Right to freedom of movement

Public sector guidance sheet

Disclaimer
This material is provided to persons who have a role in Commonwealth legislation, policy and programs as general guidance only and is not to be relied upon as legal advice. Commonwealth agencies subject to the Legal Services Directions 2005 requiring legal advice in relation to matters raised in this Guidance Sheet must seek that advice in accordance with the Directions.

What is the right to freedom of movement?

The right to freedom of movement includes the right to move freely within a country for those who are lawfully within the country, the right to leave any country and the right to enter a country of which you are a citizen. The right may be restricted in certain circumstances.

Where does the right to freedom of movement come from?

Australia is a party to seven core international human rights treaties. The right to freedom of movement is contained in articles 12 and 13 of the International Covenant on Civil and Political Rights (ICCPR).

See also article 10 of the Convention on the Rights of the Child (CRC) and article 18 of the Convention on the Rights of Persons with Disabilities (CRPD) , article 5 of the Convention on the Elimination of All Forms of Racial Discrimination (CERD) and article 15 of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW).

When do I need to consider the right to freedom of movement?

If the legislation, policy or program on which you are working deliberately or indirectly affects these rights, you will need to consider the right to freedom of movement. In particular, you will need to consider the right if you are working on legislation, a policy or a program that:

  • restricts the movement of persons as part of a criminal process, for instance imposes bail conditions
  • establishes eligibility requirements, or excludes entry into public land and premises
  • gives public authorities the power to make orders to restrict the movement of persons based on national security considerations (for example control orders)
  • limits or regulates the conduct of public protest
  • regulates access to land based on quarantine reasons
  • limits the ability or imposes restrictions or conditions on a person's entry into or departure from Australia
  • establishes visa conditions on non-citizens that might restrict their movement, or
  • requires permanent residents to leave Australia under immigration processes.

This list should not be regarded as exhaustive.

If your legislation, policy or program restricts freedom of movement, you should ask yourself whether the restriction is justified on any of the permissible grounds, namelyto protect national security, public order, public health or morals or the rights and freedoms of others. Is it necessary and proportionate to protect the purpose for which it is imposed (for example, national security)? Is it the least intrusive means of achieving the desired result? Is there a way of achieving the objective without imposing restrictions?

What is the scope of the right to freedom of movement?

The right to freedom of movement has three components.

The right to freedom of movement within a country, which includes the right to choose where to live within the country

People must be able to move freely and choose a place of residence within a country without restrictions, including establishing a purpose or reason for doing so. The only allowable restrictions are those mentioned in article 12(3) (see further detail below). Governments have a duty to ensure that a person's freedom of movement is not unduly restricted by others, including private persons or companies. The right applies to all persons lawfully within Australian territory, not only to Australian citizens.

In the international context, the right to freedom of movement within countries is an important consideration as it relates to the special needs of internally displaced persons including with regard to return, reintegration and resettlement options.

International law does allow a country to impose restrictions on who may enter it. A country may allow entry to a non-citizen on conditions that allow the person lesser rights of freedom of movement to those of citizens, provided those restrictions comply with the country's international obligations. For example, some work visas impose conditions on a visa holder to reside and work in a particular region. However, a 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. Persons who are unlawful non-citizens under the Migration Act 1958 are not lawfully within Australia. Accordingly, their freedom of movement can be restricted, as allowed for under article 12(3) of the ICCPR.

The right to leave any country, regardless of your citizenship

The freedom to leave a country pertains to both short-term, long-term and permanent departures. It cannot be made dependent on establishing a purpose or reason for leaving. Citizens have a right to obtain passports or other travel documents from their country of citizenship. The right to leave, and to possess a passport, may be restricted, most notably if the person's presence is required due to their having been charged with a criminal offence. Permissible restrictions are discussed further below.

