J v Attorney-General

NOTE: PURSUANT TO S 130 OF THE INTELLECTUAL DISABILITY (COMPULSORY CARE AND REHABILITATION) ACT 2003, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B, 11C AND 11D OF THE FAMILY COURT ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE

NOTE: NO PUBLICATION OF THE YOUTH COURT PROCEEDINGS REFERRED TO IN THIS JUDGMENT IS PERMITTED UNDER S 438 OF THE ORANGA TAMARIKI ACT 1989, EXCEPT WITH THE LEAVE OF THE COURT THAT HEARD THE PROCEEDINGS, AND WITH THE EXCEPTION OF PUBLICATIONS OF A BONA FIDE PROFESSIONAL OR TECHNICAL NATURE THAT DO NOT INCLUDE THE NAME(S) OR IDENTIFYING PARTICULARS OF ANY CHILD OR YOUNG PERSON, OR THE PARENTS OR GUARDIANS OR ANY PERSON HAVING THE CARE OF THE CHILD OR YOUNG PERSON, OR THE SCHOOL THAT THE CHILD OR YOUNG PERSON WAS OR IS ATTENDING. SEE

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI O AOTEAROA

SC 10/2024
[2025] NZSC 103

BETWEEN	J, COMPULSORY CARE RECIPIENT, BY HIS WELFARE GUARDIAN, T Appellant
AND	ATTORNEY-GENERAL First Respondent DISTRICT COURT AT MANUKAU Second Respondent FAMILY COURT AT MANUKAU Third Respondent CARE CO-ORDINATOR Fourth Respondent CARE MANAGER Fifth Respondent

SC 11/2024
BETWEEN	J, COMPULSORY CARE RECIPIENT, BY HIS WELFARE GUARDIAN, T Appellant
AND	CARE CO‑ORDINATOR Respondent

Hearing:	20–21 August 2024
Court:	Winkelmann CJ, Ellen France, Williams, Kós and Miller JJ
Counsel:	A J Ellis and G K Edgeler for Appellant K Laurenson, M J McKillop and R E R Gavey for First and Fourth Respondents in SC 10/2024 and Respondent in SC 11/2024 No appearance for Second, Third and Fifth Respondents in SC 10/2024 A S Butler KC and D Qiu for IHC New Zealand Incorporated as Intervener D T Haradasa and B J Peck for Te Kāhui Tika Tangata \| Human Rights Commission as Intervener
Judgment:	15 August 2025

JUDGMENT OF THE COURT

AThe appeal is allowed in part. The approach of the Court of Appeal to s 85 of the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003 was incorrect. The Family Court, in considering this matter in the context of a review under Part 6 of the Act, is to address J’s condition and status in accordance with our approach to s 85.

BThe further evidence described below at [156] is admitted.

CThe application for recall of this Court’s leave judgment of 18 April 2024 (J, Compulsory Care Recipient, by his Welfare Guardian, T v Attorney‑General [2024] NZSC 34) is allowed only to clarify the matters which are properly before the Court.

DThe judgment of this Court of 18 April 2024 (J, Compulsory Care Recipient, by his Welfare Guardian, Tv Attorney‑General [2024] NZSC 34) is reissued accordingly.

E Costs are reserved.

____________________________________________________________________

REASONS

Para No
Summary of Reasons	[1]
Ellen France and Miller JJ	[18]
Winkelmann CJ	[165]
Williams J	[241][243]
Kós J	[349]

SUMMARY OF REASONS

(Given by the Court)

This summary of the Court’s reasons on the principal issues must be read alongside the full reasons.

Background

The appellant, J, is a 41-year-old Autistic person with an intellectual disability, as that term is defined in the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003 (the Act). He is detained in a secure healthcare facility pursuant to a compulsory care order made under the Act. J has been detained under a compulsory care order for over 19 years since, in 2006, he was found unfit to stand trial on two charges for minor property-related offending. The order has been extended several times under s 85 of the Act, most recently in 2023, on the basis of his risk of self-harm and committing acts of violence if released from care.
J, by his welfare guardian, T, challenges the validity of his compulsory care orders. J was unsuccessful in relation to his proceedings in the High Court. His appeals to the Court of Appeal were dismissed. Leave was granted to appeal to this Court. As the case has developed the focus is on whether there has been a breach of J’s rights, in particular his right not to be arbitrarily detained which is protected under s 22 of the New Zealand Bill of Rights Act 1990 (the Bill of Rights).
By a majority comprising Winkelmann CJ, Ellen France, Williams and Miller JJ, the Supreme Court has allowed J’s appeal in part.[1] The Court found that the Court of Appeal’s approach to the extension of J’s compulsory care order under s 85 of the Act was incorrect. The Family Court, in considering this matter in the context of its review under Part 6 of the Act, is to assess J’s condition and status in accordance with the approach to s 85 set out in the reasons of Ellen France and Miller JJ with which Winkelmann CJ is in agreement. Kós J dissented and would have dismissed J’s appeal.[2]

The correct approach to s 85

[1]See below at [222] per Winkelmann CJ, [160] per Ellen France and Miller JJ, and [280] and ‍[345] per Williams J.

[2]See below at [384] per Kós J.

In allowing the appeal in part, the focus of the Court was on the correct approach to the interpretation of s 85 of the Act under which a compulsory care order can be extended. The test adopted by a majority of the Court is set out in the reasons of Ellen France and Miller JJ, and is also discussed in the reasons of Winkelmann CJ.[3]
[3]See below at [141]–[145] per Ellen France and Miller JJ, and [216]–[218] per Winkelmann CJ.
In outlining the approach to be taken, Ellen France and Miller JJ said s 85 requires the Family Court to undertake an inquiry to determine whether the impact of continued detention on the care recipient’s liberty interests remains proportionate to the legitimate aims of the detention under the Act.[4] These legitimate aims are protection of the health, safety and rights of the care recipient, and the interests of the community.[5] Maintaining proportionality between those interests and the legitimate aims is necessary to ensure that extending a compulsory care order does not constitute arbitrary detention inconsistent with s 22 of the Bill of Rights.
[4]See below at [88] per Ellen France and Miller JJ.
[5]See below at [88] per Ellen France and Miller JJ.
The care recipient’s liberty interests are the starting point of the proportionality inquiry.[6] In determining whether continued detention is a proportionate response the Family Court must take into account the inter-related, factors set out below.
(a)The nature of the offending that brought the care recipient into the compulsory care regime (the initial offending). Broadly speaking, if the initial offending is minor, that is a factor telling against extended periods of detention. In other words, some proportionality between the initial offending and the adverse impact on the liberty interest should be maintained.[7]
(b)The care recipient’s rehabilitative prospects. Reflecting the emphasis given to rehabilitation in the statutory scheme, over time, the absence of prospects of progress by a care recipient in the immediate or near future, strongly tells against further extension of compulsory care.[8]
(c)The present risk posed by the care recipient. A sufficient risk of harm to the care recipient or others is the minimum pre-requisite for the extension of a compulsory care order. The effect of the statutory scheme is that risk is also relevant to the proportionality exercise. But eventually the risk of harm will be outweighed where the initial offending is comparatively minor; the person has been a care recipient for an extended period; and/or where the prospects of progress in the immediate future are minimal. Any other approach does not adequately reflect the relevant rights of a care recipient nor a statutory scheme with an objective of rehabilitation.[9]
(d)The length of time the care recipient has been under care. This factor is not treated as a standalone factor but it supplies the context in which the other factors are to be assessed.[10]
[6]See below at [102]–[103] and [119] per Ellen France and Miller JJ.
[7]See below at [96]–[114] per Ellen France and Miller JJ.
[8]See below at [115]–[119] per Ellen France and Miller JJ.
[9]See below at [120]–[131] per Ellen France and Miller JJ.
[10]See below at [94]–[95] and see [119] per Ellen France and Miller JJ.
Ellen France and Miller JJ saw the question of statutory interpretation of s 85 as one capable of resolution in terms of s 6 of the Bill of Rights. Section 6 directs that an enactment is to be given an interpretation consistent with the Bill of Rights, where possible. However, given there is an overlap between that section and s 5 of the Bill of Rights in this context, Ellen France and Miller JJ accepted that there would be no difficulty in the decision-maker framing their inquiry as one of demonstrable justification under s 5 if this were easier in practice, so long as the key matters identified in the test are considered.[11]

Winkelmann CJ

[11]See below at [81], [88] and [145] per Ellen France and Miller JJ.

Although endorsing the test as to the approach to s 85 in the reasons of Ellen France and Miller JJ, Winkelmann CJ took a different view in two main regards — as to the formulation of the primary purposes of detention under the Act, and regarding the precise nature of the necessary inquiry under the Bill of Rights.[12]
[12]See below at [216]–[218] per Winkelmann CJ.
On the first aspect, Winkelmann CJ considered that community safety itself is not a purpose of the Act in relation to care recipients in J’s position — those who have entered compulsory care via s 25(1)(b) of the Criminal Procedure (Mentally Impaired Persons) Act 2003. Rather, it is incidental to the primary purpose of the Act, which Winkelmann CJ articulated as comprising care, rehabilitation and reintegration into the community in response to the needs identified by the initial offending conduct.[13]
[13]See below at [203]–[204] per Winkelmann CJ.
Secondly, Winkelmann CJ said that courts considering applications under s 85 may find the R v Hansen proportionality analysis more useful, and saw this as engaging both ss 5 and 6 of the Bill of Rights.[14] This would involve first identifying the scope of the right, and the nature and dimension of the proposed limitation, then considering the justification for the proposed limitation: first, whether the limitation is prescribed by law; and secondly, whether the detention is reasonable, necessary and proportionate in light of the nature and seriousness of the index offending, and in light of the purposes of detention as described above.[15]
[14]R v Hansen [2007] NZSC 7, [2007] 3 NZLR 1, and see below at [214]–[215] per Winkelmann CJ.
[15]See below at [216] per Winkelmann CJ.
Winkelmann CJ, and Ellen France and Miller JJ, agreed that the case did not involve a conflict of rights and should not be approached in that way.[16]

Williams J

[16]See below at [207] per Winkelmann CJ, and [89] per Ellen France and Miller JJ.

Williams J differed from the majority as to the correct approach to s 85, preferring an approach which emphasises that “care”, the state’s active obligation to provide such care, and the need to protect J’s dignity and wellbeing, are central.[17] Williams J’s proposed test as to the correct approach comprised two questions.[18]
[17]See below at [280]–[281] and [335]–[336] per Williams J.
[18]See below at [322]–[334] and [341] per Williams J.
The first question on this approach is whether the risk and gravity of potential harm are sufficiently serious to justify further detention in secure care. This inquiry is informed in part by the length of the care recipient’s detention and the maximum sentence for the index offending.[19] The second question is whether the circumstances of the care recipient’s detention are such that their rights to dignity, respect and optimal quality of life are protected. The statutory mandate to detain only exists where the care being received vindicates these rights and these rights could not be provided for by less intrusive means.[20]
[19]See below at [323]–[324] per Williams J.
[20]See below at [325]–[327] per Williams J.
While this approach will often lead to the same result as the approach of the majority, Williams J considered that, in this case, fresh consideration by the Family Court may not inevitably lead to J’s release.[21]

Kós J

[21]See below at [280] and [336] per Williams J.

