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DRAFT HABEAS CORPUS ACT

Public Act . . . of 199–

Royal Assent: Day Month 199–

Comes into force: Day Month 199–

CONTENTS

1 Title

2 Purposes

3 Definitions

4 Application to the Crown and contempt of Parliament

Application for a writ of habeas corpus

5 Manner of application for a writ

6 Urgency

7 Urgency where no resident judge available

Determination of applications

8 Interim orders for release from detention

9 Power of arrest of absconder etc

10 Powers as to young applicants

11 Determination of applications

12 Finality of determinations

Appeals by certain unsuccessful parties

13 Certain unsuccessful parties may appeal

14 Urgency of hearing appeals

Miscellaneous

15 Abolition of certain writs

16 Contempt of court

17 Power to make rules

18 Supplementary procedure

19 Repeals and amendments

Schedule 1 Writ of habeas corpus

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The Parliament of New Zealand enacts as follows 1 Title This Act is the Habeas Corpus Act 199–. Definitions: habeas corpus, s 3, Act, Acts Interpretation Act 1924 s 4 2 Purposes The purposes of the Act are (a) to reaffirm the historic and constitutional purpose of the writ of habeas corpus as a vital means of safeguarding individual liberty; and (b) to establish an efficient procedure for applications to the High Court for the issue of a writ of habeas corpus and the expeditious determination of habeas corpus applications and matters arising from such applications; and (c) to provide certain unsuccessful parties in habeas corpus proceedings with a right of appeal to the Court of Appeal; and (d) to abolish writs of habeas corpus other than the writ of habeas corpus ad subjiciendum. Definitions: applicant, application, habeas corpus, s 3; Act, Acts Interpretation Act 1924 s 4 3 Definitions In this Act applicant means the plaintiff in an application; application means an application to the High Court for a writ of habeas corpus; detention includes every form of restraint of liberty of the person; habeas corpus means habeas corpus ad subjiciendum; judge means a judge of the High Court; registrar includes a deputy registrar; Rules Committee means the Rules Committee established by section 51B of the Judicature Act 1908; working day means any day other than (a) a Saturday, Sunday, Good Friday, Easter Monday, Anzac Day, Labour Day, the Sovereign’s Birthday and Waitangi Day; and (b) a day in the period beginning on 20 December in any year and ending on 20 January in the following year. Definitions: Act, Acts Interpretation Act 1924 s 4	COMMENTARY Section 2 C1 Section 2 states the purposes of the Act, emphasising that it is directed to questions of procedure. Section 3 C2 Section 3 gives the meaning of terms the Act uses. C3 Habeas corpus means in the Act the writ of habeas corpus ad subjiciendum: commanding a person detaining another person to deliver the body of the prisoner with the cause of the prisoner’s detention so that a court can judge its sufficiency and remand the prisoner to prison, or admit the prisoner to bail, or release the prisoner. Historically there were four other writs of habeas corpus: habeas corpus ad testificandum: to enable a detained person to be brought before a court to give evidence; habeas corpus ad respondendum: to enable a detained person to be brought before a court for trial; habeas corpus ad deliberandum: to enable a detained person to be brought before a court for examination on any other charge; habeas corpus recipias: to enable a detained person to be removed for trial from the custody of one to the custody of another. Each of these four other habeas corpus writs is almost certainly obsolete in New Zealand, having been made unnecessary by the current terms of the Penal Institutions Act 1954 s 26, or, in cases of detention of a person elsewhere than in a penal institution, by courts’ powers to issue subpoenas and injunctions. Section 15 provides therefore for their abolition (see para C24).
4 Application to the Crown and contempt of Parliament (1) This Act binds the Crown. (2) This Act does not limit or affect the power or authority of the House of Representatives to punish for contempt. Definitions: Act, Acts Interpretation Act 1924 s 4 Application for a writ of habeas corpus 5 Manner of application for a writ (1) An application to challenge the legality of a person’s detention may be made by an application for a writ of habeas corpus. (2) An application for a writ of habeas corpus is to be made to the High Court by an originating application in the manner provided by Part IVA of the High Court Rules, but this subsection does not exclude the High Court’s inherent power to make an order on an oral application in circumstances of unusual urgency. (3) Notwithstanding subsection (2), rules 255, 458I, 458J, and 458K of the High Court Rules do not apply to an application and no applicant shall be disqualified for lack of capacity or standing. (4) A party to a proceeding for a writ of habeas corpus is not entitled to general or special discovery of the documents of any other party to the proceeding or to an order for security for costs and the High Court Rules concerning discovery and inspection of documents and security for costs do not apply. (5) No fee is payable to the High Court or the Court of Appeal for filing any document in respect of an application or an appeal against the refusal of an application. (6) An application may describe a defendant by reference only to his or her