HIGH COURT OF AUSTRALIA
FRENCH CJ,
HAYNE, CRENNAN, KIEFEL, BELL, GAGELER AND KEANE JJMatter No S36/2014
SLEIMAN SIMON TAJJOUR PLAINTIFF
AND
STATE OF NEW SOUTH WALES DEFENDANT
Matter No S37/2014
JUSTIN HAWTHORNE PLAINTIFF
AND
STATE OF NEW SOUTH WALES DEFENDANT
Matter No S38/2014
CHARLIE MAXWELL FORSTER PLAINTIFF
AND
STATE OF NEW SOUTH WALES DEFENDANT
Tajjour v New South Wales
Hawthorne v New South Wales
Forster v New South Wales[2014] HCA 35
8 October 2014
S36/2014, S37/2014 & S38/2014
ORDER
Matter No S36/2014
The questions asked in the Special Case dated 5 March 2014 be answered as follows:
1.Is s 93X of the Crimes Act 1900 (NSW) invalid because it impermissibly burdens the implied freedom of communication on governmental and political matters, contrary to the Commonwealth Constitution?
Answer:Section 93X of the Crimes Act 1900 (NSW) is not invalid.
2.Is there implied into the Commonwealth Constitution a freedom of association independent of the implied freedom of communication on governmental and political matters?
Answer:No.
3.Does s 93X of the Crimes Act 1900 (NSW) contravene any implied freedom of association referred to in question 2?
Answer:Unnecessary to answer.
4.Is s 93X of the Crimes Act 1900 (NSW) invalid because it is inconsistent with the International Covenant on Civil and Political Rights as ratified by the Commonwealth of Australia?
Answer:No.
5.Who should pay the costs of the special case?
Answer:The plaintiff.
Matter No S37/2014
The questions asked in the Special Case dated 5 March 2014 be answered as follows:
1.Is s 93X of the Crimes Act 1900 (NSW) invalid because it impermissibly burdens the implied freedom of communication on
governmental and political matters, contrary to the Commonwealth Constitution?
Answer:Section 93X of the Crimes Act 1900 (NSW) is not invalid.
2.Is there implied into the Commonwealth Constitution a freedom of association independent of the implied freedom of communication on governmental and political matters?
Answer:No.
3.Does s 93X of the Crimes Act 1900 (NSW) contravene any implied freedom of association referred to in question 2?
Answer:Unnecessary to answer.
4.Is s 93X of the Crimes Act 1900 (NSW) invalid because it is inconsistent with the International Covenant on Civil and Political Rights as ratified by the Commonwealth of Australia?
Answer:No.
5.Who should pay the costs of the special case?
Answer:The plaintiff.
Matter No S38/2014
The questions asked in the Special Case dated 5 March 2014 be answered as follows:
1.Is s 93X of the Crimes Act 1900 (NSW) invalid because it impermissibly burdens the implied freedom of communication on governmental and political matters, contrary to the Commonwealth Constitution?
Answer:Section 93X of the Crimes Act 1900 (NSW) is not invalid.
2.Who should pay the costs of the special case?
Answer:The plaintiff.
Representation
G R James QC and P D Lange with E M M James and A Ahmad for the plaintiff in S36/2014 (instructed by Matouk Joyner Solicitors)
G O'L Reynolds SC with D P Hume for the plaintiff in S37/2014 (instructed by Matouk Joyner Solicitors)
W P Lowe with E M M James for the plaintiff in S38/2014 (instructed by McGowan Lawyers)
M G Sexton SC, Solicitor-General for the State of New South Wales and J G Renwick SC with K M Richardson for the defendant in each matter and for the Attorney-General for the State of New South Wales, intervening (instructed by Crown Solicitor (NSW))
M G Hinton QC, Solicitor-General for the State of South Australia with N M Schwarz for the Attorney-General for the State of South Australia, intervening (instructed by Crown Solicitor (SA))
S G E McLeish SC, Solicitor-General for the State of Victoria with P D Herzfeld for the Attorney-General for the State of Victoria, intervening (instructed by Victorian Government Solicitor)
G R Donaldson QC, Solicitor-General for the State of Western Australia with M Georgiou for the Attorney-General for the State of Western Australia, intervening (instructed by State Solicitor (WA))
P J Dunning QC, Solicitor-General of the State of Queensland with G J D del Villar for the Attorney-General of the State of Queensland, intervening (instructed by Crown Law (Qld))
B W Walker SC with A M Mitchelmore for the Australian Human Rights Commission, as amicus curiae (instructed by Australian Human Rights Commission)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Tajjour v New South Wales
Hawthorne v New South Wales
Forster v New South Wales
Constitutional law – Implied freedom of political communication – Section 93X of Crimes Act 1900 (NSW) made it offence habitually to consort with convicted offenders after receiving official warning in relation to each convicted offender – Plaintiffs charged with offence against s 93X – Whether s 93X infringes implied freedom of political communication.
Constitutional law – Implied freedom of association – Whether Constitution contains an implied freedom of association independent of implied freedom of political communication.
Constitutional law – Powers of State Parliaments – Provisions of international convention ratified by Australia but not incorporated by statute in Australian domestic law – Whether capable of limiting power of State Parliaments to enact inconsistent legislation.
Words and phrases – "effectively burden", "habitually consort", "proportionality", "reasonably appropriate and adapted".
Crimes Act 1900 (NSW), ss 93W, 93X, 93Y.
FRENCH CJ.
Introduction
It is an offence in New South Wales for a person to habitually consort with two or more convicted offenders after being warned by a police officer that they are convicted offenders and that consorting with a convicted offender is an offence. Section 93X of the Crimes Act 1900 (NSW) ("the Crimes Act")[1], which makes it so, has its ancestry in vagrancy laws dating back to medieval England[2]. Its evident object is the prevention of crime by preventing the formation, maintenance or expansion of criminal networks. Although the verb "consort" has a pejorative flavour, it is capable of application to law-abiding persons[3] regularly associating for innocent purposes, including for the purposes of communication and advocacy about governmental or political matters. The primary practical constraint upon its application is the discretion afforded to police officers in deciding whether or not to issue an official warning to a person about consorting with a convicted offender.
[1]Inserted by the Crimes Amendment (Consorting and Organised Crime)Act 2012 (NSW), Sched 1 [9].
[2]McLeod, "On the Origins of Consorting Laws", (2013) 37 Melbourne University Law Review 103 at 106–108, 114.
[3]Section 93W defines "convicted offender" as a person who has been convicted of an indictable offence and does not set any upper limit on the age of the conviction necessary to fall within that definition. A person may be a "convicted offender" in respect of an old conviction, yet may also be a law-abiding citizen. Some old convictions may be expunged under spent conviction provisions in Pts 2 and 3 of the Criminal Records Act 1991 (NSW), but those provisions do not cover, for example, sexual offences or convictions attracting a sentence of more than six months imprisonment (s 7(1)).
The validity of s 93X has been challenged by three plaintiffs, Tajjour, Hawthorne and Forster, each of whom has been charged under it. Each charge alleged that between certain times and dates the relevant plaintiff did habitually consort with named convicted offenders after receiving a warning not to consort with those persons. The plaintiffs contend that s 93X impermissibly burdens the freedom of communication on governmental or political matters implied in the Constitution. Tajjour and Hawthorne also assert that there is implied in the Constitution a freedom of association, independent of the implied freedom of communication on governmental or political matters, and that the section contravenes that implied freedom. In addition, Tajjour and Hawthorne contend that the section is invalid because it is inconsistent with the freedom of association guaranteed by Art 22 of the International Covenant on Civil and Political Rights ("the ICCPR"), to which Australia is a party.
Each of the three plaintiffs filed a summons in the Supreme Court of New South Wales seeking a declaration that s 93X is invalid. On 13 May 2013, Beech-Jones J made orders that the question whether s 93X was invalid be decided separately from all other questions in the proceedings and that the proceedings be removed into the Court of Appeal of the Supreme Court of New South Wales. On 14 February 2014, on the application of the Attorney-General for New South Wales, Kiefel and Bell JJ made orders removing the three proceedings into this Court. Directions were given for the serving of draft Special Cases and, on 5 March 2014, Kiefel J made orders referring each Special Case for hearing before the Full Court.
For the reasons that follow, s 93X impermissibly burdens the implied constitutional freedom of communication on governmental or political matters and is on that account invalid. There is, therefore, no occasion to consider the argument, advanced by Tajjour and Hawthorne, for a free-standing implied freedom of association. The argument that State legislative power is limited by the right to freedom of association guaranteed under the ICCPR is misconceived. The questions referred in the Special Cases should be answered accordingly.
The questions in the Special Cases
In the Special Cases relating to Tajjour and Hawthorne, the following questions are stated for the opinion of the Full Court:
1.Is s 93X of the Crimes Act 1900 (NSW) invalid because it impermissibly burdens the implied freedom of communication on governmental and political matters, contrary to the Commonwealth Constitution?
2.Is there implied into the Commonwealth Constitution a freedom of association independent of the implied freedom of communication on governmental and political matters?
3.Does s 93X of the Crimes Act 1900 (NSW) contravene any implied freedom of association referred to in question 2?
4.Is s 93X of the Crimes Act 1900 (NSW) invalid because it is inconsistent with the International Covenant on Civil and Political Rights as ratified by the Commonwealth of Australia?
5.Who should pay the costs of the Special Case?
In the Special Case relating to Forster, only the first and the last questions are referred. It is a feature of the Special Cases that while the agreed facts disclose interference with the freedom of association of each of the plaintiffs, it is not suggested that there was interference with any attempted or proposed communication about governmental or political matters.
The construction of s 93X is the first necessary step in determining its validity. Its construction is informed by the history of consorting laws in Australia and judicial decisions interpreting and applying them.
Some legislative history
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[4].
[4]McLeod, "On the Origins of Consorting Laws", (2013) 37 Melbourne University Law Review 103 at 113 referring to 5 Eliz 1 c 20.
A precursor of consorting laws in New South Wales was s 2 of the Vagrancy Act 1835 (NSW)[5], which listed categories of persons deemed "idle and disorderly". Among them it included "the holder of every house … frequented by reputed thieves or persons who have no visible lawful means of support and every person found in any such house in company with such reputed thieves or persons" without giving a good account of lawful means of support and of being in such a house on some lawful occasion. There was no equivalent category under English vagrancy laws. Plainly enough, the 1835 legislation was directed to the prevention of criminal combinations. As Professors Campbell and Whitmore wrote in 1973[6]:
"New South Wales in 1835 was still a penal colony and one can understand why at that time it should have been thought necessary to prevent people getting together to hatch crimes."
[5]6 Will 4 No 6.
[6]Campbell and Whitmore, Freedom in Australia, rev ed (1973) at 135. The offence created by the Vagrancy Act 1835 (NSW), unlike consorting, was constituted by a single incident, ie being "found in any such house" — see the discussion of the equivalent Victorian provision, s 6(1)(b) of the Vagrancy Act 1966 (Vic), in Johanson v Dixon (1979) 143 CLR 376 at 395–396 per Aickin J; [1979] HCA 23.
