Attorney General of New South Wales v WB

The appeal concerned the Attorney General of New South Wales' attempt to obtain an interim extension order for a forensic patient, WB, under the *Mental Health (Forensic Provisions) Act 1990* (NSW). The primary dispute revolved around whether such an order could be made in respect of a person who had already ceased to be a forensic patient. The matter came before the Court of Appeal of New South Wales.

The central legal issues before the Court of Appeal were: (1) whether the Attorney General had a right to appeal from the refusal to make an interim extension order, and if so, whether that right was subject to leave; (2) the proper interpretation of the *Mental Health (Forensic Provisions) Act 1990*, particularly concerning the power to make interim extension orders for forensic patients and the application of the principle of legality to such powers; and (3) whether the word "may" in the relevant provision conferred a duty on the Supreme Court to make an order where pre-conditions were met.

The Court of Appeal reasoned that the right to appeal was not unfettered and required leave, which was granted on a limited basis. The Court considered the statutory framework and the principle of legality, noting that powers infringing fundamental rights and freedoms must be clearly conferred by Parliament. It was held that the definition of "forensic patient" in the Act was intended to apply to persons who were currently forensic patients, and that the power to make an interim extension order under clause 10 of Schedule 1 of the Act could only be exercised in respect of a person who was a forensic patient at the time the order was sought. The Court found that the Supreme Court had erred in refusing to make the interim extension order.

Consequently, the Court of Appeal allowed the appeal, set aside the order of the Common Law Division refusing the interim extension order, and made an interim extension order in respect of WB, to expire on 29 February 2020.