Justifications for encroachments

5.21       Freedom of movement will sometimes conflict with other rights and interests, and limitations on the freedom may be justified, for example, for reasons of public health and safety.

5.22       International instruments provide for grounds for restrictions on freedom of movement in quite general terms. For example, art 12(3) of the ICCPR provides that freedom of movement:

shall not be subject to any restrictions except those which are provided by law, are necessary to protect national security, public order (ordre public), public health or morals or the rights and freedoms of others, and are consistent with the other rights recognized in the present Covenant.

5.23       The United Nations Human Rights Committee has said that such restrictions on the right ‘must not impair the essence of the right; the relation between right and restriction, between norm and exception, must not be reversed’.[23] The Committee has also said:

The laws authorizing the application of restrictions should use precise criteria and may not confer unfettered discretion on those charged with their execution. … it is not sufficient that the restrictions serve the permissible purposes; they must also be necessary to protect them. Restrictive measures must conform to the principle of proportionality; they must be appropriate to achieve their protective function; they must be the least intrusive instrument amongst those which might achieve the desired result; and they must be proportionate to the interest to be protected.[24]

5.24       Bills of rights allow for limits on most rights, but the limits must generally be reasonable, prescribed by law, and ‘demonstrably justified in a free and democratic society’.[25]

5.25       Some Australian Commonwealth laws that interfere with freedom of movement may be justified. The ALRC invites submissions identifying those that are not justified, and explaining why they are not justified.