Habeas Corpus Act 2001

Reprint
as at 29 November 2010

Crest

Habeas Corpus Act 2001

Public Act2001 No 31
Date of assent25 May 2001
Commencementsee section 2
Note

Changes authorised by section 17C of the Acts and Regulations Publication Act 1989 have been made in this reprint.

A general outline of these changes is set out in the notes at the end of this reprint, together with other explanatory material about this reprint.

This Act is administered by the Ministry of Justice.

1 Title

  • This Act is the Habeas Corpus Act 2001.

2 Commencement

  • This Act comes into force on the day after the date on which it receives the Royal assent.

3 Interpretation

  • In this Act, unless the context otherwise requires,—

    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

    High Court Rules has the same meaning as in the Judicature Act 1908

    Judge means a Judge of the High Court

    Registrar includes a Deputy Registrar

    working day has the same meaning as in the High Court Rules.

4 Application of Act to the Crown and Parliament

  • (1) This Act binds the Crown.

    (2) Nothing in this Act limits or affects the power or authority of the House of Representatives to punish for contempt.

5 Purposes

  • The purposes of this Act are—

    • (a) to reaffirm the historic and constitutional purpose of the writ of habeas corpus as a vital means of safeguarding individual liberty:

    • (b) to make better provision for restoring the liberty of persons unlawfully detained by establishing an effective procedure for applications to the High Court for the issue of a writ of habeas corpus, and the expeditious determination of those applications:

    • (c) to provide certain unsuccessful parties in habeas corpus proceedings with a right of appeal to the Court of Appeal:

    • (d) to abolish writs of habeas corpus other than the writ of habeas corpus ad subjiciendum.

Application for writ of habeas corpus

6 Application for writ of habeas corpus to challenge legality of detention

  • An application to challenge the legality of a person's detention may be made by an application for a writ of habeas corpus.

7 Manner of application for writ

  • (1) An application for a writ of habeas corpus must be made to the High Court by originating application in the manner provided by the High Court Rules.

    (2) Despite subsection (1), nothing in that subsection excludes the inherent jurisdiction of the High Court to hear and to make an order on an oral application at any time in circumstances of unusual urgency.

    (3) Despite subsection (1), the provisions of any High Court Rule providing for directions by the court before the hearing, or affecting the hearing, of an originating application or empowering the court to convene a conference of the parties to an originating application do not apply to an application.

    (4) No applicant may be disqualified for lack of capacity or standing.

    (5) In a proceeding for a writ of habeas corpus—

    • (a) no party to the proceeding is 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

    • (b) the High Court Rules concerning discovery and inspection of documents and security for costs do not apply.

    (6) No fee is payable to the High Court for filing any document in respect of an application.

    (7) Section 51E of the Judicature Act 1908 does not apply in respect of the form and manner of any application made under this Act.

8 Description of defendant by reference only to office

  • A defendant may be described in an application by reference only to the defendant's office if the defendant is—

    • (a) the prison manager of a prison in which the detained person is alleged to be illegally detained; or

    • (b) the Commissioner of Police, if the detained person is alleged to be illegally detained in Police custody except following the exercise of powers under the Immigration Act 2009; or

    • (c) the chief executive of the department of State that is, with the authority of the Prime Minister, for the time being responsible for the administration of the Immigration Act 2009, if the detained person is alleged to be illegally detained in custody following the exercise of powers under that Act; or

    • (d) the chief executive of the New Zealand Customs Service, if the detained person is alleged to be illegally detained in the custody of the New Zealand Customs Service; or

    • (e) any other office holder prescribed by rules made in accordance with section 20, and in the circumstances prescribed in those rules.

    Section 8(a): amended, on 1 June 2005, by section 206 of the Corrections Act 2004 (2004 No 50).

    Section 8(b): amended, at 2 am on 29 November 2010, by section 406(1) of the Immigration Act 2009 (2009 No 51).

    Section 8(c): substituted, at 2 am on 29 November 2010, by section 406(1) of the Immigration Act 2009 (2009 No 51).

