Last updated 1 December 2020
Section 19 of the Human Rights Act 2019 (Qld) (Human Rights Act) provides that people who are in Queensland lawfully have the right to enter and leave Queensland, to move around freely within Queensland and to choose where to live.
Section 19 places a negative obligation on public entities in Queensland, preventing them from unduly restricting an individual’s movement within, to and from Queensland, including for residential purposes. Section 19 aims to protect the rights of Queenslanders to move freely in the state, and live where they wish. It is aimed at restrictions on movement that fall short of actual detention.
The right to freedom of movement only applies to people lawfully in Queensland.
It does not place a positive obligation on public entities to facilitate free movement for example by providing public transport or other similar initiatives.
Section 19 will also be subject to the general limitation provision in s 13 of the Human Rights Act. This provides human rights may be subject under law to reasonable limits, which are justified in a free and democratic society. See ‘Human Rights may be Limited’ for further explanation.
The right to freedom of movement in s 19 of the Human Rights Act may be engaged when:
- applying laws that limit freedom of movement (e.g. trespass laws, powers exercised under licensing laws, police powers, mental health laws, bail and sentencing powers)
- exercising emergency powers by the state such as under public health law and counter-terrorism laws
- making decisions by a public entity, court or tribunal about where a person should live (e.g. during proceedings under guardianship or mental health law)
- reviewing an application to end a public housing tenancy, where it is likely that a person’s right to freedom to choose where to live will be reasonably limited by state resources
- considering eviction of a tenant from public housing, including determining whether a person’s right to freedom to choose where to live may be reasonably limited by the state’s resources
- failing to review an involuntary treatment order as required by the Mental Health Act 2016 (Qld) (e.g. because statutory review timeframes were not adhered to).
These examples have been adapted from Australian cases. They are provided by way of example only, and are not a substitute for legal advice.