Right to freedom of assembly and association

Public sector guidance sheet

Disclaimer
This material is provided to persons who have a role in Commonwealth legislation, policy and programs as general guidance only and is not to be relied upon as legal advice. Commonwealth agencies subject to the Legal Services Directions 2005 requiring legal advice in relation to matters raised in this Guidance Sheet must seek that advice in accordance with the Directions.

What is the right to freedom of assembly and association?

The right to peaceful assembly protects the right of individuals and groups to meet and to engage in peaceful protest. The right to freedom of association protects the right to form and join associations to pursue common goals.

Where does the right to freedom of assembly and association come from?

Australia is a party to seven core international human rights treaties. The right to freedom of assembly and association is contained in articles 21 and 22 of the International Covenant on Civil and Political Rights (ICCPR) and article 8(1)(a) of the International Covenant on Economic, Social and Cultural Rights (ICESCR).

See also article 5 of the Convention on the Elimination of All Forms of Racial Discrimination (CERD) , article 15 of the Convention on the Rights of the Child (CRC) and article 21 of the Convention on the Rights of Persons with Disabilities (CRPD).

When do I need to consider the right to freedom of assembly and association?

You will need to consider the right to freedom of assembly and association if you are working on legislation, a policy or a program that:

  • limits or regulates the ability of a person or group of persons to peacefully protest
  • prohibits or creates disincentives for membership of particular organisations, for example terrorist organisations or motorcycle gangs
  • regulates membership of groups or associations, in particular trade unions
  • requires a person to disclose membership of a group or association, or
  • treats people differently on the basis of their membership of a group or association.

This list should not be regarded as exhaustive.

When working on a measure that restricts freedom of assembly and association, you should ask yourself whether:

  • the restriction is for a purpose which falls within one of the permitted grounds for restriction under the relevant article
  • the measure will be effective to achieve the desired ends
  • it impinges on freedom of assembly or association to a greater degree than is necessary
  • there are less restrictive means of achieving the desired ends.

What is the scope of the right to freedom of assembly and association?

The right to peaceful assembly protects the right of individuals and groups to meet for a common purpose or in order to exchange ideas and information, to express their views publicly and to hold a peaceful protest. The right extends to all gatherings for peaceful purposes, regardless of the degree of public support for the purpose of the gathering. However, the right applies only to peaceful assemblies, not to those involving violence.

The right to freedom of association protects the right of all persons to group together voluntarily for a common goal and to form and join an association. Examples are political parties, professional or sporting clubs, non-governmental organisations and trade unions. The right to form and join trade unions is specifically protected in article 8 of the ICESCR. It is also protected in International Labour Organization (ILO) Convention No 87 (referred to in article 22(3) of the ICCPR and article 8(3) of ICESCR). Australia is a party to ILO Convention No 87.

There is no settled international law on whether the right to freedom of association encompasses the right not to be compelled to join an association, such as a trade union or professional association. In Australia, the Fair Work Act 2009 provides that persons are free to not become members of industrial associations.

Article 22(2) of the ICCPR recognises that it may be permissible to impose lawful restrictions on members of the armed forces and the police in their exercise of the right to freedom of association.

The right to freedom of assembly and association may be restricted on the grounds set out in articles 21 and 22(2) of ICCPR and article 8(1)(a) of ICESCR.

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Can the right to freedom of assembly and association be limited?

Derogation

Under article 4 of the ICCPR, countries may take measures derogating from certain of their obligations under the Covenant, including the right to freedom of assembly and association 'in time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed'. Such measures may only be taken 'to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin'.

Limitation

In addition, under article 21 freedom of assembly may be subject to restrictions imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order, the protection of public health or morals or the protection of the rights and freedoms of others. Article 22(2) makes similar provision in relation to freedom of association.

Article 8(1)(a) of ICESCR allows the right of persons to form and join trade unions to be restricted as prescribed by law and as necessary in a democratic society in the interests of national security or public order or for the protection of the rights and freedoms of others.

In all cases, restrictions must be provided for by legislation (or imposed in conformity with legislation), must be necessary to achieve the desired purpose and must be proportionate to the need on which the limitation is based. The phrase 'necessary in a democratic society' incorporates the notion of proportionality.

Which domestic laws relate to the right to freedom of assembly and association?

There is no Commonwealth legislation that enshrines the right to freedom of assembly and association in all circumstances.

The Fair Work Act 2009 protects freedom of association in the workplace by ensuring that persons are free to become, or not become, members of industrial associations, are free to be represented, or not represented, by industrial associations, and are free to participate, or not participate, in lawful industrial activities.

'Trade union activity' is prescribed in the Australian Human Rights Commission Regulations 1989 as a ground for discrimination in employment that engages the power of the Australian Human Rights Commission under the Australian Human Rights Commission Act 1986. This means that the Commission may investigate complaints about discrimination in employment based on trade union activity.

Numerous laws effectively restrict freedom of assembly and association on grounds contained in the laws. For example, the Criminal Code criminalises associating with a member of a terrorist organisation and thereby providing support to it, if the person intends that the support assist the organisation. This restriction is applied on the grounds of national security and public safety.

What other rights and freedoms relate to the right to freedom of assembly and association?

The right to freedom of assembly and association may also be relevant to the following rights set out in the ICCPR:

  • the right to self-determination (article 1)
  • the right to freedom of thought, conscience and religion or belief (article 18)
  • the right to freedom of opinion and expression (article 19)
  • the right to freedom of movement (article 12)
  • the right to take part in the conduct of public affairs (article 25).

Articles from relevant Conventions

International Covenant on Civil and Political Rights

Article 21

The right of peaceful assembly shall be recognized. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others.

Article 22

  • Everyone shall have the right to freedom of association with others, including the right to form and join trade unions for the protection of his interests.
  • No restrictions may be placed on the exercise of this right other than those which are prescribed by law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others. This article shall not prevent the imposition of lawful restrictions on members of the armed forces and of the police in their exercise of this right.
  • Nothing in this article shall authorize States Parties to the International Labour Organisation Convention of 1948 concerning Freedom of Association and Protection of the Right to Organize to take legislative measures which would prejudice, or to apply the law in such a manner as to prejudice, the guarantees provided for in that Convention.

International Covenant on Economic, Social and Cultural Rights

Article 8(1)(a)

The States Parties to the present Covenant undertake to ensure the right of everyone to form trade unions and join the trade union of his choice, subject only to the rules of the organization concerned, for the promotion and protection of his economic and social interests. No restrictions may be placed on the exercise of this right other than those prescribed by law and which are necessary in a democratic society in the interests of national security or public order or for the protection of the rights and freedoms of others.

See also: CERD article 5; CRC article 15; CRPD article 21.

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