Clark, David --- "Habeas Corpus reform in New Zealand" [2009] OtaLawRw 5; (2009) 12 Otago Law Review 77

Last Updated: 25 February 2012

^{Procedure vs Substance:}

Habeas Corpus Reform in New Zealand

David Clark^*

Introduction

This paper considers the alterations made to the law of habeas corpus in New Zealand by the Habeas Corpus Act 2001. After noting the changes made, as well as the continuities retained, the paper criticises the approach of the courts to the Act. In particular the paper argues that the Act does not require a truncated hearing of the issues as to limit the scope of habeas corpus review; nor does it necessitate the introduction of a wholly unnecessary limitation on such review, or the reliance instead on judicial review to ventilate the issues. The paper criticises the confused state of the case law and argues that the Court of Appeal in particular appears to have spoken with two minds about the scope of review under the Habeas Corpus Act 2001 and its relationship to judicial review. The paper concludes that this confusion arose out of a failure to properly read section 9(3) of the Act and to appreciate the weight of section 14(2) of the Act, as well as to the continuation of distinctions embedded in English habeas corpus law extant at the time of the introduction of the Habeas Corpus Act in 2001.

The Function of the Writ

^{The writ of habeas corpus ad subjiciendum,1 described variously as}

^{‘the most famous of all writs’,2 ‘this ancient and powerful prerogative}

^{remedy’,3 and ‘an ancient and specialised jurisdiction’,4 exists to examine}

^{the legality of a detention whether public or private5 of a human being.6}

^* Professor, School of Law, Flinders University, South Australia.

^{1 There were previously numerous other forms of the writ as David Clark}

^{and Gerard McCoy, Habeas Corpus: Australia, New Zealand and the South}

^{Pacific (Sydney: Federation Press, 2000) 35-36 point out. But the Habeas}

^{Corpus Act 2001 ss 3, 5(d), 18 abolished all forms of the writ other than}

^{ad subjiciendum. As Heath J wrote in Jones v Skelton [2006] NZCA 529; [2007] 2 NZLR 192,}

^{197[16] ‘Translated from the Latin, it means that the body of a named}

^{person must be produced to the Court so that the justification for detention}

^{can be scrutinised’.}

^{2 Attorney-General v Manga [1998] NZCA 298; [1999] 1 NZLR 129, 135 (Thomas J).}

^{3 Lyon v Manager, Hawkes Bay Prison [2007] NZHC 466 (10 May 2007) [14]}

^{(Priestley J).}

^{4 Van der Ent v Sewell [2000] NZHC 484; [2000] 3 NZLR 125, 126[3] (McGechan J). See also}

^{White v Hamilton District Court and the Department of Corrections [2006]}

^{NZHC 254 (20 March 2006) [8]-[9].}

^{5 See Habeas Corpus Act 2001 s 6; Zaoui v Attorney-General [2005] 1 NZLR}

^{577, 645[39] (SC).}

^{6 The writ does not apply to animals for example: PONO v Hamilton City}

^{Council [2007] NZCA 515 (19 November 2007)[7].}

In short the writ exists to protect personal freedom.⁷ The writ only issues if the detention is found to be illegal (or unlawful⁸) and will be refused if either the detention is legal,⁹ or the detention has expired at the time of the hearing,¹⁰ or if the detainee does not want the writ.¹¹ Generally in relation to criminal matters close detention in a prison is required and the writ will not extend to detention within a particular part of a prison, for example.¹² The writ provides a summary remedy and the Act states that the procedure is intended to provide for the ‘expeditious determination of those applications’.¹³

Four major changes made by the Act were that it provides for interim orders for release (s 11) and for the matter to be transferred to the Family Court where the applicant is under the age of 20 years and where the substantive issue is the welfare of a person under 16 years; in which case the matter is dealt with as if it were an application under the Guardianship Act 1968 (s 13). In addition the Act abolishes standing tests

⁷ Slater v Attorney-General (No 2) [2006] NZHC 979; [2007] NZAR 47, 49[5] along with other remedies such as an action for damages for unlawful arrest and false imprisonment.

⁸ Habeas Corpus Act 2001 s 14(1); Police v Travis [1989] NZHC 499; [1989] 2 NZLR 122, 125; Tishkovets v Minister of Immigration (No 3) [2000] NZAR 505, 506 [1] ‘A writ of habeas corpus may be issued only where there is an unlawful detention, that is to say a wrongful deprivation of personal liberty’.

⁹ Midwood v Superintendent of Paremoremo Medium Security Prison, unreported, M 1954,/90, Sinclair J, 16 November 1990 page 3 ‘He is not illegally held at all and therefore there is no jurisdiction for the Court to issue a Writ of Habeas Corpus as sought’; Zaoui v Attorney-General (Note) [2005] 1 NZLR 666, 685-686 [70]-[74] (Paterson J); Oparah v Chief Executive of the Department of Labour [2006] NZHC 458 (4 May 2006) [33] (Venning J).

^{10 R v Alexander [1989] 3 NZLR 395, 400 (Ellis J); Van der Ent v Sewell [2000]}

^{3 NZLR 125, 126 (McGechan J); Bennett v Superintendent, Rimutaka Prison}

^{[2001] NZAR 557, 567 [38]-[39] (Wild J); [2001] NZCA 286; [2002] 1 NZLR 616, 632 [60] (CA)}

^{(Blanchard J); Burke v Superintendent of Wellington Prison [2004] NZCA 79}

^{(26 May 2004) [21]; Manuel v Superintendent of Hawkes Bay Regional Prison}

^{[2004] NZCA 440; [2005] 1 NZLR 161, 173-174[45]; Palmer v Superintendent of Auckland Prison}

^{unreported, CIV 2006-404-002065, 7 June 2006, Cooper J, [5]; Chu v Director,}

^{Area Mental Health Services [2006] NZHC 1305; [2007] NZAR 415, 417[4]; Hines v Manager of}

^{Custodial Services, Auckland Prison [2007] NZAR 297, 302[25]; Attorney-}

^{General v Taunoa [2005] NZCA 312; [2006] 2 NZLR 457, 470[37] (CA); Sestan v Director Area}

^{Mental Health Services [2007] NZSC 5 (15 February 2007) [1].}

^{11 See the odd case In re Winara Parata (1889) O, B & F 31 where the writ was}

^{refused on the ground that the prisoner wished to remain in the Dunedin}

^{goal as a protest against his treatment. Whether a modern court would}

^{so act is now doubtful. Surely if a detention is illegal the wishes of a}

^{detainee in such a case would have to be ignored.}

^{12 Bennett v Superintendent, Rimutaka Prison [2001] NZAR 557 upheld in [2002]}

^{NZAR 70 (CA). Or to the conditions of an otherwise lawful detention:}

^{Cant v Visiting Justices at Paramoremo [2006] NZHC 683 (16 June 2006)}

^[4]-[6].

^{13 Habeas Corpus Act 2001 s 5(b).}

^{for applicants14 and does not require fees to be paid to file documents in}

^{respect of an application in the High Court.15}

The Status of the Writ in New Zealand 1841-2001

To appreciate the impact of English habeas corpus law on the current situation some history is necessary.

The Writ Exists at Common Law

For most of New Zealand’s history the writ remained linked to English law. The writ exists at both common law¹⁶ and by statute. On settlement¹⁷

New Zealand applied the English common law¹⁸ and, as part of that law, habeas corpus became part of the law on settlement. Despite florid claims by Blackstone and others¹⁹ the writ did not actually arrive with settlement, but only became available with the opening of the Supreme Court on 10 January 1842.²⁰ The writ was only issued by a court possessed of the same jurisdiction and powers as the superior courts of justice at Westminister. As section 2 of the Supreme Court Ordinance 1841 said

‘The Court shall have jurisdiction in all cases as fully as Her Majesty’s Courts of Queens Bench Common Pleas and Exchequer at Westminister have in England,...’²¹ One oddity of the 1841 Ordinance was that it was

¹⁴ Habeas Corpus Act 2001 s 7(4).

^{15 Ibid s 7(6).}

^{16 See for example: Bennett v Superintendent, Rimutaka Prison (No 2) [2002]}

^{1 NZLR 685, 686[3] (Richardson P); Manuel v Superintendent of Hawkes}

^{Bay Prison [2004] NZCA 440; [2005] 1 NZLR 161, 176[51]; T v Regional Intellectual Care}

^{Agency [2007] NZAR 643, 648[11] (CA); Jones v Skelton [2007] 2 NZLR 178,}

^190[35].

^{17 While British doctrine distinguished between settled and ceded or}

^{conquered colonies it seems that New Zealand was a bit of both. See}

^{‘Opinion of the Attorney-General as to the Legal Status of The Maoris}

^{Now in Arms’, Appendices of the Journals of the House of Representatives, No}

^{A14 of 1869, 1.}

^{18 English Acts Act 1858 s1; English Laws Act 1908 s 2 as from 14 January}

^{1840. Both provisions are reproduced in A C Stephens, ‘Imperial Statutes}

^{Existing in 1840: Application to New Zealand‘, (1938) 14 NZLJ 205-206.}

^{19 William Blackstone, Commentaries on the Laws of England (1765) (Chicago:}

^{University of Chicago Press, 1979) Vol 1: 104-105; Robert Chambers, A}

^{Course of Lectures on the English Law (1767-73) (Oxford: Clarendon Press,}

^{1986) Vol 1: 286; Joseph Chitty, The Law of the Prerogatives of the Crown}

^{(London: Butterworths, 1820) 30.}

^{20 ‘The Supreme Court and the Court of Appeal: Their First Beginnings, Pt}

^{1’ (1938) 14 NZLJ 233-236; Peter Spiller, Jeremy Finn and Richard Boast,}

^{A New Zealand Legal History 2nd edn (Wellington: Brookers, 2001) 204.}

^{21 Reproduced in Ordinances of the Legislative Council of New Zealand}

^{(Wellington: Government Printer, 1871) 67 and referred to in Bennett v}

^{Superintendent Rimutaka Prison [2001] NZAR 557, 567[29] (Wild J). This}

^{provision was continued in the Supreme Court Act 1860 s 4; Supreme Court}

^{Act 1882 s 16 and Judicature Act 1908 s 16. See also the summary of this}

^{provision in the habeas corpus case: Benipal v Minister of Foreign Affairs ,}

^{unreported, A No 878/83, Chilwell J, 6 September 1983, page 705.}

disallowed in England and effectively replaced by the Supreme Court Ordinance 1844.²² It seems that the Habeas Corpus Act 2001 did not entirely displace the common law writ²³ though the common law is, of course, subordinate to the Act itself.

Practice and Procedure

While other parts of the English legal inheritance were altered in New Zealand the resolute policy of the law until 2001 was to follow the practice and procedure of the English courts in respect to habeas corpus. Throughout the period before 2001 there were no New Zealand rules of court on the writ. Whenever rules of court were produced the reservation that the rules did not apply to habeas corpus and, instead, English practice and procedure would apply was routinely made.²⁴ The rule that English practice would be followed was subsequently placed on a statutory basis as section 54C of the Judicature Amendment Act (No

2) 1985 explained: ‘The practice, pleading and procedure of the High Court on an application for a writ of habeas corpus shall be the same as in England so far as the English practice, pleading and procedure are applicable to New Zealand and consistent with any other rules of the High Court and with the laws of New Zealand’.²⁵ The principle that English practice, pleading and procedure on habeas corpus was to govern the New Zealand situation was removed from the law only with the repeal of section 54C in 2001.²⁶ The lasting impact of the connection will be seen later, but it should be noted that New Zealand courts accepted English distinctions in habeas corpus law as they existed in 2001.

