Freedom of Association in Australia

Aroney, Nicholas; Fowler, Mark

Freedom of Association in Australia

Files

SWP 5 Final Australia.pdf(1.36 MB)

Published Version

Date

2024

Authors

Aroney, Nicholas

Fowler, Mark

Publisher

School of Law, University College Cork

Abstract

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. In that context, this article begins by outlining how Australian common law affirms the right to free association as a background liberty, illustrating its application across several domains, including in relation to social and sporting clubs, trade unions and employers’ associations, charities and religious organisations, advocacy groups and political parties. The article then discusses the interaction between the national constitution and freedom of association, explaining why the constitution does not contain an express right to freedom of association, while also exploring the limited potential of the express constitutional right to freedom of religion (s 116) and the implied freedom of political communication to provide a degree of protection for religious and political associative rights. Finally, the article summarises the limited statutory protections accorded to freedom of association through human rights charters enacted in three subnational jurisdictions in Australia, juxtaposing these against national and state laws that regulate and constrain associational rights, particularly in the fields of electoral law, not-for-profit associations and charity law, employment relations, anti-terrorism laws and laws directed against organised crime and anti-discrimination law. To illustrate the important role of the common law and constitutional protection for associational freedom within Australia, three case studies are specifically addressed. These focus on the regulatory powers of the Commissioner of the Australian Charities and Not-for-profits Commission at a federal level, the associations regulators at a state and territory level and on the limitations imposed upon advocacy by Australian charities. It is argued 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. More research is needed that rigorously assesses the state of Australian law on the topic in comparison with other national regimes and against international human rights standards.

Keywords

Freedom of association , Australia

Citation

Aroney, N. and Fowler, M. (2024) ‘Freedom of Association in Australia’, Societās Working Paper 05/2024 (18pp). Cork: School of Law, University College Cork.