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Equity, Prosperity and Dispute Resolution Across Borders

Habeas Corpus

Habeas corpus is the writ issued to test the lawfulness of the detention or imprisonment of a person. All imprisonment is presumed to be unlawful and will be found to be unlawful unless the detention is legally justified.

It is available to test the legality of detention of a person held in any form of detention, not only in a prison, but in a nursing home, in the custody of a guardian, in immigration detention, held in a psychiatric hospital, or a child held by a relative.

The proceeding is taken in a Supreme Court, the Federal Court of Australia or the High Court of Australia.

The application is to the Court to issue a writ of habeas corpus for the person to be brought before the court and the cause of their detention justified. Usually the question is determined without the actual issue of the writ, and the person either has the cause of their detention justified or they are released.

McHugh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 223

The Public Advocate v C, B [2019] SASCFC 58