‑ ‑ ‑

GORDON J:   Section 16(2)(d), requires the application for registration to be:

accompanied by any information or documents required by the Secretary.

Is that not the route home?

MR DUNNING:   That is.  Then, Justice Gordon, there are some additional reporting requirements, for example, section 34.

GORDON J:   Let us just stop at the registration at the moment.  We are dealing with registration.

MR DUNNING:   Sorry, yes.

GORDON J:   So, we have this requirement under section 16(2)(d) and, as I understand it, there are no rules that identify what that information is going to be, or should be. 

MR DUNNING:   No.

GORDON J:   At special case book, 1265, you had a letter sent to your client which identified the sorts of information that was to be provided, including “invitations, letters”, “transcripts” and that information was refused to be provided, but if it was provided, it would not be available to the public.

MR DUNNING:   That is correct.

GORDON J:   Is there a fact sheet or something produced, do you know, by the Attorney‑General’s Department or some other mechanism that identifies what sort of information to be provided?

MR DUNNING:   Your Honour, I believe there is not.  In fact, as I understand – I think the material demonstrates – this was the first such notice given.

KIEFEL CJ:   The position your client took in the correspondence may have been to challenge whether or not there was power to require that information which is not a question that we are concerned with here.

MR DUNNING:   That is correct.

KIEFEL CJ:   If we could, perhaps, just keep to the scheme of the Act.  Section 38 requires a disclosure in accordance with the rules.  Where is the obligation for – does the obligation to disclose the communications arrives under the rules itself?  Then that becomes information which is provided to the Secretary which is then made publicly available.  I would just like to know how this actually works.

MR DUNNING:   Yes, certainly.  In terms of that sequence, as we understand it, one starts with the obligation to register under section 16, as Justice Gordon has directed our attention to, then once one comes within the registration regime, Part 3 of the Act is engaged.  It starts on page 58 of that book.

KIEFEL CJ:   These are responsibilities following registration.

MR DUNNING:   Yes.

KIEFEL CJ:   It talks of the – section 38(1) speaks of the “communications activity” itself being “registrable”, and that is connected with section 21.

MR DUNNING:   Yes.

KIEFEL CJ:   So, the communication is registered and then the information about that communication – say a conference, papers given a conference, whatever – is then provided to the public, under section 43, is that right?

MR DUNNING:   To the extent it is released, yes.  So, at the moment it would seem that under 43(1), the obligation is obviously the identity of the person, the “foreign principal”, and a description of the activities, but then when one goes to (1A) there is also a requirement to provide information regarding the giving of notices. 

GAGELER J:   One way or another the scheme of the Act seems to be that registration brings with it a requirement to provide such information as might be sought by the Secretary.  That then goes on a register, which is not a public register ‑ ‑ ‑

MR DUNNING:   That is correct.

GAGELER J:   ‑ ‑ ‑ which can be used for some purposes which I think are set out in the Act, and only a subset of that information – not particularly well defined in section 43 – gets on a public website.  Is that the way it goes?  And does it feature in your argument that there is that other subset of information that is not made public? 

MR DUNNING:   It does, to this extent.  The acquisition of that information is, in our submission, doing nothing for – to use that expression ‑ the sunshine purpose of the Act, because it is not illuminating public discussion and allowing people to know in respect of communication activities ‑ ‑ ‑ 

KIEFEL CJ:   That might suggest a broader purpose, or an additional purpose, being the collection of information.

MR DUNNING:   Yes.

KIEFEL CJ:   But that is no part of your argument, is it?

MR DUNNING:   No, it is not, and it might have a relevant consideration to other aspects of the Act in terms of lobbying. 

EDELMAN J:  Well, there may be no gap between the private and the public registers depending upon the scope that is given to section 43(1)(c). 

MR DUNNING:   That is right.  So, there would be the capacity if you – there would be the capacity were the government of the day minded to do so, to make available much or potentially all of the information that is obtained, but at present it is not the subject of any such rules.  

KIEFEL CJ:   But in the scheme that we are attempting to divine from this, do you say, is it the rules under section 38(2) which require disclosures of instances of communications activity on behalf of the foreign principal, and that is the means by which it gets to the public under section 43?

MR DUNNING:   That is so, your Honour.

