Justifications for encroachments

4.22       Preventing people from ‘getting together to hatch crimes’ has long been considered one justification for restrictions on freedom of association.[25] Chief Justice of the High Court, Robert French, has said that:

Laws directed at inchoate criminality have a long history, dating back to England in the Middle Ages, which is traceable in large part through vagrancy laws.  An early example was a statute enacted in 1562 which deemed a person found in the company of gypsies, over the course of a month, to be a felon.[26]

4.23       The High Court has recognised a ‘public interest’[27] in restricting the activities, or potential activities, of criminal associations and criminal organisations.[28] In South Australia v Totani (2011),[29] French CJ explained that legislative encroachments on freedom of association are not uncommon where the legislature aimed to prevent crime. 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.[30]

4.24       Similarly, in Tajjour v State of New South Wales, 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.[31]

4.25       Limits on free association are also sometimes said to be necessary for other people to enjoy freedom of association and assembly. 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 therefore need to inhibit the freedom of assembly of others, for example by giving police certain powers to control or regulate public protests.

4.26       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. Quoting Ex parte Lewis (1888) (the Trafalgar Square Case), 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.[32]

4.27       Similarly, freedom of association is sometimes limited by laws that regulate protests, laws perhaps aimed at ensuring the protests are peaceful and do not disproportionately affect others. Protest organisers might 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 like the G20 or APEC.

4.28       International law and bills of rights include certain general circumstances in which limits on freedom of association may be justified, for example, to:

  • protect the rights or freedoms of others;

  • protect national security or public safety;

  • prevent public disorder or crime.[33]

4.29       The ICCPR provides that freedom of association may be limited where it is necessary and in the interests of national security or public safety, public order, the protection of public health or morals or the protection of the rights and freedoms of others.[34]

4.30       International instruments also provide that the right to join a trade union may be limited as it applies to ‘members of the armed forces or of the police or of the administration of the State’.[35]

4.31       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’.[36]

4.32       The ALRC invites submissions identifying Commonwealth laws that limit free association without appropriate justification, and explaining why such laws are not justified.