The earliest Australian statutes expressly directed against "habitual consorting" were modelled on s 26(4) of the Police Offences Act 1884 (NZ), which was enacted in 1901[7]. The New Zealand provision included in the categories of persons "deemed … idle and disorderly" persons who "habitually consort[] with reputed thieves or prostitutes or persons who have no visible means of support." The insertion in the vagrancy laws of the Australian States of common form prohibitions of habitual consorting, modelled on the New Zealand provision, began in South Australia in 1928[8]. The purpose of its similarly worded successor[9] was described in Dias v O'Sullivan as[10]:
"to prevent the regular meeting of congeries of individuals (persons generally regarded by those, who ought to know, as having vicious propensities), in circumstances where the meetings have the appearance of fraternising."
The provision was also described as "a legislative attempt to give legal sanction to St Paul's advice to the Corinthians (amongst whom were many reputed thieves) that 'Evil communications corrupt good manners.'"[11] The offence created by the South Australian Act[12] was that of being an "idle and disorderly" person. Similar offences were created in New South Wales, Victoria, Queensland and Western Australia[13]. Griffith CJ explained the operation of the common form vagrancy laws in Lee Fan v Dempsey[14], albeit before the inclusion in them of consorting provisions, as follows:
"[Section 65 of the Police Act 1892 (WA)] creates only one substantive offence, that of being an idle and disorderly person, and the eight categories of persons are not, properly speaking, definitions of offences, but of states of facts which, if proved, will establish that substantive offence."
Subsequently, in New South Wales, Victoria and South Australia, the common form prohibition of habitual consorting evolved to a stand-alone consorting offence, not mediated through the deemed status of being an "idle and disorderly" person[15]. It was a stand-alone offence in Tasmania from the outset[16].
[7]The sub-section was inserted into the Police Offences Act 1884 (NZ) by the Police Offences Amendment Act 1901 (NZ), s 4.
[8]In chronological order, consorting provisions were introduced by the Police Act Amendment Act 1928 (SA), s 5; Vagrancy (Amendment) Act 1929 (NSW), s 2(b); Police Offences (Consorting) Act 1931 (Vic), s 2; Vagrants, Gaming, and Other Offences Act 1931 (Q), s 4(1)(v); Police Offences Act 1935 (Tas), s 6; Police Act Amendment Act 1955 (WA), s 2.
[9]Police Act 1936 (SA), s 85(1)(j).
[10][1949] SASR 195 at 199 per Mayo J.
[11]Reardon v O'Sullivan [1950] SASR 77 at 82 per Abbott J.
[12]Police Act 1916 (SA), s 66(g2).
[13]Vagrancy Act 1902 (NSW), s 4(1)(j) read with s 3; Police Offences (Consorting) Act 1931 (Vic), s 2; Vagrants, Gaming, and Other Offences Act 1931 (Q), s 4(1)(v); Police Act 1892 (WA), s 65(9).
[14](1907) 5 CLR 310 at 313; [1907] HCA 54. See also at 317 per Barton J, 320 per Isaacs J.
[15]The first stand-alone offences were created by s 25 of the Summary Offences Act 1970 (NSW), s 6(1)(c) of the Vagrancy Act 1966 (Vic) and s 13 of the Police Offences Act 1953 (SA). See also s 33 of the Criminal Law Amendment (Simple Offences) Act 2004 (WA), introducing into the Criminal Code (WA) s 557J(2), concerning consorting by declared drug traffickers, and s 557K(4), concerning consorting by child sex offenders.
[16]Police Offences Act 1935 (Tas), s 6.
Consorting laws in Australia had the practical effect of conferring significant powers on police officers. In New Zealand, the Minister of Justice, introducing the Bill for the inclusion of s 26(4) in the Police Offences Act 1884 (NZ), said it gave the police power with respect to people who were not without means, but consorted with thieves and prostitutes and were "well known to the police to be people of bad character"[17]. It answered Isaacs J's characterisation of vagrancy laws in Lee Fan v Dempsey as protective of the public by preventative rather than punitive means[18]. In a similar vein, Mayo J in Dias v O'Sullivan described the purpose of the South Australian consorting offence as "precautionary and preventative, rather than to administer punishment for dishonest planning, criminal transactions, or machinations whilst the group are together."[19]
[17]New Zealand, House of Representatives, Parliamentary Debates (Hansard), 24 August 1900 at 237.
[18](1907) 5 CLR 310 at 321.
[19][1949] SASR 195 at 202.
The first consorting law in New South Wales, s 4(1)(j) of the Vagrancy Act 1902 (NSW), was enacted in 1929[20]. It provided that whosoever "habitually consorts with reputed criminals or known prostitutes or persons who have been convicted of having no visible lawful means of support" would be liable to imprisonment with hard labour for a term not exceeding six months. Its purpose, as stated in the Explanatory Note and the First and Second Reading Speeches to the Bill, was to give greater powers to the police to deal with "the consorting of criminals"[21]. It was, at least in part, a response to a perceived problem of criminal gangs known as "razor gangs" in the 1920s[22].
[20]Inserted by the Vagrancy (Amendment) Act 1929 (NSW), s 2(b).
[21]New South Wales, Legislative Assembly, Vagrancy (Amendment) Bill 1929, Explanatory Note; New South Wales, Legislative Assembly, Parliamentary Debates (Hansard), 25 September 1929 at 325; New South Wales, Legislative Assembly, Parliamentary Debates (Hansard), 22 October 1929 at 682.
[22]Steel, "Consorting in New South Wales: Substantive Offence or Police Power?", (2003) 26 University of New South Wales Law Journal 567 at 584–586. See also New South Wales, Legislative Assembly, Parliamentary Debates (Hansard), 23 October 1929 at 731.
The Vagrancy Act 1902 (NSW) was repealed in 1970[23]. Its replacement, the Summary Offences Act 1970 (NSW), created the stand-alone offence of habitually consorting, inter alia, with reputed criminals or persons who had been convicted of certain offences[24]. In 1979, that Act was repealed[25] and a new, more narrowly defined, consorting offence was created by s 546A of the Crimes Act[26]. Section 546A made it an offence for a person to habitually consort with persons who had been convicted of indictable offences, if he or she knew that they had been convicted of indictable offences. A principle underlying the redefinition, as explained in the Second Reading Speech by the Attorney-General and Minister of Justice, was that[27]:
"Unless there are exceptional and compelling reasons for otherwise providing, the basis of criminal liability should be what a person does, or, in appropriate cases, omits to do, rather than the identity of the person".
[23]Summary Offences Act 1970 (NSW), s 3(1) and Sched 1.
[24]s 25.
[25]Summary Offences (Repeal) Act 1979 (NSW), s 3.
[26]Inserted by the Crimes (Summary Offences) Amendment Act 1979 (NSW), Sched 5, item 3.
[27]New South Wales, Legislative Assembly, Parliamentary Debates (Hansard), 23 April 1979 at 4924.
Despite the redefinition and narrowing of the offence, s 546A, like its successor, s 93X, carried forward the concept of "habitual consorting" from the offences in the Summary Offences Act 1970 (NSW) and the Vagrancy Act 1902 (NSW) that preceded it. It is necessary to have regard to how that statutory term in the laws of New South Wales and the other States has been interpreted by the courts, in order for its construction in s 93X to be properly informed.
The term "habitually consorts", in the offence provisions of the various States, required, in practical terms, proof of more than one occasion of association between a defendant and reputed thieves or criminals. Consorting was construed as "frequent companionship"[28]. The adverb "habitually" required that it be more than occasional, "so constant as to have created a habit."[29] It was not necessary that the consorting be with the same person or persons[30]. Consorting for an innocent purpose was within the ambit of the offences. In Gabriel v Lenthall, Richards J said that[31]:
"The offence is not being with thieves on occasions when it may be suspected that they are about their nefarious occupation, but simply habitually consorting with them; it is not companionship in thieving, but with thieves."
A similar approach was adopted in Queensland in Clarke v Nelson; Ex parte Nelson[32]. Macrossan SPJ, delivering the judgment of the Full Court, said that Parliament had not inadvertently omitted some justification or excuse for habitually consorting with reputed criminals[33]. That proposition was endorsed by this Court in 1979 in Johanson v Dixon[34]. It was restated in 1983 by King CJ in Jan v Fingleton[35]:
"Apart from the statute the conduct to be punished may be quite innocent",
which led his Honour to add[36]:
"The wisdom and even the justice of such a law may be, and often has been, questioned."
[28]O'Connor v Hammond (1902) 21 NZLR 573 at 576 per Stout CJ; Reardon v O'Sullivan [1950] SASR 77 at 87 per Paine AJ; Benson v Rogers [1966] Tas SR 97 at 101 per Burbury CJ.
[29]O'Connor v Hammond (1902) 21 NZLR 573 at 576 per Stout CJ; Reardon v O'Sullivan [1950] SASR 77 at 87 per Paine AJ; Benson v Rogers [1966] Tas SR 97 at 101 per Burbury CJ.
[30]O'Connor v Hammond (1902) 21 NZLR 573 at 576 per Stout CJ; Gabriel v Lenthall [1930] SASR 318 at 323 per Richards J; Auld v Purdy (1933) 50 WN (NSW) 218 at 219 per Street J. See generally Brealy v Buckley [1934] ALR 371 at 372 per Gavan Duffy J.
[31][1930] SASR 318 at 327.
[32][1936] QWN 17. See also Beer v Toms; Ex parte Beer [1952] St R Qd 116 at 126–127 per Townley J delivering the judgment of the Court.
[33][1936] QWN 17 at 19.
[34](1979) 143 CLR 376, which concerned s 6(1)(c) of the Vagrancy Act 1966 (Vic) and is considered below.
[35](1983) 32 SASR 379 at 380.
[36](1983) 32 SASR 379 at 380.
The prosecution of persons for habitual consorting required police to have identified repeated occasions of association between the accused and reputed thieves or criminals. The reputation of any person with whom the accused had consorted could be established without proof of its correctness. A reputation known only to police could suffice[37]. Those characteristics of the consorting provisions conferred wide discretionary powers on police officers to observe, to warn and, if their warnings were ignored on a number of occasions, to charge[38]. The importance attached to the exercise of appropriate judgment by police officers in the application of the Queensland consorting law was evidenced by the observation of Henchman J in the course of argument in Clarke v Nelson; Ex parte Nelson[39]:
"The police will not harass a man because he has been a criminal: they will only concern themselves with present criminals."
The consorting laws of the States did not in terms so confine police powers. Nor does s 93X.
[37]Dias v O'Sullivan [1949] SASR 195 at 203 per Mayo J.
[38]See generally Steel, "Consorting in New South Wales: Substantive Offence or Police Power?", (2003) 26 University of New South Wales Law Journal 567.
[39][1936] QWN 17 at 18.
Judgment of an evaluative kind was required of the courts. The question whether a person had been engaged in habitual consorting was a "question of degree"[40], involving consideration by the court of the number of times a person had been in company with reputed criminals and all the circumstances[41]. As was pointed out in Dias v O'Sullivan, each meeting by an accused with a reputed thief did not constitute a separate offence in South Australia. The consorting provision was "directed at the notional relationship (over the averred period), indicated by the series of incidents relied on, as explanatory of the aggregate of those incidents revealing a general practice considered for the purpose of s 85(1)(j) as a single offence."[42] Mayo J described the fundamental ingredient of consorting as "companionship", noting that it might be concurrent with innocent activity[43]:
"The fact that people meet (inter alia) to carry on some trade or occupation is not inconsistent with a fraternising contemporary therewith amounting to consorting."