²² G A Wood, ‘Construction and Reform: The Establishment of the New Zealand Supreme Court’, (1968) 5 VUW L Rev 1, 3. Disallowance was provided for in the Constitution Act 1852 (15 & 16 Vic c 72) (UK) s 57.

²³ Bennett v Superintendent, Rimutaka Prison (No 2) [2002] 1 NZLR 685, 686[3] (Richardson P).

²⁴ See Regulae Generales 1856 r 563 in A J Johnson, Practice and Procedure of the Supreme Court of New Zealand (Wellington, 1873) 149; Rules 568 and

^{569 of the Rules of the Supreme Court, Schedule to Supreme Court Act}

^{1882 (46 Vict No 29); C J Foster, A Treatise on the Principles and Practice of}

^{the Supreme Court Code (Christchurch, 1885) 373; continued as rules 605(b)}

^{and 606 of the Code of Civil Procedure, various editions published in}

^{Robert Stout and W A Sim, The Practice of the Supreme Court and Court of}

^{Appeal of New Zealand, 1st edition (1892) through to last edition (1972).}

^{For the final iteration of these rules prior to the entry into force of the}

^{Habeas Corpus Act 2001 see High Court Amendment Rules 1998/310 rule}

^{3 substituting a new 135(b) to extend the summary judgment procedure}

^{to an application for a writ of habeas corpus.}

^{25 Referred to in Re Jayamohan [1995] NZHC 1244; [1996] 1 NZLR 172, 175 (Blanchard J). For a}

^{judicial comment that the New Zealand courts followed English habeas}

^{corpus cases prior to 2001 see Manuel v Superintendent of Hawkes Bay}

^{Regional Prison [2004] NZCA 440; [2005] 1 NZLR 161, 172[38] (CA).}

^{26 Habeas Corpus Act 2001 s 22(1).}

^{Imperial Statutes}

Habeas Corpus also existed by virtue of English statutes and these were also received into New Zealand law in 1840. The three principle enactments²⁷ were included in the first schedule of the Imperial Laws Application Act 1988 albeit in a truncated form. Thus the 1640 Act for instance only included section 6.²⁸ One consequence of the 2001 Act was to remove these statutes from New Zealand law²⁹, and there is no doubt that this was well justified. The famous Act of 1679, for instance, dealt with seventeenth century problems. One of the most intriguing of these was the reference in section 12 forbidding the sending of prisoners to Tangier. This section arose because in 1661 Charles the Second married the Portuguese princess Catherine of Braganza and she brought Tangier (and Bombay) to the marriage as part of her dowry.³⁰ Thus from 1661 until it was abandoned to the Moors in 1683 the English held Tangier as a colony. There were local inhabitants, the Tangerines as they were called, of course, but no one wanted to settle and to make up the manpower deficit the English sent prisoners to their newly acquired North African colony.³¹ Many of these removals were arbitrary and in one case a member of parliament was exiled to Tangier at one hour ’s notice for five years.³² In many cases the prisoners were slaves on the galleys³³ and not surprisingly the practice roused the ire of the Parliament hence the prohibition on sending English prisoners to Tangier in the 1679 Act. Actually the protection provided by the Habeas Corpus Act 1679 was not long needed because in 1683 the English abandoned Tangier. Not

²⁷ Habeas Corpus Act 1640 (16 Cha 1, c 10); Habeas Corpus Act 1679 (31 Cha

^{2, c 2) and the Habeas Corpus Act 1816. (56 Geo 3, c 100). These are}

^{conveniently reprinted in the Law Commission, Report No 44: Habeas}

^{Corpus Procedure (Wellington, November 1997) 37-51. The Habeas Corpus}

^{Act 1862 (UK) provided that English courts would not issue the writ to}

^{colonies where a local supreme court was capable of issuing the writ.}

^{This obviously applied to New Zealand circumstances as it did to other}

^{self-governing colonies, despite not being included in the Imperial Acts}

^{Application Act 1988. Of course these enactments were not the first in}

^{England to touch on habeas corpus. For the earlier English Acts see David}

^{Clark, ‘Jurisdiction and Power: Habeas Corpus and the Federal Court’,}

^{[2006] MonashULawRw 13; (2006) 32 Mon L R 275, 282 fn 43.}

^{28 As the Court noted in McVeagh v Attorney-General [2001] NZHC 435; [2001] 3 NZLR 566, 568}

^[9]-[10].

^{29 Habeas Corpus Act 2001 s 22(2).}

^{30 Samuel Pepys, Diary (London: Dent, 1906) Vol 1: 256-257.}

^{31 See for example Calendar of State Papers (Domestic Series) 1663-1664}

^{(London: HMSO, 1862) 536, 539, 557, 561. For a general account see E}

^{M G Routh, ‘The English at Tangier ’, (1911) 26 English Historical Review}

^{469-481 and the same author ’s Tangier: England’s Lost Atlantic Outpost}

^{1661-1684 (London: John Murray, 1912).}

^{32 Calendar of State Papers (Domestic Series) November 1667-September 1668.}

^{(London: HMSO, 1893) 322.}

^{33 See G E Aylmer, ‘Slavery under Charles II: The Mediterranean and}

^{Tangier ’, (1999) 114 English Historical Review 378-388.}

^{surprisingly New Zealand judges who encountered this part of the 1679}

^{Act concluded that ‘Read literally this has no bearing on the present}

^{application’.34 Nevertheless the provision remained in the 1679 Act and}

^{in New Zealand law until the beginning of the twenty-first century.}

Habeas Corpus and New Zealand Statutes

Habeas Corpus was referred to in New Zealand legislation prior to

^{2001. In some cases these statutes did not provide for the writ, but}

^{rather the right to be told that a detainee might apply for the writ in}

^{Extradition35 and Fugitive Offender legislation.36 Reinforcement for}

^{the writ was provided in 1990 where a right to have the validity of an}

^{arrest determined without delay by habeas corpus was created by the}

^{New Zealand Bill of Rights Act 1990.37 As a general principle the writ can}

^{only be taken away by express language as it was in a rare instance in}

^{1863 when it was made clear by enactment that a person (meaning in}

^{practice Maori) detained under the Suppression of Rebellion Act 186338}

^{could not effectively secure the writ as a detention in such a case ‘shall}

^{be a good and sufficient return to the writ’. While a person may have}

^{a right to the writ they may also waive their right to the writ if they so}

^{choose.39 There were also statutory provisions that altered or amplified}

^{the existing habeas corpus procedures. Thus the Law Amendment Act}

^{1868 section 6 replaced habeas corpus ad testificandum, by which a}

^{prisoner could be brought from a prison to a court to give evidence, by}

^{a statutory alternative without the necessity for the writ. Similarly the}

^{writ could not be sought under the Customs Laws Consolidation Act 1882}

^{sections 269 and 270 without an affidavit in support of the application}

^{and notice to a Law Officer.}

³⁴ See Ostler J in In re Tamasese, A Prisoner [1929] NZLR 209, 216, a case in which a Samoan Chief sought the writ after being exiled to New Zealand.

^{35 Extradition Act 1908 s 2 making the Extradition Act 1870 (UK) part of}

^{New Zealand law; Extradition Act 1965 s 10(3)(a); Extradition Act 1999 s}

^26(1)(d).

^{36 Fugitive Offenders Amendment Act 1976 s 9. Section 4 of this Act makes}

^{the Fugitive Offenders Act 1881 (UK) part of New Zealand law; Re Ashman}

^{(1976) [1985] 2 NZLR 224; R v Howard [1985] 2 NZLR 216, 217 (CA). See}

^{also Immigration Act 1987 s 128A added by the Immigration Amendment}

^{Act 1991 s 38.}

^{37 Section 23(c). The New Zealand Bill of Rights Bill 1963 clause 3(c)(ii) also}

^{made reference to habeas corpus.}

^{38 (27 Vict No 7) s 5.}

^{39 International Crimes and International Criminal Court Act 2000 ss 46(2)(c)(ii);}

^{47(3)(b); (47(4)((b)(i); 70.}

The Habeas Corpus Act 2001⁴⁰

The Act arose out of a Law Commission Report in 1997 that recommended a New Zealand Act. The draft bill included in the Law Commission Report provided the basis for the Habeas Corpus Bill 1999. Despite being introduced into Parliament on 1 July 1999 the Bill only received a first reading in March 2000 and was then sent to the Law and Order Committee for hearings. The Committee recommended a Bill to Parliament reflecting a number of technical submissions and favoured the inclusion of the procedure for the writ in an Act, not merely in rules of court as recommended by the Law Society.⁴¹ During the second reading speech on the amended Bill in May 2001 Simon Power, who moved the second reading of the Bill stressed, as did other speakers, two points. First, that unusually the Bill was introduced by a member of the opposition, but received the full support of the government and indeed of all members of Parliament. Second, despite the united opposition of the legal profession in its various manifestations, who preferred no Act at all, but the retention of the writ in rules of court only, it was decided that the procedure governing the writ should principally be dealt with in an Act, though the Act does authorise the creation of rules of court if necessary.⁴²

The Scope of Review in New Zealand Before 2001⁴³

The clear intention of the Act was not to change the substance of the law of habeas corpus,⁴⁴ although in fact the Act took a provision from

⁴⁰ For previous commentary on the writ see: G D S Taylor, Judicial Review (Wellingon: Butterworths, 1991) para 2.29-2.30, 14.22; David Clark and Gerard McCoy, Habeas Corpus: Australia, New Zealand and the South Pacific (Sydney: Federation Press, 2000); D F Dugdale, ‘A New Zealand Habeas Corpus Act’, [2001] NZLJ 199-200; Philip A Joseph, Constitutional and Administrative Law in New Zealand, 2nd edn (Wellington: Brookers, 2001)

952-959; David Simpkin, ‘Liberty Writ Large-Habeas Corpus’, http:// www.lawlink.co.nz/resources/habeas.pdf; Paul Rishworth et al, The New Zealand Bill of Rights (Auckland: Oxford University Press, 2003) 562-

564; Andrew Butler and Petra Butler, The New Zealand Bill of Rights Act: A Commentary (Wellington: LexisNexis NZ Ltd, 1995) 636, 639, 651-652,

688-689, 1075; McGechan On Procedure (Wellington: Brookers) Vol 2 HC Intro. 01-HC Sch .05.

^{41 See Law and Order Committee, Habeas Corpus Bill in Reports of Select}

^{Committees for 2001, AJHR, I. 22B, Vol 2, 941-947.}

^{42 New Zealand Parliamentary Debates, Vol 591, 2 May 2001, 8935. At 8936}

^{the Minister of Justice supported the Bill. Habeas Corpus Act 2001, s 20.}

^{To date no such rules have been made.}

^{43 For a detailed account see David Clark and Gerard McCoy, Habeas Corpus:}

^{Australia, New Zealand and the South Pacific (Sydney: Federation Press,}

^{2000) 147-171.}

^{44 See Hunia v Parole Board [2001] NZHC 494; [2001] 3 NZLR 425, 429[22] (Robertson J); Nunn}

^{v Superintendent Waikeria Prison [2004] NZAR 240, 243[7] (Gendall J).}

^{The same point was made by the Law Commission in Report 44, Habeas}

^{Corpus Procedure (Wellington, 1997) 2 ‘The draft Act we recommend is not}

^{meant to define or alter the metes and bounds of the availability of the}

the Habeas Corpus Act 1816 (UK) on the nature of an inquiry in habeas corpus cases, which was restricted to civil cases, and applied it to all cases including criminal cases.⁴⁵ Traditionally the courts could review detentions if the detention was without jurisdiction⁴⁶ or, as it was put in one case, for jurisdictional error.⁴⁷ But the question is what do the courts mean by jurisdiction for these purposes? Conceptually ‘jurisdiction’ meant in its narrow sense ‘the limits which are imposed upon it [a court] to hear and determine issues between persons seeking to avail themselves of its process’. ’In its wider sense it embraces also the settled practice of the Court as to the way in which it will exercise its powers to hear and determine issues which fall within its ‘jurisdiction’ (in the strict sense)’.⁴⁸ As the Court of Appeal pointed out in Nakhla v McCarthy⁴⁹ the test is ‘Authority to decide ...not the mode of decision nor the manner in which the powers ...have been exercised or not exercised.’

