Laws that interfere with freedom of association

5.27       A wide range of Commonwealth laws may be seen as interfering with freedom of association, broadly conceived. Some of these laws impose limits on freedom of association that have long been recognised by the common law, for example, in relation to consorting with criminals and preserving public order. Arguably, such laws do not encroach on the traditional freedom, but help define it. However, these traditional limits are crucial to understanding the scope of the freedom, and possible justifications for new restrictions.

5.28       Commonwealth laws may be characterised as interfering with freedom of association in several different contexts, and including in relation to:

• criminal law;

• public assembly;

• workplace relations;

• migration law; and

• anti-discrimination law.

5.29       These laws are summarised below. Some of the justifications that have been advanced for laws that interfere with freedom of association, and public criticisms of laws on that basis, are also discussed.

Criminal law

5.30       A number of offences in the Criminal Code (Cth) directly criminalise certain forms of association. Notably, these include counter-terrorism and foreign incursion offences, and anti-consorting laws which criminalise associating in support of criminal activity or criminal organisations.

Counter-terrorism offences

5.31       Section 102.8 of the Criminal Code provides for the offence of associating with a member of a terrorist organisation and thereby providing support to the organisation, if the person intends the support to assist it. Terrorist organisations are prescribed by regulations made under s 102.1 of the Criminal Code.^[35]

5.32       Section 119.5 of the Criminal Code provides for offences of allowing the use of buildings, vessels and aircraft to commit offences, by permitting a meeting or assembly of persons to be held with the intention of supporting preparations for incursions into foreign countries for the purpose of engaging in hostile activities.

5.33       In addition, the terms of anti-terrorism control orders issued under the Criminal Code may contain a prohibition or restriction on a person ‘communicating or associating with specified individuals’.^[36]

5.34       The Independent National Security Legislation Monitor (INSLM) reviewed aspects of the associating with terrorist organisations offence in its 2013 Annual Report. The INSLM recommended that s 102.8 be amended to include an ‘exception for activities that are humanitarian in character and are conducted by or in association with the [International Committee of the Red Cross], the UN or its agencies, or (perhaps) agencies of like character designated by a Minister’.^[37]

5.35       The Law Council of Australia observed that the associating with terrorist organisations offence ‘may disproportionately shift the focus of criminal liability from a person’s conduct to their membership of an organisation’.^[38] It added that assessing justification for the offences is difficult, ‘given the broad executive discretion to proscribe a particular organisation and the absence of publicly available binding criteria to be applied’.^[39]

5.36       Problems with the process of specifying terrorist organisations were said to include that it ‘involves the attribution of defining characteristics and commonly shared motives or purposes to a group of people based on the statements or activities of certain individuals within the group’. Further, an organisation can be listed as a terrorist organisation simply on the basis that it ‘advocates’ the doing of a terrorist act.

The offences may also disproportionately impinge on freedom of association as the current process of proscribing terrorist organisations set out in Division 102 does not afford affected parties the opportunity to be heard prior to an organisation being listed or to effectively challenge the listing of an organisation after the fact, without exposing themselves to prosecution; and the avenues for review after an organisation has been listed may also be inadequate.^[40]

5.37       The UNSW Law Society also criticised the associating with terrorist organisations offence. It observed that it is important to understand that ‘mere association with a terrorist organisation may not be intentional and is not directly linked to the planning and execution of an attack’. It stated that despite the ‘legitimacy of the broad aims of counter-terrorism laws in Australia, it is debatable whether targeting individuals by criminalising association with terrorist organisations is effective and appropriate’.^[41]

5.38       The Law Council criticised the control orders and preventative detention orders regimes under divs 104 and 105 of the Criminal Code because a ‘person’s right to associate may be removed or restricted before the person is told of the allegations against him or her or afforded the opportunity to challenge the restriction of liberty’.^[42]

