Ministry of Justice, New Zealand

Introduction to sections 12 - 18: Democratic and Civil Rights
Section 12 Electoral Rights
Section 13 - Freedom of Thought
Section 14 Freedom of expression
Section 15 Manifestation of religion and belief
Section 16 Freedom of peaceful assembly
Section 17 Freedom of association
Section 18 Freedom of Movement

Section 16 of the Bill of Rights Act is as follows:

Freedom of peaceful assembly
Everyone has the right to freedom of peaceful assembly.

Policy Triggers: do I need to consider section 16?

Are you developing policies or practices that may:

• Limit the ability of a person or group of persons from being able to exercise their right to peacefully protest (e.g., regulation of picketing in an employment setting)?
• Limit the ability of an individual or group of individuals to hold or participate in a public or private gathering?
• Limit the ability of a group of individuals to come together for a common purpose?

What every policy analyst needs to know about section 16

• The focus of any discussion about the right will be on the "peacefulness" of any assembly, in terms of both the actions of those gathering and the impact of the gathering (however peaceful) on others.
• Similar to the right to freedom of expression, peaceful assembly applies to gatherings for any purpose - however unpopular, offensive or distasteful - except violence.
• The right to assemble applies to private and public meetings.

Measures to achieve compliance

Restrictions on the right to assemble may be permissible if they:

• serve a legitimate interest,
• are no more than what is necessary to protect that interest, and
• clearly contemplate the person's right to continue to assemble peacefully where possible; that is, the restrictions must not effectively negate the right if other options are available.

You should also state the reasons for any restrictions in your policy or legislation.

Related rights and freedoms

As the introduction to this part of the guidelines noted the rights in sections 12 to 18 are complementary and interdependent. If your policy gives rise to issues of consistency with section 15 of the Bill of Rights Act, you should also consider whether the policy gives rise to issues under these other sections.

You should also consider whether your policy gives rise to issues of consistency with the right to freedom from arbitrary arrest or detention (section 22).

Further discussion of the meaning of section 16

It has been suggested that:

The decisive element for the determination of an 'assembly' - as opposed to a more or less incidental gathering - obviously is the intention and the purpose of the individuals coming together. [284]

The right to freedom of peaceful assembly is closely associated with the series of fundamental democratic rights that it appears next to in the Bill of Rights Act, such as the rights to freedom of expression, freedom of religion, freedom of association, and freedom of movement. It is, in this way, most clearly associated with an individual's participation in the public and private [285] demonstration of particular viewpoints.

Peaceful assembly

The White Paper emphasised the operative phrase "peaceful". It goes on to state that:

...obviously in many cases a balance has to be struck between the freedom - an important one - and other interests, such as those of the public to pass through the streets unimpeded, or of the wider community in the prevention of disorder. [286]

The comparable right in the International Covenant on Civil and Political Rights, Article 21, explicitly provides that restrictions on peaceful assembly can be placed where the interest of national security or public safety, public order (ordre public), the protection of public health or morals, or the protection of the rights and freedoms of others are at risk.

Because of the requirement that the assembly be peaceful, the Courts at times have acted in anticipation of what the likely impact of the assembly would have on others. [287]

There may be instances, however, where the actions of the demonstrators or protestors are peaceful, but their actions create disorder. In such cases there is a clear conflict between the peaceful intentions of the protestors and the public interest in keeping the peace. Under the common law [288] it was clear that:

[t]he law has recognised, as a matter of principle, that the attentions of an irate spectator can have the effect [of restricting the person's right to freedom of assembly and freedom of expression]... While agreeing that any such curtailment of liberty must be restricted, I cannot agree that the police should never have the power to require law-abiding citizens to comply with reasonable requests in order to avert a threatened breach of the peace. It must always be a question of what is reasonable in the circumstances, having regard to the test of a real possibility of a breach of the peace. [289]

In Bradford v Police [290] Robertson J made the point that:

...in any free society, the factor of protest is part of daily activity. It is a right for everyone, whether their cause is attractive or unattractive and whether the form of protest is attractive or unattractive. [291]

