Finding the Foothold: Freedom of Political Association in the Australian Constitution
| Author | Elizabeth Handsley,Geoffrey Milani |
| Date | 01 June 2019 |
| Published date | 01 June 2019 |
| DOI | 10.1177/0067205X19831805 |
| Subject Matter | Articles |
Article
Finding the Foothold: Freedom
of Political Association
in the Australian Constitution
Geoffrey Milani* and Elizabeth Handsley**
Abstract
The High Court has not definitively explained the legal status of the constitutionally implied
freedom of political association since its existence was first raised in 1992. Tajjour v New South
Wales affirmed the majority view that any constitutional protection enjoyed by political association
is derived from the freedom of political communication; or, in the words of the Court, a ‘corollary
to’ that freedom. In this article, we argue that the High Court should acknowledge the freedom of
political association as a free-standing freedom rather than a corollary of political communication.
The reasoning that gave rise to the implied freedom of political communication can also be applied
to political association. The Court’s approach to the implication of freedom of communication, of
building on the text of ss 7, 24 and 128 of the Constitution and the structures they establish, does
not appear to be at odds with the implication of freedom of association. Consequently, we argue
the Court has erred in favouring the corollary form of political association (pt IV). The corollary
freedom has not been justified and appears either entirely unnecessary (being subsumed by
political communication) or overly subjective in application. By contrast, the free-standing freedom
could adopt the well-established Lange test of validity with only minor adjustments and therefore
represent only a modest development of existing jurisprudence.
Introduction
In 1992, the High Court recognised an implied freedom of political communication in the
Australian Constitution, based in large part on the requirement in ss 7, 24 and 128 of voter
involvement in elections and referenda.
1
Contemporaneously, some judges mused that freedom
of association may also attract constitutional protection.
2
Two decades on, the Court has yet to
conclusively rule on whether such protection exists and has avoided a number of opportunities to
do so. In Mulholland v Australian Electoral Commission,
3
Wainohu v New South Wales
4
and
Tajjour v New South Wales,
5
the Court has predicated answers to questions of legislative validity
* BIntSt, LLBLP (Hons), (Flinders), Solicitor, Public Trustee of Tasmania. The author can be contacted at
gwmilani@outlook.com.
** BA, LLB (UNSW), LLM (Northwestern), Professor of Law, Flinders University. The author can be contacted at
handsley.elizabeth@gmail.com.
Federal Law Review
2019, Vol. 47(2) 306–330
ªThe Author(s) 2019
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/0067205X19831805
journals.sagepub.com/home/flr
under the freedom of political association on the hypothetical condition of ‘if’ the freedom is
constitutionally protected.
6
This has been possible as such cases have been answered on other
questions of constitutional law or by holding that the impugned legislation would be valid even if
political association is constitutionally protected.
7
In this article, we argue that, contrary to the view that ‘there is no foothold in the Constitution’
for freedom of association,
8
ss 7, 24 and 128 do appear to provide the requisite support for such a
freedom. As recently restated in McCloy v New South Wales,
9
the basis of the implied freedom of
political communication is the need to prevent the nullification of ss 7, 24 and 128 as the consti-
tutional means of maintaining executive and legislative accountability to electors.
10
It is difficult to
see why freedom of association should not be recognised as an equally important means to that
end. Given the role of political parties in the Westminster system, for example, as well as interest
groups generally in facilitating electoral choice, restricting constitutional protection to communi-
cation appears difficult to justify. That political communication and association may overlap does
not detract from the significance of association, independently of any role it might play in com-
munication, for electoral accountability.
Freedom of political association could be implied as a corollary of political communication,
11
or directly from ss 7, 24 and 128,
12
similarly to the freedom of political communication. The
principal distinction between these is their scope. The corollary freedom protects association only
where it is connected to actual communication of government or political material.
13
Essentially, it
still protects only the communication; it merely extends that protection to pre-communication
activities of associations. By contrast, a free-standing freedom would protect from legal burden
any associational activities that were judged to be constitutionally relevant, without any need to
show a particular link to such communication.
As at 2016, the Court had almost unanimously voiced its preference for a corollary freedom of
political association (ie, if freedom of association is protected at all). However, it has done so,
broadly speaking, without stating how the corollary freedom would operate. The one judgment that
has attempted to apply it appeared, confusingly, to view it as less a separate freedom connected to
political communication than an ingredient thereto.
14
We argue that the Court should instead
endorse a free-standing freedom of political association. A corollary freedom would be too sub-
jective — and arguably too far removed from the Constitution’s text — to operate reliably. In
contrast, a free-standing freedom of political association would simply adapt the Lange test for
political communication, operating with greater certainty.
The Free-Standing and Corollary Forms of Freedom Compared
The High Court has repeatedly declined to rule on whether the Constitution supports a freedom of
political association.
15
However, even if there were an affirmative answer to that question, the
further question would remain of how the Constitution supports such a freedom. It could either be
implied directly (independently) from the text and structure of the Constitution, or as a corollary to
political communication. The former approach, which we refer to as the ‘free-standing freedom’,
would imply the freedom on the same basis as that for political communication.
16
Some High
Court judges have noted that association is equally vital to representative government as commu-
nication,
17
a view shared by several commentators.
18
Such a view would tend to favour the free-
standing freedom as it puts associa tion on the same footing as communication . However the
majority of judges have indicated that if the freedom does exist, it is only in the corollary sense.
19
The source of the freedom is significant as it affects its scope.
20
Milani and Handsley 307
To continue reading
Request your trial