In dissent, Kós J would have upheld the decisions of the High Court and Court of Appeal, concluding that the amelioration of J’s current care status and conditions is a matter for the Part 6 review being undertaken by the Family Court. Kós J also considered that the approach in RIDCA v VM was largely correctly decided and applied by the Courts below.[22] The consequences of granting J the liberty he sought were likely to be very serious and it followed that J’s liberty interests were necessarily compromised from the outset.[23] Framing the matter as a conflict between J’s rights and the rights of the public,[24] Kós J found that the limits imposed on J’s rights were demonstrably justified due to, among other matters, the safety interests of potential victims, J’s lack of agency, and the absence of a suitable, less restrictive alternative.[25] On this basis, J’s detention in care had not been shown to be unlawful, and an order for release would be irresponsible.[26] The relief sought having been denied by the Court, the appeal should have been dismissed.[27]

Discrimination

[22]RIDCA Central (Regional Intellectual Disability Care Agency) v VM [2011] NZCA 659, [2012] 1 NZLR 641, and see below at [349] per Kós J.

[23]See below at [350], [352], [362] and [366] per Kós J.

[24]See below at [352] per Kós J.

[25]See below at [382] per Kós J.

[26]See below at [384] per Kós J.

[27]See below at [349], [376] and [386] per Kós J.

In addition to inconsistency with s 22, it was argued that the approach to s 85 taken in RIDCA v VM was inconsistent with the protection from discrimination in s 19 of the Bill of Rights. While not necessary to decide the appeal, which has been determined on the basis of arbitrary detention, Winkelmann CJ and Williams J[28] made some observations regarding the discrimination arguments. Winkelmann CJ said that she would also have allowed the appeal on this ground on the basis that the RIDCA test, which the majority have now rejected, as applied to J was discriminatory for the purposes of s 19 of the Bill of Rights.[29]
[28]See below at [346]–[348] per Williams J.
[29]See below at [223]–[239] per Winkelmann CJ.

ELLEN FRANCE AND MILLER JJ

(Given by Ellen France J)

Table of Contents

Para No
Introduction	[18]
Background	[24]
The initial incident	[25]
Presentation and care	[27]
The decisions in the Courts below	[40]
The High Court	[41]
The Court of Appeal	[51]
The statutory framework	[60]
*RIDCA v VM*	[70]
The issues	[74]
The case for the parties	[76]
The correct approach to the power to extend a compulsory care order	[78]
Impact of the rights of a care recipient and the scheme of the Act	[79]
The relevant considerations	[94]
The effect of the initial or index offending	[96]
Rehabilitation	[115]
Risk assessment	[120]
Conclusions in the present case	[132]
Conclusions as to the interpretation of s 85	[141]
Summary of result	[146]
Procedural matters	[148]
Scope of the appeal — jurisdiction	[148]
Further evidence	[156]
Result	[160]

Introduction

J is presently detained pursuant to a compulsory care order made under the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003 (the Act). J, now 41 years old, is an Autistic person with an intellectual disability as that term is defined in the Act.[30] J was made subject to a compulsory care order and detained under the Act in 2006[31] after he was found unfit to stand trial on charges of being in an enclosed yard without reasonable excuse[32] and wilful damage.[33] The order relating to J has been extended by the Family Court on numerous occasions since 2006.
[30]Section 7(1) states that “[a] person has an intellectual disability if the person has a permanent impairment that— (a) results in significantly sub-average general intelligence; and (b) results in significant deficits in adaptive functioning, as measured by tests generally used by clinicians, in at least 2 of the skills listed in subsection (4); and (c) became apparent during the developmental period of the person”. Subsection (4) includes skills such as communication, social skills, and reading, writing and arithmetic.
[31]New Zealand Police v [J] DC Manukau CRN 4092034925-26, 8 February 2006 (Judge Kerr).
[32]Summary Offences Act 1981, s 29(1)(b). The maximum penalty for this offence is three months’ imprisonment or a $2,000 fine.
[33]Section 11(1)(a). The maximum penalty for this offence is three months’ imprisonment or a $2,000 fine.
The power to extend a compulsory care order is set out in s 85 of the Act. That section provides that the Family Court “may” order an extension on application by the care co-ordinator.[34] In doing so, s 85(2) states that the court must consider and decide whether someone in J’s position must receive either supervised or secure care. As we shall explain, secure care requires high levels of security and supervision of the care recipient.[35]
[34]Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003 [the Act], s 85(1). Compulsory care co-ordinators are appointed by the Director-General of Health under s 140 of the Act with responsibilities for the geographical and operational areas specified by the Director‑General: s 5(1) definition of “co-ordinator”. They are responsible for the provision of various functions and exercise various powers within their designated area.
[35]Discussed further below at [28].
J, supported by his mother who is acting as his welfare guardian, wants his detention to be ended so he can live with his mother. To that end, he challenged the validity of his compulsory care orders in the High Court. Amongst other matters he said that, contrary to the New Zealand Bill of Rights Act 1990 (the Bill of Rights), his detention was arbitrary and that he was unlawfully discriminated against on the basis of intellectual disability.[36] J was unsuccessful in the High Court.[37] His appeal to the Court of Appeal was dismissed.[38] Leave to appeal from the decision of the Court of Appeal was granted by this Court.[39]
[36]New Zealand Bill of Rights Act 1990 [Bill of Rights], ss 22 and 19; and see Human Rights Act 1993, s 21(1)(h)(iv).
[37]J, Compulsory Care Recipient, by his Welfare Guardian, T v Attorney-General [2018] NZHC 1209 (Cull J) [HC judgment].
[38]J, Compulsory Care Recipient, by his Welfare Guardian, T v Attorney-General [2023] NZCA 660 (Courtney, Katz and Clifford JJ) [CA judgment].
[39]J, Compulsory Care Recipient, by his Welfare Guardian, T v Attorney-General [2024] NZSC 34 (Glazebrook, Ellen France and Miller JJ) [SC leave judgment]. Subsequently, IHC New Zealand Incorporated [IHC] and Te Kāhui Tika Tangata | Human Rights Commission [the Commission] were granted leave to appear as interveners.
J’s appeal raises questions about the way in which the Family Court should approach the decision to extend a compulsory care order under s 85 in circumstances where J’s detention has long exceeded the (three-month) maximum term of imprisonment that was available in relation to each of the charges against him; the prospects of progress for J in secure care are described as very low; and he is assessed as having a very high risk of seriously harming others and of harming himself if released into the community. The only explicit criterion governing the exercise of the extension power in s 85 itself concerns the choice between secure and supervised care. Section 85(3) provides that a care recipient may only be placed in secure care if the court considers “that supervised care would pose a serious danger to the health or safety of the care recipient or of others”.

In determining whether the s 85 power was exercised correctly in J’s case, the Court of Appeal adopted the approach to s 85 taken by that Court in RIDCA Central (Regional Intellectual Disability Care Agency) v VM (RIDCA v VM).[40] In granting leave to appeal the parties were asked to address the correctness of the approach in RIDCA v VM. That question necessitates consideration of the way in which the rights protected by the Bill of Rights, particularly the right in s 22 not to be arbitrarily detained, effect decisions under s 85.[41] Similarly, we need to consider how the protections in the Convention on the Rights of Persons with Disabilities (the Convention), which New Zealand signed in 2007 and ratified in 2008, impact on s 85.[42] Article 12(2) of the Convention requires recognition that “persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life”.
[40]RIDCA Central (Regional Intellectual Disability Care Agency) v VM [2011] NZCA 659, [2012] 1 NZLR 641 [RIDCA v VM].
[41]See further discussion of the relevant rights below at [79].
[42]Convention on the Rights of Persons with Disabilities 2515 UNTS 3 (opened for signature 30 March 2007, entered into force 3 May 2008). Ratification followed the enactment of the Disability (United Nations Convention on the Rights of Persons with Disabilities) Act 2008 and the Human Rights Amendment Act 2008.
To put these issues in context, we first set out the background to the case.

Background

We begin with a brief description of the incident giving rise to the charges J faced and then summarise the key features of J’s presentation and care since he was initially detained in 2006. The factual background is set out in some detail in the Court of Appeal judgment.[43] In the summary of the relevant events which follows, we draw on that description and on the detail of these matters in the written submissions of the first and fourth respondents in SC 10/2024 (the respondents).[44]

The initial incident

[43]CA judgment, above n 38, at [7]–[27].

[44]Being the Attorney-General and J’s care co-ordinator, respectively. J’s care co-ordinator is also the respondent in SC 11/2024. The second, third and fifth respondents in SC 10/2024 have played no active part in the proceedings.

J was living with his mother when, on 8 June 2004, he carried an axe onto a neighbour’s property. He used the axe to break windows of the neighbour’s garage and van. The neighbour noted J had said he was James Bond.[45] J was 20 years old at the time.
[45]In an earlier incident that did not give rise to any charges, J cut the back of the neck of another student at his school. The student was taken to hospital, needed stitches, and was released that same day. She returned to school several days later. It appears that on this occasion J also described himself as James Bond.
The charges against J proceeded under the Criminal Procedure (Mentally Impaired Persons) Act 2003 (the CPMIP Act) and the Act. Findings as to J’s involvement in the offending and that he was unfit to stand trial were made on 7 February 2005. At a disposition hearing a year later, on 8 February 2006, Judge Kerr found J had an intellectual disability and his risk to his health and safety or that of others was such that a secure care order for a term of two years was necessary.[46]

Presentation and care

[46]New Zealand Police v [J], above n 31, at [12]–[14]. See below at [60]–[69] for discussion of these statutory processes.