In this way the right to freedom of expression can be seen to complement the right to freedom of peaceful assembly in that it applies to all forms of expression - no matter how distasteful - except actual violence. [292]

The Bill of Rights Act makes it clear that if there is to be any interference with [the right to peaceful assembly] it can only be to the least extent necessary to preserve some other proper interest. [293] The law should also specify the reasons for those restrictions. [294]

Reasonableness of the restriction

The exercise of a statutory power that limits the right [295] can be resorted to only when reasonably necessary [296] and the measure taken must clearly contemplate the individual's right to continue to assemble peacefully where such options exist. [297]

The Justice and Electoral Select Committee endorsed Professor Joseph's submission that protestors' rights to peaceful assembly and freedom of expression were infringed in circumstances:

When the police concealed the protest from view, they did not, in effect, subject the protestors' rights to any limits that could be justified under section 5 of the New Zealand Bill of Rights Act 1990. Rather, the police denied the protestors their right to protest. A protest that is made ineffectual - one that cannot be seen - is no protest at all. The right is negated, not limited. [298]

Such a possibility suggests that public authorities adopt measures that enable lawful protests to take place where possible, without the participants being subjected to physical violence or other threats. [299]

The Court in Police v Beggs [300] set out a framework to assist law enforcement officers and public officials that we consider may be of value when developing your policies regarding public assemblies. The Court stated:

...what is reasonable is not to be determined only by an analysis of that "which is disorderly, unlawful, or interferes with others in the exercise of their rights and freedoms"... we think other relevant considerations might include whether the assembly is unreasonably prolonged, the rights of the occupier and the size of the assembly and its duration, and the observance of ordinances in place to ensure the smooth functioning of gatherings and demonstrations. [301]

Key cases

Police v Beggs [1999] 3 NZLR 615; Kapiti Coast DC v Raika [1997] NZRMA 218; Bradford v Police [1995] 2 HRNZ 405; Minto v Police (1991) 7 CRNZ 38; Williams v Police (1986) CRNZ 131; Plattform 'Artze für das Leben' v Austria A 139 (1988) 13 EHRR 204, E Ct HR.

History of the section

The White Paper

This section appears unchanged from that which was proposed in the White Paper.

Section 16 origins in international treaties and overseas legislation

Article 21 of the International Covenant on Civil and Political Rights provides that:

The right of peaceful assembly shall be recognised. No restrictions may be placed on exercise of this right other than those imposed in conformity with the law and which are necessary in democratic society in the interest of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others.

Article 20(1) of the Universal Declaration of Human Rights states:

(1) Everyone has the right to freedom of peaceful assembly and association.

Article 11(1) of the European Convention on Human Rights confirms that:

(1) Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and join trade unions for the protection of his interests.

Section 2(c) of the Canadian Charter provides that:

(c) Everyone has the freedom of peaceful assembly.

The First Amendment to the US Constitution provides that:

Congress shall make no law...abridging the...right of the people to peaceably assemble.

Section 17 Freedom of association

Section 17 of the Bill of Rights Act is as follows:

Freedom of association
Everyone has the right to freedom of association.

Policy triggers: do I need to consider section 17?

• Does your policy treat people differently on the basis of their membership of a group or association?
• Does your policy prohibit or create disincentives for membership in a group or association (including in a penal or criminal justice context)?
• Does your policy require a person to disclose their membership in a group or association?
• Does your policy compel an individual to belong to a professional body or workplace association?
• Does your policy offer any form of inducement to individuals who become members of a specific body or association?
• If your policies do offer inducements for membership, are the inducements such that they amount to a practical compulsion to join an association so as to obtain the relevant benefits?
• Does your policy confer some form of preferential treatment upon individuals who are willing to associate with a particular body?
• Does your policy confer a preference in terms of obtaining or retaining employment?
• Does your policy confer a preference in relation to employment terms and conditions?