5.39       The Law Council also submitted that the offence of entering or remaining in a ‘declared area’ contained in s 119.2 of the Criminal Code may have the

unintended effect of preventing and deterring innocent Australians from travelling abroad and associating with persons for legitimate purposes out of fear that they may be prosecuted for an offence, subjected to a trial and not be able to adequately displace the evidential burden.^[43]

Anti-consorting offences

5.40       Courts have long held the power to restrict freedom of association in circumstances where criminal associations may pose a threat to peace and order. In Thomas v Mowbray, Gleeson CJ referred to counter-terrorism control orders as having similar characteristics to bail and apprehended violence orders.^[44]

5.41       The High Court has also recognised that there may be circumstances where the legislature is justified in infringing freedom of association in order to disrupt and restrict the activities of criminal organisations and their members.^[45]

5.42       This is an object, the High Court observed, that has been ‘pursued in the long history of laws restricting the freedom of association of certain classes, groups or organisations of persons involved or likely to be involved in the planning and execution of criminal activities’. The object is ‘legitimised by the incidence and sophistication of what is generally called “organised crime”’.^[46]

5.43        Anti-consorting laws are not a new phenomenon. In Tajjour, French CJ observed that:

Laws directed at inchoate criminality have a long history, dating back to England in the Middle Ages, which is traceable in large part through vagrancy laws. An early example was a statute enacted in 1562 which deemed a person found in the company of gypsies, over the course of a month, to be a felon.^[47]

5.44       In Australia, these laws are creatures of statute that first emerged early last century in vagrancy legislation.

Their primary object was (and remains) to punish and thereby discourage inchoate criminality, and the means by which they sought to achieve this was the imposition of criminal liability for keeping company with disreputable individuals.^[48]

5.45       In relation to modern NSW anti-consorting laws, the High Court has stated that ‘preventing or impeding criminal conduct is compatible with the system of representative and responsible government established by the Constitution’.^[49]

5.46       Concerns about the impact on freedom of association of state and territory anti-consorting laws^[50] were repeatedly mentioned during the Australian Human Rights Commission’s Rights and Responsibilities 2014 consultation.^[51]

5.47       At the Commonwealth level, ss 390.3 and 390.4 of the Criminal Code provide for offences of associating in support of serious organised criminal activity and supporting a criminal organisation. Section 390.3 is stated not to apply ‘to the extent (if any) that it would infringe any constitutional doctrine of implied freedom of political communication’.^[52]

5.48       Some stakeholders in this ALRC inquiry questioned the justification for the Commonwealth anti-consorting laws. The Law Council, for example, stated that the offences in div 390

shift the focus of criminal liability from a person’s conduct to their associations. Offences of this type have the potential to unduly burden freedom of association for individuals with a familial or community connection to a member of a criminal association.^[53]

5.49       The UNSW Law Society concluded that, although ‘the broad aim of the legislation is legitimate, it is questionable whether targeting unexplained income through criminalising association is effective and suitable’.^[54] The Public Interest Advocacy Centre (PIAC) stated:

Fundamentally, any consorting law, by its very nature, impinges on a person’s right to freedom of association and it would be difficult to draft such legislation so as to comply with international human rights law.^[55]

5.50       PIAC observed that, while Tajjour held s 93X of the Crimes Act 1900 (NSW) to be constitutionally valid, French CJ (in a dissenting judgment) concluded that the net cast by the provision was ‘wide enough to pick up a large range of entirely innocent activity’.^[56] The Chief Justice found that the offence was invalid by reason of the imposition of a burden on the implied freedom of political communication, stating that it fails to ‘discriminate between cases in which the purpose of impeding criminal networks may be served, and cases in which patently it is not’.^[57]

5.51       PIAC submitted that Commonwealth anti-consorting legislation should be ‘proportionate to the legitimate aim of public safety by inserting sufficient safeguards, such as ensuring the laws can be limited to a targeted group of persons involved in serious criminal activity’.^[58]

Public assembly

5.52       Most legislative interferences with the right of public assembly are contained in state and territory laws including, for example, unlawful assembly^[59] and public order offences where there is some form of ‘public disturbance’, such as riot, affray or violent disorder.^[60]

5.53       At Commonwealth level, the Public Order (Protection of Persons and Property) Act 1971 (Cth) regulates the ‘preservation of public order’ in the territories and in respect of Commonwealth premises and certain other places, such as the premises of federal courts and tribunals and diplomatic and special missions.

