LibertyWorks Inc v The Commonwealth

LibertyWorks Inc (the plaintiff) brought proceedings against the Commonwealth of Australia (the defendant) in the High Court of Australia concerning the validity of certain provisions of the *Foreign Influence Transparency Scheme Act 2018* (Cth) (the Act). The plaintiff contended that the Act, by imposing registration obligations on individuals undertaking communications activity on behalf of a foreign principal for the purpose of political or governmental influence, impermissibly burdened the implied freedom of political communication protected by the Australian Constitution. The parties agreed that the plaintiff had undertaken such registrable activities on behalf of a foreign political organisation by holding annual Conservative Political Action Conference events.

The central legal issue before the High Court was whether the Act, to the extent it imposes registration obligations on communications activity undertaken on behalf of a foreign principal, effectively burdens the implied freedom of political communication. This required the Court to consider whether such provisions were for a legitimate purpose and, if so, whether they were suitable, necessary, and adequate in their balance, applying the structured proportionality test. The Court was also asked to determine the consequential relief and costs.

The High Court, by majority, concluded that the Act did not infringe the implied freedom of political communication. The Court reasoned that the Act served a legitimate purpose of promoting transparency regarding foreign influence in Australia's political and governmental processes, a matter of significant national security concern, particularly in light of global trends of foreign interference. The Court found that the registration obligations were a suitable and necessary means to achieve this purpose and were adequate in their balance, not imposing an undue burden on political communication.

Consequently, the High Court answered the questions of law stated in the Amended Special Case. The Court held that the *Foreign Influence Transparency Scheme Act 2018* (Cth) is not 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. No relief was ordered, and the plaintiff was ordered to pay the defendant's costs.