What every policy analyst needs to know about section 17

• The right to freedom of association protects the right of all persons to join with others without interference by the state to attain a particular end.
• A person's decision to join or refrain from joining an organistion should be free from compulsion, intimidation, coercion, incentives or disincentives of a magnitude that effectively removes the exercise of choice.
• The right does not protect the acts of the association itself.
• The right also encompasses the freedom not to associate with others.
• The right includes both initial membership and ongoing involvement.
• While freedom of association is regarded as an inherent right, the right can be limited by statute in some circumstances, such as non-association orders as part of the sentence of an offender convicted of an offence punishable by imprisonment, if reasonably necessary to ensure he or she does not commit further offences punishable by imprisonment.

Measures to achieve compliance

If you are creating a new professional body or association, consider whether it is possible to create exemptions for people who do not wish to be members of that particular organisation or association.

Ask yourself:

• is membership required in order to achieve the objectives of the policy?
• is the criteria for allowing an exemption practicable?
• will those persons obtaining exemption be significantly disadvantaged by not being a member of the organisation?

If your policies offer inducements to persons who associate with certain bodies, ensure that the inducements are not so great as to effectively compel persons to join that body. For example, provided the benefits offered by your body may be obtainable elsewhere you would not be deemed to be compelling association. [302]

Related rights and freedoms

As the introduction to this part of the guidelines noted the rights in sections 12 to 18 are complementary and interdependent. If your policy gives rise to issues of consistency with section 15 of the Bill of Rights Act, you should also consider whether the policy gives rise to issues under these other sections.

Further discussion on the meaning of section 17

Section 17 recognises that persons should be free to enter into consensual arrangements with others and to promote the common interest objects of the associating group. [303] The right to freedom of association recognises the basic human desire to unite in order to pursue or achieve a common purpose, whether for political, religious, ideological, economic, commercial, labour, social, sports, cultural, or professional objectives. [304] The right to freedom of association therefore extends not only to the initial membership of an association but also to the ongoing involvement with that association.

While freedom of association is regarded as an inherent right, the right can be limited by statute in some circumstances. For example:

• section 28A of the Criminal Justice Act 1985 allows a court to make a non-association order as part of the sentence of an offender convicted of an offence punishable by imprisonment, if satisfied that the order is reasonably necessary to ensure he or she does not commit further offences punishable by imprisonment. Such an order prohibits the offender from associating with a specified person, people, or class of persons, for a specified period of up to 12 months;
• section 6A of the Summary Offences Act 1981 makes it an offence for a person to habitually associate with a violent offender in circumstances from which it can reasonably be inferred that the association will lead to the commission of a crime involving violence by that person or the violent offender. The section requires that the person must have been warned previously by a constable on at least three separate occasions that his or her continued association with that violent offender could lead to such a charge, and the warning must have been given within seven years after the date of the violent offender's last conviction for crimes involving violence;
• sections 27 to 30 of the Commerce Act 1986 prohibit individuals or organisations from entering into an arrangement or agreement with others for the purposes of lessening competition in the marketplace.

Objectives of the group

Although the intention of the right is to enable individuals to join with others for a common purpose without interference, the right concerns the ability to associate - it does not extend to protecting achievement of the group's purpose. The rationale for this differentiation appears to be that to extend the right to include the right to fulfil the objectives would confer greater entitlements on the individuals as a group than they have as individuals.

The Canadian Supreme Court in a series of industrial relations cases [305] has taken the view that because the constitutional right to freedom of association is a right exercised by an individual, the scope of that right extends only to what an individual as an individual can perform. That is, if the individual has no fundamental right to undertake an activity, then neither does the organisation. The organisation can exercise only those rights that individual members have on behalf of those members. The right to freedom of association is not intended to protect activities that an association undertakes, but the ability of individuals to gather for the purpose of pursuing the collective exercise of constitutional rights. [306] For example, the right to freedom of association does not confer on a trade union the right to strike, but it does enable members of a trade union to collectively express their opinion about workplace practices.

The ability of groups to act as a group to achieve specific objectives is therefore dependent on the nature of specific legislative frameworks. The objectives of the group are not of a kind anticipated by the fundamental nature of the right to freedom of association.