The requirement that consorting be habitual involved "a continuance and permanence of some tendency, something that has developed into a propensity, that is present from day to day."[44]
[40]MacDonald v The King (1935) 52 CLR 739 at 743 per Rich J; [1935] HCA 18.
[41]Clarke v Nelson; Ex parte Nelson [1936] QWN 17 at 19 per Macrossan SPJ delivering the judgment of the Court; Young v Bryan [1962] Tas SR 323 at 327–328 per Burbury CJ; Benson v Rogers [1966] Tas SR 97 at 98 per Burbury CJ.
[42][1949] SASR 195 at 199 per Mayo J.
[43][1949] SASR 195 at 201.
[44][1949] SASR 195 at 200 per Mayo J.
The decision of this Court in Johanson v Dixon concerned the Victorian consorting provision in s 6(1)(c) of the Vagrancy Act 1966 (Vic)[45]. It was delivered against the background of a generally consistent body of case law dealing with similar, but not identical, provisions in a number of the Australian States. The applicant, Johanson, who had sought special leave to appeal against a decision of the Full Court of the Supreme Court of Victoria[46], faced the difficulty that findings of fact adverse to him had been made by the primary judge. Those findings required that special leave be refused[47]. The Victorian provision created the offence of habitually consorting with reputed thieves, but made it a defence if the person accused, on being so required by the court, gave to the satisfaction of the court a good account of his lawful means of support and also of his consorting. The primary judge had not accepted the truth of the applicant's account. Cadit quaestio. Nevertheless, Mason J, with whom Barwick CJ and Stephen J agreed, went on to consider and reject the applicant's contention that, on its proper interpretation, the statute excluded association for an innocent purpose. To say no more than that the association was innocent or not unlawful was not to give a good account[48]. It was not for the Crown to prove that the defendant had consorted for an unlawful or criminal purpose[49]. The words creating the offence made no mention of purpose[50]. Aickin J came to the same conclusion[51]. Mason J also explained the verb "consorts"[52]:
"In its context 'consorts' means 'associates' or 'keeps company' and it denotes some seeking or acceptance of the association on the part of the defendant." (citation omitted)
[45]One of its predecessors, s 69(1)(d) of the Police Offences Act 1957 (Vic), which mediated the consorting provision through the status offence of being an "idle and disorderly" person, was considered in Byrne v Shearer [1959] VR 606.
[46]Johanson v Dixon(No 3) [1978] VR 377.
[47](1979) 143 CLR 376 at 382 per Mason J, Barwick CJ and Stephen J agreeing at 379, Aickin J agreeing at 395.
[48](1979) 143 CLR 376 at 384.
[49](1979) 143 CLR 376 at 383.
[50](1979) 143 CLR 376 at 383.
[51](1979) 143 CLR 376 at 396.
[52](1979) 143 CLR 376 at 383 citing Brown v Bryan [1963] Tas SR 1 at 2 per Crisp J. See also at 395 per Aickin J.
While those observations were made in the context of the particular defence of "a good account" provided for in the Victorian provision, the meaning attributed to the term "consorts" followed that adopted in previous decisions of State courts. What was said in Johanson v Dixon informs the construction of the term "habitually consorts" used in s 93X. It is necessary, however, to consider the text of that section and its associated provisions. It differs in some material respects from the Victorian provision considered in Johanson v Dixon, precursor provisions in New South Wales and their equivalents in the other States.
The statutory provisions
Section 93X and its companion provisions were introduced into the Crimes Act in 2012, replacing s 546A[53].
[53]As to the background to the introduction of s 546A, see New South Wales, Legislative Assembly, Parliamentary Debates (Hansard), 23 April 1979 at 4924.
Section 93X of the Crimes Act provides:
"(1) A person who:
(a)habitually consorts with convicted offenders, and
(b)consorts with those convicted offenders after having been given an official warning in relation to each of those convicted offenders,
is guilty of an offence.
Maximum penalty: Imprisonment for 3 years, or a fine of 150 penalty units, or both.
(2)A person does not habitually consort with convicted offenders unless:
(a)the person consorts with at least 2 convicted offenders (whether on the same or separate occasions), and
(b)the person consorts with each convicted offender on at least 2 occasions.
(3)An official warning is a warning given by a police officer (orally or in writing) that:
(a)a convicted offender is a convicted offender, and
(b)consorting with a convicted offender is an offence."
Section 93W defines "convicted offender" as "a person who has been convicted of an indictable offence (disregarding any offence under section 93X)." The class of persons falling within that description is limited only by the range of offences which are "indictable offences". "Indictable offences" comprise any offences which may be dealt with on indictment[54]. Moreover, the class is not temporally confined, in that there is no upper limit on the age of a conviction which would constitute the person convicted a "convicted offender" for the purposes of s 93W.
[54]Criminal Procedure Act 1986 (NSW), ss 3(1) and 5.
The term "consort" is defined in s 93W to mean:
"consort in person or by any other means, including by electronic or other form of communication."
That definition assumes a received meaning for the verb "consort", which may be taken to have been based upon the pre-existing judicial interpretation[55]. Consorting was not defined in any of its prior judicial exegesis solely by reference to "communication". Communication is characterised in the definition not as a species, but as a "means", of consorting. The purpose of the definition, as explained in the Agreement in Principle Speech of the Attorney-General and Minister for Justice, was that "networks established via Facebook, Twitter and SMS will not be immune from these provisions."[56] Section 93W has the effect that consorting can be carried on by any form of communication. But it must be communication which constitutes "association" or "keeping company" and can therefore be characterised as "consorting". The Australian Human Rights Commission, in written submissions, contended that the conduct prohibited by s 93X extends to communication between identified persons, with no exception for political communication. For the reasons already given, the offence created by s 93X is not so wide ranging.
[55]Re Alcan Australia Ltd; Ex parte Federation of Industrial, Manufacturing and Engineering Employees (1994) 181 CLR 96 at 106–107; [1994] HCA 34.
[56]New South Wales, Legislative Assembly, Parliamentary Debates (Hansard), 14 February 2012 at 8132.
The constructional question, anterior to the constitutional question in this case, is whether and to what extent association or keeping company by means of, or for the purpose of, communication on governmental or political matters can fall within the offence created by s 93X.
As appears from the judicial exegesis of the consorting laws of the Australian States, innocent purpose was never a defence against a charge of habitual consorting[57]. Section93Y, which sets out a number of specific "innocent purpose" defences to a charge under s 93X, therefore represents a significant shift in the law in New South Wales. That section provides:
[57]Some of the observations of the Full Court of the Supreme Court of Victoria in Byrne v Shearer [1959] VR 606, which concerned an earlier provision, s 69(1)(d) of the Police Offences Act 1957 (Vic), might have supported a different view, but they were qualified into conformity by the Full Court in Johanson v Dixon(No 3) [1978] VR 377 at 383 per Young CJ, Menhennitt and Murray JJ, consistently with the construction adopted by this Court on the application for special leave to appeal against that decision.
"The following forms of consorting are to be disregarded for the purposes of section 93X if the defendant satisfies the court that the consorting was reasonable in the circumstances:
(a)consorting with family members,
(b)consorting that occurs in the course of lawful employment or the lawful operation of a business,
(c)consorting that occurs in the course of training or education,
(d)consorting that occurs in the course of the provision of a health service,
(e)consorting that occurs in the course of the provision of legal advice,
(f)consorting that occurs in lawful custody or in the course of complying with a court order."
Those paragraphs provide defences on the evident premise that meeting in the course of any of the listed activities could constitute consorting. The prosecution, in a case based upon consorting with family members, would have to show that what occurred was consorting. That shown, the defence could seek to satisfy the court that it was a "form[] of consorting ... to be disregarded for the purposes of section 93X". The specific defences do not cover consorting that occurs in the course of, or for the purpose of, political discussion, communication or action. That omission weighs against any implication which would exclude consorting for that purpose.
The Attorney-General and Minister for Justice, in the Agreement in Principle Speech for the Amendment Bill[58], cited Johanson v Dixon[59] for the proposition that "consorting need not have a particular purpose but denotes some seeking or acceptance of the association on the part of the defendant"[60]. Referring to the new criteria for habitual consorting in s 93X(2), he identified a purpose of the provision when he said[61]:
"The requirement that the person consorts with more than one offender recognises the fact that the goal of the offence is not to criminalise individual relationships but to deter people from associating with a criminal milieu."
[58]Crimes Amendment (Consorting and Organised Crime) Bill 2012 (NSW).
[59](1979) 143 CLR 376 at 383 per Mason J citing Brown v Bryan [1963] Tas SR 1 at 2 per Crisp J.
[60]New South Wales, Legislative Assembly, Parliamentary Debates (Hansard), 14 February 2012 at 8131–8132.
[61]New South Wales, Legislative Assembly, Parliamentary Debates (Hansard), 14 February 2012 at 8131.
A person does not commit the offence of habitual consorting with convicted offenders, contrary to s 93X, unless he or she consorts with them after being warned by a police officer, orally or in writing, that they are convicted offenders and that consorting with them is an offence. That requirement has no precedent in the precursor consorting laws in New South Wales, but is reflected in similar consorting provisions in Western Australia and the Northern Territory[62]. It appears to reflect what was always a necessary feature of police practice in the enforcement of consorting laws in New South Wales and the other States[63]. It has the practical effect that a person so warned would find it difficult to say that he or she did not know that the persons with whom he or she was thereafter consorting were convicted offenders. It also confers a discretion on police officers to determine who shall be at risk of prosecution and who shall not. Recognising the practical effect of the law in conferring discretionary powers on police, the Attorney-General and Minister for Justice related those powers to the purpose of the provisions[64]:
"This bill puts police in a position to do what they do best every day and make a judgement about whether observed behaviour reaches the level sought to be addressed by the bill, that is, behaviour which forms or reinforces criminal ties."
[62]Criminal Code (WA), ss 557J(2) and 557K(4); Summary Offences Act (NT), s 55A(1).
[63]Steel, "Consorting in New South Wales: Substantive Offence or Police Power?", (2003) 26 University of New South Wales Law Journal 567 at 588–590, 592–593. See also Brunskill, "Consorting", (2003) 11(1) Policing Issues & Practice Journal 1 at 1–2; Victoria, Parliament, Scrutiny of Acts and Regulations Committee, Review of the Vagrancy Act 1966: Final Report, (2002) at 11–12.
[64]New South Wales, Legislative Assembly, Parliamentary Debates (Hansard), 14 February 2012 at 8132.
Section 93X and its associated provisions, read in the light of judicial exegesis of earlier consorting provisions in New South Wales and other States, extend to habitual consorting for innocent purposes. There is no express textual basis for excluding consorting for the purpose of communications on governmental or political matters. The next question is whether there is any alternative construction which would avoid that result. If there is, then the principle of legality, protective of the common law freedom of speech on public affairs, would favour that construction.
Application of the principle of legality regarding freedom of speech and freedom of association
Statutes should be construed, where constructional choices are open, so that they do not encroach, or encroach as little as possible, upon fundamental rights and freedoms at common law[65]. While the utility of the term "fundamental" in this context is questionable[66], freedom of speech has long enjoyed special recognition at common law[67] and particularly so in relation to the criticism of public bodies[68]. As TRS Allan wrote in 1996[69]:
"The traditional civil and political liberties, like liberty of the person and freedom of speech, have independent and intrinsic weight: their importance justifies an interpretation of both common law and statute which serves to protect them from unwise and ill-considered interference or restriction."