office as: (a) the Superintendent of a penal institution in which the applicant is alleged to be illegally detained; or (b) the Commissioner of Police if the applicant is alleged to be illegally detained in police custody, except following the exercise of powers under the Immigration Act 1987; or (c) the Secretary of Labour if the applicant is alleged to be illegally detained in police custody following the exercise of powers under the Immigration Act 1987; or (d) the Comptroller of Customs if the applicant is alleged to be illegally detained in the custody of the New Zealand Customs Service. Definitions: applicant, application, detention, habeas corpus, s 3; Act, High Court, Acts Interpretation Act 1924 s 4	Section 4 C4 The Act would bind the Crown: subsection (1). C5 Subsection (2), by analogy with s 9(a) of the Crimes Act 1961, provides that the Act in no way affects the power or authority of the House of Representatives to punish for contempt (see para 20, and compare Defamation Act 1992 s 54). Section 5 C6 Challenges to the legality of the detention of a person may be made by applications for the writ of habeas corpus: subsection (1). Section 5 is permissive. A plaintiff must be free to challenge the legality of his or her detention by means other than the fast-track habeas corpus procedure. A plaintiff may (and if he or she is likely to need discovery would be well advised to) prefer an application for judicial review, or may wish to bring an action for damages for the tort of false imprisonment. C7 The procedure is that for an originating application under Part IV of the High Court Rules: subsection (2). But, to expedite or facilitate applications, some of the High Court Rules are excluded, for example: subsection (3) excludes rules 458I (interlocutory application for directions), 458J (application for directions affecting hearing), and 458K (court may convene chambers conference for making an order or giving directions affecting hearing), subsection (3) also provides that no applicant shall be disqualified for a lack of capacity or standing, subsection (4) excludes rules about discovery and inspection of documents (eg, rules 297–317A) and security for costs (rule 60) – parties are not entitled to general or special discovery of any other party’s documents or to security for costs, and subsection (5) provides that no court filing fees are payable. Rule 255 of the High Court Rules is also excluded because section 7 of this Act provides specifically for speedy transfers of applications (see para C11). C8 To make the Act more user-friendly subsection (6) provides that certain defendants may be described in an application or a writ simply by reference to their offices (so relaxing the usual requirements of full name, occupation, and place of residence of rule 458E(4)(a)). See section 11(5) and Schedule 1 for a suggested form of the writ.
6 Urgency (1) An application for a writ of habeas corpus is to be given precedence over all other matters before the High Court and judges and employees of the Department for Courts are to ensure that every such application, including any interlocutory application, is disposed of as a matter of priority and urgency. (2) The registrar must allocate a date for the inter partes hearing of an application that is no later than 3 working days after the application is filed, and the allocated date must be shown on the notice of application in accordance with rule 458G of the High Court Rules. (3) Notwithstanding subsection (2), an application may be made to a judge at any time on any day, whether a working day or not. Definitions: application, habeas corpus, judge, registrar, working day, s 2; High Court, Acts Interpretation Act 1924 s 4 7 Urgency where no resident judge available (1) If an application is filed at a Registry of the High Court in a place where no judge is at that time available, the registrar must ensure that the application is dealt with in some other place within the time limit referred to in section 6(2); and any other registrar or employee of the Department for Courts whose assistance is sought by the registrar in whose Registry the application is filed has a corresponding obligation. (2) If subsection (1) applies, the registrar must (a) make such urgent enquiries as are necessary to determine where and by whom the application can most conveniently and expeditiously be dealt with; and (b) forward the application and any other relevant documents without delay to the registrar at the place where the application is to be dealt with; and (c) without delay inform every party to the proceeding of the action taken under this section. Definitions: application, judge, registrar, s 3	Section 6 C9 Each of the Imperial Habeas Corpus Acts in force in New Zealand (there are three, of 1640, 1679 and 1816, see Imperial Laws Application Act 1988 s 3(1) and First Schedule, for the texts see pages 29–58) emphasise the entitlement of an applicant for a writ of habeas corpus to urgency. So s 6 of the 1640 Act provides that the hearing of the application for a writ must be “without delay upon any pretence whatsoever” and that the hearing is to be at most within 3 days after the return of the writ. Section 1 of the 1679 Act provides that the return must be made within 3 days after service. Lord Eldon’s words seem appropriate here: The like writ [of habeas corpus] is to be granted out of the Court of Chancery, either in the time of the term (as in the King’s Bench), or in the vacation, for the Court of Chancery is officina