There is some indication from overseas courts that suggests that this position may be shifting to a point where the right to the freedom of association is considered as being more purposive. [307]

The freedom not to associate

Like many civil and political rights, the right to freedom of association carries with it the implication that a person should not be compelled to associate. [308] There are two aspects to the freedom not to associate:

1. the right of a group, associated on behalf of its members, not to be compelled to associate with any particular individual; and
2. the right of an individual not to be compelled to associate with a group of persons.

The first aspect arises in circumstances where the freedom to associate (and not to associate) may intersect with anti-discrimination values as expressed in the prohibition on discrimination under section 19 of the Bill of Rights Act and under the Human Rights Act 1993. For example, section 44 of the Human Rights Act prohibits discrimination in the provision of goods and services; however, this prohibition does not apply to access to membership of a club or to the provision of services or facilities to members of a club. Similarly, section 38 of the Human Rights Act prohibits discrimination by industrial and professional associations, qualifying bodies, and vocational training bodies, but provides an exception to allow for freedom of religion. [309]

The second aspect highlights the need for an individual's membership of an organisation to be based on informed consent. A person's decision to join or refrain from joining an organisation should be free from intimidation or coercion, or the existence of incentives or disincentives. In other words, the exercise of that choice must be free from outside pressures of a magnitude whereby they in effect remove the exercise of choice. [310]

Despite this, section 5 of the Bill of Rights Act may have some bearing on whether the compulsory membership of a professional organisation infringes the right to freedom of association. The courts in New Zealand have not considered this matter, but in Europe the courts have held that where:

• a person practises a profession;
• the exercise of which affects the general interest;
• there is a requirement to belong to a regulated professional organisation; and
• there is a public interest in maintaining professional standards,

then that requirement falls outside the scope of the freedom of association. [311]

From a Bill of Rights Act standpoint, it is more likely that the requirement to belong to such an organisation would be assessed from the perspective of whether the compulsory membership was justifiable. However, the same considerations are applicable.

The right to freedom of association could also extend to discriminatory treatment based on an individual's association with another individual or group. For example, a proposal that gang members who commit crimes should receive harsher sentences than non-gang members may come within this right. Further, if there is a possibility that a person may suffer discrimination as a result of a particular association, then the right may also extend to protection from compulsory disclosure of membership. [312]

Key cases

Air New Zealand Ltd v Trustees of the New Zealand Airline Pilots Mutual Benefit Fund [2000] 1 NZLR 41; Dunmore v Ontario Attorney-General [2001] 3 SCR 1016; Delisle v Canada (Deputy Attorney-General) [1999] 2 SCR 989; Reference re Public Service Employee Relations Act (Alta) [1987] 1 SCR 313; PSAC v Canada [1987] 1 SCR 424; RWDSU v Sask. [1987] 1 SCR 460.

History of the section

The White Paper

The White Paper originally contained a subclause that clarified the scope of this section. It stated:

This right includes the right of every person to form and join trade unions for the protection of that person's interests consistently with legislative measures enacted to ensure effective trade union representation and to encourage orderly industrial relations.

This was done to ensure consistency with New Zealand's reservation of article 22 of the ICCPR (set out below). Despite this reservation, the Justice and Electoral Select Committee determined that the subclause was an unnecessary feature of this section and it was deleted. [313]

Section 17 origins in international treaties and overseas legislation

Article 22 of the International Covenant on Civil and Political Rights (ICCPR) provides that:

1. Everyone shall have the right to freedom of association with others, including the right to form and join trade unions for the protection of his interests.
2. No restrictions may be placed on the exercise of this right other than those which are prescribed by law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others. This article shall not prevent the imposition of lawful restrictions on members of the armed forces and of the police in their exercise of this right.
3. Nothing in this article shall authorise States Parties to the International Labour Organisation Convention of 1948 concerning Freedom of Association.

New Zealand's reservation to Article 22 provides:

The Government of New Zealand reserves the right not to apply article 22 as it relates to trade unions to the extent that existing legislative measures, enacted to ensure effective trade union representation and encourage orderly industrial relations, may not be fully compatible with that article.

Article 20 of the Universal Declaration of Human Rights provides that:

1. Everyone has the right to freedom of peaceful assembly and association.
2. No-one may be compelled to belong to an association.

