Habeas Corpus Amendment Bill

I take the opportunity to speak at this stage of the Habeas Corpus Amendment Bill. This is a bill that the Labour Party will be supporting. I just want to draw the Committee’s attention to the fact that this is a very important right, or set of rights, that we are dealing with in this bill—in fact, it is one of the most basic rights. It is a protection against the arbitrary detention of citizens by the State. This is an area of the law that forms part of the High Court’s inherent jurisdiction and it is unusual, or difficult in fact, to intervene in the court’s exercise of its powers in this regard. So when we are legislating for this, then we need to tread very carefully.

The member who is the sponsor of this bill, Chris Auchinvole, I think has shown the appropriate sobriety and caution in championing this piece of legislation. He has followed to the letter the recommendations of the Law Commission, and perhaps one day Mr Auchinvole might find himself sitting on that august body, but not today as he shepherds through this bill. The point I would make in that regard—my respect for Mr Auchinvole aside—is that this bill ought to have been one brought to this House by the Minister of Justice. But she has not done that. She has been busy, closing courts. She has been busily destroying the effectiveness of the Auckland Family Court. But we are left, with the assistance of Mr Auchinvole, to consider this very important bill and the very important rights under it.

What this bill does is take away what is presently a mandatory requirement of the High Court, when faced with an application for habeas corpus, to give it urgency, and to give the court some discretion on managing it. I have to say that this is a very sensible measure in that regard because it means that other urgent and important applications that the court might have to consider can be managed in accordance with the priority of those applications and the court need not be totally hamstrung by these sorts of applications, important as they are. I do not think they lose any sense of importance with the measures that are proposed in this bill.

The other important thing that the bill does is to allow the management of applications by video technology, which is a pretty modern step in the 21st century. As I say, these are sensible changes. What is not sensible, and I will conclude on this point, is that this bill comes here, being championed by a member using his rights as a member of this House. An important piece of legislation like this is not brought here by the Minister, and it is important that in future we see a Minister of Justice doing what she is meant to do, not relying on members exercising their rights as members of this House to bring such important legislation. Notwithstanding that, Labour will be supporting this bill.

I would like to acknowledge Mr Andrew Little. Thank you very much indeed, Andrew. In some ways—we have worked together on committees and things—you have been a little bit of a mentor to me in legal process and the way you use your knowledge and experience has been good.

💬 Hon Maurice Williamson: Steady on, steady on!

No, no, it is fair, because when I stepped in to pick up this Habeas Corpus Amendment Bill and bring it in as a member’s bill to this Government, I was taken aside by someone who knows a lot more about the law of legal process than I do, and he said: “By gosh, you are being brave. You are being brave because you are stepping into holy ground and there will be people there lurking in hedgerows and pathways and you will easily be caught up.” Hence my—

💬 Denis O’Rourke: And you were.

—I will come to you in a moment, sir—hence my care and reliance on the Law Commission. If we go back to the genesis of this, I have been asked to comment on what my eureka moment was: when did I leap out of the bath and rush along, saying I would do habeas corpus? It goes back to the Justice and Electoral Committee. When I was put on the Justice and Electoral Committee I did ask the current Attorney-General why that had happened; I am only an ordinary justice of the peace from the West Coast. He said to me that it is very important that we have people on the Justice and Electoral Committee who perhaps are not lawyers, so that they can give us an understanding of what we are saying.

💬 Scott Simpson: You’ll be welcome back any time.

Thank you very much. It was a period that I really enjoyed. I did listen to Sir Geoffrey Palmer when he said: “We are dependent on members picking up our bills and bringing them into Parliament because otherwise we have revived them, refreshed them, and they sit there at risk of nothing happening.” So I said: “Well, I will do that.” And I am glad I did—I am glad I did.

I have just reflected back through all the first reading and the second reading. I noticed that in the first reading New Zealand First thought it was a really splendid bill—it was magic, it was brilliant. In the second reading I was castigated like I have never been castigated before—hung, drawn, and very nearly quartered. Oh, the cruel cuts of the man’s vocabulary! But, in fact, then I found, because he was highly critical of what had happened to the bill at the select committee, that he was on the select committee. Then in the second reading, he voted against it, thereby voting against what the select committee had done. I find his logic very, very difficult to follow, but I am sure we will have an opportunity at some stage, perhaps over a malt, to reach a better understanding.

💬 Hon Maurice Williamson: I thought you could only be castigated once?

Well, no. No.

💬 Hon Maurice Williamson: Oh, sorry, I’ve got the wrong one.

Yes, you have. At the second reading members did express deep interest in this bill. In fact, everybody has treated it very, very seriously. I have been asked: “Well, why was it so necessary to do?”. I think it is because the Habeas Corpus Amendment Bill is, as the earlier speaker Andrew Little said, a very fundamental and very significant part of the law. It is one I learned about in civics when I was in the fourth form and it was always highlighted as the common man’s protection against legal entrapment or anything else. It is the King saying “My citizens should be free”. It is all of those things. I do not know whether it is unique to Commonwealth countries. Does it happen—

💬 Andrew Little: It’s widespread.

It is not unique, it is widespread. OK, thank you for that. But every now and again when I had this critically examined—a clause by clause analysis with someone who really knows their stuff—they said it is actually a very tidy little bill and it is necessary just to do these tidying bits. It is not tweaking, it is tidying and it is just bringing it into the modern era so that it is as effective now as it ever was.

