Section 21 both protects a person’s right to liberty and security, and sets out the minimum rights of individuals who are arrested or detained.

  • The right to liberty applies to all forms of detention.
  • Any arrest or detention must be lawful and must not be arbitrary.
  • An arrest or detention that is unlawful is likely to also be arbitrary. However, an arrest or detention may be arbitrary even though it is lawful.
  • For a person’s arrest or detention to be lawful it must be authorised.
  • To avoid arbitrary arrest or detention, enforcement officers should only arrest or detain someone in accordance with established procedures.
  • The right to security applies both inside and outside detention. It means that a person’s physical security must be protected in circumstances where a public authority is aware that it may be under threat.
  • Any person who is arrested or detained must be told (a) the reason for the arrest or detention; and (b) about any proceedings to be brought against him or her.
  • A person who is arrested or detained on a criminal charge must be promptly brought before a court, brought to trial without unreasonable delay, and released if neither requirement is met. You should consult the discussion section on these requirements if they are relevant to your policy or legislation.
  • A person has a right to be released pending trial, subject to certain guarantees. These are outlined in s. 21(6) and discussed above. This right may be limited, for example, to ensure the presence of the accused at the trial, to avert interference with witnesses and other evidence, or avert the commission of other offences.
  • Any person who has been arrested or detained has the right to challenge the lawfulness of his or her detention in court, without delay;
  • A person must not be imprisoned only because he or she cannot fulfil a contractual obligation.