Imagine that you found yourself arrested in a New South Wales country town; Dubbo, for example. The local constabulary tell you that you are guilty of some offence and that you are now looking at several weeks inside. You know you are innocent.
If you know the law, you are anxious, certainly, but you are not dismayed. You know that in New South Wales the police must ‘as soon as is reasonably practicable, take [you] … before an authorised officer to be dealt with according to law’.1 This will be a magistrate, or another independent person, who will review your arrest. You also know that in New South Wales ‘as soon as is reasonably practicable’ is normally interpreted as being within 24 hours, 365 days of the year.
All Australians who find themselves detained against their will have a right to be brought before a court or other independent body to ensure that the terms of their detention are lawful. This ancient right is protected in the civil law through the writ of habeas corpus and in the legislative rules requiring prompt review of criminal detention in each state and territory.
Timely independent review of restrictions on liberty is also applied in the medico-legal context. For example, while the Guardianship Act 1987 (NSW) allows a person responsible or guardian to consent to medical treatment for a patient who lacks capacity, if that patient objects to the treatment, the Act stipulates that a quasi-judicial body — the Guardianship Tribunal — must authorise this consent, to check that this deprivation of freedom is justified.2 The Tribunal is available to hear urgent matters around the clock and urgent orders are usually made within a week.3
At the time of writing, New South Wales law demands a similar timely independent review of measures that restrict the liberty of people with mental illnesses. The Mental Health Act 2007 (NSW) stipulates that people who are deemed ‘mentally ill persons’ must be taken before a magistrate ‘as soon as practicable’ after two doctors decide they warrant detention.4 Currently, and since 1958,5 ‘as soon as practicable’ is interpreted as meaning within a week or so. Again the short timeframe is intended to protect the civil rights of the person detained.6
If, however, changes proposed to the operation of the Mental Health Act are allowed to proceed, people living with mental illnesses in New South Wales may have lost a substantial degree of this human rights protection by the time this article is published.