Habeas Corpus Amendment Bill
Habeas Corpus Amendment Bill
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Habeas Corpus Amendment Bill
Habeas Corpus Amendment Bill
Member's Bill
34—2
As reported from the Justice and Electoral Committee
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Chris Auchinvole
Habeas Corpus Amendment Bill
Member's Bill
34—2
Contents
4 Section 8 amended (Description of defendant by reference only to office)
7 Section 14 amended (Determination of applications)
8 New section 14A inserted (Application for writ is civil proceeding under Courts (Remote Participation) Act 2010)
The Parliament of New Zealand enacts as follows:
1 Title
This Act is the Habeas Corpus Amendment Act 2012.
2 Commencement
This Act comes into force on the day after the date on which it receives the Royal assent.
3 Principal Act
This Act amends the Habeas Corpus Act 2001 (the principal Act).
4 Section 8 amended (Description of defendant by reference only to office)
Replace section 8(a) with:
“(a) the chief executive of the department for the time being responsible for the administration of the Corrections Act 2004, if the detained person is alleged to be illegally detained in a corrections prison; or”.
5 Section 9 amended (Urgency)
-
(1) In section 9(1), after
“Court”
insert“unless
.the courta Judge of that court considers that the circumstances require otherwise”(2) In section 9(3), replace“The Registrar”
with“Unless a Judge otherwise orders, the Registrar”
.(3) After section 9(3), insert:“(4) A Judge may not make any order under subsection (3) without giving the parties to the proceeding an opportunity to be heard (whether by conference convened under section 10A or otherwise).”.
6 New section 10A inserted
After section 10, insert:“10A Power to convene teleconferences-
“(1) A Judge may, on application or on his or her own initiative, convene a conference of the parties to an application for the purpose of making any order or giving any directions considered necessary or desirable for the just and efficient determination of the application, including“(a) extending under section 9(3) the time for hearing the application:
“(b) directing that the hearing of the application be conducted by video link or other technology under section 14A.
“(2) A conference under this section may be or be convened by, telephone conference, video link, or by using any other form of technology authorised by rules of court, or may be held in chambers.”
-
7 Section 14 amended (Determination of applications)
-
(1) After section 14(1), insert:
-
“(1A) Despite subsection (1), the High Court may refuse an application for the issue of the writ, without requiring the defendant to establish that the detention of the detained person is lawful, if the court is satisfied that—
“(a) section 15(1) applies; or
“(b) an application for the issue of a writ of habeas corpus is not the appropriate procedure for considering the allegations made by the applicant.”
(2) In section 14(3), replace
“A Judge”
with“Subject to section 13(2), a Judge”
. -
8 New section 14A inserted (Application for writ is civil proceeding under Courts (Remote Participation) Act 2010)
After section 14, insert:
“14A Hearing by video link or other authorised technology-
“(1) A Judge may, on application or on his or her own initiative, direct that an application be heard by video link or by any other technology authorised by rules of court, if the Judge is satisfied that for any reason a hearing by video link or by using any other technology authorised by rules of court is in the interests of justice.“(2) A hearing conducted under this section—“(a) has effect as if the Judge were physically present; and
“(b) does not affect the privileges and immunities of the Judge or of any witness, counsel, or the parties appearing at the hearing.
“14A Application for writ is civil proceeding under Courts (Remote Participation) Act 2010
To avoid doubt, an application for a writ of habeas corpus is a civil proceeding for the purposes of the Courts (Remote Participation) Act 2010.”
-
9 Section 17 amended (Urgency in hearing appeals)
-
(1) In section 17(1), after
“Appeal”
, insert“unless that court or a Judge of that court considers that the circumstances require otherwise”
.(2) In section 17(1A), after
“the Supreme Court”
, insert“unless that court or a Judge of that court considers that the circumstances require otherwise”
.
10 Section 20 amended (Rules)
In section 20, replace subsection (2) with:
-
“(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 replace the form.
-
“(a) authorising the use of any specified technology as a means of—“(i) convening conferences under section 10A; or
“(ii) conducting hearings under section 14A:
“(b) regulating the manner in which hearings under section 14A are conducted:
“(c) amending the form in the Schedule or replacing the form.”.
-
-
11 Schedule amended
In the form in the Schedule, replace
“Chief Justice of Our High Court of New Zealand”
with“Judge of the High Court of New Zealand”
.
12 Transitional provision
The amendments made by this Act apply in respect of an application made under the principal Act whether before, on, or after the commencement of this Act.
Legislative history | |
|---|---|
| 28 June 2012 | Introduction (Bill 34–1) |
| 15 August 2012 | First reading and referral to Justice and Electoral Committee |
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Habeas Corpus Amendment Bill
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Commentary
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.
Appendix
Committee process
The Habeas Corpus Amendment Bill was referred to the committee on 15 August 2012. The closing date for submissions was 28 September 2012. We received and considered five submissions from interested groups and individuals. We heard one submission.
We received advice from the Ministry of Justice.
Committee membership
Tim Macindoe (Chairperson)
Dr Jackie Blue
Dr Cam Calder
Charles Chauvel
Hon Lianne Dalziel
Julie Anne Genter
Alfred Ngaro
Denis O’Rourke
Katrina Shanks