6.146 A range of Commonwealth laws may be seen as interfering with freedom of movement. However, some of these provisions relate to limitations that have long been recognised by the common law itself, for example, in relation to official powers of arrest or detention, customs and quarantine. Further, while the Migration Act constrains the movement of people into Australia, to the extent that it applies to non-citizens, it does not implicate freedom of movement, as interpreted in common law and international law.
6.147 In the area of environmental legislation, the operation of the Environment Protection and Biodiversity Conservation Act can result in restrictions being placed on freedom of movement, in order to protect environmentally or culturally significant areas, such as the Great Barrier Reef Marine Park or the Uluru-Kata Tjuta National Park.
6.148 While many laws interfering with freedom of movement have strong and obvious justifications, it may be desirable to review some laws to ensure that they do not unjustifiably interfere with the right to freedom of movement.
6.149 As with freedom of speech and freedom of association, the areas of particular concern, as evidenced by parliamentary committee materials, submissions and other commentary, include various counter-terrorism measures. These include Criminal Code provisions concerning control orders and preventative detention orders, the offence of entering or remaining in a ‘declared area’, and questioning and detention powers contained in the ASIO Act and the Crimes Act.
6.150 Some of these laws were introduced in the Foreign Fighters Act, in response to the potential threat of individuals returning from conflict zones in Syria and Iraq. This legislation also extended the operation of powers: namely control orders, preventative detention orders and ASIO’s questioning and detention warrants.
6.151 All these provisions have been subject to critical scrutiny in parliamentary committee and other inquiries. These previous inquiries include that conducted in 2011–2012 by the INSLM. Any further review, with a particular focus on freedom of speech and movement, would also fall within the responsibilities of the INSLM.
6.152 In addition, there may be reason to review s 77 of the Bankruptcy Act 1966 (Cth), which provides that a bankrupt must, unless excused by a trustee in bankruptcy, give his or her passport to the trustee. This requirement may not be a proportionate response to concerns about bankrupts absconding.
Criminal Code (Cth) divs 104, 105, s 119.2. These laws can also be considered as interfering with freedom of association, discussed in Ch 5.
Australian Security Intelligence Organisation Act 1979 (Cth) pt III div 3; Crimes Act 1914 (Cth) ss 23DB–23DF.
See eg, ‘Review of Counter-Terrorism Legislation’ (Council of Australian Governments, 2013) 68; Independent National Security Legislation Monitor, Australian Government, Declassified Annual Report (2012) 44, 67, 106. See Gilbert and Tobin Centre of Public Law, Submission 22.
Independent National Security Legislation Monitor, Australian Government, Declassified Annual Report (2012).
This role includes considering whether the laws contain appropriate safeguards for protecting the rights of individuals, remain proportionate to any threat of terrorism or threat to national security or both, and remain necessary: see Independent National Security Legislation Monitor Act 2010 (Cth) s 6(1)(b).