6.37 It has long been recognised that laws may be justified in interfering with freedom of association, including to restrict the association of certain classes, groups or organisations of persons who are involved, or likely to be involved, in crime.
6.38 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’. Similarly, the ICCPR recognises permissible limitations on freedom of association.
6.39 The following section discusses some of the principles and criteria that may be applied to help determine whether a law that interferes with freedom of association is justified, including those under international law.
6.40 The threshold question in a proportionality test is whether the objective of a law is legitimate. Some guidance on what should be considered legitimate objectives of a law that interferes with freedom of association or freedom of assembly may be derived from the common law and international human rights law.
6.41 The common law and international human rights law recognise that freedom of association and freedom of assembly can be restricted in order to pursue legitimate objectives such as the protection of public safety and public order. Some existing restrictions on these freedoms are a corollary of pursuing other important public or social needs, such as the need to counter crime and control traffic.
6.42 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.
6.43 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.
6.44 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.
6.45 Limits on freedom of assembly are sometimes said to be necessary for other people to enjoy freedom of association. 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 need to inhibit the freedom of assembly of others, for example by giving police certain powers to control or regulate public protests.
6.46 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. 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.
6.47 Freedom of assembly is sometimes limited by laws that regulate protests aimed, for example, at ensuring protests are peaceful and do not disproportionately affect others. Protest organisers may 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, such as the 2007 APEC meeting in Sydney and the 2013 G20 summit in Brisbane.
6.48 In considering how restrictions may be appropriately justified, one starting point is international human rights law, and the restrictions permitted by the ICCPR. The ICCPR provides that no restrictions may be placed on the rights to freedom of peaceful assembly and of association 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’.
6.49 Many of the laws discussed below pursue these objectives. For example, criminal laws, including counter-terrorism and consorting laws, 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 and public order.
6.50 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.
6.51 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.
6.52 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, similar to the ICCPR, 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’.
6.53 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.
Balancing rights and interests
6.54 Whether all of the laws identified below as potentially interfering with freedom of association or freedom of assembly, 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 strikes an appropriate balance between these freedoms and other rights and interests.
6.55 A recognised starting point for determining whether an interference with freedom of association or freedom of assembly is justified is the international law concept of proportionality. In arts 21 and 22 of the ICCPR, the phrase ‘necessary in a democratic society’ is seen to incorporate the notion of proportionality.
6.56 In McCloy v New South Wales, the High Court expressly adopted a proportionality test to be applied where the purpose of a law and the means adopted to achieve that purpose are legitimate, but the law burdens the implied right of political communication. This test may also be applied to laws that interfere with freedom of association or freedom of assembly, if they are seen as a ‘corollary’ of the constitutional implied right.
6.57 In relation to one element of proportionality—suitability—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’.
Canadian Charter of Rights and Freedoms 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.
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, the Serious and Organised Crime (Control) Act 2008 (SA) 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. French CJ (in a dissenting judgment) concluded that the net cast by the provision was ‘wide enough to pick up a large range of entirely innocent activity’. The Chief Justice found that the offence was invalid by reason of the imposition of a burden on the implied freedom of political communication, stating that it fails to ‘discriminate between cases in which the purpose of impeding criminal networks may be served, and cases in which patently it is not’: Ibid , .
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 (the Trafalgar Square case).
See, eg, G20 (Safety and Security) Act 2013 (Qld); APEC Meeting (Police Powers) Act 2007 (NSW).
International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976) arts 21, 22.2; United Nations Economic and Social Council, Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights, UN Doc E/CN.4/1985/4, Annex (28 September 1984). See Ch 2.
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, Attorney-General’s Department (Cth), Right to Freedom of Assembly and Association <http://www.ag.gov.au>; United Nations Economic and Social Council, Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights, UN Doc E/CN.4/1985/4, Annex (28 September 1984).
McCloy v New South Wales  HCA 34 (7 October 2015)  (French CJ, Kiefel, Bell, Keane JJ). See Ch 2.
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’.