Police Powers and Citizen’s Rights

Greg Walsh OAM^[1]

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Presented as part of the Criminal Law CLE Conference

Toongabbie Legal Centre

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28 September 2019

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One of our greatest Jurists, Michael Kirby said “the protection of our liberties does not ultimately depend on Parliaments or even the Courts, it depends on the love of the people for liberty.”

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INTRODUCTION

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1. As Justice Kearney of the Northern Territory Supreme Court observed:

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   “It is a basic obligation of a police officer to be fully aware of limitations on his power to arrest, since the citizens’ right to personal liberty under the law is “the most elementary and important of all common law rights””.^[2].

2. As His Honour observed, a citizen’s right to personal liberty is at the cornerstone of all common law rights. Deane J in Donaldson v Broomby (1992) 60 FLR 124; 40 ALR 525; 50 Crim R 160 said:“Arrest is the deprivation of freedom. The ultimate instrument of arrest is force. The customary companions of arrest are ignominy and fear. A police power of arbitrary arrest is a negation of any true right to personal liberty. A police practice of arbitrary arrest is a hallmark of tyranny”.
3. This paper seeks to address the importance of citizens’ rights in the context of police powers.

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