Navigating the “Unchartered” Waters of Victorian Mental Health Law Reform

Abstract

With the Charter of Human Rights and Responsibilities Act 2006 (Vic) due for Parliamentary review by 1 October 2011, it is timely to reflect on its impact on Victorian mental health law between 2008 and 2011. From controversial origins, the Charter has been both praised and criticised. Based on the International Covenant for Civil and Political Rights, it protects 20 basic rights. Critics argue that the Charter is politically driven and is largely impotent because it creates no new remedies. Proponents see it as an important and symbolic first step in the eventual enactment of a Constitutional Bill of Rights. Nevertheless, in its current form, it has been used in a number of cases to promote the human rights of patients receiving involuntary treatment under the Mental Health Act 1986 (Vic) and has therefore created important jurisprudential commentary on the interplay between mental health and human rights law in Victoria. The Charter has also provided a much needed impetus to comprehensively review Victoria's out-dated Mental Health Act 1986 (Vic), with the aim of making it compatible with the rights enunciated in the Charter. In November 2010, Victorians elected a new Coalition Government which is less supportive of the Charter. As this article will demonstrate, while the future of the Charter may be uncertain, its legacy to date is not.