As we have noted, the Family Court in making a compulsory care order may order one of two levels of care, namely, secure or supervised.[47] Those ordered to receive secure care, as J was initially — and is now — receiving, do so in a “secure facility” as defined in s 9(2) of the Act. A secure facility is one that:[48]
(a)has particular features that are designed to prevent persons required to stay in the facility from leaving … without authority; and
(b)is operated in accordance with systems … designed to achieve that purpose.
[47]Above at [19].
[48]Section 9(2).
Secure facilities are found in secure hospital facilities and secure community facilities. Supervised care is provided in the community. Non‑secure facilities “need not have any particular features”.[49] Rachel Daysh, Group Manager System Design for Whaikaha | Ministry of Disabled People, in her evidence outlined the security features required for each of the different levels of care. For secure care, Ms Daysh said that the features include an “escape‑proof dwelling with locked or limited opening windows”, observation systems for staff observation and alarms. The Act also provides for care recipients to be placed in seclusion and restrained in specified circumstances whilst in secure care.[50]
[49]Section 9(3). Once required to receive secure care, a care recipient must stay in the designated secure facility and may not leave without authority given under the Act: s 63(2). See also s 64(5) dealing with supervised care and the ability of the co‑ordinator to direct the care recipient remain in the facility except with authority to leave.
[50]Sections 60 and 61.
For about the first year and a half of the initial compulsory care order, J was in a facility managed by Te Roopu Taurima. They are contracted to provide secure and supervised compulsory care facilities referred to as Regional Intellectual Disability Supported Accommodation Services (RIDSAS).[51] J was transferred from their care in August 2007 to the Mason Clinic which is a secure hospital‑level service. The reports filed in the Family Court said this followed on from various incidents involving, amongst other matters, absconding, secreting weapons and property damage.
[51]Ms Daysh, in an updating affidavit admitted by consent, discussed changes to the delivery of health services with, for example, the disestablishment of District Health Boards and the establishment of Whaikaha | Ministry of Disabled People. She explained that Regional Intellectual Disability Supported Accommodation Services remain non‑governmental organisations contracted by Whaikaha | Ministry of Disabled People and continue to provide care.
Between 2008 and 2010 the compulsory care order was extended under s 85 numerous times.[52] J returned to a RIDSAS facility operated by Te Roopu Taurima in May 2011. In September 2011, a recommendation was made that J’s level of care be varied from secure to supervised. The Family Court made provision for this on 5 December 2011. In December 2012, and again in April 2015, there were further extensions of the compulsory care order.[53] Then, after a hearing on 2–‍3 February 2017, the order was extended by a further 18 months (the 2017 Family Court decision).[54] In making the latter order, Judge Goodwin agreed with J’s care co‑ordinator, the applicant for the extension, that it was necessary to change the terms of the order from supervised to secure care. In doing so, the Judge was satisfied that the requirement in s 85(3) for “serious danger to either [J] or his care team” was met.[55] The Judge referred in this regard to the following:[56]
The incidents recorded by Ms Jensen in her report (36 in the prior six months) indicate to me that in the absence of the restrictions currently operated by [J’s] care team, there would be a serious danger to his care team and quite possibly to [J] himself. Such dangerousness is inherent within the risk assessment conducted by both Dr Thomson and Ms Jensen.
[52]On 30 April 2008, Judge Adams made an order extending the compulsory care order for six months; a further order extending the order for six months was made by Judge Rogers on 28 January 2009; on 27 July 2009 Judge Hikaka extended the order for 12 months; and a further two‑year extension order was made by Judge Hikaka on 6 October 2010.
[53]A two‑year extension order was made by Judge Skellern on 17 December 2012; and an extension for 18 months was ordered, again by Judge Skellern, on 17 April 2015.
[54]Harvey v [J] [2017] NZFC 1079.
[55]At [115].
[56]At [116]. Ms Jensen and Dr Johnson prepared specialist assessor reports on J and gave oral evidence at the hearing. “Specialist assessors” are “suitably qualified and experienced health or disability” professionals designated as specialist assessors by the Director-General of Health for the purposes of the Act: the Act, s 5(1) definition of “specialist assessor” or “assessor”.
The Judge was also satisfied that secure care was the least restrictive option available. As the respondents record in their submissions to this Court, the specialist assessor reports prepared for this extension application:[57]
… note that recent incidents had included attempts to secret sharp objects, threats to cut the throats of staff and European people more generally, attacks on support workers, J vocalising that he was James Bond, attempts to smash windows and escape his care facility, and assaulting the CEO of his care facility by forcibly removing her shoe and sniffing and licking her foot. J also provided one report writer with images he had drawn of assaults on women, which include written references to James Bond films and a specific threat to kill another woman (the CEO of a previous care facility).
16. The specialist assessors considered J’s risk of harming others remained high. While his risk in a care setting was of relatively low‑level assaults to staff, his risk outside of a care setting was of committing acts of serious violence, particularly against European women and girls.
[57]Footnotes omitted.
Another extension order was made in August 2018 for a further 20 months of secure care. Early in 2020, J was moved from his place in secure community care to the Mason Clinic because of concerns Te Roopu Taurima was no longer able to safely accommodate him. In September 2020, there was a further extension when the Family Court made a three‑year secure care order.[58] Reflecting the evidence of the specialist assessors, Judge Wagner considered J’s risk remained “in the very high range, and that he continues to present a significant and an ongoing risk to the community”.[59]
[58]Harvey v [J] [2020] NZFC 5981.
[59]At [39].
On 12 September 2023, another three‑year secure care order was made.[60] Judge Goodwin observed that if released from his current secure unit, J would return to his mother’s home. The evidence was that her home did not meet the required standards either in terms of security or staffing. Accordingly, the Judge said, if J was released from his current placement:[61]
… he would be accommodated in an environment that could not provide the secure level and human resource management that the reports highlight is required to address [J’s] current assessed risk.
[60]Care Co-Ordinator v [J] [2023] NZFC 9651. There was no appeal from this decision.
[61]At [28].
In terms of J’s assessed risk, the Court of Appeal observed that some common themes of concerns emerge from the material considered by the Family Court over the years. These include, notably, J’s obsessions with feet and those related to violence and weapons, incidents of violence, threats of violence, attempts to access weapons, incidents of property damage and self‑harming behaviours.[62]
[62]CA judgment, above n 38, at [11]–[26].
As is apparent from this narrative, J’s current care is provided at the Mason Clinic in, as we have said, a hospital secure facility. It suffices to use the respondents’ description of the living arrangements as at April 2023. The respondents note that J:[63]
… lives in a “cluster” of rooms which includes two bedrooms, a bathroom and living space where he is able to do some of his daily activities like watching television, using his cross-trainer and making simple meals. His level of risk requires a 3:1 ratio of dedicated staff. Before 2020 he was housed in a specially modified secure community facility with a locked gate and high perimeter fence topped by a net, locked and frosted windows (to prevent J becoming agitated by members of the public), reinforced walls, and with sharp objects such as kitchen knives kept in a locked cupboard.
[63]Footnotes omitted.
In a judgment delivered in 2024 following a further hearing to consider a review under Part 6 of the Act, which provides for the regular review of the condition and status of care recipients, the Family Court referred to the difficulties for J with the environment described above.[64] The Court noted that commercial construction adjacent to his accommodation causes J distress in a situation where it is already difficult for J to receive medical attention. J has “acute hearing” and responds strongly to sudden noise.[65] The Judge also stated that there have been some outings in a van for J but these have been “very limited” due to staff resourcing available to him.[66] The Court said the Mason Clinic has access only to one van suitable for J as it has a driver’s cage, and that vehicle “is not completely fitted out to the extent required for [J’s] own safety and the van is shared between nine units so is not often available”.[67]
[64]Lau’ese-Blaney v [J] [2024] NZFC 11580 [2024 judgment]. We address the admissibility of the 2024 judgment below at [156] and [159].
[65]At [7].
[66]At [10].
[67]At [10].
In context of the recent Part 6 review, the Family Court decision discussed a report filed with the Court from J’s care manager which canvassed J’s care and rehabilitation plans.[68] The care manager recommended funding to redesign the existing environment at the Mason Clinic so that it met J’s needs and for further training, coaching and supervision directed to J’s care needs. The care manager’s report went on to discuss a future where J may live with his mother in the community. The Judge noted “[t]hat is what she desperately wants, and [J] wants to be with his mother as well.”[69] The report noted that this course also was dependent on funding.
[68]These plans are a requirement when a care recipient’s needs have been assessed: the Act, ss 5(1) and 24. As to their contents, see ss 25, 26 and 27; and as to power to vary, see s 28.
[69]2024 judgment, above n 64, at [14].
The Judge said that the plan was “for a staged approach for” J.[70] The most pressing need was for a van, suitably fitted out, so that J could safely leave the Mason Clinic for outings. A “purpose-built space” in the Mason Clinic was also an urgent need.[71] The ultimate goal would be for J to live with his mother. The Judge made recommendations under s 76 of the Act to the Director‑General of Health to consider the funding issues. These recommendations reflected the Family Court’s view that the plan should be funded as a priority where J’s “current situation is untenable”.[72]
[70]At [20].
[71]At [21].
[72]At [24].
Finally, by way of background, we note that in an updating affidavit, Ms Daysh sets out the approximate numbers of persons at each level of care in New Zealand as at June 2024. The figures are as follows:
18.1     Hospital secure care under [the] Act – 39
18.2     Community secure care under [the] Act – 37
18.3     Community supervised care under [the] Act – 103
18.4[High and Complex Framework] care other than under [the]Act– 86
18.5Mainstream disability support services – approximately 7,500 in residential care, 70,000 in non‑residential care.

The decisions in the Courts below

We will come back later to some more detail of the judgment of the Court of Appeal but it is helpful at this point to briefly set out the general approach taken by the Courts below.

The High Court

The appellant brought four overlapping but separate proceedings which were heard together in the High Court, all of which challenged the validity of his compulsory care orders.[73]
[73]HC judgment, above n 37.
The first of these proceedings was an application for an extension of time (by at least 11 years) to appeal against decisions made by the District Court between 2004 and 2006 under the CPMIP Act — that is, the decisions that J was involved in the alleged offending and that he was unfit to stand trial, and ordering that he be cared for as a care recipient.[74] Cull J considered this application in some detail but concluded that leave to appeal out of time should be declined. The Judge found the grounds of appeal failed, there had been no miscarriage of justice, and the determinations J was involved in the offence, his unfitness to stand trial, mental impairment and the ultimate disposition in a secure facility under the Act were safe and valid findings.[75]
[74]See above at [26].
[75]HC judgment, above n 37, at [153]. See also at [157]. It was agreed in the Court of Appeal that there was no jurisdiction to appeal from this part of the High Court decision: CA judgment, above n 38, at [5(a)].
The second proceeding dealt with by the High Court was an appeal from the 2017 Family Court decision extending J’s compulsory care order for a further 18 months and varying it from a supervised care order to a secure care order.[76]
[76]Harvey v [J], above n 54; and see discussion above at [30].
When the High Court was considering the matter, the 2017 Family Court decision was the most recent extension order. The Court applied the principles relating to the extension of a compulsory care order under s 85 of the Act as set out in RIDCA v VM noting that the “balancing approach, between community protection and individual rights” was key to decisions to extend compulsory care orders.[77] In dismissing this appeal, the High Court considered that the Family Court had not erred either in interpreting and applying the law or in assessing the evidence of the specialist assessors. The evidence had been carefully considered, as had J’s particular circumstances, and the Judge correctly assessed that J’s compulsory care order should be extended and varied. The appeal against the 2017 Family Court decision was dismissed.
[77]HC judgment, above n 37, at [171], referring to RIDCA v VM, above n 40.
The third of the proceedings before the High Court was an application to that Court for an inquiry under s 102 of the Act into the legality of J’s detention as a care recipient.[78] Having found J was a person with an intellectual disability, and therefore was not detained illegally,[79] the Judge’s conclusion that it was necessary J continue to be cared for as a care recipient was based on the following:[80]
[427] I have taken into account the nature of the original offending, yet for the reasons I have addressed above, consider that even though J will remain subject to a compulsory care order, well in excess of a sentence for the index offending, the minor nature of the offending does not provide an accurate guide to the level of risk posed by J. J constitutes a very significant and ongoing risk to the public, even though the index offending was for minor offences. The incidents which occurred prior to J being charged with the index offending and after he was made a care recipient, reinforce that the index offending does not reflect J’s ongoing risk.
[428] I consider therefore, that J’s status as a care recipient under a compulsory care order at a secure level of care is not disproportionate to the need to protect the community and he needs to continue to be cared for as a care recipient at a secure level of care.
[78]See the Act, s 102(3).
[79]Sections 7 and 104(a).
[80]HC judgment, above n 37 (footnote omitted); and see the Act, ss 104(b) and 105(3).
The fourth matter dealt with by the High Court was the judicial review proceeding. Under this heading, the Judge focused on whether J was detained arbitrarily, subject to disproportionately severe treatment or punishment, and/or was discriminated against on the basis of his disability contrary to the protections in the Bill of Rights.[81] The Judge concluded that the detention was not arbitrary, but rather was justified by a lawful District Court order in 2006, and subsequently, following further reviews by the District Court, on the basis of specialist assessors’ evidence. Nor were the orders capricious or made without reasonable cause. The reasons for J’s detention had been carefully delineated in successive specialist assessors’ reports from 2005 onward.
[81]Bill of Rights, ss 9 and 19; and see Human Rights Act, s 21(1)(h)(iv).

