5.105 It has long been recognised that laws may be justified in interfering with freedom of association, including to restrict the ability of certain classes, groups or organisations of persons involved, or likely to be involved, in crime.
5.106 Bills of rights allow for limits on most rights, but the limits must generally be reasonable, prescribed by law, and ‘demonstrably justified in a free and democratic society’.
5.107 Bills of rights include certain general circumstances in which limits on freedom of association may be justified, for example, to:
protect the rights or freedoms of others;
protect national security or public safety;
prevent public disorder or crime.
5.108 The following discusses some of the principles and criteria that might be applied to help determine whether a law that interferes with freedom of association is justified, including those under international law. However, it is beyond the practical scope of this Inquiry to determine whether appropriate justification has been advanced for particular laws.
5.109 As discussed in Chapter 1, proportionality is the accepted test for justifying most limitations on rights, and is used in relation to freedom of association.
5.110 For example, the Parliamentary Joint Committee on Human Rights in its examination of proposed legislation, asks whether a limitation is aimed at achieving a legitimate objective; whether there is a rational connection between the limitation and that objective; and whether the limitation is proportionate to that objective. A number of stakeholders expressly endorsed proportionality as a means of assessing justifications for interferences with freedom of association.
5.111 Both the common law and international human rights law recognise that freedom of association can be restricted in order to pursue legitimate objectives such as the protection of public safety and public order.
5.112 The power of Australian law-makers to enact provisions that restrict freedom of association is not necessarily constrained by the scope of permissible restrictions on freedom of association under international human rights law. However, in considering how restrictions on freedom of association may be appropriately justified, one starting point is international human rights law, and the restrictions permitted by the ICCPR.
5.113 Article 22(2) of ICCPR provides that no restrictions may be placed on the exercise of the right to freedom of association with others,
other than those which are prescribed by law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others. This article shall not prevent the imposition of lawful restrictions on members of the armed forces and of the police in their exercise of this right.
5.114 Many of the laws discussed above pursue these objectives. For example, many criminal laws, including counter-terrorism and anti-consorting law, clearly protect the rights of other people, and public order. Criminal laws, such as counter-terrorism laws or those addressing serious organised crime, are also concerned with the protection of national security or public order.
5.115 As discussed above, preventing people from ‘getting together to hatch crimes’ has long been considered one justification for restrictions on freedom of association. The High Court has recognised a ‘public interest’ in restricting the activities, or potential activities, of criminal associations and criminal organisations.
5.116 In South Australia v Totani, French CJ explained that legislative encroachments on freedom of association are not uncommon where the legislature aimed to prevent crime. He found that the Serious and Organised Crime (Control) Act 2008 (SA)
does not introduce novel or unique concepts into the law in so far as it is directed to the prevention of criminal conduct by providing for restrictions on the freedom of association of persons connected with organisations which are or have been engaged in serious criminal activity.
5.117 Similarly, in Tajjour, the High Court upheld the validity of s 93X of the Crimes Act 1900 (NSW):
Section 93X is a contemporary version of a consorting law, the policy of which historically has been ‘to inhibit a person from habitually associating with persons … because the association might expose that individual to temptation or lead to his involvement in criminal activity’. The object of the section is to prevent or impede criminal conduct.
5.118 Limits on free association are also sometimes said to be necessary for other people to enjoy freedom of association and assembly. For example, a noisy protest outside a church interferes with the churchgoers’ freedom of association. Laws that facilitate the freedom of assembly of some may therefore need to inhibit the freedom of assembly of others, for example by giving police certain powers to control or regulate public protests.
5.119 In Melbourne Corporation v Barry, Higgins J distinguished between people’s right to ‘freely and at their will to pass and repass without let or hindrance’ from a right to assemble on a public highway. Quoting Ex parte Lewis (the Trafalgar Square Case), Higgins J said:
A claim on the part of persons so minded to assemble in any numbers, and for so long a time as they please to remain assembled, upon a highway, to the detriment of others having equal rights, is in its nature irreconcilable with the right of free passage, and there is, so far as we have been able to ascertain, no authority whatever in favour of it.
5.120 Freedom of association is sometimes limited by laws that regulate protests, laws perhaps aimed at ensuring the protests are peaceful and do not disproportionately affect others. Protest organisers might be required to notify police in advance, so that police may prepare, for example by cordoning off public spaces. Police may also be granted extraordinary powers during some special events, such as sporting events and inter-governmental meetings like the G20 or APEC.
5.121 In the workplace relations context, additional starting points for considering justifications for restrictions on freedom of association are established under international conventions. Essentially, these provide extra protections for freedom of association in the context of trade unions and workplace relations. Arguably, however, these protections operate in areas that are beyond the scope of the common law or traditional understandings of freedom of association.
