A person must not be deprived of his or her liberty except on grounds, and in accordance with procedures, established by law.

  1. Section 21

    21 Right to liberty and security of person

    (1) Every person has the right to liberty and security.

    (2) A person must not be subjected to arbitrary arrest or detention.

    (3) A person must not be deprived of his or her liberty except on grounds, and in accordance with procedures, established by law.

    (4) A person who is arrested or detained must be informed at the time of arrest or detention of the reason for the arrest or detention and must be promptly informed about any proceedings to be brought against him or her.

    (5) A person who is arrested or detained on a criminal charge—

    (a) must be promptly brought before a court; and

    (b) has the right to be brought to trial without unreasonable delay; and

    (c) must be released if paragraph (a) or (b) is not complied with.

    (6) A person awaiting trial must not be automatically detained in custody, but his or her release may be subject to guarantees to attend—

    (a) for trial; and

    (b) at any other stage of the judicial proceeding; and

    (c) if appropriate, for execution of judgment.

    (7) Any person deprived of liberty by arrest or detention is entitled to apply to a court for a declaration or order regarding the lawfulness of his or her detention, and the court must—

    (a) make a decision without delay; and

    (b) order the release of the person if it finds that the detention is unlawful.

    (8) A person must not be imprisoned only because of his or her inability to perform a contractual obligation.

  2. Section 21 is modelled on arts 9 and 11 of the ICCPR (Explanatory Memorandum, Charter of Human Rights and Responsibilities Bill 2006, 16). The right to liberty and security is also protected by art 5 of the European Convention on Human Rights.
  3. Section 21 is not intended to extend to ‘such matters as a right to bodily integrity, personal autonomy or a right to access medical procedures’, as in art 7 of the Canadian Charter of Rights and Freedoms (Explanatory Memorandum, Charter of Human Rights and Responsibilities Bill 2006, 16).
  4. Unlike art 9(5) of the ICCPR, the Charter does not create an enforceable right to compensation for wrongful detention (Explanatory Memorandum, Charter of Human Rights and Responsibilities Bill 2006, 16).
  5. In addition to the protection afforded by the Charter, the right to liberty and security is protected in Victoria by ‘the common law, especially the ancient writ of habeas corpus, by the Magna Carta and certain other ancient Imperial statutes.’ On this view the right to liberty under the Charter is an iteration of a pre-existing right at common law (Antunovic v Dawson (2010) 30 VR 355; [2010] VSC 377 [7], [13]).
  6. According to Bell J in Antunovic, another fundamental principle of the common law is that ‘[n]either public officials nor private persons can lawfully detain [someone] … except under and in accordance with some positive authority conferred by law.’ (Antunovic v Dawson (2010) 30 VR 355; [2010] VSC 377 [134], citing Lim v Minister for Immigration Local Government and Ethnic Affairs (1992) 176 CLR 1, 19 (Brennan, Deane and Dawson JJ)). This principle is reflected in s 21(3).

  1. Every person has the right to liberty and security.

  2. Section 21(1) is a broad overarching right. The remainder of s 21 sets out a number of more specific guarantees and limitations, discussed below.
  3. The right to liberty and security is primarily related to physical liberty of the person, and the right applies only when a person is deprived of their liberty rather than where there are restrictions on movement that fall short of physical detention (Kracke v Mental Health Review Board (2009) 29 VAR 1; [2009] VCAT 646 [588], [664]; Woods v DPP (2014) 238 A Crim R 84; [2014] VSC 1 [12]; Antunovic v Dawson (2010) 30 VR 355; [2010] VSC 377 [72]; Explanatory Memorandum, Charter of Human Rights and Responsibilities Bill 2006, 16)
  4. The right to liberty and security is concerned with personal physical freedom, and the right will be engaged when a person is deprived of this freedom. The scope and nature of the right to liberty under s 21 has been summarised as follows:

    The purpose of the right to liberty and security is to protect people from unlawful and arbitrary interference with their physical liberty, that is, deprivation of liberty in the classic sense. It is directed at all deprivations of liberty … It encompasses deprivations in criminal cases but also in cases of vagrancy, drug addiction, entry control, mental illness etc. …

    The fundamental value which the right to liberty and security expresses is freedom, which is a prerequisite for individual and social actuation and for equal and effective participation in democracy (Kracke v Mental Health Review Board (General) 2009 VCAT 646 [664]-[665]; Director of Public Prosecutions v Kaba (2014) 44 VR 526; [2014] VSC 52 [110]).

