The common law

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.