Right to liberty and freedom of movement

Along with the right to life, the right to liberty is one of the most fundamental human rights. The right to liberty is the right of all persons to freedom of their person – freedom of movement and freedom from arbitrary detention by others. Historically, the protection of individual liberty was one of the crowning achievements of the common law. The writ of habeas corpus is an ancient common law remedy designed to allow a person who is detained to challenge the lawfulness of their detention. Habeas corpus does not secure the release of a person held pursuant to a valid law. Detention on mental health grounds is authorised by law, and so is detention to prevent the transmission of infectious disease. Preventative detention orders for anti-terrorist purposes is authorised by the Commonwealth Crimes Act, although their constitutional validity has not yet been tested. Every declaration of rights includes the right of liberty: from the clarion call of the French Revolution (“Liberty, equality, fraternity”) to the Universal Declaration of Human Rights (UDHR; 1948), Article 3: “Everyone has the right to life, liberty and security of person”; to the International Covenant on Civil and Political Rights (ICCPR; 1967), 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.” International human rights conventions do not form part of Australia’s laws unless specifically adopted by an Australian Parliament. The UDHR and the ICCPR have not been incorporated into Australia’s domestic law, so they do not have any legal force in Australia. Liberty believes that Australia should adopt and protect these human rights by enacting an Australian Bill (or Charter) of Rights. Like most rights, the right of individual liberty is not absolute. Governments can legitimately deprive people of their liberty in appropriate circumstances: typically, after conviction for serious offences, in serious mental health cases, and to prevent the spread of infectious disease. Article 9 of the ICCPR recognises that qualification by prohibiting arbitrary detention. The Migration Act 1958 (Cth) provides that a non-citizen who enters Australia without a visa must be detained, and must remain in detention until they receive a visa or until they are removed from Australia. Thus boat people and other asylum seekers may be held in detention for months or even years – despite the fact they have not committed an offence, are not accused of committing an offence, and present no risk to the community. Asylum seekers are people who have fled their country due to oppression and persecution are held by Australia in high security jails indefinitely, regardless of age, sex or state of health. The United Nations Human Rights Committee (UNHCR) has found in a number of cases that this constitutes arbitrary detention, contrary to Article 9 of the ICCPR. In addition to Article 9 of the ICCPR, indefinite detention breaches provisions of the Universal Declaration of Human Rights and the Convention on the Rights of the Child. However, the Migration Act specifically authorises the detention of non-citizens and as a result, habeas corpus is not available to secure the release of detained asylum seekers. On 29 July 2008, the Immigration Minister Senator Chris Evans announced a change in the policy of mandatory detention. These changes, when implemented, will treat immigration detention as a last resort, to be used only for the purpose of protecting the community. Several other Federal statutes also provide for detention without trial. Division 105 of the Commonwealth Criminal Code provides that a member of the Federal Police may apply for a preventative detention order in relation to a person. A preventative detention order will result in a person being jailed for up to 14 days, in circumstances where they have not been charged with any offence. The order is obtained in a secret hearing, based on secret evidence and when the person is taken into custody pursuant to the order, they are not to be told the evidence on which the order was based. The provisions of Division 105 are directed to combat the risk of terrorism. Whether the denial of liberty amounts to arbitrary detention is a matter of balancing the right of liberty against the objective of combating terrorism. Opinions are divided on the question whether the right balance has been struck. In some States of Australia, Parliaments have passed measures which enable convicted sex offenders to be held in prison after completion of their term of imprisonment. Thus, although the person has “paid their debt to society” they can continue to be held in jail. Whilst protection of the public from possible commission of future offences is a worthwhile aim, continued imprisonment of a person after completion of their sentence is a very serious matter. Imprisonment of a person who might commit an offence is very different to imprisonment of a person on conviction for an offence. Any detention of a person in Victoria and pursuant to Victorian law is subject to the provisions of Articles 21 and 22 of the Victorian Charter of Human Rights and Responsibilities. The right to liberty is also associated with the right to humane treatment while being deprived of liberty, the right to freedom from forced work or labour, and the right to freedom from torture.