The Federation Press

Habeas Corpus


The first book length account of the history, law and practice of the writ of Habeas Corpus in Australasia and the Pacific. Covers Australia, New Zealand, Fiji, Vanuatu, Tuvalu, Samoa, Tonga, Niue, Nauru, Solomon Islands, Kiribati, Papua New Guinea and the Cook Islands.

The cases used include early nineteenth century newspaper cases, unreported cases from all jurisdictions and reported materials up to and including 1998. There are extensive references to statutes where the writ is mentioned.

Table of Contents


The image of the remedy
Right to liberty
The arrival of the remedy
The jurisdiction of the courts to award the remedy
The forms of writ

The Habeas Corpus Acts in Australasia

Australian legislation on habeas corpus
Draft New Zealand habeas corpus legislation
English legislation on habeas corpus in Australasia


Applying for bail via habeas corpus
May a person on bail apply for habeas corpus?
Bail and interim relief in a habeas corpus matter

The Scope of Review

The custody requirement
The remedy applies only to humans and their detentions
The remedy does not include damages or compensation
Areas of review

Habeas Corpus and Child Custody

The concept of custody
Older cases now obsolete
The general principle: the best interests of the child
The courts seek a compromise
Continuing role in inter-jurisdictional cases


The detainee
Parties with statutory responsibilities
The case of children
The case of parties held incommunicado
The case of persons otherwise unable to act on their own behalf
Philanthropic individuals and organisations
Diplomatic representatives of foreign countries have applied for the writ
Proof of authority to act
Future developments?

The Grounds of Review

Lack or excess of jurisdiction
The exhaustion of jurisdiction: functus officio
Improperly constituted decision maker
Acting under the wrong legislation
Failure to comply with statutory procedures
Abuse or abdication of discretion
Acting for an improper collateral purpose
Breach of the principles of natural justice
On the face of the record?

Territorial Limits

Foreign jurisdictions
Territory seas: civil ships
Territorial seas: public ships of a friendly power
Foreign embassies and legislations
Actually overseas
Interstate cases in Australia

Habeas Corpus and Emergencies

Martial law
States of emergencies
Coups d’état: Fiji 1987
Ordinary laws with wide powers

Practice and Procedure

Priority business of the court
Urgent cases
Applying for the writ
The stages of the hearing
The return
Hearing of return
Orders of the court
Successive applications
Disobedience to writ as contempt of court

Table of Cases
Table of Statutes

Of interest...