KEANE J. Each of the plaintiffs currently stands charged in proceedings pending in New South Wales with habitual consorting with convicted offenders in contravention of s 93X of the Crimes Act 1900 (NSW) ("the Act"). In the proceedings in New South Wales, each of the plaintiffs raised the contention that s 93X is invalid under the Constitution of the Commonwealth. Each of the plaintiffs' challenges to the validity of s 93X of the Act came to this Court on a special case pursuant to r 27.08 of the High Court Rules 2004 (Cth).
In this Court, the plaintiffs argued that s 93X is invalid on the ground that it is inconsistent with the freedom of communication on political and governmental matters implied by ss 7, 24, 64 and 128 of the Constitution.
Two of the plaintiffs, Mr Tajjour and Mr Hawthorne, argued, in addition, that s 93X is offensive to an implied freedom of association guaranteed by the Constitution. They also argued that s 93X is invalid because it is inconsistent with the International Covenant on Civil and Political Rights (1966) ("the ICCPR") as ratified by the Commonwealth. These additional arguments may be disposed of shortly, after the plaintiffs' argument based on the implied freedom of communication has been dealt with.
In none of the special cases was it suggested that the factual basis of the charge against the plaintiff involved a communication by or to the plaintiff of a political or governmental matter, whether as part of the social interaction said to be the consorting which gave rise to the charge or as a circumstance denying the possibility of criminal responsibility for a contravention of s 93X. Rather, the plaintiffs argued that s 93X is invalid because its legal effect is to burden communication on political or governmental matters by proscribing the opportunity for such communication.
For the reasons which follow, the plaintiffs' challenges to the validity of s 93X fail. Section 93X, properly construed, does not proscribe communication by or between any persons on political or governmental matters. That is because the making of a communication about political or governmental matters does not, of itself, amount to consorting as that term is properly understood.
In many cases a communication on political or governmental matters will be made or received without either party knowing that the other is a person convicted of an indictable offence. But even in those cases where one person is aware that the other has been convicted of an indictable offence, mere acquaintance does not make people consorts; and a person's discharge of his or her civic responsibilities is not an occasion of consorting because it lacks the personal intimacy characteristic of consorts.
To the extent that a political communication might occur in the course of a social interaction which otherwise answers the description of habitual consorting, s 93X would be engaged by the facts which establish that the interaction in question is properly characterised as consorting. That a political communication might occur in the course of consorting does not excuse the consorting. However, it is not the communication on political or governmental matters that attracts the operation of s 93X, but the facts which establish the consorting.
The conclusion that s 93X does not burden communication on political or governmental matters is not reached by a process of reading down of the kind mandated by s 31 of the Interpretation Act 1987 (NSW) in order to avoid the conclusion that it is invalid. Rather, that conclusion is to be drawn from consideration of the text, history and purpose of s 93X. These indicate that s 93X does not extend to proscribe communication by or with any person convicted of an indictable offence on political or governmental matters.
The Act
Section 93X was introduced into the Act on 9 April 2012 by the Crimes Amendment (Consorting and Organised Crime) Act 2012 (NSW). It 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."
Consorting is defined by s 93W of the Act as to "consort in person or by any other means, including by electronic or other form of communication." Further, s 93W defines convicted offender as "a person who has been convicted of an indictable offence (disregarding any offence under section 93X)."
Section 93Y provides:
"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."
Section 93X and the implied freedom of political communication
The plaintiffs' contentions
The plaintiffs contended that s 93X burdens the freedom of political communication because it is apt to "capture any form of communication, whether of a political nature or not". Section 93X was said to have the potential to restrict innocent or accidental meetings and discussions with, or between, individuals who have been convicted of an indictable offence. It was said that, because s 93X has the effect of prohibiting all communication, it necessarily has the effect of prohibiting communications on political or governmental matters contrary to the implied freedom.
It was further submitted that, because s 93X is broad enough in its reach to apply to entirely innocent communications of a political nature, it is neither reasonably appropriate nor adapted to serving a legitimate end. This submission was said to be supported by the unqualified language of s 93X, the narrow scope of the defences available under s 93Y of the Act, which do not include consorting for the purposes of the discussion of political or governmental matters, and the availability of "less drastic measures" to address the mischief at which s 93X is directed.
It is convenient to make some general observations about the implied freedom of political communication before turning to discuss the plaintiffs' submissions in relation to the operation of s 93X.
