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.
Lawfully within Victoria
- 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
- 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.
- 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;  VSC 52 ).
- 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;  VSC 52 , ).
- 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;  VSCA 213 ).
- 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;  VSC 1 ).
- 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
- 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;  VSC 377 –, ).
- 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;  VSC 327 ).
Right to enter and leave
- Section 12 protects the right of individuals ‘to enter and leave’ Victoria.
- 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;  VSC 444 ).
- 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;  VSC 52 ; Cole v Whitfield (1988) 165 CLR 360;  HCA 18 ; citing Gratwick v Johnson (1945) 70 CLR 1, 17. See also AMS v AIF (1999) 199 CLR 160;  HCA 26  (Kirby J),  (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.
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 –). See also 6.4.4. Medical or scientific experimentation or treatment.
- 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 –).
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