In the recent case of Tajjour v New South Wales [2014] HCA 35, the High Court was asked to consider whether New South Wales laws prohibiting ‘consorting’ with convicted offenders infringe the right to freedom of association, protected by an inferred right in the Australian Constitution or by the application of the International Covenant on Civil and Political Rights (ICCPR).
Background to the case
Section 93X of the Crimes Act 1900 (NSW) provides that any person who habitually consorts with convicted offenders, after having been given an official warning in relation to each of those offenders, is guilty of an offence, punishable by imprisonment, fine, or both. In Australian law, to ‘habitually consort’ is understood to mean to seek or accept association or to keep company with persons of a particular class.
Three plaintiffs separately charged with an offence against s 93X alleged that the law was invalid because it impermissibly burdens the freedom of communication concerning government and political matters implied in the Commonwealth Constitution. Two of the plaintiffs further alleged that s 93X was invalid because it infringes a freedom of association which they said should be found to be implied in the Constitution, and because the provision is inconsistent with Australia’s obligations under the ICCPR.
As the Court’s judgment summary notes:[1]
By majority the High Court upheld the validity of s 93X. The Court accepted that the provision effectively burdens the implied freedom of communication about government and political matters. But the majority of the Court held that s 93X is not invalid because it is reasonably appropriate and adapted, or proportionate, to serve the legitimate end of the prevention of crime in a manner compatible with the maintenance of the constitutionally prescribed system of representative government.
The High Court unanimously concluded that the provisions of the ICCPR, where not incorporated in Commonwealth legislation, impose no constraint upon the power of a State Parliament to enact contrary legislation. Each member of the High Court who considered it necessary to answer the question about a free-standing freedom of association concluded that no such freedom is to be implied in the Constitution.
Consideration of freedom of association
While the Chief Justice noted (at [11]) that ‘[s]tatutes should be construed, where constructional choices are open, so that they do not encroach, or encroach as little as possible, upon fundamental rights and freedoms at common law’, his Honour did not address the question of a protected freedom of assembly. Justice Hayne noted (at [95]) that:
This Court has held, more than once[2], that no ‘free?standing’ right of association is to be implied from the Constitution. That is, ‘[a]ny freedom of association implied by the Constitution would exist only as a corollary to the implied freedom of political communication and the same test of infringement and validity would apply’[3]. These conclusions should not be revisited. For the reasons which have been given, this challenge fails.
In a joint judgment, Crennan, Kiefel and Bell JJ did not discuss the existence or protection of any freedom of association, limiting their consideration to the (limited) right to freedom of political communication inferred into the Australian Constitution in a string of prior authority[4] and approving the orders made by Hayne J. Justice Gagelar went slightly further, arguing that laws prohibiting association ‘for a purpose of engaging in communication on governmental or political matter but not otherwise’ (at [167]) will infringe the constitutional freedom of political communication, but didn’t discuss the existence of a ‘stand-alone’ freedom of association.
Only Keane J recognised the existence of a common law right to freedom of association, stating (at [224]):
In Australian Communist Party v The Commonwealth[5], Dixon J spoke of ‘the right of association’ in this sense as a fundamental aspect of our legal system. It is necessary here to keep in mind that when one speaks of the right of association as Dixon J spoke of it in the Communist Party Case, one is speaking of the freedom of an individual under the common law, not the freedom derived from the constitutional implication, which operates as a denial of power to legislate in a given area of activity. The right of association under the common law is subject to legislative regulation whereas the constitutional implication limits the possibility of legal regulation. Before any question arises of the validity of legal regulation of an activity, one must determine whether a given piece of legislation affects the activity at all; and it is in relation to this step in the analysis that the presumption against interference with the right of association under the common law is to be taken into account.
However, as the plaintiffs had limited their arguments to an implied constitutional freedom of assembly, his Honour did not further discuss this common law protection, and its application in this case.
A number of members of the Court also noted that, despite signing and ratifying the International Convention on Civil and Political Rights, Australian states’ laws are not required to, and may not, comply with the Convention (see French CJ at [48]; Hayne J at [98]; Keane J at [249]).
Relevance to the Special Rapporteur on the rights to freedom of peaceful assembly and of association
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The UN’s Special Rapporteur on the rights to freedom of peaceful assembly and of association has launched a new project, Litigating assembly and association rights, to ‘provide technical assistance and advisory services for public interest litigation on assembly and association issues, with a view to increasing such litigation and encouraging the application of international law norms at the domestic level.’[6]
The Tajjour case demonstrates the value of this work; and the importance of promoting the adoption of international human rights norms in State and sub-national laws.
While the protection of Australians’ rights to freedom of assembly and association has been shown to be limited in this case, the comments of Justice Keane recognise the common law rights that co-exist with international law norms, and provide a basis for future litigation of Australians’ assembly and association rights, relevant to this project, and other aspects of the Special Rapporteur’s mandate.
The lack of protections identified in national laws contrasts with those in two of Australia’s eight sub-national jurisdictions, where statutory human rights laws protect freedom of association and freedom of assembly,[7] and have been considered by courts and tribunals.[8]
[2] Mulholland v Australian Electoral Commission (2004) 220 CLR 181 at 234 [148] per Gummow and Hayne JJ, 306 [364] per Heydon J; [2004] HCA 41; Wainohu v New South Wales (2011) 243 CLR 181 at 220 [72] per French CJ and Kiefel J, 230 [112] per Gummow, Hayne, Crennan and Bell JJ, 251 [186] per Heydon J; [2011] HCA 24.
[3] Wainohu v New South Wales (2011) 243 CLR 181 at 230 [112] per Gummow, Hayne, Crennan and Bell JJ (footnote omitted).
[4] Most notably Lange v Australian Broadcasting Corporation (1997) 189 CLR 520.
[5] (1951) 83 CLR 1 at 200; [1951] HCA 5.
[7] Charter of Human Rights and Responsibilities Act 2006 (Vic) s 16; Human Rights Act 2004 (ACT) s 15.
[8] See eg Kerrison v Melbourne City Council [2014] FCAFC 130; Caripis v Victoria Police [2012] VCAT 1472; R v AM [2010] ACTSC 149.
