Tajjour v New South Wales

The High Court of Australia considered whether section 93X of the *Crimes Act 1900* (NSW), which criminalises habitually consorting with convicted offenders after receiving an official warning, impermissibly burdened the implied freedom of political communication guaranteed by the Commonwealth Constitution. The plaintiffs, charged under this section, sought declarations that the law was invalid. The matter was heard on Special Case.

The Court was required to determine whether section 93X of the *Crimes Act 1900* (NSW) was invalid for impermissibly burdening the implied freedom of communication on governmental and political matters. Additionally, the Court considered whether the Constitution implied a freedom of association independent of the freedom of political communication, and if so, whether section 93X contravened such a freedom. The Court also addressed whether the section was invalid due to inconsistency with the International Covenant on Civil and Political Rights.

The Court reasoned that the implied freedom of political communication is an indispensable incident of representative and responsible government under the Constitution and cannot be curtailed by legislative power unless the law is reasonably appropriate and adapted to serve a legitimate purpose. Applying this test, the Court found that section 93X, by its broad prohibition on consorting with convicted offenders, imposed a burden on the implied freedom that was not justified. The Court noted that the section could be read in various ways to avoid invalidity, but no single construction was dictated by the text and context of the provision, leading to its invalidity under the principle established in *Pidoto v Victoria*. The Court also determined that there is no implied freedom of association in the Constitution independent of the implied freedom of political communication.

The High Court answered the questions in the Special Cases by declaring that section 93X of the *Crimes Act 1900* (NSW) is invalid because it impermissibly burdens the implied freedom of communication on governmental and political matters. The Court also answered that there is no implied freedom of association independent of the implied freedom of communication. The plaintiffs were ordered to pay the costs of the Special Case.