In 1994 the New South Wales Parliament passed an extraordinary piece of legislation, the demise of which one is hard-pressed to mourn. Be that as it may, the means by which that demise was achieved are hardly to be celebrated, as the High Court decision which accomplished the task represents a further entrenchment of the unfortunate doctrine of “incompatibility” introduced the previous year in Grollo v Palmer and Others. In short, the decision in Kable v Director of Public Prosecutions (NSW) extends the doctrine of incompatibility to State courts so that State parliaments, although they remain entitled to usurp the functions of those courts, cannot assign to those courts any powers whose exercise is incompatible with the judicial power of the Commonwealth vested in those courts by Commonwealth legislation. In this respect, the decision represents the worst of both worlds by placing severe limitations on State courts without any corresponding limitations on State parliaments (except to the extent they may wish to confer powers on the courts in question). The result is that the States have judiciaries which are half-independent, and that half is the less important half.

The High Court has not definitively explained the legal status of the constitutionally implied freedom of political association since its existence was first raised in 1992. Tajjour v New South Wales affirmed the majority view that any constitutional protection enjoyed by political association is derived from the freedom of political communication; or, in the words of the Court, a ‘corollary to’ that freedom. In this article, we argue that the High Court should acknowledge the freedom of political association as a free-standing freedom rather than a corollary of political communication. The reasoning that gave rise to the implied freedom of political communication can also be applied to political association. The Court’s approach to the implication of freedom of communication, of building on the text of ss 7, 24 and 128 of the Constitution and the structures they establish, does not appear to be at odds with the implication of freedom of association. Consequently, we argue the Court has erred in favouring the corollary form of political association (pt IV). The corollary freedom has not been justified and appears either entirely unnecessary (being subsumed by political communication) or overly subjective in application. By contrast, the free-standing freedom could adopt the well-established Lange test of validity with only minor adjustments and therefore represent only a modest development of existing jurisprudence.