Home | Databases | WorldLII | Search | Feedback New Zealand Bill of Rights Act Reports

Habeas Corpus Amendment Bill (Consistent) (Section 23(1)(c)) [2012] NZBORARp 24 (23 July 2012)

Last Updated: 27 April 2019

Habeas Corpus Amendment Bill

23 July 2012 ATTORNEY-GENERAL LEGAL ADVICE

CONSISTENCY WITH THE NEW ZEALAND BILL OF RIGHTS ACT 1990: HABEAS CORPUS AMENDMENT BILL

1. We have considered whether the Habeas Corpus Amendment Bill (‘the Bill’) is consistent with the rights and freedoms affirmed in the New Zealand Bill of Rights Act 1990 (‘the Bill of Rights Act’). The Bill was introduced into the House of Representatives on 28 June 2012 and is awaiting first reading. The Bill is a Member’s Bill in the name of Chris Auchinvole MP. We understand that the next Members’ Day is 25 July 2012.
   
2. In summary, the Bill amends the Habeas Corpus Act 2001 to implement procedural changes recommended in Law Commission Habeas corpus: refining the procedure (NZLC R100, 2007).
   
3. Habeas corpus is protected by s 23(1)(c) of the Bill of Rights Act, which states that everyone who is arrested or detained under any enactment shall have the right to have the validity of the arrest or detention determined without delay by way of habeas corpus, and to be released if the arrest or detention is not lawful.
   
4. The proposed Bill makes a number of procedural amendments, principally:
   
   • a Judge may dispense with the requirement to list the inter partes hearing within three working days of filing of the application
   • an application may be transferred to the Family Court without first being determined, or may be refused without inquiry into the lawfulness of the detention if a Judge is satisfied that the application for a writ of habeas corpus is not the correct procedure or that the application has previously been determined, and
   • hearings may be conducted by video link or other authorised technology.
     
5. The ordinary rule will remain that a hearing should be listed within three working days, but the timeframe may be extended by a Judge after having heard from the parties. The requirement to dispose of an application as a matter of priority and urgency is undisturbed, therefore protecting the right to have an application determined “without delay”.
   
6. The provision for an application to be dismissed or transferred without inquiry would only arise where the validity of the detention, and therefore the right in s 23(1)(c), is not properly in issue.

7. The proposed Bill does not alter or reduce the substantive right protected but makes procedural changes together with adequate safeguards.
   
8. We have concluded that the Bill appears to be consistent with the rights and freedoms affirmed in the Bill of Rights Act. This advice has been prepared by the Public Law Group and the Office of Legal Counsel.
   

Melanie Webb

Acting Chief Legal Counsel Office of Legal Counsel

In addition to the general disclaimer for all documents on this website, please note the following: This advice was prepared to assist the Attorney-General to determine whether a report should be made to Parliament under s 7 of the New Zealand Bill of Rights Act 1990 in relation to the Habeas Corpus Amendment Bill. It should not be used or acted upon for any other purpose. The advice does no more than assess whether the Bill complies with the minimum guarantees contained in the New Zealand Bill of Rights Act. The release of this advice should not be taken to indicate that the Attorney-General agrees with all aspects of it, nor does its release constitute a general waiver of legal professional privilege in respect of this or any other matter. Whilst care has been taken to ensure that this document is an accurate reproduction of the advice provided to the Attorney-General, neither the Ministry of Justice nor the Crown Law Office accepts any liability for any errors or omissions.