WILLIAMSON v R [2020] NZHC 2561

WILLIAMSON v R [2020] NZHC 2561 [30 September 2020]NOTE: PURSUANT TO S 130 OF THE INTELLECTUAL DISABILITY(COMPULSORY CARE AND REHABILITATION) ACT 2003, ANY REPORTOF THIS PROCEEDING MUST COMPLY WITH SS 11B, 11C AND 11D OFTHE FAMILY COURT ACT 1980. FOR FURTHER INFORMATION, PLEASESEE https://www.justice.govt.nz/family/about/restriction-on-publishing-judgments/IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECIV-2020-409-000254[2020] NZHC 2561BETWEEN RAYMOND CHARLES WILLIAMSONAppellantAND RRespondentHearing: 16 September 2020Counsel: D R La Hood & N Azam (via VMR) for the AppellantA J Bailey for the Respondent / Counsel to AssistJudgment: 30 September 2020JUDGMENT OF DOOGUE JThis judgment was delivered by meon 30 September 2020.pursuant to Rule 11.5 of the High Court Rules.Registrar/ Deputy RegistrarDate:Solicitors:Luke Cunningham & Clere, WellingtonHansen Law, WellingtonCopy to:Mr Bailey, ChristchurchIntroduction [1]The background [9]The Family Court decision [19]Did the care order expire on 6 or 7 February 2020? [20]Deferral of expiry of a care order after the order has expired, if an applicationis pending [25]Did the Family Court have jurisdiction to retrospectively reinstate the care orderafter its deferred expiry date had passed? [28]Matters subsequent to the Family Court decision [34]The present appeal [38]Issues on appeal [38]Approach to appeal [39]If an application for extension of a care order is filed before the care order expires,is the effect of s 87 to defer the expiry of the care order by operation of law until theapplication has been heard and determined by the Family Court? [43]Appellant's submissions [43]Respondent's submissions [50]The statutory framework of the IDCCRA – purpose [55]Provisions of the IDCCRA relating to care orders [68]The interrelationship between ss 85 and 87 of the IDCCRA [73]Interpretation of s 87 of the IDCCRA [75]The plain language of s 87 [75]The language of s 87 in context [83]Did the Family Court in fact defer the expiry date of the care order under s 87, byissuing a notice of judicial conference and subsequent minutes? [93]Appellant's submissions [93]Respondent's submissions [97]Analysis [98]Did the Family Court have jurisdiction to reinstate the care order after it hadexpired? [107]Appellant's submissions [107]Respondent's submissions [113]The two possible interpretations of s 87 of the IDCCRA [114]Analysis [115]Did the care order issued by Judge McMeeken expire on 6 or 7 February 2020?[127]Respondent's submissions [127]Appellant's submissions [131]When did the care order commence? [134]Was R unlawfully detained on 7 February 2017? [143]Conclusion [147]Result [157]Introduction[1] The respondent, R, is a young man aged 20. He was made a care recipientunder the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003(the IDCCRA) by Judge McMeeken on 7 February 2017, after he was found unfit tostand trial. He was found responsible for one offence of unlawful sexual connectionwith a female under the age of 12,1 after he used his penis to penetrate the anus of histwo-year-old niece.[2] On 15 January 2020, as R's compulsory care order (the care order) was due toexpire shortly thereafter, the appellant, R's care coordinator (Mr Williamson), filed anapplication under s 85 of the IDCCRA for an extension of the care order for a furthertwo years (at a secure care level).[3] On 7 February 2020, the Family Court granted an application made byMr Williamson for a deferral of the expiry date of the care order to 7 May 2020,pending the hearing and determination of the application for extension of the careorder.[4] In preparation for the hearing of the application for an extension of his careorder, R was assessed earlier this year by a clinical psychologist Ms Medlicott. In herreport she said his risk of future sexual offending is well above average range, and hisrisk of general offending is in medium range. She detailed several incidents ofR's antisocial behaviour in late 2019, the last of which involved R taking a razor bladeinto a service station and threatening staff, in order to obtain cigarettes.[5] Judge Lindsay in the Family Court at Christchurch heard argument on whetheror not the care order had originally expired on 6 or 7 February 2020, and whether ornot the Court retained jurisdiction after the apparent expiry of the care order on7 May 2020. The Judge concluded that R's care order had expired on 7 May 2020,and that there was no longer any jurisdiction to defer the expiry date of the care orderor retrospectively reinstate it under the IDCCRA.21 Crimes Act 1961, s 128(1)(b).2 Williamson v R [2020] NZFC 3820.[6] Mr Williamson asks this Court to quash the Judge's decision and remit the caseback to the Family Court for the hearing and determination of the s 85 application foran extension of the care order filed on 15 January 2020.[7] R cross-appeals one aspect of the decision, relating to the original expiry dateof the care order, and the Judge's finding that R had not been unlawfully detained inFebruary 2017 between the pronouncement of the care order in Court byJudge McMeeken and the commencement of its operation.[8] It is accepted that if the Family Court's decision is upheld, the only way totrigger a fresh application for a care order is for R to reoffend.The background[9] On 1 December 2016, the Youth Court found there was sufficient evidence toestablish on the balance of probabilities that R had caused the act forming the basis ofthe offence of unlawful sexual connection with a female under 12 years old.3 On20 December 2016, the Youth Court found R unfit to stand trial.4[10] On 7 February 2017, Judge McMeeken in the Youth Court found R to beintellectually disabled as defined in s 7 of the IDCCRA.5 The Judge made an order,pursuant to s 25(1)(b) of the Criminal Procedure (Mentally Impaired Persons) Act2003 (the CPMIPA), that R be cared for as a care recipient under the IDCCRA.[11] Also on 7 February 2017, an order to that effect was signed by thedeputy registrar. The order stated: "the term of the order is three years effective from7 February 2016". Both parties accept there is a typographical error in the date on theorder, and it should read 7 February 2017.[12] On 15 January 2020, Mr Williamson applied under s 85 of the IDCCRA for anextension of the care order for a further two years. He also applied under s 87 of the3 Criminal Procedure (Mentally Impaired Persons) Act 2003, s 9.4 Section 14.5 R v OR [2017] NZYC 109.IDCCRA for a deferment of the expiry of the care order, until the substantiveapplication for the extension had been heard.[13] On 7 February 2020, the Family Court made an order deferring expiry of thecare order. It read: "expiry of the order deferred for 3 months ie 7/5/20 for theapplication to be heard."[14] On 16 April 2020, counsel for R, Mr Bailey, filed submissions indicating R'sdesire to be released from the restrictions of the IDCCRA, and arguing that the deferralmade by the Family Court on 7 February 2020 was made without jurisdiction becausethe care order had expired on 6 February 2020.[15] New Zealand entered Level 4 of the COVID-19 pandemic restrictions on26 March 2020. On 1 April 2020, the Chief District Court Judge issued a protocoloutlining the priority proceedings to be dealt with by the Family Court during therestrictions. The protocol said that if a matter did not fall within any of the listedcategories then the matter would be adjourned to the next available date. Applicationsfor extension of care orders under s 85 of IDCCRA were not listed as priorityproceedings. This meant the matter was adjourned on 20 April 2020 when theFamily Court issued a notice of judicial conference in relation to the substantiveapplication under s 85, scheduled for 12 May 2020. The notice is appended to thisjudgment as [redacted].[16] On 12 May 2020, Judge Lindsay issued a minute, confirming timetablingdirections for the hearing of the jurisdictional issue concerning the date at which thecare order had originally expired. After the hearing on 15 May 2020, Mr Baileyconfirmed that he intended to file further submissions within days, and the Judgeissued another minute confirming timetabling directions.[17] On 19 May 2020, Mr Bailey filed further submissions, expanding on thejurisdictional issues arising from the February deferral. He also raised a second issueregarding jurisdiction: the expiry of the care order was deferred until 7 May 2020, andthe Court had not subsequently deferred its expiry. He submitted that the Court nolonger had jurisdiction to defer or extend the care order, as it had expired on7 May 2020.[18] The Judge determined all of the jurisdictional issues in her judgment of3 June 2020.The Family Court decision[19] The Judge found there were three issues for determination:(a) Did the care order expire on 6 or 7 February 2020?(b) If the care order had expired on 6 February, did the Court havejurisdiction to defer its expiry on 7 February 2020?(c) Did the Family Court have jurisdiction to reinstate the care order afterits deferred expiry date had passed?Did the care order expire on 6 or 7 February 2020?[20] The Judge noted s 46 of the IDCCRA provides that every care order lasts forthe term specified in the care order, but may not be longer than three years. Section 83provides that on expiry of a care order the recipient ceases to be a care recipient, unlessthe care order is extended.[21] The Judge noted s 35(2) of the Interpretation Act 1999 provides that a periodof time described as beginning from or after a specified day does not include that day.