High Court upholds guilt-by-association law

In its Tajjour v NSW judgment delivered yesterday, the High Court ruled on a challenge to section 93X of the Crimes Act 1900 (NSW), a guilt-by-association offence that bans “habitually consorting” with convicted criminals. The High Court upheld the law’s validity and rejected the plaintiffs’ three arguments. First, applying the Lange test, a majority of the Court accepted that s 93X burdens political communication, but said it is still valid because “it is reasonably appropriate and adapted, or proportionate, to serve the legitimate end of the prevention of crime”. Second, the Court reiterated its previous rulings that there is no “free-standing” implied freedom of association in the Constitution—association is only protected to the extent that it is a form of political communication. Third, the Court unanimously held that freedom of association under the International Covenant on Civil and Political Rights could not restrict State Governments because it has not been ratified by Commonwealth legislation.

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