Even absent entrenchment by express or implied constitutional guarantee, freedom of speech on public affairs at common law is more than a particular application of the general principle that anybody is free to do anything which is not forbidden by law[70]. In order to displace it, the Parliament must have chosen clear language which permits no other outcome.
[65]Potter v Minahan (1908) 7 CLR 277 at 304 per O'Connor J; [1908] HCA 63; Bropho v Western Australia (1990) 171 CLR 1 at 18 per Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ; [1990] HCA 24; Coco v The Queen (1994) 179 CLR 427 at 436–437 per Mason CJ, Brennan, Gaudron and McHugh JJ; [1994] HCA 15; Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543 at 553 [11] per Gleeson CJ, Gaudron, Gummow and Hayne JJ, 562–563 [43] per McHugh J, 578 [93]–[94] per Kirby J, 592–593 [134] per Callinan J; [2002] HCA 49; Oates v Attorney-General (Cth) (2003) 214 CLR 496 at 513 [45] per Gleeson CJ, McHugh, Gummow, Kirby, Hayne and Heydon JJ; [2003] HCA 21; Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252 at 271 [58] per French CJ, Gummow, Hayne, Crennan and Kiefel JJ; [2010] HCA 23.
[66]Momcilovic v The Queen (2011) 245 CLR 1 at 46 [43] per French CJ; [2011] HCA 34.
[67]The Commonwealth v John Fairfax & Sons Ltd (1980) 147 CLR 39 at 52 per Mason J; [1980] HCA 44; Davis v The Commonwealth (1988) 166 CLR 79 at 100 per Mason CJ, Deane and Gaudron JJ; [1988] HCA 63; Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 at 31 per Mason CJ; [1992] HCA 46; Attorney-General (SA) v Adelaide City Corporation (2013) 249 CLR 1 at 31–32 [43] per French CJ, 67–68 [151]–[152] per Heydon J; [2013] HCA 3. See also Blackstone, Commentaries on the Laws of England, (1769), bk 4, c 11 at 151–152; Bonnard v Perryman [1891] 2 Ch 269 at 284 per Lord Coleridge CJ; R v Commissioner of Police of the Metropolis; Ex parte Blackburn (No 2) [1968] 2 QB 150 at 155 per Lord Denning MR; Wheeler v Leicester City Council [1985] AC 1054 at 1063, 1065 per Browne-Wilkinson LJ; Attorney-General v Guardian Newspapers Ltd (No 2) [1990] 1 AC 109 at 203 per Dillon LJ.
[68]Ballina Shire Council v Ringland (1994) 33 NSWLR 680 at 690–691 per Gleeson CJ; Derbyshire County Council v Times Newspapers Ltd [1993] AC 534 at 547–549 per Lord Keith of Kinkel.
[69]Allan, "The Common Law as Constitution: Fundamental Rights and First Principles", in Saunders (ed), Courts of Final Jurisdiction: The Mason Court in Australia, (1996) 146 at 148.
[70]cf Attorney-General v Observer Ltd [1990] AC 109 at 283 per Lord Goff of Chieveley.
The common law freedom of speech in relation to public affairs informed the decision of this Court in Davis v The Commonwealth[71] to hold invalid a statute purportedly made in the exercise of the incidental power under s 51(xxxix) of the Constitution. The restrictions it imposed on the use of words and expressions relevant to Australia's bicentennial celebrations were held to be "grossly disproportionate to the need to protect the commemoration"[72]. Its impact on freedom of expression was relevant to that assessment[73]:
"This extraordinary intrusion into freedom of expression is not reasonably and appropriately adapted to achieve the ends that lie within the limits of constitutional power."
Davis, antedating by four years the Court's discernment of the implied freedom of political communication, suggests that a proportionality test, relevant to the constitutional validity of any purposive legislative power, including an incidental power, may involve consideration of the effect of the purported exercise of that power upon common law rights and freedoms.
[71](1988) 166 CLR 79.
[72](1988) 166 CLR 79 at 100 per Mason CJ, Deane and Gaudron JJ.
[73](1988) 166 CLR 79 at 100 per Mason CJ, Deane and Gaudron JJ.
The application of the principle of legality to the construction of s 93X is anterior to the determination of the validity of the section and to any "reading down", if that be possible and necessary, to bring the section within the bounds of the legislative competence of the New South Wales Parliament as required by s 31 of the Interpretation Act 1987 (NSW). Constructional choices precluding or limiting the application of s 93X to consorting by engaging in, or for the purpose of, communication on governmental or political matters would include a reading of "consort" as not extending to association for such a purpose. No such construction, which could engage with the principle of legality, was suggested by the parties. It was not in the interest of the plaintiffs' challenge to validity for them to do so. The State of New South Wales accepted that s 93X extended to consorting with convicted offenders for entirely innocent purposes. Its arguments focussed upon the effects of s 93X on the implied freedom of communication, which it contended are minimal and purely incidental.
Section 93X does not prohibit mere communication with convicted offenders. Even if such a construction were open, the principle of legality would operate against it. However, there is no textual or contextual basis for construing s 93X as inapplicable to "habitual consorting" by engaging in, or for the purpose of, communication on governmental or political matters. Such a reading would import a qualification or limitation upon the meaning of "consort" which is inconsistent with its longstanding judicial exegesis, including that in Johanson v Dixon. Nor, having regard to that conclusion, could the Court construe official warnings as lacking legal consequences in relation to consorting in the course of, or for the purposes of, communication on governmental or political matters. The Court should not give a strained meaning to statutes in order to avoid the possibility of constitutional invalidity. Parliament's choice of language must be respected, even if the unavoidable consequence of that choice is constitutional invalidity[74] which cannot be cured by statutorily mandated reading down[75]. The question which must now be considered is whether s 93X, as applied to consorting in the course of, or for the purposes of, communication on governmental or political matters, infringes the implied freedom of political communication.
[74]International Finance Trust Co Ltd v New South Wales Crime Commission (2009) 240 CLR 319 at 349 [42] per French CJ; [2009] HCA 49.
[75]Interpretation Act 1987 (NSW), s 31.
The implied freedom of political communication
The implied freedom of communication on governmental or political matters defines a limit on the legislative power of the Commonwealth, State and Territory Parliaments and informs the common law of Australia. The questions to be asked in determining whether an impugned law exceeds that limit were settled in Lange v Australian Broadcasting Corporation[76], and modified in Coleman v Power[77]. They were recently restated in Unions NSW v New South Wales[78]. They are:
1.Does the impugned law effectively burden the freedom of political communication either in its terms, operation or effect[79]?
2.If the provision effectively burdens the freedom, is the provision reasonably appropriate and adapted, or proportionate, to serve a legitimate end in a manner which is compatible with the maintenance of the constitutionally prescribed system of representative government[80]?
[76](1997) 189 CLR 520 at 567 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ; [1997] HCA 25.
[77](2004) 220 CLR 1 at 50 [92]–[93], 51 [95]–[96] per McHugh J, 77–78 [196] per Gummow and Hayne JJ; [2004] HCA 39.
[78](2013) 88 ALJR 227; 304 ALR 266; [2013] HCA 58.
[79](2013) 88 ALJR 227 at 236 [35] per French CJ, Hayne, Crennan, Kiefel and Bell JJ; 304 ALR 266 at 276.
[80](2013) 88 ALJR 227 at 237 [44]; 304 ALR 266 at 278.
In considering each question, it is necessary to bear in mind that the implied freedom operates as a limit upon legislative power, not as a source of individual rights or freedoms[81]. As five Justices of this Court said in Unions NSW[82]:
"The central question is: how does the impugned law affect the freedom?"
The question whether a law "effectively burdens" the freedom requires consideration of its legal and practical operation. As Hayne J pointed out in Monis v The Queen, it does not require an evaluation of the significance or weight to be attached to that effect[83]. The submission of New South Wales to the contrary should be rejected. Nor can a negative answer to the question be based on a finding that the law's restriction on the implied freedom will not affect the overall quantum of political discourse, having regard to ways of undertaking that discourse which are unaffected by the restriction[84]. Such considerations may be involved in the second question. On the other hand, an effective burden is unlikely to be inferred simply from the forensic construction of causal connections between the law and some unlikely hypothetical restriction on the implied freedom.
[81](2013) 88 ALJR 227 at 235 [31]; 304 ALR 266 at 275.
[82](2013) 88 ALJR 227 at 236 [36]; 304 ALR 266 at 277.
[83](2013) 249 CLR 92 at 145–146 [118]–[121]; [2013] HCA 4.
[84](2013) 249 CLR 92 at 146 [122] per Hayne J.
The language of "legitimate ends" and laws "reasonably and appropriately adapted" to them in the second question may be traced back to the judgment of the Supreme Court of the United States delivered by Marshall CJ in McCulloch v Maryland[85] in 1819. That judgment concerned the power conferred on the Congress by Art I, §8, cl 18 of the United States Constitution to make laws "necessary and proper" for the exercise of other powers conferred by the Constitution. It was cited by Barton and O'Connor JJ in Jumbunna Coal Mine NL v Victorian Coal Miners' Association[86] in connection with the analogous "incidental" power conferred by s 51(xxxix) of the Constitution. Their Honours quoted[87] the well-known passage from the judgment of Marshall CJ[88]:
"Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional."
[85]17 US 316 at 421 (1819).
[86](1908) 6 CLR 309 at 344 per Barton J, 358 per O'Connor J; [1908] HCA 95.
[87](1908) 6 CLR 309 at 344 per Barton J, 357 per O'Connor J.
[88]McCulloch v Maryland 17 US 316 at 421 (1819).
The criterion of validity to which the second question gives rise first requires that the impugned law serve a "legitimate end". That is a purposive standard, which must be satisfied by any law which effectively burdens the freedom. Satisfaction of that standard attracts to consideration of the law's validity the criterion which has long been applied to laws purportedly made pursuant to grants of purposive law-making powers[89] and, as a subset of that category, express or implied grants of incidental law-making powers[90]. That criterion, that the law be "reasonably appropriate and adapted, or proportionate" to serve the legitimate end, is a species of the genus of proportionality tests. Such tests apply to constitutional grants of purposive powers and to statutory grants of power to make delegated legislation, but not to non-purposive powers[91]. They apply to what might broadly be called "public interest qualifications" on other constitutional guarantees, particularly s 92[92]. The term "proportionality" in this context is classificatory. It does not designate a doctrine. Some of the proportionality criteria apply a high threshold test for invalidity, asking whether the impugned law is "capable" or "reasonably capable" of being appropriate and adapted to the relevant purpose[93]. That kind of formulation has sometimes been used in relation to the implied freedom of political communication[94]. A negative answer to the question, so framed, would be sufficient for invalidity. However, a positive answer is not sufficient for validity. The second question, as recently restated in Unions NSW, requires the low threshold proportionality test for invalidity to be applied in cases involving the implied freedom.
[89]As to the distinction between purposive and non-purposive powers see Stenhouse v Coleman (1944) 69 CLR 457 at 471 per Dixon J; [1944] HCA 36.
[90]Cunliffe v The Commonwealth (1994) 182 CLR 272 at 322 per Brennan J; [1994] HCA 44.
