Auchinvole Chris: Habeas Corpus Amendment Bill — First Reading 
Text is incorporated into the Bound Volume 
Auchinvole Chris: Habeas Corpus Amendment Bill — First Reading 
[Sitting date: 15 August 2012. Volume:682;Page:4435. Text is incorporated into the Bound Volume.] 
CHRIS AUCHINVOLE (National) 
: 
 I move  
That the Habeas Corpus Amendment Bill be now read a first time. 
 I nominate that the Justice and Electoral Committee consider this bill. 
The genesis of this bill the Habeas Corpus Amendment Bill occurred when I was in Opposition and was placed on the Justice and Electoral Committee. At the first meeting I attended the Law Commission represented by the Rt Hon Sir Geoffrey Palmer appeared before us for a financial review of its activities. The Hon Chris Finlayson who had explained to me that he thought it important that membership of the Justice and Electoral Committee should not just be the preserve of those with legal training and practice experience invited me to lead the queries to Sir Geoffrey. It was a great experience. One of the questions I asked Sir Geoffrey was: “How much of the commission’s revised work is taken up by parliamentarians and processed?”. In response he said that very little was taken up and he qualified it by saying that he understood that successive Governments had heavy legislative programmes and that it was not easy to fit revision bills into the programme. 
In response I undertook to introduce a member’s bill this particular one which adopts many of the Law Commission’s recommendations to further improve the Habeas Corpus Act which in itself was a member’s bill initially put in and passed through by the Hon Simon Power. It is a privilege to be following in his footsteps with this bill particularly with regard to this writ. 
The writ of habeas corpus is known as the “great writ” for good reason. It requires that the applicant be brought before the court and that the court examine the legality of detention whether public or private of that person—that is the writ exists to protect personal freedom from unlawful detention. It is a fundamental guarantee of liberty that no one can be imprisoned or detained without lawful authority. It has been called by New Zealand courts “the most famous of all writs” “the ancient and powerful prerogative remedy” and “an ancient and specialised jurisdiction”. It is a very old piece of legislation older indeed than Magna Carta. 
In spite of this or perhaps because of it—its importance as a foundation stone of a free and fair society—it has had a long history of being updated and improved as the ideal of freedom evolved and expanded. Even before the writ was brought to these shores it had already been through changes challenges and great improvements and had continued to prove its importance. As the Rt Hon Lord Sir Alfred Denning noted in his work  
Freedom under the Law 
: 
“In 1627 when the executive Government cast Sir Thomas Darnel and four other knights into prison because they would not subscribe money for the King the Court of the King’s Bench to its disgrace held that if a man were committed by command of the King he was not to be delivered by habeas corpus. Those were the … days when judges took their orders from the executive. But the people of England overthrew [that particular] Government which so assailed their liberties and passed statutes which gave the writ its present power. Never thereafter have the judges taken their orders from anyone.” 
The changes proposed in this bill are not quite as dramatic as was the case then. The situation today does not require such sweeping change but they are important changes for the continuing relevance of the writ. It is important that we have a modern justice system to deal with modern times technologies and legal practices. 
The writ was previously purely an instrument of the courts in common law but it was codified in the Habeas Corpus Act. In 2007 the Law Commission reviewed the workings of that Act and the practices that surround it and recommended certain amendments in order to improve its operation. Among these recommendations were removing the priority rule the extension of the 3-day rule and summary dismissals of inappropriate applications. 
By removing the priority rule—to explain each of those points—the High Court or a judge of that court will be given the ability to dispense in appropriate cases with the rule that habeas corpus applications take precedence over all other business. Currently that is the rule—habeas corpus must take precedence over all other business. The presumption will be in this bill that habeas corpus applications have precedence over other matters but with the ability of a judge—a High Court judge—to relax that presumption if circumstances demand it. The Law Commission gave examples of a court needing to intervene to ensure that children receive lifesaving medical treatment or an interim injunction to prevent publication of material that could endanger national security. The Law Commission was very clear that the requirement of priority and urgency for applications will remain. It said: “By amending the requirement for absolute precedence over all other court business it is not suggested that habeas corpus applications be dealt with in any other way than as a matter of priority and urgency.” 
The second amendment the extension of the 3-day rule will state that although a 3-working-day time frame for hearing an application should remain the ordinary rule—the ordinary rule—the High Court or a judge of that court should be given the ability to dispense with this exacting requirement again in cases that are appropriate. Applications should always be treated urgently. But in complex cases it may be well be and it is sometimes found that parties actually require more than 3 days’ preparation to argue the case properly. Otherwise there is a risk of inadequate decision-making or of judges issuing interim orders that have the effect of delaying a substantive decision longer than is necessary. 
Andrew Little 
: It’s about freedom not preparation. I thought you were the party of freedom. 
CHRIS AUCHINVOLE 
: As the Law Commission has said: “An inadequate timeframe can operate to the disadvantage”—Mr Little—“of the applicant as much as it can to a respondent.” Again this bill does not diminish the substantive rights and safeguards of the applicant during the process. 
The bill will provide a new power to dismiss applications without the need for the defendant to establish the lawfulness of the detention where the application is statute barred under section 15(1) of the Act or involves the wrong procedure. The judge could indicate the procedure by means of which the application is appropriately brought. Sometimes it is clear on the face of an application for habeas corpus that the writ could not be issued and this is one of the central problems that need to be addressed—for example when the writ has already been refused by the court or when a prisoner is serving an unexpired sentence. In that case an immediate release is not a possibility and yet the legal fraternity uses this as a device. 
The Law Commission noted that some of these applications appear to have been brought by applicants who know that it is the incorrect procedure. I am sure that members in the House with legal practice experience will be able to elucidate on the way applications for habeas corpus can be used as a device to defer High Court activity and for other reasons. Allowing judges to summarily dismiss such applications will save time and make our courts more efficient. 
The bill also provides an express provision permitting pre-hearing conferences by telephone video link or other technology authorised by the rules of the court so it brings it into modern communication practice. This will allow greater numbers of applications to be disposed of with more efficiency especially for the summary cases I have just referred to while still being consistent with the rights and freedoms affirmed in the New Zealand Bill of Rights Act 1990. 
To conclude this bill further clears courts of inappropriate stalling tactics it allows judges to serve justice in a timely fashion and it is part of this Government’s focus on promoting an effective efficient and fair justice system. This bill promotes a better justice system and I hope it will garner the support of this House as its intentions towards the great writ are noble and in keeping with the intentions of the writ itself. I thank the House for its time and look forward to hearing discussion from my esteemed fellow members of Parliament on this bill. Thank you.