The nature of the implied freedom
The implied freedom of political communication is a limitation upon legislative and executive power, arising from ss 7, 24, 64 and 128 of the Constitution, which is necessary to ensure that those provisions operate effectively. It is important to keep these provisions steadily in view. Section 7 provides, in relation to the Senate as the upper house of the Commonwealth Parliament, that it "shall be composed of senators for each State, directly chosen by the people of the State". And s 24 provides, in relation to the composition of the House of Representatives as the lower house, that it "shall be composed of members directly chosen by the people of the Commonwealth". Section 64 requires Ministers of State for the Commonwealth to be or become a senator or a member of the House of Representatives. Section 128 provides the sole means of altering the Constitution: it requires a proposed law for the alteration to be "submitted in each State and Territory to the electors qualified to vote for the election of members of the House of Representatives."
It is necessary that the flow of political communication be kept free in order to maintain the political sovereignty of the people of the Commonwealth. As this Court explained in Lange v Australian Broadcasting Corporation:
"ss 7 and 24 and the related sections of the Constitution necessarily protect that freedom of communication between the people concerning political or government matters which enables the people to exercise a free and informed choice as electors."
The constitutional guarantee to the people of the Commonwealth of a free and informed choice as electors ensures free communication between them as equal participants in the exercise of political sovereignty.
The validity of s 93X of the Act is not to be determined by asking whether it infringes some personal right to express oneself in any way that one might choose akin to that created by the First Amendment to the Constitution of the United States. The relevant question is whether the law impairs the freedom of political communication necessitated by ss 7, 24, 64 and 128 of the Constitution. In Unions NSW v New South Wales, French CJ, Hayne, Crennan, Kiefel and Bell JJ said:
"A legislative prohibition or restriction on the freedom is not to be understood as affecting a person's right or freedom to engage in political communication, but as affecting communication on those subjects more generally. The freedom is to be understood as addressed to legislative power, not rights, and as effecting a restriction on that power. Thus the question is not whether a person is limited in the way that he or she can express himself or herself, although identification of that limiting effect may be necessary to an understanding of the operation of a statutory provision upon the freedom more generally. The central question is: how does the impugned law affect the freedom?" (footnote omitted)
Whether s 93X burdens the implied freedom of communication on political and governmental matters is to be answered by reference to the test, usually referred to as the Lange test, which was most recently applied by this Court in Unions NSW v New South Wales. In this regard, two questions must be answered before the validity of a law can be determined. First, does the law effectively burden freedom of communication about political or governmental matters in its terms, operation or effect? Second, if the law effectively burdens that freedom, is the law reasonably appropriate and adapted to serve a legitimate end in a manner which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government and the procedure prescribed by s 128 of the Constitution for submitting a proposed amendment to the Constitution to the informed decision of the people?
The proper construction of s 93X
The application of the first limb of the Lange test must begin with the ascertainment of the true construction of s 93X in order to understand which social interactions it proscribes.
It is apparent that s 93X is directed at a social interaction of a particular kind which may be effected by, or incidentally include, communication between persons. But it is not directed at all social interactions. The question which the plaintiffs present, for the purposes of the first limb of the Lange test, is whether s 93X has a necessary effect upon those social interactions which consist of communications upon political or governmental matters.
One argument advanced by the plaintiffs was that, because s 93W defines "consorting" so as to include consorting "by electronic or other form of communication", it encompasses every communication with or by a person convicted of an indictable offence. That argument may be dealt with immediately. Section 93W serves to ensure that consorting is not limited to personal interactions involving physical presence; but ss 93X and 93W do not operate to proscribe all forms of communication between an individual and a person convicted of an indictable offence. While consorting will usually, if not always, involve some communication between the putative consorts, not every communication between individuals can sensibly be described as consorting.
The plaintiffs also urged that "consorting" is a broad term apt to encompass all, or virtually all, communications between individuals on any subject. Senior counsel for Mr Tajjour went so far as to contend that a member of Parliament who sends a weekly newsletter to his or her constituents is thereby habitually consorting with those constituents who happen to have been convicted of an indictable offence. Similarly, it was said that a minister of religion, addressing his or her congregation weekly, would be in peril of contravening s 93X if his or her congregation happened to include persons who had been convicted of an indictable offence. Of course, it was necessary to the plaintiffs' arguments for invalidity that a broad view be taken of the scope of s 93X. But the breadth of s 93X should not be exaggerated.
