6.13 There has been some recognition by Australian courts that freedom of association should be considered a common law right. In Tajjour v New South Wales (Tajjour), Keane J cited High Court authority for the proposition that, at common law, freedom of association is a ‘fundamental aspect of our legal system’.
6.14 The approach of the common law to freedom of assembly has been described as ‘hesitant and negative, permitting that which was not prohibited’. 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’.
6.15 Common law freedom of assembly is only for peaceful purposes. Freedom of assembly does not always involve freedom of association. People assemble, for example, for entertainment in a cinema, theatre or a sports stadium without necessarily associating with one another.
Tajjour v New South Wales (2014) 313 ALR 221; Minister for Immigration and Citizenship v Haneef (2007) 163 FCR 414. See Australian Council of Trade Unions, Submission 44.
Tajjour v New South Wales (2014) 313 ALR 221, . Citing Australian Communist Party v Commonwealth (1951) 83 CLR 1, 200 (Dixon J).
R (Laporte) v Chief Constable of Gloucestershire Constabulary  2 AC 105, 126–7. This is generally the way in which the common law protects rights: see Ch 2.
Duncan v Jones  1 KB 218 222. This ‘reflected the then current orthodoxy’: R (Laporte) v Chief Constable of Gloucestershire Constabulary  2 AC 105, 126–7.