Zhang v The Commissioner of Police & Ors

[2021] HCATrans 057

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S129 of 2020

B e t w e e n -
JOHN SHI SHENG ZHANG
Plaintiff
and
THE COMMISSIONER OF POLICE
First Defendant
JANE MOTTLEY
Second Defendant
JOSEPH KARAM
Third Defendant
MICHAEL ANTRUM
Fourth Defendant

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

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 7 APRIL 2021, AT 10.01 AM

____________________

MR B.W. WALKER, SC: May it please the Court, I appear with my learned friend, MS V.R. BRIGDEN, for the plaintiff. (instructed by Nyman Gibson Miralis)

MR S.P. DONAGHUE, QC, Solicitor‑General of the Commonwealth of Australia: May it please the Court, I appear with my learned friends, MR P.D. HERZFELD, SC and MS S. ZELEZNIKOW, for the first defendant and for the Commonwealth Attorney‑General, intervening. (instructed by Australia 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, MS K.N. PHAM, for the Attorney‑General for New South Wales who intervenes in the proceedings. (instructed by Crown Solicitor’s Office (NSW))

MR M.J. WAIT, SC, Solicitor‑General for the State of South Australia: If the Court pleases, I appear with MS K.M. SCOTT for the Attorney‑General for South Australia. (instructed by Crown Solicitor’s Office (SA))

KIEFEL CJ: Yes, Mr Walker.

MR WALKER: If it please the Court. Your Honours, the two main portions of our argument commence with the first that seeks to challenge the propriety of the warrant on the basis that the provisions creating the offence in question, or offences in question, are valid. That has to do with a familiar requirement that the stipulations in the warrant itself are such as with respect to description of the nature of the offence and the particular propositions that the punitive offence involve for the person of interest in relation to it stated sufficiently in the warrant so as to provide an understanding to guide those executing the warrant and those against whom or in whose premises the warrant is being executed of the boundaries of the authorised search.

The second main portion of our argument, as your Honours know, switches course radically to suggest that the provisions themselves creating the offences are invalid as inconsistent with the implied freedom of political communication involved in, and required by, our Constitution. That is, in turn, a challenge to the law which, if reached in light of the disposition of the warrant argument, involves consideration of the legitimacy of purpose of the legislation as well as the proportionality of its imposition of a burden – if it imposes a burden on that freedom – against the now familiar jurisprudence in this Court concerning, ultimately, a kind of balancing.

At the outset – that is, significant to both portions of our argument then – are the provisions of the offence‑creating statute. Can I take your Honours, first, then to the provisions of Chapter 5 of the Criminal Code, in Part 5.2, which as your Honours will recall, is entitled “Espionage and related offences” – Chapter 5 being concerned, itself, with the security of the Commonwealth and the particular division in which the provisions in questions are found being Division 92, called “Foreign interference”.

May I say something about that title, which you will see reproduced as the title to Subdivision B of Division 92. The word “interference” is found at – not only then in the division’s title but the subdivision’s title, and also in the titles of the two principal kinds of offences which are 92.2 and 92.3, intentional and reckless, respectively foreign interference.

But the word “interference”, itself a loaded term, an influence which is ordinarily regarded as either unwelcome or maligned or both, will not be found in critical provisions. Other words indicative of the basis upon which we will eventually argue the second part of our case are found, namely words which reach more broadly and perhaps include more than, obviously, maligned or unwelcome influence.

Can I come then to 92.3. Your Honours know that it contains within it, in familiar manner, a number of embedded definitions themselves also including some further embedded definitions. In section 92.3(1), the elements of the offence start with the engaging in of conduct and, because of that and in the absence of any other express provision in terms of the general principles set out in the first part of the Code, in particular section 5.6(1), the fault element for the engaging in the conduct in question will be “intention”.

We then come to paragraph (b) in subsection (1), which provides as elements of the offence that:

any of the following circumstances exists –

which, of course, calls up in terms of general principles subsection 5.6(2), where recklessness will be the fault element in the absence of express stipulations to the contrary. The first is that:

the conduct –

that is, the conduct of the person:

is engaged in on behalf of –

I interpolate, in these statutory provisions that phrase familiar to lawyers is not further defined or glossed:

or in collaboration with –

the same comment is true with that ordinary English:

a foreign principal –

and that is elaborately defined by provisions to which I will come in a moment:

or a person acting on behalf of a foreign principal ‑

So there is an indirectness engaged at the first of those possible circumstances. Subparagraph (ii), that is the next stipulation of the so‑called “following circumstances”, concerns the conduct of the person and posits of it that it is:

directed, funded or supervised by a foreign principal or a person acting on behalf of a foreign principal ‑

The next element in paragraph (c) is expressly an element requiring recklessness as opposed to intention:

the person is reckless as to –

the matters that follow ‑ and it is to be borne, we submit, steadily in mind throughout this argument that recklessness in relation to a result, which is what we submit subparagraphs (i) to (iv) in paragraph (c) of subsection (1) are ‑ is, by reason of subsection 5.4(2) of the general provisions in the Code, the case if a person:

is aware of a substantial risk that the result will occur –

and:

having regard to the circumstances known to him or her, it is unjustifiable to take the risk.

So bearing that in mind as what “recklessness” will require, one then has the list of possible results:

influence a political or governmental process of the Commonwealth or a State or Territory –

relevantly not defined in a way that informs our argument. The second one is:

influence the exercise (whether or not in Australia) of an Australian democratic or political right or duty –

It may well be that your Honours would consider the notion of democratic or political rights or duties as necessarily overlapping categories, but that matter will not much inform our argument. One may say of those first two that they are, in terms, indifferent to what might be called the merits of the influence – that is, if I may adopt the language, be it benign or malign or entirely neutral.

However, one would think that in most and probably virtually all cases, the following subparagraphs, (iii) and (iv), are in a somewhat different position. There the recklessness is with respect to the possible result as to whether the conduct will, in (iii):

support intelligence activities of a foreign principal ‑

Now, it is to be accepted one would have supposed, not least because Australia conducts its own intelligence activities, that intelligence activities are not by definition malign, indeed they may even be, from a sovereign’s point of view, benign. In any event, they might fall within a neutral category. But it is the attribution of those activities to a foreign principal that starts to introduce what might be regarded as elements of mischief, to adopt a term from traditional statutory interpretation, and one begins to see how the words of the provision themselves perhaps inform an understanding of the word “interference” in the headings.

And subparagraph (4), of course, is ‑ if I may put it this way ‑ overtly or blatantly unmeritorious, nefarious, to be disapproved, namely, prejudicing Australia’s national security. Those are defined terms, prejudice is negatively defined, as your Honours will see in section 90.1, in such a way as to prevent it from being the case if there is only embarrassment, otherwise the word is obviously of wide import and suggests the threatening or causing of detriment.

National security is defined in this statute, not exactly the same way it is defined in other statutes, but it may be not exactly as it would be understood colloquially. One sees it defined – if I may take you to it directly at 90.4 in the book – your Honours will see that at page 136. 90.4 is “Definition of national security”, is a definition that applies whether it is “The national security of Australia or a foreign country” and has some familiar elements or aspects that I do not need to dwell on such as paragraph 90.4(1)(a):

(a) the defence of the county;
(b) the protection of the country . . . or the people . . .
(c)the protection of the integrity of the country’s territory and borders from serious threats ‑

(d) introduces an element of sovereign obligation under public international law, if not confined to that strict class, that is:

(d) the carrying out of the country’s responsibilities –

as it is called:

to any other country ‑

In relation to the protection of the country’s territory and borders from serious threats, that may involve some puzzle, but it does not matter for our present case, or an activity covered by subsection (2), so international obligations or responsibilities in relation to the subsection (2) matters, to which one can give a glance at this point to appreciate that there are currently, as your Honours know, for example, under the UN Charter, Security Council resolutions that cover a deal of those.

Then, finally, in subsection (1), there is paragraph (e) which refers to the:

political, military or economic relations with another country or other countries.

Whether they differ from what it sometimes called “foreign relations” does not matter for present purposes.

In subsection (2), as part of an embedded definition for subsection (1), the covered activities relating to a country:

whether or not directed from, or committed within, the country –

So, what might be called a scattered or dispersed or global phenomenon. They are familiar matters, some of which manifestly fall within an entirely proper, indeed, one might think, core responsibility of a national legislature:

(a)      espionage;
(b)      sabotage;
(c)      terrorism;
(d)      political violence ‑

Interference with defence activities. Then, (f), on its own, in a way that may involve the use of the word, or does involve the use of the word, the expression:

foreign interference.

In relation to these offences, one sees that, for the purposes of subsection (1) – that is, in particular, paragraph (b) and paragraph (d) of subsection (1) – the activities in question include foreign interference from wheresoever directed.

So, going back then to the first of the offences in question in this case, 92.3, one is left then with paragraph (d) as the last part setting out the elements of the offence. Your Honours will note the breadth of the coverage of paragraph (d), it is:

any part of the conduct –

So, any part of a person’s conduct, as to which paragraphs (b) and (c) have spoken concerning circumstances and results. Subparagraph (i) “is covert”, that is the first limb of subparagraph (1), and the one that matters for our present case, “or involves deception”. It may well be, again, that those are overlapping concepts although, plainly, not completely congruent.

GAGELER J: Mr Walker, is the fourth element the same as for (a)?

MR WALKER: Yes, these are circumstances and, for exactly the same reason as with (b) – I am sorry, that is 5.62 – these are circumstances.

GAGELER J: Why are they not just a quality of the conduct?

MR WALKER: I think because there is a dichotomy required as to result or circumstance. Perhaps I need to pursue that. If I can go back to 5.6, page 126 of the book.

So 5.1 recognises in its subsection (2) the possibility of express provision, which we can put to one side at the moment. At 5.2 it fleshes out or teases out critical elements of what it is to have intention. I can pass over 5.3 at the moment.

GLEESON J: Surely the person who engages in the conduct has intention – has to act intentionally as to whether the conduct is covert or involves deception.

MR WALKER: Yes. Sorry, they have to engage in the conduct intentionally.

GLEESON J: They are the person who has control over whether the conduct is covert or involves deception.

MR WALKER: Not necessarily, though in a paradigm case, yes. The conduct in question may be engaged in in collaboration with somebody else and wherever that is true there are different states of knowledge or belief possible but, generally speaking, Justice Gleeson, yes.

Returning to Justice Gageler’s question, the notion of a physical element involves I think three concepts that I think your Honour was asking me about. There is conduct, there is result of conduct or a circumstance in which the conduct or its result occurs, and “conduct” simply means act or omission to perform an act or a state of affairs. Now, engaging in conduct which is - the expression used here is doing an act or omitting to perform an act.

We know under 4.2(1) that the notion of conduct being voluntary is critical in order for there to be doing an act or omitting to perform an act being a physical element, and I do not need to go through the teasing out of what that involves; they are familiar.

When one comes to fault element, in our submission, the critical provisions, bearing in mind the capacity for express stipulation, are to be found in 5.6 which covers what happens where there is not specified a fault element. In our submission, 5.6(2) more fairly describes what is conveyed in paragraph (d) because in 5.6(1) the word “only” appears in the phrase “consists only of conduct” and, in our submission, it is not only conduct, but also circumstance.

Circumstance is particularly conveyed by the notion introduced by the word “involves” that you will see in 92.3(1)(d)(ii) and (iii). It is not clear beyond dispute at all, but the word “involves” is usually a word that points to circumstances of what is being spoken of. I cannot say the same of the one that is critical for our case, which is introduced by the word simply “is” and your Honour has asked me about whether that is simply a characteristic or quality of the conduct.

GORDON J: It is at least arguably maybe a case defined as an act or omission. In other words it is directed at not really a state of affairs and acts rather than either a circumstance or a consequence. For this reason one starts with a person engaging in conduct in (a) - it must be the same conduct, or part of the same conduct being referred to in (d). It would be odd to have a different fault element for (a) and (d).

MR WALKER: It is not odd to have an act or omission, which itself is willed in the relevant sense, but the state of mind of the punitive offender does not involve either knowledge of, or belief in, but could involve recklessness of a quality of that act. That is obviously true when one looks at the propensity of acts to produce results, which is what 5.3 recognises as a matter of what might be called ordinary human experience.

Now, that will produce recklessness rather than intention as the fault element in the absence of express stipulation. So, it is not true that anything that might be called a quality or characteristic of conduct is thereby part and parcel of that about which the fault element is intention because a result which need not occur for certain offences such as this one – in order for the offence to be complete – can be something contemplated as a possibility sufficiently serious, et cetera.

GLEESON J: Is recklessness apposite to the elements in (d)(ii) or (iii)?

MR WALKER: That is certainly putting a strain on it, yes, your Honour. Our argument is one which does not involve any critical place for attributing as intention or recklessness the fault element for 92.3(1)(d). If it be reckless then it adds to an argument that I will come to later, concerning the invidiousness of the burden, if it be a burden. If it be intention, then, in our submission, it may, in another place and at another time, put real weight on the need to understand the difference perhaps between something that is covert and something that is simply not disclosed, for example.

Could I come back then to the last of the relevant definitions, critical for an understanding of these offences, and that is the notion of a “foreign principal”? Can I start with 90.2 which promises to provide the definition, but really only starts the word gulf – it is at 135 of the book. So “Each of the following”, and then there are six items, is a “foreign principal”. It starts with:

a foreign government principal –

which of course is itself defined in 90.3. There are other defined elements that I do not intend to dwell on in oral address, but your Honours see how broadly the notion – I should not say broadly - your Honours see the disparate and relevantly broad coverage is provided by the defined expression “foreign principal”. For example:

a public international organisation –

is immediately followed by:

a terrorist organisation –

They are, to put it mildly, disparate, but they show the breadth of the intended coverage of a foreign principal. One sees as well that there is indirectness, that is, something in the nature of hierarchy, contemplated by paragraph (d):

an entity or organisation owned, directed or controlled by a foreign principal within the meaning of paragraph (aa), (b) or (c) –

which is a very broad sweep, and one sees that the indirectness can become, as it were, diffuse under paragraph (e) by which the “owned, directed or controlled” entity, et cetera, may be traced back to “2 or more foreign principals”.

Section 90.3 is important, particularly in a case such as the present, because one sees again disparate, perhaps in some cases sometimes overlapping, but nonetheless distinct provisions by Parliament with respect to “a foreign government principal”, which is the first item of those things which are “foreign principals”. With relatively familiar language from our political science, one sees the following expressions used to describe entities or activities or organisations, or things of social import, in a foreign country. It starts with:

the government of a foreign country or of part of a foreign country –

It then goes to:

an authority of the government of a foreign country –

and:

an authority of the government of part of a foreign country –

Then it goes to:

a foreign local government body or foreign regional government body –

and, living in a federation, these are familiar concepts to us – but they are obviously to be understood as adaptable to different organisations in foreign countries. Now (e) requires reference yet again to another definition, namely, “foreign public enterprise”. You will find that starting at page 129 of the book. I will not go through it. Suffice to say it is an elaborate stipulation for the way in which, by using in English concepts familiar to us from our company law, constructs supposed to be discernible in the organisations of foreign countries.

The same comment applies to paragraph (f) in 90.3. Again, that throws you back to the next part of the definition of “foreign public enterprise”.

GAGELER J: Mr Walker, given that these provisions are plainly severable, are you able to identify those paragraphs that are potentially engaged by the facts of this case?

MR WALKER: We think, for the first of my – or for my warrant argument – it is probably in 90.2(a), (aa), (d) – that is (d) by reference to (aa).

GAGELER J: And within 90.3?

MR WALKER: Within 90.3, being picked up by 90.2(a), we think the first part of (a) – and that is because the language with which your Honours are familiar from the warrant itself, I will come to that ‑ certainly we think (b) ‑ ‑ ‑

GAGELER J: The authority being what?

MR WALKER: Well, it depends on the language that you will see. In the warrant there is, if I may put it this way, odd language; the noun “apparatus” appears, for example. Whether that fits is obviously part of my argument. Can I come back in an attempt to suggest, as it were, perversely against myself, how these expressions may apply to expressions found in the warrant. In answer to Justice Gageler’s question – what are the candidates – certainly it includes 90.3(b), we think.

GAGELER J: Thank you.

MR WALKER: It may be I will be relieved to hear my friends dispense with that, but I do not think that is going to happen. Can I then try, perhaps a bit more quickly, to move through the second of the offences in question, 92.3(2).

GAGELER J: Mr Walker, before you do that, would you mind me asking you a similar question about 92.3(1). I think we are not at all concerned with (d)(ii), and (iii).

MR WALKER: No.

GAGELER J: Are we concerned with every subparagraph of everything that is above that?

MR WALKER: I may not have caught your Honour’s question. In 92.3(1)(d)(i), it is just the first limb we are concerned with, “covert” ‑ ‑ ‑

GAGELER J: Yes.

MR WALKER: ‑ ‑ ‑ not involving deception, and it is certainly not (ii) or (iii), and I will be trying to draw lines, as your Honours obviously know.

GAGELER J: Of course. My question relates to (b)(i) and (ii), or really are we concerned with (b)(ii)?

MR WALKER: No. Again, I am taking the warrant as my cue here, and we are not concerned with (1)(b)(ii) at all, and we think we are concerned only with (1)(b)(i), first limb, “engaged in on behalf of”, and all the rest of it we are not concerned with.

GAGELER J: What about (c)?

MR WALKER: As to (c), negatively we are not involved ‑ we are not concerned with subparagraph (iv):

prejudice Australia’s national security ‑

We are not concerned with subparagraph (iii):

support intelligence activities of a foreign principal ‑

But we think we are concerned with each of (i) and (ii).

GAGELER J: Thank you.

MR WALKER: Again, it is the terminology of the warrant which – we are trying not take a point which concerns verbatim departure or departure from verbatim but there are some quiddities, if I can call it that, of the way the warrant expresses itself that may involve further construing of subparagraphs (i) and (ii) of paragraph (c) in subsection (1).

Could I come now to subsection (2)? Some of the same comments I have already made apply and I will not repeat them. In large measure, the answers I have given to Justice Gageler’s questions about the severable, or identifiable, independently operating components of these provisions will apply to subsection (2) as well.

But, of course, your Honours appreciate that the single difference between subsection (1) and subsection (2) is this concept, pivotal to the operation and creation of the offence, of a so‑called “target” – or as the heading calls it, a “targeted person”. So, it is “Interference” says the heading “involving [a] targeted person”. In paragraph (c) of subsection (2), the nature of the pivot, or link, is the recklessness:

as to whether the [person’s] conduct will influence –

So, there is a result:

another person –

who is called:

(the target) –

and influence that other person in relation to one of those processes or in relation to:

the target’s exercise . . . of any Australian democratic or political right or duty –

The word “right” is used. It may, in this context – particularly in the colocation of democratic or political right or duty – it may actually also include resort to, or reliance on immunities, or exercise of freedoms, but that, we do not think, will be a critical matter, though it may be contextual.

Then comes the final element which is an important part of the gist of this offence and where the fault element is plainly intentioned, that:

the person conceals from, or fails to disclose to –

So, act or omission:

the target the circumstance –

of what I am going to call, in general terms, the paragraph (b) connection to the foreign principal.

KIEFEL CJ: The target is the means by which the wrongful conduct is achieved – would that be a correct description of it?

MR WALKER: Yes, so long as one understands that there does not have to be accomplishment of the project in order for the offence to be committed.

KIEFEL CJ: No, but what the conduct is directed to and what is the concern of the subsections is the effect on the political or governmental process or the democratic or political rights or duties.

MR WALKER: There is no doubt about that.

KIEFEL CJ: The target is merely the means by which that might be achieved for the purposes of subsection (2).

MR WALKER: In the subsection (2) offence, yes, yes.

KIEFEL CJ: What is it in relation to a search warrant that requires the target to be identified, or am I taking you out of your step of the construction first?

MR WALKER: No, I am going to come to that very soon. If one does not know the target, one does not know the object of conduct in the nature of influence ‑ I am using the words of subsection (2), paragraph (c) here – in order to understand the boundaries of the search which has recklessness as its rather broad ambit. So, if there is no specification or misleading or ambiguous specification of ‑ ‑ ‑

KIEFEL CJ: Of who it is who is going to be pivotal to the operation that the foreign principal has in mind.

