Section 12

Every person lawfully within Victoria has the right to move freely within Victoria and to enter and leave it and has the freedom to choose where to live.

Section 12 protects various rights in relation to freedom of movement.


The following rights are recognised in s. 12:

  • the right to move freely within Victoria;
  • the right to choose where to live within Victoria; and
  • the right to be free to enter and leave Victoria.


Who do these rights apply to?

The rights conferred by s.12 apply only to persons who are ‘lawfully’ within Victoria.


A person may not be lawfully in Victoria:

  • where legislation made in another state or territory, or a court order made in another state or territory, prohibits a person from leaving that state or territory or prohibits a person from travelling to Victoria.
  • if they are unlawful non-citizens in breach of the Migration Act 1958 (Cwlth).


Positive or negative obligations?
The rights protected by s. 12 impose both positive and negative obligations on public authorities. The negative obligation is that public authorities must refrain from interfering with a person’s freedom of movement. The positive obligation is that they must also ensure that a person’s freedom of movement is not unduly restricted by other persons, who may be either public or private persons.


Scope of the obligations

In international human rights law, freedom of movement has been described as ‘an indispensable condition for the free development of a person.’89 The right is closely related to the right to liberty, and is also considered to be necessary for access to economic and social rights such as health and social services.


The right to move freely within Victoria
The right to move freely within Victoria is not dependent on any particular purpose or reason for a person wanting to move or to stay in a particular place. It encompasses a right not be forced to move to, or from, a particular location.


The right includes freedom from physical barriers and procedural impediments, such as a requirement of prior notification or authorisation from a local council before entering a public park or participating in a public demonstration in a public space. However, the right does not just apply to public spaces such as a public park.


The right may also be invoked where the government actively curtails a person’s freedom of movement or subjects a person to strict private surveillance or reporting obligations before or when moving.90


These examples are not exhaustive of the scope of the right, which applies generally to a person’s movement within Victoria.


The right to choose where to live within Victoria
Under the Charter a person has the right to choose where to live within Victoria. This right may be interfered with, or impacted upon, by a legislative provision that authorises courts and others to direct where those people on bail or under supervised release may live. These provisions will need to be assessed.

The right to be free to enter and leave Victoria
The Charter provides that a person has the right to be free to enter and leave Victoria.


Section 92 of the Commonwealth Constitution guarantees freedom of interstate intercourse.91 This aspect of the right largely duplicates this constitutional guarantee.

It means that any restrictions on the right to enter and leave Victoria must be proportionate to a legitimate government aim. If they are not, they are likely to be unconstitutional and also breach the Charter. As noted above, the Charter does not limit or abrogate any right or freedom not included in the Charter.

 

Footnotes

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89 Human Rights Committee, General Comment 27, Freedom of movement (Art.12), (Sixty-seventh session, 1999), UN Doc. CCPR/C/21/Rev.1/Add.9 (1999), reprinted in Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, UN Doc. HRI/GEN/1/Rev.6 at 174 (2003) [1].


90 In Raimondo v. Italy (1994) 281 Eur Court Hr (ser A); (1994) 18 EHRR 237 the European Court of Human Rights held that restrictions requiring a person to report to authorities, remain at home between set hours, and otherwise inform the authorities that they were leaving their home, were a breach of the person’s freedom of movement.

91 Cole v. Whitfield (1988) 165 CLR 360, 393 (the Court), citing Gratwick v. Johnson (1945) 70 CLR 1, 17; See also AMS v. AIF (1999) 199 CLR 160 [153] (Kirby J), [221] (Hayne J).