5.54       Under the Act it is an offence to take part in an assembly in a way that ‘gives rise to a reasonable apprehension that the assembly will be carried on in a manner involving unlawful physical violence to persons or unlawful damage to property’.^[61] An assembly consisting of no fewer than twelve persons may be dispersed if it causes police reasonably to apprehend a likelihood of unlawful physical violence or damage to property.^[62]

Workplace relations laws

5.55       The Fair Work Act 2009 (Cth) purports to protect freedom of association. An object of the Act is to recognise the right to freedom of association and the right to be represented.^[63]

5.56       Part 3­‑1 of the Act contains protections for freedom of association and involvement in lawful industrial activities, including protection under s 346 against adverse action being taken because a person is or is not a member of an industrial association or has or has not engaged in ‘industrial activity’.^[64]

5.57       In Barclay v The Board of Bendigo Regional Institute of Technical and Further Education, the Federal Court stated that freedom to associate in this context is ‘not simply a freedom to join an association without adverse consequences, but is a freedom to be represented by the association and to participate in its activities’.^[65]

5.58       The freedom to participate in an association’s lawful industrial activities—such as an industrial protest—does not give participants unfettered protection from being dismissed for their conduct during such activities. For example, in CFMEU v BHP Coal Pty Ltd, the decision of an employer to fire an employee (partly) because of an ‘offensive and abusive’ protest sign was upheld as lawful. Gageler J stated that the protection afforded by s 346(b) is ‘not protection against adverse action being taken by reason of engaging in an act or omission that has the character of a protected industrial activity’. Rather, Gageler J found that it is ‘protection against adverse action being taken by reason of that act or omission having the character of a protected industrial activity’.^[66]

5.59       The Kingsford Legal Centre stated that, in the workplace, freedom of association protects the right to form and join associations ‘to pursue common goals in the workplace, helping to correct the significant power imbalance between employees and employers’. It observed that this principle ‘has been a long-standing and beneficial feature of Australian labour law’ and that without such protections, the ability of employees to bargain with their employer in their collective interest is greatly reduced. The Centre submitted that ‘the current protections for freedom of association in the workplace are integral and that any repeal of these legislative protections or the introduction of laws that interfere with these protections would not be justified’.^[67]

5.60       The Fair Work Act also contains a range of provisions that can be characterised as interfering with freedom of association, which are discussed below.^[68] Arguably, however, some of these provisions may be seen as regulating the activities of associations and their office holders, rather than as directly affecting the scope of freedom of association, as understood by the common law.

5.61       The Australian Council of Trade Unions (ACTU) stated that provisions of the Fair Work Act ‘unjustifiably interfere with the right to freedom of association and should be reconsidered’—including restrictions on the right to strike, the duration of industrial action and union access to workplaces.

5.62       The ACTU stated that the ILO Committee of Experts on the Application of Standards and Recommendations (ILO Committee of Experts) has ‘repeatedly found that Australian law breaches international labour law’.^[69]

5.63       The Australian Institute of Employment Rights (AIER) observed that, in the workplace relations context, freedom of association is the ‘base from which other rights flow, in particular the right to collectively bargain and the right to strike’. It argued that the practical application of the right to freedom of association in the workplace is subject to ‘considerable and unjustified encroachment by the laws of the Commonwealth’.^[70]

5.64       The AIER observed that the Australian Government has been ‘put on notice’^[71] that a number of provisions of the Fair Work Act infringe on freedom of association^[72] as understood under the ILO Freedom of Association and Protection of the Right to Organise Convention.^[73]

