An individual’s access to the courts

Can a person who is detained by officials apply to a court for bail even when there is no prosecution or action brought against him? The Supreme Court of New Zealand has today decided the issue: Zaoui v Attorney-General 25/11/04, SC CIV 13/2004, in a case that departs from the law as had been indicated in some English decisions (eg R v Secretary of State for the Home Department, ex parte Turkoglu [1988] 1 QB 398, 400 per Sir John Donaldson MR).

The central point, around which this cause celebre revolves, is whether the High Court can grant bail to a person when there is no current case, before a court, involving that person. That is, is bail a merely ancillary matter, or is the jurisdiction to grant bail an independent matter? The issue has a faint echo of implications of the majority decision of the Supreme Court of the United States of America in Hamdi v Rumsfeld (see my blogs of 21.9.04 and 26.9.04). Hamdi was not cited in Zaoui, of course, as in Hamdi there was no argument about the court’s jurisdiction to hear the case. However the discussion in Hamdi of how judicial procedures should be adapted to the requirements of national security may have some relevance for the bail application that will follow the decision in Zaoui. Hamdi suggests that when it comes to the procedural details of the bail hearing, a more pragmatic approach (in the Posnerian sense) will be appropriate.

The Supreme Court, in taking the formalist approach, has not allowed the law to be governed by administrative convenience. The dangers of doing so were, after all, the lesson handed to the New Zealand Court of Appeal by the Privy Council in Taito v R (2002) 19 CRNZ 224. Fears of a flood of bail applications have not influenced the decision.

The SC described the bail decision in this case in these terms (at para 101):

“This is a case where national security issues arise. It is also a case about the liberty of someone who has refugee status in New Zealand and who is entitled to the benefit of the Refugee Convention requirement that only such restrictions upon his liberty as are necessary should be imposed upon him. The applications fall to be considered against the background of concern for liberty recognised by the Bill of Rights Act and the common law. Accordingly the case raises significant matters of public interest which require careful balance.”



Of course, to get to that point, the Court had to decide that jurisdiction to grant bail existed. There had to be an inherent jurisdiction to grant bail that had not been excluded by statute.

The conclusion on inherent jurisdiction was:

“[34] The power of the High Court to grant bail to someone detained is an ancient common law jurisdiction exercised by the superior courts of England in civil and criminal cases. The common law jurisdiction became part of New Zealand law in 1840 [citing English Laws Act 1858]. The powers of the English superior courts have devolved in New Zealand on the High Court [citing section 16 Judicature Act 1908, preceded by the Supreme Court Ordinances of 1841 and 1844 and the Supreme Court Acts of 1860 and 1882]. The power inheres in the Court itself as an independent common law jurisdiction, rather than as an incidental power ancillary to other jurisdiction (as are many procedural powers described as “inherent” or “implied”) [citing R v Gage 3 Vin Abridg 518, per Holt CJ; In re Nottingham Corporation [1897] 2 QB 502, 509 per Pollock B; R v Spilsbury [1898] 2 QB 615, 620 per Lord Russell CJ; and RJ Sharpe The Law of Habeas Corpus (2 ed 1989) 141-142].

“[35] Some confusion may arise because the term “inherent jurisdiction” is applied both to substantive and procedural powers. The ancillary inherent powers of courts to regulate their own procedure arise equally in relation to their statutory and common law substantive jurisdictions. Courts which do not possess an inherent substantive jurisdiction (as is the case where their substantive powers are entirely statutory) nevertheless have inherent or implied procedural powers necessary to enable them to give effect to their statutory substantive jurisdiction [citing Department of Social Welfare v Stewart [1990] 1 NZLR 697, 701].”

The terminology here is a bit confusing. “Independent” means “not ancillary”, that is, not associated with a matter currently before the court. “Substantive” means concerning the substance of a dispute, so is therefore a term applicable to where bail may arise as an ancillary matter. “Procedural” means how the court conducts its affairs, and this term applies to both independent and ancillary cases.

The Court appears to be saying that the inherent common law jurisdiction can be exercised independently of a matter currently before the court, and its exercise can be a matter of procedure, without having to connect to some substantive issue (and independent cases will not, by definition, involve substantive issues).

The jurisdiction is supervisory, and is best not described as “stand alone”. That is, it arises once there is a purported exercise of a power.

“[31] Unless excluded by statute, the inherent jurisdiction of the High Court to grant bail may be directly invoked whenever someone is detained under any enactment pending trial, sentence, appeal, determination of legal status, or (in immigration cases) removal or deportation from New Zealand. The jurisdiction can be exercised whether or not the High Court is seized of proceedings challenging the lawfulness of the detention. Thus, before the Bail Act provided in criminal cases for a statutory right of appeal from the District Court, the High Court commonly granted

bail in its original inherent jurisdiction after bail had been declined by a District Court.




“[32] Detention must be by authority of law. The exercise by inferior courts or officials of a statutory authority to detain falls within the supervisory responsibilities of the High Court. It is mistaken to regard the inherent jurisdiction to grant bail as “stand alone” or in vacuo.

“[33] In the present case, the statute permits detention only by judicial warrant. That imports judicial oversight – first in exercise of the statutory power by a District Court and secondly by the High Court through its general supervisory jurisdiction.”

As far as the second consideration was concerned, whether the inherent jurisdiction to grant bail had been excluded by statute, the Court held that there was nothing in the fact that a person was a danger to the security of New Zealand that was necessarily incompatible with release on bail (para 66). It did, however, acknowledge that when bail is an issue, in such cases security will be of major importance (para 69).



This case, from a broad perspective, illustrates the point of prime importance, namely the presumption that Parliament intends its legislation to be consistent with obligations that New Zealand has accepted under international law (para 44). Accordingly, there would have to be strong statutory language to defeat the entitlement of a person to challenge their detention.

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