MR WALKER: Both the officer executing and the person against whom execution is being had will not know contacts with whom ‑ ‑ ‑

KIEFEL CJ: They need to know the identity of the person who is really being used.

MR WALKER: Yes, the target needs to be known, in our submission, in order to understand what ‑ for example, which correspondence, electronic or paper, falls within the warrant.

KIEFEL CJ: Quite. Well, here Mr Moselmane is identified as an elected official.

MR WALKER: And, as your Honour knows, I am going to attempt to persuade your Honours that he is not however sufficiently designated as a target for reasons of equivocation or ambiguity.

KIEFEL CJ: Well, I should leave you to that point. I was going to ask you what more, but you can deal with it when you come to it. What more apart from the fact that he is the only person named? He is said to be an elected official. The conduct is said to influence in particular – I mean, it is actually particularised – the result was intended to be to influence the New South Wales branch of the Australian Labor Party and the critical element that the failure to disclose was to Mr Moselmane. What I have difficulty with is what more does the person executing the warrant or the person receiving the warrant need to know that it is Mr Moselmane who is the intended go‑between for the purposes of the foreign principal.

MR WALKER: Your Honour, I accept entirely that is ‑ ‑ ‑

KIEFEL CJ: The question.

MR WALKER: ‑ ‑ ‑ the whole of the object of my attempt to persuade the Court in the first part of the case and I accept I have the burden of persuasion in that regard and the answer is, where there is ambiguity or confusion, there is not the adequate indication that the law of warrants requires.

KIEFEL CJ: Quite so, I understand that is your argument. What I would really appreciate though when you come to develop that argument is to provide some practical examples of what you say the ambiguity or the confusion is in the mind of the person executing the warrant or receiving the warrant – practical examples.

MR WALKER: Yes, I accept the challenge entirely, your Honour.

KIEFEL CJ: Thank you.

MR WALKER: But whether I will be able to discharge it is another question. Your Honours, can I simply draw to attention something that emerges from subsection (3). It probably is not to the forefront of the issues in this case.

EDELMAN J: Mr Walker, just before you move on from subsection (2), I am not sure whether you confirmed or not, but is (2)(b)(ii) any part of your case in relation to the warrants?

MR WALKER: We think not. That is ‑ on our reading of the warrants that is not part of the concern that ‑ ‑ ‑

GORDON J: Is it the same answer you said in relation to subsection (1) in relation to (2)(b)(i), it is only the first part of (2)(b)(i) and not the second part?

MR WALKER: “Engaged in on behalf of” and not the rest, we think.

GORDON J: Thank you.

MR WALKER: Subsection (3) ‑ we do not think it, with respect, matters for today’s argument, but it does loom perhaps over the horizon because it says of these critical provisions for both subsections (1) and (2), namely what I will call connection with a foreign principal, that the person, that is the putative offender:

does not need to have in mind a particular foreign principal -

So that leaves open this notion of a generic foreign principal, as to say, maybe another day, another occasion as to how one will be able to make out the definition of “foreign principal” if there is not a particular foreign principal. I do not say it is definitionally impossible, but there are obviously some challenges. But it certainly indicates the significance at the warrant stage of the person who is confronted with the warrant and its imminent execution understanding, by reference to names or designations or descriptions, those entities or persons, say correspondence between whom, would be caught and would not be caught by the warrant.

So at that point, your Honours, can I go directly to the warrant. I am going to use the first warrant that you will find starting at page 61 of the special case book. Unless there is any matter in the highly structured – and if I may say so, not very user‑friendly – familiar format of this warrant that your Honours wish me to address on, I am going to concentrate almost entirely on the third condition so called, which is where, if you were sufficiently au fait with these things as a person receiving such a warrant, you would focus your attention to understand the boundaries of authorised search, we think.

That is not to say that first and second conditions are not absolutely critical; they plainly are. I draw to attention that at the outset our client is named with others in an entirely conventional and acceptable way as the object of the inquiry for which this evidence is being sought. One sees that it starts correctly by describing the nature of the offence as being:

intentionally engage in conduct –

That picks up what we have already put concerning what the statutory provisions for both will require as to the conduct. Then immediately one sees language that, in our submission, introduced the equivocation and the ambiguity or use of sufficiently uncertain expressions as to defeat the intended purpose of setting boundaries because the expression is “acting on behalf of”. So there is the expression no doubt used because the statute uses it, “of” – and where the statute talks about a foreign principal, et cetera, here come the words for this case:

Chinese State and Party apparatus –

and “apparatus” is one of those borrow words, which is the same in the plural as the singular, so we are presumably talking about some collectivity here, being more than one entity, to use our kind of language.

KIEFEL CJ: A term that is used, in particular, in relation to communist regimes?

MR WALKER: No, we would not submit “apparatus” can and should be used as a matter of political science for any kind of regime. The Privy Council is part of the apparatus of the British Constitution.

KIEFEL CJ: Although not commonly referred to as such.

MR WALKER: No, but if one was talking in political science terms ‑ ‑ ‑

KIEFEL CJ: Speaking more about newspapers, I think, Mr Walker.

MR WALKER: One only has to think of the word “apparatchik” ‑ ‑ ‑

KIEFEL CJ: Which has its origins in the Cold War.

MR WALKER: Yes. We would earnestly submit to the Court that the Cold War provides an unsafe understanding of how to read language in this warrant.

KIEFEL CJ: But the common understanding of the People’s Republic - the Communist Party and how it works is that there are organs or ‑ ‑ ‑

MR WALKER: Apparatus.

KIEFEL CJ: Quite - that are associated with it. It does not function just on its own and that the politburo and other aspects of the party have important parts to play.

MR WALKER: And there are more than one of them, with different roles.

KIEFEL CJ: Why would this not be a shorthand attempt to describe all of those things?

MR WALKER: If it is, and it is adequate as such without confusion, then we lose this point, as to that phrase.

GORDON J: Is that argument, in effect, amplified by what follows at the end of subparagraph (i)?

MR WALKER: Yes, I am going to seek to – there are three points I have to touch on as to the verbiage in (i) - the first of the ones, for the first of the offences. “Chinese State and Party apparatus” does not tell you what entities – or to use the language of the definition, what authority is being referred to.

KIEFEL CJ: What words do you say should have been used, Mr Walker, if they were trying to capture all of the - what stands for the government, the Communist Party, the politburo and any other ‑ ‑ ‑

MR WALKER: If that were the ambition of the person drawing the warrant, that is on behalf of all aspects of ‑ ‑ ‑

KIEFEL CJ: Of government.

MR WALKER: ‑ ‑ ‑ of government in China, then the ambition seems odd because it may be that one word would be enough.

GORDON J: Is that not what the balance of (i) says, though?

MR WALKER: That is what I am coming to now. The next one is the one that, if it stood alone, would, in light of the definition of a “foreign principal”, not provide any point for us. The next one simply is the “Government of the People’s Republic of China” and that is ‑ ‑ ‑

KIEFEL CJ: But then you would say it would not include the politburo.

MR WALKER: I would not necessarily say that ‑ ‑ ‑

KIEFEL CJ: Because that is part of the apparatus.

MR WALKER: Yes, I think, is the answer to your Honour. But the government of the People’s Republic of China, if it stood alone, would not provide a warrant objection point concerning ambiguity. But it does not stand alone. There is, in our submission, the doubt for those – this is a warrant argument – intent on finding out the boundaries, including, say, correspondence with anybody in China, or anybody in Australia holding office from China, then being able to know whether it is caught by this warrant requires more designation than the expressions to which I have drawn attention permit one to understand, particularly as in the same breath there is a reference to something as broad as the advocacy of “Chinese State interests” which, in our submission, blurs and expands without lending boundary-supplying precision to the notion of the “foreign principal”.

Now, we understand that the plain and simple argument against us is that, whatever may be said about the expression “Chinese State and Party apparatus” or the expression “Chinese State interests”, in the middle is embedded in apposition this expression:

a foreign principal, being the Government of the People’s Republic of China –

and if that is sufficient to dispel ambiguity or the deficiency in the supplying of boundaries, then we lose that part of the argument. Our argument is that, surrounded as it is by the notion of acting on behalf of some things simply called “Chinese State and Party apparatus”, there is an inability to understand where, if at all, boundaries are to be found. I say “if at all” because, if boundaries cannot be found, then of course the warrant is bad.

Could we draw to attention the way that the first part – that is, paragraph (i) in relation to this first part of the warrant – describes Mr Moselmane. So Mr Zhang and others did engage – I have to change the syntax – in conduct, namely engaged with Shaoquett Moselmane:

to advance the interests and policies of a foreign principal –

engaged with him to do that. Now, that is, in our submission, entirely ambiguous as to whether that is collaboration – that is, the two of them or the two or more of them joining together for that project – engaged with him to advance. Then the next phrase we have to pick up in relation to his roles is:

by providing support and encouragement to MOSELMANE for the advocacy of Chine State interests ‑ ‑ ‑

KIEFEL CJ: Nothing in the first part of paragraph (i) suggests that Mr Moselmane is knowingly, in the sense of collaboration or conspiratorially involved. It is neutral, is it not? It is just Mr Zhang, with others, is doing something with Mr Moselmane ‑ ‑ ‑

MR WALKER: To advance the interests ‑ ‑ ‑

KIEFEL CJ: To advance the interests of a foreign principal. It says nothing about his knowledge. It just identifies him.

MR WALKER: That may be neutral. I have put an argument that I cannot further elaborate that to engage with him to advance is ambiguous as to whether he is a collaborator or, to put it crudely, a stooge.

KIEFEL CJ: You say “ambiguous”. Another version could be neutral until the end of the second offence.

MR WALKER: So the argument does not bear further elaboration beyond that, what I have just said, but it is the end of that sentence that I submit tips the balance away from the merely neutral:

by providing support and encouragement o MOSELMANE for the advocacy of Chinese State interests -

That, in our submission, most naturally as a matter of English, refers to joining, with him knowing, to support and encourage him to advocate Chinese state interests is not something which, with respect, bespeaks Mr Moselmane being, as it were, innocent of any knowledge.

KIEFEL CJ: Well, it does not say anything about knowledge?

MR WALKER: To support and encourage a person to advocate something described as “Chinese State interests” suggests very strongly that the person is aware that they are Chinese state interests that he is being supported and encouraged to advocate. Now, your Honours appreciate that I am trying to store this up for an argument when I come to the target offence. One sees, we submit, that this is language, which, concerning Mr Moselmane, is part of my attempt to answer the challenge I accept that the Chief Justice’s question identifies as other than as an innocent.

KIEFEL CJ: Mr Walker, do you say that the two offences that the warrant contents in relation to the two separate offences under subsection (1) and (2) have to be read together, or should they be read separately as self-contained offences?

MR WALKER: They are absolutely self‑contained offences.

KIEFEL CJ: But do you read subsection (2) in relation to who is the target in light of (1), because the person reading the warrant is reading the whole thing. It is getting the flavour of what is involved in the warrant from both offences.

MR WALKER: Your Honour anticipates me. The offences in the statute book are self‑contained.

KIEFEL CJ: Yes.

MR WALKER: As it happens, they do not need to inform each other as to the meanings of expressions in them because one finds that in definitions.

KIEFEL CJ: But the content of the warrant does.

MR WALKER: But when it comes – when it comes to the warrant, of course I accept, within acceptable limits, it is like any exercise an understanding of the whole. I am, for my own purposes, accepting that this might be turned against me, but, nonetheless, for my own purposes, I do call in aid what I have just submitted is true of the subsection (1), item (i) description in the warrant, namely it rather suggests that Mr Moselmane is being encouraged to advocate “Chinese State interests”, not in some odd way that he does not know that they are Chinese state interests that he is being encouraged to advocate, but simply as the word suggests, that is, a plain possibility, probability, a more likely reading, that that is him knowing that that is the object of the encouragement. If that is true then, as it were, we are going to return to that with respect to a reading of the subsection (2) part of the warrant.

STEWARD J: Just so I am clear, Mr Walker, you are saying that this first part is really directed at communications that probably took place between Mr Moselmane and Mr Zhang using a private social media chat group.

MR WALKER: Part of it. Yes, in answer to your Honour’s question, so long as it is understood that the reference to “private Social Media Chat Group”, according to the warrant, applies only to part of the conduct

STEWARD J: Yes. But it is directed at seizing, if I may say so, the actual communications that took place in that private social media chat group.

MR WALKER: Yes, yes.

STEWARD J: Which is different to what the second offence is directed at.

MR WALKER: Yes.

STEWARD J: Yes, I understand. Thank you.

MR WALKER: Now, there may be overlap, depending upon some matters to which I will come ‑ ‑ ‑

STEWARD J: Yes, there may be. Yes, I appreciate that.

MR WALKER: But it is conceptually different, yes, reflecting the conceptual difference between the two offences in the statute.

STEWARD J: Thank you.

MR WALKER: Your Honours, if I can come now to item (ii) in the subsection (1) part of the warrant? Your Honours see the familiar words of description – sometimes of particulars – in the fourth line of the phrase, “in that”. So, that provides the content that the reader would understand. It provides the possibility of a boundary to the exercise of power under the warrant:

in that the conduct would influence the NSW branch of the Australian Labor Party’s policy positions on the PRC –

And, in our submission, that is in the subsection (i) offence an out‑and‑out statement of an offence that I will turn to in the constitutional argument. Secondly, even more so:

the views of members of the NSW electorate –

That means, prospective voters:

in regard to the PRC –

Whether there is any democratic or political right or duty covered by the words following “in that” other than the participation in political debate and the casting of a vote may be doubted but each of those would fall within that rubric, we accept, assuming that a democratic or political right does extend to exercise of the implied freedom. In any event, there is both a right and duty to turn up to vote and to vote as to a right. That, presumably, is what is aimed at by reference to the influence on the views of members of the electorate. Then, finally, it simply says:

A part of the conduct –

That refers then to something which another day, another place, may well present a crux, namely, as to whether covertness is made out by communications over a private social media chat group. Neither the word “private” or, in particular, the word “group”, or probably the word “chat”, and certainly not the word “social”, indicate covertness as such.

As I say, it raises questions which are relevant to today’s argument only because of what I am going to call the “invidious aspects” of the offence if it were a valid provision of the Parliament with respect to the notion of all and any so‑called encrypted electronic communications being covert within the meaning of this criminal statute.

Now, your Honours, there is, as your Honours know, a different and sharper focus with respect to the subsection (2) offence in terms of our warrant complaint because we have – apart from the points with respect to the statement of the offence that is common to each of subsection (1) and subsection (2) offences, there is the particular aspect of target in relation to subsection (2).

KIEFEL CJ: Just before you move to subsection (2), the two areas that you have identified as areas of confusion or ambiguity – I am sorry – the area that you have identified is the confusion or ambiguity about who is the foreign principal. Your reference to Mr Moselmane is really for the purposes of your subsection (2) argument, in relation to who is the foreign principal ‑ ‑ ‑

MR WALKER: Yes.

KIEFEL CJ: ‑ ‑ ‑ the person executing or the person receiving the warrant would be confused about whether documents had to be connected with the government of China. Where is the confusion going to come in?

MR WALKER: Matters which are outside the government of the PRC but arguably may be within whatever unspecified, that is, we say undefined ‑ ‑ ‑

KIEFEL CJ: Part of apparatus.

MR WALKER: ‑ ‑ ‑ notion of Chinese state and party apparatus.

KEANE J: So there is an assumption built in there that they are different.

MR WALKER: Yes, your Honour.

KEANE J: So that the recipient of the warrant or the person executing it would only be confused if they happen to have this assumption that the two were different.

MR WALKER: Yes. It is an assumption as to a possibility that when different expressions are used, not exactly the same concept is being conveyed. Everything your Honour has put to me, yes, we accept. What we say is that with a warrant where it is a matter of there and then being able to discern boundaries that if those who drew the warrant intended the same thing to be conveyed by the expression “the Government of the PRC” and “Chinese State and Party apparatus”, then they would have said so, and that if they had used a different expression without needing to carry some comparative political science treatise around, then they may not be describing something which is exactly congruent.

Now, why I use that expression from Euclid is that, if it is not exactly congruent, the boundaries may be in a different place, depending which is the governing expression to define the scope of permitted search. But, yes, I accept what your Honour puts to me. It does involve discerning the real possibility of the different phrases not being exactly congruent in their meaning, yes.

GORDON J: The argument against it may also be, is it not, that the drafter of the warrant was intending to ensure that there was no narrowing, that they were seeking to make sure that that assumption that things were the same were to be covered, especially given subsection (3) to which you took us, that is, that you do not have to have a particular foreign principal in mind. You may have one or two and it may be that it is one and the same; it may be that they are different. In a sense, it does not matter.

MR WALKER: It does not matter in the subsection (3) sense, although you are going to have to make out in due course the foreign principal elements of the offence.

GORDON J: I meant for the warrant purposes, not for the indictment.

MR WALKER: Quite, we are well in advance of any of that. For the warrant ‑ that is why I keep emphasising ‑ for the warrant the present concern is the availability of discernible boundaries so as to make this piece of paper an appropriate open sesame of that which would otherwise not be within State power to compel. For that purpose, there needs to be the capacity to discern distinctions between that which falls within and that which falls outside the claimed power of seizure. It is for those reasons that we would never argue against a warrant expressed so as to encompass everything of interest to an investigator. That is precisely what a warrant should do.

So the first part of Justice Gordon’s question to me, of course it would be appropriate to understand terminology as displaying the intent of those seeking the warrant and ultimately of the authority issuing it to have an appropriately broad grasp of investigative material. We accept all of that, but it is still about boundaries. Being assumed it is broad, nonetheless one needs to be able to say is this within something that is fixed by a boundary conveyed by the expression “the Government of the PRC” and if there is a difference – and we submit for the linguistic reasons I have already put in answer to Justice Keane, there is a difference – if there is a difference, is this within a different boundary, maybe overlapping, but a different boundary, “Chinese State and Party apparatus”.

It is not, in our submission, appropriate, as it were, to say that those are words which could be treated for the boundary understanding purposes as necessarily setting the same lines, and that is the whole of our argument on that point.

KIEFEL CJ: Mr Walker, this is a case where obviously the warrants have been executed but it is not a case, which was the circumstance in the Smethurst Case, that relief was sought in relation to an overreaching or a confusion about the warrant which led to questions about whether some materials had been wrongly seized. It is no part of your case, and no relief is sought in relation to documents which were seized which could not have been any part of the ambit of the warrant?

MR WALKER: No, we are pressing only for the return of everything ‑ ‑ ‑

KIEFEL CJ: The objective test of validity?

MR WALKER: Yes, that is correct. Now, that circumstance, however, is not one which alters the significance of the boundary setting function of this Court’s requirements of a warrant – whether the boundary is ‑ ‑ ‑

KIEFEL CJ: Is it possible though to in a sense reverse engineer, in an appropriate case, to say, here are some examples of how the confusion was seen. This document was seized; it could not possibly have been said to have been within the Chinese state and party apparatus.

MR WALKER: Yes.

KIEFEL CJ: Is it possible?

MR WALKER: Yes, and I do not have that here.

KIEFEL CJ: Yes.

MR WALKER: Yes. That would be what might be called a lively aspect ‑ a concrete demonstration ‑ ‑ ‑

KIEFEL CJ: A forensic process which could be undertaken in an appropriate case.

MR WALKER: Yes. Yes.

GAGELER J: You accept that the warrant is severable?

MR WALKER: Yes.

GAGELER J: Where does that leave your consequential relief?

MR WALKER: It leaves it really requiring success in the constitutional challenge to have what I will call the comprehensive reach of the relief. What the special case does not reveal is identifiable material falling within one but not the other part of the warrant. I hope that answers your Honour’s question.

GAGELER J: Yes, thank you.