Article 11 of the European Convention states:

1. Everyone has the right to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.
2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of armed forces, or of the police or of the administration of the State.

Section 2(d) of the Canadian Charter provides that:

Everyone has the following fundamental freedoms:
. . .
d) freedom of association.

Section 18 Freedom of Movement

Section 18 of the Bill of Rights Act is as follows:

Freedom of movement
(1) Everyone lawfully in New Zealand has the right to freedom of movement and residence in New Zealand.
(2) Every New Zealand citizen has the right to enter New Zealand.
(3) Everyone has the right to leave New Zealand.
(4) No one who is not a New Zealand citizen and who is lawfully in New Zealand shall be required to leave New Zealand except under a decision taken on grounds prescribed by law.

Policy triggers: do I need to consider section 18?

Are you working on a policy or developing a practice that:

• limits the ability of individuals to move freely through, remain in, or enter or depart from, any form of public space;
• places conditions on the ability of a person to live within the community;
• enables the state to monitor or trace the movements of a person within the community;
• limits the ability of any individual to choose where he or she wishes to reside;
• requires persons to fulfil certain requirements before they are able to leave and enter New Zealand at will; or,
• seeks to require an individual to leave New Zealand?

If you answer yes to any of these questions, then you need to consider whether your policy or practice is consistent with section 18 of the Bill of Rights Act.

What every policy analyst needs to know about section 18

• Section 18 recognises:
  • the right to move freely within the country;
  • the right to choose a place of residence within the country;
  • the right to be free to leave and enter New Zealand (including the right to obtain the necessary travel documents); and,
  • the right not to be expelled from the country except in accordance with the law.
• The rights to freedom of movement and residence are subject to the person being lawfully in New Zealand; that is, as long as they comply with the conditions of their admission (as imposed by and under the Immigration Act 1987).
• The rights set out in section 18 have more general application than just immigration matters.
• Freedom of movement includes the right not to be forced to move to, or from, a particular location.
• The right includes freedom from physical barriers and procedural impediments (e.g., requirements for prior notification or authorisation from a public authority before entering a public park or participating in a public demonstration on a public thoroughfare; inability to enter or depart New Zealand until a certain condition is met, or a prohibition on particular forms of activity in public areas such as reserves).
• Restrictions on movements imposed by a Court as part of sentence or release conditions may raise issues of freedom of movement, and may also raise issues of arbitrary detention (section 22). This remains an unsettled area in the European Courts.

Measures to achieve compliance

Restrictions on the exercise of these rights may be justifiable in certain contexts where they can be shown to be necessary to, and are imposed only to the extent necessary to achieve, the objectives of preserving:

• national security
• public safety
• public order, or
• public health.

The powers used to preserve such objectives must also be rational and proportionate. If, for example, you are considering restricting open access to a park or reserve for reasons of public order, consider: the period of time during which the restriction is to remain in place, the criteria under which persons are to be granted/denied access; and the extent of the area covered by the restriction.

Related rights and freedoms

As the introduction to this part of the guidelines noted the rights in sections 12 to 18 are complementary and interdependent. If your policy gives rise to issues of consistency with section 18 of the Bill of Rights Act, you should also consider whether the policy gives rise to issues under these other sections.

You should also whether your policy gives rise to issues of consistency with

• the right to freedom from arbitrary arrest or detention (section 22);
• the right of persons charged with an offence to release on reasonable terms and conditions (section 24(b)).

Further discussion on the meaning of section 18

The commentary in the White Paper concentrates on common law principles and the effect given to the right. The common law recognised the right to freedom of movement to the extent that it applied to all movement unless such movement is expressly prohibited or limited by law. [314] Although there is the presumption that an individual can roam at will, the right to freedom of movement is infringed on a regular basis by a range of laws that govern where we reside or where we are able to move. These laws include, for example:

• the law of trespass, which limits an individual's right to enter onto private property;
• road transport laws which govern an individual's use of their motor vehicle on the roads;
• planning and zoning laws that determine where we can reside or conduct trade; and
• lawfully imposed sentences of imprisonment and bail.

