CHARTER OF HUMAN RIGHTS AND RESPONSIBILITIES ACT 2006 – SECT 7
Human rights—what they are and when they may be limited
(1) This Part sets out the human rights that Parliament specifically seeks to protect and promote.
(2) A human right may be subject under law only to such reasonable limits as can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom, and taking into account all relevant factors including—
(a) the nature of the right; and
(b) the importance of the purpose of the limitation; and
(c) the nature and extent of the limitation; and
(d) the relationship between the limitation and its purpose; and
(e) any less restrictive means reasonably available to achieve the purpose that the limitation seeks to achieve.
Reasonable and justified limits under s 7(2)
- As with all Charter rights, the right to freedom of movement is not absolute and may be limited under s 7(2). Examples of limits that may be justified under s 7(2) include:
- Imprisonment of those convicted of a serious crime;
- Decisions made on behalf of a person, restricting their movement or where they may live, such as by a guardian appointed under the Guardianship and Administration Act 1986;
- Orders by courts and authorised administrative bodies such as family violence intervention orders, or orders under the Mental Health Act 2014; or
- Planning controls zoning residential locations away from commercial, industrial or agricultural areas.
- Other legitimate regulations made in the public interest, like traffic laws, or those made to protect the privacy and property rights of others (Charter of Human Rights and Responsibilities Bill 2006 Explanatory Memorandum, 12 – 13; DPP v Kaba (2014) 44 VR 526;  VSC 52 , citing Gerhardy v Brown (1985) 159 CLR 70;  HCA 11 ).
- The courts have looked at a number of situations where limits have been imposed on the right to freedom of movement. These include supervision orders, bail conditions, treatment of mental illness, and vehicle stops by police.
- As discussed above, supervision orders made in terms of the Serious Sex Offenders (Detention and Supervision) Act 2009 may involve a limitation of the right to freedom of movement. However, since the threshold requirement for the making of a supervision order, that of ‘unacceptable risk’, ‘depends upon both the severity of the apprehended conduct and the likelihood that that conduct will occur’, the limit on the right is capable of justification under s 7(2). The unacceptable risk requirement was aimed at achieving ‘a balance between the offender’s rights and the right of members of the public to be protected against the risk of the offender committing further sexual offences’ (Nigro v Secretary to the Department of Justice (2013) 41 VR 359;  VSCA 213 –).
- However, justification of a limit on freedom of movement will depend on the particular circumstances. For example, a supervision order with a condition that the appellant ‘must not obtain paid or unpaid employment, or undertake voluntary work, which involves him attending, contacting or entering into people’s homes and/or attending or entering licensed venues’ was found to be an unreasonably wide and therefore unjustified limit on his freedom of movement.1 This was because the offences giving rise to the order were not committed in the context of any employment in another’s home, nor was there any apparent connection between the appellant’s entry into licensed premises and the commission of those offences (Nigro v Secretary to the Department of Justice (2013) 41 VR 359;  VSCA 213 ).
Conditions of bail
- Section 5 of the Bail Act 1977 deals with the various conditions of bail that may be imposed. A Note to s 5 mentions various Charter rights, including s 12, and the limitations provision in s 7(2). Consistent with the Charter, the Bail Act requires a court to impose bail conditions only for certain purposes, such as reducing the likelihood of the accused failing to attend trial or endangering the public, and in doing so must impose the least onerous bail conditions required to achieve those purposes (Bail Act 1997, ss 5(3), 5(4), Note to s 5; see also Woods v DPP (2014) 238 A Crim R 84;  VSC 1 –).
- For example, in a bail decision in which the main victim of the alleged offences was a worker at Malvern train station, the Supreme Court denied a prosecution request to impose a bail condition preventing an accused from using any public transport at all. The accused was too young to drive a car, and he used buses, trams and trains as his means of getting around. The Court found that the condition would limit his freedom of movement to an extent that was not necessary for any legitimate purpose of bail. Instead, the Court imposed a condition that the accused could not attend Malvern train station (Woods v DPP (2014) 238 A Crim R 84;  VSC 1 ).