The Judge addressed the submission that J had received poor rehabilitation prior to 2016 and that this supported the argument that he was arbitrarily detained. The Judge considered that the hearing leading to the 2017 Family Court decision had addressed the adequacy of J’s care and rehabilitation plan and the expert evidence along with the District Inspector[82] had drawn attention to the deficiencies in his care plan. The High Court found that the Family Court had reflected these concerns by limiting the secure care order to a term of 18 months.
[82]District Inspectors are barristers and solicitors appointed to ensure the Act and the Mental Health (Compulsory Assessment and Treatment) Act 1992 [Mental Health Act] are upheld, and to provide independent oversight to relevant facilities: see the Act, s 144 and Part 7 Subpart 1; and Mental Health Act, ss 94–98A.
The High Court also placed emphasis on the fact that the Act provided for frequent reviews, and conferred examination, inquiry and reporting powers on the High Court which could be initiated on the application of any person or on the Court’s own motion.[83] Further, the compulsory care orders were time limited and focused on the care and rehabilitation needs of every individual who each must have a care and rehabilitation plan. There was also oversight via the provision for District Inspector monitoring. In rejecting J’s argument that the fact his detention was disproportionate to the maximum sentence for his index offending supported a finding of arbitrary detention, the Judge noted the difficulty of equating “the punishment of imprisonment with the therapeutic or protective care enacted for those with intellectual disability”.[84]
[83]Citing the Act, ss 102–107.
[84]HC judgment, above n 37, at [475].
In terms of the argument that the scheme of the Act was discriminatory, the High Court rejected that on the basis that the scheme was designed to respond to and treat disability-related needs and the risk of self-harm and harm to others. The scheme did not materially disadvantage the intellectually disabled but rather “provides a humane, fair and compassionate system for their care and rehabilitation”.[85] The High Court also emphasised, amongst other matters, that the Act provides a protective and not a punitive scheme. In the alternative, the Judge considered that the difference in treatment was a justified limit in terms of s 5 of the Bill of Rights on the right to freedom from discrimination.[86]
[85]At [535].
[86]Bill of Rights, s 19; and see Human Rights Act, s 21(1)(h)(iv).
Finally, nor did the Judge accept that this was disproportionately severe treatment or punishment contrary to s 9 of the Bill of Rights. That was so where the detention under the 2006 Court order was appropriate, lawful and there was no miscarriage of justice. The Judge said that J’s risk required this level of care at present.

The Court of Appeal

The Court of Appeal dealt first with the argument that J’s treatment was disproportionately severe.[87] The Court found that the available sentence for the initial or index charges was a relevant consideration in addressing this submission but was only a factor and not determinative. Instead, the Court said when considering an application for an extension under s 85:[88]
… a court must exercise its discretion in accordance with the guidance given in [RIDCA v VM], which requires a careful balancing of a care recipient’s liberty interest and the need to protect the health and safety of both the care recipient and the community.
[87]Bill of Rights, s 9.
[88]CA judgment, above n 38, at [65] citing RIDCA v VM, above n 40.
The Court rejected other arguments raised on behalf of J about the process for the assessment of risk and as to prosecutorial discretion. We need only note the conclusion in relation to the difficulties raised by J’s case:[89]
All three specialist assessors who assessed him prior to the 2020 Family Court decision^[[90]] concluded that he poses a very high risk of future violent behaviour. Unfortunately, through no fault of his own, the level of risk that J poses can currently only be mitigated through controlling his environment — housing him in a secure facility, providing constant supervision, following a carefully developed care and rehabilitation programme, and so on. For the reasons we have outlined, it is our view that Cull J did not err in finding that J’s ongoing detention pursuant to a compulsory care order under the [Act] is not disproportionately severe treatment or punishment, in breach of s 9 of [the Bill of Rights].
[89]At [77].
[90]Harvey v [J], above n 58.
Next the Court dealt with whether the High Court was correct to find that J’s detention as a compulsory care recipient under the Act was not arbitrary in terms of s 22 of the Bill of Rights. The Court rejected the submission that the High Court was wrong on the basis that it did not consider whether J’s rehabilitative needs could be met by less intrusive measures. The Court applied the approach in RIDCA v VM that, “[i]f the risk posed by the care recipient is unlikely to be reduced through rehabilitative efforts”, the Court may take that into account when undertaking the balance between the community protection interests and the liberty interests of the care recipient.[91] The Court said that in the end, as was explained in RIDCA v VM, “the Judge determining an extension application must be satisfied that the community protection interest cannot be met other than by a compulsory care order”, or expressed another way, “the compulsory care order must be the least coercive and restrictive option available”.[92]
[91]CA judgment, above n 38, at [88] citing RIDCA v VM, above n 40, at [92(b)].
[92]CA judgment, above n 38, at [88] citing RIDCA v VM, above n 40, at [92(a)].
In terms of J’s case, the Court considered that the High Court was plainly right to find that the totality of the expert evidence “overwhelmingly” provided support for the view that J required secure care at that time.[93]
[93]CA judgment, above n 38, at [89].
The Court then addressed the submission that J’s detention was arbitrary because there had been a failure to provide J with effective rehabilitation before 2016. In relation to this, the Court accepted that there were inadequacies in the rehabilitation programme provided to J before 2016. However, since that time steps had been taken to address the criticisms made. Since 2017 there had been what the Court described as “a significantly increased focus on J’s rehabilitative needs”.[94] The Court considered that even if this issue had been properly pleaded, which it was not, the Court would have concluded Cull J was correct to find that J was not arbitrarily detained. Any inadequacies in the rehabilitative programme provided prior to 2016, “while unfortunate and deeply regrettable, do not render his current detention arbitrary”.[95]
[94]At [95].
[95]At [96].
The Court also reached the view that the statutory scheme of the Act was not inconsistent with the right to be free from arbitrary detention.[96] Nor were there deficiencies or failures in terms of the particular decisions made in relation to J that had made his detention arbitrary.
[96]Bill of Rights, s 22.
The Court next dealt with the argument that the two Acts, the CPMIP Act and the Act, were discriminatory. In assessing whether the scheme was discriminatory the Court applied the approach taken by the Court of Appeal in Ministry of Health v Atkinson in considering discrimination claims under s 19.[97] In general terms, the Court in that case suggested a framework asking, first, whether there was differential treatment or effects as between others in analogous or comparable situations (the comparator group) on the basis of the prohibited ground of discrimination; second, if so, whether that resulted in material disadvantage for the claimant group; and finally, if so, whether the discrimination could be justified under s 5 of the Bill of Rights.
[97]Ministry of Health v Atkinson [2012] NZCA 184, [2012] 3 NZLR 456 at [55], [60], [109], [117], [136] and [143].
Dealing first with whether the CPMIP Act regime was discriminatory, the Court considered the appropriate comparator group comprised defendants fit to stand trial. The Court accepted that those defendants unfit to stand trial were treated differently from that group. The Court took the view that the respondents were correct that the intention of this Act was to promote, not undermine, equality by providing alternative procedures which accommodated the unique needs of persons in J’s position. The Court acknowledged that the existing alternative procedures under the CPMIP Act could be improved to better promote the unique needs of people in J’s position. The Court concluded that review of the laws relating to unfitness to plead was “well overdue”.[98]
[98]CA judgment, above n 38, at [143].
In considering whether s 85 of the Intellectual Disability (Compulsory Care and Rehabilitation) Act was discriminatory, the Court said it could not find an appropriate comparator group. That was because criminal culpability was predicated on the offender having agency.[99] J did not.[100] If a comparator group was chosen, the Court considered that the closest group would be non‑disabled offenders posing the same degree of risk as J.[101] In conclusion on this point, the Court found that any differences in treatment under the Intellectual Disability (Compulsory Care and Rehabilitation) Act regime did not materially disadvantage persons in J’s position but:[102]
… rather reflected the fundamentally different purposes of the criminal justice system and the compulsory care order scheme, which is a protective scheme for intellectually disabled individuals who have been diverted from the criminal justice system.

The statutory framework

[99]At [152].

[100]At [153].

[101]At [154].

[102]At [160] (footnote omitted).

