What Are Freedom of Employment and Freedom of Movement?

Two qualified rights in the Constitution deal with the practical freedom to make a living and to go where you choose. They are structured differently: section 48 belongs to every person; section 52 is a special right of citizens.

Section 48 — freedom of employment

Three features are worth drawing out.

• “Qualifications (if any) lawfully required.” The right is not a right to practise a profession without meeting its lawful entry requirements. It is a right not to be excluded from a calling for which you do hold what the law requires.
• “Regulated or restricted voluntarily.” This is the contractual limb. A person may bind themselves — by an employment contract, a restraint clause, a bond — and section 48 does not undo a freely accepted restriction. What it does not sanction is compulsion: see section 43 on forced labour.
• Restrictions on non-citizens are expressly permitted. That is the constitutional basis of work-permit and localisation regimes, and of the Public Employment (Non-citizens) Act (Chapter 342).

Section 48(2) adds that subsection (1) does not prohibit reasonable action or provision for encouraging persons to join industrial organizations, or for requiring membership of an industrial organization for any purpose — a deliberate qualification of the “not to belong” limb of section 47.

Section 52 — freedom of movement

Subject to subsection (3), no citizen may be deprived of the right:

• to move freely throughout the country;
• to reside in any part of the country; and
• to enter and leave the country,

except in consequence of a law providing for deprivation of personal liberty in accordance with section 42.

That cross-reference is important. Movement may be curtailed by lawful detention — but only detention that falls within one of the permitted grounds in section 42(1).

Section 52(3) allows a law complying with section 38 to regulate or restrict the right, and expressly mentions two categories: persons convicted of offences, and members of a disciplined force.

Restrictions on movement inside the country

Local restrictions on movement — curfews, roadblocks, requirements for permission to travel between areas — are among the most commonly encountered limits on this right. Each must be traceable to a valid law:

• a law complying with section 38 (certified as passed by an absolute majority, specifying the right restricted, necessary for a listed public interest, and reasonably justifiable);
• an emergency law under Part X — which, under section 40, must still be applied so as not to derogate a right more than reasonably necessary (see rights during an emergency); or
• a lawful deprivation of liberty under section 42.

A demand for a letter of permission to travel, with no statutory foundation, has no legal force — section 32(2)(c) says no person is obliged to do anything that is not required by law.

Non-citizens and movement

Section 52 protects citizens. The position of non-citizens is governed by the Migration Act (Chapter 16) and by section 42(1)(g), which permits detention to prevent unlawful entry or to effect expulsion, extradition or other lawful removal. Non-citizens retain the rights of all persons, including sections 36, 37 and 42: see Namah v Pato [2016] PGSC 13; SC1497.