Justifications for encroachments

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’.[132]

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.[133]

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.[134]

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.[135] A number of stakeholders expressly endorsed proportionality as a means of assessing justifications for interferences with freedom of association.[136]

Legitimate objectives

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.[137] 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.[138]

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.[139] The High Court has recognised a ‘public interest’ in restricting the activities, or potential activities, of criminal associations and criminal organisations.[140]

5.116   In South Australia v Totani,[141] 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.[142]

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.[143]

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.[144]

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.[145]

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’.[146]

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.[147]

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’.[148]