Section 93X is not a modern version of the medieval declaration of outlawry, "caput gerat lupinum" (let him bear the head of a wolf), upon the making of which it became the right and duty of every law abiding subject to hunt the outlaw down. Section 93X does not purport to sever the ties of persons convicted of an indictable offence with civil society. In particular, it does not in terms disqualify any person from the performance of that person's civic responsibilities. And it is difficult to discern any indication of necessary intendment that it should do so.
Not every conceivable social interaction between individuals, one or more of whom happens to have been convicted of an indictable offence, amounts to consorting with convicted offenders. Quite apart from s 93Y, no one would sensibly suggest that the sending of a letter of demand by a creditor to a debtor could, of itself, amount to consorting. Equally, an individual who regularly catches the same bus to work as a group of persons previously convicted of indictable offences could not sensibly be said to consort with persons convicted of an indictable offence. Similarly, a pollster who canvasses the political opinions of persons convicted of indictable offences on a regular basis cannot be said to be habitually consorting with those convicted offenders. A member of a political party would not contravene s 93X merely by attending a branch meeting of the party which is also attended by fellow party members who happen to be persons who have been convicted of an indictable offence. Similarly, a political blogger could not be said to consort with convicted offenders by reason of the fact that they are on his or her mailing list. Nor could it be suggested that persons chatting while waiting to vote at a polling booth are consorting with each other.
The authorities suggest that these kinds of social interactions are not cases of consorting for two reasons: first, there is no intentional seeking out or acceptance of a personal social relationship with or by a person convicted of an indictable offence; and secondly, the interaction in question lacks the personal intimacy which characterises the relationship between consorts.
Consorting
The offence of consorting has long been deployed in an attempt to limit the spread of criminogenic influences in the community. In New South Wales, consorting was an offence under s 4(1) of the Vagrancy Act 1902 (NSW) by virtue of an amendment made by the Vagrancy (Amendment) Act 1929 (NSW). The offence, although previously a summary offence, remained a part of New South Wales criminal law in s 93X's most recent predecessor, s 546A of the Act.
In Johanson v Dixon, this Court was concerned with the Victorian consorting legislation, which expressly excused from criminal responsibility those consorts who were able to give "a good account" of their conduct. The Court rejected the contention that a defendant who establishes that his or her consorting is for an innocent purpose thereby gives "a good account … of his [or her] so consorting" so as thereby to avoid criminal responsibility for what is otherwise shown to be habitual consorting. It is sufficient to note that the Court accepted the submission of Mr D M Dawson QC, Solicitor‑General for the State of Victoria, that:
"'Good account' is an account which excuses the consorting in some way. A good account is not one which merely shows that the consorting amounted to nothing more than consorting."
There are differences between the legislation considered in Johanson v Dixon and s 93X of the Act. In particular, s 93X does not use the concept of "good account" as a circumstance excluding criminal responsibility under the section; and s 93Y provides examples of circumstances where the particular purpose of the consorting may afford a defence to a charge of contravening s 93X. Nevertheless, Johanson v Dixon requires that one accept that, s 93Y apart, the circumstance that consorting is for an innocent purpose does not excuse criminal responsibility under s 93X. That is because the proscription of consorting is intended to suppress social interactions which, though themselves innocent, may have a tendency to expand criminal networks.
Accordingly, the application of s 93X depends, not on whether the purpose of consorting is innocent, but on whether an occasion of consorting is established by the facts of any given case. Consideration of this issue requires closer attention to the nature of the relationship described as consorting.
Consorting as intentional social interaction
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".
In the same case, Aickin J, with whom Stephen J also agreed, said:
"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 that it denotes some seeking or acceptance of the association with other specified persons on the part of a defendant."
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. In O'Connor v Hammond, Stout CJ said: "Consorting would be proved by companionship." One of the meanings given by The Oxford English Dictionary 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.
In Dias v O'Sullivan, 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)
Mayo J 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)
It is to be noted that in Johanson v Dixon, 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.
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:
"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)
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."
In seeking to distinguish those communications which are burdened by s 93X from those which are not, 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.
As was said in Lange, "[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. In this respect, as McHugh J said in York v The Queen:
"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)
In Australian Communist Party v The Commonwealth, 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.
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." 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.
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), 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."
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), 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.
In Levy v Victoria, 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.
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". That the impugned regulation was a burden upon the implied freedom was explained by Brennan CJ:
"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."
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:
"[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)
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).
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, 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)
This view was recently confirmed by this Court in Wainohu v New South Wales: "Any freedom of association implied by the Constitution would exist only as a corollary to the implied freedom of political communication".
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.
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: