So the States have now agreed to implement the Prime Minister’s proposal that State police have power to detain persons for two weeks without charge a truly extraordinary proposition when the history of the law of arrest is examined.
State police have never had power to detain people apart from those arrested as a result of a reasonable suspicion of their involvement in a crime. Even where such reasonable suspicion does exist, detention has only been allowable for very short periods before a person must be brought before a court or released. Let us examine the legal history.
 Peter Nicholson at The Australian |
Seventy-two years ago, the same year (1933) the Swans won their last premiership, the Supreme Court of NSW handed down a decision which is often cited as a precedent for the law of arrest. In that case, Clarke v Bailey, Bailey was arrested for illegal gaming. His lawyer, who was to become a prominent Liberal politician, argued on his behalf that a police officer’s prime duty after arrest was to take the accused to court to be formally charged.
The facts were that the police officer concerned had arrested Bailey at his workplace and instead of taking him directly to be processed and then before a court, the officer took Bailey against his will into the bar of a nearby hotel to search him. The Supreme Court held that the deviation to the hotel was unlawful and infringed the principle that the arrested person must be taken without delay and by the most direct route before a justice.
Bailey’s lawyer relied successfully on an 1825 precedent in England, a decision of White v Court which decided that a constable arresting a person on suspicion of felony must take him before a justice to be examined ‘as soon as he reasonably can’. Chief Justice Phillip Street and his two colleagues awarded Bailey £250 damages for the illegal police deviation and search.
The decision was referred to with approval by courts many times during the ensuing 70 years, including several times in the 1980s and 1990s by the High Court of Australia. In particular, it was approved in the case of Williams v The Queen in 1986, in which Justices Mason and Brennan (both later to become Chief Justice) wrote a joint decision in which they traced the history of the principle.
They first referred to the opinion of the great English lawyer William Blackstone, in his famous 1765 work Commentaries on the Laws of England, that ‘personal liberty was an absolute right vested in the individual by the immutable laws of nature and has never been abridged by the laws of England without sufficient cause.’ They then quoted Justice Fullagar in a 1955 High Court decision, in which the judge described personal liberty as ‘the most elementary and important of all common law rights’, and Justice Deane in a 1982 case, in which he said ‘it is of critical importance to the existence and protection of personal liberty under law that the restraints which the law imposes on police powers of arrest and detention be scrupulously observed.’ As in Clarke v Bailey, they went on to approve White v Court as an early court precedent for the principle.
In a separate concurring Judgement in the Williams case, Justices Ronald Wilson and Daryl Dawson referred to the purpose of arrest as being to bring a person before a court so that a charge can be made and dealt with by the judicial process.
In recent years, there has been much debate about precisely how long police should have in which to arrest an accused person, process him at a police station and bring him before a court. As a result of a view that police should have a short period after arrest in which to gather evidence and question an accused, the NSW and other state parliaments changed the law to allow such a period.
Accordingly, the Crimes Act (NSW) was amended several years ago to allow police four hours after arrest to bring an accused before a court or alternatively approach a court for permission to extend that period. The period could be extended by no more than a further eight hours, making 12 hours in total. The paper work, processing and court appearance would need to occur within the 4 (or up to 12) hour period, unless the Court had adjourned for the day when the appearance would occur the following morning. If at the end of the period a charge was not laid, the person would need to be released immediately.
That is the present law in this State, with similar provisions existing in the other States.
What the Prime Minister and the Premiers are now proposing is that persons suspected of terrorist offences not be charged at all, but simply detained for up to two weeks. The reason this is so objectionable is that it will not be necessary for police to have any evidence at all of the commission of an offence. A mere suspicion will be enough.
Why is this proposal necessary if the purpose is to prevent further terrorist acts?
Surely the normal arrest and detention of a person (for no more than four hours) would achieve that objective. Is any self-respecting terrorist really going to continue with their plans after release from police custody, when he is aware the police are on to them?
Clearly, the accused terrorist would be aware that their every move would be electronically or otherwise monitored after release.
So what is the Prime Minister on about? Is this just a diversion from petrol prices, industrial relations and student unions? Or is it wedge politics, noting that the Premiers are all Labor opponents and the public, only vaguely aware of their legal rights, would likely support tough measures purporting to curb terrorist action? One suspects a combination of both – and the Premiers have meekly given in.
The danger is that, once any such proposal becomes law, the police in this State would have carte blanche to arrest anyone on suspicion alone and lock them away for up to two weeks without charge. This is unacceptable even if there were to be regular supervision by a court during the period. What precisely is the court supposed to do – simply rubber stamp a continuous investigation?
One also wonders whether the court supervision will be conducted in a public courtroom (a vital and normal practice). It should certainly not occur in a judge’s chambers, where after a cosy chat a judge is persuaded by affidavit evidence, unchallengeable by the detainee, to extend their detention. It is open courts which should perform any supervisory function, not the ombudsman or some commission or other arm of the executive government or even of the parliament. The courts’ role as an open, independent third arm of our system is critical in this context.
However, even these objections miss the point. The centuries-old arrest process is essentially a mechanism to bring a person before a court on a charge. The idea that people can be deprived of liberty even though there is no evidence likely to sustain a charge is a strike against two of the most fundamental rights we too often take for granted – the presumption of innocence; and even more importantly, the right to liberty.
It is the preservation of liberty which has most influenced the courts referred to above. They (and previously the legislatures) have ensured that only persons formally charged with the commission of a crime can be deprived of their liberty. Even then you have a right to request bail, which is granted more often than not.
One wonders what Bailey would think of all this, his lawyer having successfully argued that the police could not even take him to a pub to search him on the way to court!
And who was that lawyer? It was Percy Spender, later the Liberal member for Warringah, Federal Treasurer and, after 1949, the Foreign Minister in the Menzies Government. He ended his career as a judge of the International Court of Justice, being appointed President of that court prior to his retirement in 1967.
He and Bailey would be rolling in their graves.