KIEFEL CJ:   You are not suggesting ‑ or correct me if you are ‑ you are not suggesting that the communications activity is information which is collected and kept by the Secretary and not made publicly available.  Your argument is it is publicly available, that is the transparency.  Your argument is the means by which it becomes available is simpler, or it could simply be the communications activity disclosed to the public, and that is it.

MR DUNNING:   Exactly.

KIEFEL CJ:   There should not be a requirement of registration.

MR DUNNING:   No, because it simply does not add to that stated objective.

KIEFEL CJ:   On the other hand, communications activity is only one aspect of what follows ‑ what is involved in registration, there are other activities, as you have identified, with political lobbying, which are bound up with registration, so you are carving out communications activity as a separate activity which needs to be dealt with separately.

MR DUNNING:   Correct, your Honour, yes.

EDELMAN J:   Why could not a system very similar to the registration provisions be enacted as part of the rules under section 38, as governed by section 38(2)?

MR DUNNING:   Sorry, your Honour, might I ask you to repeat the question?

EDELMAN J:   Why could not a system similar to the one in Part 4, and particularly Division 2, which creates the register of the scheme information, and so on, be created under the rule‑making power in section 38?  Could not something similar be done under section 38 anyway?

MR DUNNING:   My primary answer to your Honour’s question is that that is not really what the language of section 38 is directed at, particularly if one sees, after (c):

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

And the “disclosure” there being spoken of is the disclosure of the person making the communication, and that really, a registration requirement is a different thing to a disclosure requirement.  But even if your Honours did not accept that as an answer, the ultimate vice, if your Honours accept the submission I make, is that registration does not add to attainment of the purpose, but it does have a negative impact on the political discourse.

Your Honours, I think we have covered most of it, but can I simply give your Honours some final references to the Act itself.  I think we were at “disbursement activity” on page 26.  Can I then just ask your Honours, please, to notice these provisions.  On page 29, can I ask your Honours please to notice the definition of “foreign political organisation”, which again, as I accepted to Justice Gageler, is apparent from the written material; we accept that the ACU is, and that means that an organisation like the ACU is a foreign principal within the definition (c) of “foreign principal”.

Your Honours then see the definition of “general political lobbying”.  Can I also ask you please to notice the definition of “influence”, and then the definition of “lobby”?  And one sees that the definition of “lobby” is a very different thing to communication generally because “lobby” is not just communicate so the world knows your ideas.  Lobby is to:

(a)communicate, in any way, with a person or a group of persons for the purpose of influencing any process, decision or outcome; and

(b)      represent the interests of any person, in any process.

Your Honours, “on behalf of” is dealt with in section 11, and then “parliamentary lobbying” at the top of the next page – lobbying has two aspects in that regard.

Can I ask your Honours please to notice section 11, “Undertaking activity on behalf of a foreign principal”?  I will not go back through that; I took your Honours to it in answer to a question from Justice Steward and we have been through section 12.

KIEFEL CJ:   Mr Dunning, could you lobby through the medium of a conference?

MR DUNNING:   Not unless you came within the definition of representing the interest of any person, and it has got to be for the purpose of influencing any process, decision or outcome.  So, ultimately, Chief Justice, the answer is yes.  If we took it on a macro level, one could say ‑ ‑ ‑

KIEFEL CJ:   If there was something going on and government was about to make a decision, or government instrumentality, and you had a conference, you could communicate that which you could seek to influence by the communications in the conference, and by the networking, that it takes place at conferences?

MR DUNNING:   That is correct.  And the illustration I was going to give, you could theoretically say, I am going to have a conference which will be by invitation only, and happily for the person who you are doing it on behalf of, that invitation is extended only to the people who might make the decision that you care about.

But the Act is astute to deal with that, because it has a definition, and it has an operation to deal with lobbying as opposed to communication, and really that lies at the heart of the vice of it, in our submission.  Because it is equipped to deal with those concerns, there is no basis for trenching by way of registration on freedom of discussion.

Your Honours, I think I have already taken your Honours to section 13.  I will not dwell on section 14, I will just bring it to your Honours’ notice.  Can we then go please to Part 2, Division 2 of the Act, which starts on page 45 – and again, I think I can pass through this relatively quickly.

The gatekeeper to 16 and 18 is to come within 20 or 21.  And once somebody is in that situation, then under section 16(1) an application has to be made to the Secretary within 14 days.  And, ultimately, then there is a liability to continue to be on the register, and then there is a scheme in 19 to deal with removal from the register.