Within the ambit of habeas corpus review jurisdiction once meant something very narrow. Thus in the nineteenth century habeas review

habeas corpus remedy, the flexibility of which has been one of its great

^{strengths’ and in Parliament in New Zealand Parliamentary Debates, Vol}

^{582, 22 March 2000, 1333.}

^{45 Habeas Corpus Act 2001 s 14(2). But note s 14(2)(a) convictions by a court}

^{or court martial and (b) a bail ruling may not be called into question by}

^{virtue of section 14(2).}

^{46 See for example R v Lee (1893) 12 NZLR 261, 263; Ex parte Bouvy (1900) 18}

^{NZLR 593, 601; In re Hazlett [1930] NZLR 777, 781; In re Dixon [1960] NZLR}

^{317, 319; Mewes v Attorney-General [1979] 1 NZLR 648, 654; Re Ashman}

^{[1985] 2 NZLR 224, 225; Kuraraki v Singh, HC AK CIV 2008-404-4873, 4}

^{August 2008[7] where Harrison J wrote: ‘Unlawful detention provides}

^{the jurisdictional basis for challenge: s 6’.}

^{47 Re Kestle [1980] 2 NZLR 337, 345-346; Benipal v Minister of Foreign Affairs,}

^{unreported, A No 878/83, Chilwell J, 16 December 1985, pages 14-22. The}

^{meaning of jurisdictional error was left open by the Court of Appeal in}

^{the habeas corpus case T v Regional Intellectual Care Agency [2007] NZAR}

^{643, 654-655 [35].}

^{48 Garthwaite v Garthwaite [1964] P 356 387 citing Guaranty Trust Company}

^{of New York v Hannay & Co [1915] 2 KB 356, all of which was cited with}

^{approval by the Court of Appeal in the habeas corpus appeal in Taylor v}

^{Superintendent, Waikato Bay of Plenty Prison [2002] NZCA 45; [2002] NZAR 425, 429[12].}

^{49 [1978] 1 NZLR 291, 301; Crispin v Registrar of the District Court [1986] 2}

^{NZLR 246, 250-251(HC). Nakhla was also cited on this point in Taylor}

^{above [12]. Note that in Taylor the Court then held [13] that ‘Errors}

^{including jurisdictional errors can be remedied. But the Habeas Corpus}

^{Act is not the means by which that is done’. This strange statement runs}

^{contrary to all previous doctrine that has stressed that habeas corpus}

^{review does include review of jurisdictional errors including precedent}

^{facts: van der Ent v Sewell [2000] NZHC 484; [2000] 3 NZLR 125, 126[4]. See especially R}

^{v Secretary of State for the Home Department, ex parte Khawaja [1984] AC}

^{74 cited in New Zealand on jurisdictional error in which the House of}

^{Lords made it clear judicial review and habeas corpus were to be dealt}

^{with under a common principle. See for New Zealand citations of this}

^{case: Tupou v Removal Review Authority [2001] NZAR 696, 703[16]; Jones v}

^{Skelton [2006] NZCA 529; [2007] 2 NZLR 192, 210 [54](CA).}

was limited to an examination of the document that provided the basis for the detention. The requirement then was that the jurisdiction of the detainor had to appear on the face of the warrant itself.⁵⁰ In time this restriction was relaxed. In the first place where the writ was sought in respect of child custody matters, as it commonly was before the passage of guardianship legislation, there was no warrant since that only applied to criminal matters. In the child custody cases resort was had to affidavit evidence in order to examine the justification for the detention.⁵¹ In time the courts have shown themselves willing to go behind the document, if there is one that purported to justify the detention.⁵² Thus in Fugitive Offender and Extradition cases the warrant of commitment is often insufficient and the court will examine the evidence upon which it is based.⁵³ If there was no evidence or insufficient evidence on which to base the detention then the writ would run and this expansive view of habeas review emerged in the late nineteenth century.⁵⁴ Such additional

⁵⁰ In re King (1875) 2 NZ Jurist Reports 144; In re Waters (1887) 6 NZLR

^{545; In re Williamson (1907) 10 Gaz LR 93; R v Bratby (1889) 7 NZLR 375,}

^{381; Re Crow (1885) 4 NZLR 266, 269. This rule was relaxed where the}

^{defect on the face of the warrant was considered to be trivial: Findlayson}

^{v McDonald (1882) 1 NZLR 238.}

^{51 See In re B(An Infant) (1911) 12 Gaz LR 366.}

^{52 Ex parte Hamilton (1877) 2 NZ Jurist Reports 208, 210; In re O’Dowd (1903)}

^{23 NZLR 31, 33 though in that case legislation permitted a new warrant}

^{to be filed to remedy the earlier defect; In re Prisk [1903] NZGazLawRp 34; (1903) 22 NZLR 876;}

^{Re Martinovich [1936] NZLR 238, 242. In Re Cavenett [1926] NZGazLawRp 142; [1926] NZLR 755,}

^{761 Herdman J noted that while no excess of jurisdiction appeared on}

^{the face of the certificate of conviction in that case, the court would}

^{look at affidavits showing a want or excess of jurisdiction even if they}

^{contradicted the facts stated in the return. Cf R v Lee (1893) 12 NZLR}

^{261, 263 where Denniston J left the question open but referred to English}

^{authority to show that a court could, on habeas review, go behind the}

^{warrant of commitment. Note that a power to remedy a defective warrant}

^{still exists. See Zaoui v Attorney-General(Note) [2005] 1 NZLR 666, 686[71];}

^{Tranter v Attorney-General [2005] NZHC 183 (4 November 2005)[4].}

^{53 See Ex parte Lillywhite (1901) 19 NZLR 502, 512, 515 evidence admitted on}

^{affidavit to establish the true identity of the prisoner; In re Griffin [1933]}

^{Gaz LR 157; Re Campbell [1935] NZGazLawRp 65; [1935] NZLR 352 where the court considered}

^{whether depositions taken before a magistrate in Sydney were admissible}

^{for the purposes of a fugitive offender matter; Mewes v Attorney-General}

^{[1979] 1 NZLR 648 where Chilwell J examined affidavit evidence from the}

^{United States and declared that as it would not be admissible in a New}

^{Zealand court, the application for a writ would be granted; In the Matter}

^{of Howard, unreported, M 313/85, Thorp J, 13 May 1985, page 17 where}

^{the judge looked at the pre-conditions to the statutory jurisdiction; Cook}

^{v Superintendent of Mount Eden Prison, unreported, CP 184/87, Wylie J, 23}

^{September 1987, page 16; Franic v Wilson, unreported, M 1544/92, Thorp}

^{J, 30 October 1992, page 5 where the court indicated that ‘the matter be}

^{dealt with on as broad a basis as possible’.}

^{54 Ex parte Rennell [1879] NZOBFitzRp 18; (1879) O, B & F 72; R v Garvey, Ex parte Cury (1888) 6}

^{NZLR 630, 633; Liu Kwok-kwong v Superintendent of Mount Eden Prison,}

^{unreported, M 2148/89, Thorp J, 10 October 1990, page 6.}

evidence will be admitted if it goes to jurisdiction.⁵⁵ In an extradition case Giles J examined the text of a New York statute upon which the request was based to determine whether the offence for which the applicant was sought was the same or similar to the equivalent offence in New Zealand.⁵⁶ Of course in some cases review may be confined to the warrant alone if it is clear that it shows a lack of jurisdiction on its face.⁵⁷ In one nineteenth century case a strong bench of five judges went further and examined whether the statute providing for deportation to Australia was ultra vires the legislature and, after concluding that it was, struck down the warrant in habeas corpus proceedings.⁵⁸

Even in criminal matters the courts have been prepared to dig deeply into the basis for a detention. Thus in Eade⁵⁹ in 1983 Roper J considered whether a sentence of 60 days for failing to pay a fine for a blood alcohol conviction was within jurisdiction.⁶⁰ In the event he concluded that the sentence was not within jurisdiction and issued the writ, but only after a detailed analysis of the statute, and the facts of the case. Similarly in Fearon v R⁶¹ Williamson J examined the sentencing remarks underlying the warrant of committal. Where it is clear that a preliminary step before making a detention order is a mandatory condition precedent is required and has not been complied with, the court will by examining the condition underlying the detention issue the writ if necessary.⁶² In cases involving bias on the part of the decision maker the courts will consider evidence outside of the proceedings itself if that shows bias in

⁵⁵ In re Translateur, unreported, M 823/82, Chilwell J, 12 November 1982, page 96 relying upon R v Governor of Brixton prison, ex parte Schtraks [1964] AC 556.

^{56 D’Cunha v United States of America, unreported, M 24/97, Giles J, 24 June}

^{1997, pages 4-5. This is common in such cases. In Re Munro and Another}

^{[1935] NZPoliceLawRp 5; [1935] NZLR 159 Blair and Johnson JJ considered the text of an Australian}

^{Commonwealth enactment for the same purposes; F v New Zealand}

^{Customs, unreported, M 1616/94, Auckland Registry, 23 December 1994,}

^{Robertson J, page 4.}

^{57 Re W R Waters (1887) 6 NZLR 545, 548; Re Patrick O’Connor (1888) 6 NZLR}

^{712; In re Holmes (1903) 23 NZLR 11, 13.}

^{58 In re Gleich [1879] NZOBFitzRp 14; (1879) O B & F 39. The Court, Gillies J dissenting, held that}

^{the Foreign Offenders Apprehension Act 1863 was ultra vires the Parliament}

^{because it was an Act having extra-territorial application, which, at that}

^{time, was deemed to be beyond the competence of a colonial legislature.}

^{This limitation on the legislative power of the New Zealand Parliament}

^{ended with s 3 of the Statute of Westminister 1931 (UK) as applied by the}

^{Statute of Westminister Adoption Act 1947, s 2 and schedule.}

^{59 Unreported, Roper J M 55/83, 16 May 1983.}

^{60 At page 6 Roper J notes Eade only spent 11 days in prison.}

^{61 Unreported, M 55/89, Williamson J, 3 March 1989.}

^{62 Re Pomeroy (1910) 29 NZLR 317, 320; Rissetto v Brooke (1918) NZLR 657,}

^{662 where Cooper J examined the validity of an order underlying a}

^{commitment to an Industrial School. He held that the order was valid and}

^{that the requirements of the procedure prior to making a detention order}

^{were complied with and that the decision was within jurisdiction.}

the legal sense.⁶³

In contrast the court will not consider if the underlying evidence is reasonable for it has been said in one case that ‘It is not my duty to review the evidence’.⁶⁴ Given this history it is hardly surprising that the Law Commission took the view that ‘administrative decisions can be challenged on habeas corpus applications and that it is not an answer to such an application that the grounds of challenge would be better addressed in judicial review proceedings’.⁶⁵

Now the relationship between habeas corpus and judicial review is complex. Habeas corpus law has been regarded as a field of its own, as the courts have emphasised for centuries.⁶⁶ But in the period before

2001 the courts were relaxed about the relationship between the two remedies. In one case Myers CJ was prepared to allow an application for declaratory relief to be treated as if it were an application for the writ.⁶⁷ Despite the passage of the Judicature Amendment Act 1972 for most of the period before 2001 the courts ignored the distinction between judicial review and habeas corpus. At least one judge preferred habeas over judicial review because ‘it compels immediate review by the High Court of what is essentially an administrative deprivation of liberty’.⁶⁸

The courts had noticed that judicial review and habeas corpus were overlapping remedies under the Fugitive Offenders Act 1967 and were little concerned with the differences between the two remedies.⁶⁹

The English Position to 1992

The roots of the distinction between habeas corpus and judicial review lie in English law. Before 1991-2 the courts in England had not taken

⁶³ R v Hocken (1876) 1 NZ Jurist (NS) 121, 127-128. In contrast in the habeas corpus case of In re Taylor (a Prisoner) [1937] NZGazLawRp 103; [1937] NZLR 768 the court considered the argument on bias but rejected it on the evidence concluding that the Magistrate had acted within jurisdiction and therefore the writ was refused.

