Home | Databases | WorldLII | Search | Feedback Waikato Law Review

Ball, Wendy; Mackinnon, Ken --- "Book Reviews" [2000] WkoLawRw 9; (2000) 8 Waikato Law Review 161

BOOK REVIEWS

HABEAS CORPUS: AUSTRALIA, NEW ZEALAND THE SOUTH PACIFIC, by David Clark and Gerard McCoy. Palmerston North, Dunmore Press, 2000, 300 pp. Price $119.95 (incl gst).

“The writ of habeas corpus is rather like a classic that everyone has heard of but no one has actually read” states the first sentence of this text.

Rising to the challenge, I sallied forth into what I imagined was an area where the going would be somewhat rough. It was not. I encountered a text which vividly told of the history, context, process and procedure of the remedy of habeas corpus, from 1678 to the present day.

As the authors state (at pp 14 and 15), the writ has been lauded for its history and also labelled as being outdated. The authors successfully strive to place the remedy’s context by walking the reader through its history in this Australasian and South Pacific region.

We travel from Jeremy Bentham’s criticism of the absence of the writ in the penal colonies of New South Wales in 1803 to the first Supreme Court sittings in Auckland in 1842. We traverse the effects of MŠori insurrections on the issue of the writ in the Winara Parata case of 1880 ((1880) O, B & F 31 (SC)). Here the detainee was incarcerated in a Dunedin prison and did not wish to be released even though his father had sought the writ. The MŠori Wars brought MŠori prisoner legislation, which was designed in effect to deprive prisoners “of the right to apply for a writ of habeas corpus” (at pp 184-185). This was followed by indemnity legislation, which allowed a Colonial Governor to pass indemnity legislation to cover his own acts while in office (at p 185, referring to the Indemnity Act 1866 (NZ), section 2, and the Indemnity Act (NZ), section 2). This legislation highlighted the struggles of the day.

The reader then travels through the history of the remedy, including the World Wars and emergency legislation which saw the suspension of habeas corpus. The authors present the following quote (at pp 184 and 185) which demonstrates how the currency of the writ was doubted:

The safety of the country is infinitely more precious than empty talk about Habeas Corpus, or the Bill of Rights, or the Magna Carta. All these things will crumble to dust unless we are successful in this struggle. This is no time for academic talk about the liberty of the subject when the very foundations of real liberty are in danger of complete destruction.

We are then shown in succeeding chapters how important and user-friendly this writ is to the countries under examination.

In chapter three we see the use of the writ in bail applications in New South Wales, in terms of the Bail Act 1978 (NSW). The writers point out that the writ does not generally extend to damages or compensation, as its primary aim (from its conception) is that of the liberty rights of human beings. In chapter four, the writers analyse jurisdictional rules. The writers make the important point (at p 73) that the writ cannot be used against Superior Courts because:

the non-reviewability of the orders of these courts rests on two bases. The first is that historically the writ has never been lain in respect of a sentence of a superior court where the prisoner is said to be in due execution. ... secondly, that the writ, though sought by a citizen usually, is actually issued by the judges at the instance of the Crown and the Courts have maintained that the Crown cannot review itself.

The pitfalls and exceptions to this, as with all other aspects of the issuing of the remedy, are explored in depth by the authors. They canvass extradition orders, orders regarding refugee cases, and the power of the Speaker of the House.

The text is broad in its coverage of the workings of the habeas corpus writ and extends the discussion to cover areas such as child custody (in chapter five). In this chapter the writ is explained in terms of its parallel to guardianship and custody legislation. The currency of the text is shown by its references throughout to the draft Habeas Corpus Bill 1999 (NZ). Section 10 of this Bill provides that child custody cases should be referred to the Guardianship Act 1968 rather than proceed through the formality of the laying of a habeas corpus. This chapter goes on to deal with the registration of an order between jurisdictions in the Australasian region (see p 137, citing Crain v Crain [1991] NZFLR 224).

Chapter six deals with standing for the order and those who seek it, including children, other individuals and organisations. We are then taken into the complexity of grounds of review (chapter seven), and territorial limits (chapter eight) where foreign jurisdictions and the power of domicile in child abduction cases are traversed. The New Zealand Court of Appeal decision of Jayamohan v Jayamohan (1997) 15 FRNZ 486 (CA) is cited, in which the Court of Appeal maintained that a full bench was necessary to decide a case where the writ was in issue, again indicating the Court’s serious application of the remedy in current applications.

Chapter nine deals with this remedy in light of emergencies. The authors mention the Fiji Coups D’Etat in 1987 and the Constitution of July 1997 where the right to protection of personal liberty and rights of detainees was mandated. This certainly is topical in light of the recent political situation in Fiji and the mention of the remedy of habeas corpus for the leaders of the recent coup.

Practice and procedure are dealt with in detail in a lengthy chapter ten in which the authors have dealt with the issues arising from the writ’s use. This section is invaluable for those wanting to understand the correct usage of the writ, and deals with the main jurisdictions. This chapter would, however, not supply the step-by-step process necessary for practitioners.