5.122 Under art 22(3) of the ICCPR, the permissible reasons for restricting freedom of association are not to be taken to authorise ‘legislative measures which would prejudice, or to apply the law in such a manner as to prejudice, the guarantees provided for’ in the ILO Freedom of Association and Protection of the Right to Organise Convention.
5.123 Further, art 8 of the ICESCR guarantees the right of everyone to form trade unions and to join the trade union of his or her choice. Limitations on this right are only permissible where they are ‘prescribed by law’ and ‘are necessary in a democratic society in the interests of national security or public order or for the protection of the rights and freedoms of others’.
5.124 Article 8 also sets out the rights of trade unions, including the right to function freely subject to no limitations other than those prescribed by law and which are necessary for the purposes set out above, and the right to strike. As with art 22 of the ICCPR, art 8 provides that no limitations on the rights are permissible if they are inconsistent with the rights contained in the ILO Freedom of Association and Protection of the Right to Organise Convention.
Proportionality and freedom of association
5.125 Whether all of the laws identified above as potentially interfering with freedom of association, in fact pursue legitimate objectives of sufficient importance to warrant restricting the freedom may be contested. However, even if a law does pursue such an objective, it will also be important to consider whether the law is suitable, necessary and proportionate.
5.126 The recognised starting point for determining whether an interference with freedom of association is justified is the international law concept of proportionality. In art 22 of the ICCPR, the phrase ‘necessary in a democratic society’ is seen to incorporate the notion of proportionality.
5.127 In relation to one element of proportionality, the UNSW Law Society stated that a requirement for there to be a ‘rational connection’ between the objectives of the law and the need to infringe the right ‘is particularly relevant to Australian association laws, given that the evidence regarding the effectiveness of such legislation is highly disputed amongst scholars’.
Canada Act 1982 c 11 s 1. See also Charter of Human Rights and Responsibilities Act 2006 (Vic) s 7; Human Rights Act 2004 (ACT) s 28; New Zealand Bill of Rights Act 1990 (NZ) s 5.
See, eg, Human Rights Act 1998 (UK) c 42, sch 1 pt I, art 11(2). See also, Canada Act 1982 c 11 s 1; New Zealand Bill of Rights Act 1990 (NZ) s 5; Charter of Human Rights and Responsibilities Act 2006 (Vic) s 7; Human Rights Act 2004 (ACT) s 28.
See Ch 1.
See Ch 1.
Law Council of Australia, Submission 75; National Association of Community Legal Centres, Submission 66; ANU Migration Law Program, Submission 59; Public Interest Advocacy Centre, Submission 55; UNSW Law Society, Submission 19.
See Ch 1.
International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976) art 22(2).
Professors Campbell and Whitmore wrote, concerning vagrancy laws, that ‘New South Wales in 1835 was still a penal colony and one can understand why at that time it should have been thought necessary to prevent people getting together to hatch crimes’: Enid Campbell and Harry Whitmore, Freedom in Australia (Sydney University Press, 1966) 135. This was quoted in Tajjour v New South Wales (2014) 313 ALR 221,  (French CJ).
South Australia v Totani (2010) 242 CLR 1,  (Gummow J).
In that case, South Australia’s Serious and Organised Crime (Control) Act 2008 s 4 aimed to disrupt and restrict the activities of organisations involved in serious crime and their members and associates and to protect the public from violence associated with such organisations.
South Australia v Totani (2010) 242 CLR 1, 36 .
Tajjour v New South Wales (2014) 313 ALR 221,  (Gageler J). References omitted.
Melbourne Corporation v Barry (1922) 31 CLR 174, 206 (Higgins J). Quoting R v Cunningham Graham and Burns; ex parte Lewis (1888) 16 Cox 420.
International Labour Organization, Freedom of Association and Protection of the Right to Organise Convention, C87 (entered into force 4 July 1950).
International Covenant on Economic, Social and Cultural Rights, opened for signature 16 December 1966, 993 UNTS 3 (entered into force 3 January 1976) art 8.
See, eg, Australian Government Attorney-General’s Department, Right to Freedom of Assembly and Association <http://www.ag.gov.au/RightsAndProtections/HumanRights/PublicSectorGuidanceSheets>.
UNSW Law Society, Submission 19. The Society observed that, for example, while association laws ‘have been thought to reduce crime owing to the fact that they prevent communication and planning, there have also been instances where anti-association laws have had the opposite effect as in Canada, where following the introduction of legislation to ban Bikie clubs there was a proliferation in ethnic gangs’.