Little Andrew: Habeas Corpus Amendment Bill — Second Reading 
Text is incorporated into the Bound Volume 
Little Andrew: Habeas Corpus Amendment Bill — Second Reading 
[Sitting date: 20 February 2013. Volume:687;Page:8072. Text is incorporated into the Bound Volume.] 
ANDREW LITTLE (Labour) 
: 
 It is a pleasure to take a call on the Habeas Corpus Amendment Bill. As I said at the first reading debate on this bill we should never trifle with matters as serious and as important as habeas corpus. We know the status and standing of this application to a court. It comes under the court’s inherent jurisdiction it cannot be interfered with by the Crown and it is one of the important bulwarks against fascism tyranny and despotism. So we tread very carefully when this House is required to formulate some rules and refinements in terms of the way the courts should handle these applications. 
When the bill was first read there were necessarily some issues that stood out immediately. When judges are given the right or the power to exercise discretions over the handling of applications before they have been considered and heard effectively adding another hurdle before an applicant can make their application or when a judge has the power to delay or postpone the hearing of an application beyond the 3 days that has been accepted then we should look very carefully at such provisions in law. It is very pleasing to see at this stage of the passage of the legislation that the Justice and Electoral Committee after looking at the bill has made some quite significant and material changes. My colleague the learned Lianne Dalziel— 
Hon Lianne Dalziel 
: Ah! 
ANDREW LITTLE 
: —the most learned Lianne Dalziel who may well now be considered as one of the first applicants under the QC legislation that was passed just before Christmas—or is it Chris Finlayson who is going to get one of those now? Anyway she has taken us through those important changes. When you look at those changes when you look at what has been taken out it is significant and it is good that the select committee has done its job in that regard. 
 I want to just draw attention to that important clause clause 5 the amendment to section 9 which deals with urgency. One of the important things the select committee did was to ensure that it is not just any officer of the court who can decide whether or not an application for habeas corpus will be given urgency. Under the 2001 legislation an application for habeas corpus had the effect of—I hesitate to use the term because it is used in the immigration arena most offensively—jumping the queue and pushing out of the way all other applications before the court for consideration. Actually when it comes to the liberty of the citizen the liberty of the individual that is probably justified—almost certainly it is justified—but what the original drafting of the bill would have done is allow not just a judge but a registrar or other officer of the court to decide whether or not that level of urgency should be given. The select committee has come back and has quite rightly said that this is a matter for a judicial officer to consider and to make a decision on. 
It is true and it is one of the complaints under the 2001 legislation and indeed of habeas corpus applications that occasionally—occasionally—there are frivolous applications which put other applications before the court to a disadvantage. So there should be some mechanism to deal with the potentially frivolous applications particularly when they are applications that have been made before or potentially in other courts. It is right that there should be a mechanism but a very closely guarded mechanism for the application to be considered for timetabling and placing before a judge in open court. The select committee has come back and said that it must be a judge who makes that decision. We look to our judges to be independent of the State and to have the power to make that sort of judgment and that sort of decision so that is the correct thing to do. 
In the next area which is convening teleconferences it is a good thing that our judicial system has developed and kept pace with technology and that judges and courts can be convened using the latest technology. The problem with the bill as originally drafted was that this provision was completely superfluous in this bill because it was already provided for in other legislation. But at least with the use of video technology it means that a judge can see that a citizen who has been detained in arguably questionable circumstances can actually be viewed through the technology before consideration is given to releasing that citizen from detention where the case is made out. That change has been made and that ties in with the reference to an application proceeding under the Courts (Remote Participation) Act 2010 which now deals with that. 
These are significant changes that have been made to this bill dealing with a very important issue. As I said at the beginning when it comes to matters like habeas corpus when it comes to matters of dealing with the inherent jurisdiction of the court we should always tread lightly. These matters go to the fundamental rights of every citizen and when this Parliament speaks when this Parliament acts the one thing it should be doing in passing any legislation but particularly legislation that deals with either detention or the possibility of releasing from detention—when this House is dealing with the liberty of the individual then it is dealing with that most precious of commodities and we need to take cognisance of that and proceed cautiously deliberatively and deliberately. 
It is good that we have done that but I reiterate too the point that Lianne Dalziel also made. When it comes to these matters—the fundamental rights of the citizen—it is a matter for a Minister to bring to this House not a member in their personal capacity. It is not an appropriate matter for the members’ bill provision. This is a matter that the Crown should speak on and that the Crown should take responsibility for when making these rules for courts to consider the liberty of the individual. It is disappointing that this Government is developing a habit of taking matters of great importance that are matters for the Government of the day for the executive of the day and handing them over to individual members to process through the members’ part of the proceedings of this House. That does not augur well for and it does not send a good signal about the seriousness with which this Government takes these important matters. When the procedures of legal development or law development or statutory development have involved a body as august and as important as the Law Commission in their development then the least we can expect is the responsible Minister in this case the Minister of Justice—and it is not as if she had an exhaustive workload last year in terms of her legislation; she had the alcohol law reform legislation— 
Hon Lianne Dalziel 
: She was busy though. She was breaching people’s privacy. 
ANDREW LITTLE 
: She had one or two administrative matters on her hands but the ever-able Paula Rebstock was able to step in and clean up that mess. But it is not as if she is a Minister who was so rushed off her feet with other legislation that she could not have taken this important matter stamped her imprimatur on it said as Minister of Justice that she took responsibility for important pieces of legislation dealing with the liberty of the individual and the liberty of the citizen and herded us and guided us through this piece of legislation. I would like to think that had this been a matter that was dealt with by the Minister of Justice then it is more likely that a well-formed piece of legislation would have made it through the first reading without the select committee having to tire itself and exhaust itself with its amendments and changes in order to bring back to this House a better-quality piece of legislation than it was before it went to the select committee. 
David Clendon 
: Mr Speaker—