Last updated 1 December 2020
Section 29 of the Human Rights Act 2019 (Qld) (Human Rights Act) protects individuals from unlawful arrest and detention. This means that a person must not be arrested or detained arbitrarily. This right applies to all forms of detention, not solely the criminal justice process.
Subsections 29(1) to 29(5) provide that:
- every person has the right to liberty and security
- a person must not be subject to arbitrary arrest or detention
- a person must not be deprived of liberty except on lawful grounds and in accordance with lawful procedures
- a person who is arrested or detained must be informed, at the time of the arrest or detention, of the reason and promptly informed of any proceedings brought against them.
Subsection 29(5) provides for minimum rights where a person has been arrested or detained, the breach of which may render the arrest or detention unlawful. These provide that the person:
- must be promptly brought before a court
- has the right to be brought to trial without unreasonable delay
- must be released if the above are not complied with.
The Human Rights Act does not expressly contain a right to bail. However, the issue of bail may be raised through subs 25(1), which provides the right to liberty.
The rights in s 29 have a number of internal limitations. A person:
- may be subject to arrest that is not arbitrary
- may be deprived of liberty on grounds and in accordance with lawful procedures
- who is arrested or detained on a criminal charge may experience reasonable delay before a trial.
The right to liberty and security of a person will also be subject to the general limitation provision in s 13 of the Human Rights Act. This provides human rights may be subject under law to reasonable limits, which are justified in a free and democratic society. See ‘Human Rights may be Limited’ for further explanation.
The right to liberty and security of the person may be engaged:
- during a police arrest, where police have stopped, arrested or searched someone outside the scope of their lawful authority
- during sentencing orders, including actual imprisonment or community-based supervision
- in the course of bail and parole decisions, including whether to consider a supervised order under the Dangerous Prisoners (Sexual Offenders Act) 2003 (Qld) or involuntary treatment orders under mental health law.
The right will also be relevant in the course of guardianship and administration decisions when determining whether there are lawful grounds to interfere with the person’s liberty.
These examples have been adapted from Australian cases. They are provided by way of example only, and are not a substitute for legal advice.