Section 47 of the Constitution combines two rights that are usually stated separately, and adds a negative limb that is easy to miss.
Every person has the right peacefully to assemble and associate and to form or belong to, or not to belong to, political parties, industrial organizations or other associations — except to the extent that the right is regulated or restricted by a law:
(a) making reasonable provision for the registration of all or any associations; or
(b) imposing reasonable restrictions on public office-holders; or
(c) imposing restrictions on non-citizens; or
(d) that complies with section 38.
The word “peacefully”
The protection attaches to peaceful assembly. That word does the limiting work internally: an assembly that is violent, or that is organised for violence, is outside the right from the start — no restricting law is needed.
It does not follow that an assembly loses protection because some individuals within it behave unlawfully, or because it is inconvenient, unpopular or disruptive. The character of the assembly is assessed as a whole.
The right not to belong
Section 47 expressly protects the freedom not to belong to a political party, industrial organisation or other association. Compulsion to join — by an employer, a union, a party, a landowner group or a community body — engages the section directly. And because section 34 applies the Division between individuals and to corporations and associations, this operates against private bodies as well as against the State.
There is one express qualification elsewhere. Section 48(2) provides that the freedom of employment guarantee does not prohibit reasonable action or provision for encouraging persons to join industrial organizations, or for requiring membership of an industrial organization for any purpose.
Paragraph (a) — registration of associations
A law may make reasonable provision for the registration of all or any associations. Registration regimes are therefore constitutionally permissible — for companies, incorporated associations, industrial organisations, and political parties under the Organic Law on the Integrity of Political Parties and Candidates.
The limit is the word reasonable. A registration scheme that functions as a licensing power — conferring a discretion to refuse recognition to lawful associations on political grounds — is not reasonable provision for registration; it is a restriction on association, and must then satisfy paragraph (d) and section 38.
The constitutional treatment of political party regulation was examined in Special Reference by Fly River Provincial Executive Council; Re OLIPPAC [2010] PGSC 3; SC1057.
Public order and assemblies
Restrictions on public assemblies are common — permit requirements, route conditions, notice periods. Constitutionally, each must be traced to a law falling within one of the four paragraphs, and a law relying on paragraph (d) must satisfy every element of section 38, including certification as passed by an absolute majority and the requirement that the restriction be necessary for the public interest in defence, public safety, public order, public welfare or public health, or to protect the rights of others.
Relevant statutes include the Peace and Good Order Act 1991, the Summary Offences Act (Chapter 264), and the Inter-group Fighting Act (Chapter 344).
Find out what the law in your province actually requires, and comply with it. Where a permit is refused, ask for the reasons in writing and identify the provision relied on. A refusal that has no statutory basis, or that goes beyond what the statute allows, can be challenged — and even a refusal under a valid law may be an unlawful act under section 41 if it is harsh or disproportionate in the particular case.
Related rights
- Section 46 — assemblies are usually also expression, and both sections are typically pleaded together.
- Section 50 — the right to take part in the conduct of public affairs and to be elected to public office.
- Section 45 — religious assemblies and congregations.
- Section 55 — equality irrespective of political opinion.
Sources
Constitutional sections are amended. Before relying on anything here, read the current text: the Constitution on PacLII. If a decision matters to you, get advice — start with the Office of the Public Solicitor.