Right to liberty and security of person

What the Act says

Section 29 of the Human Rights Act 2019 says that:

(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 the person’s 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 the person.

(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

(6) A person awaiting trial must not be automatically detained in custody, but the person’s release may be subject to guarantees to appear –

(a) for trial; and

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

(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 the person’s detention, and the court must –

(a) make a decision without delay; and

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

(8) A person must not be imprisoned only because of the person’s inability to perform a contractual obligation.

This right is based on Articles 9 and 11 of the International Covenant on Civil and Political Rights (ICCPR), which Australia ratified in 1980.

Scope of the right

Right to liberty and security

The purpose of the right to liberty and security is to protect people from unlawful and arbitrary interference with their physical liberty. It is not deprivation of liberty that is prohibited, but rather deprivation that is arbitrary or unlawful.

The right to liberty ensures that people cannot be arrested or detained unless it is provided for by law. Arrest and detention must also not be arbitrary, meaning they cannot be unjust, inappropriate, unpredictable or lack due legal process.

The right is focused on ensuring state authorities follow due process when exercising powers of arrest and detention. It applies to all forms of detention where a person is deprived of their liberty, not just criminal justice processes. It applies whenever a person is not free to leave a place by their own choice.

This right differs from the freedom of movement (section 19), as it specifically applies to situations where a person is detained, and not merely where freedom of movement has been restricted.

Under international human rights law, the right to security of person is recognised separately to liberty and regardless of whether the person has been deprived of their liberty. The United Nations Human Rights Committee has said that the right to security in Article 9 of the ICCPR protects individuals against ‘intentional infliction of bodily or mental injury’ and obliges State parties to protect individuals from foreseeable threats to life or bodily integrity. This interpretation may overlap with protections under other human rights, but may impose additional positive obligations on government and does not require demonstration of ‘arbitrariness’.

Rights of arrested or detained people

The Act provides specific protections for people who are arrested or detained.

Right to information: They must be informed of the reason for their arrest or detention and about any proceeding to be brought against them.
Right to a fair process: For people arrested or detained on criminal charges, they must be promptly brought before a court and have the right to a trial without unreasonable delay.
Right to conditional release: People awaiting trial should not be automatically detained, but their release may be on conditions to ensure their appearance at trial or other proceedings.
Right to challenge detention: A person can apply to a court to review the lawfulness of their detention. If the detention is found to be unlawful, the court must order their release.
Protection from imprisonment for debt: A person cannot be imprisoned solely because they cannot pay a debt or fulfil a contractual obligation.

Limitation

This right can be limited by public entities, but only where it is reasonable and demonstrably justified in a free and democratic society based on human dignity, equality and freedom.

Learn more about justification and other obligations on public entities to respect human rights

When this right could be relevant

Section 29 may apply to laws, policies, acts or decisions that:

authorise the detention of people with mental illness for treatment in mental health facilities

allow interim detention of individuals whether or not they are suspected of committing an offence (for example, to prevent the spread of a contagious disease)

provide special powers to detain people for national security purposes

regulate the granting of bail

relate to holding people in remand or watch houses

address the management and security of an individual in involuntary state care.

Case examples

Search cases

Right to liberty found to outweigh right to humane treatment when deprived of liberty

The Court was asked to consider whether an older prisoner with serious health and mobility issues should be subject to continuing detention past the end of his sentence in prison or released into accommodation supervised by Queensland Corrective Services. The evidence was that it was unlikely the prisoner’s healthcare and support needs could be met in the supervised accommodation – although it was the prisoner’s preference to be held there rather than prison.

The judge weighed the right to liberty, which would be more limited by continued detention in prison, against the right to humane treatment in detention, which would be more limited by release into what the Judge described as ‘unsafe and inhumane’ conditions in supervised accommodation. Giving significant weight to the prisoner’s own wishes, the judge considered it would be a disproportionate limitation on the right to liberty to continue the prisoner’s detention in prison because his healthcare needs would not be met by Queensland Corrective Services in supervised accommodation,and made a supervision order.

Attorney-General for the State of Queensland v Grant (No 2) [2022] QSC 252 (16 November 2022)

Read the full case note: AG v Grant (PDF File, 282.3 KB).

Application for habeas corpus gives effect to s 29(7) rights

The applicant applied for a declaration under the section 29(7) of the Human Rights Actthat his detention on remand was unlawful. He argued this would oblige the District Court to then order his release. The District Court referred a question of law to the Supreme Court. The Supreme Court determined that section 29(7) did not vest jurisdiction in the District Court to grant a declaration that a prisoner was being held in custody unlawfully. To make such a challenge, a prisoner ought to seek habeus corpus, which accommodates the right provided under section 29(7) of the Human Rights Act 2019. However, the real remedy was a bail application, which is not concerned with the lawfulness of the detention and is therefore not relevant to section 29(7) of the Act.

Wood v The King & Anor [2022] QSC 216 (13 October 2022)

Delay in prosecution contravened s 29(5)(b)

The applicant sought permanent stay of indictments against him in relation to indecent dealing of minors. The alleged conduct occurred in the mid-1980s, and the applicant was arrested in 2002. In 2002, the Director of Public Prosecutions (DPP) decided not to prosecute the matter and a later application to bring a private prosecution was dismissed. In 2016, the DPP decided to institute new proceedings against the applicant.

Although the court was satisfied the trial could still be conducted fairly despite the lengthy delay, it concluded the applicant would suffer significant prejudice if the matter was now allowed to proceed, including that in effect he would be facing his third prosecution and in circumstances of widespread adverse publicity. Further, the delay since 2002 amounted to a breach of the applicant’s rights to a trial without unreasonable delay. The court granted a permanent stay of the prosecution.

Volkers v R [2020] QDC 25 (10 March 2020)

This information is not intended to be a substitute for legal advice.