Habeas Corpus Act 2001

1: Title
This Act is the Habeas Corpus Act 2001.
2: Commencement
This Act comes into force on the day after the date on which it receives the Royal assent.
3: Interpretation
In this Act, unless the context otherwise requires,— applicant application detention habeas corpus ad subjiciendum Judge Registrar working day High Court Rules 2016 Section 3 High Court Rules repealed 18 October 2016 section 183(c) Senior Courts Act 2016 Section 3 working day amended 18 October 2016 section 183(c) Senior Courts Act 2016
4: Application of Act to the Crown and Parliament
1: This Act binds the Crown.
2: Nothing in this Act limits or affects the power or authority of the House of Representatives to punish for contempt.
5: Purposes
The purposes of this Act are—
a: to reaffirm the historic and constitutional purpose of the writ of habeas corpus as a vital means of safeguarding individual liberty:
b: to make better provision for restoring the liberty of persons unlawfully detained by establishing an effective procedure for applications to the High Court for the issue of a writ of habeas corpus, and the expeditious determination of those applications:
c: to provide certain unsuccessful parties in habeas corpus proceedings with a right of appeal to the Court of Appeal:
d: to abolish writs of habeas corpus other than the writ of habeas corpus ad subjiciendum Application for writ of habeas corpus
6: Application for writ of habeas corpus to challenge legality of detention
An application to challenge the legality of a person's detention may be made by an application for a writ of habeas corpus.
7: Manner of application for writ
1: An application for a writ of habeas corpus must be made to the High Court by originating application in the manner provided by the High Court Rules 2016
2: Despite subsection (1), nothing in that subsection excludes the inherent jurisdiction of the High Court to hear and to make an order on an oral application at any time in circumstances of unusual urgency.
3: Despite subsection (1), the provisions of any High Court Rule providing for directions by the court before the hearing, or affecting the hearing, of an originating application or empowering the court to convene a conference of the parties to an originating application do not apply to an application.
4: No applicant may be disqualified for lack of capacity or standing.
5: In a proceeding for a writ of habeas corpus—
a: no party to the proceeding is entitled to general or special discovery of the documents of any other party to the proceeding or to an order for security for costs; and
b: the High Court Rules concerning discovery and inspection of documents and security for costs do not apply.
6: No fee is payable to the High Court for filing any document in respect of an application.
7: Section 153 Section 7(1) amended 18 October 2016 section 183(c) Senior Courts Act 2016 Section 7(7) amended 1 March 2017 section 183(b) Senior Courts Act 2016
8: Description of defendant by reference only to office
A defendant may be described in an application by reference only to the defendant's office if the defendant is—
a: the chief executive of the department for the time being responsible for the administration of the Corrections Act 2004
b: the Commissioner of Police, if the detained person is alleged to be illegally detained in Police custody except following the exercise of powers under the Immigration Act 2009
c: the chief executive of the department of State that is, with the authority of the Prime Minister, for the time being responsible for the administration of the Immigration Act 2009
d: the chief executive of the New Zealand Customs Service
e: any other office holder prescribed by rules made in accordance with section 20 Section 8(a) replaced 30 March 2013 section 4 Habeas Corpus Amendment Act 2013 Section 8(b) amended 29 November 2010 section 406(1) Immigration Act 2009 Section 8(c) substituted 29 November 2010 section 406(1) Immigration Act 2009 Section 8(d) amended 26 May 2001 section 294(3) Customs and Excise Act 1996
9: Urgency
1: An application for a writ of habeas corpus must be given precedence over all other matters before the High Court unless a Judge of that court considers that the circumstances require otherwise
2: Judges and employees of the Ministry of Justice
3: The Registrar must allocate a date for the inter partes Section 9(1) amended 30 March 2013 section 5 Habeas Corpus Amendment Act 2013 Section 9(1) amended 1 October 2003 section 14(1) State Sector Amendment Act 2003
10: Urgency where no resident Judge available
1: If an application is filed at a Registry of the High Court in a place where no Judge is at that time available, the Registrar must ensure that the application is dealt with in some other place within the time limit referred to in section 9(3) Ministry of Justice
2: If subsection (1) applies, the Registrar must—
a: make such urgent enquiries as are necessary to determine where and by whom the application can most conveniently and expeditiously be dealt with; and
b: forward the application and any other relevant documents without delay to the Registrar at the place where the application is to be dealt with; and
c: without delay, inform every party to the proceeding of the action taken under this section.