What I have done is get a couple of examples of how it has been—not abused—misused. A prisoner in Auckland had, in the space of 2 years, brought six applications for habeas corpus on his own behalf, four on behalf of other prisoners, and two arising from care and protection issues involving his son. All of the applications were without merit. A number of them were subject to appeals to the Court of Appeal and applications for leave to appeal to the Supreme Court. They cannot do that any more. In a number of cases the habeas corpus procedures appear to have been used in an attempt to gain an early hearing, although the cases should properly have been brought as a judicial review application. Again, a misuse of it. Some attempts appear to have been made to use habeas corpus applications to bypass detention review processes in other legislation, such as in mental health and immigration.

I will not take the time of the House in giving even more examples, but perhaps I could close by thanking and expressing my deep appreciation to all who have spoken on this bill. It has been an exciting thing for me. I do not resile from bringing it forward from the Law Commission. Getting smooth operations in the courts is what we are all about. I guess I am very, very happy that we have reached this point thus far and I look forward to the third reading. Thank you.

I want to, first, respond to the criticism of my speech in the second reading of this bill, the Habeas Corpus Amendment Bill, by the Green Party, and also now by the honourable member Chris Auchinvole, the sponsor of this bill, of the National Party. The criticism was that having welcomed the bill on its introduction, I and New Zealand First are now opposing it. Initially, the bill appeared to be making a practical improvement to the way habeas corpus applications were dealt with by the courts, so I and New Zealand First supported the bill’s referral to the Justice and Electoral Committee for scrutiny there. That scrutiny has shown the bill as introduced to be significantly defective, so New Zealand First will not now support it. I do not see anything at all illogical about that. In fact, I would say that the Green Party’s criticism and National’s criticism both appear to be a rather pathetic excuse for the fact that both of those parties now have no good argument to continue to support this bill. In the end, the bill in fact does next to nothing to improve the habeas corpus procedure. It is now amended almost out of existence. In fact, the bill is a substantial waste of the House’s time, I believe.

There are five major defects. First of all, clause 5 of the bill has been amended to ensure that only a judge would have the power to direct that another matter take precedence over a habeas corpus application, or an appeal in respect of one. As introduced, the bill would have allowed courts or their judges to make decisions, so the amendment is now that because of the interpretation of the word “court”, only judges are able to do that. That is hardly worth a special bill in this House to do, because there is no real change from the status quo.

Secondly, subclauses (2) and (3) of clause 5 of the bill as introduced have been removed so that we now retain the 3-day time frame within which habeas corpus applications must be heard. New Zealand First, of course, supports that. The bill as introduced would have allowed a judge to extend that period, but the select committee found that: “there is little evidence that the current timeframe is problematic.” Having looked closely at the issue as part of that select committee process that the member referred to, I can only agree with the committee’s conclusion. What that means is that the basis for the bill has really proved to be completely unnecessary. In other words, the bill should not really have been considered in the first place.

Thirdly, as the select committee said: “extending the timeframe could expand the court’s jurisdiction regarding habeas corpus, potentially leading it to determine matters that might be more appropriately dealt with by another procedure. This could have the unintended consequence of removing current rights of appeal …”. So again, instead of what the bill says, the select committee actually recommends the status quo. So again the bill has been found wanting in a very fundamental way.

Fourthly, clause 6 has now been removed, because as introduced the clause would allow a judge to convene a conference of the parties to determine how proceedings would advance, including whether appearances would be made by remote means. The Justice and Electoral Committee found that: “In effect, this provision restates the High Court’s existing rules”. So once again the Habeas Corpus Amendment Bill actually is a complete waste of time, adds nothing in that respect, and achieves nothing new.

Fifthly, clause 8 of the bill has been removed and replaced by a new clause to the effect that the provisions of the Courts (Remote Participation) Act 2010 apply to habeas corpus proceedings, which, of course, is the case anyway and is precisely why the Act was passed in 2010. I have to wonder whether Mr Auchinvole actually knew that that Act had been passed, because if he had then why would he be including in this bill something that was already achieved not long ago in 2010 by way of the Courts (Remote Participation) Act? Therefore, the inclusion of that provision in this bill was, yes, just another waste of time. The select committee said: “we think that having different requirements for audio-visual links in the principal Act and in the Courts (Remote Participation) Act could lead to confusion”. This provision in the bill is actually counterproductive and should not be supported. So it is not just a waste of time, but it is actually retrograde—actually undoing some good.

In the end, we see that all of the main provisions of the bill are actually removed. Clause 5 has been amended to clarify that a registrar cannot make the decision under section 9(1) of the Habeas Corpus Act. Well, big deal, no real change. Clause 6 has been removed because it restates the existing High Court Rules—again, big deal, no real change. Clause 8 has been removed because the Courts (Remote Participation) Act 2010 has been passed. So we are actually left with nothing much at all in this bill as it now stands. Only clause 7 now stands, simply to confirm that the High Court can refuse an application because habeas corpus is not the proper procedure. In fact, that is something the court can already do.

In the end, the bill has not really proved to be worth Parliament’s time. New Zealand First supported the bill’s referral to the select committee because we think it is fair and proper that a member’s bill, where it appears it may have some value, should be scrutinised by a committee. But the committee has effectively amended it out of existence. New Zealand First was part of that process, so rather than resile from it—as Mr Auchinvole suggested I perhaps should—I embrace it. I was part of the process, I assisted in finding these defects, and therefore now, on behalf of New Zealand First, I say that it is no longer necessary to have this bill at all. The correct procedure, then, is to vote against it, so New Zealand First will now vote against it as it is a substantially unnecessary piece of work.