Protective orders relating to persons lacking capacity
- A person with a mental illness may be subject to guardianship or supervised or involuntary treatment under legislation such as the Guardianship and Administration Act 1986, Disability Act 2006 or Mental Health Act 2014 in the interests of their health, safety and protection. Where the relevant legislation provides for checks that adequately balance the Charter rights of those individuals with the necessity of medical treatment, limits on the right to freedom of movement resulting from the proper application of that legislation will generally be justified under s 7(2) (see, eg, RB  VCAT 532 ; AC  VCAT 1186 , ; MH10 v Mental Health Review Board  VCAT 1919 –).
- Where limits on the right to freedom of movement are imposed beyond any power to do so, those limits are not ‘under law’ for the purposes of s 7(2) and therefore cannot be compatible with the right. For example, in Antunovic, a patient was subject to involuntary treatment under the Mental Health Act 1986, but the community treatment order in question contained no residency requirement. The Supreme Court therefore found that no lawful authority existed under which Ms Antunovic could be directed where to live or to prevent her from living where she wanted to and so ordered her release. The Mental Health Act could authorise such restraints, subject to carefully specified checks and balances, but they had not been authorised in the case (Antunovic v Dawson (2010) 30 VR 355;  VSC 377 –).
- Similarly, the Supreme Court in PJB v Melbourne Health (Patrick’s Case) found that the appointment of an administrator under the Guardianship and Administration Act was incompatible with Patrick’s Charter rights, including his right to choose where to live under s 12, as the administrator was intending to sell Patrick’s home. Patrick was a mentally ill man who, at the time, had been living as an involuntary inpatient in a hospital for some years. No sufficient purpose was shown for the limit on Patrick’s Charter rights in the circumstances, as he was neither in a crisis situation nor found to be mismanaging his home or his money, and the appointment of an unlimited administrator was found to be one of the most restrictive options available (PJB v Melbourne Health (2011) 39 VR 373;  VSC 327 –).
- In contrast, in Re Beth, Beth was an intellectually disabled teenager who had suffered significant sexual abuse and violence in the course of her childhood and developed serious behavioural problems. The Supreme Court made, and later renewed, an order authorising Beth’s placement in a residential facility operated by a social welfare agency, and the use of lock-up facilities and restrictive interventions in the course of her care. In doing so, the Court found that the order would involve a ‘continuing substantial invasion’ of Beth’s Charter rights, including her right to freedom of movement. However, the limits on Charter rights were reasonable, necessary and proportionate in the circumstances, and did not go beyond what was required to protect Beth’s interests. Some of the factors supporting this decision were that:
- the order was protective: there was substantial evidence that the measures were necessary to protect Beth from self-harm;
- Beth’s care had to be appropriately planned, supervised and monitored;
- the order was for a limited time and subject to independent review;
- the conditions restricted the use of seclusion and restrictive interventions to what was reasonably necessary and Beth’s carers were to use the least restrictive measures necessary; and
- detailed progress reports were to be provided to the court (Re Beth (2013) 42 VR 124;  VSC 189 –; Re Beth  VSC 121 –).
- Laws allowing the police to randomly stop vehicles, for example, to check the driver’s licence may be reasonable and justified limits on the right to freedom of movement. However, where police officers go beyond their legal authority in limiting Charter rights, their conduct cannot satisfy the legality component of the limitations test in s 7(2).
- In Kaba, a passenger in a car that had been stopped by the police, Kaba, became annoyed with the delay and walked away from the car. As he did so, he was asked repeatedly for his name and address despite the police having no suspicion of any wrongdoing and Kaba’s resistance to provide the police with this information. The Supreme Court found ‘no legal foundation for the coercive questioning in which police engaged in the face of [Kaba’s] plainly expressed resistance’. The police conduct was therefore found to be unlawful, as it limited Kaba’s right to freedom of movement (and privacy) in a manner not justified under s 7(2) (DPP v Kaba (2014) 44 VR 526;  VSC 52 –).
Last updated: 10 May 2016
1 In this example, the court was not analysing the limits on the s 12 right under s 7(2), but under s 15(6) of the Serious Sex Offenders (Detention and Supervision) Act 2009. Section 15(6) requires the court to ensure that any non-core conditions imposed under a supervision order constitute the minimum interference with the offender’s human rights, including freedom of movement, necessary to ensure the purpose of the conditions and that such conditions are reasonably related to the gravity of the risk of the possibility of re-offending.