If we then go again briefly to Part 2, Division 3, because we have largely dealt with it.  But can I just ask your Honours please to notice these aspects of it.  Section 20 deals with “parliamentary lobbying”, it picks that out as a matter of particular concern.  And then it deals with activities “for the purpose of political or governmental influence”, and it divides them into logical areas.

So, it divides them first of all into lobbying which we see is then subdivided in items 1 or 2 and it deals with disbursement which, in effect, harmonises the Act, or perhaps even more accurately, ensures there is not a lacuna in relation to domestic political disclosure laws.  But then it also deals with this communications activity to which we have been referring and in that the Act is exceptional because none of the obvious analogues adopts such an approach.

Can I then take your Honours please to Part 2 Division 4 and the exemptions and there are many exemptions and it is not to the point to take your Honours through them at any length other than to indicate that there are a lot of matters that are seen fit to be exempt, including things like religion, yet it is not seen fit to exempt matters that are just matters of public discussion in a way that, in our submission, would be possible.  Your Honours, then ‑ ‑ ‑

KIEFEL CJ:   What is the exemption that you would frame?  I think you are arguing for further exemptions as one of the means by which as an alternative means.  How would you frame – how would you define your exemption?

MR DUNNING:   The way we would frame that exemption is that if we go to Division 4 and let us say it was – we had a 29G ‑ that would simply pick up what is presently in the rules, and can I tell your Honours please where the fixed rules are found?  That is volume 2 of the joint book of authorities and may I ask your Honours please to go to page 189.

EDELMAN J:   Which tab is this?

MR DUNNING:   Volume 2.

KEANE J:   Tab 4.

MR DUNNING:   Tab 4, thank you, Justice Keane.  So, they are the current rules relating to section 38 of the Act and so your Honours will see on page 189, 5(1) “For the purposes of paragraph 38”, and then (a):

the instances of communications activity in column 1 –

through to the instances in column 2, and it there identifies a wide range of ways in which communication might, in fact, occur and tailors the disclosure requirement to that mode of communication, whether that be how you deal with a radio announcement or the like.

Then, may I ask your Honours please to then notice section 5(2), it identifies those things that need to be identified to the recipient of the information.  Section 6 then deals with radio advertisements.  Section 7 deals with the “Form, manner and content of disclosure”, 8 deals with “Language”, and 9 is an obligation to ensure that having provided the disclosure you then do not, in effect, avoid it coming to the recipient’s attention.

So, sorry, Chief Justice, that is a long way of getting back to your Honour’s question which is to say how would you do it.  You could pick up that whole scheme there and you could make it, for example, 29F and instead of what is currently 5(1) reading “For the purposes of paragraphs 38” and listing those subsections, you could simply insert something like:  a person is exempt in relation to instances of communication activities if that person complies with this section.

GORDON J:   Why would not you just pick up something like 29F and adjust it to accord to ‑ which is the exemption already provided, and so long as you had in effect crafted (a), (b), and (c) it is:

at the time the activity is undertaken, both of the following matters are either apparent . . . or disclosed . . . 

(i)the fact that the person is undertaking the activity on behalf of a foreign principal;

(ii)      the identity of the foreign principal.

MR DUNNING:   We would also agree with that ‑ ‑ ‑ 

GORDON J:   That is the scheme, is it not, all the exemptions?

MR DUNNING:   Yes, that would also work.  It may not have quite the breadth of disclosure obligations that the rules currently contemplate, but, either way, what it serves to illustrate, in our submission, is that there are readily available alternate ways to procure the disclosure that lies at the heart of what the Act, at least – in respect of communications ‑ ‑ ‑ 

KIEFEL CJ:   Is it really an alternative?  Really it is just stating as an exemption something which is disclosed in either process provided by the Act.

MR DUNNING:   It is an alternative to a registration requirement that still achieves the transparency, would be an answer to your Honour’s question.  Your Honours, if I can then return to the provisions of the Act at page 56.  Section 31 deals with the end of registration.  Can I then take your Honours please to Part 3 Division 2 which commences on page 59 – On 58, Division 1 is headed “Responsibilities under the scheme”.

Now, 34 deals with, in effect, an obligation to regularise information that has become inaccurate and it widened its application.  So, if we go, for example, to subsection (4), by way of illustration, if:

(a)the person starts to undertake another kind of registrable activity on behalf of the foreign principal ‑

which would seem to be another way of collecting information in relation to that.  Then, your Honours, 35 is concerned with “disbursement activity”, which we are not concerned with here.  36 further regulates reporting obligations during a voting period, as does 37.

