Recommendation

The Justice and Electoral Committee has examined the Habeas Corpus Amendment Bill and recommends that it be passed with the amendments shown.

Introduction

This bill seeks to amend the Habeas Corpus Act 2001 to make procedural changes to the writ of habeas corpus ad sub judiciem, as recommended in the Law Commission’s 2007 report, Habeas corpus: refining the procedure. Habeas corpus is a writ for a person’s release from unlawful detention.

Our commentary covers the major amendments we recommend to the bill. Minor and technical amendments are not discussed.

Precedence of other matters

We recommend clarifying clause 5 of the bill to ensure that only a judge would have the power to direct that another matter take precedence over a habeas corpus application or an appeal against a decision made on such an application. As introduced, the bill would allow courts or their judges to make decisions on the precedence of other matters over habeas corpus. We note that “court” could be interpreted to mean either a judge or a registrar. We agree with the Law Commission’s original intention that only a judge should have this power, and recommend this clarification to avoid any uncertainty.

Timing of applications

We also recommend removing subclauses (2) and (3) from clause 5 of the bill to retain the 3-day timeframe within which a habeas corpus application must be heard. The bill as introduced would allow a judge of the High Court to extend this period. We understand that there is little evidence that the current timeframe is problematic. We also note extending the timeframe could expand the court’s jurisdiction regarding habeas corpus, potentially leading it to determine matters that might be more appropriately dealt with by another procedure. This could have the unintended consequence of removing current rights of appeal against successful applications. Our proposed amendment would retain the status quo and protect current rights of appeal.

Powers of judges

We recommend removing clause 6. As introduced, this clause would allow a judge to convene a conference of the parties to a habeas corpus application and determine how proceedings would advance, including whether appearances would be made by remote means. In effect, this provision restates the High Court’s existing rules regarding the power of judges. We consider this to be unnecessary and potentially confusing, and recommend removing reference to these powers by deleting clause 6.

Remote participation

We recommend omitting clause 8 of the bill and substituting a new clause to the effect that the provisions of the Courts (Remote Participation) Act 2010 apply to habeas corpus proceedings (which are civil proceedings). Clause 8 as introduced would insert a new section enabling a judge to allow habeas corpus applications to be heard by video link or other court-authorised technology. The Courts (Remote Participation) Act allows audio-visual links to be used in courts and sets out decision-making criteria for different types of cases. This Act had not been enacted when the Law Commission recommended this amendment.

We support hearing habeas corpus applications by audio-visual link in appropriate cases. However, we think that having different requirements for audio-visual links in the principal Act and in the Courts (Remote Participation) Act could lead to confusion in interpretation. We also consider that as technology changes it would be simpler to make any future amendments solely to the Courts (Remote Participation) Act. Given the importance of the Habeas Corpus Act, we think that it should be amended as infrequently as possible. Our proposed amendments would confirm that the provisions in the Courts (Remote Participation) Act also apply to habeas corpus proceedings.