7.10 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’. 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’.
7.11 Influenced by Blackstone, 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’.
7.12 In Australia, O’Connor J said, in Potter v Minahan, that a citizen of Australia is entitled 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’.
7.13 The common law freedom of movement is not absolute. Common law liability and property rules determine the basic boundaries of the freedom. A person who enters land without the owner’s consent commits trespass. A person who moves in disregard of the safety of others commits other torts. A motorist has a duty of care not to drive in a way that causes harm to others. Non-citizens have no common law freedom to enter a country except as allowed by the law of the country.
7.14 Different considerations apply to public property (res communes) and state-owned property. Res communes include the sea, foreshore, rivers, the atmosphere, commons and dedicated public areas. Members of the public have common law freedom to the use of these things, including the freedom to navigate. However, this freedom is often regulated by legislation enacted for reasons such as conservation and safety. In contrast, there is no general common law freedom to enter state-owned property. The state may grant public access to lands such as national parks and forests subject to conditions.