MR WALKER: Could I turn then to the target offence, so the subsection (2) part of the warrant at page 63 of the special case. It has the same expressions upon which I have already sufficiently addressed, and in particular the reference to the conduct by which Mr Zhang and others engaged with Mr Moselmane:

to advance the interests –

et cetera:

by providing support and encouragement to MOSELMANE for the advocacy of Chinese State interests –

In our submission, bearing in mind the necessary element of “covert”, that is obviously not known to Mr Moselmane, which is the last of the elements of the offence, the words I have just repeated from, again, the same paragraph (i) for the subsection (2) offence, are not words that are redolent of Mr Moselmane being a target in that sense at all.

And then in (ii), in our submission, one has confusion added, that is, increased, in the words here, in the target offence following in that, the same words as one saw in paragraph (ii) for the subsection (i) offence, there refers to other persons, not Mr Moselmane, or at least persons extending beyond Mr Moselmane individually, that the conduct is said to be influencing.

And, in our submission, skipping over, as it were, the role of any target – named target – to achieve the effect which is part of the element as to recklessness – as to which recklessness is required ‑ in that element of the offence. And as your Honours have seen, we point out that the New South Wales branch of the Australian Labour Party is not capable of being a target, by reference to being a person, and the views of members of the New South Wales electorate – that is the class members of the New South Wales electorate ‑ equally would not be capable of being a target and, in any event, would be hopelessly vague and uncertain at any given time as to the persons with whom communications would fall on one side or the other of the boundaries intended to be set by the terms of the warrant.

EDELMAN J: Mr Walker, would it have been sufficient if, after the word “influence”, it had contained the words Moselmane concerning processes relating to? So that effectively would have read in that the conduct would influence Moselmane concerning processes relating to the New South Wales branch and so on.

MR WALKER: Other objections may still exist, your Honour, but that would have ameliorated the position that I have identified in paragraph (ii) for the target offence. I do not know that it would remove it. In any event, those words do not appear, and by implication, inference, or arguable interpretation, cannot be allowed to dispose of an argument about the failure of the warrant to set the boundaries.

EDELMAN J: But why would it not be understood that that was in effect the meaning of the subparagraph (ii) in light of subparagraph (iii)?

MR WALKER: Because neither (i) nor (ii) involve – (ii) does not involve Mr Moselmane at all. It starts with the words “In doing so”, but we are there talking about ultimately providing support and encouragement for the advocacy of Chinese state interests. That, in our submission – that is engaging with Mr Moselmane in a variety of ways – that is a private social media chat group and in other fora so that (ii) does not in terms involve Mr Moselmane as a target, and (iii) does not repair those deficiencies.

Now, we understand the argument raised with respect to (iii). It is the warrant’s turning to the last of the elements – that is, the equivalent in the subsection (ii) offence of the covertness in the subsection (i) offence, namely:

concealed from or failed to disclose –

the intentional conduct required.

KEANE J: To the target.

MR WALKER: I am about to say, and (iii) in terms names Moselmane as the person with respect to which that concealment or failure to disclose occurred and I accept that has to be read as the warrant writer’s understanding in item (iii) that they needed to say something about there being a concealment from or failure to disclose to the target. I accept that. That is why the way I put it is that (iii) is not able to cure the deficiencies that we have identified in (i) and (ii). To put it another way, one should not have to try to add two and two together where you do not get the integers as simply as two and two.

KIEFEL CJ: But a large part of your argument is premised on the notion that the words “by providing support and encouragement to Moselmane for the advocacy of Chinese State interests” in both offences somehow capture his purpose being the advocacy of Chinese state interests when it does not say that. You have to read words in, I think.

MR WALKER: I think the proper answer to your Honour’s question is yes, simply, although with respect the closing phrase in your Honour’s question is not one that we submit. Yes, a large part of our argument is concerning what is left open by that language.

KIEFEL CJ: You say it is not so much as misdirecting as leaving as ambiguous.

MR WALKER: Yes.

KIEFEL CJ: I think that is the word you would use. It is not entirely clear and you say ‑ ‑ ‑

MR WALKER: It has to be clear.

KIEFEL CJ: ‑ ‑ ‑ that (iii) in the second offence does not make it clear the Mr Moselmane does not know he is being used.

MR WALKER: Yes, that is right.

KIEFEL CJ: That is probably one of the most important aspects of it.

MR WALKER: Yes.

STEWARD J: Mr Walker, can I ask, for the purpose of defining what to look for, other than what appears in (iii) for the second offence, what is the difference between the search that one would conduct under the first offence and the search one would conduct under the second? Are you not really looking for the same things?

Just leaving aside (iii) for the moment, you are looking to seize the mobile phones and the computers so that you can see all the WeChat messaging that has been going on, and so on? What (iii) then perhaps does is it gives authority to search for some more things that might relate to Mr Zhang concealing his alleged relationship with the Chinese state so it might increase the boundaries of the search.

MR WALKER: My answer is a variant on what I have given in a similar kind of answer with respect to the subsection (i) offence, if your Honours will forgive me. In the subsection (2) offence in the warrant, (iii) introduces two more descriptions and your Honours appreciate that this is all about a boundary setting exercise whereby uncertainty and ambiguity bespeak defectiveness in the warrant.

In other words, elements of language in the warrant which avowedly and if the warrant be valid effectively expand the scope of search will not prevent there nonetheless being a defect if the way they are expressed leaves or exacerbates ambiguity and uncertainty, and that is what the closing words of item (iii) do:

failed to disclose to MOSELMANE that they were acting on behalf of or in collaboration with –

So collaboration is introduced at that point:

Chinese State and Party apparatus –

An expression I have already sufficiently addressed:

including –

So non‑exhaustively:

including –

Then we have two specified:

Ministry of State Security –

I accept that the Ministry of State Security is a foreign principal:

and the United Front Work Department.

Similarly an authority probably on the material in the stated case. But because it is only including and because it still has this vague and undefined description of “State and Party apparatus”, notwithstanding the plain, straightforward description “Government of the PRC” used elsewhere in the warrant, in our submission, in answer to Justice Steward, yes, there is a plain project of expanding, if you like, by particulars, by specificity, the uncontested scope but, in our submission, it has been done in such a way as not to produce boundaries, and it is the delineation of boundaries that we are concerned with.

KIEFEL CJ: That might be a convenient time then, Mr Walker.

MR WALKER: If it please the Court.

AT 11.23 AM SHORT ADOURNMENT

UPON RESUMING AT 11:38AM:

KIEFEL CJ: Yes, Mr Walker.

MR WALKER: If it please your Honours. Your Honours, I am moving to the constitutional argument, 6 and following of our outline. Can I start by submitting briefly, without intending to elaborate much beyond our written submissions, that at the outset of our argument we submit that the provisions in question plainly involve in the nomenclature a burden of the implied freedom.

We have, as your Honours have seen in our written reply submissions, addressed in particular questions of the quality or degree of the burden that have been raised against us by our friends. I do not really need to elaborate that further in address either. We wish in the argument we present as to constitutional invalidity really to start substantively with an incompatibility with the implied freedom that we say is ex facie true of these provisions, from their very words.

Now, your Honours appreciate that the prize, if we win this part of the argument, is that that is the end of it. If there an incompatibility of a kind that produces an illegitimate purpose, then that is the end of the section, in several meanings of that phrase. We accept that that involves, of course, an adequate or correct definition of the purpose of the provisions, and that obviously the purpose of provisions is related to, if not completely described by, their effect that is as properly interpreted.

But we also accept that there are levels of generality or specificity which dominate the language one conceptualises and articulates the purpose of provisions, the validity of which are in question for their supposed incompatibility with the implied freedom. We submit that these provisions provide a rather broader highway for our argument that might otherwise be the case and that is because expressly, on their face, these are provisions which have as the common result, which is an element of both offences, influence of a kind which, if not entirely, virtually entirely will be exercised by communication otherwise protected.

So, “influence of a political or governmental process” or “the exercise of a democratic or political right or duty”, those are phrases which in our submission immediately alert the constitutionally‑minded reader of this legislation that the project being undertaken by Parliament in enacting the provisions is a project which will not incidentally but deliberately, not tangentially but centrally, affect an exercise of freedom that falls within the protection or falls under the protection of the requirements of the Constitution by necessary implication.

Now, we have suggested - see paragraph 7 of our outline in particular, and paragraph 36 of our written submissions in‑chief - proposed means by which – we do not suggest uniquely, correctly - the purpose can be described of these provisions in the course of our argument about incompatibility, that is, illegitimacy of purpose.

GAGELER J: Well, what do you mean by regardless of the character of that influence? Is not that what these provisions are all about?

MR WALKER: Yes, yes, it is. That is an argument about the – what we mean by that is that the intended explicit reach of these provisions is not directed only to, for example, subversive, seditious or damaging communication.

GAGELER J: Deceptive, covert? I mean ‑ ‑ ‑

MR WALKER: Well, I have to come to “covert” again, separately.

GAGELER J: Yes.

MR WALKER: Not least because it is the one that matters in our case. But, yes, can I defer very slightly, answering Justice Gageler’s question, we do have things to say about “covert” and “illegitimacy”. We have even more to say, or more to say about it with respect to “proportionality”, if we reach that stage of the analysis.

GORDON J: Can I ask a question at a high level?

MR WALKER: I am sure your Honour can.

GORDON J: These provisions are directed at interference.

MR WALKER: Yes.

GORDON J: That is what the heading tells us. The word used within the provisions is “influence”.

MR WALKER: Yes.

GORDON J: It really follows on from what Justice Gageler is asking you. One takes – I am asking whether one takes the idea that influence is to have this illegitimate aspect to it, as confining the operation of these provisions?

MR WALKER: I think the short answer is yes.

GORDON J: If that is so, then the confining in both of them is quite different. They are directed at different purposes.

MR WALKER: And may not produce the incompatibility, which is my first goal.

GORDON J: Correct, and that is what I am putting to you.

MR WALKER: Yes.

GORDON J: It seems to me to be something which you need to divide up if you are going to put it at that level.

MR WALKER: I accept all of that with respect as to the – at least to the analytical method that we are going to urge. I accept that that is part of my burden.

GORDON J: Sorry, there is one other aspect about that. In the special case, you have agreed with ASIO’s definition of “foreign interference”.

MR WALKER: That is ASIO’s definition for its policy advice to government, and, no doubt, borne in mind by people in Parliament, but that does not have anything to do with the interpretation of these provisions.

GORDON J: No, it does not.

MR WALKER: It is useful for mischief, I accept that.

GORDON J: It is useful for mischief.

MR WALKER: Absolutely.

GORDON J: That is why I am putting it to you in this context.

MR WALKER: I entirely agree. I cannot say anything against that. Indeed, I am going to embrace it for certain purposes.

GORDON J: I see, thank you.

MR WALKER: Interference and influence are not the same. It is not one of those irregular verbs – I influence, you interfere. It is, in our submission, very important to our constitutional argument – the point I made in the warrant argument ‑ that though the headings all say they are about interference, the words do not necessarily convey that. We submit – I do not want to repeat it – there is an overreaching. Now, for the constitutional argument – and this is beginning part of an answer to Justice Gageler’s question – of course, one looks at all the terms of the provisions, the effect of which is part of the attribution of purpose which is necessary in order to assess incompatibility. I accept all of that.

We have, in the first of the offences, relevantly the concept of covert. The fact that I am concentrating on that is for reasons I have already sufficiently expressed but I should add this rider. Of course, there are other parts of the subsection (1) offence which manifestly bespeak – if I might call it, “compatibility”. In other words, it cannot be incompatible to seek to criminalise conduct which has a mind to exerting an influence which will prejudice Australia’s national security. So, that is easily conceded. There are good parts and bad parts, in short, we submit of both offences.

The same is true, obviously, of carrying on conduct with a view to influence which itself may be entirely communicative of a kind protected by the implied freedom. But it would also be obvious that it is bad if part of the conduct in question involves making a threat to cause serious harm. So, political debate by, for example, inciting violent attacks on fellow citizens, et cetera, is – and has always been – understood to be of a kind that would never be protected by a respectable implied freedom of political communication.

EDELMAN J: That is because there is no freedom at all.

MR WALKER: Exactly.

EDELMAN J: That is because independently of the implied freedom there is no freedom to engage in that activity.

MR WALKER: But because of that anterior state of affairs in the legal universe, it would never be within the freedom. So, we should not be misunderstood. There are aspects of these offences which, plainly, are not susceptible – amenable – to arguments about incompatibility. We are concentrating only on – focusing only on – influence which bespeaks in the two subparagraphs to which we have drawn attention in both offences which bespeaks that it is influence, whether it be for good or ill or indifferent.

KEANE J: Mr Walker, just in relation to your argument about illegitimacy of purpose. This argument that it is an illegitimate purpose to seek to prevent political speech that leaves undisclosed or non‑transparent the interest of the speaker ‑ ‑ ‑

MR WALKER: Yes.

KEANE J: ‑ ‑ ‑ the argument that that is an illegitimate purpose does seem to sit rather ill with what Chief Justice Griffith and Justice Isaacs said separately, and at some length in Smith v Oldham. Is it not the case that the idea of a law that seeks to ensure transparency as to the interests of the speaker is not only not illegitimate, but perfectly compatible with the representative – with representative democracy?

MR WALKER: I have to face that, it is right – close to the heart of what I am saying about incompatibility, and may I attempt to do it here and now, this part where you will pick up what Justice Gageler has asked me about covertness. May I preface it by reminding you of what we have tried to convey in our written submissions in‑chief, in paragraphs 38 and following about covert. We contrast it with clandestine. I do not wish to partake of argument by mere assertion as to the idiomatic or colloquial understanding of the word. Whether covert is just, as it were, a neat opposite of overt may not by very useful for your Honours. In ordinary usage, covert, we submit, bespeaks an impropriety – that is a depreciable attitude or form of conduct, and is to be contrasted with a state of affairs which is exactly the same with respect to the information in question, but which is neither depreciable nor improper, such as confidential or private.

Now, in our submission, if covert is to be read as meaning anything which is not overt – that is, any non‑disclosure including for the entirely proper purposes of preserving privacy or confidentiality – then, in our submission, there is an overreaching which combined with the lack of any national safety aspect of the information in question, amounts to an incompatibility with the freedom, in the following way.

Justice Keane raises a matter which we can see in later legislative history, and, indeed, in this Court’s reasons and decisions in cases about the implied freedom where attribution required by electoral legislation of political advertising to named and responsible persons is a form of transparency.

One also has, as your Honours appreciate, as a kind of companion – not necessarily a cognate piece of legislation – the Foreign Influence Transparency SchemeAct 2018. So, it would be not possible to submit that there cannot be, compatibly, with the implied freedom, laws that require attribution, or, in colloquial language, people owning up to what they have said. The administration of justice reflects this in long‑established procedures, now partly legislated, with respect to preliminary discovery about the identity of speakers or writers, for example.

However, it is not the case that privacy or confidentiality or non‑disclosure ‑ that is, positions that may be within the meaning of “covert” in these provisions and, if they are, that informs and advances our argument – it is not the case that those are qualities of speech which can be seen to render that speech a priori amenable to control by Parliament, notwithstanding that the content is entirely of a kind the freedom is intended to protect that is political debate and persuasion.

EDELMAN J: That then means that this is not really a submission about illegitimacy of purpose but it is a submission that for a core purpose that is concerned with transparency, there has been overreach in the sense of a lack of reasonable necessity in the use of the word “covert”.

MR WALKER: Yes and no. Yes, we do enlist this argument in the next part of our submission but we would seek to persuade your Honours that we can also use it at the legitimacy point. Your Honour says it is not really a matter of legitimacy. I am seeking to enlist it at the legitimacy point as well as later at the disproportionate point.

GAGELER J: Mr Walker, if “covert” means secret and the fault element is intention, what is left of your argument?

MR WALKER: That keeping your private political discussions secret is entirely proper for a free population, not all of whom wish to be involved in the public hurly‑burly of political debate, not all of whom are required ever to put their name to opinions which they set abroad. That is the nature of social discussion and political communication but not everyone has to say, “I have a view and it is my view and it is the one I have today”, et cetera.

KEANE J: No, you do not have to say, “I have a view”, but if you are saying that you have a view, the idea that it is illegitimate to require you to say who you are does seem to be inconsistent with the view that was taken back in 1915 and has never been gainsaid.

MR WALKER: Your Honours, I am of necessity suggesting that if “covert” simply means secret in the same way that private dealings are secret or not disclosed, then, in our submission, this Court has never attended to that aspect of the quality of political communication sought to be protected by the Constitution.

KEANE J: That is partly because the very notion of the implied freedom only arises in the context of public affairs. There is an awkwardness in speaking about confidentiality and private values, or confidentiality and privacy as values that are engaged by the considerations that support the implied freedom. The implied freedom is about a limitation on governmental power to prevent public speech, participation in the affairs of the polity.

MR WALKER: Not only public speech. I accept that it is a challenge in my advancing of an incompatibility argument to put to the forefront, as we need to because of the word “covert” or “concealed” or “not disclosed” in the two offences – it is a challenge for my argument to say why that informs an incompatibility analysis. I accept that.

I would seek to meet that challenge in this way, that though a most obvious – the most obvious form of social activity protected by the freedom is public discourse, where there is no inhibition on your identity being named and your contribution to the discourse being widely published, broadcast – that is a very important aspect of it, but it would be wrong and, in our submission, contrary to the values of a society whose politics include, for example, secret ballot – it would be wrong to say that political communication that ought to be free from governmental interference is confined only to those who are willing to stand up and suffer brickbats as well as bouquets in public.

It ought also to protect familial discussion of politics, very small group discussion of politics, club discussion of politics, Chatham House Rules discussion of politics and the persuasion that is exercised in closets as well as in the marketplace is equally valuable for political discourse and that choosing to limit your direct influence by limiting to a private circle, secret if you like, those who hear your contribution is, in our submission, not at odds with the values sought to be protected by the freedom.

If that be correct, if that be correct, then there is nothing in the pattern of legislation which I have recognised, nor in judicial utterances long predating an explicit appreciation of the constitutional aspect of the freedom. There is nothing contrary to the notion that it is incompatible with the freedom to seek to control communication because it is covert, meaning simply secretive, not disclosed.

GORDON J: There is a difficulty about that submission, though, is there not, Mr Walker, and that is that there is an element of the offence which is I think possibly missing from that analysis. So if one accepts that “covert” is taking action to conceal, hide, keep secret, what we are keeping secret is that the communication is being engaged on behalf of or in collaboration with a foreign principal.

MR WALKER: I entirely accept that that is ‑ ‑ ‑

GORDON J: That is the bit that is missing from this analysis.

MR WALKER: I have to come to it. I am about to come to that. There are two elements. There is the covert bit about which I think I have finished what I want to add by way of address to what we have written.

GORDON J: Can I ask one aspect about that? Do you accept that when one looks at the categories of conduct in (d) that they are all taking action steps? They all involve taking action to conceal or hide, to make a threat, to make a demand, and that (ii) and (iii) assist or might assist in the way in which you look at “covert” in its true sense, its true proper construction?

MR WALKER: Yes, it might. There is this difficulty. Of course I have to accept that in understanding what “covert” means, does it include what I have described in Pollyanna terms as entirely proper privacy or secrecy or non‑revelation of discussions of public affairs among a very small group, maybe just two people. If I am right about that, then this is a law that overreaches, which is why Justice Edelman’s question to me got the “yes” part of my answer – yes, it is important to the disproportion part of our argument. But we say it also informs the incompatibility because the freedom – I should not repeat myself – the freedom supports private closeted political discussion as much as it supports a newspaper column.

STEWARD J: Mr Walker, just so that I understand your argument and your construction of the word “covert”, on your argument would that include, for example, a person who votes in a federal election on behalf of a foreign government, if they go into the booth and secretly cast their vote? Is that as far as you would take it?

MR WALKER: Probably not. We would say the notion of a vote on behalf of a government is paradoxical. You only get to vote because you are not a foreign government, because foreign governments do not have the suffrage in our country. The fact that you may vote as ‑ ‑ ‑

STEWARD J: But you could cast a vote on behalf of a foreign country. You might get asked by a foreign country to vote in a particular way.

MR WALKER: The President of the United States may have said something which persuades one that in our elections you should vote in a certain way. There is no doubt about that. That would not be a vote on behalf of the United States of America.

STEWARD J: But is voting in a federal election a covert activity, on your view?