  5. Therefore, the rights in s 21 are relevant whenever a person is at risk of imprisonment (Victorian Toll v Taha (2013) 49 VR 1; [2013] VSCA 37 [197] (Tate JA)). However, the right is not limited to detention or imprisonment: ‘[d]eprivation of liberty may … take numerous other forms. Their variety is being increased by developments in legal standards and in attitudes’ (Kracke v Mental Health Review Board (2009) 29 VAR 1; [2009] VCAT 646 [656],quoting Secretary of State for the Home Department v JJ [2007] UKHL 45; [2008] 1 AC 385, [15]).
  6. For example, persons held in psychiatric hospitals or correctional institutions will be deprived of their liberty. In addition, persons may be deprived of liberty through supervision, protective, treatment, guardianship or similar orders made under a number of legislative regimes. See also ‘Relationship with other Charter rights’ below and ‘Deprivation of liberty must be lawful (s 21(3)’
  7. Generally, the Victorian courts have dealt with the right in s 21(1) as a single right to ‘liberty and security’ (see, eg, Kracke v Mental Health Review Board (2009) 29 VAR 1; [2009] VCAT 646[621] – [628]; Antunovic v Dawson (2010) 30 VR 355; [2010] VSC 377 [73]; Woods v DPP (2014) 238 A Crim R 84; [2014] VSC 1 [13]; Director of Public Prosecutions v Kaba (2014) 44 VR 526; [2014] VSC 52 [110]). However, the Supreme Court has stated that the right to security in s 21(1) is an instance of the human right to personal integrity or inviolability, which in turn is an expression of the bedrock value of human dignity. It is said to have found expression in the civil and common law rules against assault, for example. However, the scope of the right to security, separate from the right to liberty, under the Charter remains unclear, as it has not been directly considered by the courts (RK v Mirik (2009) 21 VR 623; [2009] VSC 14 [5]).
  8. Under international law, the right to security is recognised as separate to that of liberty, and applies to persons regardless of whether they have been deprived of liberty. It imposes a positive obligation on public authorities to take reasonable and appropriate measures to protect the security of persons under their jurisdiction, for example, when a person has received death threats UN Human Rights Committee, Merits: Communication No. 195/1985 (Delgado Paez v Colombia), UN Doc. CCPR/C/39/D/195/1985 (23 August 1990) [5.5]).
  9. A related duty to investigate death threats, which falls under the right to security under the ICCPR, is said to mirror a similar investigative duty relating to the freedom from torture and inhuman and degrading treatment (Sarah Joseph and Melissa Castan, The International Covenant on Civil and Political Rights: Cases, Materials and Commentary (Oxford University Press, 2nd ed, 2000) [11.05]).
  10. In Victoria, this investigative aspect of the right is unlikely to apply, given the decision of the Court of Appeal in Bare, where no such investigative duty was found to exist under s 10 (‘Protection from torture and cruel, inhuman or degrading treatment’) of the Charter (Bare v IBAC (2015) 48 VR 129; [2015] VSCA 197 [186]–[215] (Warren CJ) [398]–[458] (Tate JA), [640]–[666] (Santamaria JA)).

    Relationship with other Charter rights

    Freedom of movement (s 12)

