O'Rourke Denis: Habeas Corpus Amendment Bill — First Reading 
Text is incorporated into the Bound Volume 
O'Rourke Denis: Habeas Corpus Amendment Bill — First Reading 
[Sitting date: 15 August 2012. Volume:682;Page:4441. Text is incorporated into the Bound Volume.] 
DENIS O’ROURKE (NZ First) 
: 
 The right to apply for a writ of habeas corpus as we know is a basic right under English law that has developed over centuries and the English Act of 1679 is the most important historical Act of those. There is an interesting story attached to the passing of that Act. It had had difficulty in passing through the House of Lords and had gone to and fro between the House of Lords and the House of Commons. On the last occasion in the Lords Lord Grey was one of the tellers. Seeing one very fat Lord going through the Ayes door he counted him as 10 in jest. 
Hon Member 
: No no—oh! 
DENIS O’ROURKE 
: He did. So the bill passed by 57 to 55 even though only 107 Lords were sitting at the time. So I just thought you would like to know how it arose. 
But habeas corpus in New Zealand is under the Habeas Corpus Act of 2001 and section 7(2) of the 2001 Act will not we think be affected by this amendment because it preserves “the inherent jurisdiction of the High Court to hear and make an order on an oral application at any time in circumstances of unusual urgency.” So we think the ancient law is preserved and this amendment does not alter this. Also it preserves no disqualification for lack of standing or capacity it preserves no discovery of documents available and it preserves no fee payable to file an application and all those are quite important issues as well. 
Section 9 of the 2001 Act is amended in three ways fundamentally. Section 9(1) giving habeas corpus precedence over other court matters is amended by adding the words “unless the court considers that the circumstances require otherwise” and secondly in section 9(3) the existing requirement for the application to be heard within 3 days remains. But now that will be subject to the words: “Unless a Judge otherwise orders”. We in New Zealand First think that is appropriate. It provides for some flexibility for the court in appropriate cases to allow for the efficient ordering of court business and prioritisation without compromising the need for prompt attention ordinarily within the 3-day limitation and it prevents abuse by applicants who ought to be using other procedures. Thirdly the new section 9(4) requires that parties be given an opportunity to be heard and that is very important as well. 
 In clause 6 which inserts new section 10A(1)(a) a judge can extend the 3-day time limit for the “just and efficient determination of the application”. The requirement for “just and efficient” should ensure a prompt hearing even if it goes beyond the 3-day rule so we see no problem there either. 
Clause 7 which amends section 14A(1) says that even if a defendant has not proved the lawfulness of the detention a judge can refuse to grant habeas corpus only if—two circumstances—firstly section 15(1) applies which prevents more than one application on substantially the same grounds or secondly the habeas corpus procedure is not the appropriate one having regard to the applicant’s allegations. That seems appropriate as well. It does not infringe the right of habeas corpus really at all in any genuine application. 
Finally the amendments to sections 17(1) and 17(1A) allow the Supreme Court in appeal not to comply with the usual requirements for habeas corpus if the court decides that “circumstances require otherwise” while otherwise giving precedence over all other court matters. That again we think is quite appropriate and allows some flexibility for the court to order its business efficiently. 
New Zealand First does approve and support the bill as a whole. We think it is well drafted is in accordance with the Law Commission’s recommendations and continues to preserve the fundamental right for any person to apply for a writ of habeas corpus and to have that dealt with expeditiously but with some flexibility for the court to reorder its priorities. So we will be voting for it. Thank you.