The right to enter a country of which you are a citizen

The UN Human Rights Committee has stated that in no case may a person be arbitrarily deprived of the right to enter his or her own country, and that there are few, if any, circumstances in which deprivation of the right to enter a person's own country could be considered reasonable. This component of the right is generally restricted to citizens. Australian citizenship may be revoked by the Minister for Immigration and Citizenship in the circumstances set out in section 34 of the Australian Citizenship Act 2007.

Complaints have been made to the UN Human Rights Committee by persons who have been ordered to leave countries in which they have been long-term residents, but not citizens, for example because they have committed serious criminal offences. The complaints have alleged that the country of long-term residence should be considered the person's 'own country'. So far, no such complaint has been successful, although individual members of the Committee have dissented from the views of the majority.

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Can the right to freedom of movement be limited?

The right may be restricted, either by way of derogation under article 4 of the ICCPR, or to protect national security, public order, public health or morals or the rights and freedoms of others, as allowed by article 12(3).

Derogation

Under article 4 of the ICCPR, countries may take measures derogating from certain of their obligations under the Covenant, including the right to freedom of movement 'in time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed'. Such measures may only be taken 'to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin'.

Limitation

Further, the right can be restricted under domestic law on any of the grounds in article 12(3) of the ICCPR, namely national security, public order, public health or morals or the rights and freedoms of others. The Human Rights Committee has stated that restrictions should not only serve the permissible purposes; they must also be necessary and proportionate to protect them and must be the least intrusive means of achieving the desired result. Examples of measures likely to constitute permissible restrictions are those on persons charged with or convicted of criminal offences, access to areas of environmental significance, access to areas such as earthquake zones and quarantine zones and prohibitions on unlicensed access to private premises, particularly where such access would interfere with the right to privacy of the owner or occupier of the premises.

In addition, Australia's obligations under the Hague Convention on the Civil Aspects of International Child Abduction provide an obligation on Australia to take measures to seek the return of children wrongfully removed or detained from their country of habitual residence. In fulfilling Australia's obligations under this and other conventions, Australian authorities are required to both actively prevent the wrongful removal of children from Australia and to actively seek the return of children who have been wrongfully removed.

Armed conflict

Where the Australian Defence Force operates overseas in time of armed conflict, international humanitarian law (IHL), as the body of law that applies specially to the circumstances of armed conflict, is the relevant standard under which compliance with the right to freedom of movement is assessed, rather than international human rights law. IHL contains specific provisions that allow movement to be restricted in certain circumstances.

Which domestic laws relate to the right to freedom of movement?

There is no Commonwealth legislation enshrining the right to freedom of movement. Numerous laws effectively restrict the right on grounds which are set out in the laws.

For example, a control order made under Division 104 of the Criminal Code Act 1995 may restrict or prohibit the person subject to the control order being at specified areas or places and may require the person to remain at specified premises at certain times.

Freedom of movement within certain areas may be restricted when orders are in force enabling the Defence Force to exercise powers under Part IIIAAA of the Defence Act 1903.

The Minister for Foreign Affairs and Trade may prevent a person from leaving Australia by cancelling or refusing to issue a passport in certain circumstances. For example, where the person is the subject of a domestic or foreign arrest warrant for serious crimes or where the person will likely engage in harmful conduct in Australia or overseas if they were allowed to travel.

What other rights and freedoms relate to the right to freedom of movement?

The right to freedom of movement may also be relevant to:

  • the right to liberty and security under article 9 of the ICCPR
  • the right to participate in public life under article 25 of the ICCPR
  • the right to peaceful assembly under article 21 of the ICCPR
  • the right to freedom of association under article 22 of the ICCPR
  • the right to privacy under article 17 of the ICCPR
  • the conditions for expulsion of aliens in article 13 of the ICCPR.

Articles from relevant Conventions

International Covenant on Civil and Political Rights

Article 12

  • Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence.
  • Everyone shall be free to leave any country, including his own.
  • The above-mentioned rights 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.
  • No one shall be arbitrarily deprived of the right to enter his own country.

See also: ICCPR article 13; CRC article 10; CRPD article 18; CERD article 5; CEDAW article 15.

Where can I read more about the right to freedom of movement?

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