Security laws on asylum seekers, foreign fighters should be reviewed, says Law Reform Commission

Attorney-General George Brandis tasked the commission with reviewing federal laws for sections that interfere with
Attorney-General George Brandis tasked the commission with reviewing federal laws for sections that interfere with "rights, freedoms and privileges". Photo: Anthony Johnson

National security laws to boost the Abbott government's powers over returning foreign fighters and asylum seekers who arrive by boat, and the controversial section 18C of the Racial Discrimination Act,  interfere with "traditional freedoms" and should be reviewed, the Australian Law Reform Commission says.

Attorney-General George Brandis tasked the commission in 2013 with reviewing federal laws for sections that interfere with "rights, freedoms and privileges", including the right to the freedom of movement, association, speech and religion.

Its interim report, released on Monday, suggested a wide range of laws that could be reviewed and called for public submissions on them.

A number of counter-terrorism powers, introduced to deal with potential threats around foreign fighters returning to Australia from Syria and Iraq, were of "particular concern" to the commission for interfering with the freedoms of movement, speech and association.

This included the powers to issue control orders, restricting people from leaving Australia, and preventative detention orders against those suspected of a terrorist act.

While many laws had "strong and obvious justifications" for encroaching on human rights, "it may be desirable to review some ... to ensure that they do not unjustifiably" do so, the report said. The Independent National Security Legislation Monitor would be responsible for any further review of these laws.

The report also questioned whether the offence of "advocating terrorism" impedes on freedom of expression. The Criminal Code makes it a crime to support the commission of a terrorist act, whether or not the other person will go on to perform the act as a result of this.

The commission's report also recommends reopening a review into section 18C of the Racial Discrimination Act because of its implications for free speech, despite the government dropping plans to amend this last August after widespread criticism that the change would remove a fundamental protection for Australians against racism.

Section 18C of the Racial Discrimination Act makes public acts that are likely to "offend, insult, humiliate or intimidate another person or a group of people" because of their race, colour, national or ethnic origin, unlawful.

Mr Brandis led a plan to replace the section with a prohibition against "vilification and intimidation" on this basis after the High Court found News Corp commentator Andrew Bolt had breached the section in comments about light-skinned people who identified as Aboriginal.

Mr Brandis has said the change would promote free speech, declaring: "People do have the right to be bigots, you know."

Other laws that extend the government's powers over asylum seekers who arrive by boat might also encroach on their right to natural justice, the report said.

The Migration Act contained a number of provisions that "may be characterised as excluding procedural fairness in the processing of unauthorised maritime arrivals", including one that rules of natural justice don't apply when the Immigration Minister decides an asylum seeker should be taken to a regional detention centre for processing.

Other sections that give the navy coercive powers to intercept and detain asylum seeker boats within and outside Australian maritime waters, as well as to detain and move people on board them, should also be reviewed, it said.

Former immigration minister Scott Morrison won a recent fight over this law in January, when the High Court ruled Australian authorities had lawfully held asylum seekers on a customs vessel for four weeks after rescuing them 16 nautical miles off Christmas Island.

The asylum seekers were allowed only limited hours of daylight while held on the boat, and were later transferred to Nauru's offshore processing centre.

The commission took into account a range of factors in compiling the list, including criticisms of laws for limiting multiple rights, "unjustifiably limiting one or more of the relevant rights", and not achieving their own purpose, it said.

"However, for most of these laws, the ALRC would need more extensive consultation and evidence to justify making detailed recommendations for reform," it said.

It might sometimes be considered "necessary" for laws to interfere with "traditional rights and freedoms", the commission said. There were only a handful of absolute rights, including the right not to be tortured.

A spokeswoman for Mr Brandis said the government would carefully consider the report.

This story Security laws on asylum seekers, foreign fighters should be reviewed, says Law Reform Commission first appeared on The Sydney Morning Herald.