The right to enter and move within New Zealand is not qualified in any way other than by the fact that the person has to be lawfully in the country. This requirement refers to domestic law, which may lay down the conditions to be fulfilled. Overseas visitors who are provisionally allowed to remain in this country can only be regarded as lawfully in the country as long as they comply with the conditions of their admission. [315] The provision is also not available to those whose residence permit has been revoked. [316]

The right to leave New Zealand carries with it the right to obtain the necessary travel documents. [317] Any restrictions placed on the availability of a passport would need to be considered in light of the restrictions that are placed on the ability of a person to travel abroad. [318] The right to leave New Zealand also exists independently of the individual's motivations for leaving the country or his or her destination.

Is section 18 limited to immigration policy?

It appears the "freedom of movement" referred to in section 18(1) is not coloured by issues of immigration that influence the remainder of section 18. The District Court in Kerr v Attorney-General [319] was not inclined to find that the reference to immigration matters limited the scope of the right to freedom of movement. The Court found instead that the right to freedom of movement also extended to the right to move freely down highways. [320] The right to the freedom of movement would also appear to include the right not to be forced to move to, or from, a particular location. In other words, the right includes the right of an individual to move at any time he or she chooses. [321]

This approach to section 18(1) is consistent with statements from the United Nations Human Rights Committee which have said, in relation to article 12 of the ICCPR, that "[L]iberty of movement is an indispensable condition for the free development of a person." It is also consistent with the approach of the European Court of Human Rights (see below). Although the District Court did not address the issue, the decision in Kerr appears to take into account the relationship section 18(1) has with other rights in the Bill of Rights Act. [322]

New Zealand caselaw appears to be broadly consistent with the approach taken by the European Court.

The right to freedom of movement is also not restricted to physical barriers preventing travel, but includes procedural impediments, such as prior notification or prior authorisation. In addition, restrictions on movement, for example limiting the ability of a person to enter particular areas, which are imposed by a court as part of a sentence or conditions of release, may raise issues of freedom of movement. Where the extent of restriction of movement is severe, this is likely to also raise issues under section 22 (right not to be arbitrarily arrested or detained). The following European Court cases illustrate this point:

• Guzzardi v Italy [323]
  The Court in Guzzardi's case took the view that the confinement of an individual in a small area, between set hours, over a prolonged period during which he had to report to authorities at set times and could only leave under strict supervision arrangements, was a deprivation of liberty.
• Raimondo v Italy [324]
  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 held by the Court in this case to be a breach of the freedom of movement.
• Van den Dungen v The Netherlands [325]
  An injunction prohibiting an anti-abortionist campaigner from entering an area within 250 metres of an abortion clinic has also been regarded as an interference with the right to freedom of movement.

Key cases

Elika v Minister of Immigration [1996] NZFLR 257; [1996] 1 NZLR 741; Amosa v Chief Executive of the Department of Labour 3/4/2000, Gendall J, HC Wellington, AP 208-98; Kerr v Attorney-General [1996] DCR 951; Police v Geiringer [1990-92] 1 NZBORR 331; Melser & Ors v Police [1967] 2 NZLR 437; Guzzardi v Italy November 6 1980, Series A, No. 314; 20 EHRR 301; Raimondo v Italy February 22, 1994, Series A No. 281-A; 18 EHRR 237; Van den Dungen v The Netherlands 22838/93 Netherlands, (Dec) February 22, 1995, 80-A DR 147.

History of the section

The White Paper

Section 18 is identical to the right found in the White Paper.

Section 18 origins in international treaties and overseas legislation

The right to freedom of movement is recognised in international law.

Article 12 of the International Covenant on Civil and Political Rights (ICCPR) provides that:

1. 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.
2. Everyone shall be free to leave any country, including his own.
3. 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 recognised in the present Covenant.
4. No-one shall be arbitrarily deprived of the right to enter his own country.

Article 13 of the ICCPR provides that:

An alien lawfully in the territory of a State Party to the present Covenant may be expelled therefrom only in pursuance of a decision reached in accordance with law and shall, except where compelling reasons of national security otherwise require, be allowed to submit the reasons against his expulsion and to have his case reviewed by, and be represented for the purpose before, the competent authority or a person or personally designated by the competent authority.