MR WALKER: Now, your Honours have me here in my argument about constitutionality. There are of course other arguments that may or may not ever happen. The way we would couch it is, if your Honours are persuaded that “covert” includes secret, without any deprecable or improper element, that is, the opposite of “overt”, then there is the incompatibility – first part of the argument – overreach and disproportion – other part of the argument. A secret ballot is – if that reading of “covert” found favour with your Honours, perhaps counterintuitively but nonetheless fairly within the concept of “covert”.

KEANE J: But a secret ballot is not an act of political communication, is it?

MR WALKER: No, it is the ‑ ‑ ‑

KEANE J: The ballot is the end of political communication.

MR WALKER: No, I entirely accept that. I think Justice Steward was drawing attention to the exercise of a democratic or political right, or duty. In our submission, it plays no part in our analysis that there is a secret ballot – why I referred to a secret ballot is that it can hardly be said that there is a value protected by the Constitution with respect to political communication only on the basis that everyone declares where they stand on every political issue. That would be a monstrous tyranny, one imagines, contrary to familial concord, as well as one would have thought, social courtesies, that you had to declare your position on everything.

In our submission, it being for those reasons if “covert” means secret – deliberately, intentionally not revealed, kept private – then, in our submission, these are provisions which are incompatible because they are aimed where the provisions are simply as to paragraph (d) in subsection(i) the “covert” part of subparagraph (i), and in subsection (2), “conceals from, or fails to disclose to”. Where that – as in these warrants – is in question only, then in our submission the incompatibility appears.

EDELMAN J: If “covert” did have those broad connotations, why could it not be read down to have the narrower meaning?

MR WALKER: In a criminal case one would no doubt argue that, in my position, yes. How it gets read – this is going to come up to what I call an invidious argument in our disproportion part of the case – how one would read it down is difficult, it is covert or involved deception – the warrants in this case limited our interest to “covert” – much covertness, as a matter of idiomatic English, will involve deception, if only the familiar position of deception by non‑disclosure, but not all deception is thereby covert, though much of it will be.

Concentrating only on “covert”, it being a different expression from “involving deception”, an argument against reading down “covert” would be that it must mean something other than deception and that, etymologically at least, “covert” is the opposite of “overt”.

For a criminal accused, one would obviously be urging that the word “covert” to be deployed after all in instructions to a jury – the word “covert” must mean something deprecable or improper and that family privacy or club confidentiality is neither improper nor deprecable.

EDELMAN J: Does that then not tell us that one is not dealing with the purpose of the provisions, if it is a provision that might even arguably be one that can be read down?

MR WALKER: There is that possibility, yes, your Honour. Can I move then to the proportionality analysis. Can I pass relatively quickly in address over what was written concerning one of the familiar resorts which is other less obtrusive alternatives. I do not wish to spend much time on it. This is not a straightforward case of, as it were, crafting a legislative response for an identified mischief which itself does less violence to the protection granted by the implied freedom. It is not straightforwardly that case.

What was drawn to attention – I do not wish to elaborate – is that there are of course the espionage offences, which are directly and conventionally foreign interference as a mischief being the object of very significant criminal provisions which all have to do with, ultimately, harm to our national security.

To put it another way, it is not mere “foreignness” because, as your Honours may have seen from passages of some of the material included in the stated case, I draw attention without taking you to it, to the 2017 White Paper in the special case book 177, 182 – I do not want to dwell on it - but it suffices to say that the Australia whose Parliament enacts this legislation is one that is not only historically a settler society in the vast majority of the population, but is also thereafter a migrant and culturally diverse society with what are called, almost by way of a term of art in this area of discourse, diasporas.

Whether or not all of us who are not indigenous by definition belong to one or other diaspora may be doubted, bearing in mind the functional understanding of “diaspora” as a group maintaining a self‑conscious link with another country, but it is clear from the material to which I have given two references, that a background with respect to the reach of such provisions to criminalise conduct includes the notion that it cannot be foreignness alone which, as it were, as a basal proposition in this Court carries with it stigma or the mark of Cain because all the diasporas are, by definition, existing because of a link with foreignness because all of us descended from settlers have that foreign connection and because, frankly, cultural notions such as western civilisation depend upon and are essentially foreign – or to put it another way, in what sense are any ideas foreign?

Now, it is for those reasons, in our submission, that the main argument, once one moves away from the alternatives that we have canvassed in writing such as not having the law at all because there is the espionage offences to look after it, such as simply attending to the FITSA scheme, which has exemptions that bespeak the plain non‑necessity according to Parliament of having a register of people with connections to foreign principals – there are significant exemptions to which we have drawn attention – the real burden of our argument on disproportion that I wish to address in supplementing our written argument, is that the invidiousness of each of these offences and both of these offences with respect to the limits they express, very significantly criminally sanctioned, on communicative conduct, is such that they – given the relative importance of the values which may be competing – can be seen to have gone too far. The figure of speech we call in aid is the overreach, but there is also, more homely, the “sledge hammer and nut” notion.

Can I try to explain what we mean in particular. If I take the subsection (2) offence, the requisite disclosure, that is, the material which would otherwise be concealed is simply described as the circumstance in paragraph (b). That is one that I have dubbed the connection with a foreign principal. Those are matters where the mental element, the fault element is recklessness, so that there is the degree of knowledge, namely being aware of a substantial risk that the circumstance exists or will exist, and then the value judgment of whether it is unjustifiable to take the risk in the circumstances known.

Those are diffuse, temporally varying and of their nature relatively subtle questions. Whether you are permitted without committing an offence to engage in conduct which evokes the need to consider the possible application of 92.3(2) to (i), will therefore involve, among other things, considering how you disclose or refrain from concealing matters about which you have no belief – that is you believe to the contrary – though a jury may regard you as thereby having committed the element which is recklessness.

That, in our submission is, to adopt a figure of speech from another but not unrelated area, to exert a chilling effect of a kind which, given the intended benefit of the implied freedom, ought to be carefully avoided if possible, that is, a chilling effect or a penumbra effect of provisions of this kind threaten the salutary nature of the protection in a way that shows disproportion of means to the end and, in our submission, suggests that if connection with a foreign principal is the relevant mischief then a registration system such has been partially but by no means completely attempted with FITSA, is the obvious solution and if what I will call harmful, that is harmful to Australia, ideas or policies is in question then the espionage offences entirely suffice.

GORDON J: But is not espionage directed at a particular aspect of that conduct, i.e., disclosure of information rather than influence?

MR WALKER: Not all of it. Yes, that is part of it, but in our submission the problem with influence being identified – I do not want to return to my incompatibility argument – is that if it does not have an adverse consequence then it is, in our submission, plainly not very important.

It cannot be important for Australia to be spared good ideas from abroad and Australia in its consideration, as the White Paper to which I have referred makes clear, considers one of the virtues or merits of having its own diasporas – that is, Australians abroad as well as persons with overseas connection living here – is precisely what is sometimes called the soft‑power influence in other places, to our benefit.

We can hardly say that it is a bad idea that is per se not only compatible with but also proportionate as accommodating the protection to identify some idea, thought or policy as foreign and that be an end of the inquiry. It would be impossible to understand multilateral treaties, particularly the UN Charter, in that light.

It is for those reasons, in our submission, your Honours, that the disproportion appears because of the invidious nature of the judgments by which one would understand, particularly concerning the recklessness fault element of the connection with a foreign principal, the limits beyond which one cannot go without committing a very serious offence.

KIEFEL CJ: Mr Walker, for the purpose of subsection (2)(c), would the prosecution have to establish that the conduct in question could influence another person in relation to the matters in (i) and (ii)?

MR WALKER: I think the answer to that is yes, although care would need to be taken to step through the linguistic gates required by 5.4. Your Honour puts to me “could”. The statute is “will” but “could” ‑ ‑ ‑

KIEFEL CJ: That is at a minimum. It would have to establish at a minimum ‑ ‑ ‑

MR WALKER: Quite.

KIEFEL CJ: ‑ ‑ ‑ that it could, because it would not be enough for it to say there was always this vague possibility. It would have to have some air of reality about it.

MR WALKER: Your Honours appreciate that I am not at pains to ease the path for a prosecution in the interpretation of these provisions and in answer to the Chief Justice, yes, the requirement under 5.4 is being aware of a substantial risk, nothing merely theoretical, aware of a substantial risk that the circumstance exists or will exist. The circumstance there is connection with a foreign principal. I think that would have to be present tense only.

KIEFEL CJ: The point of the inquiry, of course, is that it is not just a focus upon a person being reckless in their conduct, not caring or whatever. It is reckless as to whether there is this risk that the legislation is attempting to guard against.

MR WALKER: Yes.

KIEFEL CJ: So “reckless” has to be understood in its proper context.

MR WALKER: Yes, I entirely accept that and the best way to do it is to use what, we would respectfully submit, is the plain language of 5.4. So that the person has to be – in engaging in the conduct has to be aware of a substantial risk that the foreign principal connection exists.

KIEFEL CJ: Yes.

MR WALKER: And, having regard to circumstances which are diffuse – this is the invidious – this feeds the invidiousness aspect of our argument of disproportion or imbalance that, having regard to all those circumstances:

unjustifiable to take the risk –

That, in our submission, casts such a diffuse, subtle, difficult cloak of serious criminal jeopardy over conduct which, in a case like the present – confined as it is by the terms of the warrant – that is, the selections made from the possibilities in the offence provisions – requires nothing of harm to be in the offering to Australia and does not involve deception or threats, et cetera.

EDELMAN J: The alternative that you posit of registration would have to be, on your case, a registration regime that was not dependent upon recklessness then, would it?

MR WALKER: Yes, that is right. Being reckless as to a foreign principal connection – where the connection is with oneself – is itself a difficult and, we submit, invidious notion – bearing in mind that a person who is held criminally reckless does not have to be shown to have had what I will call a wicked belief – can have had an innocent belief but the jury believes that combined they obviously – the accused obviously did not see the substantiality of the risk.

EDELMAN J: But recklessness might have real room to operate in relation to provisions, albeit ones that we are not concerned with, but such as (2)(b)(ii) in relation to funding, for example.

MR WALKER: Yes. Who is paying for this, as an unanswered question would be, one imagines, a very important avenue of investigation by the authorities - yes. But I am concentrating on our case and the overreach and disproportion and imbalance that we say the provisions selected by the warrant for our case then, no doubt, severably the case which does not involve any allegation of funding – recklessness as to funding, I should say – the case that involves only covertness and not deception, the case that involves only not disclosing, that is, choosing not to disclose – all of that, in our submission, adds up to the overreach, particularly by the invidiousness of judgments necessary to know whether you are behaving criminally or not – very serious criminal offence – judging by the available penalties and, in our submission, thereby having – in the very area which is explicitly singled out by these laws for attention – namely, communicative influence – an effect on the implied freedom.

That completes what I want to say about the constitutional matter in supplementation of what we have written. The effect on the, what I will call consequential and responsive orders under section 3LA needs no further attention from me in address. It will follow whatever outcome the arguments already presented have.

Can I then turn to the question of relief in light particularly of the manifest reality of these warrants having been executed and, as your Honours know from the special case, some of the material having been already returned and some not. In our written argument, in particular in our paragraph 60 we have, with respect, identified what we call the juridical basis for the relief we seek as having been identified by Justice Gageler in Smethurst and by Justice Gordon in Smethurst at paragraphs [130], [183] and [186]. I do not need to go to them.

But can I, as we have done in paragraph 17 of our outline for today, draw to attention that as a foundational step in reaching the proper exercise of discretion as to relief, the plurality in Smethurst in paragraphs [99] and [100] identify the important public interest - informs the question whether there ought to be inhibition felt about return of material.

Now, I do not wish to canvass further than we already have in written submissions the familiar considerations, some of which lie in prospect, but solid prospect such as the law’s approach to illegally obtained evidence. What I wish simply to draw to attention is that one simple way of vindicating that really significant public interest if we were otherwise correct in any particular way of rendering the execution of the warrants unlawful, it can be seen in admittedly a slightly different area of discourse to which we have drawn attention in our paragraph 18 in our outline.

We have supplied copies, but your Honours scarcely need it - I do not want to take you to it. Paragraph 100 of Project Blue Sky (194) CLR 355 at 393 of course contains the, we would submit, elementary, and for that reason, important proposition that even where the process of interpretation yields in accordance with principle the non‑invalidation or non‑avoidance of subsequent steps for states of affairs in administrative law by reason of a detected anterior failure to comply with the law, even when that is true, nonetheless if reached in time, unlawful being unlawful, and the response of the law being to do what can be done appropriately about unlawful states of affairs, an injunction can be granted. Mostly, of course, it would not be realistic in most Project Blue Sky arguments because the

caravan has moved on and the question as to whether it reaches an impassable roadblock is the Project Blue Sky question.

But if something can be done with an unlawful state of affairs detected sufficiently by an injunction, including a restorative injunction, then, in our submission, the simplicity of the approach in paragraph 100 of Project Blue Sky provides a satisfying basis for it.

EDELMAN J: You say that applies in the absence of any private law right such as in relation to the data and ‑ ‑ ‑

MR WALKER: I do. That is why we have called it in aid as a public law authority, yes. So, I am not talking about property rights which, so to speak, can look after themselves.

GORDON J: Mr Walker, you may have answered this question earlier in response to questions from both the Chief Justice and Justice Steward, but I would be grateful if you could revisit it. If you fall between two stalls so that the validity of one warrant is upheld and the other is not, and you lose the implied freedom argument, what relief then goes and how is it to be framed because it seems to me that we are in a difficult position about that. As I said, you may have answered it, but I would be grateful if you could revisit it.

MR WALKER: Would your Honours just give me one moment?

GORDON J: Certainly.

MR WALKER: May I be so bold as to suggest that a better distinction is between those parts of the warrants that deal with the two offences.

GORDON J: That is what meant to say. I meant to say that if you were successful in relation to one of the offences but not – I apologise. I was inarticulate.

MR WALKER: No, not at all; that is how I understand it. The answer is I think in accordance with what I said earlier to Justice Gageler that because we cannot point to material produced with respect to one offence but not the other there could be no relief.

GORDON J: Thank you.

MR WALKER: If it please your Honours.

KIEFEL CJ: Yes, Mr Solicitor.

MR DONAGHUE: Your Honours, I propose to structure our oral submissions in this way, by starting with the question of the validity of the warrants, then by taking your Honours briefly to some of the facts in the special case, then by making three points in relation to the construction of the offence provisions before turning to the implied freedom analysis and Mr Herzfeld will address the question of relief.

So, starting with the warrants, in our submission, it is important not to lose sight of the starting point in the text of section 3E(5)(a) of the Crimes Act, which requires the warrant to state the offence to which the warrant relates. It does not require, and an authority does not hold that it requires, particularisation of the elements of the offence or the way in which the suspected facts might prove the offence in the way that is necessary in an indictment.

Instead, the historical concern which your Honour explained in Smethurst and that has been picked up in the Federal Court authorities was with the revulsion to the historical practice of general warrants where law enforcement authorities were allowed to range widely, rather than to have their enquiries limited by reference to a particular and identified offence provision.

KIEFEL CJ: Mr Solicitor, I take it that you accept there are some shortcomings or areas which could have been more clear in the warrants.

MR DONAGHUE: I accept that in one respect in relation to one of the offences, yes.

KIEFEL CJ: After Smethurst one would have thought that these would have been meticulously drawn.

MR DONAGHUE: Your Honour, one of the ‑ ‑ ‑

KIEFEL CJ: Particularly in the case which was likely to be as controversial as this, and if there is any doubt, then, new warrants might have issued.

MR DONAGHUE: In my submission ‑ I accept what your Honour says but, in my submission, this warrant, while there is an identifiable – while there is room for criticism in relation to one aspect of the statement of one of the offences, part of the context which explains the approach that the courts have traditionally taken to search warrants, is that they are not issued as part of a judicial process, they are an investigative tool sought by police, not by lawyers, and not necessarily with the benefit of ‑ ‑ ‑

KIEFEL CJ: Quite so, and for the benefit of both parties they are usually dealt with by magistrates, not the High Court, in relation to determining disputes about them.

MR DONAGHUE: Indeed. So one comes here in Smethurst, or in this case, and has a level of legal focus directed to these elements, which is why, in our submission, your Honours in Smethurst and in the other cases have emphasised that one does not need the particularity of the indictment, what one needs is a sufficient guidance as to the area of the search.

Bearing in mind that investigative context, it is, we respectfully submit, important to recognise that sometimes it will just be impossible, based on what the police know, to identify all of the elements, or the way that they might be made out. To take an example from these offence provisions, if we posit ‑ ‑ ‑

KIEFEL CJ: Mr Solicitor, I am sorry to interrupt you, are you suggesting that this warrant was drawn by someone other than a lawyer?

MR DONAGHUE: I actually do not know, your Honour.

KIEFEL CJ: For the future, in relation to special cases, it may well be that this Court adopts procedures which have any disputes about warrants determined in other courts by remitter if necessary.

MR DONAGHUE: Yes.

KIEFEL CJ: So that this Court can focus upon the constitutional aspects of a dispute. I think Smethurst probably said as much as needs be said about the requirements of a warrant. It may not be thought in the future to be necessary for this Court to go into whether – how that should be applied in a particular case. It is not directed to you, Mr Solicitor, you realise that.

MR DONAGHUE: No, I understand what your Honour is saying. I would make the point that while the Commonwealth have attempted to defend the warrant in Smethurst, it had defects of a kind that are ‑ ‑ ‑

KIEFEL CJ: Quite so.

MR DONAGHUE: ‑ ‑ ‑ quite of a different order of magnitude to any criticism that might be made of this warrant.

KIEFEL CJ: But one might expect that police, like a prosecuting authority, would take steps, in view of what was said in Smethurst, to ensure so far as possible, but in particular in relation to serious matters which are likely to come before this Court, to ensure that warrants are drawn by persons who have legal qualifications, and preferably some prosecutorial background.

MR DONAGHUE: I hear what your Honour says in that regard.

KIEFEL CJ: Yes.

MR DONAGHUE: In that respect, might I respectfully submit that one matter that might assist that perhaps could arise out of this case in that respect is that your Honours are faced with submissions put by the plaintiff here that squarely assert that it was necessary here, in the circumstances of this case they say, for the warrant to identify the elements of the offence, but that is one of the arguments that we have come to meet and, in our submission, that would be a wrong turn in the law.

And can I ask your Honours to consider this possible example before coming very briefly to Smethurst – I will not spend long there. But one could imagine a situation here where the police are aware that a person is secretly meeting with the representatives of a foreign principal, perhaps with people they suspect are intelligence officers, and they might be aware that that person is making considerable efforts to ingratiate themselves with a particular politician.

If I ask your Honours to assume just those facts. Police know that those things are happening. In my submission, it would be possible, in that situation, that would be a situation that would warrant investigation by the police because there would be a real basis to suspect that what was happening, linking the foreign intelligence agents and the efforts to ingratiate with the politician, was conduct of a kind that is captured by this offence provision. But if it was said that in order to get the search warrant you have to be able to particularise which of the various limbs or subcomponents of the limbs in (b), in (1)(b), or indeed which of the components in (c)(i) to (iv) are engaged, that would present a problem for the police at that stage, even though the facts would provide a proper basis to suspect that what was going on was foreign interference of a particular kind warranting investigation by the law enforcement.

It would be possible, in my submission, for the police to frame an application for a search warrant that demonstrated a reasonable suspicion of an offence and it did frame sufficiently guidance as to the error of the search in that scenario even though, on the facts, you could not get anywhere near what you would need to do for an indictment.

Now, obviously, down the track, after the warrant has been executed, material has been seized, you would need to do much better in order to afford procedural fairness to a person confronting criminal charges, but it would be, in our submission, highly undesirable to cut off the access to this investigative tool by requiring too much at the stage of what is a tool in aid of law enforcement, in the investigation of offences.

And one sees that kind of focus in some of the Federal Court cases, Caratti is an example in the Full Court, I will not take your Honours to it, it is 257 FCR 166 at 21 and 24, a focus on those kinds of considerations. In our submission, Smethurst says nothing that is inconsistent with that idea, and does not lend support to the proposition that one needs to be able to particularise at the level of the elements of the offence.

