FREEDOM OF THE PERSON
Freedom of the person is not secured in New Zealand by constitutional guarantee or positive legislation. It is recognised negatively by the common-law presumption that any invasion of personal freedom, whether by the State or an individual, is unlawful and must be justified by showing express legal authority for it.
Subject to exceptions created by Parliament, no one may be restrained, confined, or assaulted, assault covering any application of physical force, however slight. These exceptions are, however, numerous. Most are based on the principle that it is proper to restrict an exercise of freedom that is likely to cause disproportionate harm to others. Good illustrations of this are the powers given in the Health Act of 1956 and elsewhere to deal with those factors which are liable to spread infectious disease. There are also a few cases where a person may be forcibly interfered with for his own good, for instance, to prevent his committing suicide. Persons who have attempted suicide may be detained under a Magistrate's order for care and treatment, although attempted suicide ceased to be a crime in 1961. Aged, infirm, and destitute persons living in insanitary conditions or without proper care or attention may be removed without their consent to hospital. Mentally ill or deficient people may be committed to a mental hospital by Court order if detention is in the interests either of themselves or of others. On the other hand, New Zealand law firmly adheres to the rule that no one of responsible years may be forced to undergo medical or psychiatric examination or to submit to medical or surgical treatment or procedures unless the welfare of others requires it.
An important aspect of freedom of the person concerns arrest and detention for a breach or supposed breach of the law. The powers of the police to arrest with and without warrant are wide. It may be asserted, however, that in every case the person arrested must have been caught in the act or there must be a reasonable suspicion that he has committed a specific offence for which a power of arrest is given. Preventive detention, that is, in the sense of holding without trial a person who is not charged with an offence, but who is regarded as dangerous to the State or his fellows, does not exist in New Zealand.
The Crimes Act of 1961 requires anyone arrested to be brought before a Court as soon as possible. A person accused of an offence punishable only by fine or by imprisonment for less than three years, and who has not previously been convicted of an offence punishable by imprisonment, is entitled to bail. Except on a charge of treason or spying, the Court has a discretion in every other case. Where bail is not granted, the accused may be imprisoned pending trial, but the Courts retain control over the length of the detention. Cases determined in the Magistrates' Courts are usually disposed of speedily, often immediately. In a serious case to be tried in the Supreme Court, the accused is committed for trial at the next sittings of the Court in the particular district. In a few smaller centres sittings are every four months; elsewhere every three months. Occasionally a case has to be held over until the following sittings, but if that occurs the Court may grant bail if it has hitherto been refused. If it considered that there had been undue delay, it could require the case to be brought on.
Anyone wrongfully assaulted or detained may recover damages, but the important remedy against unlawful detention in New Zealand, as in other common-law countries, is the writ of habeas corpus. It should not be overlooked, however, that this remedy is available only where the detention is in fact unlawful. Parliament could either directly or by delegating its powers authorise the detention without trial of persons whose activities it disliked, or it could create new and sweeping offences. Moreover, it could suspend the writ itself, as happened more than once in England during the Industrial Revolution. The effective protection for the individual is the restraint of legislators, a restraint the guarantee of which is the force of public opinion.
by Bruce James Cameron, B.A., LL.M., Legal Adviser, Department of Justice, Wellington.