At the time J first appeared in the District Court, the powers of the courts in relation to persons in his position who were charged with imprisonable criminal offending but “under disability” were governed by Part 7 of the Criminal Justice Act 1985. But, as we have said, his case was ultimately dealt with under the CPMIP Act and the Intellectual Disability (Compulsory Care and Rehabilitation) Acts,[103] both of which had come into force on 1 September 2004.
[103]See above at [26].
This Court in M (SC 82/2020) v Attorney‑General observed that the “major purpose” of the CPMIP Act:[104]
… was to restate the law formerly set out in pt 7 and to make a number of changes, including changes which provided courts with appropriate options for the detention, assessment and care of defendants labouring under an intellectual disability.
[104]M (SC 82/2020) v Attorney‑General [2021] NZSC 118, [2021] 1 NZLR 770 at [9] per Winkelmann CJ, O’Regan and Williams JJ citing Criminal Procedure (Mentally Impaired Persons) Act 2003 [CPMIP Act], s 3.
The High Court in the present case accordingly described the CPMIP Act as providing a means of “triaging” defendants facing criminal charges.[105] Broadly speaking, those fit to stand trial are dealt with by the criminal justice system. Those unfit to stand trial are dealt with either under the Mental Health (Compulsory Assessment and Treatment) Act 1992 Act (the Mental Health Act) or the Intellectual Disability (Compulsory Care and Rehabilitation) Act.
[105]HC judgment, above n 37, at [15].
The Intellectual Disability (Compulsory Care and Rehabilitation) Act, as this Court said in M (SC 82/2020):[106]
… created new compulsory care and rehabilitation options to better recognise and safeguard the special rights of persons found to have an intellectual disability and who were charged with, or convicted of, an offence.
[106]M (SC 82/2020), above n 104, at [9] per Winkelmann CJ, O’Regan and Williams JJ (footnote omitted).
The Mental Health Act provides a “parallel regime” for those found to have a mental disorder.[107]
[107]At [9].
The historical development of this legislation is discussed by John Dawson in Health Law in New Zealand.[108] Professor Dawson notes that by the 1990s, there were three principal statues in the mental health field, namely, the Mental Health Act; the Protection of Personal and Property Rights Act 1988, which deals with adult guardianship and property management for adults lacking the capacity for making particular decisions; and the Criminal Justice Act 1985.[109] The Mental Health Act excluded persons with an intellectual disability except where they were also “mentally disordered” as defined by that Act.[110] This legislative scheme meant, as Professor Dawson notes, that there was insufficient provision for the disposition of those with intellectual disabilities from the criminal justice system and for their subsequent care.[111]
[108]John Dawson “The Process and Criteria for Compulsory Psychiatric Treatment” in Peter Skegg and Ron Paterson (eds) Health Law in New Zealand (Thomson Reuters, Wellington, 2015) at [14.1.1]–[14.1.2].
[109]At [14.1.1].
[110]Mental Health Act, s 2(1) definition of “mental disorder” and s 4(e).
[111]Dawson, above n 108, at [14.1.2].
The enactment of what operates as companion legislation, that is, the CPMIP Act and Intellectual Disability (Compulsory Care and Rehabilitation) Act, was the legislative response adopted to fill the gap discussed by Professor Dawson.[112] We need to say a little more about the relevant processes under this statutory scheme before turning to the power to extend a compulsory care order under s 85 of the Act.
[112]See RIDCA v VM, above n 40, at [18]–[19] citing the Intellectual Disability (Compulsory Care) Bill 1999 (329-2) (select committee report) [Select Committee report] at 1–2; and see also CA judgment, above n 38, at [37]–‍[40].
As the Court of Appeal in this case explains, as applied to J, the CPMIP Act required the court to be satisfied on the balance of probabilities that the defendant caused the act or omission that forms the basis of the offence as charged (the involvement hearing).[113] When the court was satisfied of the defendant’s involvement in the offence, it had a further hearing to decide whether the defendant was unfit to stand trial due to a mental impairment (the fitness hearing).[114] The evidence of the two health assessors as to the defendant’s fitness to stand trial was required.[115] Amendment of the CPMIP Act in 2018 reversed that sequence so that the fitness hearing is now held first.[116] The matter only proceeds to an involvement hearing if a defendant is found unfit to stand trial.[117]
[113]CPMIP Act, s 9 (as it was before 14 November 2018).
[114]Section 14 (as it was before 14 November 2018). “Unfit to stand trial” was, and remains, defined as meaning, that the defendant is unable, due to mental impairment, to conduct a defence or to instruct counsel to do so : s 4(1)(a) definition of “unfit to stand trial”. The definition includes (but is not limited to) defendants who, due to mental impairment, are unable to plead, to adequately understand the nature or purpose or possible consequences of the proceedings, or to communicate adequately with counsel for the purposes of conducting a defence: s 4(1)(b) definition of “unfit to stand trial”.
[115]Section 14(1) (as it was before 14 November 2018).
[116]Courts Matters Act 2018, ss 125–127 and 131; and see CPMIP Act, ss 8A and 10(1).
[117]CPMIP Act, s 10(1). If not satisfied the defendant caused the act or omission forming the basis of the offence charged, the charge must be dismissed under s 147 of the Criminal Procedure Act 2011: CPMIP Act, s 13(2)(a).
Once a defendant has been found unfit to stand trial, and following an involvement hearing, there is a further hearing to consider the most suitable course (the disposition hearing).[118] For a person in J’s position, the available options in terms of disposition are release or detention under the Act, either as a special care recipient or a care recipient. As this Court explained in M (SC 82/2020), the former “remains within the criminal justice system and must be held in a secure facility”.[119] By contrast, J is:[120]
… “a care recipient no longer subject to the criminal justice system”. This class of care recipient is detained under a civil regime pursuant to a compulsory care order made by the Family Court under s 45 of [the Act] or by operation of statutory deeming provisions.
[118]CPMIP Act, s 13(4); and see Part 2 Subpart 3.
[119]M (SC 82/2020), above n 104, at [12] per Winkelmann CJ, O’Regan and Williams JJ.
[120]At [12] per Winkelmann CJ, O’Regan and Williams JJ (footnotes omitted); and see the Act, s 6(1)–‍(3) definitions of “care recipient”, “special care recipient” and “care recipient no longer subject to the criminal justice system”.
As is apparent from the excerpt above from M (SC 82/2020), the compulsory care order for J was made under s 45 of the Act.[121] Section 46 makes it clear that the order must state its term. The term must not be longer than three years, but the order may be extended under s 85.[122] It is helpful to set out s 85 in full. The section reads as follows:[123]
85 Extension of compulsory care order
(1) The Family Court may, on the application of the co-ordinator, extend the term of a care recipient’s compulsory care order.
(2) If the court extends a compulsory care order for a care recipient no longer subject to the criminal justice system, the court must consider and determine whether the care recipient must receive supervised care or secure care.
(3) The court may order that a care recipient no longer subject to the criminal justice system receive secure care only if it considers that supervised care would pose a serious danger to the health or safety of the care recipient or of others.

RIDCA v VM

[121]Section 44 provides that in making an order, the court must be satisfied that the proposed care recipient has an intellectual disability, and if so, must determine whether, considering all the circumstances, a compulsory care order is necessary. Section 45 provides further requirements for the making of an order.

[122]The Act, s 46(2)–(3).

[123]A similar test applies to the decision of the court to order that a person cease to be a care recipient. In particular, s 104(b) of the Act provides the judge may make such order if satisfied “that the care recipient no longer needs to be cared for as a care recipient”.

The Court of Appeal in the present case applied the test for an extension of a compulsory care order under s 85 as set out in RIDCA v VM.[124] The Court of Appeal in RIDCA v VM said s 85 required the balancing of two interests. The first of those interests was the “legitimate interest of the community in protecting the health and safety of the care recipient and others”.[125] The second interest to be balanced was what the Court described as “the liberty interest of the care recipient”.[126] The reference to a “liberty interest” was used to encompass the relevant fundamental rights, particularly those in the Bill of Rights.
[124]RIDCA v VM, above n 40.
[125]At [36].
[126]At [36].
In reaching this view, the Court drew on the principles in s 11 of the Act. Section 11, as we discuss below, requires those exercising the powers under the Act to be guided by the principle a care recipient should be treated in a way that protects both the health and safety of the care recipient and of others, and the rights of the care recipient. In adopting this balancing test, the Court rejected the argument that the test for an extension was one of “undue risk”; in other words, there is not a hard and fast rule.[127]
[127]At [44] and [93]. Warren Brookbanks says the result is that there is no “bright line test” but rather a “nuanced evaluation” is required: Warren Brookbanks “Managing the challenges and protecting the rights of intellectually disabled offenders” in Bernadette McSherry and Ian Freckelton (eds) Coercive Care: Rights, Law and Policy (Routledge, Abingdon (Oxon), 2013) 218 at 233.

The Court went on to say that the balancing exercise it adopted would allow the court to meet the purposes in s 3 of the Act. That was because it would result in “the selection of the appropriate compulsory care and rehabilitation option for the care recipient and recognise his or her rights appropriately”.[128]
[128]RIDCA v VM, above n 40, at [36].
The Court accepted that compulsory care orders should not be made or extended unless the community protection interest outweighed the liberty interest. Nor could compulsory care orders be disproportionate to the need to protect the community or the care recipient. The orders also had to be the least coercive and restrictive options available. The Court also made the point that the liberty interest was not necessarily static. It was not possible to ignore completely the length of time that the person had been subject to detention. In such a situation, the Court said that the judge may decide that “greater weight needs to be given to the liberty interest”.[129]

The issues

[129]At [92(c)].

As foreshadowed in this Court’s leave judgment, we begin by addressing the correct approach to s 85.[130] The first issue that arises is one of statutory interpretation. Section 6 of the Bill of Rights requires that, where possible, statutes are to be construed consistently with the Bill of Rights.[131] It is also settled law that legislation should be interpreted consistently with New Zealand’s international obligations under applicable international instruments.[132] We discuss what that requires in terms of s 85 and whether s 85 can be read consistently with the Bill of Rights. In turn this requires consideration of RIDCA v VM because that case sets out the principles that are currently being applied in the interpretation of s 85, and whether the approach laid out in that case is correct.[133]
[130]SC leave judgment, above n 39, at [2].
[131]Section 6 says that whenever an enactment can be given a meaning consistent with the Bill of Rights, “that meaning shall be preferred to any other meaning”.
[132]See, for example, Ye v Minister of Immigration [2009] NZSC 76, [2010] 1 NZLR 104 at [24] per Blanchard, Tipping, McGrath and Anderson JJ.
[133]SC leave judgment, above n 39, at [2]; and see above at [70]–[73].
We add that the parties agreed there is a jurisdictional issue affecting the scope of the appeal. How this issue arises is set out in more detail at the end of this judgment.[134] At this point, it is sufficient to say that this appeal focuses on the judicial review application rejected by the Courts below, and that the jurisdiction question did not significantly alter the content of the arguments heard on this appeal.

The case for the parties

[134]See below at [148]–[155].

We begin with the respondents’ case as they support the conclusion of the Court of Appeal in relation to J that RIDCA v VM is consistent with the statutory scheme and that it ensures that a court exercising the s 85 power will do so consistently with the Bill of Rights and the Convention.[135] The appellant, supported in this respect by the two interveners, IHC New Zealand Inc (IHC) and Te Kāhui Tika Tangata | Human Rights Commission (the Commission), says it does not, and we should revisit RIDCA v VM. In particular, the argument is that the approach in RIDCA v VM is not consistent with either the protection from arbitrary detention in s 22 of the Bill of Rights or the protection from discrimination in s 19 of the Bill of Rights.
[135]The Court of Appeal concluded RIDCA v VM was neither distinguishable nor wrongly decided: CA judgment, above n 38, at [62], and see at [83].
The impact of the prohibition on unlawful discrimination on the correct approach to s 85 was a focus of the submissions on behalf of the Commission.[136] We have focused on the protection from arbitrary detention and, except in passing, we do not address the potentially discriminatory effect of the regime on J. It is essentially sufficient to note that, as Mr Butler KC put it for IHC, where the Bill of Rights and the Convention are the starting points, over time it must be the case that increasing regard needs to be given to what might have happened to those in J’s position if dealt with under the criminal justice system. That comparative exercise may serve to demonstrate that ongoing detention may in fact comprise unlawful discrimination on the basis of intellectual disability.

The correct approach to the power to extend a compulsory care order

[136]The Commission adopted the submissions of IHC on arbitrary detention.

