Protections from statutory encroachment

The Australian Constitution

4.10       Freedom of association is not expressly protected in the Australian Constitution. There is also no free-standing right to association implied in the Constitution.[8] Generally, Australian Parliaments may make laws that encroach on freedom of association.

4.11       However, just as there is in the Constitution an implied right to ‘political communication’, arguably there is also an implied right to ‘political association’. The High Court has said that ‘freedom of association to some degree may be a corollary of the freedom of communication formulated in Lange v Australian Broadcasting Corporation’.[9]

4.12       Recognition of this corollary acknowledges the importance of freedom of association to a vibrant democracy. People should be free, generally speaking, to join groups like political parties to lobby for and effect change. Gaudron J in Australian Capital Television Pty Ltd v The Commonwealth (1992) said that the

notion of a free society governed in accordance with the principles of representative democracy may entail freedom of movement [and] freedom of association.[10]

4.13       However, it seems this right to free association is only a corollary of the right to political communication. The High Court said in Wainohu v New South Wales (2011):

Any freedom of association implied by the Constitution would exist only as a corollary to the implied freedom of political communication and the same test of infringement and validity would apply.[11]

4.14       The effect of this decision, Professors George Williams and David Hume write, ‘will be to give freedom of association a limited constitutional vitality’.[12]

The principle of legality

4.15       The principle of legality provides some protection to freedom of association.[13] When interpreting a statute, courts will presume that Parliament did not intend to interfere with freedom of association, unless this intention was made unambiguously clear.[14]

4.16       For example, in Melbourne Corporation v Barry (1922), the High Court found that a by-law, made under a power to regulate traffic and processions, could not prohibit traffic and processions. Higgins J said:

It must be borne in mind that there is this common law right; and that any interference with a common law right cannot be justified except by statute—by express words or necessary implication. If a statute is capable of being interpreted without supposing that it interferes with the common law right, it should be so interpreted. As stated in Ex parte Lewis, it is a ‘right for all Her Majesty’s subjects at all seasons of the year freely and at their will to pass and repass without let or hindrance’.[15]

International law

4.17       International law recognises rights to peaceful assembly and to freedom of association. For example, the ICCPR provides for a ‘right to freedom of association including the right to form and join trade unions’.[16]

4.18       International instruments cannot be used to ‘override clear and valid provisions of Australian national law’.[17] However, where a statute is ambiguous, courts will generally favour a construction that accords with Australia’s international obligations.[18]

Bills of rights

4.19       In other countries, bills of rights or human rights statutes provide some protection from statutory encroachment. Freedom of association is protected in the human rights statutes in the United Kingdom,[19] Canada[20] and New Zealand.[21] For example, the Human Rights Act 1998 (UK) gives effect to the provisions of the European Convention on Human Rights, art 11 of which provides:

Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.[22]

4.20       The First Amendment of the US Constitution refers to the ‘right of the people peaceably to assemble, and to petition the Government for a redress of grievances’.[23]

4.21       Freedom of association is also provided for in the Victorian Charter of Human Rights and Responsibilities and the Human Rights Act 2004 (ACT).[24]