Laws of the Commonwealth, including the Fair Work Act and the secondary boycott provisions of the Competition and Consumer Act, unjustifiably encroach on freedom of association rights. The right to form and join trade unions for the promotion and protection of collective economic and social interests is a right that goes to the heart of creating a socially just society and allowing the freedom for people to pursue their material well-being.^[74]

5.65       Australian Lawyers for Human Rights also submitted that the Fair Work Act now unjustifiably limits the right of employees to collectively bargain for terms and conditions of employment under international law.^[75]

5.66       A group of legal academics submitted that, on close analysis, while the protections set out in pt 3–3 of the Fair Work Act ‘fall some considerable way short’ of ILO and ICESCR standards, the protections nevertheless ‘at least go some way towards meeting Australia’s international obligations in relation to freedom of association in general, and the right to strike in particular’.^[76]

Protected industrial action

5.67       Protected industrial action is acceptable to support or advance claims during collective bargaining. When an action is ‘protected’, those involved are granted immunity from legal actions that might otherwise be taken against them under any law, including, for example, in tort or contract.^[77]

5.68       Industrial action will generally be unlawful if it does not meet the criteria for ‘protected industrial action’, which are set out in the Fair Work Act.^[78] Each of the criteria for protected action can be interpreted as interfering with freedom of association, including:

• the definitions of an employee claim action, employee response action and employer response action;^[79]

• the prohibition on ‘pattern bargaining’;^[80]

• the requirement to be genuinely trying to reach an agreement;^[81]

• the notice requirements in relation to industrial action;^[82] and

• the requirements for protected action ballots.^[83]

5.69       The AIER noted criticism of these provisions by the ILO Committee on Freedom of Association, including in relation to: ss 408–411 of the Fair Work Act, which effectively prohibit sympathy strikes and general secondary boycotts; s 413(2), which removes protection for industrial action in support of multiple business agreements; and ss 409(4) and 412 in relation to pattern bargaining.^[84]

5.70       In particular, restrictions on the right to strike contained in the Fair Work Act have been criticised by the ILO Committee of Experts on the basis that industrial action is only protected during the process of bargaining for an agreement.^[85]

5.71       The emphasis within the Fair Work Act on enterprise level bargaining can be seen as an unnecessary encroachment on the right to collectively bargain.^[86] For example, while pattern bargaining by employees is restricted, there is no corresponding restriction on pattern or industry-wide coordinated bargaining by employer or other representatives. This is said to conflict with the principle of free and voluntary collective bargaining embodied in art 4 of the ILO Right to Organise and Collective Bargaining Convention,^[87] under which ‘the determination of the bargaining level is essentially a matter to left to the discretion of the parties and, consequently, the level of negotiation should not be imposed by law’.^[88]

5.72       The ACTU criticised provisions of the Fair Work Act concerning the circumstances in which industrial action is authorised by protected action ballot. The Act requires a quorum and a majority vote by secret ballot before industrial action can be taken.

5.73       Section 459(1)(b) provides that at least 50% of the employees on the roll of voters must actually vote. The ACTU noted that the ILO Committee of Experts has commented that, where legislation requires votes before a strike can be held, account should be taken only of the votes cast, and the required quorum and majority fixed at a reasonable level.^[89]

5.74       Section 459(1)(c) provides more that than 50% of the valid votes must be in favour of taking action. The ILO Committee of Experts has commented that such a requirement is ‘excessive and could excessively hinder the possibility of carrying out a strike, particularly in large enterprises’.^[90] The ACTU submitted that these restrictions on the right to strike unjustifiably interfere with the right to freedom of association.^[91]

5.75       The ACTU and the AIER also considered that the powers of the Fair Work Commission to suspend or terminate industrial action on various grounds, including economic harm, health and safety, third party damage and cooling off,^[92] are cast too broadly and unjustifiably interfere with the right to freedom of association.^[93]

Right of entry

5.76       The Fair Work Act provides a framework for right of entry to workplaces for union officials to represent their members in the workplace, hold discussions with potential members and investigate suspected contraventions.^[94]