  11. The Charter contains both the right to liberty and security in s 21(1) and a distinct right to freedom of movement in s 12.
  12. This is similar to the position in New Zealand, but is in contrast to jurisdictions such as Canada and the United States, which do not separately recognise freedom of movement and therefore interpret the concept of detention, or deprivation of liberty, very broadly (Director of Public Prosecutions v Kaba (2014) 44 VR 526; [2014] VSC 52 [111]).
  13. Under the Charter, the deprivation of liberty required to engage s 21 is to be distinguished from mere restrictions on the freedom of movement under s 12. The difference is ‘one of degree or intensity, not one of nature and substance’ (Kracke v Mental Health Review Board (2009) 29 VAR 1; [2009] VCAT 646 [558], [664]; Director of Public Prosecutions v Kaba (2014) 44 VR 526; [2014] VSC 52 [110]-[111]; Woods v DPP (2014) 238 A Crim R 84; [2014] VSC 1 [12]-[13]).
  14. For example, a routine check conducted by police— which involved stopping a motor vehicle for a brief period to examine the licence of the driver pursuant to the statutory power in s 59(1) of the Road Safety Act 1986— engaged the right to freedom of movement but was not a deprivation of liberty for the purposes of s 21 (Director of Public Prosecutions v Kaba (2014) 44 VR 526; [2014] VSC 52 [110]).
  15. The precise boundary between the right to movement and the right to liberty and security is unclear. For example, in Antunovic, the case involved a patient compelled by psychiatrist’s instructions to reside at a treatment facility overnight, although she could come and go during the day as she pleased. The court characterised this as a limit on freedom of movement, but did not decide whether it was also a limit on the right to liberty. Although there was no precedent for habeas corpus in such circumstances, the court issued the writ, stating that the remedy is ‘broad, flexible and adaptable’. The court also stated that the Charter, together with the ancient statutes (the Magna Carta and Habeas Corpus Acts) and the common law, ‘constitute a body of law operating to protect the human rights and fundamental freedoms of the Victorian community.’ This implies that s 21 should be located within and informed by this body of law, and may be broad enough to protect against restrictions of the kind in Antunovic (Antunovic v Dawson (2010) 30 VR 355; [2010] VSC 377 [25], [76], [177], [198], [202]).
  16. Similarly, in Nigro, the Court of Appeal found that an order made under the Serious Sex Offenders (Detention and Supervision) Act 2009, which included a condition requiring the person subject to it to reside at a specified address each night would significantly limit the right to freedom of movement in s 12. Although the Court also found that the right to liberty was relevant to orders made under the Act, it did not consider whether these particular circumstances limited the right to liberty in s 21(1) (Nigro v Secretary to the Department of Justice (2013) 41 VR 359; [2013] VSCA 213 [206]).
  17. Nigro and Antunovic may be cases on the border line between restriction on the freedom of movement and deprivation of liberty. In Re Beth, however, Beth was an intellectually disabled teenager who had suffered significant sexual abuse and violence in the course of her childhood and developed serious behavioural problems. The Supreme Court made, and later renewed, an order authorising Beth’s placement in a secure residential facility operated by a social welfare agency, and the use of lock-up facilities and restrictive interventions in the course of her care. Beth’s care regime was found to limit her right to liberty as well as her right to freedom of movement (Re Beth (2013) 42 VR 124; [2013] VSC 189 [201]).
  18. In the UK, the care regime of a severely autistic man did not amount to ‘deprivation of liberty’ under art 5 of the European Convention on Human Rights. The man was under supervision and care in his home, but was given privacy in his bedroom and was free to roam the house and gardens. The doors were not locked but equipped with sensors that alerted staff if the man tried to leave. If he did leave the carers would attempt to persuade him to return but not coerce him. The man would be deprived of liberty, however, if he ever refused to return to home and the police exercised their powers under the Mental Health Act 1983 (UK), at which point he could be detained at a ‘place of safety’ for 72 hours (Bournemouth Borough Council v PS [2015] EWCOP 39 [13]–[15], [29], [33]).
  19. In contrast, the Court described the following circumstances in which the Strasbourg Court found that there had been a deprivation of liberty:

    The complainant was held in dire conditions in a remote compound enclosed by a high metal fence. Apart from the administration of medication, no therapeutic activities were organised for residents, who led passive, monotonous lives. The complainant needed prior permission to leave the compound, even to visit the nearby village. He had been denied permission to travel on many occasions by the management. In accordance with a practice with no legal basis, residents who left the premises for longer than the authorised period were treated as fugitives and were searched for by the police. The complainant had in fact been arrested by the police on one occasion (Bournemouth Borough Council v PS [2015] EWCOP 39 [29]–[30]; citing Stanev v Bulgaria (2012) 55 EHRR 22).