justiciae, and is ever open, and never adjourned, so as the subject, being wrongfully imprisoned, may have justice for the liberty of his person, as well in the vacation time, as in the term. (Crowley’s Case (1818) 2 Swan 11, 48, as quoted in In re “N” (Infants) [1967] 1 Ch 512, 526, per Stamp J) C10 Like the provisions in the Imperial Habeas Corpus Acts, section 6 is designed to achieve urgency by: requiring judges and court employees to deal with habeas corpus applications as a matter of urgency, disposing of them before other matters: subsection (1); requiring registrars to allocate a hearing date that is within 3 working days of the filing of the application: subsection (2); and preserving what is probably the present law (see In re “N” (Infants) [1967] 1 Ch 512) that an application to a judge may be made at any time: subsection (3). Section 7 C11 Section 7 is a strengthened version of High Court Rule 255 and is intended to ensure that habeas corpus applications, more particularly those filed in provincial courts, are disposed of promptly.
Determination of applications 8 Interim orders for release from detention (1) The High Court may make an interim order for the release from detention of an applicant for a writ of habeas corpus pending final determination of the application and may attach such conditions to the order as the Court thinks appropriate to the circumstances. (2) In the case of an applicant who is charged with an offence, the Court must not make an order under this section if the Court is of the opinion that bail would not be granted to that person under the Crimes Act 1961 or under sections 45A to 50A of the Summary Proceedings Act 1957. (3) If a person has been released from detention under an interim order, the Court may, on the application of any party to the proceeding or on the Court’s own initiative, make an order varying or revoking any condition of the interim order or substituting or imposing any other condition. Definitions: applicant, application, detention, habeas corpus, judge, s 3 9 Power of arrest of absconder etc (1) A member of the police may arrest without warrant a person who has been released from detention under an interim order made under section 8 if the member of the police believes on reasonable grounds that (a) the person so released has absconded or is about to abscond for the purpose of evading any appearance or further appearance in Court in connection with the application; or (b) the person has failed to comply with any condition attached to the interim order. (2) Every person who is arrested under this section must be brought before the High Court as soon as possible and, if the Court is satisfied that the person had absconded or was about to abscond or did fail to comply with a condition attached to the interim order or an undertaking to the Court in reliance on which the interim order was made, the Court may revoke the interim order. (3) A member of the police may, for the purposes of this section, enter at any time on to any premises, by force if necessary, if the member of the police has reasonable cause to believe that the applicant is on those premises, but if that member of the police is not in uniform and a person in actual occupation of the premises requires the member of the police to produce evidence of his or her authority, the member of the police must before entering on the premises produce his or her badge or other evidence of membership of the police. Definitions: applicant, application, detention, judge, s 3	Section 8 C12 Section 8 provides for orders for release from detention pending final determination of a habeas corpus application. Section 9 C13 Section 9 complements section 8 by conferring powers in the event of a person released absconding or breaching a condition on which a court granted an interim order for release from detention.
10 Powers as to young applicants (1) In dealing with the application of a person who is under the age of 20 years, the High Court has and may exercise the powers that are conferred on a Family Court by the Guardianship Act 1968. (2) If the substantive issue in an application is the welfare of a person under the age of 16 years, the High Court may, of its own initiative or at the request of a party to the proceeding, transfer the application to a Family Court, and in such an event the application is to be dealt with by the Family Court in all respects as if it were an application to that Court under the Guardianship Act 1968. Definitions: application, judge, s 3; Family Court, Acts Interpretation Act 1924 s 4 11 Determination of applications (1) The High Court is to grant a writ of habeas corpus ordering the release of the applicant from detention as a matter of right and justice where the defendant fails to establish that the detention of the applicant is lawful. (2) A judge dealing with an application is to enquire into the matters of fact and law claimed to justify the detention and is not confined in that enquiry to the correction of jurisdictional errors. But this subsection does not entitle a judge to call in question (a) a conviction of an offence by a court of competent jurisdiction or a duly constituted court-martial; or (b) a ruling as to bail by a court of competent jurisdiction or a duly constituted court-martial. (3) A judge must determine an application by (a) refusing the application for the issue of the writ; or (b) issuing the writ ordering the release from detention of the applicant. (4) All matters relating to the costs of and