In its latest decision on the status of common law rights in Australian law on 8 October 2014, the High Court has ruled that the rights of assembly and association in New South Wales have been overridden by the consorting provisions of the Crimes Act 1900 (NSW) that were introduced in 2012.

As discussed in previous posts, a series of cases in the High Court commencing with Nationwide News in 1992 have found and tested the limits of the implied freedom of political communication that, according to the High Court, is constitutionally entrenched in the Constitution, safe from overriding legislation. The Court has made it clear that its scope is limited to political communication and does not extend more broadly to freedom of speech.

In assessing whether state of federal legislation contravenes this implied right of political communication, the Court applies the two-part “Lange test”. That test involves asking:

1. Does the law “effectively burden” freedom of communication about political and government matters?
2. If so, is it “reasonably appropriately and adapted to serve the legitimate end of the maintenance of representative and responsible government”.

Using this test, the Court has found that a law restricting the use of public thoroughfares in the Adelaide CBD without permission that prevented the activities of street preachers and one that prevented people from sending offensive material through the mail satisfied the test and were therefore not invalid as interfering with the right of political communication.

Which brings us to the Tajjour decision. The facts were that Mr Tajjour had been charged with breaching s93X of the Crimes Act NSW (1900) which makes it an offence to “habitually consort” with convicted offenders after being given an official warning in relation to each of those convicted offenders, provided that the person consorts with at least 2 convicted offenders and on at least 2 occasions. A convicted offender is a person who has been convicted of an indictable offence.

“Consort” is not defined in the Act except to include consorting “in person or by electronic or any other means”. Dictionaries define consorting to mean associating with or being in company with a person of an undesirable nature. t is important to note that under the Act, it does not matter what the purpose of the consorting is – whether it is to plan a crime, buy groceries or discuss politics together. Nor is there any limit on the age of the age of the offence for which a person has been convicted. Consorting provisions have been introduced in various forms in the states in order to give police more powers to deal with organised crime (although a review of their effect by the NSW Ombudsman’s Office showed they have disproportionately been mainly used against young people, Indigenous people and the homeless).

After being charged with consorting, Mr Tajjour made an application to the NSW Supreme Court that the consorting provisions were invalid because they conflicted with the implied constitutional right of political communication. As the case involved the interpretation of a constitutional right, the Supreme Court referred it to the High Court. Mr Tajjour argued that the consorting provisions were in conflict with an implied constitutional right of freedom of association and/or that they were invalid because they conflicted with the implied freedom of communication on governmental and political matters.

The High Court disagreed and upheld the validity of the consorting provisions. None of the judges were in support of the argument that there is any implied constitutional right of freedom of association or assembly, independent of the freedom of political communication. By a 6:1 majority the Court found that the consorting provisions also did not fail the Lange test and so were not invalid. The difficulty, however, is that the reasoning of the judges varied considerably, with five different judgments being delivered. This means that this important area of law still lacks clarity, and it is hard to apply the decision to other situations, with each case depending on how individual judges interpret the law. Here is a very brief summary of their judgments.

Chief Justice French (in dissent): The consorting provisions are invalid. The law burdens the freedom of political communication because it does not carve out an exception for political communication and cannot be interpreted as not applying to freedom of communication. However, there is no freestanding right of freedom of assembly.

Justice Hayne: Although the law imposes a burden on the constitutional freedom of political communication, the ends justify the means. The amendments are directed at the prevention of crime, by prohibiting habitual association among criminals, they do not prohibit debate, even though they do this by limiting the occasions on which political views can be discussed. This is a legitimate end which satisfies the two limbs of the Lange test. The fact that previous versions of consorting provisions in Australian law have not had a detrimental effect on the maintenance of constitutionally prescribed system of representative government demonstrates that.

Justices Crennan, Kiefel and Bell: Found that the legislation does not breach the 2nd limb of the Lange test and is therefore not invalid. The Lange test is not about protecting a personal right to freedom of expression – that does not exist as a constitutional right. It is about protecting our system of government. The consorting legislation is directed at a legitimate object, and prohibiting political discussion is just an incidental effect. It is not up to the Court to consider if less intrusive alternatives are available – the Court is not the Parliament, and it is not concerned with individual rights (so US cases on freedom of speech are not relevant).

Justice Gageler: The legislation as a whole is invalid as breaching the constitutional freedom of political freedom, but it can be read down or severed using the severance power in the Interpretation Act 1987 (NSW) “to read down a provision expressed in general words so as to have no application within an area in which legislative power is subject to a clear constitutional limitation”.

Justice Keane: Took a limited meaning of “consorting” to find that consorting does not apply to discussions about politics or government therefore the legislation does not apply in that situation. In interpreting the consorting provisions, it is permissible to examine their legislative history. That history shows that they were never intended to extend to communication about political or government matter. Certain situations are not within the meaning of “consorting” because “there is no intentional seeking out of the acceptance of a personal social relationship with or by a person convicted of an indictable offence” and “the interaction in question lacks the personal intimacy which characterises the relationship between consorts”.

In summary, the importance of the Tajjour decision is that the Court has now made it clear that:

  • The Lange test will be used to examine legislation allegedly affecting the freedom of assembly or association
  • there is no underlying constitutional right of freedom of assembly or association, independent of the freedom of political communication and;
  • therefore state and federal legislation may override any common law freedom of assembly or association.

Again, the decision signals the fragile nature of common law rights in Australian law. Australia and Nigeria, are the only two countries with a common law heritage that do not to have a charter of rights. While there is case law to the effect that there are common laws right to freedom of expression, assembly and association and that, where possible, legislation should be interpreted to be consistent with these common law rights (this has come to be known as the principle of legality to be applied by judges in interpreting legislation). But if legislation cannot be interpreted that way, so it is clear that it is intended to override these common law rights, then the legislation prevails.


kate_twitter_picKate Burns is RoLIA’s Chief Executive Officer. Join the discussion about rule of law issues on Twitter @RoLAustralia.