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Supreme Court Justice Sir Joe Williams asked tough questions about the scope of the government’s powers to detain people with intellectual disabilities during a hearing on Tuesday.
photo: Nick Munro/RNZ
A Supreme Court judge likened a law allowing the government to detain mentally disabled criminals indefinitely to “writing a bad check to the authorities.”
Judge Kos made the remarks while hearing the case of a man with autism and intellectual disability. Imprisoned for half a lifetime In 2004, he broke some windows.
The man, Jay (whose real name is withheld), has been detained for 18 years under the Compulsory Care and Rehabilitation Act for Persons with Intellectual Disabilities because he was deemed too dangerous to be released.
An appeals court ruled last year that the suspect was a minor but ruled that his detention was justified because multiple experts said he would pose an extremely high risk to the public if released.
The man’s mother Filing a lawsuit in the Supreme Court In order to revoke the compulsory care order, he claimed He was arbitrarily detained and his human rights were violated.
Judge Coss found the section of the bill that allowed custody orders to be extended indefinitely to be “extremely opaque”.
“I don’t think I’ve ever seen any provision of legislation that gives authorities such a blank check,” he said Tuesday.
Judge Koss attended Tuesday’s hearing.
photo: Nick Munro/RNZ
It is estimated that at any one time between 100 and 120 people are subject to compulsory care orders under the Act.
Compulsory care orders must be approved by the Family Court and are usually for an initial period of three years, which can be extended.
There is no limit to the number of times an order can be extended. Jay’s order has been extended 11 times in the past 18 years, and his current extension is until April 2026.
Taz Haradasa, a lawyer for the Human Rights Commission, told the court it was “deeply regrettable” that “potentially coercive powers are so casually provided in Article 85”.
She urged the court to provide guidance to lower courts handling such cases.
“Because detainees deserve meaningful standards so that they can assess whether their detention is legal without having to go through the entire judicial system and perhaps all the way to the Supreme Court to get there.”
New Zealand is a signatory to the United Nations Convention on the Rights of Persons with Disabilities, which states that people with disabilities have the right to live independently in the community. Taradasa said this meant they needed financial and social support to do so.
In response, Judge Williams said there was a balancing act between providing care and looking after individual human rights.
“Because care can become oppression, and that’s really what this case is about. That, in my opinion, is the real issue.”
Both the Human Rights Commission and the IHC have been granted permission to make submissions to the Supreme Court as intervenors on the wider human rights and disability issues raised by the Act.
Both said on Tuesday that key case law used to justify extended care orders no longer applies.
The IHC also argued that Jay would not have faced such a long detention if he was not mentally retarded, and called the IDCCRA system “discriminatory on its face”.
Graeme Edgeler, the barrister for Jay’s mother, agreed, telling the court people should be detained for “crimes they have committed rather than crimes they might commit”.
The hearing continues in Auckland on Wednesday.
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