Every person lawfully within Victoria has the right to move freely.

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CHARTER OF HUMAN RIGHTS AND RESPONSIBILITIES ACT 2006 - SECT 12

Freedom of movement

Every person lawfully within Victoria has the right to move freely within Victoria and to enter and leave it and has the freedom to choose where to live.

  1. 12 Freedom of movement

    Every person lawfully within Victoria has the right to move freely within Victoria and to enter and leave it and has the freedom to choose where to live.

  2. The right to freedom of movement applies only to those persons lawfully within Victoria, and is made up of the following components:
    • The right to move freely within Victoria
    • The right to enter and leave Victoria
    • The right to choose where to live
  3. The right to freedom of movement is closely related to the right to liberty (s 21), and is aimed at restrictions on movements within the right to liberty that fall short of physical detention (Woods v DPP (2014) 238 A Crim R 84; [2014] VSC 1 [12]; Antunovic v Dawson (2010) 30 VR 355; [2010] VSC 377 [72]; citing Re Kracke and Mental Health Review Board (2009) 29 VAR 1; [2009] VCAT 646 [588]).
  4. Section 12 is modelled on art 12 of the ICCPR (Charter of Human Rights and Responsibilities Bill 2006 Explanatory Memorandum, 12). A right to freedom of movement is also protected under art 2 of Protocol 4 of the European Convention on Human Rights.
  5. The right to freedom of movement, like many Charter rights, is also recognised at common law (see, eg, DPP v Kaba (2014) 44 VR 526; [2014] VSC 52 [79]–[80]).
  6. Together with the right to liberty, the right of freedom of movement forms the basis for the common law right to habeus corpus (Antunovic v Dawson (2010) 30 VR 355; [2010] VSC 377 [113], [198]; see also DPP v Kaba (2014) 44 VR 526; [2014] VSC 52 [79]).

Lawfully within Victoria

  1. The right in s 12 applies only to people who are ‘lawfully within Victoria’. For example:
    • A person is not lawfully in Victoria if that person is not an Australian citizen and is in breach of the Migration Act 1958 (Cth).
    • A person who is prohibited from leaving another state or territory, under the laws of that state or territory, or pursuant to a court order made in that state or territory, is not lawfully in Victoria. For example, a person who breached bail conditions by travelling to Victoria would not be able to rely on s 12.

    Right to move freely

  2. The right to move freely applies generally to a person’s movement within Victoria, and may include the following examples:
    • Freedom from being forced to move to, or from, a particular place;
    • Freedom from physical and procedural barriers, such as notification or authorisation requirements, before entering public spaces; or
    • Freedom from strict surveillance or reporting obligations relating to moving.
  3. In the context of the International Convention on the Elimination of All Forms of Racial Discrimination, Mason J described the right (subject to reasonable limitation), as including protection by law from unnecessary restrictions by the State or others on an individual’s freedom of movement, movement without impediment throughout the State, a right of access to facilities necessary for the enjoyment of freedom of movement, and a right of access to places and services used by members of the public (Gerhardy v Brown (1985) 159 CLR 70, 102, cited in DPP v Kaba(2014) 44 VR 526; [2014] VSC 52 [100]).
  4. When police stop a vehicle to check on the licence of the driver and the registration of the vehicle, they limit the right to freedom of movement of the driver, and any passenger (DPP v Kaba (2014) 44 VR 526; [2014] VSC 52 [118], [231]).
  5. The Court of Appeal found that a person’s freedom of movement under s 12 would be significantly limited by a supervision order made in terms of the Serious Sex Offenders (Detention and Supervision) Act2009. For example, an order that included a condition requiring the person subject to it to reside at a specified address each night and not to move from that address without the prior written consent of the Adult Parole Board would significantly limit the right in s 12 (Nigro v Secretary to the Department of Justice (2013) 41 VR 359; [2013] VSCA 213 [206]).
  6. Conditions of bail imposed under the Bail Act 1977also have the potential to limit the right to move freely under s 12. Section 4 of the Bail Act reflects this right in the presumption in favour of bail for an accused person, and the test of ‘exceptional circumstances’ when the presumption does not apply (Woods v DPP (2014) 238 A Crim R 84; [2014] VSC 1 [34]).
  7. The right is often engaged in cases concerning mental illness. For example, treatment orders issued pursuant to the Mental Health Act 1986, and similar orders made under its replacement, the Mental Health Act 2014, may impose restrictions on a person’s freedom of movement.

    Right to choose where to live

  8. In Antunovic, Ms Antunovic was being instructed to live at Norfolk Terrace Community Care Unit by the authorised psychiatrist there. Although she was allowed to go out during the day, she was forced to return at night and was not allowed to live with her mother as she wished. She was therefore being compelled to live in a certain place, and prevented from living in another. Her right to choose where to live was clearly limited by the order (Antunovic v Dawson (2010) 30 VR 355; [2010] VSC 377 [76]–[76], [197]).
  9. Similarly, in PJB v Melbourne Health, it was held that:

    where a person resides in their own home and wishes to continue to do so, taking legal steps to transfer complete and exclusive management and control of the home to an administrator, including the power to sell the home against the person’s wishes, and actually effecting such a transfer by the appointment of an administrator, represents an interference with their freedom to choose where to live. Where a person is in mental health detention, wishes to return to their home as their choice of residence and their connection with the home has not been severed, taking those steps or effecting such a transfer is likewise an interference with that freedom (PJB v Melbourne Health (2011) 39 VR 373; [2011] VSC 327 [52]).

    Right to enter and leave

  10. Section 12 protects the right of individuals ‘to enter and leave’ Victoria.
  11. For example, a ‘no departure injunction’, which typically prevents a defendant from leaving Victoria, attending any point of international departure, and applying for a passport, would seriously limit this aspect of the right to freedom of movement (Talacko v Talacko (2009) 25 VR 613; [2009] VSC 444 [47]).
  12. The right to enter and leave Victoria duplicates the constitutional guarantee of freedom of interstate intercourse in s 92 of the Commonwealth Constitution (DPP v Kaba (2014) 44 VR 526; [2014] VSC 52 [81]; Cole v Whitfield (1988) 165 CLR 360; [1988] HCA 18 [23]; citing Gratwick v Johnson (1945) 70 CLR 1, 17. See also AMS v AIF (1999) 199 CLR 160; [1999] HCA 26 [153] (Kirby J), [221] (Hayne J)). Restrictions on the freedom of interstate commerce must be proportionate to a legitimate government aim in order to be constitutional. When the constitutional freedom and the s 12 right are limited, both this test for constitutional validity and the test for justification under s 7(2) will apply.

 

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