At the end of this text I was surprisingly energised by the steep learning curve in reading what I had long thought of as a remedy outdated and certainly a classic not read. This is not a book for the “browser”. However, for academics, students and practitioners wanting an overview of the use of this writ in the jurisdictions covered, it is an ideal starting point, outlining the theoretical constructs of origin and usage.

WENDY BALL[*]

PRIVACY: INTERPRETING THE BROADCASTING STANDARDS AUTHORITY’S DECISIONS JANUARY 1990 TO JUNE 1998, by Michael Stace. Palmerston North, Dunmore Press, 1998, 103pp. Price $19.95 (incl gst).

To the rights-assertive modern world, one of the most surprising gaps in the common law must be the lack of an independent right to privacy and of a corresponding tort law protecting it. A century ago, the emerging Realist philosophy of judicial activism led to the creation of just such a right in the United States. It is only recently, however, that New Zealand judges, drawing in part from that American development, have attempted to delineate a similar right here (see P v D [2000] 2 NZLR 591). Parliament has stepped in to protect some aspects of privacy through legislation. The most familiar example of this legislative intervention is the Privacy Act 1993. However, that Act applies only to personal information and, even in respect of these matters, is severely restricted in relation to news media. A lesser known, but just as significant, provision for the protection of personal privacy is to be found in the Broadcasting Act 1989. Section 4(1) of the Broadcasting Act requires broadcasters to maintain standards which are “consistent with” inter alia, “the privacy of the individual”. It is the task of the Broadcasting Standards Authority to promote and enforce these standards.

This short book recounts the development by the Authority of an extremely valuable New Zealand jurisprudence of privacy which has a much wider scope than the protection of personal information. Using a chronological synopsis of the Authority’s leading decisions and Advisory Opinions, Michael Stace, who is the Authority’s Executive Director, sets out the issues which it had to confront. Starting from the tentative moves of some New Zealand judges towards the recognition of claims to privacy, the Authority incorporated elements from the American tort of invasion of privacy to arrive at initially five, and then later, two further “Privacy Principles”. Generally, Stace’s historical approach works well and the reader is shown the Authority tackling, for example, the fine balance between free speech and privacy claims, the significance of distinctions between public and private places, and the extent to which intrusion is justified by the public interest. However, it has to be said that one or two of the cases are summarised so cryptically as to make little sense unless the reader has already some familiarity with the incidents giving rise to them. Perhaps this is compensated for by the fact that readers can follow through a case that is of interest quite readily through the Authority’s user-friendly Web page.

What emerges from the work of the Authority is a conception of privacy wide enough to incorporate (a certain amount of) freedom from intrusion, prying and harassment, (a certain amount of) anonymity, and (a certain amount of) protection of personal details. The interpretation that the Authority has given to this “right to be let alone” by broadcasters takes into account both statutory constraints such as the Bill of Rights Act, and the presumed prevailing values of New Zealanders. The Authority’s approach has been endorsed in the High Court in TV3 v BSA [1995] 2 NZLR 720, and forms a rich resource for the future development of a tort of invasion of privacy. Michael Stace has performed a very useful service in extracting the privacy decisions from the now large number of cases concerning broadcasting standards which have gone before the Authority, and pointing out the trends behind those decisions. He should be encouraged to continue to do so through updates of the book.

But one is left wondering whether it is really enough simply to record the decisions, the Privacy Principles and their development. As Executive Director of the Broadcasting Standards Authority, Michael Stace may well have felt himself constrained to adopt the public service ethos of refusing to criticise or express personal opinions about the Authority’s decisions and reasoning. This suspicion seems to be confirmed when, in the closing paragraphs of the book, he – rather incongruously - adopts the persona of “the Authority”. His measured style throughout only hints at the existence of an underlying debate about the scope of privacy. This is a pity. The value of the book would be greatly augmented if the author went beyond chronicling and impartial analysis into a more detailed exploration of the philosophical underpinnings of the Authority’s approach, pointing out inconsistencies, challenging assumptions, and questioning the correctness of decisions. The book provides an excellent opportunity for a discussion of, say, the nature of “prying” or the relationship which the Authority has developed between the fair treatment of programme participants and their privacy. Indeed the format of each chapter (a synopsis of key cases followed by a summary of that stage in the development of the Authority’s thinking) would readily accommodate a “critical independent voice” at the end. Alternatively the concluding chapter might deal with these issues more fully. This observation of an opportunity missed should not, however, be taken as a denial of the undoubted utility of Stace’s clear exposition of the Authority’s decisions.

Only a proportion of the complaints dealt with by the Broadcasting Standards Authority relate to privacy matters. Michael Stace has performed a useful service in extracting these and drawing out the themes and developments within that particular area of the Authority’s responsibilities. His book is a handy guide to what is now quite a sizeable body of case-law. It will be a valued resource not only for those who have an interest in broadcasting standards but also for anyone involved in the evolution of a wider New Zealand jurisprudence of privacy.

Ken Mackinnon[*]

[*] Senior Lecturer in Law, University of Waikato.

[*] Associate Professor of Law, University of Waikato.