In considering the correct approach to the extension of a compulsory care order, because s 85 itself is silent as to the criteria, it is necessary to look to other parts of the Act and to the care recipient’s protected rights for guidance.

Impact of the rights of a care recipient and the scheme of the Act

In terms of the rights of a care recipient under the Bill of Rights, we focus in this part of the judgment on s 22, under which everyone has the right not to be arbitrarily arrested or detained, as we consider that provides a helpful framework in this appeal.[137] We also discuss in this context, although only briefly, s 19(1), which protects the right to freedom from discrimination on grounds including, relevantly, intellectual or psychological disability or impairment.[138] We add that there are similar rights in the International Covenant on Civil and Political Rights (ICCPR),[139] in particular art 9(1) relating to arbitrary detention, to which New Zealand is a party and which is affirmed by the Bill of Rights.[140]
[137]See also s 9 (relevantly, the right not to be subject to cruel, degrading, or disproportionately severe treatment or punishment); s 18, (freedom of movement); and s 23(5) (the right of those deprived of liberty to be treated with humanity and with respect for their inherent dignity).
[138]Human Rights Act, s 21(1)(h)(iv). Because of the view we take about the impact of these two rights, it is not necessary for us to consider other arguments raised in the written submissions, for example, those relating to the right to a fair trial in s 25(a) of the Bill of Rights. Nor do we deal with the challenge to the High Court decision on the basis the Judge should have met with J.
[139]International Covenant on Civil and Political Rights 999 UNTS 171 (opened for signature 16 December 1966, entered into force 23 March 1976).
[140]Bill of Rights, long title, para (b).
Turning then to the relevant rights in the Convention, art 5 provides for the right of equality and non‑discrimination before the law. Article 12 provides disabled persons the right to equal recognition and legal capacity before the law. States parties are obliged to take appropriate measures to facilitate such access. Article 13 provides that States parties must ensure effective and equal access to justice for disabled persons. Finally, art 14 provides for the rights of disabled persons, on an equal basis with others, to enjoy liberty and security of the person and the right not to be unlawfully or arbitrarily detained.
The open texture and nature of s 85 of the Act mean it is possible to adopt an interpretation consistent, relevantly, with s 22 of the Bill of Rights. That is, as not authorising arbitrary detention. Reading s 85 in this way gives effect to s 6 of the Bill of Rights and would accord with the interpretative approach applicable to the relevant international instruments described above.
This interpretation is also consistent with s 11 of the Act, which governs the exercise of powers under that Act and which expressly refers to the need to be guided by the rights of the care recipient in addition to the need for protection from harm. Section 11 provides that:
Every court or person who exercises, or proposes to exercise, a power under this Act in respect of a care recipient must be guided by the principle that the care recipient should be treated so as to protect—
(a)the health and safety of the care recipient and of others; and
(b)the rights of the care recipient.
In relation to the other sections in the Act of relevance to the s 85 power, reference should also be made to s 88. That section provides that, in deciding whether to apply for an extension, the care co‑ordinator must have regard to the most recent certificate given under s 79 of the Act.[141] That is, a certificate produced by the specialist assessor on the conclusion of the regular reviews of a care recipient. For persons in J’s position, the certificate must address whether, in the specialist assessor’s opinion, the care recipient “still needs to be cared for as a care recipient” or “no longer needs to be cared for as a care recipient”.[142] The test is one of necessity for ongoing care. The Family Court, in deciding on an extension application, must also consider the s 79 certificate and may obtain the opinion of another specialist assessor.[143]
[141]Section 88(1).
[142]Section 82; and see s 77.
[143]Section 88(2).
Construing s 85 as not authorising arbitrary detention is also consistent with the purposes of the Act. The three purposes of the Act are set out in s 3. Section 3(a) states that the Act is designed to provide the courts “with appropriate compulsory care and rehabilitation options” for those with “an intellectual disability and who are charged with, or convicted of, an offence”. Importantly, s 3(b) provides that the Act is “to recognise and safeguard the special rights of individuals subject to this Act”. Finally, s 3(c) states that the Act is “to provide for the appropriate use of different levels of care for individuals who, while no longer subject to the criminal justice system, remain subject to this Act”.
The respondents say the statutory scheme itself militates against detention becoming arbitrary. The respondents rely on the various safeguards in the Act which include the following:
(a)a requirement that a needs assessment by a care co-ordinator under Part 3 precede the making of a compulsory care order;[144]
(b)a direction that an individualised care plan be prepared addressing a range of matters, such as the social and cultural needs of the care recipient;[145]
(c)a requirement to undertake a Family Court review six months after the care and rehabilitation plan has been approved under s 24(2);[146]
(d)specification of the need for regular clinical reviews by a specialist assessor;[147]
(e)provision for Family Court and High Court oversight;[148]
(f)provision for independent monitoring by district inspectors (who must be qualified barristers or solicitors);[149]
(g)recognition of a care recipient’s specific rights as set out in Part 5 including matters such as respect for cultural identity,[150] entitlement to medical treatment[151] and to seek independent advice as to their condition,[152] as well as rights to information.[153]
(h)appeal rights;[154] and
(i)the status of care recipients as disability services consumers for the purposes of the Code of Health and Disability Services Consumers’ Rights, and a provision that they have all the rights conferred by that Code.[155] One of those rights is the right to be free from discrimination that is unlawful under Part 2 of the Human Rights Act 1993.[156]
[144]CPMIP Act, s 25(3) and (1)(b); and see Part 3 of the Act. The purposes of a needs assessment are described in s 16 of the latter Act and include, in para (a), assessing “the kind of care that the care recipient needs”; and, in para (c), enabling a care and rehabilitation plan to be prepared for a care recipient.
[145]The Act, ss 24–25.
[146]Part 6 Subpart 1.
[147]Sections 77–78, 79(1), 79(3)(a) and 82.
[148]Sections 102–104, and Part 6 Subpart 1.
[149]Section 95, and see s 5(1) definition of “district inspector” and s 144; and Mental Health Act, s 2(1) definition of “district inspector” and s 94(3).
[150]The Act, s 50.
[151]Section 51.
[152]Section 53.
[153]Section 49.
[154]Sections 133–134.
[155]Section 48.
[156]Health and Disability Commissioner (Code of Health and Disability Services Consumers’ Rights) Regulations 1996, schedule, cl 2, Right 2: “Right to freedom from discrimination, coercion, harassment and exploitation”.
However, the safeguards, while obviously important, will not necessarily achieve the intended protection of rights. That is because where, as here, the risk posed by a care recipient is high, that will almost inevitably outweigh the liberty interests. If the specialist assessors and the Court view the assessment as requiring the balancing exercise envisaged in RIDCA v VM, that means engaging in an analysis that does not start with the Bill of Rights and moreover permits an extension which is arbitrary. We say that because while the Court in RIDCA v VM saw the liberty interests as encompassing rights in the Bill of Rights, simply balancing the interests in this utilitarian way almost inevitably prioritises community protection unless the risks posed by the care recipient are very low.
The weight given in RIDCA v VM to factors such as the impact of the initial offending and rehabilitative prospects, which we will discuss shortly, also has the effect of limiting the protection of a care recipient’s rights. Or, to put it another way, the protection of the community is, effectively, the starting point in deciding whether to extend the compulsory care order.
On the approach to s 85 which we favour, the key question in a case such as this is whether an extension would constitute an arbitrary detention inconsistent with s 22 of the Bill of Rights. The decision maker, in determining that question, must make an assessment of whether ongoing detention is proportionate to its legitimate aims, being protection of the health, safety and rights of the care recipient, and the interests of the community. We add that, at this first stage in the exercise, namely, how s 85 is to be interpreted, we do not see it as necessary to consider s 5 of the Bill of Rights. Section 85 of the Act can be interpreted consistently with the Bill of Rights so the real work of the analysis is achieved by ss 6 and 22 of the Bill of Rights, where s 6 provides that an interpretation of legislation that is consistent with the Bill of Rights must be preferred where such an interpretation is possible. We are satisfied that approaching the matter in this way best responds to the key issues arising.[157]
[157]See also below at [145].
We add that we do not see this case as one involving a conflict of rights. This is not a helpful response where the Bill of Rights already accommodates the fact that rights are not absolute.[158] A contrast can be drawn with cases involving purported limits to a right like freedom of expression, which by nature might infringe upon other rights affirmed in the Bill of Rights such as the right to freedom of movement, assuming both involve a challenge to governmental action.[159] The role of the State is to ensure that any conflict between them is resolved in a manner that maintains proportionality.[160] In this case, it is necessary to maintain proportionality between a care recipient’s rights and the legitimate aims of detention. We accordingly do not agree that the s 6 interpretation exercise in this case has a dual rights focus.[161]
[158]Compare below at [350]–[352] per Kós J.
[159]Another example of a situation that may call for the accommodation of two rights affirmed in the Bill of Rights is demonstrated in Re J (An Infant): B and B v Director-General of Social Welfare [1996] 2 NZLR 134 (CA), discussed in Andrew Butler “Limiting Rights” (2002) 33 VUWLR 537 at 546–550. That case involved a conflict between freedom of religion and the right to life.
[160]Butler, above n 159, at 547 and 549.
[161]Compare with Kos J’s reasons, below at [365].
As to the content of s 22, as this Court in Attorney-General v Chisnall observed, the concept of arbitrariness is discussed by the United Nations Human Rights Committee in the General Comment (No 35) on art 9 of the ICCPR (providing that, among other things, no one shall be subjected to arbitrary detention).[162] The Court noted the statement in the General Comment to the effect that “arbitrary” detention is not to be equated only with unlawful detention but is to be interpreted more broadly to include elements of proportionality, amongst other matters.[163]
[162]Attorney‑General v Chisnall [2024] NZSC 178, [2024] 1 NZLR 768 at [161] per Winkelmann CJ, O’Regan, Williams and Kós JJ. See Human Rights Committee General comment No 35: Article 9 (Liberty and security of person) UN Doc CCPR/C/GC35 (16 December 2014) [General Comment 35].
[163]Chisnall, above n 162, at [161] per Winkelmann CJ, O’Regan, Williams and Kós JJ.
As noted in the General Comment, the ICCPR does not enumerate “the permissible reasons” for detention.[164] In terms of disability, the General Comment states as follows:[165]
The existence of a disability shall not in itself justify a deprivation of liberty but rather any deprivation of liberty must be necessary and proportionate, for the purpose of protecting the individual in question from serious harm or preventing injury to others. It must be applied only as a measure of last resort and for the shortest appropriate period of time, and must be accompanied by adequate procedural and substantive safeguards established by law. The procedures should ensure respect for the views of the individual and ensure that any representative genuinely represents and defends the wishes and interests of the individual. States parties must offer to institutionalized persons programmes of treatment and rehabilitation that serve the purposes that are asserted to justify the detention. Deprivation of liberty must be re‑evaluated at appropriate intervals with regard to its continuing necessity. The individuals must be assisted in obtaining access to effective remedies for the vindication of their rights, including initial and periodic judicial review of the lawfulness of the detention, and to prevent conditions of detention incompatible with the [ICCPR].
[164]General Comment 35, above n 162, at [14].
[165]At [19] (footnotes omitted).
This Court in Chisnall also said that “[a] more generous approach to s 22 is consistent with the fact that the Bill of Rights is intended to affirm New Zealand’s commitment to the ICCPR.”[166] In any event, it is not disputed, as the Court of Appeal said in this case, that a detention which is initially lawful may subsequently become arbitrary and so inconsistent with s 22 if the detention has become disproportionate to its legitimate aim.[167] We are accordingly content to proceed on this basis.
[166]Chisnall, above n 162, at [161] per Winkelmann CJ, O’Regan, Williams and Kós JJ (footnote omitted) citing the long title of the Bill of Rights.
[167]CA judgment, above n 38, at [80] citing Zaoui v Attorney‑General [2005] 1 NZLR 577 (CA) at [88], [90] and [100] per McGrath J and [175] per Hammond J dissenting. The Court of Appeal was not persuaded Mr Zaoui’s detention had become arbitrary despite delays. This Court on appeal from that decision exercised its inherent jurisdiction and granted Mr Zaoui bail: Zaoui v Attorney-General [2005] 1 NZLR 577 (SC).
In the present context then whether a detention that would be authorised by an extension under s 85 is arbitrary requires an assessment of whether it is proportionate to the legitimate aims. This in turn requires discussion of the factors relevant to that assessment.