Article 13 of the Universal Declaration of Human Rights provides that:

1. Everyone has the right to freedom of movement and residence within the borders of each state.
2. Everyone has the right to leave any country, including their own, and to return to their own country.

Article 2 of the Fourth Protocol of the European Convention on Human Rights provides:

1. 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.
2. Everyone shall be free to leave any country, including his own.
3. No restrictions shall be placed on the exercise of these rights other than such as are in accordance with law and are necessary in a democratic society in the interests of national security or public safety, for the maintenance of ordre public, for the prevention of crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

The rights set forth in paragraph 1 may also be subject, in particular areas, to restrictions imposed in accordance with law and justified by the public interest in a democratic society.

Footnotes:

284. Kivenmaa v Finland (412/990) Mr Hendl (dissenting).
285. For the idea that the right extends to private as well as public meetings, see Application 8191/78 Rassamblement Jurrasien Unité v Switzerland 17 DR 93 (1979), EComHR.
286. This is an area in which the power of local authorities to make and administer by-laws may be critical. Unfettered powers to prevent meetings or processions might be questioned because of the lack of "limits prescribed by law" in terms of [section 5]. It may also seem that in some cases the interest to be protected cannot be seen as justifying the interference with an important freedom. See The White Paper para 10.62.
287. Kapiti Coast DC v Raika [1997] NZRMA 218. In this case the Environment Court granted an interim enforcement order that prohibited the respondents using certain residential premises as gang headquarters without a resource consent. The Court found that this was a reasonable limit on the respondents' right of assembly in light of the potential danger to residents, the fear of many residents, and the general disruptive effect upon the neighbourhood. On a similar note see sections 86 and 87 of the Crimes Act 1961.
288. See, for example, Williams v Police (1986) 2 CRNZ 131.
289. Williams v Police (1986) 2 CRNZ 131, 136. See also Minto v Police (1991) 7 CRNZ 38, 41.
290. Bradford v Police [1995] 2 HRNZ 405.
291. Bradford v Police [1995] 2 HRNZ 405.
292. As long as the assembly is lawful, see Bradford v Police [1995] 2 HRNZ 405
293. Bradford v Police [1999] 2 HRNZ 405; Director of Public Prosecutions v Jones [1999] 2 WLR 625.
294. See pages 42-43 of "Inquiry into matters relating to the visit of the President of China to New Zealand in 1999". Report of the Justice and Electoral Committee New Zealand House of Representatives, December 2000.
295. See, for example, section 23 of the Summary Offences Act 1981 which enables certain law enforcement officers to arrest a person obstructing an officer in the course of their duties
296. Police v Beggs [1999] 3 NZLR 615, p 627.
297. See Minto v Police (1991) 7 CRNZ 38, 41 where the Court noted that the decision by the police to move the protestors away from the venue by some 50m did not prevent the protestors from being able to maintain a presence or effectively voice their position.
298. Pages 37-39 of "Inquiry into matters relating to the visit of the President of China to New Zealand in 1999". Report of the Justice and Electoral Committee New Zealand House of Representatives, December 2000 [italics in original, bold added].
299. Plattform 'Artze für das Leben' v Austria A 139 (1988) 13 EHRR 204, E Ct HR.
300. Police v Beggs [1999] 3 NZLR 615, p 629.
301. Police v Beggs [1999] 3 NZLR 615, p 630.
302. As per Randerson J, Air New Zealand Ltd v Trustees of the New Zealand Airline Pilots Mutual Benefit Fund [2000] 1 NZLR 418.
303. Collymore v Attorey General [1970] AC 538, at p 548.
304. Nihal Jayawickrama (2002) The Judicial Application of Human Rights Law: National, Regional and International Jurisprudence, Cambridge, Cambridge University Press, p 738.
