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1 It IS THE RIGHT OF EVERY INDIVIDUAL not to be imprisoned or detained either by the government acting arbitrarily and without due process, or by the wrongful act of another citizen or citizens. The fundamental constitutional importance of this right is not diminished by the circumstances that it is not the current practice of New Zealand governments to imprison their opponents in some local equivalent of the Tower of London, or that oubliettes are not a customary feature of New Zealand domestic architecture. Political imprisonment did not end with the Stuarts. In 1881 Gladstone’s government, by executive action,1 imprisoned Parnell for 6 months in Kilmainham Gaol in the hope (unrealised) that this would in some way dampen down Irish agrarian disturbances. Wartime internments are a more recent memory. The price of liberty is the maintenance of an armament to defend it.
2 It is easy enough to affirm, as does the New Zealand Bill of Rights Act 1990 s 22, that “everyone has the right not to be arbitrarily arrested or detained”, but a right without a remedy is an empty thing. The lesson to be learned from English constitutional history since at least the sixteenth century is of the need for an effective procedure to enforce the right. The provision of that procedure was the principal purpose of the various Habeas Corpus Acts commencing with that of 1640.
3 The procedure that had evolved to test the lawfulness of detention involved the issue of a writ, originally in Latin, commencing with the imperative “Habeas corpus ad subjiciendum”: Produce [to the Court] the body of a named person so that there may be subjected to scrutiny the justification claimed for that person’s detention. It was from this wording that, as early as the thirteenth century, there derived the name “habeas corpus” for this area of the law.
4 The English practice, pleading and procedure of habeas corpus applied to New Zealand by virtue of rule 606 of the former Code of Civil Procedure:
606 English practice to be followed
The practice, pleading, and procedure in the High Court on all informations and other criminal proceedings (other than those in relation to offences for which the offender may be proceeded against by indictment), and on application such as would be taken for a writ of habeas corpus, shall be the same as in England, so far as the English practice, pleading, and procedure are applicable to New Zealand and consistent with any other rules of the High Court and with the laws of New Zealand.
5 The 1984 Bill annexing the new High Court Rules, enacted as the Judicature Amendment Act 1985, included in those Rules a procedure for habeas corpus applications. But that part of what was proposed proved controversial. Rather than delay all of that long-awaited reform of the Civil Code, the provisions relating to habeas corpus were dropped and, as a temporary alternative, the Judicature Act 1908 s 54C was enacted:
54C Procedure in respect of habeas corpus
(1) The practice, pleading, and procedure in the High Court on an application for a writ of habeas corpus shall be the same as in England so far as the English practice, pleading, and procedure are applicable in New Zealand and consistent with any other rules of the High Court and with the laws of New Zealand.
(2) Subject to subsection (1) of this section, nothing in the High Court Rules affects the practice, pleading, or procedure in respect of an application for a writ of habeas corpus.
There the matter has remained. The problems of marrying “English practice, pleading, and procedure” to the current New Zealand procedure are described lucidly in appendix 3 to McGechan on Procedure (Wellington, Brooker’s, 1988).
6 The draft Act we recommend is not meant to define or alter the metes and bounds of the availability of the habeas corpus remedy, the flexibility of which has been one of its great strengths. (On the present width of the writ’s scope, see Barnardo v Ford [1892] AC 326 applied in Re Jayamohan [1996] 1 NZLR 172 (HC), (1997) 15 FRNZ 486 (CA)). As the received method of testing the legality of detention, habeas corpus is referred to in such statutes as the Fugitive Offenders Act 1881 (Imp) (ss 5–6, and 29A), the Extradition Act 1965 (ss 5, and 10–12), and the Immigration Act 1987 (s 128A). It has, in the past in New Zealand, provided a machinery for determining custody disputes, and it has even been suggested that it may have a use where the detention is not physical but the consequence of the brainwashing of impressionable persons by religious cults. A purpose of the draft Act we recommend is to provide, for the first time in this country, a procedure based on New Zealand practice and appropriate to New Zealand conditions.
7 The original English procedure required an ex parte application on which the applicant had to demonstrate a prima facie case for the issue of the writ. If the applicant succeeded, the next step was for the court to issue, and for there to be served, a writ requiring the respondent, within a limited time, to make a return setting out the justification advanced for the detention. The final step was a substantive hearing, at the conclusion of which the applicant’s release from detention was or was not directed. The simplified procedure that evolved from this was for the substantive issue to be determined inter partes on the point of whether or not the writ should be issued.
8 The procedure we recommend is even simpler. It is based on Part IVA of the High Court Rules, relating to originating applications. It provides for an application under that Part to be disposed of with urgency in the manner described in the draft Act and commentary that follow (see pages 11–28 and paras C1–C29).2 We are told that in Auckland (and perhaps elsewhere) the procedure that has evolved and is followed is not very different from that recommended in this report. In accepting this procedure judges have been properly anxious not to let matters of form stand in the way of civil liberties. The Commission prefers the procedure it recommends to the more complex approach suggested in McGechan.