KIEFEL CJ: I think the term used, at least on one occasion in Smethurst, is “nature of the offence”, not the elements.

MR DONAGHUE: Indeed, I think a few times, your Honour, the nature of the offence in question. So, could I ask – I assure your Honours I will not detain you long on this, but could I ask you to turn briefly to Smethurst. It is Part D, volume 3, tab 50 in the joint book (2020) 94 ALJR 502.

KIEFEL CJ: Mr Solicitor, we might leave that for after the luncheon adjournment but I think that Justice Gageler has a question for you before we adjourn.

GAGELER J: Mr Solicitor, you will be coming to this after lunch. You said you would take us to some parts of the special case; when you do I would be assisted if you could focus on paragraph 14 which is about WeChat and, particularly, two sentences. About two‑thirds of the way through there is a statement that:

Messaging applications that are encrypted for privacy are readily available and widely used by persons in Australia and around the world as a means of facilitating global connectivity and sharing both information and opinions.

And then it says:

However, such applications are in some circumstances also used by persons seeking to evade detection –

et cetera. My question is ‑ and this focuses on the content of the word “covert” ‑ at what point does use of a social media service become covert on your construction of that term?

MR DONAGHUE: I can attempt that now or I can attempt it after lunch. Perhaps, your Honour, I will attempt it after lunch, given the time.

GAGELER J: Yes.

KIEFEL CJ: The Court will now adjourn until 2.15.

AT 12.44 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.14 PM:

KIEFEL CJ: Yes, Mr Solicitor.

MR DONAGHUE: Thank you, your Honour. Your Honours, I was taking you to Smethurst, which is in Part D, volume 3, tab 50 of the joint book. Your Honours will recall that the joint judgment of your Honour the Chief Justice and Justices Bell and Keane was with respect to the warrant, the liberty issues the subject of agreement by your Honour Justice Gageler at 115, by Justice Nettle at 142 and by Justice Gordon at 166.

As we read your Honour Justice Edelman’s judgment, the discussion of principles is to the same effect. So the parts of the joint judgment to which I am about to take your Honours have the appearance of six members of the Court. The relevant discussion starts at paragraph [22] under a heading “A statement of the offence”. In that paragraph, the origins of the requirement are identified as a response to:

the common law’s refusal to countenance the issue of general warrants –

and to confine them, general warrants being, as their name implies, warrants that contain no specification of the object of the search and purported to confer a free-ranging power of search. So the requirement to state the offence is directed to avoiding the mischief of the general warrant.

In paragraphs [24 ]and [25], your Honours refer back to this Court’s recognition in George v Rockett of the fact that there is a balance now struck in search warrant legislative regimes between:

the need for an effective criminal justice system –

on the one hand, and:

the need to protect the individual from arbitrary invasion of their privacy –

on the other, and then in [25] recognise that:

the balance struck by the legislature to a greater extent favours the public interest in the investigation and the prosecution of crimes.

So that balance is there, but Parliament has given considerable significance, in our submission, to the investigative functions of a warrant. But, nevertheless, the requirement to state the offence does provide, to quote:

a measure of protection to persons affected by a warrant. It does so in large part by ensuring that the object of the warrant is identified by reference to a particular offence -

and then at paragraph [28], your Honours make clear that:

It is not necessary that the warrant state the offence with the same precision and specificity as is required for an indictment. The purpose of a warrant is not to define the issues for trial.

If I could just ask your Honours to note that footnote, footnote 19, is a reference to Corbett at paragraphs [95] and [97] – I am going to take your Honours to that in a moment.

The power to issue a search warrant is given in aid of criminal investigation as well as finding evidence which will be admissible at trial.

So the investigative purpose is again emphasised:

What emerges from the cases is a test of sufficiency to indicate the areas of the search.

That, in our submission, is the question that determines the challenges to the warrant that are brought by the plaintiff in this case – are they sufficient to indicate the area of the search?

Your Honour Justice Edelman reasoned, we submit, to the same effect. If your Honours could turn to paragraph [204] in Justice Edelman’s judgment, your Honour expressly made the point which we understand to be consistent with the plurality reasons, that a warrant does not become invalid:

merely because it misstated the terms of the offence . . . A misstatement will only cause a warrant to be invalid if it has the effect that the warrant does not have the minimum required degree of content.

Paragraph [207], your Honour, a few lines down, five or six lines down:

Necessarily, since a search warrant will often precede a charge, the minimum degree of content is less than the particulars that would be required in an indictment . . . the warrant must be of sufficient content and clarity to give reasonable guidance -

So, in my submission, that is to the same effect as paragraph 28. In [209] of your Honour’s reasons, your Honour picks up some of the Federal Court cases which have upheld warrants that did no more than identify the section and subject matter in various ways, obviously in terms that fall well short of particularising all of the elements that would need to be satisfied.

So, our submission is that all members of the Court in Smethurst identified the govern question as not one of a particular statement of the elements, but instead as sufficient guidance in an investigative context to indicate the area of the search that was authorised. In doing so all members of the Court drew a distinction between on the one hand the level of particularity or specificity that you need in an indictment, and on the other, what you need in a warrant, particularly by reference to Corbett.

If I could ask your Honours to turn briefly to Corbett, just to flesh that distinction out a little - Corbett (2007) 230 CLR 606 is Part C, volume 4, tab 24. Your Honours will recall that the passages mentioned were 97 and 99. Those passages appear in a joint judgment of Justices Callinan and Crennan, with whom Chief Justice Gleeson and Justice Gummow agreed respectively at paragraphs 1 and 3, so this is four members of a five‑member Court. Paragraph 97 details what is required in an indictment, by reference to Justice Dixon’s description in Johnson v Miller. In an indictment:

“[A] defendant is entitled to be apprised not only of the legal nature of the offence –

So one has that requirement in common:

but also of the particular act, matter or thing alleged as the foundation of the charge –

for the purpose identified in 98 as defining the issues for trial. The contrast is then drawn in 99 in the quote from Beneficial Finance with the degree of particularity required for the statement of the offence in a warrant, and Justice Burchett said:

“The authorities make it clear that the statement . . . need not be made with the precision of an indictment. That would be impossible, and indeed to attempt it would be irrational, bearing in mind the stage of the investigation at which a search warrant may issue. The purpose . . . is not to define the issues for trial; but to set bounds to the area of search -

In our submission, to contend, as the plaintiff does here, that what was necessary was a precise statement of the elements and the way that the offence was alleged to be constituted is to cross the very line that is drawn distinguishing between what a statement of the offence requires on the one hand, and what an indictment requires on the other.

In our submission, these warrants comfortably satisfied the requirement to indicate the area of the search. Like my friend, I will focus on the first warrant which your Honours see relevantly at 62 and 63 of the special case book. The first thing to note about them – and I do not suggest in like Smethurst this is decisive, but it remains relevant, in my submission – is that in both cases they identify – they state the offence expressly by reference to a particular section number of a particular Act. That, while not determinative, in our submission goes some way towards meeting the requirement to state the offence.

There are very few cases where a warrant that does that has been held to be invalid. There are some - Smethurst is an example – and there are one or two others we have been able to find, but mostly the warrants that are said not to state the offence lack that detail. They get the section number wrong, they get the Act wrong, they do not identify an offence at all, and then the debate is about whether there is sufficient information to state the offence.

Here, there is a date range given, the plaintiff is named, the offence is identified by reference to its number in the Act, and then one has the very considerable amount of detail provided in (i), (ii) and (iii) - (i) itself, in my submission, providing ample guidance as to the area of the search that is to be authorised, but I will develop that in a moment.

GORDON J: Did you say paragraph (i) on its own?

MR DONAGHUE: Paragraph (i) on its own, in my submission, would be enough. In terms of the operational realities of this, this tells the executing officers they are looking for information in relation to conduct concerning the plaintiff with others engaging on behalf of the Chinese state with Mr Moselmane to provide support or encouragement or advocacy of Chinese interests. In my submission, that tells you a lot about what is being looked for when someone is executing this warrant, enough, in my submission, to be far removed from the general warrant that is to be deprecated.

Can I, before coming to the details of paragraph (i) and the other paragraphs, make this overarching submission. I am going to start with what the plaintiff has identified in writing as their third attack on the warrant, which is also where Mr Walker started. The reason I propose to do them in that order is that it is only the third attack that relates to both of the two offences that are identified in the warrant, both the subsection (1) and the subsection (2) offence. The other two arguments are only about the subsection (2) offence.

That means, in light of the concession the plaintiff has rightly made about severance, that unless they win on the third argument the warrant is at least partly valid and that means, as Mr Walker conceded in response to questions from your Honour Justice Gageler and your Honour Justice Gordon, that unless the third attack succeeds, all offences are invalid, one or other of those. There cannot be any relief by way of the issue of the return of documents.

Mr Walker has conceded that there is no basis on the material before the Court to distinguish between which documents were seized by reference to which offence. So if the 93.2(1) offence is valid as stated in the warrant, which it is unless the third attack succeeds, that is the end of any question of return of the documents in the case, unless the provisions are invalid. So that is why I am going to start there.

The substance of the third attack is that the warrant did not state the offence because it failed to identify the foreign principal. We make two submissions in response to that argument.

The first is, assuming in the plaintiff’s favour that it was necessary to specify the foreign principal – and we deny that, that is the second answer - but assuming in the plaintiff’s favour that it was necessary to specify the foreign principal, this paragraph – as your Honours have seen at the top of page 63 of the special case book, says:

to advance the interests and policy goals of a foreign principal, being the Government of the People’s Republic of China (PRC) –

It states, in terms, that the foreign principal is the government of the People’s Republic of China. In circumstances where the warrant states that in terms it would, we submit, be an over‑zealous and technical reading of the most marked kind to say that even though – spelled out in black and white – is the identification of the foreign principal and the attachment of the label to that person as being the foreign principal, there was, nevertheless, a failure to state that information.

We understand the argument is that there is some other language there referring to the “Chinese State and Party apparatus”. The suggestion seems to be that that creates confusion in the mind – or has the potential to create confusion in the mind of an executing officer who might perceive there to be some relevant difference between the Chinese state, on the one hand, or the party apparatus and the government of the PRC, on the other.

The special case tells you something – sorry, before I come to the special case – just to link that statement of the identification of the foreign principal back to the Act – and your Honour Justice Gageler asked some questions about this this morning – in our submission, the government of the PRC is a foreign government principal within the meaning of 90.3(a) which says:

Each of the following is a foreign government principal:
(a) the government of a foreign country –

So, it falls within that. Because it falls within that – the foreign government principal – it falls within 90.2(a), which includes – within the definition of a “foreign principal” a foreign government principal. So, the government of the PRC falls within the statutory framework in that way. It may well be – indeed, we submit it would be the case that to the extent that it might be suggested that the “Chinese State and Party apparatus” are, in some way, identified separately they too would be a foreign principal because it would be a foreign political organisation within the meaning of 90.1 of the Act which defines such an organisation as including a foreign organisation that exists primarily to pursue political objectives.

To make that good, I should take your Honours to the special case – just in one respect for the moment – at page 55 of the book, paragraph 41.2 – where the parties have agreed that:

The PRC is a one‑party state governed by the Chinese Communist Party (CCP).

So, to the extent that your Honour the Chief Justice and Justice Keane asked some questions about this, there cannot be any doubt that in the context of the People’s Republic of China there is a high level of identity between the party, on the one hand, and the government of the country, on the other. Your Honours will also see some facts there about the United Front Work Department which is mentioned in, I think, paragraph 3, with respect to the second offence which:

is a CCP Central Committee department that coordinates and oversees ‘united front work’. United front work involves both overt and covert activity inside and outside China. The overseas functions of united front work include increasing the CCP’s political influence, undertaking activities to further the CCP’s political and strategic priorities, gathering information and developing and managing relationships with a view to encouraging actions and decisions that align –

That description of the function of the United Front Work Department brings it, in our submission, comfortably within the definition of a “foreign political organisation”, if that be necessary. Your Honours might also note, while you are at the special case, that if you go back one page to page 52, in paragraph 29, you will see that the special case records that the computers that were seized from the plaintiff, on examination by the AFP:

were found to contain information indicating, on the AFP’s assessment, that Mr Zhang has on multiple occasions met and communicated with representatives of the United Front Work Department.

So there is a factual link between the search that was carried out, the material obtained, the United Front Work Department. So, in our submission, just having regard to the express terms of paragraph 1 identifying the foreign principal as the government of the People’s Republic of China, even if it was necessary to state the foreign principal, that requirement was amply satisfied and therefore the third basis for the attack on the warrants fails and, therefore, for the reasons I have already identified, the warrants are not wholly invalid, and there cannot be any order for the return of any documents seized under them.

If we are wrong about that, then we would in any event submit that it is not necessary for the warrant to identify the foreign principal in order to indicate the area of the search. And the fact that it is not necessary specify that particular fact we submit is supported by the terms of 92.3(3), which has already been mentioned to your Honours. That is the provision that says:

the person does not need to have in mind a particular foreign principal –

So you can actually commit this offence without having an identified foreign principal in mind. If that is right, it cannot be necessary in a warrant investigating this offence to provide a level of detail that you would not need to have even in order to make out the prosecution. And that makes sense, we submit, because it might be the case – particularly bearing in mind that this is an offence involving recklessness – that the person is dealing with someone who is quite obviously acting like an agent of a foreign government and offering, for example, to pay a lot of money to someone to do something on behalf of that foreign government, but the person does not know who.

They are reckless, they should know that there is a substantial possibility that they are doing something that is prescribed, but they do not know on whose behalf they are doing it; that does not matter in terms of the commission of this offence. So for either of those reasons, the third attack on the warrant should fail, and therefore the warrants are valid. That pulls a lot of the sting of the other two warrant attacks, because really they do not go anywhere.

In terms of the relief that this Court might grant, other than the Court could grant relief, if so minded, to quash the part of the warrant that involves the statement of the sub (2) offence, but that would not have any further consequences, but for the sake of completeness, and very briefly, one of the other two attacks is the misstatement of the offence attack.

The proposition is that with respect to 92.3(2)(c), the warrant misdescribed the element because it did not identify that the relevant influence on a political or governmental process, or an Australian democratic or political right, had to be via a third person rather than – so it treated it as if it was direct.

In relation to that submission, we make the following submissions. First, that, as your Honour the Chief Justice put to Mr Walker, the way this offence works is really that that person, the intermediate person, is a means to an end. The warrant here identified the end, and that being so sufficiently, in our submission, indicated the area of the search even though it did not fill in the gaps as to how that end was to be brought about, and so there was nevertheless, despite the absence of any reference to that influence through a target, a sufficient statement of the offence; that is one answer that we make.

The next answer that we make is that, in our submission, reading the warrant fairly as a whole, its natural reading is the reading that your Honour Justice Edelman put to Mr Walker, that one would read it as if there appeared after the word “influence”, Mr Moselmane concerning processes relating to or words to that effect. And, in our submission, in support of that reading, one focuses on the opening three words, “In doing so”.

So, this recklessness element that is identified in paragraph (ii) is the link back to the conduct that is identified in (i), which is conduct whereby the plaintiff is said to have acted on behalf of the Chinese state by engaging with Mr Moselmane. So, it is that behaviour, the engagement with Mr Moselmane, that is then picked up by the words “In doing so” in (ii). While Mr Moselmane is not mentioned in (ii), in our submission, the only fair way to read it is that the recklessness as to the conduct involved influence on him, because he was the means by which paragraph (i) tells us that the plaintiff is suspected of having sought to bring about influence of the kind there identified.

So, bearing in mind those points and also the fact that like the sub (1) offence, there is a particularised date range, the offence is identified, the foreign principal is identified. There was, in our submission, ample guidance as to the area of the search, notwithstanding the fact that in the particular respect that I have identified, the framing of paragraph (ii) with respect to the subsection (2) offence can be criticised.

Finally, the last attack on the warrant is the failure to identify the target. Again, in our submission, that is not the right test. That might be right question if one had to state the elements, but it is not the right question if one has to indicate the area of the search. But, in any event, our submission again is that on any fair reading of this, it is plain that Mr Moselmane was the target, and one only has to go to subparagraph (iii) to see that. The plaintiff is alleged to have:

concealed from or failed to disclose to MOSELMANE ‑

That language exactly tracks the language of paragraph (d), which refers to “concealed from or failed to disclose to” the target. So, if one had the elements of the offence at all in mind, then it is apparent, in our submission, that that paragraph (iii), which obviously links to paragraph (d) of the definition of the offence, is identifying him as the target; that, in any event, being plain, we submit, from the context, including paragraph (i).

So, in our submission, applying the test identified in paragraph 28 of Smethurst, there is no reason to conclude that any of these warrants failed to sufficiently identify the area of the search. In our submission, they contained considerably more information than would be necessary in order to meet that requirement, and for those reasons your Honours should answer questions (1)(a) and (1)(b) of the special case no.

We accept, as Mr Walker put to your Honours, that it is not necessary to address the section 3LA orders separately because they stand or fall with the fate of the first warrant. So that, if the first warrant is valid, the 3LA orders are fine. Only if the first warrant is wholly invalid, would those orders be likewise invalid and so I do not need to say anything more about them.

Can I ask your Honours then to turn to the special case and can I start with the question your Honour Justice Gageler asked before lunch about paragraph 14 and if it is suitable to your Honour I will develop this submission a little later, when I come to the submissions I am going to make about “covert”. But the short answer is that we recognise, as the special case reflects, that encrypted messaging applications are widely used, for legitimate reasons as well as for illegitimate reasons. So the last line of that paragraph says:

ASIO assesses that encrypted communications impact on its intelligence coverage in most of its foreign interference investigations.

At 113 of the special case book you will see a bit more detail about that; 90 per cent of the investigations, ASIO says, are affected by that kind of communication. But our short submission is this. It is not, in our submission, enough for conduct to be covert that it takes place, the simple fact that it takes place on an encrypted app does not satisfy the element. What more is required is that the covert action, which of course, in our submission, has to be taken intentionally, has to be taken in order to hide or keep secret.

I will take your Honour, when I come to develop this, to the revised explanatory memorandum but there is an example given there of someone who shifts onto an encrypted app for the purpose of undertaking a particular communication. That would be conduct taken for the purpose of hiding or keeping secret the conduct and so in that kind of circumstance the fact of the use of the encrypted app would be relevant to proof of the covert element, but you would, in our submission, need more than just the fact that a communication had taken place using a platform of that kind.

KIEFEL CJ: That is to say the encrypted messaging service is used to evade detection as referred to in paragraph 14 of the special case.

MR DONAGHUE: Yes, to evade detection, to hide or to keep secret what is being done. It will all depend on the facts and, of course, we do not yet know if the plaintiff is charged, then the prosecution will need to particularise the way in which they seek to prove that covert element. They may, for example, be able to show that the encrypted messaging group that is referred to in the warrant was a group that used this service in a way that was different from other communications in which the plaintiff was engaging and those facts together would, in our submission, be capable of constituting proof of that element. But it is not the case that just because you are using WhatsApp, and WhatsApp is an encrypted app, that one can tick the box of covert conduct.

GAGELER J: So what more is needed is the purpose of avoiding lawful detection, is that right?

MR DONAGHUE: I would say the intention of hiding or keeping secret what is being doing.

GAGELER J: From?

MR DONAGHUE: Your Honour, I am not sure that one needs to go – obviously, this is one element of a multifaceted offence provision, so that ‑ ‑ ‑

GAGELER J: But it can be from anyone, surely.

MR DONAGHUE: Well, it might be that if ‑ one needs to – in the context of (2) ‑ sorry, I withdraw that. In the context of (1)(d), one is concerned with part of the conduct in (a) which has to be conduct that takes place in the circumstances identified in (b) which gives you the foreign connection. So we have conduct taken “on behalf of, or in collaboration with” and “directed, funded or supervised”, et cetera, and then with also the political overlay identified in (c).

