Freedom of Association in Australia

Nicholas Aroney & Mark Fowler

University of Queensland & University of Notre Dame Australia

Introduction

Australia is an international outlier in relation to the legal protection of freedom of association. As one of the only countries in the world without a national bill of rights, freedom of association is legally protected and regulated in Australia principally by the common law and by statute, and only in an elliptical way by the national Constitution. Much depends on cultural norms and historical traditions that undergird respect for freedom of association in Australian social and political life. Despite the lack of explicit constitutional protection, Australian citizens exercise and enjoy a comparably very high level of freedom of association. This raises questions about the importance of social, political and legal culture for the maintenance of human rights and the rule of law.

This brief blog post argues that Australia enjoys a comparably high level of freedom of association largely due to prevailing cultural beliefs and social practices in the country, supported by the common law’s traditional respect for freedom of association and a democratic system of open political contestation which enables civil society organisations to mobilise against proposals that would unreasonably curtail their freedoms. While the Australian Constitution and federal and state legislation provide a degree of protection for freedom of association, it is argued that its most important bulwark is the strong tradition of associating that is deeply rooted in Australian culture, combined with widely shared acknowledgement of the importance of associational liberty and respect for the rule of law. However, recent developments in several areas of Australian law have posed significant challenges, underscoring the importance of continued advocacy for the protection of freedom of association in the country.

Freedom of Association as a Common Law Liberty and a Constitutional Right

A fundamental principle of Australian common law is that whatever is not prohibited by law is legally permitted. This common law liberty, which includes freedom of association, persists so long as it is not curtailed by statute. Beyond laws prohibiting criminal or treasonous association, the common law generally places no a priori restraints on freedom of association. Australia is also a party to several international human rights treaties that protect the right to freedom of association, a factor which can influence the manner in which statutes are interpreted by Australian courts.

The Australian Constitution does not contain a bill or charter of rights. It does protect certain freedoms but only in sparing terms. In particular, the Commonwealth Parliament cannot make laws ‘prohibiting the free exercise of any religion’ (section 116). The provision has been interpreted relatively narrowly so that it applies only to federal laws that have as their purpose the prohibition of the free exercise of religion.

However, the High Court of Australia has found that the system of representative and responsible government established by the Constitution gives rise to an implied freedom of communication with respect to governmental or political matters. Some High Court judges have also suggested that, for the same essential reasons, the Constitution also contains an implied freedom of political association, at least to some extent. The High Court has held that a statutory burden on freedom of political communication may be justified if the law is reasonably appropriate and adapted to serve a legitimate end, provided the law is compatible with the constitutionally prescribed system of representative and responsible government. However, it has been the federal division of powers that has sometimes been more effective in practically protecting freedom of association than these express and implied freedoms.

Freedom of Association as a Statutory Exemption

Within this common law and constitutional context, freedom of association is both recognised and regulated in Australia through a wide range of federal and state laws dealing with a similarly extensive array of associations formed to pursue many and varied objects and purposes.

At the state and territory level, locally incorporated not-for-profit associations are subject to the registration, monitoring and investigation powers of local regulators. Statutory regulators in most of the states and territories have broad discretion to refuse to incorporate an association, as well as to refuse to permit the subsequent amendment of an association’s objects. As these provisions do not expressly purport to limit common law freedoms, they provide striking examples where the principle of legality (the interpretive presumption that Parliament does not intend to limit certain freedoms unless it does so in express terms) may have important work to do in the event regulators apply their powers in a manner that inordinately restricts associational freedom.

In respect of charities, Australian charitable trusts are subject to the parens patriae jurisdiction of the Attorney-General. The recently established Commissioner of the Australian Charities and Not-for-profits Commission (ACNC) has been given considerable powers over ‘federally regulated entities’, including the power to give directions, and to suspend, remove and replace the leadership of charities, without prior Court approval. There is a limited qualification to this power under which ‘basic religious charities’ (BRCs) enjoy the benefit of an exemption from the Commissioner’s powers to suspend, remove and replace their leadership, but not from the power to issue directions. This does not extend to incorporated religious institutions, however, which illustrates the importance of constitutional protection of freedom of religious association in Australia.

Despite the implied freedom of political communication, advocacy by Australian charities is limited by certain tests imposed on registered charities by the federal Charities Act 2013, which has led to concerns that entities which hold a traditional view of marriage (union of a man and woman only) could lose their charity status. The federal Criminal Code constrains associational rights through prohibiting activities such as conspiring or associating for certain criminal purposes, and state and territory laws similarly authorise preventative detention if reasonable grounds exist to conclude that a person is likely to perpetrate serious acts of violence or sexual assault. Anti-discrimination laws are another important set of statutory constraints applicable to a wide array of associations, which are designed to protect freedom of association by allowing for limited circumstances of exclusion.

One important and controversial topic concerns the rights of religious bodies to maintain their particular religious ethos and the rights of individuals to be members of, or be provided services by, such organisations, without discrimination. Under Australian federal and state anti-discrimination laws, there are prohibitions on discrimination in employment that apply generally to all employers, but with special exemptions for religious organisations in certain limited contexts. However, the exceptions for religious bodies and schools have often been further limited by recent amendments, so that they do not (or no longer) apply, for example, in relation to employment or education or the provision of government-funded services. There are current proposals to curtail these limited exceptions even further.

Statutory human rights charters enacted in two Australian States (Victoria and Queensland) and one Territory (the Australian Capital Territory), all of which protect ‘freedom of association’, have not been especially effective, including in relation to ‘freedom of religion’, which is also protected. A factor is that the human rights charters contain express limitation clauses that allow human rights to be limited on very broad ‘balancing’ grounds, such that human rights are ‘subject to reasonable limits that can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom’. This contrasts with the stricter requirement, stipulated by articles 18 and 22 of the International Covenant on Civil and Political Rights, that such freedoms should only be restricted by measures that are strictly necessary to achieve particular legitimate objectives.

Conclusions

Despite the absence of robust legal protections of freedom of association, Australian citizens enjoy comparably very high levels of freedom of association, as well as freedom of assembly and expression. By international standards, Australia is consistently assessed as maintaining high levels of personal freedom, political rights, civil liberties and the rule of law. How has Australia maintained such high levels of freedom of association without the sorts of human rights protections that exist in many other countries in the world?

As legal sociologists have long observed, while law shapes society, society also shapes the law. Australia has a social, political and legal culture that generally respects the rule of law and the maintenance of fundamental freedoms. This is undergirded by comparably very high levels of associating and volunteering in the country. These social realities place practical limits on the extent to which governments consider themselves able or entitled to regulate spheres of civil society. However, like many comparable countries, the level of associating and volunteering, as well as social trust, in Australia has declined significantly in recent decades. These trends, and recent legislation imposing increasingly intrusive controls on associations, pose challenges for the ongoing protection of freedom of association. Civil society organisations must themselves advocate for the protection of freedom of association, along with other fundamental rights and freedoms such as freedom of expression, freedom of religion and freedom of assembly, particularly as these are challenged by laws that reach ever-deeper into the daily practices of such organisations. The price of liberty is eternal vigilance.

Nicholas Aroney is Professor of Constitutional Law at the University of Queensland.

Mark Fowler is Adjunct Associate Professor at the University of Notre Dame.

Both authors express their profound thanks to Anna Rodwell for her valuable assistance in the preparation of this post.

Suggested citation: Nicholas Aroney and Mark Fowler, ‘Freedom of Association in Australia’ IACL-AIDC Blog (17 September 2024) Freedom of Association in Australia — IACL-IADC Blog (blog-iacl-aidc.org)