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Human rights are defined as being the implicit rights belonging to each and every individual, regardless of race, colour, religion, where they live and what they believe or think1. The Universal Declaration of Human Rights was created by the United Nations to explicitly outline the rights that belong to all humans.
A current and recurring issue in today’s society is the arbitrary arrest and detention of individuals on an international scale. Arbitrary detention and arrest is described as being the unlawful capture and detainment of a person, without the explanation of the reason of their capture. Usually, captives have little to no idea of why they have been imprisoned, are not spoken to or allowed to speak to anybody outside of prison. Legal responses that have been implemented in regards to the issue include; The United Nations Working Group on Arbitrary Detention and Arrest, Article 9 of the Universal Declaration of Human Rights and Trial International. Non-legal responses to this issue include the work of; Amnesty International, Front Line Defenders and the Media.
International organisations have tried to control the issue of arbitrary detention and arrest through the implementation of international conventions such as Article 9 of the Universal Declaration of Human Rights2 (and its application to the International Covenant on Civil and Political Rights3), along with the establishment of The United Nations Working Group on Arbitrary Detention and Arrest4 and the involvement of Trial International5. Article 9 of the Universal Declaration of Human Rights states; “no one shall be subjected to arbitrary arrest, detention or exile”. Article 9 has been very successful in explicitly outlining the right to freedom and liberty belonging to individuals and provides a strong basis for constitutions to use this Article to protect humans from arbitrary detention and arrest. However, Article 9 has not been used to its full potential, with little to no recognition of it in differing states laws, including that of Australia. The United Nations Working Group on Arbitrary Detention and Arrest aims to provide a support network for individual complaints about arbitrary detention to be made, where correct legal action can be taken. This group hold the legal right to open any national or international case about arbitrary detention and arrest and have been very successful in reviewing current detention issues worldwide and in providing judgement and legal advice according to the issue. Trial International works with lawyers to ensure that victims of arbitrary detention and arrest receive justice for their unlawful detainment. It works solely with the thought of victims in mind, concerning themselves with their welfare and safety and connection to their families during and after their period of detention.
Non-legal organisations have also launched campaigns to draw attention to the global issue of arbitrary detention and arrest. Such non-legal responses include the work of Amnesty International6, the involvement of Front Line Defenders7 and the involvement of the media. Amnesty International aims to highlight and campaign for victims of arbitrary detention and arrest, in a bid to lobby national governments to take action about a case. For example, Amnesty International is currently trying to receive 40000 email signatures regarding the arbitrary detainment of Mexican national, Enrique Aviña Guerrero8. Its aim is to ‘make headlines’ with an online petition to press the Mexican government to review their detainment of Enrique and to begin negotiations to bring him home to his family. Front Line Defenders aims to protect human rights activists that are arbitrarily detained for promoting their work. The organisation began the campaign #arbitrarydetention to raise awareness about stories and the plight of human rights activists in such situations, through the use of social media platforms. The media plays the biggest role in highlighting stories of arbitrary arrest and detention that is playing out on a global scale. The media acts as the ‘go-between’ for legal and non-legal responses to the issue, promoting the collaboration and discussion between all parties as to the best course of action to take. Media articles such as “Arbitrary Detention and False Persecution Continues in Belarus”9 and “Passenger complaint gets flight crew arrested, sparks international incident”10 along with other recent articles, all aim to draw attention from the public as to current issues regarding arbitrary arrest and detention. The first article outlined the detention of Belarussian poet, Uladizimir Niakliayeu, who was arbitrarily arrested on the basis of supposed relations to public demonstrations in Minsk. However, Niakliayeu was never told why he was arrested, only interrogated about his work and consequently held in inhumane conditions while detained. The other media article was about Air France staff being arbitrarily arrested after landing in Argentina on a flight from France to Buenos Aires, with four staff members being held in prison and interrogated then released with absolutely no explanation for their capture at all. The media attention surrounding these cases prompted the United Nations to look into and review the issue.
Within Australia, arbitrary detention does occur and such a case occurred in 2004 with Fardon v. Attorney General QLD 11, which was a High Court ruling to extend Mr. Fardon’s prison sentence beyond his serviceable time, without his knowledge. Mr. Fardon’s sentence was extended, not for personal punishment, but for the protection of the community. The Queensland Supreme Court ruled in 2006 that Mr Fardon could be released if he had strict supervision until 2016 and was due for release on 9th November 2006. However, the Supreme Court immediately appealed the decision and Fardon remained imprisoned, not being told why. The decision to keep Mr Fardon imprisoned without his being told why, was a direct violation on his rights to freedom and liberty of the person.
Within the Australian Constitution, under section 75 (v), the High Court has jurisdiction when rights are prohibited or sought against an officer of the Commonwealth. The Crimes Act 1914, includes two sections that relate to detention and arrest including; Divisions 10 and Section 15AA. Division 10 authorises the making of a preventative detention order where it is necessary to detain a person to prevent a terrorist act. Section 15AA sets out the presumption against the granting of bail to persons charged with terrorism offences. The Australian Security Intelligence Organisation Act 1979 allows for a ‘questioning and detention warrant’, authorising a person to be questioned by ASIO and detained by a police officer. The Migration Act 1958 sets out boundaries for which unlawful non-citizens in the migration zone must be placed in immigration detention. Although there are differing state laws regarding the right to freedom and liberty of the person, most laws in place regard the capture and arrest of terrorists or suspected and/or other involved persons. Law Reform is needed in terms of the Australian Constitution to include Article 9 of the UDHR as an express right, so that general citizens are also protected and covered by domestic law.
In conclusion, the global issue of arbitrary detention and arrest is a growing concern among nations. Although Conventions have been put into place and legal and non-legal responses have been made in response to the issue, there is still a long way to go in regards to eliminating the issue completely. The arbitrary arrest and detention of individuals is a cruel practice that breaches upon the human right of freedom and liberty of the person. The only way that the issue of arbitrary detention and arrest can be minimised, is for legal and non-legal systems to continue working together to achieve justice for all.

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