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Right to security of the person and freedom from arbitrary detention

This material is provided to persons who have a role in Commonwealth legislation, policy and programs as general guidance only and is not to be relied upon as legal advice. Commonwealth agencies subject to the Legal Services Directions 2005 requiring legal advice in relation to matters raised in this Guidance Sheet must seek that advice in accordance with the Directions.


What is the right to security of the person and freedom from arbitrary detention?

The right to personal liberty requires that persons not be subject to arrest and detention except as provided for by law, and provided that neither the arrest nor the detention is arbitrary. The right applies to all forms of detention where people are deprived of their liberty.

The right to security requires the country to provide reasonable measures to protect a person's physical security.

Where does the right to security of the person and freedom from arbitrary detention come from?

Australia is a party to seven core international human rights treaties. The right to security of the person and freedom from arbitrary detention is contained in article 9 of the International Covenant on Civil and Political Rights (ICCPR). Article 9 also provides a number of other rights for persons who are arrested or detained.

See also article 5 of the Convention on the Elimination of All Forms of Racial Discrimination (CERD) , article 37 of the Convention on the Rights of the Child (CRC) and article 14 of the Convention on the Rights of Persons with Disabilities (CRPD).

When do I need to consider the right to security of the person and freedom from arbitrary detention?

You will need to consider the right to security of the person and freedom from arbitrary arrest or detention when you are working on legislation, a policy or a program that:

  • permits a public authority to detain a person, including in immigration detention facilities
  • provides for special powers of detention for particular purposes, including national security
  • grants a power of arrest
  • makes provision for the granting of bail
  • allows a public authority to cordon off an area and control movement within it
  • authorises the detention of a person for reasons pertaining to mental health or contagious disease
  • relates to the management of places of detention, or
  • provides assistance to a foreign country to strengthen its detention capabilities.

This list should not be regarded as exhaustive.

The rights provided for in the ICCPR apply to individuals within the territory of the country and subject to its jurisdiction. The UN Human Rights Committee has stated that in some circumstances a person outside a country's territory could be considered subject to its jurisdiction. Australia has accepted that there may be exceptional circumstances in which the rights provided for in the ICCPR may be relevant beyond the territory of a country. For instance, where members of the Australian Defence Force who are deployed overseas detain a person, the right to security of the person and freedom from arbitrary detention would be among the guarantees in the ICCPR that would potentially apply. However, during armed conflict, international humanitarian law, as the body of law that applies specially to the circumstances of armed conflict, is the relevant standard under which compliance with the right to security of the person and freedom from arbitrary detention is assessed.

What is the scope of the right to security of the person and freedom from arbitrary detention?

The rights protected by article 9 of the ICCPR are:

  • to liberty and not to be subjected to arbitrary arrest or detention
  • to security
  • to be informed of the reason for arrest and any charges
  • to be brought promptly before a court and tried within a reasonable period, or to be released from detention
  • to challenge the lawfulness of detention.

Article 9 also provides that persons should not generally be detained in custody pending trial. Release may be made subject to certain guarantees.

Liberty and not to be subjected to arbitrary arrest or detention

The right to personal liberty requires that persons not be subject to arrest and detention except as provided for by law, and provided that the law itself and the manner of its execution are not arbitrary. The UN Human Rights Committee has made clear that an arrest or detention may be permissible under domestic law, but may nevertheless be arbitrary. The Committee has stated that 'arbitrariness' is not to be equated with 'against the law', but must be interpreted more broadly to include elements of inappropriateness, injustice and lack of predictability.

The right arises in relation to all forms of detention, including criminal justice, and administrative detention for purposes such as immigration processing and removal of unlawful non-citizens and mental health or containment of contagious diseases.

Domestic law should prescribe the grounds and procedures for arrest and detention. An arrest or detention provided for by domestic law may nevertheless be contrary to article 9 if it is arbitrary. Arbitrariness may result from a law which is vague or allows for the exercise of powers in broad circumstances that are not sufficiently defined. An arrest or detention may be arbitrary if it is not reasonable and necessary in all circumstances, for example, to prevent flight, interference with evidence or the recurrence of crime.

The Committee has stated that detention that initially complies with article 9 can become arbitrary if it continues beyond the period for which it can be justified, and that, where a person has initially been detained for a specific purpose, there must be an appropriate justification to continue detention once the original purpose no longer applies. The Committee has also stated that, where there are less intrusive measures than detention available that can achieve the same end, they should be used. Examples include imposing reporting obligations, sureties or other conditions A detained person should be able to challenge the lawfulness of detention at the outset, and also at regular intervals, in the case of prolonged detention.

Security

The right to security requires the country to provide reasonable and appropriate measures, within the scope of those available to public authorities, to protect a person's physical security, whether or not the person is in detention. This obligation arises when public authorities know or ought to know of the existence of a real and imminent risk to the physical security of an identified individual or group of individuals from the criminal acts of another party.

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Brought promptly before a court and tried within a reasonable period, or to be released from detention

In relation to the right to be brought promptly before a court, the Human Rights Committee has stated that, while this is a matter for domestic law, delays should not exceed a few days. Whether a period of pre-trial detention complies with article 9 will depend on a range of factors, including the seriousness of the charge and the severity of possible penalties, any danger that the accused will flee, any danger that the accused might pose for the community and the question of whether any delay is due to the conduct of the prosecution. Article 9 also provides a right to be tried for criminal matters within a reasonable period. This right relates to persons in pre-trial detention, and is to be contrasted with the right under article 14 to be tried without undue delay, which relates to the period before a person's trial, whether the person is on remand or has been granted bail.

