7.1        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] The freedom is fundamental to the conduct of commerce, employment and cultural exchange, and is central to international law relating to asylum.

7.2        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 be considered justified, including by reference to the concept of proportionality. While freedom of movement overlaps with concerns about personal liberty and the right to be free from arbitrary detention, these latter rights are not a focus of the chapter.

7.3        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.

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

7.5        A range of Commonwealth laws may be seen as interfering with freedom of movement. Some of these provisions relate to limitations that have long been recognised by the common law itself, for example, in relation to official powers of arrest or detention, customs and passport controls, and quarantine.

7.6        While many laws interfering with freedom of movement have strong and obvious justifications, it may be desirable to review some laws to ensure that they do not unjustifiably interfere with the right to freedom of movement.

7.7        The areas of particular concern include various counter-terrorism measures. In particular, the justification for aspects of the control and preventative detention order provisions and declared area offences in sch 1 of the Criminal Code Act 1995 (Cth) (Criminal Code) have been questioned.

7.8        Counter-terrorism and national security laws, including those mentioned above, should be subject to further review to ensure that the laws do not interfere unjustifiably with freedom of movement, or other rights and freedoms. Further review on this basis could be conducted by the Independent National Security Legislation Monitor (INSLM) and the Parliamentary Joint Committee on Intelligence and Security (Intelligence Committee).

7.9        There is also good reason to review s 77 of the Bankruptcy Act 1966 (Cth), which provides that a bankrupt must, unless excused by a trustee in bankruptcy, give their passport to the trustee. This requirement may not be a proportionate response to concerns about bankrupt individuals absconding. Restrictions on freedom of movement should be imposed subject to precise criteria, and judicial oversight, rather than through automatic forfeiture of a bankrupt’s passport.