[91]Leask v The Commonwealth (1996) 187 CLR 579 at 593–595 per Brennan CJ, 602–604 per Dawson J, 613–615 per Toohey J, 616–617 per McHugh J, 624 per Gummow J; [1996] HCA 29; Theophanous v The Commonwealth (2006) 225 CLR 101 at 128 [70] per Gummow, Kirby, Hayne, Heydon and Crennan JJ; [2006] HCA 18.
[92]Castlemaine Tooheys Ltd v South Australia (1990) 169 CLR 436 at 472–473 per Mason CJ, Brennan, Deane, Dawson and Toohey JJ; [1990] HCA 1; Betfair Pty Ltd v Western Australia (2008) 234 CLR 418 at 476–477 [101]–[102] per Gleeson CJ, Gummow, Kirby, Hayne, Crennan and Kiefel JJ; [2008] HCA 11.
[93]As to the use of high threshold and low threshold proportionality tests see Attorney-General (SA) v Adelaide City Corporation (2013) 249 CLR 1 at 34–42 [48]–[62] per French CJ.
[94]Langer v The Commonwealth (1996) 186 CLR 302 at 318 per Brennan CJ, 334 per Toohey and Gaudron JJ; [1996] HCA 43; Levy v Victoria (1997) 189 CLR 579 at 594–595 per Brennan CJ, 614–615 per Toohey and Gummow JJ; [1997] HCA 31.
In the joint judgment in Unions NSW it was said that[95]:
"The inquiry whether a statutory provision is proportionate in the means it employs to achieve its object may involve consideration of whether there are alternative, reasonably practicable and less restrictive means of doing so."
That passage referred back to the observation in the joint judgment of Crennan, Kiefel and Bell JJ in Monis v The Queen[96]:
"Where there are other, less drastic, means of achieving a legitimate object, the relationship with the legislative purpose may not be said to be proportionate, at least where those means are equally practicable and available. Given the proper role of the courts in assessing legislation for validity, such a conclusion would only be reached where the alternative means were obvious and compelling, as was the Tasmanian legislation in Betfair Pty Ltd v Western Australia. In such circumstances the means could not be said to be reasonably necessary to achieve the end and are therefore not proportionate." (footnotes omitted)
The cautionary qualification that alternative means be "obvious and compelling" ensures that consideration of the alternatives remains a tool of analysis in applying the required proportionality criterion. Courts must not exceed their constitutional competence by substituting their own legislative judgments for those of parliaments.
[95](2013) 88 ALJR 227 at 237 [44] per French CJ, Hayne, Crennan, Kiefel and Bell JJ; 304 ALR 266 at 278.
[96](2013) 249 CLR 92 at 214 [347].
Whether s 93X imposes a burden on the implied freedom of political communication
Laws which burden the implied freedom may fall into one or more of the following non-exhaustive list of classes[97]:
•a law which expressly restricts or prohibits communication on governmental or political matters[98];
•a law which restricts or prohibits communication by reference to characteristics of its content which may or may not involve governmental or political matters[99];
•a law which restricts or prohibits communications by reference to a mode of communication, without regard to the content of the communication; and
•a law which restricts or prohibits an activity, which is not defined by reference to communication on governmental or political matters, where the law may operate in some circumstances to restrict or prohibit such communication[100].
Those categories of laws do not attract different levels of scrutiny in the application of the criteria of validity. As Crennan, Kiefel and Bell JJ explain more generally in their Honours' reasons, the test in Lange does not import the range of different kinds of scrutiny, from minimal to strict, adopted in the Supreme Court of the United States. The identification of a legitimate end may be more difficult in the first category than in the fourth[101]. The question whether the law is reasonably appropriate and adapted to serve that legitimate end remains the same in each case. The question whether it does so in a manner compatible with the maintenance of the constitutionally prescribed system of representative government may be easier to answer in the affirmative in the fourth category than in the first.
[97]See generally Hogan v Hinch (2011) 243 CLR 506 at 555–556 [95]–[96] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; [2011] HCA 4; Wotton v Queensland (2012) 246 CLR 1 at 16 [30] per French CJ, Gummow, Hayne, Crennan and Bell JJ; [2012] HCA 2.
[98]Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106; [1992] HCA 45; Langer v The Commonwealth (1996) 186 CLR 302.
[99]Nationwide News Pty Ltd v Wills (1992) 177 CLR 1; Coleman v Power (2004) 220 CLR 1; Hogan v Hinch (2011) 243 CLR 506; Attorney-General (SA) v Adelaide City Corporation (2013) 249 CLR 1; Monis v The Queen (2013) 249 CLR 92.
[100]Levy v Victoria (1997) 189 CLR 579; Wotton v Queensland (2012) 246 CLR 1.
[101]Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106 at 169 per Deane and Toohey JJ; Hogan v Hinch (2011) 243 CLR 506 at 555–556 [95] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ.
Section 93X is in the fourth category. It prohibits an activity which is not simply communication but necessarily involves communication, albeit not necessarily communication on governmental or political matters. However, it does not require the construction of a fanciful hypothesis to conclude that, in its legal effect and practical operation, s 93X may directly or indirectly restrict the implied freedom. Persons could be convicted of habitual consorting even if their consorting was with ex-prisoners for the purposes of agitation for reform of the laws relating to consorting, sentencing, parole, prison conditions or the provision of post-prison rehabilitation services or half-way houses. The inferred burden on the implied freedom is not able to be displaced by any assumption that, as a matter of administrative practice, police officers would not issue official warnings in relation to consorting for such innocent purposes. As appears from s 93Y, habitual consorting for the innocent purpose of engaging in political activity, including communication on governmental or political matters, is not excluded from the offence-creating provision.
New South Wales submitted, correctly, that s 93X is not directed at political communication. Further, as it submitted, a person constrained by s 93X retains the freedom to engage in a variety of ways in the kinds of communications which are covered by the freedom. It also correctly submitted that s 93X would only prohibit such communication where it occurs as an incident of consorting with two or more persons convicted of indictable offences in relation to whom warnings have previously been given, and which does not fall within one of the exceptions in s 93Y. Those submissions, however, do not go to the point of the first question. They invite the Court to assess the significance or extent of the effect of s 93X on the implied freedom, including by reference to modes of communication that remain open for persons affected by its prohibitions. In this respect, New South Wales was supported by the Attorneys-General for Victoria and Queensland. For the reasons already given, that invitation should be rejected.
Section 93X imposes an effective burden upon the implied freedom of political communication. The next question is whether s 93X serves a legitimate end.
Whether the burden is imposed for a legitimate end
New South Wales submitted that the legitimate object or end of s 93X is to prevent or impede criminal conduct by deterring non-criminals from consorting in a criminal milieu and deterring criminals from establishing or building up a criminal network. That submission should be accepted. That object is apparent from the text of s 93X and, as part of its context, the objects of precursor consorting laws in New South Wales and similar laws in other States, reflected in the judicial decisions discussed earlier in these reasons.
Tajjour and Hawthorne argued that s 93X casts so wide a net that it could not be said to be reasonably adapted to serve a legitimate end. That aspect of their written submissions tended to conflate the question whether the section serves a legitimate end with the proportionality question. While the net cast by s 93X is wide enough to pick up a large range of entirely innocent activity, it clearly does apply to conduct which is properly regarded as likely to result in the formation, maintenance and extension of criminal networks. It evidently relies upon the exercise of police discretion for an appropriately narrow focus in its actual application[102]. Wide as its net may be, the proposition that s 93X serves a legitimate end must be accepted.
[102]The submission of the Attorney-General for Western Australia, however, went too far in contending that the warning feature "excludes the innocent associate and clarifies the object of s 93X."
Reasonably appropriate and adapted
The proportionality question is whether s 93X is reasonably appropriate and adapted to serve its legitimate end in a manner which is compatible with the maintenance of the constitutionally prescribed system of representative government.
New South Wales submitted that s 93X is not directed to restricting communication on governmental or political matters. It argued that the effect of the section on such communication is incidental. On its proper construction, s 93X applies to habitual consorting for the sole purpose of communication on governmental or political matters. Its actual application may be limited by the sensible exercise of the police discretion to issue an official warning. While in practical terms that may mean that it is not likely to be applied to consorting for the purpose of political communication, the law does not so constrain the discretion or the application of the section. Where it applies to such activity, its burden on the implied freedom cannot be discounted as merely incidental.
It may be that, in some cases, the application of s 93X to consorting with convicted offenders for the purpose of communicating on governmental or political matters will have a double effect — it will prevent or impede the formation, maintenance or expansion of a criminal network and also burden the implied freedom. The first effect serves a legitimate end. The difficulty is that the section, in imposing the burden on the implied freedom, does not discriminate between cases in which the purpose of impeding criminal networks may be served, and cases in which patently it is not. That there are such cases appears from s 93Y, which makes it clear that it is not the purpose of s 93X to prohibit habitual consorting whatever the circumstances in which it occurs. A range of innocent consorting activities is excluded, albeit the onus is on the defendant to satisfy the court that the consorting was reasonable in the circumstances. The existence of those defences reinforces the conclusion that the burden of s 93X on the implied freedom, measured by the breadth of its application to entirely innocent habitual consorting, is not appropriate and adapted reasonably, or otherwise, to serve the purpose of the section.
That conclusion does not require further support by the identification of less restrictive alternatives to s 93X in its present form. Nor does it depend upon the proposition that there is an implied freedom of association, free-standing or incidental to the implied freedom of political communication. The burden on freedom of association imposed by s 93X results in a burden on the implied freedom of political communication. It is not necessary to consider whether there is a free-standing implied freedom of association. In any event, the Court has recently rejected such a concept[103].
[103]Wainohu v New South Wales (2011) 243 CLR 181 at 230 [112] per Gummow, Hayne, Crennan and Bell JJ, French CJ and Kiefel J agreeing at 220 [72], 251 [186] per Heydon J; [2011] HCA 24; cf divergent views in Mulholland v Australian Electoral Commission (2004) 220 CLR 181 at 225–226 [114]–[115] per McHugh J, 234 [148] per Gummow and Hayne JJ, 277–278 [284]–[286] per Kirby J, 306 [364] per Heydon J; [2004] HCA 41 and Kruger v The Commonwealth (1997) 190 CLR 1 at 91 per Toohey J, 116 per Gaudron J, 142 per McHugh J, 157 per Gummow J; [1997] HCA 27.
Section 93X, in its application to the implied freedom, is not reasonably appropriate and adapted to serve its legitimate end. A fortiori, it is not reasonably appropriate and adapted to serve its legitimate end in a manner that is compatible with the maintenance of the constitutionally prescribed system of representative government.
It was submitted for Tajjour and Hawthorne that the legislative powers of the Parliament of New South Wales are limited by obligations which Australia, through the Executive Government of the Commonwealth, has assumed at international law under treaties to which it is a party. In particular, it was submitted that the Parliament of New South Wales could not enact a law infringing upon the "right to freedom of association with others" set out in Art 22 of the ICCPR, to which Australia is a party. There is no authority which would support such a proposition. It is incompatible with the long accepted dualism of international law and Australian domestic law[104]. If given effect by a Commonwealth statute, the freedom of association set out in Art 22 of the ICCPR could be said to enliven the operation of s 109 to invalidate inconsistent State laws. Absent such incorporation, the existence of the Convention obligation is relevant to the interpretation of State laws, analogously to the principle of legality[105]. The submission would treat as invalid any law of a State inconsistent with, or in contravention of, an obligation assumed by the Executive Government of the Commonwealth. There is no constitutional basis for that submission, which should be rejected.