^{64 In re Tressider (1905) 25 NZLR 289, 292.}

^{65 Law Reform Commission Report, No 44, Habeas Corpus Procedure}

^{(Wellington, 1997) para C15 cited in Manuel v Superintendent of Hawkes}

^{Bay Regional Prison [2004] NZCA 440; [2005] 1 NZLR 161, 172[41] (CA).}

^{66 A view stated by Sir Robin Cooke and later as Lord Cooke of Thorndon}

^{on several occasions: R v B [1994] NZCA 547; [1995] 2 NZLR 172, 179 (CA); R v Bedwelty}

^{Justices, ex p Williams [1997] AC 225 at 235B(HL)(E).}

^{67 Wilson v Attorney-General [1938] NZLR 496, 501 (CA).}

^{68 F v Superintendent of Mt Eden Prison [1999] NZHC 1359; [1999] NZAR 420, 421 (Anderson J).}

^{See also Minister of Foreign Affairs v Benipal [1988] 2 NZLR 222, 232(CA)}

^{where Cooke P for the Court, vacated a judicial review application ‘on}

^{the ground that all the issues raised by it have been determined in favour}

^{of Benipal by the judgment relating to habeas corpus’.}

^{69 Wolf v Federal Republic of Germany [2001] NZHC 287; [2001] NZAR 536, 539[7] a case decided}

^{12 April 2001, ie before the coming into force of the Habeas Corpus Act}

^{2001 on 26 May 2001. See s 2 of the Act and McVeagh v Attorney-General}

^{[2001] NZHC 435; [2001] 3 NZLR 566, 568[9].}

either a narrow view of habeas corpus review nor had they created a disjunction between habeas corpus and judicial review.⁷⁰ On the contrary from the seventeenth and eighteenth century on the courts had allowed the two remedies to operate together since certiorari in aid of habeas corpus was used to bring up the record because habeas only brought up the body to the court.⁷¹ It was also clear that in civil matters since

1816 that the courts have had the power ‘to examine into the truth of the facts set forth in the return to a writ of habeas corpus and to examine them by means of affidavit evidence is clear from sections 3 and 4 of the Habeas Corpus Act 1816’.⁷²

One leading case on the scope of review in habeas corpus cases is the decision of the House of Lords in R v Governor of Brixton Prison, ex p Armah,⁷³ in which Lord Reid explicitly rejected a narrow view of habeas corpus jurisdictional review and, after reviewing the authorities, noted that the courts will go beyond the mere face of the warrant ordering rendition to consider whether there was any evidence or sufficient evidence to justify the decision.⁷⁴ This ground is normally regarded as an intra-jurisdictional error of law and something only available on judicial review, but in that case the wider view of habeas corpus review was adopted.⁷⁵

The strongest case on the matter, though not a habeas corpus case, is the Khawaja decision.⁷⁶ In that case, the House of Lords heard two appeals from the Court of Appeal, which had dismissed appeals against decisions in the High Court refusing declarations (in the case of Khera) and judicial review in the form of orders of certiorari and mandamus (in the case of Khawaja). Thus, both cases concerned judicial review

⁷⁰ For a stout defence of the writ see Sir William Wade, ‘Habeas Corpus and

^{Judicial Review’, (1997) 113 LQR 55-66.}

^{71 See Mathew Bacon, A New Abridgement of the Law, 5th edn (London: A}

^{Strahan, 1798) Vol III, 427. An earlier edition, that of 1768, referring to}

^{this passage was cited by Lord Reid in R v Governor of Brixton Prison, ex}

^{parte Armah [1968] AC 192, 234E-G.}

^{72 R v Board of Control, ex parte Rutty [1956] 2 QB 109, 124. Of course the}

^{1816 Act was removed from New Zealand law by the Habeas Corpus Act}

^{2001 but s 14(2) of the 2001 Act preserves this position in New Zealand}

^{habeas corpus law, and expands it because the section in the 1816 Act}

^{only applied to civil matters, whereas s 14(2) of the Habeas Corpus Act}

^{2001 applies to all habeas applications, whether civil or criminal, subject}

^{to two limitations. These are that it does not apply to a convictions by a}

^{competent court nor to bail applications.}

^{73 [1968] AC 192 in which the applicant sought both habeas corpus and}

^{statutory review under the Fugitive Offenders Act 1881 (UK).}

^{74 Ibid 230-255.}

^{75 Ibid 257, per Lord Upjohn, where he says that the power to review the}

^{evidence could be seen either as a jurisdictional review or a question of}

^{law going to jurisdiction.}

^{76 R v Secretary of State for The Home Department, ex p Khawaja and Khera [1984]}

^{1 AC 74 (HL(E)). Noted in Graham Taylor, Judicial Review (Wellington:}

^{Butterworths, 1991) 48 para 2.29 fn 2.}

matters, but in relation to detention decisions by the Home Secretary. There were three issues on appeal.⁷⁷ The main issue for our purposes was the scope of review as laid down in the habeas corpus case of R v Secretary of State for the Home Department, ex p Zamir.⁷⁸ In Zamir the House had held that the scope of review was narrow and confined to asking the question whether there was some evidence on which the immigration officer had been entitled to decide, but the House in Khawaja overruled that case and applied a wider test for review, namely, whether there was sufficient evidence to justify the immigration officer ’s belief that the entry had been illegal. The House held unanimously that the Zamir test had been too narrow and declined to follow that case.

In the course of coming to this conclusion, the House was obliged to consider Zamir, which, to repeat, was a habeas corpus matter, and several of the judges reviewed the previous cases on scope of review in such cases. Most of these cases were, as Lord Wilberforce points out, habeas corpus cases,⁷⁹ and this is why in Khawaja the House of Lords considered in detail the scope of review in habeas corpus matters. The two speeches to review these cases were by Lord Wilberforce, who also gave the main speech in Zamir, and Lord Scarman.⁸⁰

In his speech, Lord Wilberforce started by noting the similarities between judicial review and habeas corpus in an important passage that ought to be reproduced:

These remedies of judicial review and habeas corpus are, of course, historically quite distinct and procedurally are governed by different statutory rules, but I do not think that in the present context it is necessary to give them distinct consideration. In practice, many applicants seek both remedies. The court considers both any detention which may be in force and the order for removal: the one is normally ancillary to the other. I do not think that it would be appropriate unless unavoidable to make a distinction between the two remedies and I propose to deal with both under a common principle. Each of the present cases appears, in fact, to be of judicial review.⁸¹

This is an important passage and one that the recent English cases

⁷⁷ The other issues were the meaning of the term ‘illegal entrant’ under the Immigration Act 1971 (UK) and whether or not the House should depart from its decision in Zamir.

^{78 [1980] UKHL 14; [1980] AC 930 (HL(E)).}

^{79 [1984] 1 AC 74, 101D ‘...the material is considerable and has been worked}

^{upon by judges of eminence and experience particularly in the field of}

^{habeas corpus’.}

^{80 Of the other Law Lords, Lord Fraser agreed with Lord Scarman, but said}

^{nothing in particular about habeas corpus. Lord Bridge also reviewed}

^{the earlier cases including habeas corpus cases, while Lord Templeman}

^{agreed with Lord Bridge and noted some of the similarities between}

^{habeas corpus and judicial review. For example (at 128D) that with both}

^{procedures evidence is given on affidavit, and cross-examination is subject}

^{to the discretion of the court.}

^{81 [1984] 1 AC 74, 99E-F.}

have not taken seriously. For the purposes of the appeal in Khawaja, it was necessary to deal with habeas corpus and judicial review under a common principle because the House was considering a previous decision in a habeas corpus matter (Zamir) and because most of the previous cases that the Lords reviewed in Khawaja were habeas corpus applications. If they thought that the two remedies were different as to the scope of the review, then they would not have treated the two remedies under a common principle.

In his review of the previous cases, Lord Wilberforce noted that the decision in this case involved two stages. The first was the determination of a precedent fact, that is, whether the appellants were in fact illegal immigrants. The second stage involved an exercise of discretion to remove them from the country and, in the meantime, to detain them.⁸²

As to the first stage, Lord Wilberforce concluded that, ‘there is no doubt that procedural means exist, whether under the head of habeas corpus or judicial review, for findings of fact to be made...’.⁸³ In his review of the previous cases, Lord Wilberforce considered six reported cases⁸⁴ (other than Zamir) all of them habeas corpus matters and four unreported cases⁸⁵ and all but one of them habeas corpus decisions. At the end of his review of the authorities, Lord Wilberforce restated the law as a number of propositions. The second of these reads: ‘Any person whom the Secretary of State proposes to remove as an illegal entrant, and who is detained, may apply for the writ of habeas corpus or for judicial review’.⁸⁶ The scope of review in the cases that involve issues of personal liberty ought to be searching and the court may remit the case for reconsideration or itself receive further evidence. As to what the court may do His Lordship ended by saying: ‘It should quash the detention order where the evidence was not such as the authorities should have relied upon or where the evidence received does not justify the decision reached or, of course, for any serious procedural irregularity’.⁸⁷ In other words, throughout Lord Wilberforce treated the scope of review for both remedies under a common principle and nowhere does he suggest that the review is confined to the detention order. His speech in Khawaja clearly indicates

⁸² Ibid 100A-C.

^{83 Ibid 101A. Emphasis added.}

^{84 R v Governor of Brixton Prison, ex p Ahsan [1969] 2 QB 222; R v Governor}

^{of Pentonville Prison, ex p Azam [1974] AC 18; R v Secretary of State for The}

^{Home Department, ex p Hussain [1978] 1 WLR 700; R v Secretary of State for}

^{The Home Department, ex p Choudhary [1978] 1 WLR 1177; In re Shahid Igbal}

^{[1979] QB 264; R v Secretary of State for The Home Department, ex p Parvaz}

^{Akhtar [1981] QB 46.}

^{85 Tirath Singh v Secretary of State for The Home Department, unreported,}

^{11 July 1980, CA Transcript No 686; R v Secretary of State for The Home}

^{Department, ex p Yasmeen, unreported, 11 February 1982, R v Immigration}

^{Appeal Tribunal, ex p Abdul Malik Hussain, unreported, 18 June 1982 (judicial}

^review).

^{86 [1984] 1 AC 74, 105B-C. Emphasis added.}

^{87 Ibid 105E.}

that the underlying decisions and material upon which it rests are also subject to review whether the case be one of habeas corpus or judicial review.

Lord Scarman also treated the two remedies under a common approach and in particular, noted that by reason of section 3 of the Habeas Corpus Act 1816 (Imp), the court may in a civil matter (and immigration cases fall into this category) examine the truth of the facts set forth in the return to the writ.⁸⁸ While noting that there are procedural differences between judicial review and modern statutory habeas corpus, Lord Scarman concluded nevertheless that the ‘nature of the remedy sought cannot affect the principle of law’.⁸⁹ The procedural differences, in other words, do not extend to differences as to the scope of review. This was made clear when Lord Scarman turned to the question of the burden and the standard of proof. The cases he cited on the appropriate tests are all habeas corpus cases.⁹⁰ After reviewing the 1816 Act and earlier cases, he concluded that this earlier material ‘puts habeas corpus in like case with the other form of judicial review’.⁹¹

There is no reason to suppose then that the House of Lords contemplated that the scope of review between the two remedies should be utterly different and the breadth of the remarks in that case, together with the fact that that case overruled a habeas corpus decision in Zamir, indicated that there was no difference as to the scope of review.