If one ticks those boxes, if those ingredients are present, in my submission, it is not clear that one can insert into subsection (1) a requirement to keep it secret from law enforcement authorities, for example, or security authorities. The text does not say that. It just says that the conduct that you are engaging in which meets the requirements in (a), (b) and (c) intentionally is taken in a way that hides or keeps it secret, so that I am reluctant to embrace any notion that the person has to be consciously seeking to subvert law enforcement activities, for example, because the text does not say that.

KEANE J: In the context, would it not be keep it secret from the people sought to be influenced?

MR DONAGHUE: It might be. It might well be. That is obviously the focus of ‑ ‑ ‑

KEANE J: Why would that not be the vice? If the people who were being influenced know that they are being given information at the behest of the Chinese Communist Party, there is no vice in terms of the Act.

MR DONAGHUE: Your Honour, there is a difference between subsections (1) and (2). So, in relation to subsection (2) what your Honour puts to me is exactly right and that provision does not use the word “covert”, but there the vice is that you are keeping secret from the person you are seeking to influence the fact that you are doing it on behalf of the foreign party.

Subsection (1) though does not have that express element to it and it is possible to commit a sub (1) offence even if the person – a person who is being blackmailed, for example, could be aware of the fact that someone was acting on behalf of a foreign party, but that would not stop you from being able to – so somebody might, for example, because they are being blackmailed, be secretly engaging in particular activities – listening in on their boss at Parliament House when a conversation occurs or something. They might be doing acts that are covert, even though they know that there is a foreign agent in the picture. So it is not just about keeping things secret from the person who is being influenced. It might be from them ‑ ‑ ‑

STEWARD J: Mr Solicitor, does that mean that the distinction between (1) and (2) is that (1) might capture a secret conversation between someone who is acting on behalf of a foreign government and a politician where the politician knows that the relevant individual is in fact acting on behalf of a foreign government.

MR DONAGHUE: One might capture that, that is right.

STEWARD J: But their conversation is covert, in secret, and they have taken steps to do that, whereas (2) is all about, if you like, deceiving or duping the politician.

MR DONAGHUE: That is precisely right.

STEWARD J: I understand, thank you.

GLEESON J: Mr Donaghue, the warrant expresses the suspected offence as covert in that it involved communications over the private chat group. Does that description of the suspected offence have any significance in this case?

MR DONAGHUE: In my submission, it does not, your Honour. It might if this were an indictment and one had to say, well, is that ‑ there could be an argument about whether that is enough for indictment‑type purposes. But here, as an indication of the area of the search, it is saying, well, a thing that is significant to my suspicion is that this chat group is operating in a way that is private ‑ taking place over this encrypted app, I should say, rather than is private – and that is giving guidance to those who are carrying out the search. But I do not suggest that that would in and of itself be enough to establish the element in a criminal prosecution.

GLEESON J: Thank you.

MR DONAGHUE: We have summarised the difference between a sub (1) and sub (2) offence as the sub (1) offence being an illegitimate means offence – the foreign influence is being brought about by illegitimate means being the various means identified in paragraph (d) – whereas the sub (2) offence is a concealed influence offence as bringing about the influence by hiding the fact that someone is acting on behalf of the foreign government. They are different in their focus.

EDELMAN J: Sub (2) goes further than that. Sub (2) is also positive failure to disclose.

MR DONAGHUE: When acting on behalf of the foreign party, that is right.

GAGELER J: Sorry, I am still a little confused about who the secret has to kept from for the purpose of (1).

MR DONAGHUE: My answer to your Honour is that there is not a single answer to that question. It might vary depending on the facts. One thing that is important to – and I will develop this again when I come to “covert” – is that that covert element relates to all four of the limbs you see in (c). So that if – and there might well be a difference between (1) and (2) on the one hand, and (3) and (4) on the other, where someone is engaging in activity to support the intelligence activities of the foreign principal or to prejudice Australia’s security, then likely the covert conduct is hiding it from authorities. In most cases, one would expect that that would be so.

But that might not be the case in relation to (1) and (2), it might be enough – because these offences can be committed by hiding one’s conduct from the person who is sought to be influenced. There is an overlap between (1) and (2) in that respect and, if so, there it would be covert from the object of the influence rather than from the law enforcement authorities. It would depend on how the offence is framed.

Your Honours, in terms of the other parts of the special case that are important, can I invite your Honours to turn to page 53, where there is a heading “The phenomenon of foreign interference” ‑ ‑ ‑

GORDON J: Sorry, what page was that, Mr Solicitor?

MR DONAGHUE: At page 53, paragraph 37 of the special case. There is an introduction there of a recognition of the fact that foreign influence in and of itself is not necessarily of concern but that, towards the end of the paragraph, “influence on government”, where it:

is not disclosed or otherwise transparent, can have serious implications for sovereignty ‑

Then one sees on paragraph 38 the definition that ASIO uses, agreed for the purpose of this case as foreign interference being a particular kind of foreign influence – it is a subset of foreign influence, being:

influence that is undertaken in a way that is clandestine, deceptive and/or threatening –

and I will take your Honours in due course to the statutory concept in the ASIO Act that supports that concept. I will also take you to the second reading speech and extrinsic material that makes it plain that the provision with which we are now concerned is a response to ASIO’s advice about the growing threat to Australia of foreign interference which, in our submission, should be understood in that way.

The problem of foreign interference, understood in that way, is getting worse. There are details in paragraph 39 of a “growing global trend” of interference operations of that kind, and some examples are given from overseas. It is not rare – in the second half of paragraph 39 there is a reference to a study indicating that:

of the 97 national elections and 31 referenda in free or partly free countries (as defined by the study) –

over a roughly three‑year period:

in 20 countries (including Australia) showed clear examples of foreign interference.

It is getting worse in part, ASIO assessed, and this is paragraph 40, because it is becoming possible to conduct foreign interference in ways that it was not previously possible, in part because of cyber technologies and technological developments. I have already shown your Honours 41.2.

Turning then to the particular topic of foreign interference in Australia that is dealt with at heading F on page 55. It is recorded in the special case that the Act with which we are now concerned was a response to ASIO having reporting that:

Australia was a target of foreign interference . . . foreign powers clandestinely seeking to shape the opinions of members of the Australian public, media organisations and government officials to advance their own country’s political objectives.

It has identified various interference operations in particular ethnic and religious communities. And at the end of that paragraph:

ASIO’s view then (as now) was that espionage and foreign interference activity against Australia’s interests was “occurring at an unprecedented scale”.

Paragraph 45 records that:

Australia continues to be the target of sophisticated and persistent espionage and foreign interference activities –

It is on what the Director‑General called a “growth path”. Paragraph 46 assesses the sectors of the community at risk of foreign interference, including parliamentarians and staff at all levels, officials, media, business leaders, universities. Paragraph 48 identifies ASIO’s assessment of foreign interference as:

a serious threat to Australia’s sovereignty and security . . . national institutions, as well as potentially harming Australia’s interests –

in the various ways there identified. And paragraph 49 identifies that:

Foreign interference may also have consequences for liberal democratic systems of government, including potentially undermining –

amongst other things:

democratic rights and fundamental freedoms
. . .
the ability of citizens to make informed decisions
. . .
public trust in the policy decisions made by the government.

All of that is, we submit, fundamental to the resolution of this case for at least two reasons. The first is that that is the factual context, as indeed is expressly recorded in paragraph 44, in which the provisions now in issue were enacted, they responded to something that was identified in the second reading speech as a clear gap in Australian law in relation to foreign interference.

It was said, we have got espionage offences, but there is a clear gap in relation to foreign interference. And it is, we submit, those facts are also critical to an assessment of both the legitimacy of the purpose of the laws and of the importance of that purpose. This is, in our submission, an example of laws that pursue a purpose of the kind that was identified in McCloy as a purpose that would, if necessary, justify great burdens on the freedom.

Now, for reasons I will develop, we submit this law does not impose great burdens on the freedom but to the extent that it does burden the freedom, it does so in pursuit of, we submit, a compelling purpose because it is the defence of the Australian political system, the liberal democratic system of government identified in paragraph 49, from a serious and growing threat, a threat that is real and seen in relation to many comparable democratic countries, as the special case recalls. The validity of the provision should, in our submission, be assessed against that factual context.

Can I turn to three issues of construction that are relevant, really because they then inform the constitutional challenge, mainly because the plaintiff has sought in various respects – three respects I am about to identify – to give the provisions an unnaturally wide operation for the purpose of both increasing their burden on the freedom and creating misalignment between the operation of the provisions, if construed in that wide way, and the purpose that we submit is served by them.

If your Honours reject the wide constructions that the plaintiff has urged, then that goes a long way to resolving the constitutional challenge because there is a quite ready alignment, we submit, between the operation of the Act and the purpose that it serves.

The first of the over-breadth issues is the meaning of “covert”, which I have already touched on in some exchanges with your Honour Justice Gageler in the context of paragraph 14. The plaintiff says, as we understand it, the way that word should be interpreted is as meaning the opposite of “overt”, so that everything that is not overt is covert. That we submit is substantially broader than either the text or the context will bear.

As to text, the parties appear to be agreed in the written submissions that the ordinary meaning, the dictionary meaning of the word “covert” is concealed, hidden, secret or disguised. You can see that at 38 of the plaintiff’s submissions and 21 of our submissions. In our submission, it would just be a misuse of language to say, for example, that if I have a private discussion with my family or if people engage in a private business meeting about some deal they are doing, or even indeed if somebody arranges in the ordinary course a meeting with a minister that takes place in the minister’s office, all of those things could be described as “private” but none of them, as a matter of ordinary language, could properly be described as “covert”. They are just not the same thing. The fact that something is not available to be seen by and known by the whole world does not attract the ordinary meaning of the word.

GLEESON J: To be fair, Mr Donaghue, the argument seems to have its genesis in the language of the warrant, which talks about private social media groups.

MR DONAGHUE: Yes. That is perhaps where it comes from, your Honour, but obviously the language in the warrant cannot control the construction of the offence provision and the warrant, as I said in answer to your Honour earlier, is, given that the suspicion related to the use of this chat group, it was reasonable in order to inform people as to what should be searched for to refer to it but it was not in and of itself the endpoint of what the word means.

In our submission, it means, particularly in the context of a provision that is talking about the conduct element of an offence - and your Honours will recall that within the Criminal Code the provisions that Mr Walker took your Honours, or referred to briefly this morning, in 4.1(2) of the Code, there is a definition of “engage in conduct” and it means do an act, or omit to perform an act.

So, when this offence provision says in 1(a) the person engages in conduct, it is talking about the person intentionally doing an act. That act that they do has to be, in part, covert, relevantly, and that means, as I foreshadowed in answering Justice Gageler, in our submission, that the act has to be being done intentionally, so that at least part of it is concealed, hidden, kept secret or disguised. That is just the ordinary meaning of the word. It is also the words that are used, so, it is supported by that context.

GAGELER J: From anyone, hidden from anyone.

MR DONAGHUE: The limit coming from the other parts of the offence, because the offence can be committed in lots of different ways. I recognise I am not satisfying your Honour in this respect ‑ ‑ ‑

GAGELER J: No.

MR DONAGHUE: I appreciate that, but I am reluctant to try to constrain the section by reference to words that are not there used, when it could be committed in a wide range of various possible circumstances.

GAGELER J: Well, one way of construing it would be for an action – for conduct to be covert it must have the purpose of avoiding detection by lawful means. Would that satisfy your needs?

MR DONAGHUE: That, in my submission, would go too far because its purpose might be simply to conceal from the person who is sought to be influenced, Mr Moselmane, in this scenario, without the plaintiff being particularly concerned that the law was after him, or that anyone was alert to the problem, so he might not have known that he was under investigation, but in order for the influence to work, then Mr Moselmane had to not know about it.

I am not suggesting that that was the fact of this case. I am just giving an example where someone could engage in conduct on behalf of a foreign principal, reckless as to whether it was going to have the relevant influence in conduct, but not be keeping it secret just to make the interference effective, rather than to subvert the activities of law enforcement and that would still constitute the offence. Otherwise the prosecution would have to prove that the person had turned their mind to the fact that the police or ASIO might be looking for them and had sought to hide their behaviour from that. That is more than the section requires, in my submission.

GORDON J: Just so I can test that proposition, does that mean in response to Justice Gageler’s question that your “covert” means concealed or hidden from persons sought to be influenced? Sorry, it may be – let us ask that question - at least possibly one way in which ‑ ‑ ‑

MR DONAGHUE: I agree with that. It would be sufficient sought to be influenced but, for example, if one ‑ ‑ ‑

GORDON J: Sorry, just to slow this down.

MR DONAGHUE: Sorry, your Honour.

GORDON J: As I understood it, if one looks at categories (i), (ii), (iii), and (iv) in (c), which is really what we are looking at here, it is covert being an act or conduct which conceals from the person who is sought to be influenced. In (i) and (ii) that may be a general group of people, it might be a group which cannot be categorised in a particular way, unlike subsection (ii) where you have a specified target ‑ ‑ ‑

MR DONAGHUE: It might be the public.

GORDON J: It might be the public. Or it might be, in (iii) and (iv), more confined in its category of whom the conduct is being kept from.

MR DONAGHUE: But in (iii), for example, the conduct might well be being kept from law enforcement authorities ‑ ‑ ‑

GORDON J: That is what I am saying. So that is a more confined category of person.

MR DONAGHUE: But quite a different category of person as well, which is why I am reluctant to embrace the suggestion Justice Gageler put to me, because while the law enforcement concealing would work in that context, it might be that if someone is trying to influence the Australian public against or in favour of a particular position by putting advertisements or Facebook pages or whatever in support of a - which, by reason of a front company are concealing from the public who is actually driving the campaign, that would be capable, in my submission, of constituting this offence.

STEWARD J: So, is your submission, as I understand it, that the Parliament has delineated criteria here which takes into account the possibility that you might want to engage in covert communications for all sorts of reasons, different reasons, and they do not want to identify one as against another. For example, you might be wanting to have covert conversations because you do not want another foreign government to find out about the way you are influencing Australia. Is that it? Is it because there are so many different reasons why you might want to have covert conversations, they are just limited?

MR DONAGHUE: They have chosen particular – they are trying to draw a line between the kinds of foreign influence that might be okay and the kinds of things that are sought to be prescribed and they have attached that label in part – identified that label in part by saying it is this deliberately hidden or secret activity on behalf of – or in collaboration with foreign agencies that we are seeking to proscribe, recognising that it might be then hidden for a whole range of different reasons, as your Honour puts to me.

STEWARD J: I understand.

KIEFEL CJ: Mr Solicitor, for the purposes of subsection (1)(c)(i) and (ii), could “covert” be understood to be to keep secret from anyone who could make transparent or otherwise disrupt the influence sought to be exerted?

MR DONAGHUE: Your Honour, it would certainly include that. Whether that would exhaust ‑ ‑ ‑

KIEFEL CJ: It is fairly wide.

MR DONAGHUE: It is fairly wide.

KIEFEL CJ: If you are looking at the concern of the subsection being to prevent influence – at least in (1)(c)(i) and (ii) – an influence being effective, it is the disruption of it or something which interferes with the influence which ‑ ‑ ‑

MR DONAGHUE: I think – sorry, your Honour, yes. I think in the context of (i) and (ii), that may well be right. It might capture it but ‑ ‑ ‑

KIEFEL CJ: I not sure it applies to (iii) and (iv).

MR DONAGHUE: No.

KIEFEL CJ: I am not sure that “covert” operates in the same way in relation to (iii) and (iv).

MR DONAGHUE: I agree with that, your Honour. My submission is that it is not actually necessary to – once one ascribes to pervert the meaning that I am proffering – that it is taking action to conceal, hide, or keep secret – then, how that plays out, on the facts, will very much then depend upon how one is engaging (b) and (c) – which limbs are being engaged.

KIEFEL CJ: I understand that you are saying that no definitive meaning can be given to the word “covert” for every circumstance.

MR DONAGHUE: Yes.

KIEFEL CJ: But you have to give some kind of general idea of its operation, in a general sense, otherwise we are left just to wonder what the defendant is saying “covert” might mean.

MR DONAGHUE: I am saying, your Honour, it means deliberately hiding – taking an action – I think your Honour Justice Gordon put it that way earlier – and that is reflected in the extrinsic materials as well – taking an action to hide it without there needing to be any further investigation of why, but, bearing in mind that where what one is doing is trying to influence the political government process or the Australian democratic right on behalf of the foreign principal, the “why” will often present itself as being that you will not be able to bring about the influence that you are seeking to do unless you keep it secret from the person being influenced, whereas the why you keep it secret when you are engaging in ‑ ‑ ‑

KIEFEL CJ: It is not so much the “why”. In Justice Gageler’s question, it is “from whom”.

MR DONAGHUE: From whom? Well, indeed, but I do not know that I can do better than my “from whom” will vary depending at least on which of the paragraphs of (c) is engaged. What your Honour the Chief Justice puts to me I think I would accept in relation to (i) and (ii) – “from whom” there would mean the person you are influencing. In (iii) and (iv), it would at least include ‑ ‑ ‑

KIEFEL CJ: Would not necessarily operate in that way.

MR DONAGHUE: No, it would at least include the people who might put you in jail for doing it.

KIEFEL CJ: Well, “covert” in relation to (iii) probably has espionage connotations quite different from what is intended in relation to (i) and (ii); the same with (iv) probably.

MR DONAGHUE: There are some contextual factors which we submit shed some light on how this works, one of which is that there is a collocation in (d)(i) itself of “covert” with “deception” and there is then, within the whole of (d), a grouping of the kinds of conduct that are sufficient to engage this offence where all of the others involved the taking of action and the taking of action of a particular kind – threats, demands with menaces, et cetera – bringing into play the well‑accepted principle – and I am always reluctant to descend into Latin, but noscitur a sociis, that one gives content to these words by the company that they keep.

Your Honours Justices Crennan, Kiefel and Bell in Monis engaged in that exact kind of analysis there in relation to the phrase “offensive” when used in connection with “menacing” and “harassing” and the word “offensive” was given a particular meaning by reason of its grouping with those other two words, “menacing” or “harassing”, because it was said – I am referring here to 309 and 310; I will not take your Honours to it – but suggests a quality at least as serious as the effect of the other words. The same kind of analysis was found in some of the judgments in Coleman v Power in relation to “threatening, abusive or insulting”.

So one looks at “covert” and says, well, with threats, demands, threats to cause serious harms, demands with menaces, deceptive conduct, is it really likely that “covert” in that company means anything that is not overt, anything that is private, and bearing in mind that there is then a 15‑year penalty for committing these offences, and we submit the answer is no, it is extremely unlikely that that word in the context of the other provisions that have been used is so much wider on the “covert” limb than it is in all of the others.

It much more naturally points to it sharing a meaning with the word “clandestine”, which is the work that the ASIO Act uses, in our submission, to capture the same idea. The ordinary meaning of those two words is much the same, according to their dictionary definitions. They both refer to hidden and secret conduct and that, in our submission, is what is being captured by that kind of – or by that language.

The explanatory memorandum is also of some assistance, if I could ask your Honours to go to that. It is in part E, volume 1. I think the volumes restart with each part, so part E, volume 1, tab 56. I will come back to this in a latter part of the argument, but just on the particular question of the meaning of “covert”, if your Honours turn in the EM to page 205, paragraph 925.

KIEFEL CJ: Sorry, this is Part E, volume 1 of 1, tab 56 ‑ ‑ ‑

MR DONAGHUE: Part E, volume 1, tab 56. It is quite a long document.

KIEFEL CJ: Obviously we have the problem with the page ‑ ‑ ‑

MR DONAGHUE: Page 3689 in the book, or, by the page numbering of the document itself, 205, paragraph 925.

KIEFEL CJ: Thank you.

MR DONAGHUE: This is where the EM deals with “covert”. As the first sentence indicates:

The reference to ‘covert’ is intended to cover any conduct that is hidden or secret, or lacking transparency. For example, conduct may be covert if a person takes steps to mask or hide their communications with the foreign principal, such as deliberately moving onto encrypted communication platforms when dealing with the foreign principal, meeting in a concealed location, communicating by coded messages, or leaving communications in a concealed location for collection . . . Conduct may also be covert if the defendant copies documents or listens into private conversations without the targeted person’s knowledge or consent -

There, the EM is giving examples both of covert dealing with the foreign principal but also covert conduct in relation to the target. It identifies both of those as possibilities, bearing in mind that these examples relate to all four of the paragraph (c) examples, so some of them may be more apt to different parts of paragraph (c) than others. That, in our submission, is consistent with the meaning that we urge upon your Honours and quite inconsistent with the idea that it just means the opposite of “overt”.

