Australia’s foreign influence transparency scheme, designed to disclose foreign influence in domestic politics, is being challenged by a rightwing thinktank with links to American conservatives.
LibertyWorks, which is the organiser of the Australian Conservative Political Action Conference (Cpac), is pursuing the total invalidation of the transparency scheme, documents filed in the high court reveal.
LibertyWorks has argued a requirement to provide documents and possible registration infringe freedom of political communication and has even cited the section of the constitution being used to challenge state border bans in its bid to scrap the Fits.
It claims registration causes adverse publicity, citing the fact two speakers from the 2019 conference in Sydney, Ross Cameron and Dan Wild, expressed reluctance to attend in 2020 because their correspondence could be passed onto the Australian government.
The foreign influence scheme, launched in December 2018, requires individuals or entities to register if they are conducting lobbying, communications activity, or making payments on behalf of a foreign principal for the purpose of political or governmental influence.
The scheme was introduced as part of a package largely directed at the influence of China in Australia, but put conservatives offside when the attorney general’s department investigated whether LibertyWorks and former prime minister Tony Abbott should have to register.
The documents also reveal how hosting Cpac has helped LibertyWorks grow from a tiny outfit with gross profit of $10,732 in 2016-17 to $150,520 in the second half of 2019, when the first Australian conference was held.
The court documents show that on 22 October 2019, the department issued a direction under section 45 of the Fits Act requiring LibertyWorks to provide any agreement it had with conference sponsor, the American Conservative Union (ACU), and details of invitations and presentations made at the Cpac conference.
Failure to comply with such a notice carries a six-month prison term as the maximum penalty. LibertyWorks was given until 5 November 2019 to reply but was offered a chance at extension.
On 1 November, LibertyWorks president Andrew Cooper replied that it “can not and will not” comply with the notice, claiming it was a “fishing exercise” and the department could not “reasonably suspect” it need register.
Cooper said that correspondence with the ACU was “not within our possession or control” and LibertyWorks is a “small volunteer not-for-profit organisation” that could not respond within 14 days. He did not request an extension.
Cooper suggested that requests for ACU communications with Cpac speakers including US Republican congressman Mark Meadows and UK Brexit party leader Nigel Farage had “national security implications and are possibly illegal”.
While Cooper said preventing “insidious influence of foreign actors” such as the Chinese Community Party seems a “noble cause”, he said the department appears “less like the defender of freedom and more like … the old East German Stasi”.
“You hold a gun to our head and demand information … and in the case of Congressman Meadows, you are in fact asking us to do what you claim to protect Australia from; you demand we interfere in the political processes of another country.”
On 2 November 2019, the Australian reported the department’s handling of the scheme had angered conservative attorney general Christian Porter.
“I have made it clear to my department that I expect it to demonstrate a focus on the most serious instances of noncompliance,” he reportedly said.
On 1 December 2019, the departmental secretary, Chris Moraitis, wrote to Cooper stating that although he remained of the view LibertyWorks “may have registration obligations in relation to the ACU and Cpac”, he was satisfied the arrangement was “made transparent” in promotional material and media statements.
In February, LibertyWorks launched its challenge – arguing the scheme breaches the implied freedom of political communication and section 92 of the constitution, that trade, commerce and “intercourse” between the states shall be absolutely free.
Communication is a form of “intercourse” that is protected, it claims, in a bid to expand the existing remit of the section.
In addition to the commonwealth, which is defending the case, South Australia and New South Wales have intervened to support the validity of the scheme.
In his affidavit, Cooper says LibertyWorks has a non-binding “collaborative arrangement” with the ACU, which provides that some of ACU’s members will attend the Australian Cpac at their own cost.
The ACU organised some speakers to the 2019 conference including Meadows, Farage, and Raheem Kassam, but LibertyWorks had no knowledge of what costs were involved, he said.
Of the speakers organised by LibertyWorks, only one Victorian was given a “contribution” to recover costs to attend, while the rest “bore their own costs”.
LibertyWorks argues that the Fits scheme targets an “indeterminate class of citizens” and “criminally prohibits them from political communication unless registered with the state”. As Moraitis made clear in his letter, the Act does not prohibit foreign influence.
Despite having just 1,290 members, LibertyWorks’ accounts for July to December 2019 show it has grown to earning $235,508 in income including $99,141 from ticket sales.
It reported gross profit in those six months of $150,521 and net profit of $88,292. Just $800 was billed as “speaker expenses”.
The second Australia Cpac conference is scheduled for 4 November. LibertyWorks has advertised speakers including Canadian far-right personality Lauren Southern, Liberal MP Craig Kelly, NSW One Nation MP Mark Latham, Institute of Public Affairs chairperson Janet Albrechtsen, and former broadcaster Alan Jones.
Final submissions in the court case are not due until November, meaning it is unlikely to be listed for hearing until December or early 2021.