[104]Brown v Lizars (1905) 2 CLR 837 at 860–861 per Barton J; [1905] HCA 24; Chow Hung Ching v The King (1948) 77 CLR 449 at 477–478 per Dixon J; [1948] HCA 37; Kioa v West (1985) 159 CLR 550 at 570–571 per Gibbs CJ; [1985] HCA 81; Dietrich v The Queen (1992) 177 CLR 292 at 305–306 per Mason CJ and McHugh J, 321 per Brennan J, 348–349 per Dawson J, 359–361 per Toohey J; [1992] HCA 57. See also Minister for Foreign Affairs and Trade v Magno (1992) 37 FCR 298 at 303–305 per Gummow J.
[105]Polites v The Commonwealth (1945) 70 CLR 60 at 77 per Dixon J; [1945] HCA 3.
Reading down
New South Wales submitted, as a "fall back" position, that if s 93X were found to impose an impermissible burden on the implied freedom, it could be read down pursuant to s 31 of the Interpretation Act 1987 (NSW) so as not to apply to communications protected by the implied freedom.
Section 31 of the Interpretation Act 1987 (NSW), reflecting in part s 15A of the Acts Interpretation Act 1901 (Cth), relevantly provides:
"(1)An Act or instrument shall be construed as operating to the full extent of, but so as not to exceed, the legislative power of Parliament.
(2)If any provision of an Act or instrument, or the application of any such provision to any person, subject-matter or circumstance, would, but for this section, be construed as being in excess of the legislative power of Parliament:
(a)it shall be a valid provision to the extent to which it is not in excess of that power, and
(b)the remainder of the Act or instrument, and the application of the provision to other persons, subject-matters or circumstances, shall not be affected."
It is a necessary condition of the application of s 31 that the court can identify an application of the relevant provision to a larger class of "persons, subject-matters or circumstances" than the power of the Parliament allows[106]. By way of example, in R v Hughes[107] the words "functions and powers" in s 47(1) of the Corporations Act 1989 (Cth) were treated as limited to functions and powers in respect of matters within the legislative powers of the Parliament of the Commonwealth[108]. Section 93X does not apply to a class of things like the "functions and powers" in Hughes or the "associations" read down by O'Connor J in Jumbunna Coal Mine NL v Victorian Coal Miners' Association[109] to associations party to a dispute within the meaning of s 51(xxxv) of the Constitution.
[106]Pape v Federal Commissioner of Taxation (2009) 238 CLR 1 at 93 [250] per Gummow, Crennan and Bell JJ; [2009] HCA 23.
[107](2000) 202 CLR 535; [2000] HCA 22.
[108](2000) 202 CLR 535 at 557 [43] per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ.
[109](1908) 6 CLR 309 at 364.
The general words of s 93X present a variety of ways in which the excess of power might be removed. Section 93X and its associated provisions might be reframed so as not to impose a burden on the implied freedom at all, or so as to impose a lesser or conditional burden which would satisfy the proportionality criterion. There is no unique construction which would bring the section within the legislative power of the Parliament. As Latham CJ said in Pidoto v Victoria[110]:
"if a law can be reduced to validity by adopting any one or more of a number of several possible limitations, and no reason based upon the law itself can be stated for selecting one limitation rather than another, the law should be held to be invalid."
That passage was referred to in Victoria v The Commonwealth (Industrial Relations Act Case)[111]. Further, a construction of s 93X to confine its operation by reference to the implied freedom would involve a reading of its text and that of s 93Y, which sets out six express innocent purpose defences, in a way that would be inconsistent with the statutory text and context. It would be inconsistent with the scope of the term "consorting", which the Parliament has chosen to use according to its received meaning, and inconsistent with the qualifications on that received meaning reflected in s 93Y. Section 31 does not apply in this case to save s 93X from invalidity.
[110](1943) 68 CLR 87 at 111; [1943] HCA 37.
[111](1996) 187 CLR 416 at 502 per Brennan CJ, Toohey, Gaudron, McHugh and Gummow JJ; [1996] HCA 56.
Conclusion
The questions in the Special Cases relating to Tajjour and Hawthorne should be answered as follows:
Q1.Is s 93X of the Crimes Act 1900 (NSW) invalid because it impermissibly burdens the implied freedom of communication on governmental and political matters, contrary to the Commonwealth Constitution?
A1. Yes.
Q2.Is there implied into the Commonwealth Constitution a freedom of association independent of the implied freedom of communication on governmental and political matters?
A2. Not necessary to answer.
Q3.Does s 93X of the Crimes Act 1900 (NSW) contravene any implied freedom of association referred to in question 2?
A3. Not necessary to answer.
Q4.Is s 93X of the Crimes Act 1900 (NSW) invalid because it is inconsistent with the International Covenant on Civil and Political Rights as ratified by the Commonwealth of Australia?
A4. No.
Q5.Who should pay the costs of the Special Case?
A5.The defendant.
In the Special Case relating to Forster, only the first and last questions were referred. The answer to the first question should be "Yes" and the answer to the last question should be "The defendant".
HAYNE J. Neither the Parliament of the Commonwealth nor the Parliament of any State has power to make a law inconsistent with that freedom of communication on matters of government and politics which is an indispensable incident of the constitutionally prescribed system of representative and responsible government of the Commonwealth. Section 93X of the Crimes Act 1900 (NSW) makes it an offence, punishable by imprisonment, fine, or both imprisonment and fine, habitually to consort with convicted offenders after having been given an "official warning"[112] in relation to each of those offenders. Is that law beyond the legislative power of the Parliament of New South Wales?
[112]Defined by s 93X(3) as a warning given by a police officer (orally or in writing) that a convicted offender is a convicted offender and that consorting with a convicted offender is an offence.
The facts and proceedings
The plaintiff in each of these proceedings stands charged with an offence against s 93X. Each has brought proceedings in the Supreme Court of New South Wales seeking a declaration that s 93X is invalid. On the application of the Attorney‑General for New South Wales, the whole of each proceeding has been removed[113] into this Court. The parties in each proceeding have agreed in stating questions of law in the form of a special case for the opinion of the Full Court.
[113]Judiciary Act 1903 (Cth), s 40(1).
None of the special cases records any agreed fact about what is said to constitute the alleged habitual consorting beyond the names of the persons with whom it is alleged the plaintiff was consorting and the fact that each was a convicted offender. None of the special cases says anything to suggest that any of the alleged occasions of consorting was for a purpose of, or attended by, any communication about any government or political matter.
Each plaintiff alleges that s 93X is invalid because it impermissibly burdens the implied freedom of communication concerning government and political matters. Mr Tajjour and Mr Hawthorne further allege that s 93X is invalid because it infringes a freedom of association which they assert should be found to be implied in the Constitution and because s 93X is inconsistent with the International Covenant on Civil and Political Rights[114] ("the ICCPR"). The questions stated in the form of special cases ask, in effect, whether the allegations the plaintiffs make should be accepted. They should not.
[114]Done at New York on 16 December 1966; [1980] ATS 23.
Freedom of political communication – principles
Because freedom of communication on matters of government and politics is an indispensable incident of that system of representative and responsible government which the Constitution creates and requires, that freedom cannot be curtailed[115] by the exercise of legislative or executive power and the common law cannot be inconsistent with it. But the freedom is not absolute and it follows that the limit on legislative power is not absolute.
[115]Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 560; [1997] HCA 25; Monis v The Queen (2013) 249 CLR 92 at 141 [103]; [2013] HCA 4; Unions NSW v New South Wales (2013) 88 ALJR 227 at 235 [31]; 304 ALR 266 at 275; [2013] HCA 58.
The principles governing this limitation on power are well‑established. Subject to one qualification, they were not disputed in argument in these cases. Where a law has the legal or practical effect of burdening political communication, it is necessary to decide "whether the provision is reasonably appropriate and adapted, or proportionate, to serve a legitimate end in a manner which is compatible with the maintenance of the prescribed system of representative government"[116].
[116]Unions NSW (2013) 88 ALJR 227 at 237 [44]; 304 ALR 266 at 278.
The qualification which must be noted, however, is that, contrary to the submissions of New South Wales and some interveners, the first question posed by Lange[117] – whether the impugned law "effectively burdens the freedom of political communication either in its terms, operation or effect"[118] – neither permits nor requires consideration of the extent of that burden. As five members of the Court have recently held[119], "[t]he identification of the extent of the burden imposed on the freedom is not relevant to this first inquiry". The submissions by New South Wales, and some of the interveners, to the effect that consorting laws would have only a slight or insubstantial effect on political discourse, and that for that reason alone s 93X should be found not to be a law which effectively burdens freedom of communication about government or political matters, are unsound and must be rejected. Rather, application of the established principles must proceed in accordance with the two steps identified in Lange. Does the law have the legal or practical effect of burdening political communication? If it does, is the law proportionate to serve a legitimate end in a manner which is compatible with the maintenance of the prescribed system of representative government?
[117](1997) 189 CLR 520 at 567.
[118]Unions NSW (2013) 88 ALJR 227 at 236 [35]; 304 ALR 266 at 276.
[119]Unions NSW (2013) 88 ALJR 227 at 236 [40]; 304 ALR 266 at 277.
Answering both of the Lange questions depends upon a proper understanding of the application of the impugned provision. It is necessary, therefore, to say something about what is meant by "consort" and "consorting" in those provisions.
Consorting
Section 93W provides that, in the relevant provisions, "consort means consort in person or by any other means, including by electronic or other form of communication". Section 93Y provides that certain forms of consorting are to be disregarded "if the defendant satisfies the court that the consorting was reasonable in the circumstances". Both s 93W and s 93Y depend upon giving meaning to the idea of "consort". Neither of those sections sheds much light upon that meaning.
New South Wales submitted that "consort" should be given the meaning described by Mason J in Johanson v Dixon[120]. That meaning has two relevant elements. First, there is an element of associating or keeping company. Second, there must be "some seeking or acceptance of the association on the part of the defendant"[121]. The plaintiffs did not put forward any alternative meaning. Rather, they submitted that s 93X would have a very wide application, not least because of s 93W and its provision for consorting "by any other means". Implicitly, the plaintiffs seemed thus to accept that "consort" should be given the meaning which has been described. Be this as it may, no reason was given for departing from the meaning given to "consort" by Mason J in Johanson and it should be adopted.
[120](1979) 143 CLR 376 at 383; [1979] HCA 23.
[121](1979) 143 CLR 376 at 383.
It remains necessary to make four further points about s 93X and its associated provisions.
First, s 93X, in creating the offence, says nothing at all about the purpose for the consorting. To adopt and adapt what Mason J said[122] in Johanson (about differently expressed consorting provisions), this feature of s 93X entails not only that the prosecution need not prove that the consorting was for an unlawful or criminal purpose but also that "consort" and its cognates do not imply that the association is one which has or needs to have any particular purpose.
[122](1979) 143 CLR 376 at 383.
Second, s 93X provides that any person who "habitually consorts with convicted offenders", after having been given an official warning in relation to each of the relevant offenders, is guilty of an offence (emphasis added). Again adopting and adapting what Mason J said[123] in Johanson, "the gist of the offence ... is habitual association with persons who fall into the designated [class]". For s 93X, the class is constituted by convicted persons in relation to each of whom the accused person has received an official warning.
