Who has the right to associate with their community?

By Kamna Muddagouni | 10 Oct 18

In the Western world, human rights are often framed as those rights that make an individual human. These rights are said to be necessary for an individual to have and maintain their basic dignity and their identity. Identity for many of us goes beyond something found in yourself; instead, it is interlinked with our community and those we choose to associate with. When a person’s right to be with their community is regulated through laws that are enforced in biased and prejudiced ways, there is a risk that they are punished for finding their identity amongst people whom the State deems unsavoury.

The Bill broadens the scope for police to determine who is prevented from associating with whom, on the basis of their criminal record.

Proposed anti-association laws that have already passed the Victorian Parliament’s Lower House raise these very questions and pose a disturbing insight into the ways in which the State can limit an individual’s freedom to associate based on its assumptions about whether your community deserves this right.

The Justice Legislation Amendment (Unlawful Association and Criminal Appeals) Bill 2018 pushed forward by the current Andrews government is aimed at setting very clear boundaries that limit freedom of association. The laws, if passed by the Upper House, will give police the power to issue ‘anti-association notices’ to people as young as 14, deciding who they can and cannot spend time with. The Bill broadens the scope for police to determine who is prevented from associating with whom, on the basis of their criminal record. But in doing this, it removes important checks and balances on this power that exist in the current system. The proposed laws have rightly come under criticism by human rights groups that deem them an infringement on all Victorians’ right to freedom of association.

Freedom of association is a right that is well accepted and in fact enshrined in the Victorian Charter of Human Rights and Responsibilities. The right to freedom of association is, broadly speaking, the right to associate with others for the purposes of common interests. These interests have been broadly read to include economic, professional, political, cultural or recreational interests. It might be said that the law recognises that being able to spend time with those who you call your own is important to one feeling human. But what does this protection mean if police are issued broad powers to determine who is a suitable person for you to associate with? For years, community organisations and human rights groups have called for better police accountability in the face of reports of racial profiling of certain marginalised communities. In light of these concerns, there is a real risk that our Parliament is providing police with wideranging powers to limit association which will only be used against certain communities?

When culture is understood through shared experience, it is not hard to see why associating with those of a shared experience is important to nurturing one’s sense of identity.

While the Andrews Government has framed the laws as an attempt to reduce serious and organised crime, the ability of police under the laws to issue notices to young people as young as 14 is telling. The police powers to prevent a young person from going to the movies, playing sport or talking online are legislated to only be used when there is a risk of criminality increasing. However, in the face of the recent widespread racial rhetoric in mainstream media against young people from African diasporas in Victoria that has been leveraged by conservative politicians and commentators at a state and federal level, it seems unlikely that police with the ability to issue notices will be immune from these influences. If police and mainstream society unfairly judge certain communities as more likely to be criminal because of who they are, it is hard to see how these laws will be administered in anything but a deliberate and targeted way.

Understanding identity in the context of a shared community is a common thread shared between many Aboriginal communities and communities of colour. When culture is understood through shared experience, it is not hard to see why associating with those of a shared experience is important to nurturing one’s sense of identity. Individuals, particularly young people, who are marginalised and ostracised by mainstream society turn to those to whom they do not need to justify their humanity. Tied to a freedom to associate, for these groups, is a right to belong, and a right to be seen as a human.

Laws that allow police to prevent certain groups from associating together are a threat to this sense of identity, especially when you look closely at which groups are most at-risk for police intervention. Aboriginal and African diaspora people are already over-policed in our communities. The overrepresentation of Aboriginal people in our prisons and disproportionate attention paid by conservative politicians and mainstream media of African young people are evidence of that. The impact of this over-policing and scrutiny of young people in particular is shattering for their right to live their lives in a way that is connected to those in their community and while attempting to engage with their culture.

While laws appear to operate in a neutral manner, and rights appear to be protected for all of us, there remain individuals and communities in our society against which the law operates substantially more pointedly and whose rights are the most at risk of being violated.

Laws that regulate freedom of association almost inevitably require an assessment by an authority – in this case the police – of which associations are valid and worthy of preservation and which associations should be dismantled. This assessment is particularly potent when influenced by racial rhetoric as it can fracture communities already vulnerable to attack by sections of our society. It also signals a concerning shift away from a society that values the right of all individuals to find their community, to a society that deems some individuals (and by extension their communities) not worthy of this right.