The common law

5.1          In practice, Australians are generally free to associate with whomever they like, and to assemble to participate in activities including, for example, a protest or demonstration. However, freedom of association and assembly are less often discussed, and their scope at common law less clear than related freedoms, such as freedom of speech.

5.2          This chapter discusses the source and rationale of the common law right of freedom of association; how this right is protected from statutory encroachment; and when laws that interfere with freedom of association may be considered justified, including by reference to the concept of proportionality.^[1]

5.3          The approach of the English common law to freedom of assembly has been described as ‘hesitant and negative, permitting that which was not prohibited’.^[2] In Duncan v Jones, Lord Hewart CJ said that ‘English law does not recognize any special right of public meeting for political or other purposes’.^[3] On the other hand, in Australia, there has been some recognition that freedom of association should be considered a common law right.^[4] Regardless, freedom of association is widely regarded as a fundamental right.

5.4          The 19th century author of Democracy in America, Alexis de Tocqueville, considered freedom of association as ‘almost as inalienable as the freedom of the individual’:

The freedom most natural to man, after the freedom to act alone, is the freedom to combine his efforts with those of his fellow man and to act in common … The legislator cannot wish to destroy it without attacking society itself.^[5]

5.5          Professor Thomas Emerson wrote in 1964 that freedom of association has ‘always been a vital feature of American society’:

In modern times it has assumed even greater importance. More and more the individual, in order to realize his own capacities or to stand up to the institutionalized forces that surround him, has found it imperative to join with others of like mind in pursuit of common objectives. His freedom to do so is essential to the democratic way of life.^[6]

5.6          Freedom of association is closely related to other fundamental freedoms recognised by the common law, particularly freedom of speech. It has been said to serve the same values as freedom of speech: ‘the self-fulfilment of those participating in the meeting or other form of protest, and the dissemination of ideas and opinions essential to the working of an active democracy’.^[7]

5.7          The United Nations Special Rapporteur on the rights to freedom of peaceful assembly and of association explained the importance of these rights, as empowering people to:

express their political opinions, engage in literary and artistic pursuits and other cultural, economic and social activities, engage in religious observances or other beliefs, form and join trade unions and cooperatives, and elect leaders to represent their interests and hold them accountable.^[8]

5.8          Freedom of assembly and association serve as vehicles for the exercise of many other civil, cultural, economic, political and social rights. Significantly, freedom of association provides an important foundation for legislative protection of employment rights. The system of collective, or enterprise bargaining, which informs much of Australia’s employment landscape, relies on the freedom of trade unions and other employee groups to form, meet and support their members.