And then if we go to Division 3 at Part 3 starting on page 64, your Honours will see the “Other responsibilities” that fall upon somebody who is required to be registered.  And one sees 38, which we have already dealt with and its rules.  39 provides for an “Annual renewal of registration”.  Then section 40 on page 66 provides an extensive record keeping obligation on an entity, whether it be LibertyWorks or anybody else who simply wants to run collaborative discussions about matters of public information.  That then takes us to the register itself, and we have already been to section 42 in Division 2, and to section 43.

Can I then take your Honours, please, to the enforcement, which is in Part 5, starting at section 57, on page 81 of the book.  It creates a series of offences.  Now, it is said against us that those offences are not concerned with the making of communications, they are concerned with the failure to register and the failure to make disclosures.  But, in our submission, the impact of them is likely to have a chilling effect on people who just want to be part of the general discourse of matters of political interest and concern.

KIEFEL CJ:   Why would registration concern such a person?

MR DUNNING:   Because registration brings with it record‑keeping obligations, obligation to answer questions from the government in relation to activities that are no more than expressing your point of view, and its harmony with views held by other people who happen to be abroad but are like‑minded.

KEANE J:   But you accept that it is acceptable, in terms of the implied freedom, to require that people do ‑ people who wish to participate do have to disclose who they are, and that they are acting through intermediaries, they do have to disclose that.

MR DUNNING:   Yes.

KEANE J:   How is the registration relevantly – the registration requirement, how is it relevantly a greater burden on the implied freedom than the requirement to say who you are when you speak?

MR DUNNING:   Because that requirement can be discharged easily and instantly and has no ongoing obligations.

KEANE J:   But what is the burden on the implied freedom?  What is the burden on free speech, if you like, that is greater because of the registration requirement?

MR DUNNING:   Because, in our respectful submission, in terms of an ordinary member of the community’s response to whether that person is willing to speak and participate in the political discussion, it is one thing to say to that person, you have got to tell people you are associated with this foreign entity; it is quite another thing to say, you have to register with the government, you have got to say you are registered with the government, you have got to tell them when it is going to stop, you have got to keep records for the government, you have got to answer questions.  In our respectful submission, that would have a chilling impact for people wanting to participate in the debate.

There might be people who say, I have got a point of view, I would really like to share it, and I share the point of view of the ACU, or I share the point of view of Greenpeace, and if all I have got to do is tell people I am associated with them, that is fine, but I am not going to register with the government.  If that is the price of it, I will not speak.

KIEFEL CJ:   A deterrent effect.

MR DUNNING:   Correct.

GAGELER J:   What is the point of record‑keeping?  How does section 40 contribute to transparency?

MR DUNNING:   Well, in our respectful submission, it does not, because keeping a record of whether you had a meeting or how much it costs, what did the room or hall cost to hire, how much did the hors d’oeuvres cost, none of that has a sunlight component – sunshine component – none of that leaves the recipient better informed as to the potential foreign influence because you are associated or collaborating with somebody. 

EDELMAN J:  What if that was information that subsequently the government decides ought to be published under section 43(1)(c)?  If the record is not kept, it cannot be published. 

MR DUNNING:   That is true, but let it be assumed it is kept and is published, the person who down the track finds out that it did costs $2000 to hire the hall on that occasion is not, in our submission, any better equipped to avoid covert influence than that person was the day they stood in the hall, heard the speech, heard the disclosure.  And, in our submission, that is why I gave the answer I gave a moment to Justice Gageler, it just does not add to transparency. 

STEWARD J: Well, just pause there for one moment. Is there a distinction to be made between transparency to the public and perhaps transparency to the Executive Government and to those who under section 53 may receive the information within governmental circles?

MR DUNNING:   No is my short answer to your Honour’s question, there is not, because we are concerned here with a legislative constraint on the right of members of the community to engage in the discussion of political matters and that is not impacted, in our respectful submission, one way or another by the distinction, and the second is really consistent with some of the answers I have just given.

Even if it were, it does not achieve that purpose, so knowing how much the hall cost does not, in our submission, assist the government to know whether the ACU or anyone else has been involved in covert activities, or that some entity of concern to it has been involved in corrupt activities ‑ and, I might say, for which there are other laws to deal with it. 

