Explainer: What does international law mean for mental health?
Someone is detained and compulsorily treated inside a mental health service. They point out that the Convention on the Rights of Persons with Disabilities (CRPD) grants rights to equal recognition before the law, and that the mental health laws they are subject to are discriminatory. Can they take the mental health service to court to exercise their rights under the CRPD? We unpack this together.
Australia's ratification of the CRPD in 2008 represented a significant commitment to human rights for disabled people. The CRPD reflected part of a broader shift away from a medical model of disability to a social model of disability; and this has implications for mental health policy, law and services.
However, a disconnect exists between this international promise and domestic enforcement. Two landmark High Court decisions help explain why the CRPD cannot be directly enforced by individuals in Australia, yet remains crucial for systemic advocacy and law reform.
The Legal Barrier to Direct Enforcement
High Court decisions have clarified the scope of international human rights laws. In Minister for Immigration and Ethnic Affairs v Teoh (1995), the High Court established that international treaties do not automatically become part of Australian law upon ratification [1]. This principle was reinforced by Justice McHugh in Al-Kateb v Godwin (2004), who emphasised that
international law does not form part of Australian law until Parliament incorporates those principles into domestic legislation.
Indeed in the Supreme Court case PBU and NJE v Mental Health Tribunal, which examined the human rights of people subject to involuntary mental health treatment, Judge Bell found:
Australia's obligation under international law is progressively to realise the multifaceted right to health as specified in art 12(1) of ICESCR and art 25 of the CRPD. But it is not part of Australian domestic law until incorporated by legislation or otherwise.
This reflects Australia's dualist approach to international law – international treaties and domestic law operate in separate spheres until Parliament explicitly bridges them through legislation.
For Australians with disabilities including psychosocial disabilities, this creates an unfortunate reality: despite Australia's international commitment to uphold CRPD rights, individuals cannot directly invoke these rights in court unless they have been specifically incorporated into domestic legislation.
Mental health legislation such as the Mental Health and Wellbeing Act 2022 (Vic) (MHWA) have a complex relationship with human rights [2]. The use of force is held by authoritative bodies as breaching human rights standards; though more conservative interpretations of the CRPD exist also. Despite limiting and breaching human rights in many instances, these mental health laws also provide actionable safeguards that can be enforced through courts, such as duties under sections 80-84 of the MHWA to seek informed consent before treatment.
Human rights laws, such as the Human Rights Act 2019 (Qld), the Human Rights Act 2004 (ACT) and the Charter of Human Rights and Responsibilities Act 2006 (Vic) do bridge build an incomplete bridge by domesticating some of Australia’s human rights duties into domestic law. Focusing more on rights enumerated under the International Covenant on Civil and Political Rights (ICCPR), these domestic human rights laws focus on civil and political rights rather than economic and social rights (e.g. rights to housing, health, education etc) [3].
Beyond Direct Enforcement: Why the CRPD Still Matters
Despite this limitation, the CRPD remains an invaluable tool for advancing human rights in mental health settings:
Shaping Legislative Reform: The CRPD provides a framework and benchmark against which to develop and reform domestic disability legislation. Advocacy groups can leverage Australia's international commitments to push for legislative changes that align with CRPD principles. The World Health Organization has taken up some elements of the CRPD in developing guidance materials.
Informing Policy Development: Government policies affecting people with lived experience can be measured against CRPD standards, creating accountability even without direct legal enforcement. This includes in shifts from medical to social models of disability and appropriate service provision, better accessibility standards and the elimination of coercion through policy measures. Ultimately, the CRPD offers a roadmap for inclusive policy development across all sectors.
Guiding Statutory Interpretation: While not directly enforceable, courts may reference the CRPD when interpreting ambiguous provisions in domestic legislation. The Teoh case established that ratification creates a "legitimate expectation" that decision-makers will consider treaty obligations, potentially influencing how mental health laws and other relevant legislation are interpreted.
Supporting Systemic Advocacy: The CRPD provides a powerful framework for systemic advocacy, offering internationally-recognised language and concepts that strengthen calls for change. It elevates local advocacy by connecting it to global human rights standards.
There are still important ways international human rights law such as the CRPD can be used; we just need to be aware of where it is most useful.
Moving Forward
Australia's selective approach to incorporating international human rights obligations means that realising CRPD rights requires ongoing advocacy rather than over reliance on court enforcement. The greatest impact of the CRPD may be in providing a common language and vision for disability rights that shapes law reform, policy development, and societal attitudes over time.
While individuals cannot directly enforce CRPD rights in Australian courts, the Convention's influence on mental health reforms, law, and the shift towards psychosocial supports services rather than exclusively clinical services is positive. For those committed to disability rights in Australia, the CRPD remains an essential instrument – not as a directly enforceable legal tool, but as a powerful platform for advocating the legislative and policy changes necessary to fulfill Australia's promise of equality and inclusion for all people.
Take Home Messages
📜 The CRPD Cannot Be Directly Enforced by Individuals in Australian Courts
⚖️ Mental Health Legislation Has a Complex Relationship with Human Rights
💪 The CRPD Remains Powerful for Systemic Change Despite Enforcement Limitations
Learn more?
The Australian Mental Health Law: A Practical Introduction course provides a more in-depth introduction to mental health law in Australia.
[1] Ratification is the formal process by which a country officially approves and commits to an international treaty. It signals a binding legal obligation to implement the treaty's provisions under international law, though enforcement mechanisms vary depending on domestic legal systems.
[2] Chris Maylea provides an account of this here: Maylea, Christopher, ‘Does New Mental Health Legislation in Victoria, Australia, Advance Human Rights?’ (2023) 25(1) Health and Human Rights 149, <https://www.hhrjournal.org/2023/04/03/does-new-mental-health-legislation-in-victoria-australia-advance-human-rights/>
[3] Civil and political rights protect individual freedoms and political participation (like free speech and voting), while economic and social rights ensure basic needs and well-being (like healthcare and education). The former typically require government restraint; the latter often require active government provision of resources.