9 It is sometimes asserted that an unsuccessful habeas corpus applicant has the right, if he or she fails before one judge, to renew the application before another judge. It is doubtful whether that is the law in New Zealand (see para C19) but, if it is, the draft Act abolishes any such right. Instead, the draft Act would confer on an unsuccessful applicant a right of appeal (as was done in England by s 15 of the Administration of Justice Act 1960): see section 13.
10 Unlike the English statute, the draft Act confers a right of appeal on an unsuccessful defendant only in custody cases, and the use of the habeas corpus procedure in those cases is likely to be rare. The absence of a right of appeal for an unsuccessful defendant in other cases drew some criticism from those from whom the Commission sought comment on a draft of this report (see para 22). That is not the traditional view:
[I]t was suggested that if there was an appeal in the one case, it was scarcely to be conceived that there should not be an appeal in the other. I do not think so. There would be to my mind nothing surprising if it should turn out that an appeal lay by one whose discharge had been refused, but that there was no appeal against a discharge from custody. It would be in strict analogy to that which has long been the law. The discharge could never be reviewed or interfered with; the refusal to discharge, on the other hand, was always open to review; and although this review was not, properly speaking, by way of appeal, its practical effect was precisely the same as if it had been.3
11 If the applicant’s release from detention is ordered that should be the end of the matter:
[I]t is a cardinal principle of the law of England, ever jealous for personal liberty, that when once a person has been held entitled to liberty by a competent Court there shall be no further question.4
12 The Commission’s recommendation is consistent with the appeal being a trade-off for statutory quietus being given to the right an unsuccessful applicant once had or was thought to have to renew the application before another judge. It was the decisions in Re Hastings5 denying a right of successive application that triggered the English statute conferring an appeal.6
13 It was suggested to the Commission that the absence of a right of appeal for the defendant makes it impossible for a defendant to challenge points of principle decided adversely to the defendant in habeas corpus proceedings. Reference was made to the 1976 case of Re Ashman and Best,7 which prompted the hasty enactment of the Fugitive Offenders Amendment Act 1976. The solution to this problem is the one adopted in Wybrow v Chief Electoral Officer [1980] 1 NZLR 147 (the ticks and crosses case), in which an unappealable High Court decision on an electoral petition was challenged by means of an application for a declaratory judgment removed into the Court of Appeal. This seems to the Commission a neater solution than the English one of allowing a defendant to appeal but on the basis that “it shall not affect the right of the person restrained to be discharged in pursuance of the order under appeal and . . . to remain at large regardless of the decision on appeal”: Administration of Justice Act 1960 s 15(4). There is no question of an unsuccessful defendant being estopped per rem judicatam in such subsequent proceedings as a claim for damages for wrongful detention.8
14 As para 6 mentions, habeas corpus proceedings have in the past been used as an appropriate procedure for determining custody disputes. Today, however, there is a perfectly satisfactory machinery provided by the Guardianship Act 1968. It would be undesirable if a practice arose of bypassing the expertise of the Family Court in favour of the fast-track offered by a new Habeas Corpus Act.9 The Commission is loath to withhold entirely the remedy of the habeas corpus procedure in custody situations, and so section 10(1) of the draft Act confers on the High Court the various special procedural powers (such as the right to appoint counsel for the child) conferred by the Guardianship Act. The draft Act also gives an unsuccessful defendant in custody cases a right of appeal. But to thwart the routine use of the habeas corpus procedure in custody cases we have (after consultation with the Principal Family Court Judge) included as section 10(2) a provision enabling removal of proceedings to the Family Court on the application of either party or by the court on its own motion.
15 Concern was expressed to us on behalf of the High Court judges, the Rules Committee and by the Solicitor-General (a member of the Rules Committee) that the draft Act would go too far in regulating procedure and create avoidable difficulties in amendment. The matter was expressed forcefully by the Chairman of the Rules Committee who, in a letter dated 3 September 1997, said that
placing rules of procedure in a statute has the practical effect of fragmenting the procedures applicable to civil proceedings and making them difficult to locate. It makes for inefficiency for the public, the court officers and the profession and greatly increases the danger that a procedural provision will be overlooked. It also freezes in time any special procedures for any particular class of proceeding with the result that such classes of proceeding cannot avail themselves of adaptations to the High Court Rules designed to increase efficiency and thereby better utilise the valuable resources of the courts.
16 In relation to the first two sentences, we are confident that the draft Act we recommend will be user-friendly, and we cannot imagine anyone with a habeas corpus problem doing other than reaching for the (very short) Habeas Corpus Act. On the point that the recommended Act would be difficult to amend, section 17 does of course make some provision for amendment.
