Supreme Court Justice Sir Joe Williams was one to raise pointed questions about the scale of the state's power to detain intellectually disabled people at a hearing on Tuesday. Photo: Nick Monro/RNZ
A law allowing the state to detain intellectually disabled offenders indefinitely has been likened to "giving authorities a blank cheque," by a Supreme Court judge.
Justice Kós made the comment while hearing the case of an autistic and intellectually disabled man who has been locked up for half his life after he broke some windows in 2004.
The man Jay, whose real name is suppressed, has been detained under the Intellectual Disability Compulsory Care and Rehabilitation Act for 18 years because he is considered too dangerous to release.
The Court of Appeal last year called the man's offending minor, but ruled his detention was justified because multiple experts said he posed a very high risk to the public if released.
The man's mother has brought his case to the Supreme Court in a bid to get his compulsory care order quashed, claiming he is being arbitrarily detained and his human rights breached.
Justice Kós described the section of the act that allowed care orders to be extended indefinitely as "remarkably opaque".
"I don't think I have ever seen a statute provision that gives the authorities such a blank cheque," he said on Tuesday.
Justice Kós at the hearing on Tuesday. Photo: Nick Monro/RNZ
Between 100 to 120 people are estimated to be subject to compulsory care orders under the Act at any given time.
A compulsory care order, which must be approved by the Family Court, is usually set for an initial period of up to three years and can be extended.
There is no limit to how many times an order can be extended. Jay's has been extended 11 times over the last 18 years, and his current extension runs until April 2026.
The Human Rights Commission lawyer, Taz Haradasa, told the court it was "deeply regrettable" that "such a potentially coercive power in section 85 has been drafted so open-endedly."
She urged the court to provide guidelines to lower courts who are dealing with such cases.
"Because persons detained should have meaningful standards by which they can assess whether their detention has been lawful without having to go through, I suppose the whole court system, maybe all the way to the Supreme Court to get there."
The UN Convention on the Rights of Persons with Disabilities, to which New Zealand is a signatory, states disabled people have a right to live independently in the community. That meant they needed the economic and social supports to do so, Taradasa said.
In response, Justice Williams said there was a balancing act between providing care and looking after individual human rights.
"Because care can turn into oppression, and that's really what this case is about. That seems, to me, at its heart, is the real question here."
The Human Rights Commission and the IHC have both been granted leave to make submissions to the Supreme Court as interveners to discuss the wider human rights and disability issues arising from the Act.
On Tuesday, they both argued a key piece of case law used to justify extending care orders was no longer relevant.
IHC also argued that if Jay had not been intellectually disabled, he would not have faced such a lengthy detention, saying the IDCCRA regime was "prima facie discriminatory."
A lawyer representing Jay's mother, Graeme Edgeler agreed, telling the court people should be detained for the "crime they committed, not the crime they might commit."
The hearing, being held in Auckland, continues on Wednesday.
