Order 17 of the National Court Rules 1983 is headed Application for writ of habeas corpus. It is short, and every rule matters.
The remedy
The writ is in Form 120 (Rule 9), and is directed to the person restraining another.
Rule 7(1): the return of a writ of habeas corpus must be endorsed on or annexed to the writ and must state all the causes of the detainer of the person restrained.
So the writ compels two things: production of the person, and a statement of all the causes of the detention. It is not a review of the merits of a decision; it asks whether there is lawful authority for holding the person at all.
Constitution section 42 protects liberty of the person, and section 57 provides for enforcement of the Basic Rights.
Section 155(4) is also relevant: both the Supreme Court and the National Court have an inherent power to make, in such circumstances as seem to them proper, orders in the nature of prerogative writs and such other orders as are necessary to do justice in the circumstances of a particular case.
Rule 10
This Order shall not or be deemed to apply to persons covered by the Bail Act.
So a person in custody on a criminal charge who wants to be released pursues bail, not habeas corpus. Section 6(1) of the Bail Act (Chapter 340) allows an application at any time after a person has been arrested or detained or at any stage of a proceeding, and section 13 allows an immediate further application to a Judge of the National Court after refusal by a Magistrate.
See bail applications. Habeas corpus is for restraint that falls outside that scheme.
Rule 4
(1) Without prejudice to Rule 2(1), the Court or Judge hearing an application may in its or his discretion order that the person restrained be released, and such order shall be sufficient warrant to any superintendent of a corrective institution, police constable or other person for the release of the person under restraint.
(2) Where such an application in a criminal cause or matter is heard by a Judge and the Judge does not order the release, he shall direct that the application be made by motion to the Supreme Court.
The order itself is sufficient warrant for release. No further process is needed, and it binds any superintendent of a corrective institution, police constable or other person.
Sub-rule (2) then ensures that a refusal in a criminal matter goes up: the Judge shall direct that the application be made to the Supreme Court.
Rule 6
(1) Subject to sub-rules (2) and (3), the writ must be served personally on the person to whom it is directed.
(2) If personal service is not possible, or if it is directed to a superintendent of a corrective institution, police officer or other public official, it must be served by leaving it with a servant or agent of the person to whom the writ is directed at the place where the person restrained is confined or restrained.
(3) Where directed to more than one person, it is served on the person first named, with copies served on each of the others in the same manner.
There must be served with the writ a notice in Form 121 stating the date on which the person restrained is to be brought and that in default of obedience proceedings for committal of the party disobeying will be taken.
The warning of committal is part of the prescribed notice. It is not an optional addition.
By Rule 5, the Court or Judge by whom the order is made shall direct the date on which the writ is returnable — that is the date the notice states.
Rule 8
(1) The return shall first be read, and motion then made for discharging or remanding the person restrained or amending or quashing the return. Where that person is brought up in accordance with the writ, his counsel shall be heard first, then the counsel for the State, and then counsel for the person restrained in reply.
(2) If the respondent does not appear, and the body is not produced, application may be made to the Court or Judge supported by affidavit of service and disobedience, for committal for contempt.
(3) An order for committal shall be in Form 123.
The detained person’s counsel goes first and has the reply. That is the reverse of the usual civil sequence, and reflects that the burden lies on those detaining to justify the detention.
Rule 7(2) allows the return to be amended, or another term substituted for it, by leave of the Court or Judge before whom the writ is returnable.
Where else to look
Bail — for persons covered by the Bail Act, excluded from this Order by Rule 10.
Human rights enforcement — under Constitution section 57, on the Human Rights List under Order 23. A complaint may be made from custody — see complaints from custody.
Judicial review — where the complaint is about the lawfulness of a decision by a public body. Order 16 Rule 1(1) covers orders in the nature of mandamus, prohibition, certiorari or quo warranto. See judicial review.
On how an application is actually brought, see applying for habeas corpus.
Sources
- National Court Rules 1983 — O 16 r 1; O 17 rr 1–10, Forms 119–123; O 23
- Constitution — ss 42, 57, 155(4)
- Bail Act (Chapter 340) — ss 6, 13
Order 17 Rule 10 as published refers to the Bail Act 1977; the Act is now the Bail Act (Chapter 340), linked above.
Before relying on anything here, read the current text of the National Court Rules 1983 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.