The English Position 1992-2001

In a lecture in 2000⁹² Lord Justice Simon Brown mounted a vigorous, provocative and stimulating attack on the retention of habeas corpus as a separate procedure under Order 54 of the Rules of the Supreme Court and argued that it should be subsumed under the procedure for judicial review provided for by Order 53. The lecture was the latest⁹³ of a series of criticisms of habeas corpus by English judges in both decided cases and in extra-curial commentary.⁹⁴ It seemed odd that at a time when the

⁸⁸ Ibid 110D.

^{89 Ibid 111C.}

^{90 Ibid 112A-F with the exception of Liversidge v Anderson [1941] UKHL 1; [1942] AC 206}

^{which was of course an action for false imprisonment.}

^{91 Ibid 111E (emphasis added).}

^{92 ‘Habeas Corpus-A New Chapter ’, [2000] PL 31-44.}

^{93 For round one see: A P Le Sueur, ‘Should We Abolish The Writ of}

^{Habeas Corpus?’, [1992] PL 13-20; Michael Shrimpton, ‘In Defence of}

^{Habeas Corpus’, [1993] PL 24-30; The English Law Commission, No 226,}

^{Administrative Law: Judicial Review and Statutory Appeals (1994) Part XI}

^{Habeas Corpus.}

^{94 For judicial critiques of habeas corpus in England in the 1990s see: R}

^{v Oldham Justices, Ex p Cawley [1996] QB 1, 16F-19F (QBD) per Simon}

^{Brown LJ; Re John, unreported, CO/1394/98, 30 April 1998, Latham J; R v}

^{Manchester Crown Court, Ex p McDonald [1998] EWHC 319; [1999] 1 WLR 841, 855D (QBD); B}

^{v Barking Havering and Brentwood Community Healthcare NHS Trust [1999]}

^{1 FLR 106, 114F-115F (CA) per Lord Woolf MR.}

United Kingdom was about to implement the Human Rights Act 1998,⁹⁵ which was designed to strengthen personal liberty, amongst other human rights, senior members of the English judiciary should argue for what is in essence the diminution of the writ.⁹⁶ Thus in two cases in 1991-1992 the English courts favoured judicial review over habeas corpus and these cases were followed in New Zealand.⁹⁷

The first case to hold⁹⁸ that there were significant differences between judicial review and habeas corpus was the decision in R v Secretary of State for the Home Department, ex p Cheblak.⁹⁹ But did that case draw a distinction between the two remedies? In Cheblak, at first instance Simon Brown J rejected an application for habeas corpus by Cheblak and also rejected an application for leave to seek judicial review on the merits, though he noted in passing that the habeas corpus application was probably wrongly undertaken because all applicants might take that route and thereby avoid the need for the court’s leave as would be needed in a judicial review application.¹⁰⁰ In other words, his objection to habeas corpus was not based in that case on the scope of review, but on the fact that a summary procedure might inconvenience the authorities and therefore it would have been better had judicial review been sought since that remedy provides protection for the authorities in the O’Reilly v Mackman¹⁰¹ sense.

The subsequent appeal was dismissed and in the course of his judgment, Lord Donaldson MR explained that while the two forms of relief are inter-related, they are essentially different. The difference was said to lie in the following:

The writ of habeas corpus will issue where someone is detained without any authority or the purported authority is beyond the powers of the person authorising the detention and so it is unlawful. The remedy of judicial review is available where the decision or action sought to be impugned is within the powers of the person taking it but, due to procedural error, a misappreciation of the law, a failure to take into account of relevant matters, a taking into account of irrelevant matters

⁹⁵ Simon Brown LJ’s lecture was also part of a review of the workings of the Crown Office list instituted in anticipation of the avalanche of human rights cased expected under the new Act: [2000] PL 31, 32. The Act came into force 2 October 2000.

⁹⁶ Simon Brown LJ says in [2000] PL 31, 32-33: ’I am not, let me hasten to add, advocating the total extinction of habeas corpus from the face of the law’.

^{97 Silke Ali v Minister of Immigration, unreported, M2270/91, 13 December}

^{1991, Barker J page 8; Bennett v Superintendent, Rimutaka Prison [2001]}

^{NZAR 557, 572[44].}

^{98 The point was first raised by counsel in Re Adeyara, unreported,}

^{CO/590/1986, 30 April 1986, but Schiemann J preferred not to decide}

^{the issue though he did express some sympathy for the point.}

^{99 [1991] 1 WLR 890 (CA).}

^{100 Unreported, CO/136/91, CO/137/91, 23 January 1991.}

^{101 [1983] UKHL 1; [1983] 2 AC 237. Simon Brown LJ did not refer to O’Reilly v Mackman in}

^{this passage however.}

or the fundamental unreasonableness of the decision or action, it should never have been taken.¹⁰²

No authorities were cited in support of these propositions and there may be peculiar reasons connected with the facts of this case that actually deterred the Court from looking into the underlying facts of the case on the habeas corpus appeal. The case arose out of the Gulf War of

1991 and Cheblak¹⁰³ was ordered out of the country on the grounds of national security. As Beldam LJ pointed out, the affidavit filed on behalf of the Home Secretary concerning the national security element in the case indicated that the disclosure of further details of evidence against Cheblak would pose an unacceptable risk to national security. This was both decisive of the judicial review application and: ‘It also effectively precludes the court in the application for the writ of habeas corpus from looking beyond the legal validity of the order for detention, to inquire into the truth of the underlying facts’.¹⁰⁴ In other words, because of the very limited scope of review in national security cases, not even a judicial review hearing would consider the truth of the underlying facts and thus the distinction erected in this case between the two remedies may have nothing to do with the authorities, for none were cited in favour of the distinction, but everything to do with the national security point. In other words, habeas corpus could not examine the truth of the underlying facts not because the remedy has never done so, but because in a national security case it is not the practice to allow this kind of review whether it is an application for judicial review or for the writ.¹⁰⁵

Beldham LJ referred to the common principle approach adopted in Khawaja and in fact, in the passage in question, the judge sets out Lord Scarman’s speech on the matter at length.¹⁰⁶ He then distinguished that case on the grounds that while Khawaja concerned precedent fact, this case did not and was in fact concerned with a question of the Secretary of State’s discretion. The discretion in issue in Cheblak was only limited by the requirement that the Secretary of State act in good faith. Beldham LJ then reviewed the well known authorities of Liversidge v Anderson¹⁰⁷ and Greene v Secretary of State For Home Affairs¹⁰⁸ and concluded with the majority in those cases that: ‘It is well settled that the courts must accept the evidence of the Crown and its officers on matters of national security’.

¹⁰² [1991] 1 WLR 890, 894D-E.

^{103 Actually romanised as Chiblak in the warrant: see ibid 897C-D.}

^{104 Ibid 909B-C.}

^{105 This may have changed with the passage of the Special Immigration Appeals}

^{Commission Act 1997 (UK) where it seems that while deference will be}

^{paid to the Government’s assessment of national security matters, the}

^{commission and the court may go into the matter to a greater extent}

^{than was possible in the earlier cases. See Secretary of State for The Home}

^{Department v Rehman [2003] 1 AC 163, 187[31], 193[54](HL(E)).}

^{106 [1991] 1 WLR 890, 910B-G.}

^{107 [1941] UKHL 1; [1942] AC 206.}

^{108 [1942] AC 284.}

This passage supports the argument that Cheblak restricted habeas corpus review because of the peculiar subject matter in that case and not because the cases support a restricted view of habeas corpus review generally. As numerous courts have pointed out it is always a mistake to extrapolate from a national security case to cases in the non-security arena.¹⁰⁹ Both Beldham LJ¹¹⁰ and Nolan LJ denied that normally a bare statement of detention was enough to preclude habeas corpus review and Nolan LJ, in particular, noted that the court has a power to inquire into the facts justifying detention by virtue of section 3 of the Habeas Corpus Act

^{1816.111 Nolan LJ then said in a decisive passage in the argument that:}

What rules out further inquiry in the present case is the special character which the law accords to cases involving national security, coupled with the evidence given on behalf of the Secretary of State that, apart from the limited information disclosed to Simon Brown LJ and repeated in the Home Office letter dated 30 January 1991, further details cannot be disclosed without unacceptable risk.

Nowhere in the decision, in short, did any member of the Court of Appeal argue that the dual application for habeas corpus and judicial review was misconceived or was for that reason inappropriate, neither did any member of the Court in Cheblak support a wider principle that in habeas corpus review generally, that is, outside the national security context, the court cannot consider the underlying facts or decision. Indeed the reference by Nolan LJ to the 1816 Act shows that he was well aware that such review is normally possible in civil habeas corpus cases.

In Muboyayi,¹¹² the Court of Appeal considered the argument whether habeas corpus or judicial review was the appropriate procedure in a case where the applicant had been refused leave to enter the United Kingdom. As his application for asylum had been refused, he was detained pending his removal to France. He sought habeas corpus from the High Court and because the Home Office refused to give an undertaking that he would not be removed while the matter was being considered, the judge issued the writ. The Home Office appealed and the Court of Appeal decided to allow the appellant to apply instanter for leave to seek judicial review.

In his judgment Lord Donaldson MR made it clear that where a detention depended upon a precedent fact, the challenge may be mounted by way of habeas corpus and relied explicitly on the Khawaja decision for this view. He also went on to say that the present case did depend upon precedent fact.¹¹³ However, and this is where he distinguished Khawaja,

¹⁰⁹ I reviewed these cases in detail in David Clark and Gerard McCoy, The

^{Most Fundamental Legal Right (Oxford: Clarendon Press, 2000) 95-105,}

^115-118.

^{110 [1991] 1 WLR 890, 912E-913C.}

^{111 Ibid 915H.}

^{112 R v Secretary of State for The Home Department, ex p Muboyayi [1992] QB}

^244.

^{113 Ibid 255B-D.}

in that case the precedent fact was challenged, whereas here it was not. In Khawaja, there was a challenge to jurisdiction, but in this case there was no such attack, ‘but only to a prior underlying administrative decision’. This was not a matter of jurisdiction in the normal habeas corpus sense of jurisdiction. In coming to this conclusion, the Master of the Rolls relied on the binding authority of Cheblak’s case decided some months earlier.¹¹⁴

Despite criticisms of that case by counsel,¹¹⁵ Lord Donaldson MR repeated the position he stated in Cheblak that habeas corpus review is narrowly jurisdictional, while judicial review deals with errors within jurisdiction such as procedural error, misappreciation of the law, a failure to take into account relevant matters, taking into account irrelevant matters, or the fundamental unreasonableness of the decision or action.¹¹⁶

No authorities were cited for the distinction by the Master of the Rolls, though later in his judgment he cited the earlier Court of Appeal decision in R v Secretary of State for the Home Department, ex p Phansopkar¹¹⁷ as supporting this position. In fact, that case is no authority for the distinction sought to be drawn in Muboyayi at all. In that case,¹¹⁸ Lord Widgery CJ held that the detainee was not really detained at all and that

‘She can leave the country at a moment’s notice if she wants to’. On appeal, Lord Denning MR¹¹⁹ merely dismissed the habeas corpus point by saying that the immigration officer had the power to detain under the statute, while Lawton LJ said nothing about the point, and Scarman LJ agreed, without giving reasons, that there was nothing to the habeas corpus point.