5.77       The object of these provisions is to balance the right of unions to represent people and to provide information to employees and the ‘right of occupiers of premises and employers to go about their business without undue inconvenience’.^[95] In introducing amendments to the right of entry provisions in 2013, the Government’s expressed intention was to

balance the right of employers to go about their business without undue interference; to balance it, though, with the democratic right, the right of employees in a functioning democracy, to be represented in their workplace and to participate in discussions with unions at appropriate times.^[96]

5.78       Some limitations on rights of entry may be characterised as interfering with union members’ freedom of association.^[97] The legislative limitations include:

• the requirement to hold a valid entry permit, which may only be issued to a ‘fit and proper person’;^[98]

• the required period of notice before entry;^[99] and

• limitations on the circumstances in which an official can gain entry.^[100]

5.79       The ACTU stated that the range of issues the Fair Work Commission can consider in determining whether an applicant is ‘fit and proper’ to hold an entry permit is ‘expansive and non-exhaustive’ and includes considerations such as ‘appropriate training’.^[101]

5.80       The ILO Committee of Experts found that these provisions breach the Freedom of Association and Protection of the Right to Organise Convention because the right of trade union officials to have access to places of work and to communicate with management is a basic activity of trade unions, which should not be subject to interference by the authorities.^[102] The ACTU submitted that it is likely that the requirements placed on the right of entry unjustifiably interfere with the right to freedom of association.^[103]

5.81       On the other hand, the National Farmers’ Federation criticised div 7 of pt 3–4 of the Fair Work Act, concerning arrangements in remote areas. These provisions may compel occupiers of remote premises to enter into arrangements to provide accommodation and transport to persons exercising the right of entry. The Federation submitted:

These requirements are extraordinary in the sense that they authorise what would otherwise be the tort of trespass. Occupiers (usually employers) bear the lion’s share of the risk, including in relation to compliance with workplace health and safety obligations. The provisions infringe the fundamental common law right of a person in possession to exclude others from their premises in a way that is unreasonable. The provisions should be repealed.^[104]

Registration of organisations

5.82       The Fair Work (Registered Organisations) Act 2009 (Cth) includes requirements for the registration and operation of trade unions and other similar organisations. Registered organisations are required to meet the standards set out in the Act in order to gain the rights and privileges accorded to them under the Act and under the Fair Work Act.

5.83       These standards are intended, among other things, to ensure that employer and employee organisations are representative of and accountable to their members, and are able to operate effectively; and provide for the democratic functioning and control of organisations.^[105]

5.84       By requiring registration and prescribing rules for employer and employee organisations, the Fair Work (Registered Organisations) Act can be interpreted as interfering with freedom of association. For example, the statement of compatibility with human rights for the Fair Work (Registered Organisations) Amendment Bill 2012 (Cth) stated that

it is arguable that the amendments in the Bill are limiting insofar as they all effectively restrain individuals from forming industrial organisations in any way they wish. In particular the amendments which would enhance the requirements for disclosure of remuneration, expenditure and pecuniary interests of officials under the rules of registered organisations limit the rights set out in Articles 3 and 8 of ILO Convention 87.^[106]

5.85       However, from another perspective, provisions of the Fair Work (Registered Organisations) Act, which enhance the financial and accountability obligations of employee and employer organisations, to ensure that the fees paid by members of such organisations are used for the purposes intended, and that the officers of such organisations use their positions for proper purposes, are not inconsistent with freedom of association.

5.86       The ILO Committee of Experts on the Application of Conventions and Recommendations has stated, with regard to the ability of governments to intervene in employee or employer organisations:

Legislative provisions which regulate in detail the internal functioning of workers’ and employers’ organizations pose a serious risk of interference which is incompatible with the Convention. Where such provisions are deemed necessary, they should simply establish an overall framework within which the greatest possible autonomy is left to the organizations for their functioning and administration. The Committee considers that restrictions on this principle should have the sole objective of protecting the interests of members and guaranteeing the democratic functioning of organizations. Furthermore, there should be a procedure for appeal to an impartial and independent judicial body against any act of this nature by the authorities.^[107]