The final point I would make on this construction point is the point your Honour Justice Edelman raised with Mr Walker this morning, which is that, even if the Court would not naturally favour the construction that we urge, and we submit that you should, if the other construction is going to lead to invalidity, then that is itself a reason to construe the provision in the way that we urge, if that is an available constructional choice.

In other words, once there is a constructional choice here, obviously one construes in favour of validity rather than invalidity. For the reasons I have already given at a minimum the construction we urge is available – Mr Walker says the opposite construction produces invalidity and that is itself a reason not to accept that you ‑ ‑ ‑

KEANE J: Mr Solicitor, is “covert” in (d)(i) - can it be understood to mean “covert or involving deception” as to the circumstances that exist in (b)?

MR DONAGHUE: Again, your Honour, it clearly includes that. If though the conduct, for example, involved a situation where the involvement of the foreign principal is known, but what is sought to be concealed is the – I have in mind, your Honour, the situation of a public campaign seeking to advance a particular position that is actually favourable to the interests of a foreign power. The covertness in that scenario would be concealing the fact that the foreign power is in the – yes so I think that example would conform with your Honour’s ‑ ‑ ‑

Your Honour, can I come back to that. I think that may well be a reading that would substantially accord with the legislative purpose. It is just that I am again not confident that it works with (c)(iii) and (c)(iv), which is one of the reasons – if one is to read the word as if it contains some further limiting condition, because the covert conduct where one is involved with supporting intelligence activities or prejudicing security might not have anything to do with concealing the foreign identity. It might be that one is assisting to plant a listening device in a ministerial office or something like that and that would be covert conduct, to sneak into someone’s office out of hours and plant a listening device.

KEANE J: The problem with the kind of extreme example that you give is that one knows that that is caught by the espionage legislation. This is a general provision that is intended to operate in relation to conduct that is engaged in, in particular circumstances.

MR DONAGHUE: I accept that that is so, your Honours. Ultimately, in my submission, the detail of exactly – the critical question for your Honours’ purposes in this matter is to resolve the challenge to validity. To the extent that your Honours need to answer these constructional questions in order to resolve the challenge to the validity, then obviously you need to answer them.

But some of the subtleties as to exactly how these elements work might better play out in a criminal prosecution where there are more concrete facts to highlight the issues. The main point that I am seeking to make, which I think is relevant to the constitutional challenge, relates to the breadth of the conduct that is burdened by this definition.

If your Honours accept that it does not purport to burden anything that happens in private, anything that is not overt, then its burden is very much narrowed. There would remain, I suppose, some scope for debate about exactly what conduct is or is not burdened. But ultimately in my submission, the answer to that question will not be decisive as to the validity of the provision.

KIEFEL CJ: But is that to accept that it may be necessary in practice, say in the criminal prosecution that you refer to, that a narrower conception of the meaning of “covert” must be given? It is possible.

MR DONAGHUE: Well, it is to accept that in a prosecution it would be necessary in the indictment to particularise the way in which the prosecution said that they were seeking to establish that element, which would, I imagine, require some ‑ ‑ ‑

KIEFEL CJ: We would still have to determine whether that accords with the construction given to the Act.

MR DONAGHUE: Yes.

KIEFEL CJ: It cannot just be a factual exercise in every case, then.

MR DONAGHUE: No. Well, your Honours, I am not inviting you to treat it in that way. I am inviting you to construe the word as embracing a situation where a person engages in the conduct with the circumstances and the results identified in (b) and (c), and where they deliberately take action to conceal, hide or keep secret some aspect of that conduct. If it means that, in my submission, it is valid. Your Honours are putting to me in various different ways that it might be still narrower, but – and if it is still narrower ‑ ‑ ‑

KIEFEL CJ: Is it sufficient for your purposes to say that the breadth of operation for which the plaintiff contends is not open?

MR DONAGHUE: That is what I was trying to say – and that once you reject that, you reject the main “but” reason that it might be said that the provision is invalid. Your Honour put it, with respect, more clearly than I did. That is all I seek to say about the covert issue.

The second construction issue I do not really need to develop orally. The debate is about the fault element of (1)(d). The plaintiff says it is recklessness. The Commonwealth – in paragraph 42 of their written submissions – we submit that it is intention – in paragraph 24 of our written submissions. We say that because (d)(i) is talking about part of the conduct being the same conduct in (a) – which everybody agrees has to be intentional conduct. Our submission, in effect, is that covertness is a quality of the conduct that has to be identified under (a) and, for that reason, it should have the same fault element as applies in relation to (a).

The submission is, we think, reinforced by the point your Honour Justice Gleeson made to Mr Walker about whether or not recklessness could plausibly be the fault element for (ii) and (iii). Mr Walker, I think, conceded that it would not work very well in relation to (ii) and (iii) and would be surprising if the fault element were changing as between (i), (ii) and (iii) within (d).

I do not think I need to say anything further about it because it is difficult to see how the resolution of that issue, one way or the other, would decisively affect the constitutional challenge. It would make some difference to the burden, but I do not seek to add to what we have said, in writing, beyond what I just said then.

The third over‑breadth issue relates to the meaning of the words, “on behalf of”. Mr Walker did not say anything orally about that – although the parties joined issue on it in writing. The plaintiff adopts what this Court in Toohey; Ex parte Attorney‑General of the Northern Territory called the “least specific use of ‘on behalf’”. They say in writing it basically means anything where somebody seeks to advance – expresses support for or seeks to advance the interests of another, as in someone speaks on behalf of the poor. So that there did not actually need to be a connection to the foreign principal and the conduct that is taken – as long as the person taking the conduct thought they were advancing the interests in that way.

That, we submit, is not the right construction of “on behalf of” in this context. It needs to be construed, again, in the context that the surrounding words – “collaboration”, “directed”, “funded”, “supervised” – those words collectively are seeking to capture the range of different ways in which a foreign power might exert influence in Australia through other persons. It most obviously captures situations where one person acts at the request of another or possibly as the representative of another.

Again, that is supported by the explanatory memorandum – I do not know if your Honours still have it with you but, at paragraph 915 of the explanatory memorandum there is a reference to:

being tasked by a person who identifies himself or herself as an official of a foreign government. In this case, the person will be engaging in the conduct on behalf of the foreign principal.

So, it is that notion of a request or tasking. It seems to be at least the core meaning of the word.

KEANE J: To be acting on behalf of a principal suggests that, at the very least, you are acting in some sort of representative capacity.

MR DONAGHUE: Yes.

KEANE J: Otherwise the other person is not a principal.

MR DONAGHUE: I accept that there is force in that. We are reluctant to sort of import in terms agency concepts into the definition because that is to change the language that Parliament has used, but that is the concept, in my submission, that is being picked up. And it would not sensibly be described as foreign interference for someone simply to act under their own steam to try to advance the interests of a foreign principal, because where it is not ‑ where the behaviour is not being instigated or triggered in some way by the foreign principal, it cannot naturally be said that the foreign principal is interfering in any way, people are just acting under their own power to try to ‑ ‑ ‑

KEANE J: Inspired by.

MR DONAGHUE: Inspired by, indeed. That is all I seek to say about that.

GORDON J: Can I just ask one question about the revised EM?

MR DONAGHUE: Of course, your Honour.

GORDON J: You have taken us to two paragraphs, one dealing with on behalf of, in support of your construction, and the one dealing with the covert – the taking of action. Do you accept that it gets it wrong on the middle challenge, at 924?

MR DONAGHUE: We submit that it gets it wrong. Yes, we do.

GORDON J: Thank you.

MR DONAGHUE: So, yes, we submit our construction is right for the reasons that we have given ‑ ‑ ‑

GORDON J: I accept that.

MR DONAGHUE: ‑ ‑ ‑ but we frankly accept that the EM says the opposite.

GORDON J: Thank you.

MR DONAGHUE: Once one construes the Act in the way that we have been developing, in our submission, much falls away in terms of the constitutional challenge, because many of our friend’s complaints depend on either the proposition that this Act is imposing a very heavy burden because it is burdening, or non‑public communications also with the very wide width of the words “on behalf of”, so all non‑public communications in any way inspired by foreign governments. And, once one gives it that very wide construction it is hard to align it with the purpose that we have been identifying.

In our submission, properly construed, the burden imposed on political communication by this Act is, at most, slight, and we make that submission for two reasons. The first is that, in our submission, the conduct that is burdened by this offence provision is overwhelmingly, at least, of a kind that the implied freedom of communication does not protect at all. That is a submission that New South Wales have echoed in paragraph 19 and, indeed, it is a submission that Mr Walker, I think, accepted, at least in part, this morning and in the plaintiff’s reply it is also accepted at paragraph 10.

EDELMAN J: Is that because it is independently unlawful, or do you say that even independently lawful conduct can somehow not attract the implied freedom?

MR DONAGHUE: Your Honour anticipates me. Your Honour asked a question of Mr Walker which I think he accepted in relation to independently unlawful conduct, and it is the case, we accept, that much communication of a kind that is inimical to the functioning of the system of representative and responsible government will already be unlawful under other provisions. So, one could analyse that by saying there is no incremental burden arising from this provision because everything is already prohibited. I accept that is an available mode of analysis.

The point that I am seeking to develop, and I will only do it briefly, is that there may be a deeper reason why the conduct cannot burden the freedom, which is that the freedom arises only to the extent that it is a necessary implication drawn from 7, 24, 64 and 128 of the Constitution and that there are certain kinds of conduct that are destructive of that system that cannot sensibly be characterised as being protected by those provisions because they are attacks on the system that those provisions create.

EDELMAN J: What would they be? What lawful political communication could not attract the implied freedom?

MR DONAGHUE: When your Honour says “lawful”, the answer to that question requires one to know what is already on the statute book. In practical terms, I accept that it may well be right. I could give you an example of a person who makes a threat to harm somebody else unless they vote in a particular way. That would be unlawful already under the Electoral Act, but if it was not, in our submission, it would be a political communication ‑ “I am saying to you, you must vote in this particular way or I will cause harm to you in some way” ‑ but it is not, in our submission, a plausible construction.

EDELMAN J: It would be a common law assault.

MR DONAGHUE: Or the threat. The point I am seeking to – maybe that is not a good example.

GORDON J: That sort of analysis is sometimes easier when you are dealing with offences which – “familiar” is the wrong word – more bread and butter. You saw some of that sort of analysis in Brown.

MR DONAGHUE: Yes.

GORDON J: It is a very different set of provisions here.

MR DONAGHUE: That is so, your Honour, but really the point we are trying to make is that there is always in an implied freedom case a question as to whether the communication that occurred is a communication on ‑ the phrase usually used in the case is political or governmental matters and if it is not then the law just does not burden the freedom. You answer the first Lange question no and that is the end of the case.

GORDON J: But as I understood your submission, what you were saying is that there is some sort of conditional character on that about whether it is positive or negative. Is that the submission?

MR DONAGHUE: That is where I was going.

GORDON J: I find that surprising. Who is the person who makes the call about whether it is positive or negative?

MR DONAGHUE: Unless it was a clear case of negative, then you would not ‑ ‑ ‑

GORDON J: How do you determine whether it is negative – 2021 versus yesterday? I mean, politics changes all the time.

MR DONAGHUE: The category I am positing is a category of communication whereby what is sought to be prescribed by the law in question is conduct of a kind that cannot be said to be necessary for the function of the constitutional system of government, so conduct that ‑ ‑ ‑

EDELMAN J: But those sort of lines ‑ apart from the Mulholland line where it is independently unlawful, there has never been any decision since Lange which has suggested that one could fill it out, part of the necessary implication, particular communications that are for political purposes.

MR DONAGHUE: It is a matter of the definition of the category of what is the Constitution talking about when it, by implication from the provisions I have identified protects a certain category of communication, and the definition of – because obvious those words “political or governmental communication” are not constitutional words. They are words that the courts used as a shorthand for the category of protected communication and in some cases – in fact, we had a passage in your Honour’s judgment in Unions (No 2) in mind when your Honour – and I am not seeking to throw your Honour’s words back at you – I am trying to explain the analysis that inspires the submission that we are advancing, that the meaning of “political” in determining whether a communication is political communication is informed by communications necessary for the effective operation of the system of representative and responsible government.

EDELMAN J: But that is a different question. That is the question of – you only get into the implied freedom if it is a political communication. But as I understand your submission, it is a submission that there are some political communications which are independently lawful, yet do not attract the protection of the implied freedom.

MR DONAGHUE: There are some communications that on no view could be said to be necessary to protect the system of representative government and that they do not attract the implied freedom. That is what I am saying.

GAGELER J: The communication itself has to be necessary. Is that the submission?

MR DONAGHUE: That there is a category of kinds of communication that just could never meet that test.

GAGELER J: Give me an example.

MR DONAGHUE: Communication to overthrow by – not by electoral means – to overthrow the government.

EDELMAN J: That has been common law sedition for hundreds of years.

KIEFEL CJ: Could I hazard an example for you, Mr Solicitor? If a person acting for a foreign principal says something about a candidate standing for election, which is framed to put doubt in the mind of a person, say, something malicious about wrongdoing, whatever, it is only said as between the two of them and the candidate has spoken out against the foreign interest but does not – the person receiving the communication about the candidate does not realise that a foreign interest is actually speaking to them, would that be – that would not attract any unlawfulness, I do not think.

MR DONAGHUE: May well not attract any unlawfulness and yet ‑ ‑ ‑

KIEFEL CJ: It might be defamatory, but it would not be an offence.

MR DONAGHUE: It would not be an offence, and it would just – in our submission, it would be to go beyond what one can properly draw from the constitutional provisions to say that the Constitution prohibits prescription of that kind of behaviour. To come back to your Honour Justice Edelman’s point about common law offence, I do not dispute that the common law may well criminalise, or statute may well criminalise, a lot of this conduct but, in my submission, that does not really answer the question of what implication one can draw as a matter of necessity from the constitutional provisions. One does not need as a matter of analysis to look at what the common law says or what the statutes say. One can look at what the Constitution says and say, as a matter of necessary implication, does the Constitution protect behaviour that is designed to overthrow a lawfully elected government and, in our submission, the answer is no.

EDELMAN J: It is because they are different questions. The question about whether it is independently unlawful is being asked because if there is no freedom to do something then there is no implied freedom that can protect it in the first place. But your approach to adding this additional necessity element is presupposing that there is an independent freedom to speak out and it is also presupposing that what you are speaking out about is a political matter.

MR DONAGHUE: Well, it is agnostic as to whether there is already a freedom there, because that can change from time to time. The common law can develop the statute, it might be the source of the prohibition, and that might change as well. But the operation of the constitutional implication should not change, depending on what the statute law or the common law says at any particular time.

And if one goes back to the roots of the implication and says, well, why is it that there is – we are here talking about a constitutional limitation on the power of the Parliament to prohibit things, does the Constitution really prohibit the Commonwealth Parliament from making laws that prohibit or prescribe conduct of a kind that is detrimental to the system?

And we respectfully submit that it is hard to see as a matter of necessity, that being the relevant test, how one can get from the provisions a limit on the Commonwealth power to protect itself from certain kinds of influence. So that one should be able to still do the Lange analysis but just say at the first step of the Lange analysis this conduct, even if one can say in a certain sense it is political because it is saying, you should overthrow the elected government, is not conduct of a kind that advances any interest that the Constitution protects.

GAGELER J: So you stop there?

MR DONAGHUE: And so you stop there. You just say it does not burden the constitutional value that is advanced by those provision.

GAGELER J: I am not sure that the analysis engaged in in either Unions (No. 1) or Unions (No. 2) would have been necessary on that basis.

MR DONAGHUE: The argument may not have been advanced, your Honour. I think there is some analogy with APLA. In APLA I think it was said ‑ ‑ ‑

GAGELER J: The difficulty is, Mr Solicitor, that you need to go through some preliminary exercise, as yet unexplored, to work out whether or not you then engage with the first limb of Lange. So you are adding a bit at the front.

MR DONAGHUE: Only in the sense that one did that in Clubb as well. One said, well, there is communication on the topic of whether a particular person should have a particular procedure. Is this or is this not a communication of the kind that puts us in the realm where we need to go through the other steps? So, it is an analysis of the same kind, although I accept it is not the same as the Clubb analysis, because it is – your Honours, in the end ‑ ‑ ‑

GORDON J: So I just want to make sure – can I just understand precisely what this is because I had not understood your written submissions to contend for this. Is it that it is the Commonwealth has power to make laws which prohibit or prescribe conduct which is detrimental to the system? Is that the way it is put?

MR DONAGHUE: I do not think we have put it quite that widely.

GORDON J: Well, that is my note of what you have just said in oral argument. I just want to make sure that I understand with precision ‑ ‑ ‑

MR DONAGHUE: I think I have said at some occasions it is inimical or destructive of the system.

KEANE J: So is an example of what you are talking about a law that says, in an electoral campaign, parties must not tell lies?

KIEFEL CJ: That is the consequence of the example I think I gave you.

MR DONAGHUE: I do not think I would embrace that, your Honours, because lies is a complicated example, and it might ‑ ‑ ‑

KEANE J: Factual falsehoods, untruths.

MR DONAGHUE: Untruths. One would either say of that law that it is obviously justifiable if one needs to go through all of the relevant steps, that it is obviously – one goes through the steps and it says it is justifiable, or one would say that that is protective of the electoral system that the Constitution creates and that you need to go – it is not – all that it is doing is stopping people doing something that the Constitution does not necessarily entitle or protect their capacity to do.

So, I think I would have to say yes, in relation to that example, and certainly a law that says a person must not, on behalf of a foreign government, seek to subvert the electoral choices of the people of the Commonwealth, something that prescribes conduct of the kind that was identified in relation to the US presidential elections, that is squarely conduct that is seeking to facilitate the operation of the constitutional system. There is no necessity to limit a law of that kind. Having said all of that, your Honours, I do not actually need your Honours to accept this argument in the context of this case.

KIEFEL CJ: Well, do you wish to rely upon it?

MR DONAGHUE: Your Honour, as a matter of principle, we do submit that it is the proper analysis, I can read the way that the wind is turning and ‑ ‑ ‑

KIEFEL CJ: You should not be deterred by that, we can always ‑ the winds can change.

MR DONAGHUE: Your Honours, I do not withdraw the submission because conceptually we submit that it is an appropriate way to analyse laws that are, as this law is, designed to protect the Australian system of government from what the facts before the Court suggest is a serious and growing threat.

GORDON J: That is directed at purpose of a particular provision which is a classical analysis we have all undertaken ‑ ‑ ‑

MR DONAGHUE: I know, and that is, your Honour, why I say I do not need it because – I fully accept that it goes to that purpose – it supports – sorry, it can properly be deployed in that way, it shows a compelling purpose and, in our submission, that the law serves it, and therefore analysing all of this in the traditional way, which is what I am about to come to, in our submission, one gets the same result. I do not think I need to say anything further in support ‑ ‑ ‑

KIEFEL CJ: Your alternative argument is that the burden on political communication only affects a very narrow band of communication.

MR DONAGHUE: That is correct, your Honour. The reason that we say that is that, when one looks at the various categories in (d), because obviously all of these provisions are cumulative – so Mr Walker invited your Honours to focus on (c)(i) and (c)(ii) and said, look, this is the Commonwealth deliberately legislating on the topic of communications that might influence political or governmental processes – in a sense that is true but incomplete – very partial description of the operation – Justice Gordon put to Mr Walker, well, what about the foreign influence dimension of that?

As we heard the submissions, that was never really engaged with and yet that it is critical to what Parliament is doing here, it is only conduct on behalf of, or with the other connections to, a foreign principal with the influencing behaviour, but then that is engaged in by the various illegitimate means identified in (d).

