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In pursuit of legitimately tackling isolated criminal behaviour, Parliaments are reversing the basic principle of liberal democracy by criminalising the exercise of human rights and prescribing lawful activity. 

On 8 October, the High Court handed down its decision on the Constitutionality of anti-consorting laws in New South Wales. The laws principally targeted freedom of association between members of the public and convicted offenders. 

The NSW government, in its submission to the High Court, said its intention was “to avoid criminal activity by preventing deliberate as opposed to coincidental contact between criminals; or between criminals and others who might succumb, then or later, to criminal behaviour by reason of that contact”.

The objective of the law is unquestionably valid. It is entirely reasonable that the government seeks to limit the capacity of convicted offenders to plot future crimes.

But to achieve that objective the law passed by the New South Wales Parliament criminalises the fundamental human right of free association for a very large number of citizens.

To put into perspective, the New South Wales Ombudsman has reported that nearly 200,000 people fall within the law’s definition of ‘convicted offender’. Anyone in New South Wales could be given a notice by the police telling them that they are not free to associate with two or more of these people.

We all accept that criminals lose their liberty when they are in the slammer, but we also expect that those same standards don’t apply once they’ve done their time.

The NSW Parliament tacitly acknowledged the broad capture of this law by providing lawful reasons to associate with convicted offenders, including “family”, “lawful employment”, “business”, “education”, “health”, “legal advice” and “court proceedings”.

But in practice the law doesn’t exempt many legitimate activities. It’s an issue the High court had to wrestle with deliberately on the Constitutional validity of the law and whether it could breach the implied right of political communication.

The High Court concluded the law was not unconstitutional. However, the Court issued five separate judgements because of the tensions in the law.

Similar issues are now arising in national security legislation.

Section 35P of the now legislated National Security Legislation Amendment Bill has criminalised the public reporting of Special Intelligence Operations with a penalty of up to 10 years in prison. 

These new laws have a very real impact on human rights. The National Security Legislation Amendment Bill does, at least, seek to balance security of the person versus freedom of speech. SIO often involve undercover operations by ASIO and therefore reporting of an SIO in progress could risk the lives of ASIO Officers.

But that doesn’t justify the disproportionate censorship the law imposes. It bans reporting on SIOs after they have been safely completed and would not endanger the life and safety of an ASIO officer. This provision could easily have been narrowed.

The same challenge for free speech is now occurring in the Counter Terrorism Legislation Amendment (Foreign Fighters) Bill 2014 which includes a new provision under the Criminal Code related to “advocating terrorism”.

As with all restrictions on free speech that go beyond the existing test of incitement to violence, the definition of advocating terrorism hinges on vague and loose language. In this Bill “advocates” is defined as “counsels, promotes, encourages or urges” an act of terrorism.

Such a bar provides for a considerable degree of discretion for police. It also potentially captures a range of undesirable, but nonetheless legitimate, opinions about international conflicts, especially where opinions vary about who the aggressor may be, and the tactics they use.

But the much bigger challenge with the Foreign Fighters Bill surrounds freedom of movement.

The Bill seeks to address the legitimate risks that exist when radicalised Australians fight in foreign wars and return home.

The challenge of prosecuting individuals is amplified significantly because of the instability of the countries where the conflicts are taking place, and the absence of available intelligence on a foreign fighter’s activities.

The solution that the Federal government has proposed, and currently being considered by the Parliamentary Joint Committee on Intelligence and Security, is to criminalise the human right of freedom of movement.

Under the Bill the government the Foreign Minister will be able to establish a “declared area” where it is illegal for an Australian to travel.

In criminalising freedom of movement, the Bill struggles to establish exemptions for travel to those areas for a legitimate purpose, such as “providing aid” or “satisfying an obligation to appear before a court”.

But there are plenty of legitimate purposes for travel to a so-called declared area that are not included in the list of exemptions. The Attorney-General has the power to prescribe additional exemptions but they would only apply to future legitimate travel and not retrospectively.

If the Federal government persists with the law in its current form a potential additional safeguard is for the Attorney-General to be given responsibility to approve any attempts at prosecution under this provision.

It would, at least, enable a legitimate purpose for travel to be excused. Although it still would not provide certainty for travellers potentially caught by the net of the law.

Prescribing exemptions doesn’t justify Australian Parliaments criminalising our most fundamental human rights.

Providing exemptions is only addressing the ‘symptoms’ of the breadth of laws, it does not address the root ‘cause’ that exercising human rights are being criminalised.

This opinion piece was first published in The Australian on 10 October 2014. Tim Wilson is Australia’s Human Rights Commissioner.