Tajjour v State of New South Wales; Hawthorne v State of New South Wales; Forster v State of New South Wales

The High Court has held that s 93X of the Crimes Act 1900 (NSW) is not invalid. That section makes it an offence for a person to continue to ‘habitually consort’ with convicted offenders after receiving an ‘official warning’, either verbally or in writing, from a police officer. The applicants, who were each charged under s 93X, contended that the law was invalid because it impermissibly burdened the implied freedom of political communication, contravened an implied freedom of association separate to the implied freedom of political communication, and was contrary to the International Covenant on Civil and Political Rights.

A majority of the Court held that s 93X did not contravene the implied freedom of political communication. As explained by Hayne J at [61], the test from Lange v Australian Broadcasting Corporation [1997] HCA 25 requires the Court to consider two questions:

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?

All members of the Court (except Keane J) agreed that the law was an effective burden on political communication because it restricted meetings, some of which might include discussion of political or government matters. Five judges (Hayne J, Crennan, Kiefel and Bell JJ, Gageler J, in separate judgments) held that s 93X was rationally connected to the legitimate end of preventing crime by limiting the occasions on which persons of the designated class might meet to consider or plan criminal acts. Hayne J, Crennan, Kiefel and Bell JJ also rejected the plaintiffs’ submission that the end could be achieved by less drastic means. French CJ, dissenting, held that s 93X did serve a legitimate end of preventing crime, but because it did not discriminate between cases in which that end was served and those ‘in which it patently is not’, it was not reasonably appropriate and adapted to that end (at [45]) and could not be read down. Gageler J held that the burden was not justified because of the absence of a defence exempting associations for the purpose of engaging in political communication, but held that it was severable and could be read down: [178]. Keane J held that the implied freedom did not extend to situations where political communication merely might occur (see [234]), and held that s 93X could not 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’ (see at [236]-[241]). The Court also rejected the submissions that an implied freedom of association exists (as it had in Wainohu v New South Wales [2011] HCA 24), and that a treaty not implemented by federal law could interfere with State legislative powers (see, eg, Hayne J at [98]).

High Court Judgment [2014] HCA 35 8 October 2014
Result Section 93X not invalid
High Court Documents Tajjour; Hawthorne; Forster
Full Court Hearing [2014] HCATrans 120  11 June 2014
[2014] HCATrans 119 10 June 2014
Directions Hearing [2014] HCATrans 37  5 March 2014
Application for Removal Hearing [2014] HCATrans 24 14 February 2014
NSWSC Removal Decision [2013] NSWSC 612 13 May 2013
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About Martin Clark

Martin Clark is a PhD Candidate and Judge Dame Rosalyn Higgins Scholar at the London School of Economics and Political Science and Research Fellow at Melbourne Law School. He holds honours degrees in law, history and philosophy from the University of Melbourne, and an MPhil in Law from MLS. While at MLS, he worked as a researcher for several senior faculty members, was a 2012 Editor of the Melbourne Journal of International Law, tutor at MLS and various colleges, a Jessie Legatt Scholar, and attended the Center for Transnational Legal Studies Program.

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