The relevant considerations

The factors relevant to the proportionality exercise which the Act, properly interpreted, requires, and the way in which those factors are to be assessed by the Family Court, are in dispute. In terms of the factors, we need to focus on the effect of what brought the care recipient within the statutory regime, that is, the impact of the initial or index offending; the effect of rehabilitation prospects; and the approach to risk assessment. In addition, reflecting the particular issues raised by J’s case, we also discuss the relevance of the statutory obligations to care for J whilst he remains subject to a care order. Finally, although we do not treat it as a standalone factor in the discussion of the relevant factors which follows, underlying that discussion is the need to keep in mind the length of time the care recipient has been detained.

The relief sought is highly problematic

[441]See above at [129] per Ellen France and Miller JJ; and see above at [221] per Winkelmann CJ.

As noted above, a declaration is sought in this proceeding that J’s detention in care since 8 February 2006 was unlawful,[442] as is an order “for the applicant’s immediate release”. In their submissions, counsel for J maintain that he should be released in a manner similar to the orders made in Vincent v New Zealand Parole Board,[443] with the order lying in Court for a period so J “can move to a civil client regime with some expedition”.[444]
[442] Including under ss 9, 22 and 23(5) of the New Zealand Bill of Rights Act 1990 [Bill of Rights].
[443]Vincent v New Zealand Parole Board [2020] NZHC 3316 at [114].
[444]See below at [363].
Taxed on the issue in the hearing before us, counsel for J accepted that some level of detention would be required even if J were released from secure care into the community. Just what measures would be needed, and the extent to which—and means by which—they could be implemented outside of the framework set out in the IDCCR Act, were not addressed in any depth by counsel. Mr Ellis suggested that J:
… could be at home with some additional funding, so that, you know, the windows are barred and so on and it’s not so easy to get out, and he could have a life.
The evidence before the Court strongly suggests that such an arrangement would not adequately address J’s complex needs and the danger he presents. Nor is it clear that living at home but with barred windows and other restraints would substantially improve J’s ability to, as Mr Ellis put it, “have a life”. Further, placing J in the care of his mother would be wholly inappropriate in light of his history of harming her, the very high risk of that occurring again and the existing need for staff to supervise his interactions with her. I also note Dr Gardiner’s findings that J “is physically strong and athletic, and this makes it difficult for others around him to resist when necessary” and, relatedly, that “it is clear there is no realistic immediate management plan outside the hospital environment that would adequately manage the risks that [J] is thought to pose to others”.
The option of moving J to supervised (rather than secure) care was not explored by his counsel, who instead requested that this Court simply “direct that J’s status as a compulsory care recipient cease” altogether. In any case, there is no satisfactory evidential basis for departure from the concurrent views of numerous specialist assessors that supervised care is untenable from a health and safety perspective. The opaque submission by counsel for J that “care under a non-compelled status with the civil assistance of Intellectual Disability Health Providers is appropriate” does not advance his case in the absence of any meaningful detail as to how that non-compelled status would achieve the objects of the IDCCR Act.

Liberty interests

I agree that s 85 does not permit arbitrary detention in terms of s 22 of the New Zealand Bill of Rights Act 1990 (the Bill of Rights). I therefore agree with [81] of the primary reasons. I disagree however with [86]–[89]. As explained above at [351], I consider we are dealing here with the need to balance a conflict of rights: the positive right of J to be at liberty if he can, and the negative rights of third parties—‍both members of the public and J’s mother—to be spared from inevitable attack by a person taken into, and then released from, state care. The latter set of rights might also be expressed in terms of a public safety interest.[445] I therefore agree with the framing in RIDCA v VM, drawing on the Supreme Court of Canada’s decision in Pinet v St Thomas Psychiatric Hospital that “within the outer boundaries defined by public safety, the liberty interest of [a care recipient] should be a major preoccupation” of those determining their status.[446] Public safety is, if not the starting point, then a compelling countervailing factor requiring due consideration.
[445]See Waldron, above n 432, at 204.
[446]Pinet v St Thomas Psychiatric Hospital 2004 SCC 21, [2004] 1 SCR 528 at [21] as cited in RIDCA v VM, above n 429, at [59], n 44.
I do not see this approach as inconsistent with Chisnall—a different case concerned with criminal sentencing and an established lack of justification for a retroactive penalty.[447] Nor is it at odds with the Bill of Rights. It is axiomatic that public safety concerns can render limits on individual rights demonstrably justified in terms of s 5[448]—which I consider is squarely engaged in this case.[449] The right of all members of society to be protected from avoidable harm can be traced to art 3 of the Universal Declaration of Human Rights, which provides that “[e]veryone has the right to life, liberty and security of person”,[450] and finds expression in the caveats to arts 12 and 22 (freedom of movement and association, respectively) of the International Covenant on Civil and Political Rights (itself affirmed in the Bill of Rights),[451] which provide that those rights may be subjected to limits “which are necessary in a democratic society in the interests of … public safety, public order … or the protection of the rights and freedoms of others”.[452] In the Bill of Rights, that right finds implicit expression in the rights to freedom of movement and association.[453] Section 6 rights consistency—to the extent it is relevant here—should therefore have a dual rather than singular focus. But as the majority in Hansen observed, there is in principle no need to resort to that provision where a limit on rights is demonstrably justified.[454]
[447]Attorney-General v Chisnall, above n 431.
[448]Section 7(1)(g) of the Sentencing Act 2002 makes this explicit in the criminal justice context, for example—the criminal sentencing regime inarguably imposes justified limits on individual rights, in part on public safety grounds.
[449]Compare above at [86] and [88] per Ellen France and Miller JJ. In this respect I follow the approach adopted by the majority in R v Hansen [2007] NZSC 7, [2007] 3 NZLR 1 at [57]–[60] per Blanchard J, [90]–[92] per Tipping J and [186], [189] and [192] per McGrath J. Contrast at [6] and [24] per Elias CJ.
[450]Universal Declaration of Human Rights GA Res 217A (1948).
[451]Bill of Rights, long title.
[452]International Covenant on Civil and Political Rights 999 UNTS 171 (opened for signature 19 December 1966, entered into force 23 March 1976), arts 12(3) and 22(2).
[453]Sections 17–18.
[454]R v Hansen, above n 449, at [57]–[60] per Blanchard J, [90]–[92] per Tipping J and [186]–[192] per McGrath J.
It is also relevant that, as intimated above at [352] and [362], it appears inevitable that J’s liberty interests will be compromised given his condition. The counterfactual is not J living an ordinary life in the community, but rather (1) some kind of private secured living, involving turning the family home into a miniature fortress, or (2) constant supervision while in public and, if necessary, some resort to physical constraint. It was wholly unsatisfactory that the best alternative was not clearly identified by counsel for J, especially in light of Dr Gardiner’s view—noted above at [362]—that there is no realistic management plan enabling the necessary care for J in the community while at the same time maintaining the safety of that community.
Returning to the conflict of rights issue and the balancing exercise necessitated by it, the harm that will come to J as a consequence of the limits on his liberty can be carefully managed and mitigated in the secure care setting, including in response to his evolving state of mind and risk profile. There is a range of safeguards in place to protect J’s rights under the Code of Health and Disability Services Consumers’ Rights,[455] the specific rights enumerated in Part 5 Subpart 1 of the IDCCR Act, the Bill of Rights and other relevant rights instruments. The main safeguard is Part 6 of the IDCCR Act, under which the Family Court is currently seized of a review of J’s detention in care. The wider roles and functions of the courts and of district inspectors were addressed by the Courts below.[456] Also relevant is the Ombudsman’s monitoring role as a National Preventive Mechanism under the Crimes of Torture Act 1989 and the related Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.[457]
[455]Health and Disability Commissioner (Code of Health and Disability Services Consumers’ Rights) Regulations 1996, sch.
[456]CA judgment, above n 434, at [50]; and J, Compulsory Care Recipient, by his Welfare Guardian, T v Attorney-General [2018] NZHC 1209 (Cull J) at [478]–‍[505].
[457]“Designation of National Preventive Mechanisms” (1 August 2025) New Zealand Gazette No 2025-go4014. See also Crimes of Torture Act 1989, s 16 definition of “National Preventive Mechanism”, para (a), ss 26–‍30 and sch 2.
On the other hand, if J is released into the community there is, on the evidence before us, no apparent means of ensuring he receives the care and support he requires, and no satisfactory method of safeguarding those whom he will harm. Subject to the remaining issue of arbitrary detention, I am satisfied the Hansen criteria for justification are met in this case and that the limits imposed on J’s liberty are demonstrably justified.[458]

Arbitrary detention?

[458]R v Hansen, above n 449.

