High Court upholds broad anti-consorting laws (is it time to "unfriend" your bikie mates on Facebook..?)

New South Wales had a win on 8 October 2014, with the High Court upholding laws making it a crime to 'consort' with convicted offenders are valid (Tajjour v NSW; Hawthorne v NSW; Forster v NSW [2014] HCA 35). You can read the full judgment here.

The anti-consorting legislation empowers police to give people a notice to not 'habitually consort' with named persons.  'Consorting' is quite widely defined under the relevant legislation and includes consorting via electronic media, for example via Facebook or Twitter.  Breach of the notice is an offence.  The case involved a challenge by three plaintiffs (two of whom were members of the Nomads bikie gang) who had each been given a notice, and were subsequently charged with consorting.

The plaintiffs all argued that the legislation breached the constitutionally implied freedom of political communication.  Two also argued that it breached a constitutionally implied right to freedom of association, and that it was invalid for inconsistency with the International Covenant on Civil and Political Rights.

All of the grounds raised by the plaintiffs failed.

The laws are appropriate for stopping crime

A majority of 6:1 found that the anti-consorting provisions burden the implied freedom, but that the provisions are appropriate and adapted to serve the legitimate end of the prevention of crime in a manner compatible with the maintenance of the constitutionally prescribed system of representative government (see below for Justice Gageler's distinct approach).  The High Court noted that the provisions do not unduly limit all political communications, or occasions for such communications, and that the proscribed consorting would need to be 'habitual' for the prohibition to apply, which again limited the scope of the prohibition.

But such laws could be read down in future

Justice Gageler, reaching the same conclusion via a different route, found that the provisions are not appropriate and adapted to the purpose of preventing crime, where they limit communications on political matters.  However, he found that the provisions could be read down to exclude 'consorting which is or forms part of an association for a purpose of engaging in communication on governmental or political matter', and the legislation was saved on this basis.  If this approach finds favour in future, it could lead to different results, with laws being held to not apply to political communication.

Only Chief Justice French dissented, in finding that the legislation was not appropriate and adapted because it applied to what he referred to as 'entirely innocent habitual consorting'.  The Chief Justice therefore found the provisions to be invalid.

As for the other grounds, the Court found that the freedom of association was either unnecessary to consider or could not be implied into the Constitution, and unanimously rejected the proposition that a treaty which has not been incorporated into Commonwealth law could circumscribe the legislative power of State Parliaments.

What does this mean for Victoria?

If similar legislation were introduced in Victoria, its interpretation and application would be affected by the processes required under the Charter of Human Rights and Responsibilities Act 2006, which expressly protects rights to freedom of expression and association.  The approach to determining any challenge to hypothetical similar Victorian laws may involve different considerations depending on how the legislation is framed and the nature of the dispute between parties. In determining whether Charter Act rights are limited in such a case, the court would need to engage in a balancing exercise that may involve similar considerations as those considered in this case.  Ultimately, the outcome would depend upon whether any limitation of Charter Act rights could be shown to be lawful and justified.

If you are in the Victorian Government and require advice on constitutional or human rights issues, we can help.

VGSO will be presenting a seminar, open to all Victorian Government client agencies, on this case and its implications.  It will be held on Wednesday, 19 November 2014, from 12:30-2:00pm at Level 33, 80 Collins Street, Melbourne. Please register your interest in attending by emailing marketing.team@vgso.vic.gov.au

For further information about the topic contact:

Adrian Hoel
Principal Solicitor
t: 8684 0244
e: adrian.hoel@vgso.vic.gov.au

Nahal Zebarjadi
Solicitor
t: 8684 0401
e: nahal.zebarjadi@vgso.vic.gov.au