[22] The Judge rejected an argument from Mr Bailey that the order made wasinconsistent with Judge McMeeken's judgment, or that it was mandatory forJudge McMeeken to sign the order. The Judge held that the error in relation to theyear recorded in the date was covered by the District Court Act 2016, which confirmsa technical default or irregularity does not invalidate an order.66 District Court Act 2016, s 117; Family Court Rules 2002, r 204.[23] The Judge also considered an argument from Mr Bailey that, if the care ordercommenced on 8 February 2017, R was unlawfully detained between7 and 8 February 2017. The Judge held s 35 of the IDCCRA provides for a proposedcare recipient to stay in a facility where a compulsory order is pending and "arguablycovers any gap between the order being made and taking effect".7 The Judge noted Rwas remanded to the care facility on 20 December 2016, for enquiries to be madeunder the CPMIPA. When the care order was made, he was remanded back to thesame facility. She held that s 35 of the IDCCRA allows a care coordinator to directthat a prisoner or former special patient is detained in a facility whilst an order ispending. The Judge was satisfied R was not unlawfully detained between7 and 8 February 2017.8[24] The Judge ultimately held, with reference to s 35(2) of the Interpretation Actand J v Attorney-General,9 that the care order commenced on 8 February 2017 andended at midnight on 7 February 2020.10 For the sake of clarity, I interpret this tomean the order commenced at 12.00 am on 8 February 2017, and ended at 11.59 pmon 7 February 2020.Deferral of expiry of a care order after the order has expired, if an application ispending[25] The Judge then considered Mr Williamson's alternative position: that an orderto defer expiry of a care order can be made after the care order has expired, if anapplication for extension is pending. She noted Mr Williamson's submission that s 87of the IDCCRA should be interpreted in line with the purpose of the Act that carerecipients who continue to present a risk to the community continue to receive care,and that the purpose of s 87 is to ensure that an order does not lapse whilst anapplication for extension of a care order is pending.[26] The Judge noted that Collins J, in J v Attorney-General, considered whether anorder that had expired, and had not been extended or had its expiry deferred, could bereinstated. Collins J found there was no jurisdiction to do so when there was no7 Williamson v R, above n 2, at [19].8 At [28].9 J v Attorney-General [2017] NZHC 701.10 Williamson v R, above n 2, at [25], [26] and [29].application for extension pending, but declined to determine whether there wasjurisdiction where an application for extension had been filed prior to its expiry.11[27] The Judge noted Judge Twaddle also considered the issue in NationalIntellectual Disability Care Agency v Beck, finding there were two availableinterpretations of s 87: that the Court may defer the expiry of the order where a s 85application is pending and the order is due to expire but has not yet done so; or thatthe Court may defer expiry of the order so long as it has not expired at the time thes 85 application was filed, even if it had expired before the deferral was made.12 TheJudge agreed with Judge Twaddle that a care order is a curtailment of liberty, andallowing an expired care order to be reinstated is inconsistent with the IDCCRA'spurpose of protecting the rights of individuals who are subject to the Act.13Did the Family Court have jurisdiction to retrospectively reinstate the care order afterits deferred expiry date had passed?[28] Having determined that the care order had not expired when its expiry wasdeferred in February 2020, the Judge then turned to consider whether she hadjurisdiction to extend it then (in June 2020), given its expiry had only been deferred to7 May 2020.[29] The Judge acknowledged one of the purposes of the IDCCRA, contained ins 11(b), is to safeguard the rights of individuals subject to it, while also acknowledgingthe principle in RIDCA Central (Regional Intellectual Disability Care Agency) v VM,that the IDCCRA must be interpreted so that care recipients who continue to present arisk to the community continue to receive care.14 The Judge noted the tension inMr Williamson's argument that there is an overriding principle allowing for theextension of a care order pending determination of a substantive s 85 application,beyond a specified deferral date, as it runs contrary to the focus of s 11(b).1511 J v Attorney-General, above n 9, at [115].12 National Intellectual Disability Care Agency v Beck [2016] NZFC 1935.13 Williamson v R, above n 2, at [36].14 RIDCA Central (Regional Intellectual Disability Care Agency) v VM [2011] NZCA 659, [2012] 1NZLR 641.15 Williamson v R, above n 2, at [51].[30] The Judge distinguished the case of J v Attorney-General, where Collins J heldit was not fatal that deferment orders did not specify a time limit, on the basis that thedeferment orders were made prior to the expiry of the care order.16 She held this was"fundamentally different to reinstating an expired order."17[31] The Judge also considered the impact of the COVID-19 protocol.Mr Williamson submitted the expiry of the care order had been "administrativelydeferred" by the Court, until the s 85 application could be determined.18 The Judgenoted that the Family Court continued to receive without notice applications dealingwith urgent cases under Level 3 and Level 4, and that s 87 anticipates the filing of awithout notice application rather than timetabling by the registry for an application tobe heard on a later date.19[32] With reference to the explanatory note to the Intellectual Disability(Compulsory Care) Bill 1999 (the IDCC Bill), the Judge ultimately held that once acare order has expired, regardless of whether an application to extend is pending, thereis no authority to detain a special care recipient,20 and there was no jurisdiction for theexpired order to be extended.21[33] The Judge concluded by noting the difficulty of the situation:[64] There is a persuasive case for [R] to continue to enjoy a structured,and therapeutically sensitive environment. The expectation being this ensuresa safe future for the respondent and others. The order is a powerful responseintended to meet both the needs of the respondent and the community. Thelegislative requirements provide for the need for an application to be properlyconsidered before an order that curtails the rights of the subject person. I amnot satisfied that I can correct the unintended outcome (for [Mr Williamson],nor either party) that following the expiry of the order I impose a judicialcorrection. I am mindful of the evidence I have reviewed as to the likely riskthe respondent poses without ongoing treatment. The situation is lamentable.16 J v Attorney-General, above n 9.17 Williamson v R, above n 2, at [52].18 At [55].19 At [58].20 At [54].21 At [66].Matters subsequent to the Family Court decision[34] On 8 June 2020, Mr Williamson filed an appeal of Judge Lindsay's decision inthe High Court, and also filed an application for stay or interim relief pursuant tor 20.10 of the High Court Rules 2016. On 8 June 2020, the Family Court made anorder that the care order "shall remain in place pending determination of the appeal."22[35] R then applied to the High Court for a writ of habeas corpus, whichDunningham J heard on 14 August 2020 and declined on 17 August 2020.23[36] R then appealed the decision of Dunningham J, and the Court of Appealdismissed his appeal on 27 August 2020.24 Rather than determining whether R'sdetention is lawful, the Court of Appeal declined the appeal on the basis that theapplication for a writ of habeas corpus was not the appropriate procedure forconsidering the allegations made by R.25[37] Mr La Hood became aware of two matters after the hearing of the appealbefore me that he considered ought to be disclosed to the Court. The first was inresponse to a submission made by Mr Bailey about service of the notice of judicialconference, and the second was an updated specialist assessor's review andrecommendations as to R's care. Mr Bailey opposed both matters being brought tothe Court's attention, on the grounds they were neither fresh evidence nor relevant. Itwas proper for Mr La Hood to have brought the matters to the Court's attention, butultimately I did not find either matter to be relevant.The present appealIssues on appeal[38] This appeal raises four questions:22 Williamson v R FC Christchurch FAM-2017-009-1411, 8 June 2020.23 R v Williamson [2020] NZHC 2072.24 R v Care Co-ordinator [2020] NZCA 364.25 At [26]-[31].(a) If an application for extension of a care order is filed before the careorder expires, is the effect of s 87 to defer the expiry of the care orderby operation of law until the application has been heard and determinedby the Family Court?(b) If the answer to (a) is no, did the Family Court in fact defer the expirydate of the care order under s 87, by issuing a notice of judicialconference and subsequent minutes?(c) If the answer to (b) is no, did the Family Court have jurisdiction toreinstate the care order after it had expired?(d) Did the care order issued by Judge McMeeken expire on 6 or7 February 2020?Approach to appeal[39] In dealing with the present appeal, I shall adopt the following approach to theissue in [38](a):(a) first, I shall examine the statutory framework of the IDCCRA toidentify its purpose;(b) second, I will examine the provisions that relate to care orders;(c) third, I shall examine the interrelationship between ss 85 and 87; and(d) finally, I shall examine s 87.[40] In answering the question raised by [38](b) I shall review the relevantdocumentation to ascertain whether the expiry date was in fact deferred by theFamily Court.