    Protection from medical or scientific experimentation or treatment without consent (s 10(c))

  20. Conduct that engages the right to protection from medical treatment without consent often also engages the right to freedom of movement. However, such conduct will not necessarily amount to deprivation of liberty. Again, it will depend on the degree and intensity of the relevant restrictions.
  21. For example, a community treatment order (‘CTO’) made under the Mental Health Act 1986 was found not to engage the right to liberty and security, although it engaged both freedom of movement under s 12 and the protection against involuntary treatment under s 10(c). Under a CTO, patients are treated in the community rather than in involuntary detention. On the other hand, involuntary detention in a mental hospital, for example, would engage the right to liberty and security (Re Kracke v Mental Health Review Board (2009) 29 VAR 1; [2009] VCAT 646 [626], [736]-[738]).

    Humane treatment when deprived of liberty (s 22)

  22. Deprivation of liberty is the threshold for the application of the s 22 right ‘Humane treatment when deprived of liberty’.Application of the right
  23. In applying the balance of convenience test as part of an application for an interlocutory injunction, the right to liberty is likely to be a significant consideration when a period of detention is involved. This may apply, for example, when challenging an order for involuntary treatment (T C v U D [2015] VSC 92 [31]).
  24. The right to liberty in s 21(1) played a role in the Court of Appeal’s interpretation of s 160 of the Infringements Act 2006. The court’s interpretation of s 160 was in line with the interpretative obligation in s 32(1) of the Charter, which requires courts to interpret legislation compatibly with Charter rights where possible. Section 160(1) of the Infringements Act empowers a court to imprison a person for non-payment of fines. However, the Court of Appeal found that s 160(1) should be interpreted as requiring the court to consider making alternative orders under s 160(2) or (3) before making an imprisonment order, that is, to read s 160 as a unified whole. Subsection (2) applies where the court is satisfied that ‘an infringement offender has a mental or intellectual impairment, disorder, disease or illness’, and subsection (3) applies where it is satisfied that ‘having regard to the infringement offender’s situation, imprisonment would be excessive, disproportionate and unduly harsh’ (Victorian Police Toll Enforcement v Taha (2013) 49 VR 1; [2013] VSCA 37; see also Bogdanovic v Magistrates’ Court of Victoria [2017] VSC 696 [19]).
  25. The Court in Taha found that the unified construction of s 160 requires a court to enquire as to whether the circumstances set out in sub-ss (2) or (3) apply, irrespective of the presence of any ‘red flags’ indicating the existence of exceptional circumstances. In addition, the Court found that where a person is at risk of being deprived of his or her liberty, the absence of procedural and substantive protections normally afforded as part of the criminal justice system may require the court to adopt a more inquisitorial role. Because the appellants were at risk of imprisonment under s 160, the right to liberty was clearly engaged (Victorian Police Toll Enforcement v Taha (2013) 49 VR 1; [2013] VSCA 37 [150], [167], [184] [197]-[198] (Tate JA); see also [24]-[25] (Nettle JA), [257], [259] (Osborn JA); see also Bogdanovic v Magistrates’ Court of Victoria [2017] VSC 696 [19]).
  26. Several classes of exemption from disclosure under the Freedom of Information Act 1982 require consideration of whether disclosure would be contrary to the public interest. The fact that a document discloses breaches of Charter rights —including the right to liberty—may be sufficient grounds to find that release would be in the public interest, rather than contrary to the public interest (Morgan v Department of Human Services [2008] VCAT 2420 [52]).
  27. The right to liberty and security has played a role in interpreting provisions relevant to the review of an indefinite sentence under s 18H of the Sentencing Act 1991, with ambiguity as to the meaning of the phrase ‘in sentencing an offender’ being resolved in favour of the available interpretation that best accorded with the applicant’s liberty right (Carolan v The Queen (2015) 48 VR 87; [2015] VSCA 167).
  28. In Nigro the court stated that the making of a supervision order under s 9(1) of the Serious Sex Offenders (Detention and Supervision) Act 2009 is compatible with the Charter because consideration of the values ascribed to rights (including the right to liberty) in the Charter is intrinsic to the notion of unacceptable risk. To make a finding of unacceptable risk the court must be satisfied to a high degree of probability that the offender constitutes a risk of sufficient likelihood and magnitude. This is a high threshold, well above the civil standard and approaching the criminal standard. The result of this test is that rights are only limited to the degree required to reach the legitimate legislative purpose of community protection (Nigro v Secretary to the Department of Justice (2013) 41 VR 359; [2013] VSCA 213 [5]-[6], [10], [101]-[103], [133]; see also RJE v Secretary to the Department of Justice (2008) 21 VR 526; [2008] VSCA 265 [106], [119] (Nettle JA)).

