12.01.2016
6.13 There has been some recognition by Australian courts that freedom of association should be considered a common law right.[2] 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’.[3]
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’.[4] 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’.[5]
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.
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[2]
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.
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[3]
Tajjour v New South Wales (2014) 313 ALR 221, [224]. Citing Australian Communist Party v Commonwealth (1951) 83 CLR 1, 200 (Dixon J).
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[4]
R (Laporte) v Chief Constable of Gloucestershire Constabulary [2007] 2 AC 105, 126–7. This is generally the way in which the common law protects rights: see Ch 2.
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[5]
Duncan v Jones [1936] 1 KB 218 222. This ‘reflected the then current orthodoxy’: R (Laporte) v Chief Constable of Gloucestershire Constabulary [2007] 2 AC 105, 126–7.