It followed therefore from the reasoning in Muboyayi, that subject to one important qualification, the correct procedure should have been judicial review, not habeas corpus. The one important qualification was that as the authorities had initially¹²⁰ refused to give an undertaking not to remove the applicant from the jurisdiction; habeas corpus was nevertheless useful here.

This seems to be a confusing result. In essence, it amounts to saying that habeas corpus was superior to judicial review in that it prevented the removal of the applicant from the jurisdiction, but was inferior to judicial review because the scope of jurisdictional review is narrower than that available on an application for judicial review. In short, in this case both remedies were necessary since neither by itself was adequate. Though invited by counsel to notice that in the past habeas corpus was

¹¹⁴ Ibid 256.

^{115 On the narrow ground of the meaning of a specific statutory provision,}

^{which the Master of the Rolls accepted as justified, but not decisive.}

^{116 Ibid 256 citing Cheblak [1991] 1 WLR 890, 894.}

^{117 [1976] QB 606. Cited in Muboyayi [1992] QB 244, 256H-257B.}

^{118 Ibid 611A-B.}

^{119 Ibid 622H.}

^{120 The Home Office later gave an undertaking (see 258) and thus, the court}

^{was not obliged to consider whether a habeas corpus quia timet was}

^needed.

coupled with certiorari in aid, the Court preferred to rely on the expanded nature of judicial review and to confine the ambit of habeas corpus to errors of jurisdiction patent on the face of the committal order, subject to the Khawaja option of review for precedent fact.

The result depended upon the view that habeas corpus jurisdictional review is narrow and does not include non-jurisdictional matters. But surely the result of insisting on both procedures because neither was by itself adequate was a clumsy solution. The better view would have been to recognise that modern habeas corpus law has taken a broad view of jurisdiction and to have proceeded on that basis. This would have saved the effort of joining judicial review proceedings in this case and might have saved costs.¹²¹ It also avoids the incoherent argument that while habeas corpus was not available because of the nature of the decision under review, it was somehow available to prevent the applicant from being removed from the country.

The other judges in Muboyayi agreed with the Master of the Rolls. Glidewell LJ thought that where the immigration officer must have reasons and evidence for his decision, as in Khawaja, then habeas corpus might be sought, but where, as here, the decision maker need not base his or her decision on precedent facts, habeas corpus was not appropriate at all.¹²² Taylor LJ evinced an even stronger opposition to habeas corpus saying that the attempt to rely upon habeas corpus was really a way of evading the leave requirements of judicial review, which were in the interests of good administration.¹²³ He did concede, however, that judicial review was inadequate in a case such as this where there was no power to stay the removal of the applicant from the jurisdiction. Taylor LJ suggested that habeas corpus should be used in such a case in aid of certiorari to prevent the frustration of the judicial review proceedings.¹²⁴

Subsequent cases accepted the distinction between habeas corpus to review jurisdiction and judicial review to review the underlying decision, but these cases relied upon Muboyayi and did not consider earlier habeas corpus cases.¹²⁵

¹²¹ One of the arguments against dual applications is that it wastes the precious time of the courts and also wastes costs. This argument has also been raised as a judicial concern in habeas corpus appeals: Re D(Mental Patient: Habeas Corpus) [2000] 2 FLR 848, 854 (English CA).

¹²² In addition to Phansopkar, Glidewell LJ cited R v Secretary of State for The Home Department, ex p Mughal [1973] 1 WLR 1133 in support of this distinction. But that case did not directly address the points raised in Cheblak and in fact, Lord Widgery CJ held that the immigration officer in that case acted ‘within his jurisdiction’ and for this reason, the case was not a true habeas corpus case at all: 1136E-F and he also noted that the applicant chose to remain in custody rather than go back to Pakistan.

^{123 [1992] QB 244, 268.}

^{124 An argument considered subsequently by Simon Brown J at first instance}

^{in M v Home Office [1992] 4 All ER 97, 113d-f (HC) appeal allowed in [1992]}

^{1 QB 270(CA).}

^{125 Re SC(A Mental Patient) [1996] QB 599, 611B (CA) Sir Thomas Bingham MR}

To sum up this part of the paper, the case for the distinction between the scope of review between judicial review and habeas corpus seemed to depend upon the decisions in Cheblak and Muboyayi. But later cases did not take into account the context of review in Cheblak, nor were they based on a close reading of any of the earlier authorities. In a subsequent case, Simon Brown LJ denied that the decision in Muboyayi was decided per incuriam on the grounds that in that case Armah and Khawaja were cited to the court.¹²⁶ But while those cases were cited by counsel, the Court itself does not refer to Armah at all and preferred to cite Khawaja in favour of habeas corpus review in matters of precedent fact.¹²⁷ In addition, the Court did not cite any prior cases in positive support of the distinction and, in particular, the court does not show that all habeas corpus review is of a precedent fact kind.

Unfortunately the New Zealand Court of Appeal has accepted much of the rhetoric by Simon Brown to the effect that judicial review has almost all of the advantages of habeas corpus.¹²⁸ The emergence of a dichotomy in detention cases between habeas corpus and judicial review is yet another limitation on the scope of the writ, ignores the breadth of section 14 of the Habeas Corpus Act 2001 and has even been endorsed in the recent proposals of the Law Commission in its report No 100, Habeas Corpus: Refining the Procedure.¹²⁹ The Report recommends and, also embodies this recommendation in a draft bill, that the High Court may refuse a habeas application because the ‘issue of a writ of habeas corpus is not the appropriate procedure’.¹³⁰ Unhelpfully the Report does not explain how a lawyer or client would determine in any given case that habeas corpus is not the appropriate procedure and the proposal would

accepted the distinction laid down in Muboyayi, but held on the facts here that the remedy was appropriate because the challenge was to jurisdiction, not to the underlying decision. Neill and Hirst LJJ agreed with the Master of the Rolls on this point. The same distinction was referred to by Laws J in R v Managers of South Western Hospital, ex p M [1993] QB 683, 697F-G and in Re Mulcahy (1992) 6 Admin LR 229, 245 (QBD). See also R v Oldham Justices, ex p Cawley [1997] QB 1, 18 (DC) where Simon Brown LJ cites Muboyayi and Cheblak as supporting the narrow view of habeas corpus review and observes in passing that both cases were decided after the

^{1989 publication of the second edition of Professor Sharpe’s book.}

^{126 R v Oldham Justices, ex p Cawley [1997] QB 1, 18E-F (DC).}

^{127 [1992] QB 244, 267 per Taylor LJ.}

^{128 Thus the article ‘Habeas Corpus-A New Chapter ’, [2000] PL 31 was cited}

^{with approval by Blanchard J in Bennett v Superintendent, Rimutaka Prison}

^{[2001] NZCA 286; [2002] 1 NZLR 616, 634[70] a passage cited with approval in Manuel v}

^{Superintendent of Hawkes Bay Regional Prison [2004] NZCA 440; [2005] 1 NZLR 161, 174-}

^{175[45](CA). Application for leave to appeal to the Supreme Court was}

^{dismissed: [2005] 2 NZLR 721(Note). Richard Berkeley, ‘Habeas Corpus}

^{Reform’, [2008] NZLJ 182 also notes the influence of Lord Brown’s views}

^{on the New Zealand Court and also their influence on the report: Habeas}

^{Corpus: Refining the Procedure (NZLC R100, 2007).}

^{129 (Wellington, December 2007) tabled in Parliament on 5 February 2008.}

^{130 Ibid 28 referring to clause 7 which would alter section 14 of the Act.}

^{thus sow more confusion than already exists.}

Subsequent English and Privy Council Developments

Now the problem with following English cases from the early 1990s on habeas corpus, and we saw earlier that the law in New Zealand required that this be done, was that the restrictive approach to habeas corpus and the preference for judicial review remained the position in New Zealand at the time in 2001 when the Habeas Corpus Act came into force. In this century the English courts and the Privy Council have indicated an unwillingness to accept the narrow view of habeas corpus adopted in England in Muboyayi and Cheblak. Perhaps this approach has been influenced by the Human Rights Act 1998 (UK), but it seems clear that the more expansive approach of the House of Lords in Khawaja has recent adherents in the Court of Appeal, for example.¹³¹ In Cartwright¹³² the Judicial Committee affirmed the Khawaja point that habeas corpus and judicial review are ‘subject to a common principle’ and ‘that the scope of review of these remedies is and should be essentially the same’.¹³³

In Knowles v United States Government the Judicial Committee rejected the argument that review is confined to the formal validity of an order for detention and that the court may not inquire into the substantial merits.¹³⁴ Most significant of all is a recent case in which Lord Brown, who as a member of the English Court of Appeal had led the attack on habeas corpus in the 1990s, gave the advice of the Judicial Committee in which he wrote:

It is impossible nowadays to argue that on an application for habeas corpus in extradition proceedings the court is confined to a review of the formal validity of the detention order and cannot, except by certiorari, inquire into its substantial merits.¹³⁵

¹³¹ D and others v Home Office [2005] EWCA Civ 38; [2006] 1 WLR 1003, 1024-1025[75]-[76].

^{132 Cartwright v Superintendent of Her Majesty’s Prison [2004] UKPC 10; [2004] 1 WLR 902,}

^{910-911[16]. See also the earlier Privy Council case from Hong Kong,}

^{Tan Te Lam v Superintendent of Tai A Chau Detenton Centre [1996] UKPC 5; [1997] AC 97,}

^112-113.

^{133 Citing the words of the UK Law Commission, Report No 226 on Judicial}

^{Review and Statutory Appeals (1994) para 11.10.}

^{134 [2006] UKPC 38; [2007] 1 WLR 47, 54[14]. See also R(Guisto) v Governor of Brixton Prison}

^{[2003] UKPC 12; [2004] 1 AC 101, 139[63] where Lord Hutton rejected a submission}

^{suggesting that habeas review was narrower than judicial review; – a}

^{submission that was reliant on passages in R v Secretary of State for the}

^{Home Department ex parte Cheblak [1991] 1 WLR 890, 984; R(H) v Secretary}

^{of State for Health [2005] UKHL 60; [2006] 1 AC 441, 457[31] where Baroness Hale wrote}

^{‘Judicial review and/or habeas corpus would, of course, also be available}

^{the challenge the lawfulness of the patient’s detention’.}

^{135 Gibson v Government of the United States of America [2007] UKPC 52; [2007] 1 WLR 2367,}

^{2372-2373[18] citing the passage from Cartwright cited at fn 132 above.}

^{Simon Brown LJ was appointed a Lord of Appeal in Ordinary (a Law}

^{Lord) on 12 January 2004: See [2004] 1 AC vii.}

^{New Zealand Cases 2001-2007}

On occasion judicial rhetoric may point in one direction while the law moves in another direction. In an early decision under the Habeas Corpus Act Robertson J warned against introducing a procedural dichotomy between the writ and judicial review and stressed that ‘Nor should we in any manner turn the clock back and lessen the potency of habeas corpus’.¹³⁶ But in the next sentence the judge does just this by pointing out that the three day time limit required that the issues in habeas hearing be confined and focused. The issues raised in the case included a breach of the New Zealand Bill of Rights Act 1990, international human rights questions and bias; issues not capable of being sensibly prepared within three days of filing the application.¹³⁷ This view was reinforced by the absence of a right of appeal against a grant of the writ.¹³⁸ Thus Robertson J concluded that the issues were more suited to a judicial review application.¹³⁹ Oddly, despite his claim that the three day rule necessarily confined the issues the three day rule did not require a decision within three days since in that case the judge adjourned the habeas matter by consent.¹⁴⁰

This approach was subsequently endorsed in later cases and indeed in

^{2006 the Court of Appeal indicated that ‘...it will be a rare case...where the}

^{habeas corpus procedure will permit the Court to inquire into challenges}

^{on administrative law grounds for decisions which lie upstream of}

^{apparently regular warrants’.141 In coming to this conclusion the Court}

^{relied upon New Zealand cases that had in turn relied upon Cheblak and}

^{Muboyayi,142 and in so doing effectively embraced the English distinction}

^{between habeas corpus and judicial review. The Court seems to have}

^{been unaware of New Zealand and English cases prior to 2001 that took}

^{a wider view of habeas corpus review or of the post-2001 cases especially}

^{in the Privy Council mentioned earlier in this paper. The Court of Appeal}

¹³⁶ Hunia v Parole Board [2001] NZHC 494; [2001] 3 NZLR 425, 430[29].