[123](1979) 143 CLR 376 at 384.
Third, the definition of "consort" given in s 93W refers to consorting "in person or by any other means, including by electronic or other form of communication". The reference in s 93W to modes of consorting does not modify the elements of consorting itself. It follows that consorting, no matter how it is effected, has those elements identified[124] by Mason J in Johanson. That is, there must be a sought or accepted (and habitual) association or keeping of (real or virtual) company with persons of the designated class.
[124](1979) 143 CLR 376 at 383.
Fourth, demonstrating those matters in any particular case may not be easy. What would suffice to demonstrate consorting, not in person, but by electronic or other form of communication, will have to be worked out as the need arises. But the difficulties that may arise are problems of proof. They do not bear upon the proper construction of the provisions.
This being the way in which s 93X should be construed, how do the relevant principles apply?
The first Lange question
It may readily be accepted that s 93X is not directed to restricting communication about government or political matters. But by prohibiting habitually consorting with convicted offenders with respect to whom an official warning has been issued, s 93X operates to prohibit occasions on which there could be political communications. By prohibiting the persons to whom the section is directed from habitually seeking out or accepting association with persons of the designated class, s 93X prohibits those persons making political communications between themselves and prohibits them from joining together to make some concerted communication to others about government or political matters. Like the regulations in issue in Levy v Victoria[125], which prohibited all but certain persons from entering certain areas of a State Game Reserve during the first two days of the duck hunting season, s 93X exemplifies[126] "a law which has the effect, if not the purpose, of curtailing to some degree the constitutional freedom". Because s 93X has this legal and practical effect, it is a law which "effectively burdens" the constitutional freedom.
[125](1997) 189 CLR 579; [1997] HCA 31.
[126]Levy (1997) 189 CLR 579 at 614 per Toohey and Gummow JJ.
It becomes necessary, therefore, to consider the second Lange question (as that question is now to be understood and applied in the light of later decisions[127] of the Court). Before doing so, however, it is as well to deal directly with the absence of any fact in any of the special cases which would suggest that any of the several acts or occasions of consorting alleged against the plaintiffs had anything to do with any communication about government or political matters.
[127]Coleman v Power (2004) 220 CLR 1 at 50‑51 [92]‑[96] per McHugh J, 77‑78 [196] per Gummow and Hayne JJ, 82 [211] per Kirby J; [2004] HCA 39; Levy (1997) 189 CLR 579 at 645-646 per Kirby J. See also APLA Ltd v Legal Services Commissioner (NSW) (2005) 224 CLR 322; [2005] HCA 44; Hogan v Hinch (2011) 243 CLR 506; [2011] HCA 4; Wotton vQueensland (2012) 246 CLR 1; [2012] HCA 2; Attorney‑General (SA) v AdelaideCity Corporation (2013) 249 CLR 1; [2013] HCA 3; Monis (2013) 249 CLR 92; Unions NSW (2013) 88 ALJR 227; 304 ALR 266.
Is the second Lange question reached?
In Johanson v Dixon, Mason J, with whom Barwick CJ and Stephen J agreed, said that "[i]n its context 'consorts' means 'associates' or 'keeps company'" and that it "denotes some seeking or acceptance of the association on the part of the defendant"[246].
[246](1979) 143 CLR 376 at 383.
In the same case, Aickin J, with whom Stephen J also agreed, said[247]:
"The ordinary meaning of the words 'to consort' is to 'accompany; to escort or attend, to be a consort to (someone) or to associate oneself with (someone)', and thus to associate with or to keep company with a particular person is to 'consort' with such person. In this respect I agree with the views expressed in Brown v Bryan[248] that it denotes some seeking or acceptance of the association with other specified persons on the part of a defendant."
[247](1979) 143 CLR 376 at 395.
[248][1963] Tas SR 1 at 2.
The issues in Johanson v Dixon were not such as to require their Honours to explain more fully the nature of the association proscribed as consorting. But it is apparent that their Honours regarded consorting as a social interaction involving more than the mere physical presence of two or more persons at the same location: one aspect of consorting is the intentional seeking out of the company of a person convicted of an indictable offence.
Personal intimacy
The nature of the association which is sought out is also material to whether the relationship is to be characterised as consorting. To meet casually with an acquaintance is not to consort, both because the meeting is not sought out, and because an acquaintance is not necessarily a consort.
It has long been understood that "consorting" involves the seeking out or acceptance of a relationship of personal intimacy[249]. In O'Connor v Hammond[250], Stout CJ said: "Consorting would be proved by companionship." One of the meanings given by The Oxford English Dictionary[251] to the verb "consort" captures this idea: "To associate in a common lot, to sort together (persons or things)." This understanding reflects the appreciation that the vice at which the law is directed is the potential spread of criminogenic influence by one's choice of companions.
[249]Auld v Purdy (1933) 50 WN (NSW) 218 at 219; Dias v O'Sullivan [1949] SASR 195 at 199‑202.
[250](1902) 21 NZLR 573 at 575-576.
[251]2nd ed (1989), vol 3 at 780.
In Dias v O'Sullivan[252], Mayo J said:
"The idea implicit in consorting … suggests a more or less close personal relationship, or at least some degree of familiarity, or intimacy with persons, or attraction from, or an enjoyment of, some feature in common, that results in a tendency towards companionship. Where there is consorting it may be expected to be in obedience to an inclination, or impulse, to gravitate into the presence of, or, if accidentally in such presence, to remain in a group with some other person or persons. The fundamental ingredient is companionship. The fact that people meet (inter alia) to carry on some trade or occupation is not inconsistent with a fraternising contemporary therewith amounting to consorting.
…
If the elements, that I have discussed, are present, the reasons for, or purposes of, any meetings, or every meeting, are irrelevant. The offence does not postulate any criminal activity. It is comradeship with [convicted offenders]. The legislative intent is, as I think, precautionary and preventative, rather than to administer punishment for dishonest planning, criminal transactions, or machinations whilst the group are together." (emphasis added; citations omitted)
[252][1949] SASR 195 at 201-202.
Mayo J[253] discussed the social mischief at which the consorting laws are aimed by reference to the phrase "habitual consorting". His Honour said that habitual consorting is:
"the regular meeting of congeries of individuals ... in circumstances where the meetings have the appearance of fraternising. Each instance of such meetings relied on is not a separate offence. The conduct dealt with includes numbers of occurrences over a period. These will be illustrative of tendencies, and collectively may justify an inference that these tendencies are prone to affect the behaviour of the person accused to such a degree as to amount to a habit, that has influenced his conduct during the period alleged in the charge, or at least some part of that period." (emphasis added)
[253][1949] SASR 195 at 199.
It is to be noted that in Johanson v Dixon[254], Mason J referred to Dias v O'Sullivan, and to that part of the reasons of Mayo J which included the passages cited above, with evident approval.
[254](1979) 143 CLR 376 at 385.
Extrinsic material
In the Agreement in Principle Speech in the Legislative Assembly in respect of the proposed s 93X, the Attorney‑General for the State of New South Wales, referring to Johanson v Dixon, confirmed the purpose of the provision in terms which reflect the concern to suppress social interactions which may have a criminogenic tendency[255]:
"The High Court has found that consorting need not have a particular purpose but denotes some seeking or acceptance of the association on the part of the defendant. It does not extend to chance or accidental meetings, and it is not the intention of the section to criminalise meetings where the defendant is not mixing in a criminal milieu or establishing, using or building up criminal networks." (citation omitted)
[255]New South Wales, Legislative Assembly, Parliamentary Debates (Hansard), 14 February 2012 at 8131‑8132.
It is tolerably clear that s 93X does not target communications directed indiscriminately to all and any who might be disposed to engage in civic activity. Such communications generally lack the deliberate choice and personal intimacy that give rise to the criminogenic tendency which is the concern of s 93X. It was not suggested, and could not sensibly be suggested, that genuine communications confined to political or governmental matters can themselves be regarded as having that tendency.
The proper approach to the construction of s 93X
It is also to be borne in mind that the construction of s 93X is to be approached on the basis that the legislation is presumed not to interfere with common law rights and freedoms of individuals "except by clear and unequivocal language for which the Parliament may be accountable to the electorate."[256]
[256]South Australia v Totani (2010) 242 CLR 1 at 29 [31]; [2010] HCA 39.
In seeking to distinguish those communications which are burdened by s 93X from those which are not[257], it is well understood by the legislature and courts alike that any limitation upon the common law liberties of speech and association is not to be read expansively.
[257]APLA Ltd v Legal Services Commissioner (NSW) (2005) 224 CLR 322 at 403 [217].
As was said in Lange[258], "[u]nder a legal system based on the common law, 'everybody is free to do anything, subject only to the provisions of the law'". Under the common law an individual is free to communicate and associate as he or she wishes. That liberty encompasses the right to enter into such engagements as to the individual seem fit and proper. It also, in the case of contractual engagements, encompasses the right to have those engagements enforced by the courts[259]. In this respect, as McHugh J said in York v The Queen[260]:
"The common law's conception of liberty is not limited to 'liberty in a negative sense', that is, 'the absence of interference by others'. It extends to a conception of liberty in a 'positive' sense, which is 'exemplified by the condition of citizenship in a free society, a condition under which each is properly safeguarded by the law against the predations of others'." (footnotes omitted)
[258](1997) 189 CLR 520 at 564.
[259]Printing and Numerical Registering Co v Sampson (1875) LR 19 Eq 462 at 465.
[260](2005) 225 CLR 466 at 473 [22]; [2005] HCA 60.
In Australian Communist Party v The Commonwealth[261], Dixon J spoke of "the right of association" in this sense as a fundamental aspect of our legal system. It is necessary here to keep in mind that when one speaks of the right of association as Dixon J spoke of it in the Communist Party Case, one is speaking of the freedom of an individual under the common law, not the freedom derived from the constitutional implication, which operates as a denial of power to legislate in a given area of activity. The right of association under the common law is subject to legislative regulation whereas the constitutional implication limits the possibility of legal regulation. Before any question arises of the validity of legal regulation of an activity, one must determine whether a given piece of legislation affects the activity at all; and it is in relation to this step in the analysis that the presumption against interference with the right of association under the common law is to be taken into account.
[261](1951) 83 CLR 1 at 200; [1951] HCA 5.
The civic responsibilities which s 93X does not seek to trench upon are not confined to those which arise under the Constitution, but since the plaintiffs' challenge is based on the contention that s 93X is necessarily a burden on communications protected by the implied constitutional freedom, it is convenient to focus upon those communications. As noted earlier in these reasons, the freedom of communication throughout the Commonwealth necessitated by ss 7, 24, 64 and 128 of the Constitution serves "to preserve the political sovereignty of the people of the Commonwealth."[262] The association of the people of the Commonwealth as electors, on which s 24 of the Constitution is expressly predicated, is an association of a unique kind. It is ultimately by virtue of that association that sovereign power is exercised within the Commonwealth by its citizens. It is necessarily a public association; in one sense it might be said to be the ultimate public association, free of the social separation implicit in particular individuals sorting together.
[262]Unions NSW v New South Wales (2013) 88 ALJR 227 at 249 [135]; 304 ALR 266 at 295.
