Personal Liberty
Human Rights In Australia by Doctor Mark Cooray (1985)



Use Of Force

Invasion Of Privacy

Remedies For Unlawful Arrest

Fair Trial

Retroactive Offences

Attack On Personal Liberty

In many countries, individuals live in fear of their rulers. A knock on the door can mean arrest and imprisonment without trial and even torture and death. People brought to trial are denied a fair hearing and charges often concern acts which are regarded as legitimate conduct in the democratic world. Gaols of these countries are occupied with prisoners of conscience and political dissidents.

Broadly speaking, totalitarian states negate personal freedom by official violation of due process or by the enactment of unjust laws. They practice arbitrary arrest, detention and punishment. They also prohibit types of conduct which are essential to human dignity and freedom and thereby make criminals of otherwise innocent citizens. For example, in communist and fascist states political dissent is regarded as criminal conduct and attracts heavy penalties. Although the Soviet constitution supposedly guarantees free speech, criticism of the Soviet political system is considered treasonous and critics are imprisoned, exiled, subjected to horrific mental manipulation or physical mutilation. In some Latin American states, officially condoned or private death squads eliminate political dissidents. Everywhere in the totalitarian world personal liberty of citizens is in constant jeopardy.

Fortunately, Australia belongs to a minority of democratic societies which value personal liberty above all else. It shares, with other democratic nations, legal and political traditions which provide a large measure of protection of personal liberty. In Australia, the common law, partly codified and supplemented by statute, offers the citizen a wide range of safeguards calculated to ensure that he or she is not deprived of personal liberty except in accordance with the law.

Personal liberty means not only the freedom from unlawful physical restraint or harm but also the freedom from arbitrary interference with one's privacy and lawful belongings, which, in practice, means the freedom from arbitrary search and seizure of personal belongings. A myriad of common law and statutory rules protect these rights and a comprehensive survey of the law on this subject is outside the scope of this publication. It is proposed to analyse the principal classes of safeguards necessary for the protection of personal liberty.

However, it must be appreciated that personal liberty can be protected only by a combination of principles, each of which is indispensable to liberty. Freedom from arbitrary arrest, detention or punishment is of limited value if the law penalises ordinary moral conduct or non-violent political conduct. Freedom is also ineffective if there are no effective remedies for infringement or no safeguards to ensure fair trials. Procedural and evidentiary safeguards are of no avail unless there is an impartial and independent judiciary. The operation of these principles in conjunction can alone guarantee the effective enjoyment of personal freedom.

7.1 Arrest
Ideally, the personal liberty of an individual should not be violated except upon conviction after a full and fair trial. However, in order to bring wrong-doers to justice and to ensure the safety of citizens, the power of arrest is conceded to police officers and citizens in defined and limited circumstances. A police officer has wider powers than a citizen. The basic rule is that no arrest can be made without a warrant from a competent judge except where treason, felony or a breach of the peace has been committed or is being attempted or is reasonably apprehended. A citizen's authority is limited to cases where such acts have actually taken place, whereas a police officer can act on reasonable suspicion. Under the common law no arrest for a misdemeanour is possible without a warrant. However, this prohibition has been relaxed somewhat in certain general and special statutes. An example is Section 352 of the New South Wales Crimes Act.

In cases where a warrant is necessary for arrest, the warrant has to be sufficiently specific and is issued only when the competent court is satisfied of the reasons for arrest.

There are other safeguards in relation to arrest. Police officers are required to inform suspects of the reasons for arrest and the failure to give reasons can make the police officer liable to damages for false imprisonment. Non-disclosure of reasons can also justify resistance to arrest. Those who execute an arrest are also enjoined from using unnecessary force on suspects.

7.2 Detention
The fundamental principle regarding the power of arrest is that it is granted strictly for the purpose or bringing a suspect before a court of law. In many jurisdictions a time limit (often as short as 24 hours) is specified for such purpose and is coupled with a duty to produce the suspect in court as soon as practicable. What this rule means is that after arrest, a person cannot be detained for any other purpose. In England, courts have permitted a limited power to detain a person for the purpose of investigating the crime but in Australia a person cannot be arrested or confined purely for the purpose of investigation. Bales v Parmeter (1935) 35 S R (NS W) 182, 188-89. Detention for longer periods is only possible as judicially determined, as in the case of remand pending trial or imprisonment upon conviction.

7.3 Use Of Force
One of the commonest forms of physical abuse of persons that is officially perpetrated throughout the world occurs in the course of actual or pretended investigation of crimes. National and international organisations concerned with human rights, continue to record countless instances of torture and abuse in most totalitarian states as well as in some other states where democratic traditions are weak. Instances of such abuse are rare in western democracies, mainly due to entrenched legal principles, freedom of expression, investigative reporting and the respect for the rule of law. In countries such as Australia protection against physical harm is provided by common law principles supplemented (and also restricted) by statute.

