5.1 Freedom of movement 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.
5.2 This chapter discusses the source and rationale of freedom of movement; how this freedom is protected from statutory encroachment; and when laws that encroach on this freedom may be justified.
5.3 The ALRC calls for submissions on two questions about this freedom.
Question 5–1 What general principles or criteria should be applied to help determine whether a law that interferes with freedom of movement is justified?
Question 5–2 Which Commonwealth laws unjustifiably interfere with freedom of movement, and why are these laws unjustified?
5.4 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’.
5.5 William Blackstone wrote in his Commentaries of the Laws of England (1765-69) 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’.
5.6 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’.
5.7 In Potter v Minahan (1908), 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.
5.8 However, this freedom 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.
Jane McAdam, ‘An Intellectual History of Freedom of Movement in International Law: The Right to Leave as a Personal Liberty’ (2011) 12 Melbourne Journal of International Law 27, 6. See also Enid Campbell and Harry Whitmore, Freedom in Australia (Sydney University Press, 1966) ch 4; Harry Street, Freedom, the Individual and the Law (Penguin Books, 1972) ch 11.
Magna Carta 1297 (UK) 25 Edw 1, c 42.
William Blackstone, Commentaries on the Laws of England (The Legal Classics Library, 1765). Quoted in McAdam, above n 1, 12.
Thomas Jefferson, The Works of Thomas Jefferson: Correspondence and Papers, 1803-1807 (Cosimo, Inc., 2010) 273. In this same letter, Jefferson wrote: ‘Congress may by the Constitution ‘establish an uniform rule of nationalization,’ that is, by what rule an alien may become a citizen. But they cannot take from a citizen his natural right of divesting himself of the character of a citizen by expatriation’: Ibid 274. McAdam notes that Jefferson drew on Blackstone’s natural rights thinking about freedom of movement: McAdam, above n 1, 13.
Potter v Minahan (1908) 7 CLR 277, 305.