[41] I will determine the issue at [38](c) by again considering the legislativeframework detailed in answering [38](a), and with reference to the principles inM v Attorney-General,26 and Sestan v Director of Area Mental Health ServicesWaitemata District Health Board.27[42] I shall then consider the final question in [38](d).If an application for extension of a care order is filed before the care orderexpires, is the effect of s 87 to defer the expiry of the care order by operation oflaw until the application has been heard and determined by the Family Court?Appellant's submissions[43] Mr La Hood submitted that, when an application under s 85 of the IDCCRAhas been made, s 87 automatically defers the expiry of a care order by operation oflaw until the application has been heard and determined by the Family Court.[44] Mr La Hood submitted that, having regard to ss 3 and 11, the legislative historyof the IDCCRA, the Court of Appeal's reasoning in RIDCA,28 and comparisons withthe Mental Health (Compulsory Assessment and Treatment) Act 1992 (the MHCATA),the purpose of s 87 must be to ensure that care recipients who pose a risk to thecommunity, and who continue to require compulsory care, keep getting that care. Hesubmitted that Parliament must have intended that care recipients remain under theircare order even after expiry, when an application has been filed, so as to ensure theyare safe.[45] Mr La Hood emphasised that he fully accepted that his interpretation cannotbe advanced unless there is a duty on the Court to ensure that any deferrals areexpeditious and do not amount to arbitrary detention.[46] Mr La Hood referred to the explanatory note of the IDCC Bill, and said itsupported his interpretation of s 87. He said Parliament plainly envisaged that a careorder would lapse only where no extension has been sought and the expiry date hadpassed, or where the order was cancelled.26 M v Attorney-General [2010] NZCA 311.27 Sestan v Director of Area Mental Health Services Waitemata District Health Board [2007]1 NZLR 767.28 RIDCA Central (Regional Intellectual Disability Care Agency) v VM, above n 14.[47] Mr La Hood directed the Court to the MHCATA, and in particular s 15(3). Hesubmitted that a comparison between the MHCATA and the IDCCRA supports hisposition that a care order does not lapse so long as an application for extension of theorder remains on foot. That is because there is no provision in the IDCCRA like s15(3) of the MHCATA that requires the Court to release a patient from compulsorycare if a deferral is not granted prior to the deferred expiry date when an applicationfor an extension of the care order is pending. Further, s 15(3) of the MHCATA saysthat where a patient is released in such circumstances, it is without prejudice to themaking of a further application. By stark contrast, under the IDCCRA anotherapplication can only brought in circumstances where the care recipient commitsanother crime.[48] Mr La Hood submitted that the Court should not have regard to s 83 in itsinterpretative exercise, because Mr Williamson's case was that the care order hadnever in fact expired.[49] Mr La Hood also relied on recent dicta in Re Valuers Registration Board,where Simon France J said where "the literal interpretation not only does not advancethe purposes of the Act, it actively hinders them; and is impractical in terms ofimplementing the Act's procedures", the Court must look to other availableinterpretations of the Act.29 Mr La Hood dismissed Mr Bailey's arguments as "ahighly literal, simplistic but ultimately an inconsistent interpretation of s 87", whichdoes not advance the purposes of the Act and is impractical in terms of implementingthe Act's procedures.Respondent's submissions[50] Mr Bailey submitted that if Parliament had intended the interpretation to bethat which Mr La Hood contended for, then s 87 would have read "if an extensionapplication is made prior to the expiry of a recipient's CCO, the expiry of the CCO isdeferred until the application is determined". Mr Bailey relied on the plain meaningof s 87 that the Court "may defer the expiry of the order" to submit that, having regardto the twin principles of s 11(a)-(b), Parliament has vested the importance of29 Re Valuers Registration Board [2020] NZHC 2050 at [39].considering whether or not to further detain a care recipient in the discretion of aFamily Court Judge.[51] Second, he submitted that the language of s 87 refers to an application for an"order" deferring the expiry date, and that an order could not be automaticallytriggered by the filing of an application.[52] Third, he submitted that Mr La Hood's interpretation would render s 87(2)pointless. There would be no need to reserve a right to apply for a deferral of expiryof a care order, if the filing of an application under s 85 automictically did so.[53] Fourth, he submitted Parliament could not possibly have intended that the carerecipient's status and continued detention could be regulated in such a loose fashion,having regard to the primacy that is afforded to their fundamental rights and freedoms.The opportunity for systemic failures to result in arbitrary detentions would be muchgreater in such a scheme.[54] Finally, he submitted that this Court should have due regard to the plainmeaning of s 83, and its very clear interrelationship with s 87. He submitted that s 83makes plain the effect of a care order expiring, and s 87 is relevantly the correspondingempowering section which can prevent expiry occurring.The statutory framework of the IDCCRA – purpose[55] As with any exercise in statutory interpretation the meaning of an enactmentmust be ascertained from its text and in light of its purpose.30[56] I turn first to the legislative history of the IDCCRA. The IDCCRA wasdeveloped to address an issue which arose after the enactment of the MHCATA, whichdeliberately excluded intellectually disabled persons from its ambit (unless they had amental disorder), because intellectual disability was "seen as a learning disability thatresults in substantial limitations in functioning [which] cannot be treated."31 It30 Interpretation Act 1999, s 5(1).31 Intellectual Disability (Compulsory Care) Bill 1999.was therefore considered inappropriate for intellectually disabled persons to be subjectto treatment orders.[57] As a consequence, a number of intellectually disabled persons were releasedfrom hospital care, despite some being considered to present serious risks tothemselves and others. This position eventually came to public attention, and theIDCC Bill was introduced into Parliament in 1999 to fill that legislative gap.[58] The explanatory note to the IDCC Bill said the following about provisionsrelating to release from care orders and the continuation of care:Release from Care OrdersOnly the courts may release a person from a compulsory care order. This isunlike the Mental Health (Compulsory Assessment and Treatment) Act 1992,where a responsible clinician or a review tribunal or the courts may release aperson from an order. The difference in requirements reflects the differencebetween the objectives of the Mental Health (Compulsory Assessment andTreatment) Act 1992, which are assessment and treatment, and those of thisBill, which focus on care and safety issues for persons with an intellectualdisability.A special care recipient is released from that care order under the followingconditions:• If the special care recipient is also subject to a sentence of imprisonment, whenthe sentence ceases to run, at which point he or she becomes a civil carerecipient:• The Attorney-General or the Minister of Health has approved a change in legalstatus to that of civil care recipient.A civil care recipient is released from compulsory care under the followingconditions:• The expiry of the court order, if no extension is sought; or• A Family Court decision following a request from a compulsory carecoordinator for a cancellation of the order.[59] Clauses 115 and 116, which went on to become the current ss 85 and 87 of theIDCCRA, were described as follows in the clause-by-clause analysis in theexplanatory note to the IDCC Bill:Clauses 115 and 116 relate to the extension of a care recipient's compulsorycare order. An order may be extended by the Family Court. If a care recipient'sorder is due to expire when an application for an extension is pending, theCourt may defer the expiry of the order so that the care recipient can bedetained while the application is heard.[60] I turn now to ss 3 and 11 of the IDCCRA, which set out the purposes andprinciples governing the exercise of powers under the Act:3 PurposesThe purposes of this Act are—(a) to provide courts with appropriate compulsory care andrehabilitation options for persons who have an intellectualdisability and who are charged with, or convicted of, anoffence; and(b) to recognise and safeguard the special rights of individualssubject to this Act; and(c) to provide for the appropriate use of different levels of carefor individuals who, while no longer subject to the criminaljustice system, remain subject to this Act.11 Principles governing exercise of powers under this ActEvery court or person who exercises, or proposes to exercise, a powerunder this Act in respect of a care recipient must be guided by theprinciple 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.[61] In relation to the scheme, construction and interpretation of the IDCCRA, theCourt of Appeal held in RIDCA:32What s 11 calls for, therefore, is a balancing of the legitimate interest of thecommunity in protecting the health and safety of the care recipient and others(we will call this the community protection interest) against the liberty interestof the care recipient. That balancing exercise will enable the Court to achievethe purposes described in s 3, because it will lead to the selection of theappropriate compulsory care and rehabilitation option for the care recipientand recognise his or her rights appropriately.