O'Rourke Denis: Habeas Corpus Amendment Bill — In Committee 
Text is incorporated into the Bound Volume 
O'Rourke Denis: Habeas Corpus Amendment Bill — In Committee 
[Sitting date: 13 March 2013. Volume:688;Page:8512. Text is incorporated into the Bound Volume.] 
DENIS O’ROURKE (NZ First) 
: 
 I want to first respond to the criticism of my speech in the second reading of this bill the Habeas Corpus Amendment Bill by the Green Party and also now by the honourable member Chris Auchinvole the sponsor of this bill of the National Party. The criticism was that having welcomed the bill on its introduction I and New Zealand First are now opposing it. Initially the bill appeared to be making a practical improvement to the way habeas corpus applications were dealt with by the courts so I and New Zealand First supported the bill’s referral to the Justice and Electoral Committee for scrutiny there. That scrutiny has shown the bill as introduced to be significantly defective so New Zealand First will not now support it. I do not see anything at all illogical about that. In fact I would say that the Green Party’s criticism and National’s criticism both appear to be a rather pathetic excuse for the fact that both of those parties now have no good argument to continue to support this bill. In the end the bill in fact does next to nothing to improve the habeas corpus procedure. It is now amended almost out of existence. In fact the bill is a substantial waste of the House’s time I believe. 
There are five major defects. First of all clause 5 of the bill has been amended 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 in respect of one. As introduced the bill would have allowed courts or their judges to make decisions so the amendment is now that because of the interpretation of the word “court” only judges are able to do that. That is hardly worth a special bill in this House to do because there is no real change from the status quo. 
Secondly subclauses (2) and (3) of clause 5 of the bill as introduced have been removed so that we now retain the 3-day time frame within which habeas corpus applications must be heard. New Zealand First of course supports that. The bill as introduced would have allowed a judge to extend that period but the select committee found that: “there is little evidence that the current timeframe is problematic.” Having looked closely at the issue as part of that select committee process that the member referred to I can only agree with the committee’s conclusion. What that means is that the basis for the bill has really proved to be completely unnecessary. In other words the bill should not really have been considered in the first place. 
Thirdly as the select committee said: “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 …”. So again instead of what the bill says the select committee actually recommends the status quo. So again the bill has been found wanting in a very fundamental way. 
 Fourthly clause 6 has now been removed because as introduced the clause would allow a judge to convene a conference of the parties to determine how proceedings would advance including whether appearances would be made by remote means. The Justice and Electoral Committee found that: “In effect this provision restates the High Court’s existing rules”. So once again the Habeas Corpus Amendment Bill actually is a complete waste of time adds nothing in that respect and achieves nothing new. 
Fifthly clause 8 of the bill has been removed and replaced by a new clause to the effect that the provisions of the Courts (Remote Participation) Act 2010 apply to habeas corpus proceedings which of course is the case anyway and is precisely why the Act was passed in 2010. I have to wonder whether Mr Auchinvole actually knew that that Act had been passed because if he had then why would he be including in this bill something that was already achieved not long ago in 2010 by way of the Courts (Remote Participation) Act? Therefore the inclusion of that provision in this bill was yes just another waste of time. The select committee said: “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”. This provision in the bill is actually counterproductive and should not be supported. So it is not just a waste of time but it is actually retrograde—actually undoing some good. 
In the end we see that all of the main provisions of the bill are actually removed. Clause 5 has been amended to clarify that a registrar cannot make the decision under section 9(1) of the Habeas Corpus Act. Well big deal no real change. Clause 6 has been removed because it restates the existing High Court Rules—again big deal no real change. Clause 8 has been removed because the Courts (Remote Participation) Act 2010 has been passed. So we are actually left with nothing much at all in this bill as it now stands. Only clause 7 now stands simply to confirm that the High Court can refuse an application because habeas corpus is not the proper procedure. In fact that is something the court can already do. 
In the end the bill has not really proved to be worth Parliament’s time. New Zealand First supported the bill’s referral to the select committee because we think it is fair and proper that a member’s bill where it appears it may have some value should be scrutinised by a committee. But the committee has effectively amended it out of existence. New Zealand First was part of that process so rather than resile from it—as Mr Auchinvole suggested I perhaps should—I embrace it. I was part of the process I assisted in finding these defects and therefore now on behalf of New Zealand First I say that it is no longer necessary to have this bill at all. The correct procedure then is to vote against it so New Zealand First will now vote against it as it is a substantially unnecessary piece of work.