Freedom of Movement

Section 13 of the Human Rights Act 2004 says that:

Everyone has the right to move freely within the ACT and to enter and leave it, and the freedom to choose their residence in the ACT.

Section 13 is based on article 12(1) of the International Covenant on Civil and Political Rights, a human rights treaty to which Australia is a party.

Scope of the Rights

This section means that everyone has the right to move freely within the Australian Capital Territory, as well as to enter and leave it, and to choose where in the Australian Capital Territory to live.

Article 12(1) of the International Covenant on Civil and Political Rights, on which section 13 is based, says that a person is free to move within a country and choose where they live in it if they are in that country lawfully. The same treaty says that a person is entitled to leave any country (article 12(2)) and enter their own country (article 12(4)). These rights developed in part as a response to the forced displacement of people in Europe and elsewhere in the early twentieth century, where “unwanted” people were moved out.

In the ACT today, the rights in section 13 are relevant to a wide range of matters. These matters include people’s access to public spaces, measures adopted to respond to COVID-19 or other public health emergencies, bail orders, orders such as those made under the Mental Health Act 2015 about where people may reside, laws relating to trespass, laws about protected areas such as national parks, and police powers to direct people’s movements (for example, “move on” powers).

The right to move freely within the ACT means that a person cannot be arbitrarily forced to remain in, or move to or from, a particular location in the ACT. The right includes freedom from physical and procedural impediments, such as a requirement for prior authorisation before entering a public park.

However, this right and the other rights in section 13 can be limited for a variety of reasons. Limitations on these rights that Australian and international courts accept to be lawful, in certain circumstances, include imprisonment, guardianship orders, involuntary treatment orders, parole board orders, family violence orders, and restrictions on leaving a territory when court proceedings are pending.

Besides the section 13 rights to move freely, enter and leave and choose one’s residence, everyone has a right to personal liberty, which is set out in section 18 of the Human Rights Act. Arbitrarily or unlawfully detaining a person will breach that right. As the United Nations (UN) Human Rights Committee has said in its General Comment 35, detention is also a particularly severe form of restriction of the right to freedom of movement, and that right and the right to personal liberty complement each other. The European Court of Human Rights has said that the distinction between restricting a person’s movement and depriving them of their liberty is “one of degree and intensity” (Guzzardi v Italy Judgment, 1980).

For more information on the right to personal liberty, see our section 18 factsheet.

Section 92 of the Australian Constitution also protects a form of freedom of movement within Australia. Section 92 requires that there be free “intercourse among the States”. The High Court has interpreted “intercourse” to include the movement of people across State borders (e.g. in Cole v Whitfield [1988] HCA 18; (1988) 165 CLR 360).

Cases

An ACT case on section 13 of the Human Rights Act was Temoannui v Ford [2009] ACTSC 69. A police officer had ordered the appellant in that case to leave a bar, where he had reportedly been fighting, as well as the square that the bar faced, and not return for six hours. The appellant initially left, but within an hour, went to a lane behind the bar. The Magistrates Court convicted him of contravening a police officer’s direction.

However, the Supreme Court overturned this conviction. It considered section 13 of the Human Rights Act along with provisions in the preamble and section 28 on how human rights may be limited. Having done so, the Court found that preventing public disorder by removing from a public place people who are reasonably likely to be engaging in that disorder “can be seen as reasonable”, but that the extent of restriction on people’s “statutory right to freedom of movement and association” must be the minimum necessary to achieve that objective. Noting that the police officer did not specify that the appellant should not return to the lane behind the bar, but only the bar and square, the Court decided that the officer’s direction did not cover the lane.

Relevant cases in other jurisdictions have included:

PJB v Melbourne Health & another (Patrick’s Case) [2011] VSC 327. Patrick was a 58-year-old mentally ill man who had been an involuntary patient in a psychiatric hospital for over ten years. Although not currently able to live independently, he still owned a home, which he was deeply attached to, and was meeting his financial obligations regarding that property. The hospital wished to move Patrick into supported accommodation and considered that appointing an administrator, who would likely sell Patrick’s home, would facilitate this. Consequently, a tribunal appointed an administrator with full control over Patrick’s estate. But the Victorian Supreme Court set aside this decision, finding that it drastically and unreasonably limited Patrick’s freedom to choose his residence, among other human rights. Appointing the administrator was not necessary, nor was it the least restrictive way, to meet Patrick’s medical and accommodation needs.
Antunovic v Dawson & another[2010] VSC 377. The applicant in this case was suffering from a mental illness for which she was being treated as an involuntary patient in a community care unit. She was allowed out in the day but instructed to spend nights at the unit. The applicant wished to live at her mother’s home. The Supreme Court of Victoria ordered her release, on the grounds that the restrictions imposed on her were substantial restraints on her freedom of movement and there was no lawful basis for them.
AC (Guardianship) [2009] VCAT 1186. In this case, a Victorian tribunal upheld an order that allowed a man with a mild intellectual disability to leave his psychiatric facility only if accompanied by staff members. The Tribunal concluded that although the order significantly limited, among other human rights, the man’s rights to move freely and choose his residence, the only less restrictive option – voluntary treatment – was not appropriate given his history of violent outbursts and lack of understanding about managing this behaviour.
DPP v Kaba & another[2014] VSC 52. Police stopped a car for a random check. The Supreme Court of Victoria upheld a magistrate’s decision that the persistent police questioning of a passenger in the car breached his human right to non-interference with his privacy, as discussed in the Commission’s section 12 factsheet. The Court found that the magistrate could equally have decided that it breached that passenger’sright to freedom of movement.
UN Human Rights Committee, Celepli v Sweden (Communication No. 456/1991). Mr Celepli was a Turkish citizen of Kurdish origin, living legally in Sweden. The Swedish authorities suspected him of being involved in terrorism and initially ordered his expulsion from Sweden, but then decided not to expel him because of the risk that he would be persecuted in Turkey. Instead, they required him to report to the police three times a week and not leave or change his town of residence, or employment, without the police’s prior permission. They reviewed these restrictions on Mr Celepli’s freedom of movement several times and eventually ended them. The UN Human Rights Committee accepted that there were compelling national security reasons for the restrictions and concluded that they did not violate Mr Celepli’s human rights.
Re AJ (a pseudonym) [2024] VSC 769. The applicant in this case had been convicted of sexual offences in Victoria in 2005. Ever since then, Victorian sex offenders registration legislation had required him to report his personal details in person to the Chief Commissioner of Police once a year, unless he was outside Victoria. It also required him to report his intention to travel before travelling, and his return to Victoria within seven days of returning there. In 2024, Victoria’s Supreme Court suspended these reporting requirements for the rest of the applicant’s life. It did this mainly on grounds other than human rights, but briefly discussed in its decision several rights including the applicant’s freedom to move within, and to enter and exit, Victoria. It found that the reporting requirements, including notification of travel, did not impede or affect this freedom.
European Court of Human Rights, Luordo v Italy Judgment, 2003. Mr Luordo was involved in bankruptcy proceedings for over fourteen years, during which time Italian bankruptcy law required him not to move from his place of residence without a judge’s authorisation. There was no sign that he had wished to move or been refused permission to do so in this period. Nonetheless, the Court concluded that his freedom of movement was violated. It in its view, while the restriction of Mr Luordo’s ability to move away was not objectionable “in itself” and “in principle”, it was disproportionate to the aim pursued (namely securing payment of Mr Luordo’s creditors) because of the length of time for which it continued.

Note:

This factsheet is not intended to be a substitute for legal advice.

Last updated January 2026.