3: This section applies in substitution for any provision of the High Court Rules 2016 Section 10(1) amended 1 October 2003 section 14(1) State Sector Amendment Act 2003 Section 10(3) amended 18 October 2016 section 183(c) Senior Courts Act 2016 Determination of applications
11: Interim orders for release from detention
1: The High Court may make an interim order for the release from detention of the detained person pending final determination of the application, and may attach any conditions to the order that the court thinks appropriate to the circumstances.
2: In the case of a detained person who is charged with an offence to which the Bail Act 2000
3: If a person has been released from detention under an interim order, the court may, on the application of the person released or any party to the proceeding or on the court's own initiative, make an order—
a: revoking the interim order; or
b: varying or revoking any condition of the interim order or substituting or imposing any other condition.
4: If a detained person who is in custody under a conviction is released under an interim order, the time during which the person is released does not count as part of any term of detention under the person's sentence if on a final determination of the application the writ of habeas corpus is refused.
12: Power of arrest of absconder etc
1: A constable section 11 constable
a: the person released has absconded, or is about to abscond, for the purpose of evading any appearance or further appearance in court in connection with the application or the person's original detention; or
b: the person has failed to comply with any condition attached to the interim order.
2: A person who is arrested under this section must be brought before the High Court as soon as possible.
3: The court may revoke the interim order if it is satisfied that the person had absconded or was about to abscond or had failed to comply with a condition attached to the interim order or an undertaking to the court in reliance on which the interim order was made.
4: A constable constable
5: If the constable constable constable Section 12(1) amended 1 October 2008 section 116(a)﻿(ii) Policing Act 2008 Section 12(4) amended 1 October 2008 section 116(a)﻿(ii) Policing Act 2008 Section 12(5) amended 1 October 2008 section 116(a)﻿(ii) Policing Act 2008
13: Powers if person detained is young person
1: In dealing with an application in relation to a detained person who is under the age of 18 the Family Court Care of Children Act 2004
2: If the substantive issue in an application is the welfare of a person under the age of 16 years, the High Court may, on its own initiative or at the request of a party to the proceeding, transfer the application to the Family Court
3: An application referred under subsection (2) must be dealt with by the Family Court in all respects as if it were an application to that court under the Care of Children Act 2004 Section 13(1) amended 1 March 2017 section 261 District Court Act 2016 Section 13(1) amended 1 July 2005 section 151 Care of Children Act 2004 Section 13(2) amended 1 March 2017 section 261 District Court Act 2016 Section 13(3) amended 1 July 2005 section 151 Care of Children Act 2004
14: Determination of applications
1: If the defendant fails to establish that the detention of the detained person is lawful, the High Court must grant as a matter of right a writ of habeas corpus ordering the release of the detained person from detention.
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)
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: A Judge dealing with an application must enquire into the matters of fact and law claimed to justify the detention and is not confined in that enquiry to the correction of jurisdictional errors; but this subsection does not entitle a Judge to call into question—
a: a conviction of an offence by a court of competent jurisdiction, the Court Martial of New Zealand established under section 8 Part 5
b: a ruling as to bail by a court of competent jurisdiction.
3: Subject to section 13(2)
a: refusing the application for the issue of the writ; or
b: issuing the writ ordering the release from detention of the detained person.
4: All matters relating to the costs of and incidental to an application are in the discretion of the court and the court may refuse costs to a successful party or order a successful party to pay costs to an unsuccessful party.
5: A writ of habeas corpus may be in the form set out in the Schedule Section 14(1A) inserted 30 March 2013 section 6(1) Habeas Corpus Amendment Act 2013 Section 14(2)﻿(a) substituted 1 July 2009 section 87 Court Martial Act 2007 Section 14(3) amended 30 March 2013 section 6(2) Habeas Corpus Amendment Act 2013
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 Section 14A inserted 30 March 2013 section 7 Habeas Corpus Amendment Act 2013
15: Finality of determinations
1: Subject to the rights of appeal conferred by section 16 sections 68 to 71
2: A person who has been released from detention in accordance with a writ of habeas corpus must not be re-arrested or detained again on substantially the same grounds as those considered by the court when the earlier release was ordered.
