LibertyWorks Inc v Commonwealth: The Implied Freedom of Political Communication and the Constitutionality of Australia’s Foreign Influence Legislation

Abstract

In LibertyWorks Inc v Commonwealth, the High Court of Australia considered a key aspect of Australia’s counter foreign interference legislation — the foreign influence transparency scheme — and whether it was unconstitutional on the basis that it violated the implied freedom of political communication. The seven-member bench delivered five separate judgments. The Court upheld the impugned provisions of the Foreign Influence Transparency Scheme Act 2018 (Cth), albeit tempered by two compelling dissents. In this case note, I argue that the legislation in its current form is likely to face a future challenge because its operative provisions go beyond the legitimate object of improving the transparency of foreign influence relationships. As the dissenting judgments reveal, the legislation establishes a scheme that confers broad discretions on administrative officials to collect and store information on a private register from which a limited subset of information is made available on a public website. I argue that the discrepancy between the two repositories of information reveals a legislative scheme that ostensibly promotes the benign object of transparency, but ultimately serves the more insidious function of government surveillance.