Justifications for limits on freedom of movement

7.31     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.

7.32     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’.[28]

7.33     The following section discusses some of the principles and criteria that may be applied to help determine whether a law that interferes with freedom of movement is justified, including those under international law.

Legitimate objectives

7.34     The threshold question in a proportionality test is whether the objective of a law is legitimate. Some guidance on what should be considered legitimate objectives of a law that interferes with freedom of movement may be derived from the common law and international human rights law.

7.35     The common law and international human rights law recognise that freedom of movement can be restricted in order to pursue legitimate objectives such as the protection of national security and public health. Some existing restrictions on freedom of movement are a corollary of pursuing other important public or social needs, such as the need to protect ecologically sensitive areas, or ensure safety at sea.

7.36     In considering how restrictions on freedom of movement may be appropriately justified, one starting point is international human rights law, and the restrictions permitted by the ICCPR. The ICCPR provides grounds for restrictions on freedom of movement in general terms. Article 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.

7.37     Many of the laws discussed below pursue these objectives. For example, counter-terrorism and other criminal laws clearly protect the rights of others, including the right not to be a victim of terrorism or other crime. They are also concerned with the protection of national security or public order.

7.38     Other counter-terrorism laws affecting aspects of citizenship, passports and border protection may also be necessary to protect legitimate national security and other interests. Some aspects of quarantine laws, such as quarantine zones, are necessary to protect public health.

7.39     A range of laws that restrict entry, for example into military security zones, safety zones and accident sites, may be necessary to protect legitimate objectives such as protecting public safety and health and ensuring public order.

7.40     There remain other laws that restrict freedom of movement and do not as obviously fall within the permissible restrictions referred to in art 12.3 of the ICCPR, for example, the requirement placed on bankrupt persons to automatically surrender their passports.

Balancing rights and interests

7.41     Whether all of the laws identified below as potentially interfering with freedom of movement in fact pursue legitimate objectives of sufficient importance to warrant restricting the freedom, may be contested.

7.42     However, even if a law does pursue such an objective, it will be important also to consider whether the law strikes an appropriate balance between freedom of movement and other rights and interests. A recognised starting point for determining whether an interference with freedom of movement is justified is the concept of proportionality.[29] Applying the Siracusa Principles, for example, a state must use ‘no more restrictive means than are required’ to achieve the purpose of the limitation.[30]

7.43     The UN Human Rights Committee has said that restrictions on freedom of movement ‘must not impair the essence of the right; the relation between right and restriction, between norm and exception, must not be reversed’.[31] The UN Human Rights 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 … [I]t 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.[32]

[28]           Canadian Charter of Rights and Freedoms s 1. See also Charter of Human Rights and Responsibilities Act 2006 (Vic) s 7; Human Rights Act 2004 (ACT) s 28; New Zealand Bill of Rights Act 1990 (NZ) s 5.

[29]           See Ch 2.

[30]           United Nations Economic and Social Council, Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights, UN Doc E/CN.4/1985/4, Annex (28 September 1984) [11].

[31]           United Nations Human Rights Committee, General Comment No 27 (1999) on Article 12 of the Convention–Freedom of Movement, UN Doc CCPR/C/21/Rev.1/Add.9 (2 November 1999) [13]–[14].

[32]           Ibid [13]–[14]. Legal and bureaucratic barriers were, for the Committee, a ‘major source of concern’: Ibid [17]. See also United Nations Economic and Social Council, Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights, UN Doc E/CN.4/1985/4, Annex (28 September 1984).