17 But there is a more basic point of principle to be invoked in response to the criticism that the draft Act should not include provision for matters of procedure. The Imperial Acts to be replaced are largely concerned with spelling out detailed procedural rules (for example, tight time limits for steps in the proceeding). The existing Judicature Act 1908 provision which we recommend be repealed (s 54C) is concerned only with “practice, pleading, and procedure”. There is good reason for this. The right of freedom from arbitrary detention existed in English law well before the Habeas Corpus Acts. What Parliament in its long conflict with Crown and executive found to be missing was an effective procedure to enable the swift enforcement of that right. It was that lack that the Habeas Corpus Acts were designed to repair. (This is made clear by the preamble to the 1679 Act.) If that existing (though now archaic) procedure is to be replaced by a new procedure more suited to contemporary and local circumstances, the Commission has no doubt that the protection of the liberty of the subject requires that the new procedure too should be enshrined in an Act of Parliament. To do otherwise would be to leave the processes available to protect a basic constitutional right subject to the risk (however theoretical) of being restricted without any involvement by Parliament itself.
18 The habeas corpus procedure has always entitled the applicant to obtain in a summary way “an instant determination as to the lawfulness of an existing imprisonment. . . . It was as [Sir Edward] Coke described it festinum remedium”.10 The provisions of our draft Act, especially sections 6–7 and 14, endeavour to capture this tradition. Concern has been expressed that the provision in section 6(1) – for a habeas corpus application to have priority over other matters – may prove disruptive. But section 6(1) states the substance of the existing law,11 and we are confident that the judges and the employees of the Department for Courts will cope with any problems in the future as they have in the past. To the extent that section 6(1) may be disruptive, the Commission shares the traditional view that this is part of the price of preserving the liberty of the subject by providing “an expeditious and effectual method of restoring any person to his liberty who has been unjustly deprived thereof”.12 Access may be had to the whole of New Zealand’s judicial resources to resolve what is an issue of administration and priorities.
19 In many cases an applicant for habeas corpus will need legal aid. Our draft Act therefore provides (following consultation with the Legal Services Board) for an amendment to s 19 of the Legal Services Act 1991 to include habeas corpus applications within the definition of civil proceedings. This amendment would enable the invocation of the provision for urgency contained in s 25 of the Legal Services Act 1991.
20 Section 11(2) of the draft Act makes it clear that habeas corpus proceedings may not be employed to relitigate criminal convictions and bail applications. In an earlier draft we also attempted to restate the rather complicated rules determining the boundary between the powers of the courts and any parliamentary power to commit a person to prison. However, it was pointed out to us that the New Zealand Parliament had never exercised such a power and that we should not recommend provisions based on the possibly contentious premise that such a power exists.13 So the draft Act provides no more than that any power of the House of Representatives to punish for contempt is unaffected: section 4(2).
21 Historically there existed types of habeas corpus writs other than habeas corpus ad subjiciendum.14 Since each of these has been rendered obsolete by changes in the law,15 the opportunity has been taken formally to abolish them: section 15. The draft Act also would not repeat the provisions in the Imperial Acts (s 6 of the 1640 Act, and s 9 of the 1679 Act) that impose personal liability on judicial officers.
22 The Commission circulated a draft of this report (including the draft Act) to all the judges of the High Court and the Court of Appeal, to departments and Crown entities likely to be affected by the draft Act, to practising and academic lawyers known by the Commission to be interested in this field, and to civil liberties groups. With the reservations already referred to, the responses were overwhelmingly in support of what the Commission proposed. Many thoughtful proposals were made for improvement in matters of detail.
23 The Commission is especially grateful for the constructive comments and assistance of:
Hon Justice Blanchard
A Bracegirdle, Office of the Clerk of the House of Representatives
G Buchanan, Chief Legal Adviser, Department of Labour
Department for Courts/Te Tari Kooti
Hon Justice Doogue, Rules Committee Chairman
LJ Gibb, Legal Section, New Zealand Police National Headquarters
Hon Justice Gallen, Acting Chief Justice
Hon Justice Giles (on behalf of the Auckland High Court Judges)
RPG Haines, Barrister
Dr RE Harrison QC
PW Hogg QC, Professor of Law, Osgoode Hall Law School, York University
G Illingworth, Barrister
Ministry of Justice/Te Manatü Ture
Hon Justice Sir Kenneth Keith
JJ McGrath QC, Solicitor-General
Judge PD Mahony, Principal Family Court Judge
New Zealand Law Society
Rt Hon Sir Geoffrey Palmer
Hon Justice Pankhurst (on behalf of the South Island High Court Judges)
Hon Justice Potter
Hon Justice Robertson
DM Smith, Executive Director, Legal Services Board
M Soper, Crown Counsel, Rules Committee Secretary
M Taggart, Professor of Law, University of Auckland
Hon Justice Tompkins
The Commission is most grateful for all the help it has received, as a result of which the draft Act is much improved. We would make particular reference to help given by Mr GJX McCoy QC, whose knowledge of the law of habeas corpus is unrivalled. Ross Carter, a Commission researcher, worked on the preparation of this report. The provisions of the draft Act were prepared by Mr GC Thornton QC, legislative counsel to the Commission.
24 The Commission recommends that Parliament enact the draft Habeas Corpus Act included in this report.
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URL: http://www.nzlii.org/nz/other/nzlc/report/R44/R44-Introduc.html