Right to freedom of movement
Section 12 of the Charter of Human Rights and Responsibilities (the Charter) gives every person who is lawfully in Victoria the right to move freely within the state, including to enter and leave it, and the freedom to choose where to live. The Charter applies to public authorities in Victoria, such as state and local government departments and agencies, and people delivering services on behalf of the government.
How does the law protect me?
Right to move freely within Victoria
Under the Charter, you have the right to move freely within Victoria. This includes being able to enter or leave the state whenever you want to. You cannot be forced to remain in a particular location, or forced to move to a different location, without good reason. This also means you should not face any physical barriers or other procedures when moving about in Victoria, such as being required to seek authorisation before you can enter a public park or participate in a demonstration in a public place.
The right to enter and leave the state is also protected by section 92 of the Australian Constitution, which guarantees freedom of ‘interstate intercourse’, including the movement of both goods and people.
Right to choose where to live
Under the Charter, you have the right to choose where to live. It’s important to note, however, that other laws such as those related to trespass, protected areas like national parks, or supervision orders may limit this right.
Can this right be limited in any way?
In some circumstances, one person’s right may come into conflict with the right of another person or group. In these circumstances, it can be necessary to limit or restrict these rights. Under section 7(2) of the Charter, rights may be limited in certain circumstances, but it must be reasonable, necessary, justified and proportionate.
In certain situations, a public authority may be able to limit your freedom of movement – for example, the police have powers to ask people to ‘move on’ in some places, and young people under 18 years old may not be able to enter licensed premises such as bars or gambling venues. Guardianship arrangements, lawful detention, involuntary treatment orders, orders from the Parole Board, family violence intervention orders are other examples of when your freedom of movement may be limited.
Supervision orders – Secretary, Department of Justice v AB  VCC 1132 (28 August 2009)
In 2009, the County Court of Victoria heard a case in which a person who had been convicted of a criminal offence and served time in prison was placed on a supervision order. The court found that this was a reasonable limitation on this right to freedom of movement because of the risk of him committing another offence.
Restricted movement – AC (Guardianship)  VCAT 1186 (8 July 2009) or Antunovic v Dawson & Anor  VSC 377 (25 August 2010)
A man with a mild intellectual disability was subject to an order which only allowed him to leave his psychiatric facility if accompanied by staff members. VCAT found that the only less restrictive option available – voluntary treatment – was not appropriate because the man had a history of violent outbursts.
Freedom of movement – PJB v Melbourne Health and State Trustees Ltd  VSC 327 (19 July 2011)
A man with a mental health condition was living in a care facility. The mental health service wanted to sell the man’s house as it alleged the man could not manage his own finances and refused to take his medication. The Supreme Court of Victoria found that allowing control of the man’s house to be transferred so that it could be sold would breach his right to freedom of movement (including his right to choose where he lived).
How we can help
We can give you information about Victoria’s Charter of Human Rights and Responsibilities but the Victorian Equal Opportunity and Human Rights Commission does not handle complaints related to the Charter.
If you would like more information about the Charter and your rights contact us.
For information about the legal history of this right, case law or Australia’s human rights framework, you can read more in our Policy and Legal sections of this website.
How to make a human rights complaint
If you think your human rights have been breached, you should contact the Victorian Ombudsman.
If you want to make a complaint about police conduct, contact the Independent Broad-based Anti-corruption Commission.