6.9 Section 92 of the Australian Constitution provides:
On the imposition of uniform duties of customs, trade, commerce, and intercourse among the States, whether by means of internal carriage or ocean navigation, shall be absolutely free.
6.10 In Gratwick v Johnson, Starke J said that the ‘people of Australia are thus free to pass to and from among the states without burden, hindrance or restriction’. However, in Cole v Whitfield, the High Court said that this does not mean that ‘every form of intercourse must be left without any restriction or regulation in order to satisfy the guarantee of freedom’:
For example, although personal movement across a border cannot, generally speaking, be impeded, it is legitimate to restrict a pedestrian’s use of a highway for the purpose of his crossing or to authorize the arrest of a fugitive offender from one State at the moment of his departure into another State.
6.11 In Cunliffe v The Commonwealth, Mason CJ said that the freedom of intercourse which s 92 guarantees is not absolute:
Hence, a law which in terms applies to movement across a border and imposes a burden or restriction is invalid. But, a law which imposes an incidental burden or restriction on interstate intercourse in the course of regulating a subject-matter other than interstate intercourse would not fail if the burden or restriction was reasonably necessary for the purpose of preserving an ordered society under a system of representative government and democracy and the burden or restriction was not disproportionate to that end. Once again, it would be a matter of weighing the competing public interests.
6.12 It has also been suggested that a right to freedom of movement is implied generally in the Constitution. In Miller v TCN Channel Nine, Murphy J said that freedom of movement between states and ‘in and between every part of the Commonwealth’ is implied in the Constitution.
6.13 However, this view has not been more broadly accepted by the High Court. Professors George Williams and David Hume wrote:
This reflects the lack of a clear textual basis for such a freedom and for the incidents of the constitutionally prescribed system of federalism which would support it, and an implicit view that the Constitution’s federalism is not intended to protect individuals.
6.14 In any event, a right to freedom of movement implicit in federalism would only extend to movement within Australia.
6.15 In relation to citizens returning to Australia, the High Court has held that the right of Australian citizens to enter the country is not qualified by any law imposing a need to obtain a licence or ‘clearance’ from the executive; and that, therefore, any such impost ‘could not be regarded as a charge for the privilege of entry’.
Principle of legality
6.16 The principle of legality provides some protection to freedom of movement, because freedom of movement is an essential part of personal liberty. When interpreting a statute, courts will presume that Parliament did not intend to interfere with freedom of movement, unless this intention was made unambiguously clear.
6.17 For example, in Potter v Minahan, O’Connor J said:
It cannot be denied that, subject to the Constitution, the Commonwealth may make such laws as it may deem necessary affecting the going and coming of members of the Australian community. But in the interpretation of those laws it must, I think, be assumed that the legislature did not intend to deprive any Australian-born member of the Australian community of the right after absence to re-enter Australia unless it has so enacted by express terms or necessary implication.
6.18 In relation to non-citizens, the High Court in Plaintiff M47 v Director General of Security held that provisions of the Migration Act 1958 (Cth) should not be interpreted to mean that an unlawful non-citizen may be kept in immigration detention permanently or indefinitely—at least where the Parliament has not ‘squarely confronted’ this issue. Bell J stated that ‘the application of the principle of legality requires that the legislature make plain that it has addressed that consequence and that it is the intended consequence’.
6.19 Freedom of movement is widely recognised in international law and bills of rights. For example, art 13 of the Universal Declaration of Human Rights provides:
(1) Everyone has the right to freedom of movement and residence within the borders of each state.
(2) Everyone has the right to leave any country, including his own, and to return to his country.
6.20 Article 12 of the International Covenant on Civil and Political Rights (ICCPR) provides, in part:
1. Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence.
2. Everyone shall be free to leave any country, including his own.
4. No one shall be arbitrarily deprived of the right to enter his own country.
6.21 International instruments cannot be used to ‘override clear and valid provisions of Australian national law’. However, where a statute is ambiguous, courts will generally favour a construction that accords with Australia’s international obligations.
Bills of rights
6.22 In other countries, bills of rights or human rights statutes provide some protection from statutory encroachment. Freedom of movement is protected in the United States Constitution, and in the human rights statutes in Canada and New Zealand.
6.23 Freedom of movement is also expressly protected in the Charter of Human Rights and Responsibilities Act 2006 (Vic) and the Human Rights Act 2004 (ACT). Section 12 of the Victorian Act provides:
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.
Australian Constitution s 92. (Emphasis added.)
Gratwick v Johnson (1945) 70 CLR 1, 17.
Cole v Whitfield (1988) 165 CLR 360, 393.
Ibid, 393. See also: AMS v AIF (1999) 199 CLR 160, – (Gleeson CJ, McHugh, Gummow JJ).
Cunliffe v Commonwealth (1994) 182 CLR 272, 307–8 (Mason CJ).
Miller v TCN Channel Nine (1986) 161 CLR 556, 581–2. ‘The Constitution also contains implied guarantees of freedom of speech and other communications and freedom of movement not only between the States and the States and the territories but in and between every part of the Commonwealth. Such freedoms are fundamental to a democratic society … They are a necessary corollary of the concept of the Commonwealth of Australia. The implication is not merely for the protection of individual freedom; it also serves a fundamental societal or public interest’. Williams and Hume wrote that freedom of movement, is arguably ‘implicit in the system of free trade, commerce and intercourse in s 92, the protection against discrimination based on state residence in s 117 and any protection of access to the seat of government as well as in the very fact of federalism’: George Williams and David Hume, Human Rights under the Australian Constitution (OUP, 2nd ed, 2013) 120. In Williams v Child Support Registrar, the applicant was unsuccessful in arguing that there was a constitutional right of freedom of movement into and out of Australia: Williams v Child Support Registrar (2009) 109 ALD 343.
In Kruger v Commonwealth, Brennan J said that a constitutional right to freedom of movement and association, which restricts the scope of s 122, had not been held to be implied in the Constitution and ‘no textual or structural foundation for the implication has been demonstrated in this case’: Kruger v Commonwealth (1997) 190 CLR 1, 45.
Williams and Hume, above n 12, 120.
Air Caledonie v Commonwealth (1988) 165 CLR 462, 469. This case concerned a ‘fee’ payable under of the Migration Act 1958 (Cth) s 34A by passengers, citizens and non-citizens, for immigration ‘clearance’, with power vested in the executive to grant exemptions by regulation. This law was held to be a tax, at least in so far as it related to passengers who were Australian citizens.
See Dennis Pearce and Robert Geddes, Statutory Interpretation in Australia (LexisNexis Butterworths, 8th ed, 2014) 256.
Potter v Minahan (1908) 7 CLR 277, 305.
Plaintiff M47/2012 v Director General of Security (2012) 251 CLR 1, .
Minister for Immigration v B (2004) 219 CLR 365,  (Kirby J).
Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273, 287 (Mason CJ and Deane J). The relevance of international law is discussed more generally in Ch 1.
United States Constitution amend IV.
Canada Act 1982 c 11 sch B pt 1 (’Canadian Charter of Rights and Freedoms’) s 6(1)–(2).
New Zealand Bill of Rights Act 1990 (NZ) s 18.
Charter of Human Rights and Responsibilities Act 2006 (Vic) s 12; Human Rights Act 2004 (ACT) s 13.