Finding the Foothold: Freedom of Political Association in the Australian Constitution

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.