incidental to an application are to be in the discretion of the Court and the Court may refuse costs to a successful party or order a successful party to pay costs to an unsuccessful party. (5) A writ of habeas corpus may be in the form set out in Schedule 1. Definitions: applicant, application, detention, habeas corpus, judge, s 3	Section 10 C14 Because use of habeas corpus proceedings for routine custody disputes is undesirable, the Court is given power to transfer proceedings to a Family Court (see para 14). If an application involves the custody of a child, the Court determining that application should have and be able to use the various special procedural powers available under the Guardianship Act 1968. Section 11 C15 Subsection (1) clarifies that the defendant bears the onus of justifying the detention and that if he or she fails to establish that the detention is lawful then the applicant is entitled as a matter of right to an order of release. Subsection (2) provides that courts considering whether or not a detention is lawful are not confined to considering the formal position, but are to examine the merits. (Compare ss 3–4 of the 1816 Act.) The wording of subsection (2) is intended to overcome the problems discussed, for example, by Professor Sir William Wade QC, “Habeas Corpus and Judicial Review” (1997) 113 LQR 55, and the Law Commission (England and Wales), Administrative Law: Judicial Review and Statutory Appeals (LAW COM 226, 1994), 93–97. Subsection (2) reproduces however the qualifications to this general rule in the existing law, namely that habeas corpus applications must not be used to relitigate the merits of criminal convictions, or of bail applications. Subsection (2) is also not intended to interfere in any way with the provisions of ss 7–9 of the Inferior Courts Procedure Act 1909, each of which empowers a court hearing a habeas corpus application to amend the record of proceeding in certain respects. C16 Subsection (3) confines the court to either granting or refusing an application. C17 Subsection (4) gives the court a general discretion in making orders about costs. It is included to avoid the argument in criminal cases that the general power in the High Court Rules (rule 46) may not apply. C18 Subsection (5) provides that the writ may take the form in Schedule 1.
12 Finality of determinations (1) Subject to the right of appeal conferred by section 13, the determination of an application is final and no further application can be made by the applicant either to the same or to a different judge on grounds requiring a re-examination by the Court of substantially the same questions as those considered by the Court when the earlier application was declined. (2) A person who has been released from detention in accordance with a writ of habeas corpus must not be re-arrested or detained again on grounds requiring a re-examination by the Court of substantially the same grounds as those considered by the Court when the earlier release was ordered. Definitions: applicant, application, detention, habeas corpus, judge, s 3 Appeals by certain unsuccessful parties 13 Certain unsuccessful parties may appeal (1) The provisions of the Judicature Act 1908 relating to appeals to the Court of Appeal against decisions of the High Court in civil cases apply with respect to a determination refusing an application for the issue of a writ of habeas corpus, but do not apply to a final determination that orders the release from detention of an applicant unless the substantive issue is the welfare of a person under the age of 16 years. (2) The court cannot order that security for costs be given by the appellant in an appeal against the refusal of an application where the respondent in the appeal is the Crown or a public officer or other person purporting to act on behalf of the Crown. Definitions: application, detention, habeas corpus, s 3 14 Urgency of hearing appeals An appeal under this Act is to be given precedence over all other matters before the Court of Appeal and judges of the Court of Appeal and employees of the Department for Courts are to use their best endeavours to ensure that every such appeal is disposed of as a matter of priority and urgency. Definitions: habeas corpus, s 3	Section 12 C19 Subsection (1) is designed to clarify that there is no right for an unsuccessful applicant (to whom section 13 gives a right of appeal) to renew an application. This is probably the existing law (see Ex parte Bouvey (No 2) (1900) 18 NZLR 601 and Re Hastings (No 2) [1959] 1 QB 358; Re Hastings (No 3) [1959] Ch 368; to the contrary effect are Eshugbayi Eleko v Officer Administering the Government of Nigeria [1928] 1 AC 459 (PC) and In re Tamasese [1929] NZLR 209, 211). C20 Subsection (2) (like s 5 of the 1679 Act) forbids re-arrest of a successful applicant on substantially the same grounds. It is intended to state the existing law as laid down in such cases as Attorney-General for Hong Kong v Kwok a Sing (1873) LR 5 PC 179, 202 and R v Governor of Brixton Prison, Ex parte Stallman [1912] 3 KB 424. Section 13 C21 Subsection (1) would introduce to New Zealand a right of appeal for applicants whose application is at first instance refused, and for defendants in custody cases (see para 9), but not for other unsuccessful defendants (see paras 10–13). C22 By analogy with appeals in criminal proceedings, subsection (2) provides that if the respondent is the Crown, a public officer, or a purported agent of the Crown, then the court cannot order the appellant to give security for costs. Section 14 C23 Section 14 is designed to ensure that appeals are disposed of swiftly.
