Protections from statutory encroachment

Australian Constitution

5.9          Freedom of association is not expressly protected in the Australian Constitution. There is also no free-standing right to association implied in the Constitution.[9] Generally, Australian Parliaments may make laws that encroach on freedom of association.

5.10       This power is subject to general constitutional constraints on the legislative powers of the Commonwealth. For example, in 1951, the High Court ruled that the Communist Party Dissolution Act 1950 (Cth) was not a valid exercise of express legislative power,[10] and nor was it valid under an implied power to make laws for the preservation of the Commonwealth and its institutions from internal attack and subversion.[11]

5.11       However, just as there is an implied constitutional right to ‘political communication’, arguably there is also an implied right to ‘political association’. As in the case of political communication, any implied right to ‘political association’ does not protect a personal right, but acts as a restraint on the exercise of legislative power by the Commonwealth.

5.12       The High Court has said that ‘freedom of association to some degree may be a corollary of the freedom of communication formulated in Lange v Australian Broadcasting Corporation’.[12]

5.13       Recognition of this corollary acknowledges the importance of freedom of association to a vibrant democracy. People should be free, generally speaking, to join groups like political parties to lobby for and effect change. Gaudron J in Australian Capital Television Pty Ltd v Commonwealth said that the

notion of a free society governed in accordance with the principles of representative democracy may entail freedom of movement [and] freedom of association.[13]

5.14       However, in the Australian constitutional context, it seems this right to free association is only a corollary of the right to political communication. The High Court said in Wainohu v New South Wales:

Any 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.[14]

5.15       The effect of this decision, Professors George Williams and David Hume wrote, ‘will be to give freedom of association a limited constitutional vitality’.[15]

The principle of legality

5.16       The principle of legality provides some protection to freedom of association.[16] When interpreting a statute, courts will presume that Parliament did not intend to interfere with freedom of association, unless this intention was made unambiguously clear.

5.17       For example, in Melbourne Corporation v Barry, the High Court found that a by-law, made under a power to regulate traffic and processions, could not prohibit traffic and processions. Higgins J said:

It must be borne in mind that there is this common law right; and that any interference with a common law right cannot be justified except by statute—by express words or necessary implication. If a statute is capable of being interpreted without supposing that it interferes with the common law right, it should be so interpreted.[17]

5.18       In Tajjour v New South Wales (Tajjour) the High Court confirmed that there is no constitutionally implied freedom of association, separate from the implied freedom of political communication.[18] However, Keane J cited High Court authority for the proposition that, at common law, freedom of association is a ‘fundamental aspect of our legal system’.[19]

5.19       In Minister for Immigration and Citizenship v Haneef (Haneef) the Full Court of the Federal Court approached the construction of the word ‘association’ in the light of common law principles. The Court concluded that those principles tended against a construction authorising the Minister to find a person to have failed a migration character test[20] ‘merely on the basis of an innocent association with persons whom the Minister reasonably suspects have been or are involved in criminal conduct’.[21] The principle of legality, applied to freedom of association, can be seen as an ‘integral part’ of the Court’s approach to statutory interpretation in Haneef.[22]

International law

5.20       International law recognises rights to peaceful assembly and to freedom of association. For example, the International Covenant on Civil and Political Rights (ICCPR) provides for ‘the right of peaceful assembly’ and the ‘right to freedom of association including the right to form and join trade unions’.[23]

5.21       In addition, the International Covenant on Economic, Social and Cultural Rights (ICESCR) provides for the ‘right of everyone to form trade unions and join the trade union of his choice’.[24]

5.22       Australia is also bound to respect freedom of association under international labour standards, and through its membership of the International Labour Organization (ILO).[25] International labour standards seek to guarantee the right of both workers and employers to form and join organisations of their choice.[26]

5.23       International instruments cannot be used to ‘override clear and valid provisions of Australian national law’.[27] However, where a statute is ambiguous, courts will generally favour a construction that accords with Australia’s international obligations.[28]

Bills of rights

5.24       In other countries, bills of rights or human rights statutes provide some protection from statutory encroachment. Freedom of association is protected in the human rights statutes in the United Kingdom,[29] Canada[30] and New Zealand.[31] For example, the Human Rights Act 1998 (UK) gives effect to the provisions of the European Convention on Human Rights, art 11 of which provides:

Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.[32]

5.25       The First Amendment to the United States Constitution refers to the ‘right of the people peaceably to assemble, and to petition the Government for a redress of grievances’.[33]

5.26       Freedom of association is also provided for in the Victorian Charter of Human Rights and Responsibilities and the Human Rights Act 2004 (ACT).[34]