3: Subsection (2) has no application if the ground on which the earlier release was ordered was a jurisdictional or procedural defect that has since been corrected or no longer applies. Section 15(1) amended 1 March 2017 section 183(b) Senior Courts Act 2016 Section 15(1) amended 1 January 2004 section 48(1) Supreme Court Act 2003 Appeals by certain unsuccessful parties
16: Certain unsuccessful parties may appeal
1: The provisions of the Senior Courts Act 2016
a: apply with respect to a determination refusing an application for the issue of a writ of habeas corpus; but
b: do not apply to a final determination that orders the release from detention of a detained person unless the substantive issue is the welfare of a person under the age of 16 years.
1A: With the leave of the Supreme Court, a party to the proceeding in which the determination was made may appeal to the Supreme Court—
a: against a determination refusing an application for the issue of a writ of habeas corpus:
b: if the substantive issue is the welfare of a person under the age of 16 years, against a final determination that orders the release from detention of a detained person.
2: The court cannot order that security for costs be given by the appellant in an appeal against the refusal of an application where the respondent in the appeal is the Crown or a public officer or other person purporting to act on behalf of the Crown.
3: No fee is payable to the Court of Appeal or the Supreme Court Section 16(1) amended 1 March 2017 section 183(b) Senior Courts Act 2016 Section 16(1A) inserted 1 January 2004 section 48(1) Supreme Court Act 2003 Section 16(3) amended 1 January 2004 section 48(1) Supreme Court Act 2003
17: Urgency in hearing appeals
1: An appeal under this Act must be given precedence over all other matters before the Court of Appeal unless that court or a Judge of that court considers that the circumstances require otherwise
1A: The following must be given precedence over all other matters before the Supreme Court unless that court or a Judge of that court considers that the circumstances require otherwise
a: an application for leave to appeal against a decision of the Court of Appeal on an appeal under this Act:
b: an application for leave to appeal under paragraph (a) or paragraph (b) of section 16(1A)
c: an appeal against a decision of the Court of Appeal on an appeal under this Act:
d: an appeal under paragraph (a) or paragraph (b) of section 16(1A)
2: Judges of the Court of Appeal or the Supreme Court, and employees of the Ministry of Justice, must use their best endeavours to ensure that every appeal under this Act or paragraph (a) or paragraph (b) of section 16(1A) Section 17(1) amended 30 March 2013 section 8(1) Habeas Corpus Amendment Act 2013 Section 17(1A) inserted 1 January 2004 section 48(1) Supreme Court Act 2003 Section 17(1A) amended 30 March 2013 section 8(2) Habeas Corpus Amendment Act 2013 Section 17(2) substituted 1 January 2004 section 48(1) Supreme Court Act 2003 Miscellaneous provisions
18: Abolition of certain writs
It is declared for the avoidance of doubt that all writs of habeas corpus other than the writ of habeas corpus ad subjiciendum
19: Application of Contempt of Court Act 2019
1: Subpart 2 sections 25 26(1) and (2)
2: Subpart 4 sections 25 26(1) and (2)
a: having been released under an interim order made under section 11, fails to comply with a condition attached to the order; or
b: wilfully fails to comply with a writ of habeas corpus ordering the release from detention of a person.
3: Subpart 4 sections 25 26(1) and (2) Section 19 replaced 26 August 2020 section 29 Contempt of Court Act 2019
20: Rules
1: Rules not inconsistent with this Act may be made under section 148 and the Supreme Court
2: Without limiting subsection (1), rules may be made under section 148 Schedule Section 20(1) amended 1 March 2017 section 183(b) Senior Courts Act 2016 Section 20(1) amended 1 January 2004 section 48(1) Supreme Court Act 2003 Section 20(2) replaced 30 March 2013 section 9 Habeas Corpus Amendment Act 2013 Section 20(2) amended 1 March 2017 section 183(b) Senior Courts Act 2016
21: Supplementary procedure
If a matter arises in relation to an application for which this Act does not provide, the High Court must dispose of it as nearly as is practicable in a manner consistent with this Act, and to the extent that they are not inconsistent with this Act, in accordance with the High Court Rules 2016 Section 21 amended 18 October 2016 section 183(c) Senior Courts Act 2016
22: Repeals and amendments
(1), (2): Amendment(s) incorporated in the Act(s).
3: Sections 17 to 19 21