Association in this abstract sense, politically important as it is, is the antithesis of the relationship characteristic of consorts: it is not a relationship which involves any seeking out; and it does not involve any notion of personal intimacy or sorting together. Interactions between citizens on the occasion of the performance of their civic responsibilities do not require personal intimacy. To participate in the public affairs of the people of the Commonwealth is not to engage in the personal interaction characteristic of consorting. Further, it was not, and cannot be, suggested that communications on political or governmental matters might of themselves have criminogenic tendencies.
Section 93X of the Act is directed at fraternisation with criminals which, as a deliberate choice of companionship, is apt to lead to further criminal activity by the exercise of influence of one companion over the other. Section 93X of the Act is not directed at political communication, or association for the purposes of political communication, at either the State or federal level.
It is significant in this regard that the researches of counsel did not reveal that the offence of consorting has ever been held to apply to association for, or communication about, political or governmental matters. To adapt the observations of Gleeson CJ and Heydon J in APLA Ltd v Legal Services Commissioner (NSW)[263], if proscriptions upon consorting with criminals are incompatible with the requirements of ss 7, 24, 64 and 128 of the Constitution, "such incompatibility has passed unnoticed for most of the time since Federation."
[263](2005) 224 CLR 322 at 351 [29].
Political communication between consorts
Where persons who interact socially, so that they can be said to be consorts, also speak to each other on political or governmental matters, they are no less consorting because their interaction includes that discussion. The occurrence of political discussion between individuals who happen to be consorts does not exclude them from the operation of s 93X of the Act.
In APLA Ltd v Legal Services Commissioner (NSW)[264], it was held that Pt 14 of the Legal Profession Regulation 2002 (NSW), which prohibited a barrister or solicitor publishing advertisements containing certain kinds of content, was not a burden on communication about political or governmental matters for the purpose of the first limb of the Lange test for the reason that the prohibition was upon "communications [which were] an essentially commercial activity" rather than upon communications about political or governmental matters[265].
[264](2005) 224 CLR 322.
[265](2005) 224 CLR 322 at 351 [28]-[29], 362 [69]-[71], 403‑404 [216]-[220], 451 [380]-[382], 480 [457].
In Levy v Victoria[266], a regulation prohibited persons other than holders of a valid game licence from entering a permitted hunting area. The plaintiff was charged with contravening the regulation, and he challenged the validity of the regulation. The regulation survived the Lange test, notwithstanding that each member of the Court either held or assumed that the first limb of that test was satisfied in that the regulation was a burden upon communication about political or governmental matters because it prevented the plaintiff from entering upon the hunting area to make a political demonstration against duck‑shooting[267].
[266](1997) 189 CLR 579; [1997] HCA 31.
[267](1997) 189 CLR 579 at 595, 609, 614, 625-626, 647.
The case proceeded on the footing that the plaintiff entered the hunting area "for the purpose of protesting against the laws of the Victorian Parliament which authorised the holders of valid game licences to shoot game birds"[268]. That the impugned regulation was a burden upon the implied freedom was explained by Brennan CJ[269]:
"A law which simply denied an opportunity to make [a televised] protest about an issue relevant to the government or politics of the Commonwealth would be as offensive to the constitutionally implied freedom as a law which banned political speech-making on that issue. …
In the present case, the plaintiff entered upon the proclaimed area and, had he not been removed, he would have stayed there to make a dramatic and televised protest against duck shooting and the laws and policies which permitted or encouraged the practice. He was prohibited from being able lawfully to make that protest and he was removed from the proclaimed area in exercise of an authority arising from the provisions of the [impugned regulation]. The conduct in which the plaintiff desired to engage and which was proscribed by [the regulation] was calculated to express and was capable of expressing a political message."
[268](1997) 189 CLR 579 at 592.
[269](1997) 189 CLR 579 at 595.
In Levy, McHugh J also explained that the effect of the regulation was to prevent political communication as distinct from merely preventing conduct in the course of which a political communication might occur. His Honour said[270]:
"[T]he constitutional implication extends to protecting political messages of the kind involved here and also the opportunity to send those messages. …
The argument for both parties assumed … that, in the absence of [the regulation], the plaintiff and others were entitled to enter the permitted hunting area to make their protests. Because of this assumption, the proper course is to proceed on the basis that [the regulation] and not the proprietary rights of the Crown or the operation of the general law prevented access to the hunting area." (emphasis in original)
[270](1997) 189 CLR 579 at 625-626.
So far as the first limb of the Lange test is concerned, Levy can be understood as a case where the impugned regulation prevented communication on political or governmental matters. It does not support the broader proposition that an otherwise valid law infringes the implied freedom because it proscribes an activity in the course of which constitutionally protected communications might occur. To accept the proposition that an activity otherwise proscribed by the criminal law is excused by the mere possibility that the proscribed activity may also be accompanied by a communication on political or governmental matters would be to expand the scope of the implied freedom in an unprecedented fashion. It would also be inconsistent with the decision in APLA Ltd v Legal Services Commissioner (NSW)[271].
[271](2005) 224 CLR 322.
Conclusion: s 93X and the implied freedom of political communication
The considerations of text, history and purpose referred to above lead to the conclusion that s 93X of the Act does not proscribe social interactions which do not involve the intentional seeking out or acceptance of an interaction with individuals who have been convicted of an indictable offence. Nor does it proscribe personal interactions which lack the irreducible degree of social intimacy required to characterise the relationship as one of companionship or fraternisation.
Section 93X operates upon social interactions arranged by or with persons who have been convicted of an indictable offence, and which, by reason of the companionship so engendered, are apt to have criminogenic tendencies. Section 93X cannot fairly be interpreted as stripping a person convicted of an indictable offence of his or her civic responsibilities or the associated liberty to participate in political sovereignty. Section 93X leaves free the exercise of civic responsibilities, including those shared with the other people of the Commonwealth for the purposes of ss 7, 24 and 128 of the Constitution.
Accordingly, if a person who happens to have been convicted of an indictable offence issues an invitation to all and sundry to engage in a public demonstration of a point of view about political or governmental matters, or if another person accepts such an invitation, neither the person who issues the invitation nor the person who accepts the invitation is consorting, the one with the other. Similarly, a person convicted of an indictable offence may issue invitations to his or her acquaintances who have also been convicted of an indictable offence to join him or her in a public campaign for the repeal of s 93X without contravening the provision.
Even if a convicted person were to speak directly to another about political or governmental matters, that would not be sufficient, of itself, to constitute an act of consorting because the interactions of the kind required to be kept free by ss 7, 24, 64 and 128 of the Constitution are public interactions, which do not exhibit the personal intimacy characteristic of consorts. This is so, not because the purpose of the invitation or acceptance or resultant assembly is an "innocent purpose", but because the circumstances of the interaction do not involve a deliberate seeking out or acceptance of the personal companionship of a person or persons convicted of an indictable offence.
If the personal interactions between individuals are confined to communications on political or governmental matters, they could not be characterised as consorting, because those persons would not be engaged in deliberately sought interactions of personal intimacy apt to generate criminogenic tendencies. Of course, if their contact during a political campaign was such as to include private personal interactions beyond acts of genuine political communication, those acts might amount to conduct properly characterised as consorting notwithstanding their association with the campaign.
No doubt, there will be cases which present difficulties of fact in drawing the line, but the necessity of drawing such a line cannot be denied for that would give s 93X an operation which it does not claim.
The plaintiffs' contention that s 93X necessarily burdens communications on political or governmental matters must be rejected.
A separate implied freedom of association?
Mr Tajjour and Mr Hawthorne argued that the freedom of association is an important element of democratic government and is more than a mere extension or "corollary to the implied freedom of political communication." To the extent that association may be, and often is, an aspect of political communication, this submission may be accepted. To the extent that it is contended that the Constitution guarantees a right of association free from legislative intervention separately from the implication to be derived from ss 7, 24, 64 and 128 of the Constitution, that contention is contrary to authority and should be rejected.
In Mulholland v Australian Electoral Commission[272], it was held that:
"There is no such 'free‑standing' right to be implied from the Constitution. A freedom of association to some degree may be a corollary of the freedom of communication formulated in Lange v Australian Broadcasting Corporation and considered in subsequent cases. But that gives the principle contended for by the appellant no additional life to that which it may have from a consideration later in these reasons of Lange and its application to the present case." (footnotes omitted)
[272](2004) 220 CLR 181 at 234 [148]; [2004] HCA 41.
This view was recently confirmed by this Court in Wainohu v New South Wales[273]: "Any freedom of association implied by the Constitution would exist only as a corollary to the implied freedom of political communication".
[273](2011) 243 CLR 181 at 230 [112]; [2011] HCA 24.
For the same reasons that s 93X of the Act does not affect the implied freedom of political speech, it does not purport to burden this aspect of the freedom of communication on political and governmental matters.
The Commonwealth executive's treaty‑making power
Mr Tajjour and Mr Hawthorne argued that Australia's signing of the ICCPR prohibited States from enacting legislation which was contrary to the treaty's provisions, relevantly, the right to freedom of association.
On their behalf, it was urged that if a State could enact legislation contrary to the treaty's provisions, there would be an interference with both the expression of intention made on behalf of the Australian people and the power reserved to the Commonwealth by virtue of s 61 of the Constitution. Accordingly, so it was said, the enactment of s 93X of the Act is ultra vires due to its contravention of Art 22 of the ICCPR.
The submission by Mr Tajjour and Mr Hawthorne that the act of the executive government of the Commonwealth imposes a restriction on the State's legislative power unduly exalts the executive power of the Commonwealth over the laws of the States. It is contrary to authority and should not be accepted.
The Commonwealth's ratification of the ICCPR did not affect the ability of the States to enact legislation contrary to that Convention. The validity of State legislation is not dependent on its conformity with international agreements made by the Commonwealth where the international agreement has not been given effect by Commonwealth legislation whereby s 109 of the Constitution might be engaged[274].
[274]Dietrich v The Queen (1992) 177 CLR 292 at 305-306, 321, 348‑349, 359-360; [1992] HCA 57; Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1 at 38; [1992] HCA 64; Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 286-287; [1995] HCA 20.
Conclusion
In Proceedings No S36 and No S37 of 2014, commenced by Mr Tajjour and Mr Hawthorne respectively, the questions stated for the opinion of this Court should be answered as follows:
1.Is s 93X of the Crimes Act 1900 (NSW) invalid because it impermissibly burdens the implied freedom of communication on governmental and political matters, contrary to the Commonwealth Constitution?
Answer: No.
2.Is there implied into the Commonwealth Constitution a freedom of association independent of the implied freedom of communication on governmental and political matters?
Answer:No.
3.Does s 93X of the Crimes Act 1900 (NSW) contravene any implied freedom of association referred to in question 2?
Answer: No.
4.Is s 93X of the Crimes Act 1900 (NSW) invalid because it is inconsistent with the International Covenant on Civil and Political Rights as ratified by the Commonwealth of Australia?
Answer: No.
5. Who should pay the costs of the special case?
Answer: The plaintiff.
In Proceeding No S38 of 2014, commenced by Mr Forster, the questions stated for the opinion of this Court should be answered as follows:
1.Is s 93X of the Crimes Act 1900 (NSW) invalid because it impermissibly burdens the implied freedom of communication on governmental and political matters, contrary to the Commonwealth Constitution?
Answer: No.
2. Who should pay the costs of the special case?
Answer: The plaintiff.