  • Sections 21(2)-(3) are internal limitations on the right to liberty and security. Section 21(3) states that a person ‘must not be deprived of his or her liberty except on grounds, and in accordance with procedures, established by law’. Section 21(2) states that a person ‘must not be subject to arbitrary arrest or detention’.
  • Taken together, ss 21(2)-(3) require that the arrest and detention of any person must be both lawful and not arbitrary.

    Deprivation of liberty must be lawful (s 21(3))

  • The power to detain must be exercised lawfully. This means that relevant statutory criteria must be satisfied as a prerequisite to the exercise of a power to detain (Antunovic v Dawson (2010) 30 VR 355; [2010] VSC 377 [135]).
  • There are a number of laws that provide for the deprivation of liberty in Victoria. These include arrest and detention on remand under the Crimes Act 1958, Bail Act 1977 and Criminal Procedure Act 2009, imprisonment under the Sentencing Act 1991, and other laws that provide for detention or supervision orders, such as the Serious Sex Offenders (Detention and Supervision) Act 2009, or protective orders relating to persons lacking capacity, such as the Mental Health Act 2014, Guardianship and Administration Act 1986 and the Disability Act 2006.
  • There may be cases where a court has lawful jurisdiction to order detention even if not strictly pursuant to legislation. For example, in Re Beth the Supreme Court held it could make orders in its parens patriae jurisdiction for the detention of children, where necessary to supplement a statutory regime for the care of a child. In Re Beth all parties agreed that indefinite detention was in the best interests of the child. However, the Secretary for the Department of Human Services did not have power to make such orders under the Children, Youth and Families Act 2005, which provided for a maximum period of detention of 42 days. In making the orders sought, the court stated that the parens patriae jurisdiction ‘is intended to supplement the care and protection of vulnerable members of the community where amongst other things relevant statutory provisions would not adequately do so’ (Re Beth (2013) 42 VR 124; [2013] VSC 189 [9]-[11], [84], [196]-[205]).
  • In some cases a lawful power to deprive a person of liberty may require some positive action to ensure the power is not exceeded. For example, the Court of Appeal in Piscopo found that the power under s 55 of the Road Safety Act 1986 to require a person to remain in a certain place in order to provide a breath sample will only be exercised lawfully and compatibly with s 21(3) of the Charter if the officer states the purpose and temporal limit of the requirement to remain (DPP v Piscopo (2011) 33 VR 182; [2011] VSCA 275 [65]-[67]).

    No arbitrary arrest or detention (s 21(2))

  • In PJB v Melbourne Health, the Court adopted the meaning of the word ‘arbitrary’ as embodied in international human rights law, including the ICCPR. On this approach arbitrariness:

    extends to interferences which, in the particular circumstances applying to the individual, are capricious, unpredictable or unjust and also to interferences which, in those circumstances, are unreasonable in the sense of not being proportionate to a legitimate aim sought (PJB v Melbourne Health (2011) 39 VR 373; [2011] VSC 327 [82]-[85]).

  • This approach was also followed by Tate JA in Taha (Vic Police Toll Enforcement v Taha (2013) 49 VR 1; [2013] VSCA 37 [199]; cf WBM v Chief Commissioner of Police (2010) 27 VR 469; [2010] VSC 219 [51]).
  • Following this approach, the right to liberty will be limited, even where the detention is lawful, if the detention is otherwise arbitrary. The UN Human Rights Committee has stated that ‘the notion of ‘arbitrariness’ must not be equated with ‘against the law’ but be interpreted more broadly to include such elements as inappropriateness and injustice’ UN Human Rights Committee, Merits: Communication No. 560/1993 (A v Australia),59th sess, UN Doc. CCPR/C/59/D/560/1993 (30 April 1997) [9.2]).
  • The presence of safeguards is an important consideration in determining the question of arbitrariness under the ICCPR:

    [A]bsence of arbitrariness, in Convention law, means that the law contains adequate safeguards, both procedural and substantive, to ensure that the power may be used only for its designated purpose and may not be abused (Kracke v Mental Health Board & Ors (General) (2009) 29 VAR 1; [2009] VCAT 646 [187], quoting Jack Beatson et al, Human rights: Judicial Protection in the United Kingdom (2008) [3-21]).