[62] Mr La Hood submitted that RIDCA is clear authority that the IDCCRA is apublic protection statute, and s 11(a) contains the predominant purpose. He submittedthe IDCCRA allows for the detention of those with intellectual disabilities who haveallegedly offended only when the public protection interest outweighs the carerecipient's liberty issues, particularly having regard to s 11(a). He relied on thisproposition for his argument that s 87 must be interpreted as automatically deferringthe expiry date of a care order when an application for extension of the care order is32 RIDCA Central (Regional Intellectual Disability Care Agency) v VM, above n 14, at [36].filed before the expiry date, to a date when the Family Court has heard and determinedthe application for an extension.[63] The guidance of RIDCA is more nuanced than that. It acknowledges that realefficacy must be given to s 11(b) and the care recipient's rights so that those fromwhom the public is protected are acknowledged as human beings with legitimateaspirations who enjoy fundamental rights and freedoms. The Court explained:33The reference to the rights of a care recipient in s 11(b) is not specific as towhich rights are being referred to, and there is no reason to read it down inany way. The IDCCR Act itself sets out a number of rights applying to carerecipients or proposed care recipients, such as the right to legal advice and theright to information. There are many others. However, we think the focus ofthe principles set out in s 11(b) is on more fundamental rights, particularlyrights ensuring basic freedoms of the kind described in the New Zealand Billof Rights Act 1990 (the Bill of Rights) such as the right to freedom ofmovement, the right not to be arbitrarily arrested or detained, and the right tobe free from discrimination on the grounds of disability. In a similar context,the Supreme Court of Canada used the phrase "liberty interest" to describethese rights and we will adopt the same term.[64] Section 11 must, in my view, be seen as containing two principles that operatewith equal force but which on the facts of any given matter (having regard to thecompeting tension between them) afford an outcome that is the least restrictive to thecare recipient while satisfying any proven community protection need. It should alsobe remembered that such an evaluation is not necessarily static over the life of a carerecipient, rendering it even more important that the state's response to their detentionis administered in as timely a fashion as possible.[65] The Court in RIDCA were alive to this:34We do not accept that the length of time for which a person has already beensubject to a compulsory care order can be ignored when assessing his or herliberty interest. This can be illustrated by a case where the assessment of thecommunity protection interest against the care recipient's liberty interest wasfinely balanced at the first renewal of a compulsory care order. If, three yearslater, a further extension is sought and the community protection interestremains essentially the same, the balance against the extension may betipped by the fact that the care recipient's liberty interest has become morecompelling because he or she has already endured a significant period ofreduced liberty. We do not see this as material other than in finely balanced33 At [35] (footnotes omitted).34 At [90].cases. Where a care recipient constituted a significant danger to the publicand compulsory care was necessary for community protection, the libertyinterest of the care recipient, even if he or she had been in care for a longperiod, would not outweigh the community protection interest.[66] The legislative scheme of the IDCCRA was also considered very recently bythe Court of Appeal in M v Attorney-General.35 The Court emphasised again that theIDCCRA is a public protection statute, which allows for the detention of individualsnot as a punitive measure but as a public safety measure. The detention is notindefinite; rather, the detention is ordered for finite periods and can be extended onlyif a court considers it is necessary in the public interest.36 The Court affirmed RIDCAand in particular the passage quoted at [65] herein.[67] I conclude that the IDCCRA is in essence a public protection statute, allowingfor the detention of individuals with intellectual disabilities who have allegedlyoffended, only when the public protection interest outweighs the individual's rightsand freedoms, and having regard to the application of the twin principles I havedescribed at [64].Provisions of the IDCCRA relating to care orders[68] Section 46 of the IDCCRA provides that a care order lasts for the term specifiedin the order, the term specified can be no longer than three years and the term may beextended under s 85:46 Term of compulsory care order(1) Every compulsory care order lasts for the term specified in the order.(2) The term specified under subsection (1) may not be longer than 3years.(3) The term specified in the order may be extended under section 85.[69] Section 83 of the IDCCRA provides that "on expiry of a compulsory care orderthe care recipient ceases to be a care recipient:83 Status on expiry of term of compulsory care orderOn the expiry of a compulsory care order the care recipient ceases tobe a care recipient under this Act.35 M v Attorney-General, above n 26.36 At [128].[70] Section 85 of the IDCCRA provides the Family Court may, on the applicationof a care coordinator, extend the term of the care recipients care order:85 Extension of compulsory care order(1) The Family Court may, on the application of the co-ordinator, extendthe term of a care recipient's compulsory care order.(2) If the court extends a compulsory care order for a care recipient nolonger subject to the criminal justice system, the court must considerand determine whether the care recipient must receive supervised careor secure care.(3) The court may order that a care recipient no longer subject to thecriminal justice system receive secure care only if it considers thatsupervised care would pose a serious danger to the health or safety ofthe care recipient or of others.[71] Section 87 provides that the Family Court may defer the expiry of a care orderwhen an application for an extension is pending:87 Court may defer expiry of order if application for extensionpending(1) If a care recipient's order is due to expire at any time when anapplication, under section 85, to extend the term of that order ispending before the Family Court, the court may defer the expiry ofthe order by specifying a date as the last day of a period that, in theopinion of the court, is sufficient for the application to be heard anddetermined.(2) The co-ordinator may apply without notice for an order, undersubsection (1), to defer the expiry of a compulsory care order.(3) As soon as the court makes an order under subsection (1), the co-ordinator must serve a copy of the order on every person who isentitled to be served with a copy of the application under section 85.(4) Every person served, or entitled to be served, under subsection (3)with a copy of an order under subsection (1) may apply to the courtfor the cancellation or variation of the order.[72] Sections 85 and 87 are contained within part 6 of the IDCCRA which concerns"[r]eviews of condition and status of care recipients". The sections come undersubpart 3 of part 6, which is entitled "[c]hange in status of care recipient no longersubject to criminal justice system and special care recipients liable to detention undersentence". Sections 85 to 88 are further categorised under the subtitle "[c]ontinuationof compulsory care".The interrelationship between ss 85 and 87 of the IDCCRA[73] There is no doubt that ss 85 and 87 are intrinsically linked, and should be readtogether. They both relate to the extension of a care order.[74] Section 85 contains the power of the Family Court to extend a care order. Anapplication under s 85 needs to be on foot before s 87 is engaged. There is no doubtthat s 87 is a provision that is aimed at facilitating the hearing and determination of anapplication for an extension under s 85. However, for reasons I explain later, it doesnot have the entirely administrative character for which Mr La Hood contends. It alsohas substantive elements, that require the attention of a Judge and the making of anorder.Interpretation of s 87 of the IDCCRAThe plain language of s 87[75] I now turn to examine the plain language and meaning of s 87. Section 87(1)states "the court may defer the expiry of the order by specifying a date as the last dayof a period that, in the opinion of the court, is sufficient for the application to be heardand determined."[76] It is clear that the Court has a discretion to exercise here. It may or may notmake an order for deferral; it must come to its own opinion. If it does decide to makean order for deferral, it must turn its mind to the length of period of the deferral havingregard to identifying a period that is sufficient for the application for an extension ofthe care order to be heard and determined.[77] The language also clearly places a duty on the Court to make an order. Whatis required is for a Judge to intentionally decide to exercise his or her discretionarypower, and to formalise that intention by the making and articulating of an order fordeferral of the expiry date. I have not been directed to any authority (particularly inrespect of legislation involving fundamental human rights) where the mere filing ofan application results in the automatic making of an order. That must be for the plainreason that all manner of iniquities could result from such a statutory schema.