At common law there is only a very limited right to forcibly search a person after arrest, there being no such right prior to arrest. This is when the conduct of the arrestee gives rise to a reasonable apprehension that he conceals weapons or is likely to cause harm to himself or to others. Similarly, restraining a person with handcuffs etc is justified only in the particular circumstances of the case. The common law does not authorise forcible finger printing or photographing. However, these powers have been conferred by statute in many jurisdictions.

One of the most important safeguards against the use of force is the exclusion of involuntary confessions as evidence. A confession is considered involuntary if given by fear of prejudice or hope of advantage exercised or held out by a person in authority. Even as regards voluntary confessions, the court has the power to exclude them if it considers that they have been obtained improperly. Improper methods may include questioning after illegal arrest, delaying the production of the suspect, or even unreasonable insistence in interrogation. The protection against forcible extraction of incriminating evidence is reinforced by rules requiring the suspects to be advised of their right to remain silent and to be cautioned that the statements they make may be used against them at a subsequent trial.

7.4 Invasion Of Privacy
Privacy, which is integral to personal liberty, is protected by the general rule against entry into a household except with the occupiers' permission or under the authority of a warrant. In Mackay v Abrahams (1916) VLR 681, 684, Hood J said

"It seems to me shocking to say that a constable who is honestly seeking information has the right, not only to interrogate any person without warrant or other authority save that of his office to enter the house of that person contrary to his will. I think no such right exists . . . ".

There are limited exceptions to this general rule such as where there is an existing or imminent breach of the peace, where there are reasonable grounds to believe that an offence would be committed if not for immediate intervention, or where it is necessary to enter the premises to effect a lawful arrest.

A police officer has the limited power to search and seize goods in the possession of a person lawfully arrested which form evidence of a crime. However, the power to search and seize materials found in the premises of a person other than the arrestee is limited to (a) those materials which implicate the occupier in the same offence as that for which the arrest was made, or (b) materials which implicate some other person in the same offence as that for which a search warrant has been issued.

The general rule is that no search or seizure can be made except upon a lawful arrest or under the authority of a warrant.

7.5 Remedies For Unlawful Arrest And Detention
The mere existence of a detailed set of rules against arbitrary arrest and detention will not ensure personal liberty if there are no effective judicial remedies. The foremost among such remedies is the classical writ of habeas corpus which is issued to compel the production of a person who is unlawfully detained or imprisoned. In addition to this remedy a person wrongfully arrested or detained may claim damages in a civil action.

In the United States there is another important judicial safeguard, which is the exclusion of evidence illegally obtained. This rule represents the paramountcy accorded to personal freedom over other interests. In Australia such evidence is not automatically excluded, although judges have discretion to do so in particular circumstances.

However this right has been subject to a considerable degree of restriction as a consequence of legislation vesting power in public officials. Wide powers have been conferred by statute on inspectors and statutory authorities to enter private premises for a variety of purposes. Not all these powers can be defended on grounds of reason and principle. However an investigation of the manifold excesses of legislation in this area is beyond the purview of this investigation.

7.6 Fair Trial
A fair trial before deprivation of liberty is the ultimate institutional safeguard of personal freedom. Protection against abuse of the investigatory process is of no avail, if a person can be unfairly tried and convicted.

Perhaps the most important principle relevant to a fair trial is the presumption of innocence. In common law jurisdictions it means that an accused person is entitled to an acquittal if the prosecution fails to prove the commission of the offence beyond a reasonable doubt. The rule itself is inflexible, although the accused may sometimes be required to prove certain facts peculiarly within his knowledge. This principle, more than any other, demonstrates the concern that a citizen should not be deprived of his personal liberty except on the most cogent proof of guilt. However, even this hallowed principle of the common law is undergoing considerable derogation by legislation. There exist about 220 provisions in Commonwealth legislation alone that place the persuasive burden of proof on the defendant. Professor G de Q Walker, 'Crisis in the Rule of Law' at the Mont Pelerin Conference, Sydney, 23 August 1985.

Apart from the presumption of innocence, a person facing trial in a common law court is entitled to the protection of detailed procedural and evidentiary rules. These rules have been developed to ensure, among other things, adequate notice of charges, adequate opportunity to prepare the defence, adequate representation, exclusion of doubtful evidence and the effective conduct of the defence through means such as the examination of witnesses and the making of legal submissions. Additional safeguards may include trial by jury, public trial and the prevention of prejudice by unfavourable publicity.