  • In Kracke, the Court discussed how the failure of safeguards may affect the question of whether detention is ‘arbitrary’. If a safeguard is indispensable for the proportionality of the limitation on a right, the limitation will be incompatible with human rights if the safeguard fails. In Kracke’s case, the board’s failure to conduct timely reviews of involuntary and community treatment orders under the Mental Health Act 1986 weakened the proportionality of the orders but did not render them disproportionate to their legitimate purpose (Re Kracke v Mental Health Review Board(2009) 29 VAR 1; [2009] VCAT 646 [761], [767], [769], [781]).
  • The analysis in Kracke follows the theory that the question of arbitrariness informs the general limitations or proportionality analysis under s 7(2). However, it is possible that the question of whether an arrest or detention is arbitrary is a separate question, which goes to the scope of the right itself rather than to the question of whether a limitation of that right is reasonable and justified. See ‘Relationship between specific limitations and s 7(2) below’.
  • The right in s 21(2) is also related to s 21(5), which deals with delay, in that detention that initially complies with s 21(2) may become arbitrary if it continues for an unreasonable period (UN Human Rights Committee, Views: Communication No. 631/1995 (Spakmo v Norway), UN Doc. CCPR/C/67/D/631/1995 (11 November 1999) [6.3]).
  • A law which does not provide for the arbitrary deprivation of liberty does not limit that right, simply because the law could be abused. In DPP v JPH the respondent argued that a detention order under s 73(3) of the Sex Offenders (Detention and Supervision) Act 2009 created a regime that allowed the arbitrary detention of persons. The ‘arbitrariness’ was said to stem from the conditions of detention, including general custodial powers of restraint which could be used arbitrarily. This argument was rejected because the power to make a detention order was conditional upon a balancing of the offender’s rights against the nature and degree of risk. The inbuilt control of proportionality prevented the power from being used in an arbitrary way to deprive liberty. Insofar as an order was made arbitrarily, it would be ultra vires. The supposed threat to liberty arising from the custodial powers assumed that prison authorities would misuse their powers. The Court noted that public authorities are obliged by s 38 of the Charter to act compatibly with human rights. Absent evidence to the contrary, the courts must assume that public authorities will act lawfully (DPP v JPH (No 2) (2014) 239 A Crim R 543; [2014] VSC 177 [1], [114], [119], [129]-[131], [132]-[134]).

    Relationship between specific limitations and s 7(2)

  • The relationship between the specific limitations in s 21(2)-(3) and the general limitations clause in s 7(2) is unclear. On one approach, internal limitations reduce the scope or ‘plain state’ of the right. If the conduct in question is found to meet the requirements of the specific or internal limitation, the right is not considered to be ‘limited’, and so the general limitations analysis in s 7(2) will not be relevant (Magee v Delaney (2012) 39 VR 50; [2012] VSC 407 [157] (s 15); LM [2008] VCAT 2084 [117] (s 21); PJB v Melbourne Health (Patrick’s case) (2011) 39 VR 373; [2011] VSC 327 [74]-[75] (s 13)).
  • The alternative approach, set out in Kracke, is that internal limitations within the Charter rights themselves should be considered as part of a general limitations analysis under s 7(2). They should be ‘seen as an indication of what might be considered in determining whether any limitations are reasonable and justified’, rather than to reduce the nature and content of the right in its ‘plain state’ (Kracke v Mental Health Board (2009) 29 VAR 1; [2009] VCAT 646 [109]-[110]); AC (Guardianship) [2009] VCAT 1186 [122]-[123]).
  • However, Bell J later reconsidered the view he expressed in Kracke, in response to case law stating that s 7(2) does not form part of the process of interpretation required by s 32(1) of the Charter (PJB v Melbourne Health (Patrick’s case) (2011) 39 VR 373; [2011] VSC 327 [74]-[75]). However, following the High Court decision in Momcilovic v The Queen (2011) 245 CLR 1; [2011] HCA 34, it remains an open question as to whether s 7(2) forms part of the interpretative process.

 

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