[78] There is no ambiguity as to what is meant by the word expiry. There is nothingon the face of the IDCCRA to suggest the meaning of "expiry" takes on differentmeanings as between s 83 and s 87, and both sections are contained under the samesubpart of the Act.[79] Section 87(2) provides a care coordinator with the right to apply, withoutnotice, for an order under s 87(1). On Mr La Hood's interpretation, this section wouldbe rendered meaningless. The clear meaning of s 87(2) is to allow care coordinatorsto apply without notice in circumstances of urgency. Had Mr Williamson filed asubsequent without notice application, bringing the Court's attention back to thematter before 7 May 2020, the current situation may well have been avoided.[80] Section 87(3) reiterates that what is required is an order of the Court, and thisis further emphasised by the requirement on the care coordinator to serve a copy ofthe order on certain persons.[81] Section 87(4) provides the opportunity to apply for the cancellation or variationof an order made under s 87(1).[82] In summary, s 87 provides a very clear procedure for an application for deferralof an expiry date when an application for extension is before the Court.The language of s 87 in context[83] Having considered the legislative history and the Court of Appeal's reasoningin RIDCA,37 I consider s 87 perfectly enshrines and gives effect to the principles ins 11. Where either the public need ongoing protection from the care recipient, or thecare recipient needs ongoing care, the Court can defer the expiry date to allow foreither or both.[84] Reposing the power to defer in the Court, and requiring the Court to exerciseits discretion having regard to sufficient time to enable the matter to be heard anddetermined, delicately balances both principles and allows for the concern37 RIDCA Central (Regional Intellectual Disability Care Agency) v VM, above n 14,Mr La Hood expressed about the care recipient continuing to get the care they mayrequire. Having formed that view, little turns on Mr La Hood's submission concerningthe explanatory note to the IDCC Bill outlined at [58] above.[85] I turn now to Mr La Hood's submission that a comparison with the MHCATAsupports his interpretation. Both Acts have clear mechanisms for the review of thepersonal status of the individual in respect of whom the relevant statutory frameworkshave been engaged.[86] They are different, and for very good reasons in my view. The MHCATA isvery much focussed in a real time medical treatment context. The MHCATA covers avast array of patients and presentations. In a significant number of cases, theadministration of a drug regime results in almost instantaneous relief and the patientcan return to the community in short order. It is entirely appropriate in thosecircumstances that time frames are highly prescriptive and relatively tight. It is alsosignificant that patients can be released without a court order. The MHCATA alsoenvisages that an application for an extension of a compulsory order will be dealt withafter the initial order has expired.[87] The mechanism in ss 85 and 86 of IDDCRA is designed to deal with carerecipients who have highly complex needs that cannot necessarily be resolved by adrug treatment regime, nor necessarily ever resolved by support and rehabilitation.The mechanism recognises this by ensuring that a care order can only be resolved byexpiry or cancellation. Where cancellation is not appropriate and the care order needsto be extended it can be, and while the process of hearing and determining theapplication for extension is underway the care recipient can be cared for under adeferred expiry date.[88] Both the protection of the public and the concern that the care recipientcontinue to receive care where necessary are preserved, by virtue of the fact that theorder for extension must be made before the original expiry date or the deferred expirydate is passed. This conclusion is reinforced by the fact that there is no limit to thenumber of times a care order can be deferred, provided an application for an extensionorder is before the Court.[89] The problem here is only that the express framework was not utilised oradministered in a sufficiently timely way so as to obviate the expiry of the care orderon 7 May 2020.[90] The meaning for which Mr La Hood contended strains the language of ss 85and 87 and ignores s 83. The operation of the IDCCRA is precise and internallycoherent. The language is clear: the expiry date is the expiry date in the original careorder, or as extended under s 85, or as deferred by an order of the Court under s 87(1)after the exercise of its discretion (having regard to the facts that address the competingprinciples to be applied. I do not consider that the Valuers Registration Board caseapplies in the present case.38[91] Finally, I note Mr La Hood also referred to the decision of the European Courtof Human Rights (ECtHR) in Winterwerp v The Netherlands, where Mr Winterwerpargued that he was unlawfully detained because his detention order had been expiredfor approximately three weeks before it was renewed.39 The ECtHR held that whenthe appropriate agency applied for the detention to be extended, the former detentionorder remained valid until the Court had determined the extension application.40 Adelay of three weeks was not unreasonable or excessive, and did not amount to anarbitrary deprivation of liberty. While I acknowledge the principles in Winterwerpassist generally in determining what might constitute an unreasonable delay, the caseis of limited assistance when interpreting the clear statutory language of the IDCCRA.[92] In conclusion, I find that s 87 does not automatically defer the expiry of a careorder when an application under s 85 is filed.Did the Family Court in fact defer the expiry date of the care order under s 87,by issuing a notice of judicial conference and subsequent minutes?Appellant's submissions[93] Mr La Hood submitted that the Family Court's notice of judicial conferenceand minutes (described at [15]-[16] above) amounted to valid orders under s 87 of the38 Re Valuers Registration Board, above n 29.39 Winterwerp v The Netherlands [1979] ECHR 4.40 At [49]-[50].IDCCRA, deferring the expiry date of 7 May 2020 until the matter could be heard anddetermined by the Court.[94] Relying on J v Attorney-General, Mr La Hood submitted that s 87 does notprescribe the form of a deferral order, and an inconsistency with the requirements ofs 87 does not necessarily invalidate an order.41 He submitted it would be a triumph ofform over substance to hold that the care order expired simply because an explicitorder was not contained in these documents.[95] Mr La Hood also submitted that the "extreme intervening circumstances", dueto the Level 4 COVID-19 restrictions that existed at the time the notice of judicialconference was issued, form a relevant part of the circumstances against which theCourt's notice must be considered. When those circumstances are taken into account,they add further weight to the submission that the lack of perfection in the Court'sorder does not invalidate it. This is because during the Level 4 lockdown the Courtprovided the first available date for further directions to be made to progress theapplication, which was five days after the notional expiry of the existing order.[96] Mr La Hood argued that the Court issued the notice of judicial conferencethrough the registrar. He relied on r 12(3) of the Family Court Rules 2002, whichstates that an order made by a registrar under the Rules has the same effect and isenforceable in the same manner, as if it were an order of a Judge.Respondent's submissions[97] Mr Bailey rejected Mr La Hood's argument, primarily on the basis that it is afundamental and insurmountable problem that the relevant statutory powers do notvest in the registrar, and the notice of judicial conference and minutes did not have theeffect for which Mr La Hood contends.Analysis[98] An examination of the notice and minutes relied on is instructive. The noticeof judicial conference dated 20 April 2020 was issued by Joanne Thomson, "Court41 J v Attorney-General, above n 9.Officer". It referred to a "conference" as distinct from a "hearing and adetermination". It is plainly a template letter. For example, it stated "[p]lease adviseme in writing if the case settles before the scheduled conference date above." Itreferred, not to the fact that the Judge would hear and determine the matter on thenominated day (as required by s 87(1)), but rather that he or she would "make ordersor directions as to how the matter is to be progressed." The time allocated to it was30 minutes.[99] The notice made no mention of the expiry of R's care order being deferredbeyond 7 May 2020. There is no evidence that the author of the letter was even awareof the earlier deferment, or when that order was to expire. In other words, there isabsolutely nothing on the face of the document from which to conclude, expressly orimpliedly, that the Court had turned its mind to the last date by which a full hearingand determination of the matter could be concluded as required by s 87(1).[100] Further, Mr Williamson was required to serve a copy of any order for deferralof the expiry date of a care order on R. Such an obviously administrative letter, notbearing the seal of the court or the usual endorsement "by order of the Court" wasnoticeably absent and would not necessarily draw a care coordinator's attention to therequirement to serve it on the care recipient.[101] As to the word "court" in s 87(1), and Mr La Hood's submission that r 12(3)of the Family Court Rules means this could include a registrar, I simply say that notevery power conferred on the Court is in fact exercised by registrars and for very goodreason. Hearings and substantive without notice applications in the Family Court areroutinely reserved to Judges to decide.