305. Reference re Public Service Employee Relations Act (Alta) [1987] 1 SCR 313 per McIntyre J at p 407. This case should be read together with PSAC v Canada [1987] 1 SCR 424 and RWDSU v Saskatchewan [1987] 1 SCR 460 (the Labour Trilogy). In each of these cases the majority of the Court held that legislation that prevented a workers' association from taking effective industrial action was not inconsistent with the right to freedom of association.
306. For a European perspective see Schmidt and Dahlstrom v Sweden February 6, 1976, Series A, No 20; 1 EHRR 632.
307. Dunmore v Ontario Attorney-General [2001] 3 SCR 1016; Delisle v Canada (Deputy Attorney-General) [1999] 2 SCR 989. The minority in the Labour Trilogy cases considered that the purpose of the right to freedom of association is to protect the right of individuals to act collectively in the pursuit of common interests. Workers have an inherent interest in safe conditions in the workplace and are likely to act in concert to secure these goals. Because an individual cannot strike, workers necessarily must associate for the purpose of their collective interests in the workplace; the right to take industrial action (including a strike) is an inevitable corollary of this association.
308. Air New Zealand Ltd v Trustees of the New Zealand Airline Pilots Mutual Benefit Fund [2000] 1 NZLR 418. See also, the Canadian Supreme Court decision Lavigne v Ontario Public Service Employees Union [1991] 2 SCR 211.
309. Section 39(1) states "Nothing in section 38 of this Act shall apply where the authorisation or qualification is needed for, or facilitates engagement in, a profession or calling for the purposes of an organised religion and is limited to one sex or to persons of that religious belief so as to comply with the doctrines or rules or established customs of that religion."
310. Air New Zealand Ltd v Trustees of the New Zealand Airline Pilots Mutual Benefit Fund [2000] 1 NZLR 418, 429; Chassagnou & Ors v France Applications 25088/94 28331/95, and 28443/95, 29/04/1999.
311. Nihal Jayawickrama (2002) The Judicial Application of Human Rights Law: National, Regional and International Jurisprudence, Cambridge, Cambridge University Press, pp 745-748.
312. Paul Rishworth et al. (2003) The New Zealand Bill of Rights, p 359.
313. See Justice and Law Reform Select Committee, "Inquiry into the White Paper- A Bill of Rights for New Zealand"
314. The White Paper pp 84-85.
315. Elika v Minister of Immigration [1996] NZFLR 257; [1996] 1 NZLR 741.
316. Amosa v Chief Executive of the Department of Labour 3/4/2000, Gendall J, HC Wellington, AP 208-98.
317. United Nations Human Rights Committee General Comment 27 (1999)
318. On the issuing of passports, see Nihal Jayawickrama The Judicial Application of Human Rights Law, pp 452-459.
319. Kerr v Attorney-General [1996] DCR 951.
320. There is Canadian case law that states that the right of an individual to use the public highways is a right which comes within the concept of the right to liberty. See Re Rowland and the Queen 10 DLR (4th) 724, 13 CCC (3d) 367, 33 Alta LR (2d) 252; Re Gresham Produce Co. Ltd and Motor Transport Board 14 DLR (4th) 722 varied, 22 DLR (4th) 520.
321. Police v Geiringer [1990-92] 1 NZBORR 331, 338. See, too, the decision of the Supreme Court on appeal in Melser & Ors v Police [1967] 2 NZLR 437. See Newberry, R. (1995) "From the District Inspector's Office..." in Mental Health & the Law (5) August 1995 p58. Newberry discusses the implications of the compulsory treatment jurisdiction in the Mental Health (Compulsory Assessment and Treatment) Act 1992.
322. It would be difficult, for example, to give effect to the right to peaceful assembly, without giving effect to the right to freedom of movement.
323. Guzzardi v Italy November 6 1980, Series A, No. 314; 20 EHRR 301. The European Court in Guzzardi held that there was a technical distinction to be made between the deprivation of liberty and freedom of movement and that the difference in application of the rights was one of degree and intensity rather than substance or nature. Despite this, the considerations remain similar.
324. Raimondo v Italy February 22, 1994, Series A No. 281-A; 18 EHRR 237.
325. Van den Dungen v The Netherlands 22838/93 Netherlands, (Dec) February 22, 1995, 80-A DR 147. The infringement was held to be justified for the protection of the rights of others having regard to the limited area affected and duration of the measure.