    Section 8(d): amended, on 26 May 2001, pursuant to section 294(3) of the Customs and Excise Act 1996 (1996 No 27).

9 Urgency

  • (1) An application for a writ of habeas corpus must be given precedence over all other matters before the High Court.

    (2) Judges and employees of the Ministry of Justice must ensure that every application, including any interlocutory application, is disposed of as a matter of priority and urgency.

    (3) The Registrar must allocate a date for the inter partes hearing of an application that is no later than 3 working days after the date on which the application is filed.

    Section 9(1): amended, on 1 October 2003, pursuant to section 14(1) of the State Sector Amendment Act 2003 (2003 No 41).

10 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 9(3); and any other Registrar or employee of the Ministry of Justice 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.

    (3) This section applies in substitution for any provision of the High Court Rules relating to the transfer of notices of application filed at a time when a Judge is not present.

    Section 10(1): amended, on 1 October 2003, pursuant to section 14(1) of the State Sector Amendment Act 2003 (2003 No 41).

Determination of applications

11 Interim orders for release from detention

  • (1) The High Court may make an interim order for the release from detention of the detained person pending final determination of the application, and may attach any conditions to the order that the court thinks appropriate to the circumstances.

    (2) In the case of a detained person who is charged with an offence to which the Bail Act 2000 applies, 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 that Act.

    (3) If a person has been released from detention under an interim order, the court may, on the application of the person released or any party to the proceeding or on the court's own initiative, make an order—

    • (a) revoking the interim order; or

    • (b) varying or revoking any condition of the interim order or substituting or imposing any other condition.

    (4) If a detained person who is in custody under a conviction is released under an interim order, the time during which the person is released does not count as part of any term of detention under the person's sentence if on a final determination of the application the writ of habeas corpus is refused.

12 Power of arrest of absconder etc

  • (1) A constable may arrest without warrant a person who has been released from detention under an interim order made under section 11 if the constable believes on reasonable grounds that—

    • (a) the person 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 the person's original detention; or

    • (b) the person has failed to comply with any condition attached to the interim order.

    (2) A person who is arrested under this section must be brought before the High Court as soon as possible.

    (3) The court may revoke the interim order if it is satisfied that the person had absconded or was about to abscond or had failed 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.

    (4) A constable may, for the purposes of this section, enter at any time onto any premises, by force if necessary, if the constable has reasonable cause to believe that the person released from detention is on those premises.

    (5) If the constable is not in uniform and a person in actual occupation of the premises requires the constable to produce evidence of his or her authority, the constable must, before entering on the premises, produce his or her badge or other evidence of membership of the Police.

    Section 12(1): amended, on 1 October 2008, pursuant to section 116(a)(ii) of the Policing Act 2008 (2008 No 72).

    Section 12(4): amended, on 1 October 2008, pursuant to section 116(a)(ii) of the Policing Act 2008 (2008 No 72).

    Section 12(5): amended, on 1 October 2008, pursuant to section 116(a)(ii) of the Policing Act 2008 (2008 No 72).

13 Powers if person detained is young person

  • (1) In dealing with an application in relation to a detained person who is under the age of 18 years, the High Court may exercise the powers that are conferred on a Family Court by the Care of Children Act 2004.

    (2) If the substantive issue in an application is the welfare of a person under the age of 16 years, the High Court may, on its own initiative or at the request of a party to the proceeding, transfer the application to a Family Court.

    (3) An application referred under subsection (2) must be dealt with by the Family Court in all respects as if it were an application to that court under the Care of Children Act 2004.

    Section 13(1): amended, on 1 July 2005, by section 151 of the Care of Children Act 2004 (2004 No 90).

    Section 13(3): amended, on 1 July 2005, by section 151 of the Care of Children Act 2004 (2004 No 90).

14 Determination of applications

  • (1) If the defendant fails to establish that the detention of the detained person is lawful, the High Court must grant as a matter of right a writ of habeas corpus ordering the release of the detained person from detention.

    (2) A Judge dealing with an application must 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 into question—

    • (a) a conviction of an offence by a court of competent jurisdiction, the Court Martial of New Zealand established under section 8 of the Court Martial Act 2007, or a disciplinary officer acting under Part 5 of the Armed Forces Discipline Act 1971; or

    • (b) a ruling as to bail by a court of competent jurisdiction.