[102] The minute of 12 May 2020 is also instructive. At [3], the Judge acknowledgedthat the proceedings were time sensitive and there was a need for urgency indetermination of the application. At [5], the Judge said "[t]he first issue for the Courtto determine is whether it has jurisdiction to extend [R's] care order." She then set itdown for the jurisdiction issue to be determined three days later. It could hardly besaid in those circumstances that the minute constituted an express or valid deferral ofthe expiry date, when that matter was not addressed.[103] Likewise, the minute of the 15 May 2020 did not address the issue directly, andtherefore it cannot be argued that the Judge expressly deferred the expiry date. In bothminutes, she expressly said the contrary, namely that she could very well be functusofficio; and she ultimately held she was.[104] Mr La Hood is correct that Collins J held in J v Attorney-General that s 87 ofthe IDCCRA does not prescribe the form of a deferral order,42 and no reasons arerequired to be given. As the order of 7 February 2020 highlights, deferral orders aremade without hearings, in chambers, on the papers, and without reasons. But, in myview, that cannot obviate the requirement of a Judge to consider the competinginterests and make an order deferring the expiry date (however that may be done bythe Judge or expressed by them). I doubt it could ever be possible or appropriate fora court to administratively progress matters of personal status such as detention underthe IDCCRA without expressly stating that an order had been made and what its effectwas to be.[105] In J v Attorney-General, Collins J also held a failure of the Court to complywith the requirement in s 87(1) to specify a date to which the expiry of a care orderwas deferred did not invalidate subsequent extensions or deferrals.43 Again, I considerthat to be of little use in the present case, where an order was not made at all.[106] For all of the above reasons, I conclude that neither the notice of judicialconference dated 20 April 2020, nor the minutes dated 12 and 15 May 2020, amountedto an order of the Court under s 87 of the IDCCRA deferring the expiry date of thecare order beyond 7 May 2020. I find the Judge was correct to find that the care orderexpired on 7 May 2020.42 At [101].43 At [114].Did the Family Court have jurisdiction to reinstate the care order after it hadexpired?Appellant's submissions[107] Mr La Hood submitted the Judge was wrong to conclude she did not havejurisdiction to defer the expiry of the order after 7 May 2020.[108] Mr La Hood reiterated his arguments in relation to the proper interpretation ofs 87, and how it should operate. He argued that the Family Court decision in Beck isnot binding,44 and was superseded both in time and authority by the High Court caseof J v Attorney-General,45 where it was held that the failure to specify a certain datewill not necessarily invalidate proceedings if an extension application is beingprogressed in a timely manner.[109] Mr La Hood submitted the natural meaning of the words "at any time" in s 87are that the deferral of a care order can be made after its expiry, so long as an extensionapplication under s 85 is pending. He relied upon the cases of M v Attorney-General,46J v Attorney-General,47 and Sestan,48 which support the proposition that minortechnicalities should not be permitted to cut across clear public protection purposes ofthe IDCCRA without a proper assessment of the degree and seriousness of thecompliance.[110] Mr La Hood submitted that any degree of demonstrated non-compliance witha specific provision will not have the consequence of making all subsequent actionstotally invalid without that being justified by an assessment of what went wrong, how,and why. To do so would be to have a blinkered focus on isolated provisions, ignoringthe statutory context and purpose.[111] Mr La Hood submitted that both of his interpretations of s 87 (that the noticeof judicial conference and minutes amounted to an order under s 87, or that the Courthad the ability to reinstate the expired order) are consistent with the New Zealand Bill44 National Intellectual Disability Care Agency v Beck, above n 12.45 J v Attorney-General, above n 9.46 M v Attorney-General, above n 26.47 J v Attorney-General, above n 9.48 Sestan v Director of Area Mental Health Services Waitemata District Health Board, above n 27.of Rights Act 1990 (BORA), using the methodology for interpretation of a statutoryprovision against BORA as set out by Tipping J in Hansen.49 Further, Mr La Hoodsubmitted that the care recipient continues to have the right to file an application unders 87(4) of IDCCRA to cancel or vary the care order, and therefore any impact on thecare recipient's BORA rights can be ameliorated by the examination of whether thecare order ought to be cancelled, extended or varied.[112] Mr La Hood submitted that even if it could be argued that either of hisinterpretations run contrary to a right or freedom in BORA, then such an inconsistencyis nevertheless a demonstrably justified limitation in a free and democratic society, interms of s 5 of BORA. That is because Parliament's clear purpose and intention in theIDCCRA was to ensure that intellectually disabled persons, who have allegedlycommitted a crime and who continue to pose a risk to the community which outweighstheir own personal freedom, receive the care they require. An interpretation to thecontrary would have the clear effect of undermining the clear purpose of the IDCCRAon a technicality.Respondent's submissions[113] Mr Bailey submitted an expired order ceases to exist, and its expiry cannotsubsequently be deferred, and the reasoning in Beck is correct.50The two possible interpretations of s 87 of the IDCCRA[114] It is apparent that, without closer examination, there are two possibleinterpretations of s 87(1):(a) the Court may defer the expiry date of a care order where there is anapplication pending before the Court under s 85, but the order has notyet expired; or(b) the Court may defer the expiry of a care order at any time, so long as:(i) an application under s 85 is pending; and49 R v Hansen [2007] NZSC 7, [2007] 3 NZLR 1.50 National Intellectual Disability Care Agency v Beck, above n 12.(ii) the order had not expired when the s 85 application was made(in other words, the Court has the power to defer the expiry ofan expired order, so long as a s 85 application is pending).Analysis[115] I turn first to M v Attorney-General, where the Court of Appeal considered theCPMIPA and IDCCRA in the case of Mr M, who advanced numerous arguments,including that he was arbitrarily detained because he was found unfit to stand trial.51[116] Mr M's argument of arbitrary detention arose in the context of ss 30 and 31 ofthe CPMIPA. At the relevant time, Mr M was held as a special care recipient underthe IDCCRA. Section 30 of the CPMIPA therefore dictated the duration of hisdetention as a special care recipient, and s 31 governed his change in status from aspecial care recipient to a care recipient. In December 2008, the maximum period oftime he could be detained as a special care recipient expired, pursuant to s 30(1)(b).In January 2009, the Attorney-General ordered that Mr M be held as a care recipientunder the IDCCRA, pursuant to s 31(4)(a) of the CPMIPA.[117] The relevant sections of the CPMIPA provide:30 Duration of detention as special patient or special care recipientwhere person unfit to stand trial(1) The maximum period for which a defendant who has been found unfitto stand trial can be detained under section 24 as a special patient or aspecial care recipient is—(b) if paragraph (a) does not apply, a period from the date of theorder under section 24 equal to half the maximum term ofimprisonment to which the defendant would have been liableif he or she had been convicted of the offence charged.(3) An order under section 24 in respect of a defendant who has beenfound unfit to stand trial continues in force during the maximumperiod specified in subsection (1) until—51 M v Attorney-General, above n 26.(b) a direction is given, under section 31, that the defendant beheld as a patient or as a care recipient.31 Change of status from special patient to patient or special carerecipient to care recipient where person unfit to stand trial(4) The Attorney-General must direct that the defendant be held as apatient or, as the case requires, as a care recipient if—(a) the defendant is still detained as a special patient or as aspecial care recipient when the maximum period specified insection 30 expires; and(b) no direction under subsection (2) or subsection (3) has beengiven in respect of the defendant; and(c) no certificate of the kind referred to in subsection (2) has beengiven in respect of the defendant.[118] Mr M argued that upon expiry of the maximum period of detention providedfor by s 30 in December 2008, his detention became unlawful and theAttorney-General no longer had the power under s 31(4) to order his status be changedto that of a care recipient in January 2009.[119] The Court of Appeal summarised the High Court's rejection of Mr M'sargument:52The Judge did not accept the submission that the effect of s 30(3) was that theorder for Mr M's detention expired on 20 December 2008, and could not beextended. The Judge considered that a delay of a few days or even a week ortwo in making the direction did not mean that the patient is no longer lawfullydetained and must be released from detention. In the absence of clinicalcertificates of the kind referred to in s 31(2) and (3), the only order that can bemade under s 31 is a direction that a special patient becomes a patient, whichis deemed to be a compulsory treatment order. None of the s 31 optionsinvolves release. It would be wholly inconsistent with that clear legislativedirection if a short delay resulted in a default position (release fromcompulsory status entirely) that was not contemplated by the legislation.