5.87       The Explanatory Memorandum to the Fair Work (Registered Organisations) Amendment Bill 2012 (Cth), which increased the financial and accountability obligations of registered organisations and their office holders, stated that the limitations which the Bill placed on the right to freedom of association fell within the express permissible limitations in the ICCPR and the ICESCR ‘insofar as they are necessary in the interests of public order and the protection of the rights and freedoms of others’.^[108]

Relevantly, parties to decisions made by the General Manager of Fair Work Australia under the Bill’s amendments are entitled to review of such decisions by impartial and independent judicial bodies.

Further, the amendments in the Bill are permissible insofar as they are prescribed by law, pursue a legitimate objective (protecting the interests of members and guaranteeing the democratic functioning of organizations), are rationally connected to that objective and are no more restrictive than is required to achieve the purpose of the limitation.^[109]

Other issues

5.88       A number of other workplace relations issues were raised by stakeholders. Daniel Black submitted that restrictions on trade union membership and collective bargaining by members of the Australian Defence Forces, constitute an unjustified interference with freedom of association.^[110]

5.89       The National Farmers’ Federation submitted that s 237 of the Fair Work Act overrides the voluntary nature of collective bargaining and, therefore, infringes the right to freedom of association.^[111] Section 237 permits the Fair Work Commission to make a majority support determination if a majority of employees want to bargain with their employer, and the employer has not yet agreed to do so, effectively compelling the employer to bargain.

Migration law

5.90       Freedom of association is also implicated by provisions of the Migration Act 1958 (Cth) concerning the circumstances in which a visa may be refused or cancelled on character grounds. Some temporary and permanent visas, depending on their conditions, have rights attached to them, including, the right to live freely, to work, and associate with others.^[112]

5.91       Section 501(1) of the Act provides that the Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test. Section 501(6) provides that a person does not pass the character test if, among other things, the Minister reasonably suspects that the person has been or is a member of a group or organisation, or has had or has an association with a group, organisation or person; and that the group, organisation or person has been or is involved in criminal conduct.^[113]

5.92       The Explanatory Memorandum made it clear that membership of, or association with, a group or organisation that has or is involved in criminal conduct is, by itself, grounds for cancellation on character grounds:

The intention of this amendment is to lower the threshold of evidence required to show that a person who is a member of a criminal group or organisation, such as a criminal motorcycle gang, terrorist organisation or other group involved in war crimes, people smuggling or people trafficking, does not pass the character test. The intention is that membership of the group or organisation alone is sufficient to cause a person to not pass the character test. Further, a reasonable suspicion of such membership or association is sufficient to not pass the character test. There is no requirement that there be a demonstration of special knowledge of, or participation in, the suspected criminal conduct by the visa applicant or visa holder.^[114]

5.93       A number of stakeholders expressed concern about the scope of s 501(6)(b). The UNSW Law Society, for example, submitted that the provision should be considered as failing a test of proportionality because ‘people should be able to choose their acquaintances and connections without government interference’.^[115]

5.94       The Refugee Advice and Casework Service (RACS) stated that s 501 ‘plainly encroaches on freedom of association’. RACS submitted that, because the consequence of failing the character test is generally the detention of the individual,^[116] the test in effect ‘authorises the detention of a person based on a suspicion in relation to that person’s lawful association with others’:^[117]

The effect of these provisions is the establishment of wide-ranging restrictions on the people with whom a person can associate without being liable to visa refusal or cancellation. As it fails to take into account the nature of the suspected association or the nature of the suspected criminal conduct, this restriction goes far beyond any encroachment on freedom of association that may be justified in order to prevent criminal activity.^[118]

5.95       The Australian National University (ANU) Migration Law Program submitted:

This provision is neither a reasonable or proportionate curtailment of the right to freedom of association. The provision is now so broad that it would cover a range of circumstances where there is no appreciable risk to Australian society. For example, the provision would cover instances where a person was, but is no longer, a member of a group or organisation that is involved in criminal activities. Similarly, it would cover members of an organisation that committed criminal conduct many years ago, but is no longer involved in any criminal activity.^[119]

