Justifications for encroachments

6.132   Freedom of movement will sometimes conflict with other rights and interests, and limitations on the freedom may be justified, for example, for reasons of public health and safety.

6.133   Bills of rights allow for limits on most rights, but the limits must generally be reasonable, prescribed by law, and ‘demonstrably justified in a free and democratic society’.[139]

6.134   The following section discusses some of the principles and criteria that may be applied to help determine whether a law that interferes with freedom of movement is justified, including those under international law.[140] However, it is beyond the practical scope of this Inquiry to determine whether appropriate justification has been advanced for particular laws.[141]

6.135   As discussed in Chapter 1, proportionality is the accepted test for justifying most limitations on rights, and is used in relation to freedom of movement.

6.136   For example, the Human Rights Committee in its examination of legislation, asks whether a limitation is aimed at achieving a legitimate objective; whether there is a rational connection between the limitation and that objective; and whether the limitation is proportionate to that objective. A number of stakeholders to this Inquiry expressly endorsed proportionality as a means of assessing justifications for interferences with freedom of movement.[142]

Legitimate objectives

6.137   Both the common law and international human rights law recognise that freedom of movement can be restricted in order to pursue legitimate objectives such as the protection of national security and public health. Some existing restrictions on freedom of movement are a corollary of pursuing other important public or social needs, such as the need to ensure bankrupts do not defeat creditors by leaving the jurisdiction or that children receive financial support from their parents.

6.138   The power of Australian law-makers to enact provisions that restrict freedom of movement is not necessarily constrained by the scope of permissible restrictions on the freedom under international human rights law.[143] However, in considering how restrictions on freedom of movement may be appropriately justified, one starting point is international human rights law, and the restrictions permitted by the ICCPR.

6.139   The ICCPR provides grounds for restrictions on freedom of movement in general terms. Article 12(3) of the ICCPR provides that freedom of movement

shall not be subject to any restrictions except those which are provided by law, are necessary to protect national security, public order (ordre public), public health or morals or the rights and freedoms of others, and are consistent with the other rights recognized in the present Covenant.

6.140   Many of the laws discussed above pursue these objectives. For example, counter-terrorism and other criminal laws clearly protect the rights of others, including the right not to be a victim of terrorism or other crime. They are also are concerned with the protection of national security or public order.

6.141   Other counter-terrorism laws affecting aspects of citizenship, passports and border protection may also be necessary to protect legitimate national security and other interests. Some aspects of quarantine laws, such as quarantine zones, are necessary to protect public health.

6.142   A range of laws that restrict entry, for example, into military security zones, safety zones and accident sites may be necessary to protect legitimate objectives such as protecting public safety and health and ensuring public order.

6.143   There remain other laws that restrict freedom of movement and do not as obviously fall within the permissible restrictions referred to in art 12(3) of the ICCPR, for example, the requirement placed on bankrupt persons to automatically surrender their passports.

Proportionality and freedom of movement

6.144   Whether all of the laws identified above as potentially interfering with freedom of movement in fact pursue legitimate objectives of sufficient importance to warrant restricting the freedom, may be contested. However, even if a law does pursue such an objective, it will be important also to consider whether the law is suitable, necessary and proportionate.

6.145   The United Nations Human Rights Committee has said that restrictions on freedom of movement ‘must not impair the essence of the right; the relation between right and restriction, between norm and exception, must not be reversed’.[144] The UN Committee has also said:

The laws authorizing the application of restrictions should use precise criteria and may not confer unfettered discretion on those charged with their execution … it is not sufficient that the restrictions serve the permissible purposes; they must also be necessary to protect them. Restrictive measures must conform to the principle of proportionality; they must be appropriate to achieve their protective function; they must be the least intrusive instrument amongst those which might achieve the desired result; and they must be proportionate to the interest to be protected.[145]