So, if, in fact, the concern is a corrupting influence, well, there are the lobbying provisions we have already been to, and one could see a content for record keeping in that connection.

STEWARD J:   What do you say about the materials referencing the need for public education and thus the benefit of a register?

MR DUNNING:   Really consistent with the answer I – a couple of the answers I have given earlier.  One cannot do that disconnected from the communication that was actually made.  And once one gets to that point then the registration does not add to it because simply to say I want to keep a register so I can go out and say people like the ACU, you should be wary of, does not have a rationality to it in terms of, for example, guarding against covert activity, or corruption, coercion or the like.  It is only if one says, the ACU have said – LibertyWorks have said something – but you should be wary of what they have said because they are associated with the ACU, and the ACU are concerned in these things. 

STEWARD J:   But if public education is relevant – and I am just assuming that for the moment ‑ how would someone who did not attend the CPAC conference know who your client acted on behalf of, as defined, unless ‑ if they did not attend?

MR DUNNING:   They may not know, they may find out via other means, but, in our submission, nor would it matter, because they are not actually concerned – if they are not concerned to be there or to find out what was said, then their concern is not one to which the objectives of the Act would, in fact, respond; in a sense, it would really just be prejudicial, that is to say, I do not care what somebody says, as long as they are associated with the ACU, you should not accept it.

Now, that, in our submission, just does not have a relevance to the matters that are currently under discussion.  At most it could be said, if you maintain a register, I could then go and hunt out the ACU and find out what they are saying, but if you are otherwise not concerned to know what they are saying, it is very difficult to see how it adds to, for example, public education.

KIEFEL CJ:   That might be a convenient time.

MR DUNNING:   Thank you, Chief Justice.

AT 11.19 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.33 AM:

KIEFEL CJ:   Yes, Mr Dunning.

MR DUNNING:   Thank you, your Honour.  Chief Justice, may I answer that question your Honour had for me earlier as to the ‑ ‑ ‑

KIEFEL CJ:   Yes, thank you.

MR DUNNING:   Your Honour is right, that the model rules are all listed in the special case book and they are silent on objects but the parties agreed at paragraph 6 of the amended special case.

KIEFEL CJ:   That is not actually a stated object though, it is just what the parties have agreed.  Is there no stated object for the plaintiff?

MR DUNNING:   Apparently, the document is lost.  I was trying to find accurate but less confronting answers to your Honour’s question.

KIEFEL CJ:   Presumably, it has been registered in some way with the appropriate authorities or it is not required?

MR DUNNING:   It seems they do not require it because if you adopt the ‑ ‑ ‑

KIEFEL CJ:   They do not want it, actually, probably.

MR DUNNING:   Possibly right.  It was, I am told, something that some effort went into to try to locate and it is a matter of regret it is not before your Honours. 

KIEFEL CJ:   There is no record within the plaintiff itself about what its object is?

MR DUNNING:   No, your Honour.

KIEFEL CJ:   Very sad.

MR DUNNING:   Yes.  But the parties are agreed that that is what the aim of the entity is.  I take the force of the limitation your Honour has identified to me, though that is exemplified to an extent, at least, by what is set out in paragraph 11 as to what it has done since incorporation.

KIEFEL CJ:   Yes, thank you.

MR DUNNING:   Thank you, your Honours.  Your Honours, whilst I have the special case open I might complete taking your Honours to those references I was taking your Honours to a little earlier and at the same time respond to the issue the Chief Justice raised with me at the outset.  It is said in paragraph 10 of our learned friend the Solicitor for the Commonwealth’s oral outline that:

The purpose of the Act is to minimise the risk of foreign principals exerting improper influence upon the integrity of Australia’s political or election processes –

and later in that paragraph:

but transparency in and of itself is not the purpose of the Act.

I started taking your Honours, I think, to 14 and 15 and I will continue that.  What one actually sees, in our submission, is that there is a relevant dichotomy between, on the one hand, those activities that are considered covert or corrupt and public disclosure does not obviously deal with that any more than if we take the election funding context in Australia, it is not an answer to say to electoral funding laws in Australia, well, there are other laws to deal with corruption because, in fact, they are addressed to do two different things, corruption is corruption as is coercion.  Influence is a different matter.  What one sees is the distinction between influence being identified on the one hand and on the other hand the stopping of corrupt behaviour.  I have taken your Honours to 14 and 15, in 16:

Foreign actors in many countries have also sought to exert covert influence through –

In our respectful submission, there is respectfully an air of the unreality of it in terms of how people in their everyday lives process the political discourse in Australia to say that what they would do is run to the register to have a look at it rather than use their own human experience to decide how much or how little of that they were going to take on board.  Central to that human experience is what one thinks of the source of the information which is that which is, in our submission, clear from the purpose and which could be achieved in a way that did not engage the registration.