5.96       The ANU Migration Law Program observed that the broadening of ‘reasonable suspicion’, beyond considering whether the group or person has been involved in criminal activity, ‘heightens the risk of unnecessary curtailment on a person’s freedom of association’. The ANU Migration Law Program suggested that the legislation should be amended to provide definitions of ‘association’ and ‘membership’ consistent with the Full Federal Court’s finding in Haneef.^[120]

Other laws

5.97       Commonwealth anti-discrimination laws potentially interfere with freedom of association by making unlawful certain forms of discrimination that can be manifested by excluding others from participating in an association (of a kind covered by the laws) on prohibited grounds.^[121]

5.98       For example, the Disability Discrimination Act 1992 (Cth) makes it unlawful for a club or incorporated association to discriminate against a person by refusing membership on the ground of the person’s disability.^[122] A club for these purposes is defined as ‘an association (whether incorporated or unincorporated) of persons associated together for social, literary, cultural, political, sporting, athletic or other lawful purposes that provides and maintains its facilities, in whole or in part, from the funds of the association’.^[123]

5.99       Professor Patrick Parkinson AM observed that

One of the major tensions, in terms of freedom of association, is between the right of people to form associations of various kinds and the claims of advocates for an expansion in the reach of anti-discrimination law. Having an association inevitably means creating either explicit or implicit rules of membership. Those rules both include and exclude.^[124]

5.100   Parkinson submitted that freedom of association needs to be protected from a ‘new fundamentalism about “equality”’. For example, faith-based organisations should have a right to

select staff who fit with the values and mission of the organisation, just as political parties, environmental groups and LBGT organisations do. To select on the basis of ‘mission fit’ is not discrimination. Rather it is essential to the right of freedom of association.^[125]

5.101   Similarly, FamilyVoice submitted that the ‘development of voluntary associations in Australia today is hindered by the unnecessary, intrusive and counterproductive constraints imposed on voluntary associations by anti-discrimination laws’.^[126] FamilyVoice stated that there are numerous examples of ‘interference by antidiscrimination bodies to prevent Australians from being free to associate with others in accordance with their wishes, for social, cultural, sporting or other purposes’.^[127] It submitted that

Antidiscrimination laws should be either abolished or amended so that restrictions are limited to the protection of national security or public safety, order, health or morals, or the freedom of association of others, as provided in Article 22 of the International Covenant on Civil and Political Rights.^[128]

5.102   On the other hand, some anti-discrimination legislation contains exemptions that permit certain forms of association that would otherwise be discriminatory. For example, the Sex Discrimination Act 1984 (Cth) permits a voluntary body to discriminate against a person on certain grounds and in connection with membership and the provision of members’ benefits, facilities or services.^[129]

5.103   In a response to the Parliamentary Joint Committee on Human Rights, in its consideration of the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Bill 2013 (Cth), the Attorney-General observed that the ‘voluntary bodies’ exemption

recognises that rights may be limited to pursue a legitimate objective, such as limiting the right to equality and non-discrimination in order to protect the right to freedom of association. While the right to freedom of association allows people to form their own associations, it does not automatically entitle a person to join an association formed by other people. However, nothing prevents other people from forming their own associations.^[130]

5.104   Some concerns were also expressed about the operation of s 100–25 of the Australian Charities and Not-for-profits Commission Act 2012 (Cth). This makes it an offence, in some circumstances, for a person who has been removed from the governing body of a charity, to communicate instructions to remaining members on the governing body. The Law Council submitted:

While addressing legitimate concern over continuing influence of former directors and decision-makers, these powers may extend beyond those conferred upon the Australian Securities and Investments Commission over companies. The [Queensland Law Society] has noted that it does not seem appropriate to regulate charities and other forms of voluntary association more rigorously than commercial enterprises and inquiry into this limitation on freedoms is a proper subject for investigation.^[131]