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Report 44

Habeas Corpus Procedure

November 1997

Wellington, New Zealand

Table of Contents

The Law Commission is an independent, publicly funded, central advisory body established by statute to undertake the systematic review, reform and development of the law of New Zealand. Its purpose is to help achieve law that is just, principled, and accessible, and that

reflects the heritage and aspirations of the peoples of New Zealand.

The Commissioners are:

The Honourable Justice Baragwanath – President
Joanne Morris OBE
Judge Margaret Lee
DF Dugdale
Denese Henare ONZM
Timothy Brewer ED

The Director of the Law Commission is Robert Buchanan

The office is at 89 The Terrace, Wellington
Postal address: PO Box 2590, Wellington 6001, New Zealand
Document Exchange Number: SP 23534
Telephone: (04) 473–3453, Facsimile: (04) 471–0959

Report/Law Commission, Wellington, 1997

ISSN 0113–2334 ISBN 1–877187–14–3

This report may be cited as: NZLC R44

Also published as Parliamentary Paper E 31AF

20 November 1997

Dear Minister

I am pleased to submit to you Report 44 of the Law Commission, Habeas Corpus: Procedure.

Habeas corpus ad subjiciendum is a writ for a person’s release from unlawful detention. When any person is arrested or detained, the validity of that detention may be tested by an application for habeas corpus.

Liberty of the person and freedom from arbitrary arrest are among the most important rights that New Zealand law protects. As a means of securing everyone’s right not to be arbitrarily – including unlawfully – detained, “the great writ” of habeas corpus has long been widely accepted as a constitutional protection of basic importance. So, in the Magna Carta of 1215, it was provided that “no free man shall be taken or imprisoned or disseized of his . . . liberties . . . but by the law of the land.”

That New Zealand courts should provide effective means for testing the legality of detention is recognised internationally (see article 9(4) of the International Covenant on Civil and Political Rights 1966, ratified by New Zealand 28 December 1978). New Zealand’s first (1983) Report under the Covenant stated that “anyone who is deprived of his liberty by arrest or detention is able to institute an application for a writ of habeas corpus at common law” (para 108). The 1985 White Paper, A Bill of Rights for New Zealand, acknowledged habeas corpus as a remedy from New Zealand courts’ existing armoury for ensuring the lawfulness of arrest or detention: paras 10.101 and 10.184.

But in New Zealand today habeas corpus can be obtained

only through English procedures. These procedures, devised for English courts, must be adapted so that they can apply in New Zealand. Sometimes this necessary adaptation can be achieved only with difficulty. A new procedure for habeas corpus applications was included in the 1984 Judicature Amendment Bill that enacted the High Court Rules 1985. But concerns, such as that the scope of the writ should not be limited inadvertently, led as a temporary measure to these provisions being deferred for further consideration.

As well as not reflecting adequately the constitutional status of habeas corpus, the current arrangements fail to provide a procedure that is modern, clear, well-integrated with related procedures, and locally appropriate. Traditionally courts also issued writs of habeas corpus (“produce the body”) for other purposes, like summoning prisoners to give evidence. Nowadays courts’ powers for these other purposes are provided for by specific statutory provisions, so these unnecessary and obscure other writs of habeas corpus should be abolished. Personal liability of judges under the Imperial Acts should also be removed.

Yours sincerely

The Hon Justice Baragwanath

The Hon Douglas Graham MP
Minister of Justice
Parliament House

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