[120] The Court of Appeal upheld the High Court's reasoning:53We agree with the Judge's reading of ss 30 and 31 of the [CPMIPA]. Thedrafting of s 30(3) is somewhat clumsy. Read in isolation it could be taken tomean that the period of detention expires at the end of the maximum period52 At [136] (footnotes omitted).53 At [143].prescribed in subs (1). But reading the provisions together as a whole, thatconclusion makes no sense. The Attorney-General's power and duty to give adirection under s 31(4) when the maximum period specified in s 30 expires, ifthe other criteria set out in that provision are met, does not terminate at theprecise moment of expiry of that period. On the approach contended for by[counsel for Mr M], the power would be exercisable only at the very instantthat the period expires. If that moment was missed the individual would haveto be released — even though that is not one of the outcomes contemplated bythe legislation. A reading of the provisions that produces that absurd resultcannot have been intended by Parliament, and is not an available meaning thatcould be adopted under s 6 of NZBORA.[121] The reasoning in M v Attorney-General can be distinguished in the presentcase, based primarily on the legislative framework. The approach of the Court was inthe context of "clumsy" legislative drafting within the CPMIPA.54 In contrast, I havefound that the process for the extension and deferral of CCOs contained in ss 85 and87 of the IDCCRA is very clear, and s 83 clearly records the status of a person onexpiry of the term of a CCO – they cease to be a care recipient under the IDCCRA.[122] In Sestan, the Court of Appeal considered an application from Mr Sestan for awrit of habeas corpus, following alleged breaches of the MHCATA.55 Althoughfinding a breach of the requirement in s 9(2)(d) of the MHCATA to explain the purposeof an examination to a patient in the presence of a family member or caregiver, theCourt of Appeal upheld the High Court's decision not to issue a writ of habeas corpusfor the breach.56 The Court found the non-compliance with s 9 did not render theexamination invalid.57 In its concluding remarks, the Court held:[88] The [MHCAT] is aimed at defining and protecting the rights of peoplewho may be mentally disordered. Courts will not countenance breaches of theAct's provisions and obligations lightly. It should not be overlooked that,within the statutory framework, ongoing protective mechanisms exist. Thesechecks and balances operate both during the periods of assessment andtreatment and after a compulsory treatment order has been made under s 17by a Judge.[89] Because of the nature of the jurisdiction, it is almost inevitable thatthere will at times be some variance or deviations from strict statutoryrequirements. It is important to view any non-compliance in the round ratherthan from a blinkered focus on isolated provisions which ignore the statutorycontext.54 At [143].55 Sestan v Director of Area Mental Health Services Waitemata District Health Board, above n 27.56 At [55].57 At [53].[90] We do not accept that whenever it is demonstrated that there is anydegree of non-compliance with a specific provision the only consequence willbe the total invalidity of all subsequent actions. The Court must assess whathappened, why it happened and how it happened, remembering that theprotection of a vulnerable person, and potentially the community, is at theheart of the legislative framework.[123] I consider Sestan can also be distinguished from the present case. It concernednon-compliance by a care facility with a statutory provision relating to how anexamination is carried out, not a fundamental question of the Court's jurisdiction inrelation to an expired order.[124] Similarly, I consider the finding in J v Attorney-General, that the failure of theCourt to comply with the requirement in s 87(1) to specify a date to which the expiryof a CCO is deferred does not necessarily invalidate subsequent extensions ordeferrals, can also be distinguished.58 I consider that to be a procedural error that canbe corrected by the Court, as opposed to a fundamental error in the nature of an ordernot being made at all.[125] I turn finally to Beck, where Judge Twaddle held a care order had expired on31 January, and the Court had no jurisdiction to defer it on 1 February:59In determining the meaning of s 87(1), I take into account particularly thewords, "the Court may defer the expiry of the order." I infer from these wordsthat the order must not have expired and that there is an existing order, theexpiry date of which can be deferred. Once an order has expired, there is noexpiry date to be deferred. In this case, the order had already expired beforethe order deferring the expiry date was made, so there was no valid order withan expiry date to be deferred. This interpretation is consistent with thepurposes and principles of the Act that the special rights of individuals subjectto the Act are protected.[126] I consider this reasoning to be correct, and I apply it in the present case. Havingfound that the care order expired on 7 May 2020, the Family Court was correct to findit had no jurisdiction to defer its expiry in June 2020.58 J v Attorney-General, above n 9, at [114].59 National Intellectual Disability Care Agency v Beck, above n 12, at [12].Did the care order issued by Judge McMeeken expire on 6 or 7 February 2020?Respondent's submissions[127] Mr Bailey submitted that Judge McMeeken intended the care order tocommence immediately on 7 February 2017, and it therefore expired on6 February 2020 (meaning the Family Court had no jurisdiction to defer its expiry on6 February 2020).[128] Mr Bailey submitted that, following the finding that R was unfit to stand trialin December 2016, the Court was required to either grant bail or remand him in afacility under s 23 of the CPMIPA pending completion of the CPMIPA procedure.Section 23 of the CPMIPA therefore provided the jurisdiction to detain him, pendingthe order made pursuant to s 25 of the CPMIPA. He submitted that once the orderunder s 25 of the CPMIPA was made on 7 February 2017, s 23 no longer providedjurisdiction to detain R. He submitted there was therefore no statutory ability forJudge McMeeken to have delayed commencement of the order to 8 February 2017.He submitted that if the order did not commence until 8 February 2017, then R wasunlawfully detained in the hours between Judge McMeeken making the care orderduring the day on 7 February 2017, and its commencement at 12.00 am on 8 February2017.[129] Mr Bailey submitted that Judge Lindsay erred by relying on s 35 of theIDCCRA, which relates to prisoners or former special patients, when R was neither.[130] Mr Bailey submitted J v Attorney-General is not authority for the propositionthat a care order begins on the day after the order is made; rather it is authority for theproposition that when a care order is already in force, the extension or deferral of acare order commences the day after the extension or deferral order is made.60 He alsosubmitted the Interpretation Act 1999 is not applicable to the order prepared andsigned by the registrar, as it is not an enactment. He submitted an analogy with theSentencing Act 2002 was more appropriate.60 J v Attorney-General, above n 9.Appellant's submissions[131] Mr Azam, counsel for Mr Williamson, submitted that the logic and policy ofthe common law principle that an order or enactment commence in force from thefollowing day did apply for very good reasons in this case, and the Judge was correctto apply it.[132] Second, Mr Azam submitted the Judge was correct to rely onJ v Attorney-General and the Interpretation Act 1999.[133] Third, Mr Azam submitted that Mr Bailey's contention that R's remand unders 23 of the CPMIPA became obsolete at the precise time Judge McMeeken pronouncedthe care order in Court demonstrates a misunderstanding of the legislative framework,and R was not unlawfully detained.When did the care order commence?[134] As Mr Azam observed, the difficulty with Mr Bailey's argument is that it failsto engage with an issue that the Judge was very much alive to. That is, that in orderto deal with uncertainties caused by continuous time, the law does not deal withfractions of days and a day is deemed to run from midnight to midnight (de minimisnon curat lex).61 As a result, the issue in this case becomes: which midnight doesJudge McMeeken's order (made sometime during the working day on7 February 2017) start from?[135] The common law principle is that the inclusive rule (the whole of the first dayis included) is applied when it is a question of an Act or general provision coming intoeffect.62 This is intended to ensure that the effect of the relevant general provision isnot cut down by deferring its commencement until the midnight following the makingof the order. The exclusive rule (the whole of the first day is excluded) is applied whensome specified deed may be done before the end of a specified period.63 That is to61 T v J [2000] 2 NZLR 236 (HC) at [20].62 At [21].63 At [22].ensure that the time available for doing that specific deed is not cut shorter than theperiod specified.[136] Judge McMeeken ordered that R "be a care recipient in a secure facility forthree years in accordance with the care and rehabilitation plan and care programmedated 2 February 2017."64 The care order was made for the care coordinator and thecare manager to care for R as a care recipient for three years in accordance with hiscare and rehabilitation programme. That constitutes an order to undertake specificdeeds. The common law favours the exclusive rule being applied to this order. Thepolicy of the IDCCRA and the care order itself is undermined by a reading to thecontrary, because it gives the care coordinator and the care manager less time toundertake the tasks the Court ordered them to do. This principle, together with theunderlying policy of the IDCCRA, supports Judge Lindsay's finding.