KEANE J:   Why would it not be something that one would regard as an ordinary and desirable aspect of political communication in the country that commentators who happen to know something of the problems of a particular foreign principal would be in a position to say we understand that the Chinese Communist Party is disseminating information through an intermediary named such and such.  People who are receiving communications from this source should be aware of the problems and should be aware of the nature of the foreign source of the information.  Is not registration apt to achieve that result and is that not a wholesome result in terms of the integrity of the political system?

MR DUNNING:   Can I answer those two questions shortly, and then elaborate on them?  No, is the answer to your Honour’s first question, with great respect, and yes is the answer to your Honour’s second question.  No, the registration does not achieve what your Honour has just posited, in our respectful opinion, and yes, achieving that is useful, because our submission is you cannot decouple that from the information itself, so if the commentator comes on and says, there is this crowd called ACU, you should be wary of them, well, it does not mean anything to the recipient of it.  If the person, if the commentator comes along and says there was a crowd called ACU, they said this, all right, all of a sudden it has some content, there is something we can actually engage with as a listener, and here is why you should, in which case, the disclosure will be the thing that actually identifies it to the commentator, not the register. 

KEANE J:   To be more precise, the content would be saying there is this crowd called LibertyWorks, they are actually speaking for or on behalf of another mob called ACU.  Now, they are fine, you might not know about them, this is what you should know, and this is what you should know about LibertyWorks insofar as LibertyWorks speak for them.  Is that not the purpose achieved by registration, that the possibility, without having to worry about enforcement by the Executive Government, but just that the system itself can protect itself in the way in which pluralist democracies do?

MR DUNNING:   Justice Keane, nothing in the very challenges made by the very sort of challenger here is intended to gainsay the advantage of a pluralist democracy.  But the point your Honour makes – and, in my submission, your Honour might ultimately not accept it is to say that the commentator is not able to say anything without the content of what was said because if we take that last example, the recipient does not know whether LibertyWorks believes in abortion, believes in classical liberalism, believes in increasing social security, believes that we need to do more for climate change and so the recipient who hears that – be wary of that LibertyWorks – there is nothing to anchor that risk to because you do not know anything about what has been said.

If you do know what has been said, well, you have heard the disclosure.  So if you say LibertyWorks believes in this classical liberalism, you want to be wary of that because in fact they are in cahoots with the ACU and let me tell you about them.  Now, then you have anchored it to something.  You have anchored to something they have actually said.

EDELMAN J:   Their name starts to give a little bit away. 

MR DUNNING:   Justice Edelman, “liberty” comes in formats many and varied – this one included, I readily accept, your Honour.  Sorry, I did not mean to be flippant, but I accept the force of what your Honour says.  But, in less erudite gatherings “liberty” might take on – or LibertyWorks – might take on a different complexion.  But in a sense all of the matters that your Honours have raised in this regard tend to ultimately point to the fact that it is the content of what was said and being able to identify that content against a particular person that actually matters to the discourse because if all you are really saying is look at that crowd over there – do not believe them – leave aside the fact that it would invite a fair bit of prejudice in its own way – it does not actually mean anything to assist somebody in weeding out of political discourse in Australia foreign influence.

Unless you tell them what LibertyWorks is saying, they have no idea what you actually mean.  Unless you say that LibertyWorks talked about these things, so when you hear it talking about that you need to be wary of it because here are the people that it is associated with, you just say be wary of LibertyWorks, you are not giving the recipient anything to anchor that concern to.

Your Honours, unless there is anything else we could assist you with, these are our submissions.

KIEFEL CJ:   Thank you, Mr Dunning.

MR DUNNING:   Thank you, your Honours.

KIEFEL CJ:   The Court reserves its decision in this matter and adjourns to 10.00 am on Thursday, 4 March in Canberra.

AT 4.28 PM THE MATTER WAS ADJOURNED