However, the ultimate assurance of a fair trial is a competent and impartial judiciary. For this purpose, a state should not only have institutional safeguards for judicial independence but should also be endowed with a tradition of judicial competence, integrity and independence.

In Australia the principles governing a fair trial are strictly observed in relation to criminal trials. There is a disturbing tendency to resort to non-judicial tribunals to determine faults in a number of areas. Although these non-judicial determinations do not result in direct penalties the consequences can sometimes be as serious (see chapters 4.3, 12 and 13).

7.7 Retroactive Offences
It is stated above that personal liberty is also undermined by the existence of unjust laws which impute criminality to otherwise moral conduct. Among this type of laws are those which retrospectively declare acts as criminal which at the time of commission were lawful. Resort to this type of legislation amounts to a gross violation of personal liberty in that it penalises lawful conduct. In British practice, bills of attainder, ex post facto legislation and laws ad hominem are generally considered constitutionally unsound. Sir William Blackstone, Commentaries 15th ed (London, 1809) p 46. This position is clearly recognised in US constitutional law. L H Tribe, American Constitutional Law (Mineola, 1978) p 474.

7.8 The Attack On Personal Liberty
Australians enjoy a high degree of protection of personal liberty through legal provisions and political tradition. In most western countries infringements of personal liberties are strongly resisted and there is constant agitation for the enlargement of these freedoms. However, in recent times democratic societies have been increasingly confronted with problems that seem to demand some restriction of the traditional protection of personal liberty. For example widespread terrorism and organised crime have prompted western governments to take extraordinary legislative measures to protect the community. In Britain, West Germany and Italy, tough new anti-terrorist legislation is in force. In Australia, there is a growing feeling that greater powers of investigation are required to combat organised crime. A certain measure of interference with traditional protections may be inevitable for the prevention of greater harm to the community and its way of life. The challenge is to overcome these problems with minimal damage to the traditional freedoms.

There is a real danger that the importance of personal liberty may be forgotten or devalued in the search for ad hoc solutions to the pressing problems of modern society. There is a tendency in Australia, as in many other democratic societies, to regard due process requirements as dispensable when they concern offences which governments or interest groups consider to be prejudicial to particular social objectives. A notable manifestation of this attitude was seen in the attempt to set up the bureaucratic Human Rights Commission as an authority to try and to punish acts of discrimination against women, without any regard to the procedural and evidentiary safeguards described above. Although timely agitation, primarily from those outside the political parties, compelled the withdrawal of some of the more obnoxious provisions initially proposed, the Commission was nevertheless granted certain functions of an adjudicative nature. It is also significant that there were some who called themselves "liberals" who were unconcerned about the serious violations of personal liberty involved in the original Sex Discrimination Bill.

The attempt to deny alleged sex discriminators their due process rights cannot be lightly dismissed. The fact that it was attempted shows that influential groups were prepared to regard the offence of sex discrimination as even more heinous than felonies such as murder or robbery. The rigour of the adjudicative procedure proposed in relation to discrimination showed that in the eyes of the proposers, the new offence was of such gravity that its perpetrators did not deserve their fundamental rights to a fair trial.

This is an extremely dangerous trend which is reminiscent of totalitarian socialist justice. In communist countries the most serious offences are those which jeopardise the economic and political line of the party. Even crimes such as murder and theft are considered to be deviant political behaviour. This notion of criminality is based on the central concern for social control and social engineering, the belief that all other considerations must give way to the politically determined priorities of society.

Societies founded upon respect for personal liberty show a fundamentally different conception of justice. In such societies due process of the law has a value that transcends all other interests. The procedural and evidentiary rules have been evolved over a long period of time and have become established owing to the conviction that in their absence personal liberty is at great peril. This conviction stems from the knowledge that any benefit that may be gained by dispensing with due process is outweighed by the enormous damage that it causes to the foundations of liberty.

The tendency to create extraordinary offences and extraordinary procedures arises from regulationist and interventionist government. Several Third World countries, which inherited democratic political systems, have faced this dilemma when they have sought to tread the path of radical socialism. These countries adopted economic policies which called for state ownership of large sectors of the economy and the imposition of rigidly controlled exchange systems. As a result, every violation of the exchange rules and every offence against state property became of vital concern to the economic survival of the nation. They found that it was impossible to manage the national economy by recourse to ordinary laws of the land. This situation led to the creation of special courts and special procedures for the trial of novel forms of economic crimes. Thus in many cases the rule of law was irretrievably compromised.

Western nations have yet to face this type of crisis. However, it is not too early to realize that if social control is practised excessively it will create a demand for novel forms of regulation and law enforcement which will gradually undermine the foundations of personal liberty. This is already happening in Australia.