    (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 detained person.

    (4) All matters relating to the costs of and incidental to an application are 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 the Schedule.

    Section 14(2)(a): substituted, on 1 July 2009, by section 87 of the Court Martial Act 2007 (2007 No 101).

15 Finality of determinations

  • (1) Subject to the rights of appeal conferred by section 16 of this Act and to sections 7 to 10 of the Supreme Court Act 2003, the determination of an application is final and no further application can be made by any person 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 refused.

    (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 substantially the same grounds as those considered by the court when the earlier release was ordered.

    (3) Subsection (2) has no application if the ground on which the earlier release was ordered was a jurisdictional or procedural defect that has since been corrected or no longer applies.

    Section 15(1): amended, on 1 January 2004, by section 48(1) of the Supreme Court Act 2003 (2003 No 53).

Appeals by certain unsuccessful parties

16 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—

    • (a) apply with respect to a determination refusing an application for the issue of a writ of habeas corpus; but

    • (b) do not apply to a final determination that orders the release from detention of a detained person unless the substantive issue is the welfare of a person under the age of 16 years.

    (1A) With the leave of the Supreme Court, a party to the proceeding in which the determination was made may appeal to the Supreme Court—

    • (a) against a determination refusing an application for the issue of a writ of habeas corpus:

    • (b) if the substantive issue is the welfare of a person under the age of 16 years, against a final determination that orders the release from detention of a detained person.

    (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.

    (3) No fee is payable to the Court of Appeal or the Supreme Court for filing any document in respect of an appeal against the refusal of an application.

    Section 16(1A): inserted, on 1 January 2004, by section 48(1) of the Supreme Court Act 2003 (2003 No 53).

    Section 16(3): amended, on 1 January 2004, by section 48(1) of the Supreme Court Act 2003 (2003 No 53).

17 Urgency in hearing appeals

  • (1) An appeal under this Act must be given precedence over all other matters before the Court of Appeal.

    (1A) The following must be given precedence over all other matters before the Supreme Court:

    • (a) an application for leave to appeal against a decision of the Court of Appeal on an appeal under this Act:

    • (b) an application for leave to appeal under paragraph (a) or paragraph (b) of section 16(1A):

    • (c) an appeal against a decision of the Court of Appeal on an appeal under this Act:

    • (d) an appeal under paragraph (a) or paragraph (b) of section 16(1A).

    (2) Judges of the Court of Appeal or the Supreme Court, and employees of the Ministry of Justice, must use their best endeavours to ensure that every appeal under this Act or paragraph (a) or paragraph (b) of section 16(1A) is disposed of as a matter of priority and urgency.

    Section 17(1A): inserted, on 1 January 2004, by section 48(1) of the Supreme Court Act 2003 (2003 No 53).

    Section 17(2): substituted, on 1 January 2004, by section 48(1) of the Supreme Court Act 2003 (2003 No 53).

Miscellaneous provisions

18 Abolition of certain writs

  • It is declared for the avoidance of doubt that all writs of habeas corpus other than the writ of habeas corpus ad subjiciendum are abolished.

19 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 made to 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 11, 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 or the Supreme Court to punish any person for contempt of court in any case to which this section does not apply.

    Section 19(2): amended, on 1 January 2004, by section 48(1) of the Supreme Court Act 2003 (2003 No 53).

20 Rules

  • (1) Rules not inconsistent with this Act may be made under section 51C of the Judicature Act 1908 regulating the practice and procedure of the High Court and the Court of Appeal and the Supreme Court in relation to applications under this Act.

    (2) Without limiting subsection (1), rules may be made under section 51C of the Judicature Act 1908 that amend the form in the Schedule or revoke the form and substitute a new one.

    Section 20(1): amended, on 1 January 2004, by section 48(1) of the Supreme Court Act 2003 (2003 No 53).

21 Supplementary procedure

  • If a matter arises in relation to an application for which this Act does not provide, the High Court must 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.