[137] J v Attorney-General is High Court authority for the proposition that s 35 ofthe Interpretation Act applies to orders and judgments of the Court as well as toenactments.65 There, counsel for the care recipient had advanced the very sameargument that Mr Bailey advances in the present case. Collins J quoted the argumentin full:66The 17 December 2012 order was for two years. The first day of that two yeardetention [was] 17 December 2012. The last [day] on which that orderauthorised detention as a care recipient [was] day 730 that is 16 December2914. [J's] status as a care recipient ceased that day. He was not a carerecipient on 17 December 2014 when Judge Southwick purported to deferthe expiration of his status as a care recipient.[138] Collins J then relied on s 35(2) of the Interpretation Act to reject thatargument.67 He held that the first day of the extended order was the day after thatorder was made.[139] Although Mr Bailey is correct that s 4 of the Interpretation Act states that itsprovisions only relate to enactments, the Act does provide a highly persuasiveindicator and guide to the interpretation of other legal instruments such as decisions64 R v OR, above n 5, at [12].65 J v Attorney-General, above n 9.66 At [94].67 At [95]-[96].and rulings. Further, there is an overarching interest in there being consistency withinthe law.[140] Mr Bailey's analogy with the Sentencing Act, where he asserted that as asentence commences immediately so too should a care order, is not helpful. TheSentencing Act contains very specific provisions about the commencement ofsentences which clearly settle the position. A care order is not a sentence, and thestatutory regimes are unrelated.[141] I also find there is nothing in Mr Bailey's argument that the deputy registrar'sorder has no force and effect. It was issued at the same time as the written version ofJudge McMeeken's oral judgment.68 The common sense inference is that the order isconsistent with the judgment and vice versa. Neither the IDCCRA nor the CPMIPArequire the order to be issued or signed by the Judge who grants it. The Court needsto make the order. The circumstances of the issuance of the order indicate that theorder was issued to give effect to Judge McMeeken's judgment.[142] The Judge was correct to find the care order commenced at 12.00 am on8 February 2017 and was originally set to expire at 11.59 pm on 7 February 2020.Was R unlawfully detained on 7 February 2017?[143] I turn now to Mr Bailey's submission that R was unlawfully detained for theperiod between Judge McMeeken's pronouncement of the care order in Court on7 February 2017, and the commencement of the care order at 12.00 am on8 February 2017.[144] Section 23 of the CPMIPA provides:23 Inquiries about persons found unfit to stand trial or insane(1) When a person is found unfit to stand trial or is acquitted on accountof his or her insanity, the court must order that inquiries be made todetermine the most suitable method of dealing with the person undersection 24 or section 25.68 R v OR, above n 5.(2) For the purposes of the inquiries under subsection (1), the court musteither—(a) make it a condition of a grant of bail that the person go to aplace approved by the court for the purpose of the inquiries;or(b) remand the person to a hospital or a secure facility.(3) Despite any provision in the Bail Act 2000, in deciding whether or notto grant bail for the purposes of subsection (2)(a), the need to protectthe public is the paramount consideration.(4) The inquiries under subsection (1) must be completed as quickly aspracticable and, in any event, within 30 days after the date of the orderunder which the inquiries are made.(5) A person who has an intellectual disability must, during the period inwhich the inquiries are made under subsection (1), be assessed underPart 3 of the Intellectual Disability (Compulsory Care andRehabilitation) Act 2003.[145] Mr Bailey's submission misunderstands the statutory scheme of the Act. In allcases the inquiries are completed well before the Court makes a disposition under ss24 or 25 of the CPMIPA. Although the remand is for the purposes of making inquiries,the remand does not end when the report is filed. The remand continues until suchtime as the disposition commences. This is supported by the language of s 25(1) itself.Section 25(1) expressly provides the Court with the power to decide not to make anorder for the imprisonment of the defendant, or for the immediate release of thedefendant. In this case, the Court made an order under section s 25(1)(b) for R to becared for as a care recipient under the IDCCRA. That order came into effect at12.00 am on 8 February 2017. Until that point, R continued to be remanded unders 23 of the CPMIPA .[146] This does cause a discrepancy of some hours but, having regard to the schemeand purposes of the Act and the common law principles referred to at [134]-[136],I am satisfied the detention was not unlawful.Conclusion[147] Section 87 of the IDCCRA does not defer the expiry of a care order byoperation of law until an application under s 85 has been heard and determined by theFamily Court. Both the scheme of the Act and the clear meaning of the provisionsthemselves require the Family Court to turn its mind to whether or not to exercise thediscretion to order a deferral of the expiry date of a care order.[148] Any such order needs to be expressly articulated rather than implied. It doesnot matter whether that is by pronouncement in Court or by writing in chambers onthe papers. In the present case, the notice of judicial conference and subsequentminutes of the Court, which make no reference to deferral of expiry of the care order,did not constitute an order under s 87. The IDCCRA is a rights-based Act. It dealswith the liberty of the individual and protection of the public, and the tension betweenthe two. The stakes could not be higher, and it is unlikely Parliament would haveintended that the liberty of the individual could be affected by successiveadministrative processes, rather than a Court reviewing the individual's personal statusin a substantive process and in a timely fashion.[149] It is also inconsistent with the clear language of the IDCCRA to find that theFamily Court had jurisdiction to defer the expiry of the care order in June 2020, afterits expiry on 7 May 2020.[150] It is apparent in the present case that there was confusion and difficulties in theprocess, contributed to by the COVID-19 circumstances. However, at any stage theCourt could have, of its own motion prior to 7 May 2020, turned its mind to the issueand made a further order for deferral of the expiry date of the care order. It did not doso. Mr Williamson could have brought the matter to a head by filing a further withoutnotice application prior to the expiry date of 7 May 2020. He did not do so.[151] No one here should be exclusively blamed for the failure. It is simply one ofthose unfortunate cases where the system has not functioned as it should have. Suchcases are fertile ground for making bad law. Had either Mr Williamson appliedwithout notice for a further deferral of the expiry date, or a court officer brought thematter to a Judge's attention to make a further deferral before 7 May 2020, theIDCCRA would have operated to ensure the relevant exercise of discretion would havebeen undertaken. The fact that an unfortunate circumstance has arisen is not goodreason to strain to find an interpretation that would do more damage than good to thecompeting interests of public protection, and the rights of a care recipient for the leastintrusive restraint on his or her freedoms.[152] In summary, I find it completely untenable to adopt an interpretation of theIDCCRA that allows for implied detention of an individual care recipient, or for theCourt to retrospectively reinstate an expired care order. The individual's rightsdemand adherence to the clear, certain, and express procedures that exist in theIDCCRA. The personal status of the individual is at the heart of IDCCRA, whichdemands an interpretation that requires the Court to make considered decisions, andmake public pronouncements of status at each stage of the ongoing and lawfuldetention of the individual.[153] It follows that the Family Court Judge did not err in any of the questions shedetermined, and both the appeal and cross-appeal must fail.[154] The original order came into effect at 12.00 am on 8 February 2017 and expiredat 11.59 pm on 7 February 2020. The Family Court had jurisdiction on7 February 2020 to extend the care order, and expressly and validly extended it to7 May 2020.[155] In the absence of any further orders being made to extend the expiry date of7 May 2020, the care order expired that day by operation of s 83 of the IDCCRA.[156] Once the care order had expired, the Court did not have the jurisdiction toretrospectively defer its expiry date.Result[157] The appeal is dismissed.[158] The cross-appeal is dismissed.[159] There will be no award of costs.[160] Mr La Hood has advised the appellant intends to appeal this decision if theappeal is declined, and he sought an order continuing R's detention in the interim.Pursuant to r 20.10(2) of the High Court Rules 2016, I therefore order that R is tocontinue to be detained as he currently is, pending the determination of the appeal bythe Court of Appeal. The appellant is to file its appeal within 14 days of the date ofthis judgment, otherwise this order will lapse.Doogue J