Section 22 of the Bill of Rights provides that everyone has the right not to be arbitrarily arrested or detained. Detention “must not only be lawful but reasonable and necessary in all the circumstances”.[459] The White Paper “A Bill of Rights for New Zealand” similarly acknowledged that “[t]he courts will go beyond the question of legality under the legislation in issue and also concern themselves with the procedural and substantive standards contained in that law”—but the drafters contemplated that detention for public safety reasons (without necessarily requiring trial and conviction for an offence) would not necessarily be arbitrary provided there were adequate review procedures in place:[460]
The arbitrariness of detention could arise under mental health legislation, for example, where the courts might concern themselves with whether there were procedures for regular review as to whether a detainee was a danger to the community justifying continued detention.
[459]Paul M Taylor A Commentary on the International Covenant on Civil and Political Rights: The UN Human Rights Committee’s Monitoring of ICCPR Rights (Cambridge University Press, Cambridge, 2020) at 254 (emphasis in original) referring to both Van Alphen v Netherlands UN Doc CCPR/C/39/D/305/1988 (23 July 1990) and Gorji-Dinka v Cameroon UN Doc CCPR/C/83/D/1134/2002 (17 March 2005).
[460]Geoffrey Palmer “A Bill of Rights for New Zealand: A White Paper” [1984–1985] I AJHR A6 at 89.
In this case, I do not think J’s detention in care can properly be characterised as arbitrary in that sense, nor in the sense in which that term is generally understood in law.[461]
[461]See for example Timothy Endicott “The Coxford Lecture: Arbitrariness” (2014) 27 CJLJ 49 at 70 (footnote omitted): “An arbitrary decision in general is one that is not distinguished, by reasons in favour of it, from an unreasoned choice. In the special sense in which arbitrariness is a departure from the rule of law, a decision is arbitrary whenever the law itself ought to demand a justification other than the fact that the decision maker made it, and there is no such justification.” See also Draft International Covenants on Human Rights: Report of the Third Committee UN Doc A/4045 (9 December 1958) at [49].
Counsel for J focus their argument on this ground on the lack of proportionality between the period of detention and the index offending which brought J into the IDCCR Act regime; the alleged inability of the secure care environment to provide J with effective care and rehabilitation; and alleged evidential insufficiency regarding the assessment of J’s risk profile. The last of those arguments was dealt with above at [357]–‍[359], the conclusion being that there is sufficient evidence to find that J presents a significant danger to himself and others. I address the remaining arguments below, noting that the discussion of proportionality in this context also responds to the submission that J’s detention is disproportionately severe in terms of s 9 of the Bill of Rights.

Proportionality

I accept that the continued detention in care of J is not proportionate to his index offending. But I do not consider the statutory scheme requires this. I make three points.
First, I consider the index offending is simply the entry point to the IDCCR Act compulsory care scheme—just as a single, serious mental health episode may be the entry point for compulsory treatment under the Mental Health (Compulsory Assessment and Treatment) Act 1992 (the MHCAT Act). The Bill preceding the IDCCR Act was amended to ensure criminal offending was a prerequisite for compulsory care as a rights-enhancing measure so there was some rational limit (in the form of concrete evidence of danger to self and others) on the scope of the regime.[462] But the initial offending is a threshold issue only. That view is reinforced by two related facts, both raised by Ms Laurenson in her submissions. The first is that throughout his time in secure care J has repeatedly engaged in behaviour that would, were it not for his compulsory care status, have resulted in criminal charges.[463] The second fact is that through his secure care arrangements, J has been prevented from engaging in even more serious behaviour which would cause significant harm to others and, but for his special status, likewise attract potentially severe criminal penalties.
[462]Intellectual Disability (Compulsory Care) Bill 2001 (329-2) (select committee report) [IDCCR Act select committee report] at 2–4.
[463]That conduct includes multiple instances of threatening to kill—an offence which, if proven to the criminal standard, carries a maximum sentence of seven years’ imprisonment: Crimes Act 1961, s 306.
Secondly, the relevant proportionality requirement for variation or extension of a CCO relates to the compulsory considerations for decision-makers under the IDCCR Act, laid out in s 11: that is, that every exercise of power under the Act must be guided by the principle that the care recipient should be treated so as to protect (1) the health and safety of the care recipient; (2) the health and safety of others; and (3) the rights of the care recipient. The first two considerations are reinforced in ss 85(3) and 86(4) of the IDCCR Act, and the third in s 3(b). I therefore agree with [68]–[71] of RIDCA v VM to the extent it confirms continued detention in care must be proportionate to current health status and the ongoing assessment of risk.[464] I do not however think the index offending retains continuing relevance in the assessment to be made. Here I depart from RIDCA v VM, which suggested it might be relevant in a finely balanced case.[465] The legitimate aims of continued detention in care relate to J’s present and prospective presentation of risk, as in the case of compulsory care under the MHCAT Act, not the original offending that brought him into care in the first place. The purposes of the IDCCR Act lie outside the criminal justice system and are concerned with care and rehabilitation, not crime and punishment.
[464]RIDCA v VM, above n 429.
[465]At [72].
Thirdly, and relatedly, my view is reinforced by the legislative handover that occurs from the Criminal Procedure (Mentally Impaired Persons) Act 2003 to the IDCCR Act, so that (1) CCO recipients like J are expressly no longer subject to the criminal justice system;[466] and (2) the CCO jurisdiction is vested in the Family Court, rather than the District Court or High Court exercising criminal jurisdiction.[467] I also note the definition of “care recipient no longer subject to the criminal justice system” in s 6(3) of the IDCCR Act, which refers in para (a) to a person who “continues to be … subject to a compulsory care order” despite being “no longer … liable to be detained under a sentence”; and the select committee report and parliamentary debates regarding the IDCCR Act, which made a number of references to long‑term (and potentially indefinite) detention of those who continue to pose a high risk to themselves or others.[468]
[466]Intellectual Disability (Compulsory Care and Rehabilitation Act), s 6(3).
[467]Section 116(1).
[468]See IDCCR Act select committee report, above n 462, at 17; and see for example (21 October 2003) 612 NZPD 9561, 9570, 9573, 9591 and 9594.
I agree with RIDCA v VM that a CCO may be made or continued only if it is the least restrictive response available to meet the statutory objectives in ss 3 and 11 of the IDCCR Act—including those noted above at [374].[469] That applies also to the form of CCO (that is, supervised or secure care). But no realistic alternative to secure care has been presented here.[470] The relief sought—immediate release—is impossible and irresponsible. It is not evident to me that there is any less restrictive care option available that adequately balances the conflict of rights engaged.[471] Counsel barely attempted to identify alternative options. Nor can it be argued that the purpose of secure care is insufficiently important, or that it lacks a rational connection to the measure: as noted above at [369], secure care is precisely the kind of justifiable limit the drafters of the Bill of Rights envisaged.

Rehabilitation

[469]RIDCA v VM, above n 429, at [59] and [92(a)].

[470]See above at [360]–[363].

[471]See above at [366]–[368].

Given the purposes stated in s 3 of the IDCCR Act include rehabilitation, the CCO must incorporate this so far as reasonably possible. But where the care recipient’s condition is not amenable to substantial rehabilitation despite reasonable efforts being made, the consequence cannot be discharge from the CCO itself. It cannot be the case that the consequences of both profound rehabilitative progress, and profound lack of rehabilitative progress, are the same. I note also that the select committee, when recommending a new emphasis on rehabilitation in the then Bill (which made no reference to rehabilitation when first introduced),[472] said: “We believe there should be explicit recognition of the importance of rehabilitation, where possible, to ensure that people do not receive custodial care only.”[473] The italicised words are significant—a point emphasised by members from several parties in the course of debate on the Bill.[474]
[472]See Intellectual Disability (Compulsory Care) Bill 1999 (329-1).
[473]IDCCR Act select committee report, above n 462, at 7 (emphasis added).
[474](21 October 2003) 612 NZPD 9569–9574.
Here, despite an extraordinary application of resources to care for J, his risk level has not improved. That is primarily a function of J’s lack of agency, on which point I agree with the observations of the Court of Appeal.[475] That lack of agency reinforces, rather than erodes, the case for continued care. In that respect, I disagree with [119] of the primary reasons. I agree inability to rehabilitate may enlarge the liberty interest, but I do not think it can overwhelm the counter-considerations, including the interests of the community members who will be harmed by J if he is released—as the relief sought here would require. In this respect I am again in substantial agreement with the approach in RIDCA v VM.[476]

Care

[475]CA judgment, above n 434, at [153]–[154].

[476]RIDCA v VM, above n 429, at [85]–[86].

“Care” under the IDCCR Act is not a synonym for custody. As s 25(1) makes clear, care must encompass considerations and conditions of a very different nature to penal detention. The considerations in that subsection cannot be neatly compartmentalised as “care” or “rehabilitation”. Many will overlap. Social, cultural and spiritual needs; diet, medication and treatment; and special needs, concerns and aversions are all matters engaged by the obligation to care.[477]
[477]I agree, therefore, with [133] of the primary reasons.
If effective rehabilitation is impossible or impracticable in the circumstances, despite appropriate devotion of resources to that responsibility, then the emphasis on providing care must be still greater. It is an obligation the state must take seriously—‍as it has to date in this case. It will require the deployment of resources so that J may enjoy reasonable intellectual, creative and social stimulation despite his inability to fully enjoy ordinary liberties. That institutionalisation has worsened J’s outlook and behaviour is unsurprising. In the absence of a rational alternative to institutional care, however, it behoves the state to do more, not less, to improve J’s living circumstances. I record that I agree with what Williams J has to say about this at [328]–[334] of his reasons.
This care obligation is owed by the state not just to J but also to others who might, now or in the future, be affected by his lack of agency. During the passage of the IDCCR Act, significant emphasis was placed by legislators on the state’s duty to the families of those with intellectual disabilities—‍something which should also be borne in mind in this case.

Conclusion on arbitrary detention

I take the view that the state has established justification for the limits imposed on J’s liberty, because:
(a)the safety interests of potential victims must also be considered;
(b)J’s outlook and lack of agency is such that, without limits imposed on his liberty, he will seriously impair the rights of others by attacking them;
(c)J’s liberty is therefore inevitably compromised; and
(d)a suitable, less restrictive alternative to the existing order has not been identified.
For these reasons, I do not consider J’s detention in care is arbitrary in terms of s 22 of the Bill of Rights. Nor is it disproportionately severe in terms of s 9. Rather, continued care under the present order is, for now, the only realistic response to J’s unusual presentation of risks.

Conclusion

I would therefore dismiss the appeal on the basis that extension of J’s CCO is the only demonstrated, lawful and available means of appropriately balancing the matters set out in s 11 of the IDCCR Act, in accordance with s 85.[478]
[478]I record that I agree with the primary reasons above at [148]–[159] concerning jurisdiction and the admission of further evidence.
As I said at the outset, this is a tragic case. But granting the relief sought—‍J’s immediate release into the community—can only lead to further tragedy. Given the conflict of rights in this case, the law’s primary impulse must be to ensure that J continues to receive care in an environment in which he and others will be kept safe. Only the existing orders have been shown, on the evidence before this Court, to be capable of achieving that. As I noted earlier, therefore, amelioration of J’s current detention in care conditions remains a matter for the Part 6 review presently being undertaken by the Family Court.
No member of this Court being prepared to grant the relief demanded on J’s behalf—his release—let alone the other declarations sought, his claim accordingly ought to fail on its merits.[479]
[479] That, in part at least, must be because of the jurisdictional limit now acknowledged above at [148].

Solicitors:
Te Tari Ture o te Karauna | Crown Law Office, Wellington for First and Fourth Respondents in SC 10/2024 and Respondent in SC 10/2024.
L M Sijbrant, IHC New Zealand Inc, Wellington for Intervener
B J Peck, Te Kāhui Tika Tangata | Human Rights Commission, Wellington for Intervener

[2025] NZSC 103

15 August 2025