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Where am I now? Lawlink > Law Reform Commission > Publications > Report on Habeas Corpus
Report 1 (1966) - Application for Writs of Habeas Corpus and Procedure to be Adopted
Report on Habeas Corpus
TO: The Honourable K.M. McCaw, M.L.A.,
Attorney General.
By letter dated 11th March, 1966 you made a reference to this Commission in the following terms:
“To review submissions by the International Commission of Jurists (as to writs of habeas corpus) and to consider generally the procedures which might be adopted in this State covering applications presently provided for in section 20 of the Supreme Court and Circuit Courts Act, as amended.”
The substance of the submission made by the International Commission of Jurists (Australian Section) was that recent amendments of the law might well deprive a judge of the Supreme Court of power to make an order absolute for the issue of a writ of habeas corpus. This Commission is satisfied that the power to make such an order absolute for the issue of a writ of habeas corpus. This Commission is satisfied that the power to make such an order absolute has now been vested exclusively in the Court of Appeal or, during vacation, in a judge of the Court of Appeal.
The International Commission of Jurists ( Australian Section ) stated that, in its view, “the effectiveness of the writ of habeas corpus, as an essential bastion of personal liberty, should not be diminished” .
There may be such to be said for the view that matters involving the liberty of the subject should be dealt with in the first instance by the highest court in the State, and doubtless this was one factor which induced the introduction of section 20 of the Supreme Court and Circuit Court Act, 1900 - 1965, in its present form, which was made by section 23 of the Law Reform ( Miscellaneous Provisions ) Act 1965. This provision and section 21F (3)(b) of the Supreme Court and Circuit Court Act, 1900 - 1965, are effective to take away from judges of the Supreme Court the power to make order absolute for the issue of writs of habeas corpus.
However, upon full consideration, this Commission has come to the conclusion that there are good reasons for changing the present position. Among them are the following:-
1. It may be conductive to delay if an application is required to be made to a Court of three judges. A judge sitting alone might well find it desirable to make a final order at night time or during a week-end. There are real problems in assembling a Court of three judges at such times. Unnecessary delays should be eliminated at all costs.
2. The right of a citizen to apply for a writ of habeas corpus to a judge sitting in a circuit town should be preserved.
3. The power to make final orders for the issue of writs of habeas corpus has traditionally been reposed in every judge of the Supreme Court, and there is no good reason for any such judge being deprived of the jurisdiction to exercise such power.
The view which the Commission has formed is in accordance with those expressed by the Chief Justice, the Bar Association of New South Wales, the Law Society of New South Wales, and the International Commission of Jurists (Australian Section).
If the position is to be changed as proposed, there seems to be every reason to remove an anachronism at the same time. For historical reasons, which it is unnecessary to discuss, the law in New South Wales was, until recent amendments, that a person seeking a writ of habeas corpus had the right to go from judge to judge (in the hope of finding one more merciful than his brethren) and that each judge was required to consider the application without reference to any previous decision. The grant of rights of appeal and, in particular, the provisions of section 73 of the Commonwealth of Australia Constitution which confers jurisdiction in the High Court of Australia to determine appeals from the Supreme Court of any State, renders ineffective any reason which could have ever justified this rule. This has been section 14 of the Administration of Justice Act, 1960, which precludes subsequent applications being made on the same grounds, whether to the same or any other Court or judge unless fresh evidence is adduced in support of the application. This is obviously reasonable and proper and does not appear to require elaboration.
A memorandum discussing the relevant law on the subject (which was circulated to all those interested) is set out in the First Schedule.
This Commission recommends that effect be given to the proposals mentioned above by enacting legislation in the form set out in the Second Schedule hereto. To make the position quite clear, the original provisions of the Common Law Procedure Act, 1899, (which may be thought to have been repealed impliedly by section 20 of the Supreme Court and Circuit Courts Act, 1900 - 1965, as substituted by Act No 32 of 1965) are proposed to be re-enacted, with two additions. One of these additions relates to the removal of the anachronism last abovementioned. The other is to state expressly that applications shall be made under the re-enacted legislation and not otherwise. As a corollary, it seems desirable to state expressly that the jurisdictions which previously appears to have existed to grant an order absolute in the first instance (Halsbury’s Law of England 2nd Edn. Vol. 9 p. 725) shall be preserved.
21st September, 1966
J.K. MANNING
CHAIRMAN
R.D. CONACHER
MEMBER
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