22 Repeals and amendments

  • (1), (2) Amendment(s) incorporated in the Act(s).

    (3) Sections 17 to 19, and 21 of the Interpretation Act 1999 apply to the enactments referred to in subsection (2) as if those enactments were Acts of the Parliament of New Zealand.

Schedule
Writ of habeas corpus

s 14(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 detained person 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............. 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.

Contents

  • 1General

  • 2Status of reprints

  • 3How reprints are prepared

  • 4Changes made under section 17C of the Acts and Regulations Publication Act 1989

  • 5List of amendments incorporated in this reprint (most recent first)

Notes
1 General

  • This is a reprint of the Habeas Corpus Act 2001. The reprint incorporates all the amendments to the Act as at 29 November 2010, as specified in the list of amendments at the end of these notes.

    Relevant provisions of any amending enactments that contain transitional, savings, or application provisions that cannot be compiled in the reprint are also included, after the principal enactment, in chronological order. For more information, see http://www.pco.parliament.govt.nz/reprints/ .

2 Status of reprints

  • Under section 16D of the Acts and Regulations Publication Act 1989, reprints are presumed to correctly state, as at the date of the reprint, the law enacted by the principal enactment and by the amendments to that enactment. This presumption applies even though editorial changes authorised by section 17C of the Acts and Regulations Publication Act 1989 have been made in the reprint.

    This presumption may be rebutted by producing the official volumes of statutes or statutory regulations in which the principal enactment and its amendments are contained.

3 How reprints are prepared

  • A number of editorial conventions are followed in the preparation of reprints. For example, the enacting words are not included in Acts, and provisions that are repealed or revoked are omitted. For a detailed list of the editorial conventions, see http://www.pco.parliament.govt.nz/editorial-conventions/ or Part 8 of the Tables of New Zealand Acts and Ordinances and Statutory Regulations and Deemed Regulations in Force.

4 Changes made under section 17C of the Acts and Regulations Publication Act 1989

  • Section 17C of the Acts and Regulations Publication Act 1989 authorises the making of editorial changes in a reprint as set out in sections 17D and 17E of that Act so that, to the extent permitted, the format and style of the reprinted enactment is consistent with current legislative drafting practice. Changes that would alter the effect of the legislation are not permitted.

    A new format of legislation was introduced on 1 January 2000. Changes to legislative drafting style have also been made since 1997, and are ongoing. To the extent permitted by section 17C of the Acts and Regulations Publication Act 1989, all legislation reprinted after 1 January 2000 is in the new format for legislation and reflects current drafting practice at the time of the reprint.

    In outline, the editorial changes made in reprints under the authority of section 17C of the Acts and Regulations Publication Act 1989 are set out below, and they have been applied, where relevant, in the preparation of this reprint:

    • •omission of unnecessary referential words (such as “of this section” and “of this Act”)

    • •typeface and type size (Times Roman, generally in 11.5 point)

    • •layout of provisions, including:

      • •indentation

      • •position of section headings (eg, the number and heading now appear above the section)

    • •format of definitions (eg, the defined term now appears in bold type, without quotation marks)

    • •format of dates (eg, a date formerly expressed as “the 1st day of January 1999” is now expressed as “1 January 1999”)

    • •position of the date of assent (it now appears on the front page of each Act)

    • •punctuation (eg, colons are not used after definitions)

    • •Parts numbered with roman numerals are replaced with arabic numerals, and all cross-references are changed accordingly

    • •case and appearance of letters and words, including:

      • •format of headings (eg, headings where each word formerly appeared with an initial capital letter followed by small capital letters are amended so that the heading appears in bold, with only the first word (and any proper nouns) appearing with an initial capital letter)

      • •small capital letters in section and subsection references are now capital letters

    • •schedules are renumbered (eg, Schedule 1 replaces First Schedule), and all cross-references are changed accordingly

    • •running heads (the information that appears at the top of each page)

    • •format of two-column schedules of consequential amendments, and schedules of repeals (eg, they are rearranged into alphabetical order, rather than chronological).

5 List of amendments incorporated in this reprint (most recent first)