Editors’ Question New South Wales has introduced controversial consorting laws to target ‘bikie gangs’ in light of recent waves of violence linked to these gangs and other organised crime groups. This raises the question as to whether the Australian Constitution does and should protect an implied freedom of political association, or association more generally. Is it time to take ‘bike’ freedom, or have such a freedom recognised? TFB editors share their views below. Nicola says:
Bianca says:
In Tajjour v NSW1, the High Court upheld s 93X of the Crimes Act2, which makes it an offence to consort with convicted offenders. It was found that the impugned section, despite serious concerns, was appropriate and served a legitimate purpose to prevent crime. One of the issues presented to the Court was that the law does not distinguish between associations that might be for entirely innocent purposes, and associations that have sinister undertones. This is problematic as the defence offered in s 93Y3 is quite limited, meaning that many innocent associations may fall outside its operation. More importantly, it was put before the Court that State legislative power is limited by Australia’s human rights obligations under the ICCPR4 and an implied freedom of association under the Constitution.
The anti-gang laws introduced in October 2013 have ensured that bikie gangs can be classified as criminal organisations and ban members from gathering in public and wearing gang insignia. Consequently, Hell’s Angels member Mr. Kuczborski argued that these laws ‘breach notions of equal justice by restricting the association rights of motorcycle gang members’.10
The High Court has accepted that an implied freedom of political communication may be derived from the structure of the Constitution.5 Arguably, a freedom of association (at least in a political context) is incidental to this and is also enshrined in the Constitution. When people associate, they communicate. As such, freedom to communicate, without the freedom to associate, would be an ‘impoverished freedom’.6 It is true that the right to associate is not absolute and thus restrictions on this right may be justified.7 Further, such restrictions may be in the public interest where they are necessary to prevent organised criminal activity, which would be injurious to society. However, in my opinion, the Tajjour case highlights the importance of promoting the adoption of international human rights norms into Australian domestic law. The current lack of protection offered in conjunction with a lack of statutory mechanism to recognise a freedom of association in New South Wales,8 may lead to individual rights being burdened by the application of s 93X (and any subsequent acts in response to ‘gang wars’). I agree wholeheartedly with Chief Justice French’s assertion in Tajjour: ‘statutes should be construed, where constructional choices are open, so that they do not encroach, or encroach as little as possible, upon fundamental rights and freedoms at common law.’9 In light of this, if presented with an appropriate factual vehicle, the High Court should confirm whether an implied freedom of association exists in Australia. For now at least, it appears these laws are here to stay.
The idea that legislation has been enacted to crush the rights of individuals and restrict their ability to associate has been largely unpopular. Confirmed by Chief Justice French in South Australia v Totani, legislative encroachments are hardly uncommon when it comes to the prevention of crime.11 Legislative restrictions have been seen in a positive light especially in cases of bikie gangs, as ‘limits on free association are also sometimes said to be necessary for other people to enjoy freedom of association.’12 Whilst it is easy to see the merits of these laws in preventing criminal plans, it is also clear that these restrictions are unethical. By limiting the freedoms of one group and not clearly distinguishing ‘between associations for sinister purposes, and associations for non-sinister purposes,’13 it has the potential to create a loss of faith in the law as these restrictions go against basic legal principles of fairness and equality. It is imperative that the Australian Constitution makes room for the protection of our political association and assembly to ensure that individuals have the right to conduct themselves as they wish, granted they stay within the confines of the law. Otherwise, why just stop at bikie gangs?
Kieran says: The wisdom behind a law that seeks to punish those who have done no harm to others, but simply for the company they keep, must be questioned. Consorting laws almost entirely rely on police discretion, and have done so since the first consorting laws were enacted in New South Wales in 1929. Moreover, it is obvious that consorting laws are habitually justified by political issues. From Premier Thomas Bevin’s efforts to curb the reign of Sydney’s most notorious madams, Kate Leigh and Tilly Devine in the 1920s, to the Crimes Amendment (Consorting and
1 [2014] HCA 35. 21900 NSW. 3Crimes Act 1900 (NSW). 4‘International Covenant on Civil and Political Rights’. 5 Section 7 and 24; Lange v Australian Broadcasting Corporation (1997) 189 CLR 520.6 Anthony, Gray, ‘Freedom of Association in the Australian Constitution and the Crime of Consorting’ (2013) 32 The University of Tasmania Law Review, 179. 7 Anthony, Gray, ‘Freedom of Association in the Australian Constitution and the Crime of Consorting’ (2013) 32 The University of Tasmania Law Review, 178.8See for example, Charter of Human Rights and Responsibilities Act 2006 (Vic) s 16; Human Rights Act 2004 (ACT) s 15.9Tajjour v NSW [2014] HCA 35, [11]. 10Sky News, ‘High Court rejects anti-bikie laws challenge’, Sky News (online), 14 November 2014, <http://www.skynews.com.au/news/top-stories/2014/11/14/high-court-rejectsanti-bikie-laws-challenge.html> 11 [2010] HCA 39. 12Australian Law Reform Commission, Freedom of Association, Traditional Rights and Freedoms - Encroachments by Commonwealth Laws, Report No 46 (2014), 38 [4.25]. 13 Anthony, Gray, ‘Freedom of Association in the Australian Constitution and the Crime of Consorting’ (2013) 32 The