The right in article 9 to be free from arbitrary detention, and the provision that persons should not generally be detained in custody pending trial in criminal matters, are relevant to laws providing for bail, and in particular to those that impose a presumption against bail for particular categories of offences or offenders.

Challenge the lawfulness of detention

The right in article 9(4) to challenge the lawfulness of detention requires that a court be empowered to make a decision on such a challenge and to order a person's release if it finds that the detention is unlawful. This encompasses the principle of habeas corpus, long recognised by the common law. The Human Rights Committee has stated that review of detention by a Minister rather than a judicial officer will not be sufficient to comply with this right. The Committee has also stated that the availability of habeas corpus will not satisfy article 9 if it is limited to situations in which detention is unlawful under domestic law. According to the Committee, if a court has no power to order release in cases where detention is lawful under domestic law but nevertheless contrary to article 9, then the requirement in article 9(4) to be able to challenge the lawfulness of detention will not be satisfied. Accordingly, legislation, policies and programs that authorise the detention of persons should take account of the requirement in article 9(4) for the detainee to be able to challenge the lawfulness of detention before a court, which should be able to order the detainee's release if it finds the detention unlawful.

The Human Rights Committee has stated that the right to compensation in article 9(5) applies even if the detention is permitted by domestic law, but contrary to article 9.

Children

Children enjoy the rights provided for under article 9 of the ICCPR in the same way as adults. In addition, under article 37 of the Convention on the Rights of the Child, the arrest, detention or imprisonment of a child shall be used only as a measure of last resort and for the shortest appropriate period of time.

People with disability

Under article 14 of the CRPD, the existence of a disability shall in no case justify a deprivation of liberty.

Can the right to security of the person and freedom from arbitrary detention be limited?

Derogation

Under article 4 of the ICCPR, countries may take measures derogating from certain of their obligations under the Covenant, including the right to security of the person and freedom from arbitrary detention‘in time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed'. Such measures may only be taken ‘to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origins'.

Limitation

The only limitations on the rights to liberty are those provided for in article 9 itself, namely that deprivations are permitted, but only ‘in accordance with procedures as are established by law', provided that the law itself and the enforcement of it are not arbitrary.

Which domestic laws relate to the right to security of the person and freedom from arbitrary detention?

The right to security of the person and freedom from arbitrary detention is relevant to numerous laws and policies. Wherever appropriate, laws should provide for safeguards to ensure that they are not exercised in an arbitrary manner. Safeguards might include the right to challenge the lawfulness of detention, and supervision by judicial officers. The following are examples of Australian laws that relate to the arrest and detention of persons.

  • Division 105 of the Criminal Code Act 1995, which authorises the making of a preventative detention order where it is reasonably necessary to detain a person to prevent a terrorist act. An order may be made to preventatively detain a person who it is suspected, on reasonable grounds, will engage in a terrorist act, or possesses a thing connected with the preparation for or engagement in a terrorist act, or has done an act in preparation for a terrorist act, and where making the order will substantially assist in preventing a terrorist act from occurring.
  • Division 3 of Part IC of the Crimes Act 1914, under which an official investigating a terrorism offence may apply to a judicial officer for an extension of the initial investigation period of four hours up to a maximum of 24 hours. An extension may be granted if the judicial officer is satisfied that further detention is necessary to preserve or obtain evidence or complete the investigation, and that the investigation is being conducted properly and without delay.
  • Division 3 of Part III of the Australian Security Intelligence Organisation Act 1979 provides for the issuing of a ‘questioning and detention warrant' authorising a person to be questioned by ASIO and detained by a police officer, where the issuing authority is satisfied that this will substantially assist the collection of intelligence important in relation to a terrorism offence.
  • Section 189 of the Migration Act 1958, under which unlawful non-citizens in the migration zone must be placed in immigration detention.
  • Section 15AA of the Crimes Act, which sets out a presumption against the granting of bail to persons charged with or convicted of terrorism offences, unless exceptional circumstances justifying bail can be established.

The right in article 9(2) to be informed, at the time arrest, of the reasons for arrest and to be promptly informed of any charges is provided for in section 3ZD of the Crimes Act, which provides that a person who arrests another person for an offence must inform the other person, at the time of the arrest, of the offence for which the other person is being arrested.

Under section 75(v) of the Constitution, the High Court has original jurisdiction when writs of mandamus or prohibition or an injunction are sought against an officer of the Commonwealth. Habeas corpusis a remedy used to challenge the lawfulness of detention of a person. If the detention cannot be justified, the court is empowered to order the person's release. The power of the High Court to grant habeas corpus is not explicitly entrenched in the Constitution, but the court may issue the writ in cases where it otherwise has original or appellate jurisdiction. The other federal courts have powers to make orders and issue writs in matters in which they otherwise have jurisdiction. Those powers extend to making orders or issuing writs in the nature of habeas corpus. The Migration Act 1958 specifically provides for the Federal Magistrates Court to have, in relation to migration decisions, the same jurisdiction as is conferred upon the High Court by s75(v) of the Constitution.

What other rights and freedoms relate to the right to security of the person and freedom from arbitrary detention?

The right to security of the person and freedom from arbitrary detention may also be relevant to:

  • the right to humane treatment when in detention in article 10 of the ICCPR
  • the right to freedom of movement in article 12 of the ICCPR
  • the right to a fair hearing and certain rights in criminal proceedings under article 14 of the ICCPR.

Articles from relevant Conventions

International Convention on Civil and Political Rights

Article 9

  • Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.
  • Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him.
  • Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgement.
  • Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.
  • Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation.

See also: CERD article 5; CRC article 37; CRPD article 14.

Where can I read more about the right to security of the person and freedom from arbitrary detention?

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