^{137 Ibid [30]. See also [32].}

^{138 Habeas Corpus Act 2001 s 16(1) allows appeals against refusal of the writ.}

^{The Law Commission in Draft Study paper No 18, Further Reform of Habeas}

^{Corpus Procedure (Wellington, August 2007) 18 recommended a right of}

^{appeal on points of law where the writ is granted. A successful appeal}

^{would not return to custody a person who has been granted the writ.}

^{139 Ibid [40], [42]. An appeal against this decision was refused because the}

^{matter was still on foot, the judge having adjourned the habeas matter,}

^{and the Act only permitted an appeal against a decision to refuse the writ:}

^{Hunia v Parole Board [2001] NZCA 457; [2001] 3 NZLR 353(CA).}

^{140 Ibid 432[45]; [2001] NZCA 457; [2001] 3 NZLR 353, 354[2].}

^{141 Manuel v Superintndent of Hawkes Bay Regional Prison [2004] NZCA 440; [2005] 1 NZLR 161,}

^{176[49]. See also Campbell v Superintendent of Wellington Prison [2007]}

^{NZAR 52, 60[35]; Zhang v Chief Executive and Prison Manager [2005] NZHC}

^{55 (19 September 2005) [6]; Hines v Manager of Custodial Services, Auckland}

^{Prison [2007] NZAR 297, 302-303 [27]; Yadegary v Auckland Central Remand}

^{Prison [2006] NZHC 1585 (14 December 2006) [10]; Borrell v Chief Executive}

^{of the Department of Corrections [2007] NZHC 195 (26 March 2007) [12].}

^{142 Manuel [2004] NZCA 440; [2005] 1 NZLR 161, 171-172[36]-[38].}

in Manuel explicitly disapproved of the reasoning of Robertson J in Hunia, while upholding the result in that case.¹⁴³ The Court accepted that there is not a bright line between the issues to be heard under each procedure, but the test was said to be ‘whether the arguments in issue are properly susceptible to fair and summary determination’.¹⁴⁴

The effect of this approach has been to severely limit the scope of habeas review and indeed to reduce it significantly below the scope of habeas review as understood for most of New Zealand’s legal history. It seems that if the warrant is valid on its face then habeas review ends. All upstream matters are to be held over for judicial review. It follows from this that where the issues require detailed, careful argument the appropriate procedure is judicial review and judicial review cannot be

‘piggy-back[ed]’ onto a habeas corpus application.¹⁴⁵ Thus in one case the court refused to consider natural justice and the underlying conviction in a District Court concluding that these matters were issues either for judicial review or for a sentence appeal.¹⁴⁶

Section 14(2) of the Habeas Corpus Act 2001 does address the question of the scope of review where it provides that:

A Judge dealing with an application must inquire into the matters of fact and law claimed to justify the detention and is not confined in that inquiry to the correction of jurisdictional errors....(italics added).

On its face this section requires a broad approach to the scope of review¹⁴⁷ and thus a court may examine in a habeas application ‘an administrative decision that underpins the legality of the applicant’s detention’.¹⁴⁸ The difficulty that arose in Manuel was that the Court of Appeal decided to shoehorn this provision into the summary procedure under the Act. In effect the Court cut down the potential scope of review under section

14(2) by limiting it to matters ‘only to the extent to which such inquiry is possible within the procedures provided for in the act’.¹⁴⁹

Thus by 2007 the Court of Appeal was of the opinion that a judge

¹⁴³ Ibid 175 [46]. However note the Court of Appeal expressly held that another branch of the Hunia litigation was in error. Superintendent of A Prison v S [2001] NZCA 393; [2001] 3 NZLR 768, 773[18].

^{144 See also Karaitiana v Superintendent, Wellington Prison [2002] NZAR 64,}

^{69[14] where Ellis J said, commenting on Bennett and Hunia, ‘With respect,}

^{I agree with both judges that the jurisdiction under the 2001 Act and}

^{for judicial review overlap and the speed envisaged by the 2001 Act is}

^{inappropriate to the resolution of matters of detail and complexity....’.}

^{145 Nunn v Superintendent Waikeria Prison [2004] NZAR 240, 245[18](Gendall}

^{J) though the judge did think that piggy-backing might be appropriate}

^{in rare cases.}

^{146 White v Hamilton District Court and the Department of Corrections [2006]}

^{NZHC 254 (20 March 2006) [30]-[31].}

^{147 As the Court of Appeal noted in Manuel 175[46]. See also Palmer v Police}

^{[2006] NZAR 489, 492[13]; Jones v Skelton [2006] NZCA 529; [2007] 2 NZLR 192, 212 [67].}

^{148 Manuel 175[46].}

^{149 Manuel 175[47].}

^{hearing applications for habeas corpus:}

needs to undertake a proper assessment of the merits and determine positively that the interests of justice require that a habeas corpus application be treated as if it were an application for judicial review. If this is not done, there will be an incentive for applicants to utilise the habeas corpus procedure to secure an urgent fixture under s 9 of the Habeas Corpus Act, which would not be available if the application had been correctly filed as an application for judicial review. That is an abuse of the Court’s process which should not be permitted.¹⁵⁰

The Flexibility of the Writ

The case law suggesting that habeas corpus is narrow in scope runs counter to an established body of case law and commentary to the contrary. Judges in a number of common law countries have stressed that the writ is flexible and that it has evolved throughout the centuries and, most importantly, for the purposes of the argument here, this may be expected to continue. In 1992 the Master of the Rolls said in one case ‘This, the greatest and oldest of all of the prerogative writs, is quite capable of adapting itself to the circumstances of the times’.¹⁵¹ Thus when the Court of Appeal stated a similar view in Bennett v Superintendent Rimutaka Prison¹⁵² it was merely giving voice to an attitude that has lain at the root of the writ’s development at least since the seventeenth century.¹⁵³

In that case Blanchard J wrote ‘...but habeas corpus is not to be shackled by precedent. It will adapt and enlarge as new circumstances require’.¹⁵⁴

¹⁵⁰ Greer v Parole Board at Auckland Prison [2006] NZCA 369 (21 December

^{2006) [7] (O’Reagan J) leave to appeal refused: [2007] NZSC 11 (7 March}

^{2007) [3] without comment on the point, but apparently on the basis that:}

^{‘It is devoid of merit as Mr Greer ’s detention is as a convicted person}

^{detained pursuant to a valid warrant of commitment’. See also Lyon v}

^{Manager, Hawkes Bay Prison [2007] NZHC 466 (10 May 2007) for another}

^{example of a habeas application being held to be an abuse of the process}

^{of the court.}

^{151 R v Secretary of State for the Home Department ex parte Muboyayi [1992]}

^{QB 244, 258f-g (Lord Donaldson MR). A passage cited with approval in}

^{Al Kateb v Godwin [2004] HCA 37; (2004) 219 CLR 562, 579[25] (Gleeson CJ dissenting).}

^{Similar sentiments have also been expressed in the United States. See}

^{Harris v Nelson [1969] USSC 97; 394 US 286, 291 (1969) where Fortas J wrote ‘the very}

^{nature of the writ demands that it be administered with the initiative and}

^{flexibility essential to ensure that miscarriages of justice within its reach}

^{are surfaced and corrected’.}

^{152 [2001] NZCA 286; [2002] 1 NZLR 616.}

^{153 As Justice Robert Sharpe of the Ontario Court of Appeal and the author of}

^{the leading work, The Law of Habeas Corpus, 2nd edn (Oxford: Clarendon}

^{Press, 1989) writes in his ‘Note to the second Edition’, habeas corpus is a}

^{‘versatile and flexible remedy’. Heath J wrote in Jones v Skelton [2007] 2}

^{NZLR 192, 197[17] ‘The writ, historically, was one of great flexibility....’. See}

^{also Law Commission, Report No 44, Habeas Corpus Procedure (Wellington,}

^{1997) 3 ‘...the flexibility of which has been one of its great strengths’.}

^{154 [2001] NZCA 286; [2002] 1 NZLR 616, 632-3[60] (emphasis added). See also the emphasis}

^{on flexibility in Jones v Skelton [2006] NZCA 529; [2007] 2 NZLR 192, 211 [59]. At 213 [69] the}

There are instances in the earlier cases showing such an attitude at work. Thus in the child custody cases rather than simply make an order granting or refusing the writ the court was prepared to ‘make such order as in the circumstances may seem proper ’.¹⁵⁵ The Habeas Corpus Act 2001 increased this flexibility by allowing for interim orders in section 11¹⁵⁶ something that some pre 2001 cases had doubted was possible.¹⁵⁷ There are dicta in Jones v Skelton indicating that the writ, which is normally issued against a specific person, may be extended to one ‘contra mundum (against all persons) and that it may even issue against a witness to abduction rather than to the abductee alone.¹⁵⁸

Flexibility Reinforced by the Bill of Rights

In the New Zealand case, at least to the extent that it applies, the writ in matters falling under the New Zealand Bill of Rights Act 1990 is to be given a generous ambit in keeping with the approach of the courts under that Act. Thus in the habeas application in Palmer v Superintendent of Auckland Prison¹⁵⁹ Wylie J noted that the reference to habeas corpus in section 23(1)(c) the New Zealand Bill of Rights Act 1990 should be given a generous construction relying as he did upon the Court of Appeal decision in Flickinger v Crown Colony of Hong Kong.¹⁶⁰ Now it may be argued against this that section 23 only applies to criminal matters and thus cannot be used to support an expansive view of habeas corpus in non-criminal matters. But as noted earlier the expansive view of the writ pre-dates the Bill of Rights Act and also is not confined to criminal matters. Thus both the historic emphasis on expansiveness and flexibility and the reinforcing effect of the New Zealand Bill of Rights Act suggest that in New Zealand a narrow and restrictive approach to the writ is both wrong and inappropriate.