Miscellaneous 15 Abolition of certain writs It is hereby declared for the avoidance of doubt that the writs of habeas corpus ad testificandum, habeas corpus ad respondendum, habeas corpus ad deliberandum, and habeas corpus recipias are abolished. 16 Contempt of court (1) A person commits a contempt of court who (a) wilfully hinders the prompt disposal of an application; or (b) being aware that an application has been filed in the High Court seeking the release from detention of a person, removes or attempts to remove that person from the jurisdiction of the Court; or (c) having been released under an interim order made under section 8, fails to comply with a condition attached to the order; or (d) wilfully fails to comply with a writ of habeas corpus ordering the release from detention of a person. (2) This section does not limit or affect any power or authority of the High Court or the Court of Appeal to punish any person for contempt of court in any case to which this section does not apply. Definitions: application, detention, habeas corpus, s 3 17 Power to make rules (1) The Rules Committee may for the purpose of facilitating the expeditious, inexpensive, and just disposal of applications under this Act, make rules not inconsistent with this Act regulating the practice and procedure of the High Court in relation to such applications and to the practice and procedure of the Court of Appeal in relation to appeals from refusals of such applications. (2) The Rules Committee may make rules amending the form in Schedule 1. (3) Section 51A of the Judicature Act 1908 is to apply to rules made under this section in the same way as it applies to High Court Rules. Definitions: application, habeas corpus, Rules Committee, s 3; Act, Acts Interpretation Act 1924 s 4	Section 15 C24 For clarity section 15 declares that four other habeas corpus writs rendered obsolete by changes in the law are abolished (see para 21, section 2(d), and para C3). Section 16 C25 Section 16 provides that certain acts constitute a contempt of court. Because habeas corpus is used in contexts including immigration and extradition (see, eg, s 5 of the Fugitive Offenders Act 1881 (UK)), and applications under s 5 of the Visiting Forces Act 1939, habeas corpus applications should not be frustrated by the removal of a person beyond New Zealand: subsection 16(b) (compare s 3 of the 1816 Act). Section 17 C26 Because the procedure envisaged is a new one, it is appropriate to empower the Rules Committee to supplement, in ways consistent with the Act, the provisions of the Act.
18 Supplementary procedure If a matter arises in relation to an application for which this Act does not provide, the High Court is to dispose of it as nearly as is practicable in a manner consistent with this Act, and to the extent that they are not inconsistent with this Act, in accordance with the High Court Rules. Definitions: application, s 3; Act, Acts Interpretation Act 1924 s 4 19 Repeals and amendments (1) Section 54C of the Judicature Act 1908 is repealed. (2) The First Schedule to the Imperial Laws Application Act 1988 is amended by repealing so much of it as relates to enactments relating to Habeas Corpus and accordingly (1640) 16 Cha 1, c. 10—The Habeas Corpus Act 1640, section 6, (1679) 31 Cha 2, c. 2—The Habeas Corpus Act 1679, sections 1 to 11, (1816) 56 Geo 3, c. 100—The Habeas Corpus Act 1816 cease to have effect as part of the laws of New Zealand. (3) Section 19(1) of the Legal Services Act 1991 is amended by inserting after paragraph (c) the following: “(ca) Proceedings in the High Court or the Court of Appeal relating to an application for a writ of habeas corpus:”. (4) Section 51E of the Judicature Act 1908 does not apply in respect of the form and manner of any application made under this Act to the High Court or a judge or to the Court of Appeal.	Section 18 C27 Section 18, broadly analogous to rule 9 of the High Court Rules, provides that matters not provided for are to be determined consistently with the Act and, to the extent that they are not inconsistent with the Act, the High Court Rules. Section 19 C28 Section 19 repeals the existing statutory provision (s 54C of the Judicature Act 1908) and, in their application to New Zealand, the Imperial Habeas Corpus Acts. C29 Subsection (3), by adding habeas corpus applications to the list of civil proceedings in the Legal Services Act 1991, enables legal aid applications for habeas corpus proceedings to be dealt with urgently under s 25 of that Act (see para 19).

SCHEDULE 1 WRIT OF HABEAS CORPUS

Habeas Corpus Act 199–

(Section 11(5))

(Intitulement)

Elizabeth the Second, by the Grace of God Queen of New Zealand and Her other Realms and Territories, Head of the Commonwealth, Defender of the Faith:

To: [Name, place of residence, and occupation of the defendant, or other person in whose custody the plaintiff is alleged to be detained]

We command you immediately to discharge and release from custody and detention [Full name] (who may be called by another name)

Witness the Chief Justice of Our High Court of New Zealand this

________________________day of____________________19 [or 20]_______

By Order of Court

(Deputy) Registrar

Warning:

Take notice that if you wilfully fail to comply with this writ of habeas corpus, the High Court will be moved as soon as counsel can be heard for an order committing you to prison for your contempt.