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Habeas Corpus Act 2001

Determination of applications

14: Determination of applications

You could also call this:

"The court decides if you are being held unfairly and what happens next."

Illustration for Habeas Corpus Act 2001

If you are detained and you think it is not lawful, you can apply to the High Court for a writ of habeas corpus. The High Court will look into your case and decide if your detention is lawful. If the court decides it is not lawful, it must order your release.

When the High Court looks into your case, it will check the facts and the law to see if your detention is justified. However, there are some things the court cannot question, such as a conviction by a court that has the power to make that decision, like the Court Martial of New Zealand established under section 8 of the Court Martial Act 2007, or a decision about bail made by a court that has the power to make that decision.

The High Court can decide to refuse your application or order your release from detention. The court also has the power to decide who pays the costs of the application. A writ of habeas corpus is a formal document that orders your release, and it can be in a standard form set out in the Schedule.

The court's decision will depend on the specific circumstances of your case, and it will consider all the relevant facts and law, including section 15(1) and section 13(2).

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This page was last updated on

View the original legislation for this page at https://legislation.govt.nz/act/public/1986/0120/latest/link.aspx?id=DLM91792.

Topics:
Crime and justice > Courts and legal help
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14Determination of applications

  1. If the defendant fails to establish that the detention of the detained person is lawful, the High Court must grant as a matter of right a writ of habeas corpus ordering the release of the detained person from detention.

  2. Despite subsection (1), the High Court may refuse an application for the issue of the writ, without requiring the defendant to establish that the detention of the detained person is lawful, if the court is satisfied that—

  3. section 15(1) applies; or
    1. an application for the issue of a writ of habeas corpus is not the appropriate procedure for considering the allegations made by the applicant.

      1. A Judge dealing with an application must enquire into the matters of fact and law claimed to justify the detention and is not confined in that enquiry to the correction of jurisdictional errors; but this subsection does not entitle a Judge to call into question—

      2. a conviction of an offence by a court of competent jurisdiction, the Court Martial of New Zealand established under section 8 of the Court Martial Act 2007, or a disciplinary officer acting under Part 5 of the Armed Forces Discipline Act 1971; or
        1. a ruling as to bail by a court of competent jurisdiction.

          1. Subject to section 13(2), a Judge must determine an application by—

          2. refusing the application for the issue of the writ; or
            1. issuing the writ ordering the release from detention of the detained person.

              1. All matters relating to the costs of and incidental to an application are in the discretion of the court and the court may refuse costs to a successful party or order a successful party to pay costs to an unsuccessful party.

              2. A writ of habeas corpus may be in the form set out in the Schedule.

              Notes
              • Section 14(1A): inserted, on (applying in respect of an application made under this Act whether before, on, or after this date), by section 6(1) of the Habeas Corpus Amendment Act 2013 (2013 No 9).
              • Section 14(2)(a): substituted, on , by section 87 of the Court Martial Act 2007 (2007 No 101).
              • Section 14(3): amended, on (applying in respect of an application made under this Act whether before, on, or after this date), by section 6(2) of the Habeas Corpus Amendment Act 2013 (2013 No 9).