The Meaning of an Inter-Partes Hearing

The notion that a habeas corpus hearing should be given the utmost priority before the court has deep roots and has been frequently

Court reiterated the views expressed in Bennett. This is also the approach in other common law jurisdictions. See May v Warden of Ferndale Institution (2005) 261 DLR (4th) 541, 554[21] (SCC) citing Jones v Cunningham 371 US

^{236, 243 (1963); Rasul v Bush [2004] USSC 2809; 542 US 466, 474(2004) (Stevens J).}

^{155 In re Thomson (1911) 30 NZLR 168, 178.}

^{156 For a case where this power was exercised see: Palmer v Police(Interim}

^{Habeas Corpus) [2006] NZAR 489, 492 [15].}

^{157 The Court of Appeal in Franic v Wilson [1993] 2 NZLR 323, 325 McKay J,}

^{doubted that a writ could be issued on terms that the matter be remitted to}

^{the District Court for rehearing. In a subsequent application by Mr Franic}

^{Thorp J in the High Court noted this doubt: Franic v Wilson, unreported,}

^{M 1544/92, Thorp J, 30 October 1992, page 3.}

^{158 Jones v Skelton [2006] NZCA 529; [2007] 2 NZLR 192, 213 [70], 215[78].}

^{159 (1990) 1 NZBORR 185, 195.}

^{160 [1990] 1 NZLR 439, 440 (Cooke P).}

followed in New Zealand.¹⁶¹ It is also worth noting that under the case management practice note issued in 2000 applications for habeas corpus were on the swift track.¹⁶² But the related idea that the hearing should also be completed quickly has some support in judicial dicta. In Re D (Infants) Wilson J thought that habeas corpus was an inappropriate remedy in a child custody case because the habeas procedure required ‘that there should be an immediate hearing and an immediate determination’.¹⁶³

Now while there is abundant authority prior to 2001 that habeas corpus matters should come on for a hearing as soon as possible,¹⁶⁴ no prior case required that they should be decided immediately. Indeed a close examination of the cases shows that in difficult cases the court would takes its time,¹⁶⁵ and the hearing may run over many days.¹⁶⁶ In one case in 1997 the court heard the application ‘as a matter of urgency’ but decided to adjourn the case sine die. ‘It is not dismissed. It remains an application before the Court which I hope will not need to be implemented by any formal writ of habeas corpus’.¹⁶⁷ In a case a year earlier the duty judge adjourned an application so that a child could be produced to the court.¹⁶⁸ Now while, as the Supreme Court has pointed out, ‘Of its nature

¹⁶¹ See In the Matter of Mikklesen, unreported, No 4/1910, Edward J, 22 March

^{1910 in NZ National Archives, No AADM w 3558/125; Chignell v Attorney-}

^{General [1989] NZHC 269; (1989) 4 CRNZ 257, 258; In the Matter of Tio Hok Ke, unreported,}

^{M 1633/89, Robertson J, 13 October 1989 page 2. A principle also known}

^{to parliamentarians. See New Zealand Parliamentary Debates, Vol 336,}

^{22 August 1963, 1352 (A J Hannan A-G).}

^{162 Reproduced in [2000] 1 NZLR 244, 251[9.1].}

^{163 [1969] NZLR 865, 866.}

^{164 See for examples: Manawatu v Justice Department, unreported, AP No}

^{80/93, Tipping J, 23 December 1993 where the Court made its own motion}

^{and heard the matter two days before Christmas. The same principle}

^{applies to the hearing of appeals in habeas corpus matters. Thus Midwood}

^{v Superintendent of Paremoremo Medium Security Prison, unreported, M}

^{1954/90, Sinclair J, was decided on 16 November 1990 and that afternoon}

^{the Court of Appeal heard the appeal: [1990] NZCA 476; [1991] 1 NZLR 442, 443; Holland v}

^{Superintendent of Auckland Prison [2003] NZAR 212, 213[4]; see also Supreme}

^{Court Act 2003, Schedule Part 2, s 17(1A).}

^{165 See amongst many such examples: In re Gilberd(An Infant) (1913) 15 Gaz}

^{LR 631 where the hearing ran for two days and judgment was given}

^{two weeks later; Hall v Onion [1937] Gaz LR 206; In re Gunn and Another}

^{[1947] Gaz LR 249 O’Leary CJ heard the application on March 27 but}

^{did not hand down a judgment until May 26; Re M and Others (Infants)}

^{[1966] NZLR 1053 where Wild CJ heard the matter over two days (2nd}

^{and 3rd August) and handed down a judgment some weeks later on 26}

^August.

^{166 As it did in In the Matter of Howard, unreported, M 313/85, Thorp J, 13}

^{May 1985 where the hearing lasted four days in April 1985 with judgment}

^{on 13 May.}

^{167 H v J [1997] NZHC 1610; [1997] NZFLR 307, 311(Gendall J).}

^{168 Re Jayamohan [1995] NZHC 1244; [1996] 1 NZLR 172, 175. See also Jones v Skelton [2007] 2}

^{NZLR 192, 201[50] where Heath J adjourned a child habeas case for seven}

^days.

habeas corpus is a rapid and summary remedy’,¹⁶⁹ and the Act requires urgency, but it does not require that the matter be decided within three days, though in an appropriate case this may be done.¹⁷⁰

Unfortunately some judges have construed the language of section

^{9(3) of the Habeas Corpus Act 2001, which requires a hearing date ‘that is}

^{no later than three working days after the date on which the application}

^{is filed,’ for the looser proposition that the matter must be disposed of}

^{within three days.171 Actually this formulation conflates two separate}

^{propositions in section 9. As the text is crucial it should be read with}

^{care. The section reads:}

Section 9 Urgency

(1) An application for a writ of habeas corpus must be given precedence over all other matters before the High Court.

(2) Judges and employees of the Department for Courts must ensure that every application, including any interlocutory application, is disposed of as a matter of priority and urgency.

(3) The Registrar must allocate a date for the inter partes hearing of an application that is no later than three working days after the date on which the application is filed.¹⁷²

The inspiration for the three day rule came from section 6 of the Habeas

169. Jones v Skelton [2007] 2 NZLR 178, 184[11] (SC) (Blanchard J) who incidentally decided Jayamohan above.
170. Jones ibid, was an appeal against an oral judgment by Heath J who heard and decided the matter in one day. See Jones v Skelton [2007] 2 NZLR

^192.

^{171 In Mohebbi v Minister of Immigration [2003] NZAR 685, 688[9] Chambers}

^{J wrote ‘By s 9(2) of the Habeas Corpus Act, I am required to ensure that}

^{this application is disposed of as a matter of priority and urgency. This}

^{has necessitated an oral judgment today’ (emphasis added). Similarly}

^{Gendall J in Nunn v Superintendent Waikeria Prison [2004] NZAR 240,}

^{241[2] thought that section 9 required that the application ‘had to be dealt}

^{with within three days....’ (emphasis added). In Wright v Attorney-General}

^{[2006] NZAR 66, 80[63] Venning J wrote ‘The applicant ...has the right...}

^{to have the writ determined as a matter of urgency.’ Neither the words}

^{‘disposed of’ nor the words ‘dealt with’ appear in section 9(3). See also}

^{Poi v Attorney-General [2002] NZAR 980, 982[3] where Panckhurst J gave}

^{an immediate oral judgment despite the fact that the evidence before}

^{him was far from complete. The judge thought that the Act required ‘an}

^{immediate hearing’[17] and agreed with the reasoning of Robertson J in}

^Hunia.

^{172 Clearly an application on the Thursday before Easter Friday would have}

^{to be heard by the following Wednesday, unless the matter was otherwise}

^{exceptionally urgent. In Tolentino v Custodian of Victoria Immigration Centre}

^{[1993] 1 HKC 19, 21A-B (Yang CJ) an application was made at the home}

^{of the Hong Kong Chief Justice at a few minutes to midnight on Chinese}

^{New Year ’s Eve.}

Corpus Act 1640 and section 1 of the Habeas Corpus Act 1679.¹⁷³ Of course the three day rule need not be adhered to in every case because an oral application may be made at any time in a case of unusual urgency (section 7(2)).

The Court of Appeal explained in a case in 2006 that ‘Despite the statutory emphasis on expedition the High Court is not necessarily required to determine the case within the statutory three days within which the application must receive a fixture. On the contrary, more time may be required’.¹⁷⁴ Thus time may be required for the cross-examination of defence affidavits, and oral evidence may have to be taken. Where the court may have to deal with matters of fact ‘it is inexcusable to pretend that procedural difficulties prevent a thorough investigation’.¹⁷⁵

The judges are clearly uncomfortable with the three day rule and on occasion have creatively sought to deal with the constraints it seems to require. In one case, thought to be unique, a judge issued the writ, but said it was to lie in the Court subject to certain conditions. The Court was concerned that the three days was insufficient to permit the detainor a proper opportunity to prepare their case and thus be fairly heard.¹⁷⁶

Now this confusion would not have arisen if the courts and lawyers had thought more carefully about the language of section 9. The section does not say in terms that the hearing has to be completed on the third day, ie the day the hearing first starts, nor does the statute use such terms as ‘heard and determined’ within three days. The general law on the meaning of a hearing divides into two. One line of cases distinguishes between the hearing (ie submissions and evidence) and the decision or judgment.¹⁷⁷ On this basis a hearing under section 9 has to be commenced within three days, but neither the hearing itself nor the judgment has to be finalised on the day the hearing commences. Other cases include the judgment as part of the hearing.¹⁷⁸ Thus if the judgment follows some time after the hearing in the narrow sense, the extended period is part of the hearing.¹⁷⁹

¹⁷³ Habeas Corpus Act (1640) 16 Cha 1, c 10 s 6 which provided that the hearing is to be at most within three days after the return of the writ, while the Habeas Corpus Act (1679) 31 Cha 2, c 2 s 1 says in part that the return to the writ must be within three days after service. See Law Commission, Report No 44, Habeas Corpus Procedure (Wellington, 1997) 17.

^{174 Jones v Skelton [2006] NZCA 529; [2007] 2 NZLR 192, 210 [54] (Baragwanath J for the}

^Court).

^{175 Ibid [55] citing Ex parte Gregory [1901] AC 129 (PC) with approval.}

^{176 Keenan v Director of Mental Health Services [2006] NZHC 1675; [2006] 3 NZLR 572, 576 [16].}

^{177 See R v Warwickshire Justices [1835] EngR 483; (1835) 2 Ad & E 768, 772; [1835] EngR 483; 111 ER 296, 297-}

^298.

^{178 Ministry of Transport v Nicol [1980] 1 NZLR 432, 441 (CA) citing English and}

^{Australian authorities. See also Luoni v Minister of Works and Development}

^{[1987] 1 NZLR 20, 26 (HC).}

^{179 Ibid 441 where McMullin J cites Hale J in Higgon v O’Dea [1962] WAR}

^{140, 144 ‘...the hearing does not end when the last witness leaves the box}

^{or when the last address has been made nor even when the reasons for}

^Conclusion

This paper has argued that despite being a purely procedural measure the Habeas Corpus Act 2001 did alter the scope of review available on an application for habeas corpus. The paper argues that the New Zealand courts have narrowed the scope of review under the Act in the mistaken belief that the procedural requirements of the Act so truncate habeas hearings that review is confined to issues easily disposed of within the hearing in three days of filing requirement. Thus the courts have drawn a distinction between habeas review confined for the most part to errors on the face of the order authorizing detention, while more complex issues upstream of the detention order are best held over for judicial review. In short they have allowed the procedure to limit the scope of review. This is a wholly unnecessary complexity and could be put right on an appeal to the Supreme Court which should examine the precise relationship between sections 9(3) and 14 (2) of the Act. In the alternative the Law Commission should look into the matter. In its draft study paper 18 entitled ‘Further Reform of Habeas Corpus Procedure’ issued in August

2007 the Commission favoured the retention of the distinction between habeas corpus and other procedures.¹⁸⁰ The Commission does not seem to have seen the conflict between procedure and substance identified in this paper. In short the requirements of sections 9(3) and 14(2) do not conflict and judges should take more seriously the implications of section

^{14(2) than they have hitherto.}

The paper shows that the distinction between habeas corpus and judicial review is an English complication that now seems to be in decline in that country, since decisions there and in the Judicial Committee since

2001 have abandoned the distinction between the two procedures. As the paper argues no such distinction was drawn in English law before

1991 and the cases in England that supported the distinction between the two procedures have been widely misunderstood. The paper also shows that the concept of jurisdictional review in New Zealand habeas corpus cases has been wide since the nineteenth century, and that both the traditional flexibility of the writ, together with the reinforcing effect of the New Zealand Bill of Rights Act 1990 require a generous not a cramped view of habeas corpus review.

judgment have been given but it extends up to the time when judgment is pronounced....’. Hale J’s remarks were in turn based on Pierpont v Cartwright [1879] UKLawRpCP 14; (1880) 4 CPD 139, 141.

^{180 (Wellington, 2007) recommendation 33.5.}