Questioning Law's Capacity

See, eg, more recently Australian Human Rights Commission, Equal before the Law: Towards Disability Justice Strategies (2014); Australian Law Reform Commission (‘ALRC’), Equality, Capacity and Disability in Commonwealth Laws, Report No 124 (2014); NSW Law Reform Commission, People with Cognitive and Mental Health Impairments in the Criminal Justice System: Criminal Responsibility and Consequences, Report No 138 (2013); Senate , Involuntary or Coerced Sterilisation of People with Disabilities in Australia (Senate Community Affairs Committee Secretariat, 2013); Victoria , Inquiry into Access to and Interaction with the Justice System by People with an Intellectual Disability and their Families and Carers: Final Report, Parl Paper No 216 (2013).

ALRC, above n 1.

Convention on the Rights of Persons with Disabilities (‘CRPD’), opened for signature 30 March 2007, 2515 UNTS 3 (entered into force 3 May 2008).

Committee on the Rights of Persons with Disabilities, General Comment No 1 (2014): Article 12: Equal recognition before the law, 11th sess, UN Doc CRPD/C/GC/I (19 May 2014), 3[12]-[13].

Ibid 4 [13].

Children and young persons are another category of individuals who might also be denied legal capacity: see, eg, Secretary, Department of Health and Community Services v JWB (1992) 175 CLR 218, 237 ( Mason CJ Dawson Toohey Gaudron JJ ), approving Gillick v West Norfolk AHA [1986] AC 112, 183–184 (Lord Scarman).

See, eg, Campbell Fiona Kumari , Contours of Ableism: The Production of Disability and Abledness (Palgrave Macmillan, 2009); Shildrick Margrit , Dangerous Discourses of Disability, Subjectivity and Sexuality (Palgrave Macmillan, 2009); Tremain Shelley , ‘On the Subject of Impairment’ in Corker Mairian Shakespeare Tom (eds), Disability/Postmodernity: Embodying Disability Theory (Continuum, 2002) 32.

See, eg, Tremain , above n 7; Tremain Shelley , ‘Foucault, Governmentality, and Critical Disability Theory: An Introduction’ in Tremain Shelley (ed), Foucault and the Government of Disability (The University of Michigan Press, 2005).

See, eg, Carey Alison C , On the Margins of Citizenship: Intellectual Disability and Civil Rights in Twentieth-Century America (Temple University Press, 2009); Carlson Licia , The Faces of Intellectual Disability: Philosophical Reflections (Indiana University Press, 2010); Carlson Licia , ‘Cognitive Ableism and Disability Studies: Feminist Reflections on the History of Mental Retardation’ (2001) 16(4) Hypatia 124; Kittay Eva Feder Carlson Licia (eds), Cognitive Disability and its Challenge to Moral Philosophy (Wiley-Blackwell, 2010).

International Covenant on Civil and Political Rights, opened for signature 19 December 1966, 999 UNTS 171; 1057 UNTS 407 (entered into force 23 March 1976).

Minkowitz Tina , ‘Abolishing Mental Health Laws to Comply with the Convention on the Rights of Persons with Disabilities’ in McSherry Bernadette Weller Penny (eds), Rethinking Rights-Based Mental Health Laws (Bloomsbury, 2010), 151, 160–162; Gooding Piers , ‘Supported Decision-Making: A Rights-Based Disability Concept and its Implications for Mental Health Law’ (2013) 20(3) Psychiatry, Psychology And Law 431.

Beaupert Fleur Steele Linda , Submission No 10 to the Committee on the Rights of Persons with Disabilities, Draft General Comment on Article 12 – on Equal Recognition before the Law, 21 February 2014 <http://www.ohchr.org/EN/HRBodies/CRPD/Pages/DGCArticles12And9.aspx>.

Committee on the Rights of Persons with Disabilities, General Comment No 1 (2014), above n 4.

Ibid 3 [7].

Ibid 3 [9].

Ibid 4 [13].

Ibid 4 [14].

Convention on the Rights of Persons with Disabilities: Declarations and Reservations (Australia), opened for signature 30 March 2007, 2515 UNTS 3 (entered into force 3 May 2008).

ALRC, above n 1, 35–62.

Beaupert Fleur Gooding Piers Steele Linda , Submission to Australian Law Reform Commission, Equality, Capacity and Disability in Commonwealth Laws Australia (DP 81), May 2014 <https://www.academia.edu/10027685/Submission_to_the_Australian_Law_Reform_Commission_Equality_Capacity_and_Disability_in_Commonwealth_Laws_2014_>.

ALRC, above n 1, 11.

Ibid 66.

See, eg, Guardianship and Administration Act 1986 (Vic), ss 42E, 42H, 60AI; Guardianship Act 1987 (NSW), ss 4(a), 46A.

ALRC, above n 1, 81.

Ibid 76. This approach, however, has also been subject to criticism: eg, Centre for Disability Law and Policy (NUI Galway), Submission No 130 to the Australian Law Reform Commission, Equality, Capacity and Disability in Commonwealth Laws Australia (DP 81), (2014), 10 <http://www.alrc.gov.au/inquiries/disability/submissions>.

ALRC, above n 1, 87.

Committee on the Rights of Persons with Disabilities, General Comment No 1 (2014), above n 4, 5 [21].

For example, Perkins Elizabeth , Decision-Making in Mental Health Review Tribunals (Aldershot, 2003) 104–108; Perlin Michael L , ‘Sanism and the law’ (2013) 15(10) AMA Journal of Ethics 13 <journalofethics.ama-assn.org/2013/10/msoc1-1310.html>.

For example, ALRC, above n 1, 268.

ALRC, above n 1, 73.

Committee on the Rights of Persons with Disabilities, General Comment No 1 (2014), above n 4, 4 [15].

ALRC, above n 1, 74.

Beaupert Gooding Steele , above n 20, 4.

Committee on the Rights of Persons with Disabilities, General Comment No 1 (2014), above n 4, 4 [14].

Beaupert Gooding Steele , above n 20, 7.

A similar process (‘circularity in assessing the criterion of mental illness’) was observed to be of concern in relation to Australian mental health tribunal decision-making by a recent Australian Research Council funded study: Carney Terry , Australian Mental Health Tribunals: Space for Fairness, Freedom, Protection & Treatment (Themis Press, 2011), 232.

Committee on the Rights of Persons with Disabilities, General Comment No 1 (2014), above n 4, 6 [25] (emphasis added).

ALRC, above n 1, 280, 288.

Ibid 278.

See Mental Health Act 2014 (WA); Mental Health Act 2014 (Vic).