It is a very readily avoided burden, if one wants to engage in influencing behaviour, do not do it, by any of the illegitimate means identified in (d) or, in the case of sub (ii), just tell the person you are seeking to influence, I have been hired by a foreign government to lobby you on this particular topic. The moment you do that, there is no burden at all.

So, it is a readily avoided burden on a narrow class of communication. It says nothing about the capacity of people to communicate their own views on their own behalf except, at least, in the “on behalf of” limb that we are focusing on here. Similarly, on the directed limb, perhaps funding and collaboration might attract a slightly different analysis there. But, recognising that one needs the conduct to satisfy all of the different elements prescribed in the two offence provisions that are in issue, it is, we submit, only quite a narrow category of political communication that is burdened at all by these provisions and that such burden, as there is, is readily avoided.

GLEESON J: Mr Solicitor, Mr Walker picked out various subparagraphs of each of the provisions which he identified as in play. From your submission it seems as though you are asking us to consider the whole of each of the two offence provisions.

MR DONAGHUE: Your Honour, the application against us sought to invalidate the whole thing. As Mr Walker developed the oral argument – consistently, I think, with the search warrant – I agree with his submissions that all your Honours actually need to rule upon are the parts that he identified. So, the facts, as they were identified in the warrant and as are ‑ I think, as the submission was developed, said to be in play by the plaintiff, invited your Honours to focus on the “on behalf of” part of (b)(i) and (c)(i) and (ii) and the covert part of (d) and that we accept the parts that are raised by the warrants here. To go further into the other – so, for example, there is no occasion, in my submission, for your Honours to rule on (c)(iii) or (c)(iv) because they are just not in play on the facts of this case.

EDELMAN J: Or (1)(b)(ii).

MR DONAGHUE: That is also correct, yes. Or (d)(ii) or (iii) – all of those things are just not raised by the facts before the Court. So, to the extent that the plaintiff sought to challenge them, we would respond the plaintiff is not entitled to roam over the Act and challenge parts that are not relevant to him.

If I could turn, your Honours, to the purpose of the regime, your Honours will see that we join issue with the plaintiff as to what the purpose is. We have identified the purpose as being to protect Australia’s sovereignty by reducing the risk of foreign interference in Australia’s political or governmental processes. That purpose, we submit, emerges both textually and contextually. I think I have said what I need to say about the text.

But, could I take your Honours to the extrinsic material, some of which your Honours will recall from LibertyWorks because it is, to a certain extent, the same. Starting with the second reading speech, which your Honours will find in part E, volume 1, tab 52. Part of the purpose of this is to answer the proposition that this is a regime that is properly understood as being agnostic as to whether or not foreign interference is harmful or not. We submit that that is not borne out at all by the supporting materials or indeed by the text, particularly having regard to paragraph (d). Foreign influence may not be harmful, but foreign interference is.

The Prime Minister gave the second reading speech for the Bill. Near the start of the speech in the second paragraph he referred to countering:

the threat of foreign states exerting improper influence over our system of government and our political landscape.

Responded to the “grave warnings” that ASIO had identified, noting that the system:

had not grasped the nature and the magnitude of the threat.

It was identified, just under the heading, “Our Principles” that:

The policy outcomes . . . will be shaped by the following principles.

Of those, the third is the most relevant for present purposes:

Third, we will not tolerate foreign influence activities that are in any way covert, coercive or corrupt. That is the line that separates legitimate influence from unacceptable interference.

So, the Prime Minister identified that dividing line in a way similar to the way that ASIO did in paragraph 38 of the special case and identified foreign interference as a subset of influencing activity, being the unacceptable subset of influencing activity. At point 7 on the page the Prime Minister said:

Finally, and most importantly, our rejection of covert, coercive or corrupting behaviour leads naturally to a counter‑foreign‑interference strategy that is built upon the four pillars -

there identified. The sunlight that we focused on in the context of the FITS Act, but here it is enforcement and deterrence that are more significant. All of this being identified at the end of the page as laws important to:

defend our values and democratic institutions.

At the top of the next page:

we will not tolerate covert, coercive or corrupting behaviour in our country.

There is then a heading “Protecting our Democracy”, and it makes reference to many of the same matters as your Honours have seen in the special case, again about examples of foreign interference that have happened in other countries. There is a reference to “authoritarian” countries tilting “the decision-making landscape to their advantage” in the middle of the page, a “clarion call for vigilance”.

On the next page, 13147, there are references to the Director‑General of ASIO identifying the threat of espionage and foreign interference as “unprecedented”, greater than during the “Cold War”, and then at the top of 13148:

We are also introducing, for the first time, offences for acts of foreign interference. Addressing a clear gap, we will criminalise covert, deceptive, and threatening actions by persons acting on behalf of, or in collaboration with, a foreign principal aiming to influence Australia’s political processes or prejudice our national security.

A couple of paragraphs down the Prime Minister said:

Any one of these three pieces of legislation . . . would mark an enormous improvement . . .
They should be seen as interlocking components. All are important and none will fully succeed without the others.

Just above “Conclusion”:

We will not allow foreign states to use our freedoms to erode freedom; our open democracy to subvert democracy -

et cetera. So when the plaintiff submits, for example, the espionage offences are enough or the espionage offences in the FITS Act are enough, that is a submission that directly collides with what the Prime Minister said to the Parliament in explaining the need for this legislation. It was filling a gap not filled by the espionage offences and that is why for the first time these foreign interference offences needed to be introduced.

Your Honours might recall that this was all at the end of December. The bills then went off to various parliamentary committees and they came back and there was a further second reading speech given by the then Attorney‑General in June just before the bills were passed, and your Honours should have that, I think perhaps behind the same tab, tab 53, I am told. There, if your Honours have page 6351, the speech commences. There is a reference about two‑thirds of the way down - the Attorney‑General turns the EFI Bill, referring to:

covert interference and espionage . . . longstanding global reality and that they have the potential to cause immense harm to our national sovereignty, to the safety of our people, to our economic prosperity and to the very integrity of our democracy.

Over the page about halfway down specifically referring to foreign interference:

the EFI bill will introduce, for the first time, a suite of foreign interference offences into the Criminal Code of the Commonwealth. These offences will complement the espionage offences by criminalising a range of other harmful conduct –

is how the Attorney characterised what was captured by these interference offences, not just any influence by a foreign principal, as Mr Walker would have it. The revised EM, which I have already taken your Honours to parts of, is behind tab 56. Right at the commencement of the document, paragraph 4 on page 2 sets out that:

The Bill will comprehensively reform key offences dealing with threats to national security, particularly those posed by foreign principals.

The second bullet point again identifies:

foreign interference targeting covert, deceptive or threatening actions . . . intend to influence Australia’s . . . processes or to harm Australia.

So the harm concept continues. One sees that again in paragraph 9 over the page:

criminalising a range of other harmful conduct –

On page 10 at paragraph 31 the foreign influence versus foreign interference distinction is drawn again:

Unlike the routine business of diplomatic influence . . . foreign interference is characterised by clandestine and deceptive activities undertaken by foreign actors seeking to cause significant harm to Australia’s national interests ‑ ‑ ‑

GAGELER J: But we are not concerned with the harm to Australia’s national interests in this case, are we?

MR DONAGHUE: Well, in my submission, what the ‑ ‑ ‑

GAGELER J: It is the – I am sorry, go ahead.

MR DONAGHUE: Sorry, your Honour. That is an umbrella conception that is being applied throughout the second reading speeches and the EM in relation to what it is that causes Parliament to be responding to the phenomenon of foreign interference.

GAGELER J: But the provisions with which we are concerned have been narrowed by Mr Walker to (c)(i) and (c)(ii). The influence for that purpose does not need to be maligned, does it – or does it?

MR DONAGHUE: In my submission, the concept is that it is inherently harmful for foreign principals to be, by the illegitimate means, by secret, deceptive or threatening means, to be affecting Australia’s - influencing Australia’s political positions, votes of Australians, et cetera – that it is harmful to the system.

GORDON J: Is that because (iii) and (iv) are dealing with what I will call intelligence and national security, whereas (i) and (ii) and what you have taken us to in the EM is dealing with broader – Australia’s broader interests?

MR DONAGHUE: It is certainly dealing with Australia’s broader interests. But it is not saying that any foreign influence on governmental processes or democratic rights is problematic. It does not go that far. But it does go so far as to say that if you do it by the particular means – threats with menaces, demands with menaces, threats of serious harm or hidden, deceptive behaviour – it is harmful.

Yes, we submit the balance of 31 supports that. It is explaining why eroding Australia’s sovereignty by diminishing public confidence in the integrity of the political and governmental institutions, that does not look like it is just about (c)(iii) or (iv), it looks like it embraces (i) and (ii). It refers expressly to foreign interference in elections and referenda, et cetera.

So, in our submission, whereas in the FITS Act context, a transparency regime is overlaid in relation to any non‑transparent foreign influence, at the interference end of the spectrum, Parliament is characterising behaviour that it sees as harmful and criminalising it, by quite serious criminal offences.

So that, in my submission, none of these references – and the final part I will take you to in the EM is at 42 to 44 on page 12 - repeatedly in those paragraphs refer to the “pressing or substantial concern” to protect Australia from grave threats to sovereignty, et cetera. So it is not just security threats there, it is the breadth of matters, in our submission, that are identified as foreign interference.

So, all of those passages I have just taken your Honours briefly through in the extrinsic materials, together with the passages in the special case that I already took your Honours to shortly after lunch, support the contention in our submission that these provisions are part of a suite of provisions that are addressed not just to a legitimate objective, but to an important and – responding to an ever‑growing threat in that they are recognising an increasing threat of harmful behaviour and describing that behaviour in terms that, if the provisions are construed as we submit that they should be, aligns very closely with the identified threatening behaviour.

The plaintiff’s purpose, which is to prevent any undisclosed or non‑transparent influence regardless of whether or not it is malicious, harmful or in conflict with the interests of Australia, is contradicted by all of that material that I have just taken your Honours to. It runs into the problem that I have already identified I think in answer to some questions, that it is not accurate to say that the subsection (1) offence is just concerned with non‑transparent communications.

That is undoubtedly the focus of the subsection (2) offence, but the subsection (1) offence includes non‑transparent communications, but also goes broader and it fails to grapple sufficiently with the fact that, really for a long period now, the kind of activities prescribed by these acts as foreign interference have been recognised as inherently harmful.

So one sees the origins of ASIO’s concerns with foreign interference in the Hope Royal Commission report, which we have given your Honours an extract of in Part E, volume 1, tab 57 – and if I could ask your Honours to go briefly to that.

I said that quickly - Part E, volume 1, tab 57 and the relevant extract is on page 3870 in paragraph 3.43. Here Justice Hope, as the Royal Commissioner reviewing the ASIO Act – do your Honours have that ‑ referred to there being four classes of activity of foreign origin which should attract investigation by ASIO and the very first of those four was:

clandestine or deceptive activities which are conducted for purposes detrimental to the interests of Australia.

Justice Hope expressed the view later in that paragraph that:

foreign, clandestine or deceptive intrusion into the political or governmental processes of Australia. Of its nature, activity of that kind can be regarded as detrimental to the interests of Australia.

It was that report that led to the enactment of a definition of “foreign interference” within the ASIO Act. I do not need to take your Honours to that, I do not think. Your Honours have the Act in Part B, volume 1, tab 5. The way that the term is defined is:

acts of foreign interference means activities relating to Australia that are carried on by or on behalf of, are directed or subsidised by or are undertaken in active collaboration with, a foreign power ‑

so your Honours will see the echoes of the language that is now found in the Criminal Code –

being activities that:
(a)are clandestine or deceptive and:
. . .

(ii) are carried on for the purposes of affecting political or governmental processes; or
(iii)are otherwise detrimental to the interests of Australia -

So what effectively has happened, in our submission, is that conduct that Justice Hope recognised in 1984 as inherently detrimental to Australia’s interests and which was brought at that time or shortly thereafter into ASIO’s purview as matters that could be investigated by ASIO have now been moved into the criminal sphere by the new offence provisions plugging a gap to criminalise actions of that kind. It is not generic, non‑harmful behaviour. It is inherently harmful behaviour that the provisions are capturing and that, of course, is a legitimate purpose. Indeed, there is quite a close analogy with the discussion that has been undertaken in the contexts of various electoral law reforms which are directed to protecting the system, not detrimental to but affirmatively enhancing the operation of the system.

That then takes me to the justification topic, which I can address quite briefly. It appeared to us from our friend’s submissions this morning that the weight of the justification analysis was put by our friends on the last step, the “adequacy of the balancing” step. Certainly nothing was said orally to suggest that there was a suitability problem and, in our submission, there clearly is not.

The criminalisation of particular conduct is rationally capable of deterring conduct of that kind, and that is all that is required to satisfy the suitability requirement as articulated, amongst other places, in Comcare v Banerji. I should say in relation to Banerji, to avoid confusion, at the time the joint book of authority was compiled, there was no CLR version of that case. So the joint book has the ALJR version of the case, but there is now a version at 267 CLR 373. The suitability test is framed at 33 in a way that is clearly satisfied here.

As to necessity, your Honours have made in clear in Banerji at 35, but also in many other cases, that to fail at that stage, a plaintiff must demonstrate a proposed alternative that is “obvious and compelling”, that is “equally practicable”, and an “available” way of achieving the same purpose, and that would produce a “significantly lesser burden”. All of those requirements are clearly established by authority.

It is not possible for a plaintiff to make good or not appropriate to invite the Court to find that a law fails at the necessity stage by entering into a process of legislative redrafting or amending. Your Honours have said that a few times, so in McCloy for example, the Court at 58 – the plurality said that it would transgress the role of the Court to select the means by which the purpose may be achieved or rather it is the role of the legislature to select the means and it would exceed the constitutional confidence of the Court to second‑guess that judgment ‑ ‑ ‑

KIEFEL CJ: I think that was said in the context of the means - the alternative means and the means contained within the enactment being within the bounds of legislative choice.

MR DONAGHUE: Indeed, within the range of choice, that is so. Your Honour Justice Gageler in Clubb talked about the Court not having a mandate to tinker with the legislative design to improve on the product of the legislative choice and cited Murphy where Chief Justice French and Justice Bell said the Court should not undertake the hypothetical exercise of improved legislative design.

I say all of that, your Honours, because, if your Honours turn to our friend’s reply at paragraph 16, where they deal with alternatives, you see a rather stark example of exactly that kind of thing being done. It is said in paragraph 16, near the bottom of page 5, that an obvious and compelling alternative is to delete (1)(b)(i) to insert some new words “or otherwise controlled” after “supervised” in (1)(b)(ii), to delete (1)(c)(ii), to delete “covert” to introduce instead “unconscionable conduct or the use of undue influence”. That is just a different section.

KIEFEL CJ: But, Mr Solicitor, why cannot a plaintiff point to an alternative offence as having a lesser burden on the freedom? That is what was done in Betfair (No 1), was it not?

MR DONAGHUE: It was done in Betfair (No 1) in the context of there being a concrete regime that could be pointed to that was directed to the same identified end. It was said Tasmania have approached this integrity problem in this way. You are legislating with respect to the same exercise in Western Australia in a much more burdensome way.

KIEFEL CJ: But the fact that the proposal has been enacted surely cannot be the test. The test is if there is something that clearly was available and could reduce the extent of the burden.

MR DONAGHUE: While achieving the purpose to the same extent.

KIEFEL CJ: Yes, exactly, exactly.

MR DONAGHUE: But that, in my submission, is the critical issue here because if one, for example, deletes the reference to “covert” and instead says “unconscionable conduct or undue influence” ‑ ‑ ‑

KIEFEL CJ: Quite, but that is a different argument from saying that you cannot really reframe it to have a lesser offence as a question of principle.

MR DONAGHUE: As a question of principle, I accept that if there is an obvious and compelling way of framing an offence ‑ ‑ ‑

KIEFEL CJ: Yes.

MR DONAGHUE: ‑ ‑ ‑ that still achieves the objective to the same extent, then the argument is open. I am not seeking to deny that. What I understand the Court to have discouraged in these passages is a scenario where somebody picks up the section with a pencil and starts crossing out words and putting in new words because it will always be possible to reframe an offence in ways that give it a different operation.

KIEFEL CJ: But I think the passages that you are referring to imply that what a plaintiff is doing is picking up a section which itself passes the necessity test and then starts tinkering with it to say, here is something better – doing it better, where the two are both within the legislative choices is the context in which those statements in McCloy were made. Making it better does not satisfy the reasonable necessity test.

MR DONAGHUE: No, except that working out whether the existing option satisfies the necessity test might be affected by whether there is an obvious or compelling alternative.

KIEFEL CJ: But it has to have all the features that you have outlined.

MR DONAGHUE: Yes – well, indeed, and ultimately that is our point here, is that to take this offence and to say, well, there are ways of changing the burden by changing the elements in various different ways is not a legitimate way of conducting the analysis because the result is a different offence provision which imposes a different burden. But unless the Court can be clearly satisfied that the new offence that is posited will achieve the same objective to the same extent ‑ ‑ ‑

KIEFEL CJ: But that is the real question, is it not?

MR DONAGHUE: ‑ ‑ ‑ just does not meet the requirements. In our submission, nothing that has been put by our friends by way of alternatives is capable of – and not only does it need to achieve the same purpose to the same extent on the authorities of the Court, it needs to produce a significant lesser burden on the freedom; it needs to do both of those things and in our submission, our friends have not discharged that burden.

Finally, on balancing, Banerji makes clear at 38 that the question is whether or not:

the benefit sought to be achieved by the law is manifestly outweighed by its adverse effect on the implied freedom.

So we are looking for a manifest imbalance. As we understand our friend’s arguments, they basically distil to one attack each on the two offences.

With respect to subsection (1), the proposition seems to be largely related to the fact that (c)(i) and (c)(ii) directly concern political communications and to the proposition that “covert” is the obverse of “overt”. So much of what we seek to say is answered by the constructional submissions I have already made because the burden is very much less than the plaintiff’s argument assumes.

But the other important aspect of the balancing here is that while one might think of focusing just on (c)(i) or (c)(ii) that there is a great burden on political communication that leaves out of the analysis the point that Justice Gordon made which is that there is a significant additional element here of the conduct - the involvement of the foreign principal and that puts a rather different complexion on the burden that is imposed because it is not just any political communication that is being burdened, it is a very particular kind of communication on behalf of a foreign principal by particular undesirable means.

EDELMAN J: But the balancing question also has to be asked in light of the fact that one has already concluded that there are no other reasonably necessary means of achieving this conclusion or achieving this outcome.

MR DONAGHUE: I absolutely embrace that and also in light of the fact that the purpose, as we have identified it, is an important one. So, there are no other means of achieving this very important purpose. Reading that context, in our submission, it is impossible to conclude that there is a manifest imbalance of the kind that the test requires.

In relation to the sub (2) offence, the submission as we understood it was that there is a difficulty because the behaviour prescribed by (2)(d), concealing or failing to disclose the circumstances mentioned in (b), may be difficult to identify because the element in (b) can be satisfied by recklessness. The answer to that, in our submission, is provided by the definition of “recklessness” in 5.4 of the Code because, as your Honours will recall, in explaining the meaning of “reckless” there:

A person is reckless with respect to a circumstance if:
(a)he or she is aware of a substantial risk that the circumstance exists or will exist; and

(b)having regard to the circumstances known . . . it is unjustifiable to take the risk.

So to be reckless relevantly here, the person has to actually know of a substantial risk. Once you know of the substantial risk, it is easy to identify what needs to be disclosed in order to satisfy the element in (d). It is the substantial risk of which you are aware.

So the asserted difficulty does not arise and again, one needs manifest imbalance in circumstances where there is no other way to achieve the purpose to the same extent and it is the purpose of pressing public importance. In those circumstances, we submit that it cannot be established that there is manifest imbalance.

Your Honours, I note the time. Mr Herzfeld will address on relief, but if it is convenient to the Court, it might be appropriate to do that in the morning.

KIEFEL CJ: Thank you, Mr Solicitor. The Court will adjourn to 9.30 am for pronouncement of orders and otherwise to 10.00 am.

AT 4.14 PM THE MATTER WAS ADJOURNED
UNTIL THURSDAY, 8 APRIL 2021

[2021] HCATrans 57

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