The common law

6.1          Freedom of movement at common law primarily concerns the freedom of citizens both to move freely within their own country and to leave and return to their own country. It has its origins in ancient philosophy and natural law, and has been regarded as integral to personal liberty.[1]

6.2          Freedom of movement, broadly conceived, may also be engaged by laws that restrict the movement or authorise the detention of any person—not only a citizen— lawfully within the territory of a state. That is, any non-citizen lawfully within Australia, whose entry into Australia has not been subject to restrictions or conditions, is entitled to the same right to freedom of movement as an Australian citizen.

6.3          This chapter discusses the source and rationale of the common law right of freedom of movement; how this right is protected from statutory encroachment; and when laws that interfere with freedom of movement may considered justified, including by reference to the concept of proportionality.[2]

6.4          In 13th century England, the Magna Carta guaranteed to local and foreign merchants the right, subject to some exceptions, to ‘go away from England, come to England, stay and go through England’.[3]

6.5          William Blackstone wrote in his Commentaries on the Laws of England that every Englishman under the common law had the right to ‘go out of the realm for whatever cause he pleaseth, without obtaining the king’s leave’.[4]

6.6          In 1806, Thomas Jefferson, then President of the United States, wrote that he held ‘the right of expatriation to be inherent in every man by the laws of nature, and incapable of being rightfully taken away from him even by the united will of every other person in the nation’.[5]

6.7          In Potter v Minahan, O’Connor J of the High Court of Australia said:

A person born in Australia, and by reason of that fact a British subject owing allegiance to the Empire, becomes by reason of the same fact a member of the Australian community under obligation to obey its laws, and correlatively entitled to all the rights and benefits which membership of the community involves, amongst which is a right to depart from and re-enter Australia as he pleases without let or hindrance unless some law of the Australian community has in that respect decreed the contrary.[6]

6.8          However, freedom of movement has commonly—both in theory and practice—been subject to exceptions and limitations. For example, the freedom does not, of course, extend to people trying to evade punishment for a crime, and in practice, a person’s freedom to leave one country is very much limited by the willingness of other countries to allow that person to enter.