31.07.2015
5.128 A wide range of Commonwealth laws may be seen as interfering with freedom of association, in the contexts of criminal law; public assembly; workplace relations; migration law; and anti-discrimination law. However, many provisions relate to limitations that have long been recognised by the common law itself, for example, in relation to consorting with criminals, public assembly and other aspects of preserving public order.
5.129 Some areas of particular concern, as evidenced by parliamentary committee materials, submissions and other commentary, involve:
various counter-terrorism offences provided under the Criminal Code and, in particular, the offence of associating with a member of a terrorist organisation and thereby providing support to it;
workplace relations laws, which are centrally concerned with freedom of association and the right to organise;
the operation of the so-called ‘character test’ in the Migration Act, which provides a ministerial discretion to refuse a visa to a person who the Minister reasonably suspects is a member of or has an association with certain groups or organisations or persons; and
the operation of Commonwealth anti-discrimination laws.
5.130 Some counter-terrorism offences raise freedom of association issues. Review of these laws falls within the role of the INSLM, who reviews the operation, effectiveness and implications of Australia’s counter-terrorism and national security legislation on an ongoing basis.
5.131 Workplace relations laws in Australia have been subject to extensive local and overseas criticism on the basis of lack of compliance with ILO Conventions concerning freedom of association and the right to organise. However, the extent to which obligations under ILO Conventions engage the scope of common law or traditional understandings of freedom of association may be contested.
5.132 A Productivity Commission inquiry, due to report in November 2015, is examining the performance of the Australian workplace relations framework. In undertaking this inquiry, the Productivity Commission has been asked to review the impact of the workplace relations framework on matters including: unemployment, underemployment and job creation; fair and equitable pay and conditions for employees; small businesses; and productivity, competitiveness and business investment.
5.133 As it is not expected that the Productivity Commission inquiry will focus on concerns that the existing workplace relations framework may unjustifiably interfere with the right to freedom of association, further review of this aspect of the framework may be desirable.
5.134 The character test in s 501 of the Migration Act has been criticised by stakeholders. The decision of the Full Federal Court in Haneef[149] provides a possible rationale for reform to narrow the scope of the concept of ‘association’.
5.135 Anti-discrimination laws have been criticised for potentially interfering with freedom of association by making unlawful certain forms of discrimination. This issue overlaps with the discussion of freedom of religion, which is also centrally concerned with the operation of anti-discrimination law.[150]