Protections from statutory encroachment

Australian Constitution

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.[7]

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’.[8] 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’:[9]

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.[10]

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.[11]

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.[12]

6.13       However, this view has not been more broadly accepted by the High Court.[13] 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.[14]

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’.[15]

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.[16] 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.[17]

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.[18] 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’.[19]

International law

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’.[20] However, where a statute is ambiguous, courts will generally favour a construction that accords with Australia’s international obligations.[21]

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,[22] and in the human rights statutes in Canada[23] and New Zealand.[24]

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).[25] 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.