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Realizing Human Rights in Clinical Practice and Service Delivery to Persons with Cognitive Impairment who Engage in Behaviours of Concern 1

2010; Taylor & Francis; Volume: 17; Issue: 2 Linguagem: Inglês

10.1080/13218710903566920

1934-1687

Phillip French, Jeffrey Chan, Rod Carracher,

Elder Abuse and Neglect

Abstract Recent national and international legal developments have intensified the need for clinicians and service providers to understand and apply human rights in clinical practice and service delivery to persons with cognitive impairment who engage in behaviours of concern. Treatment and service interventions must now be subordinated to even more explicit human rights-related legal and ethical constraints and also to affirmative human rights-related objectives. The ability of clinicians and providers to engage in competent human rights analysis is a necessary methodological implication of this paradigm shift. In this paper we elaborate a formative method of human rights analysis that is being developed to assist the Victorian Office of the Senior Practitioner to apply human rights standards recognized under the Victorian Charter of Human Rights and Responsibilities to persons with cognitive impairment who engage in behaviours of concern. This approach relies significantly upon the CRPD as an interpretive aid to enliven Charter rights to specific human rights concerns faced by persons with disability. Although developed in a specific statutory and organizational context, this model has potential for broader application. Key words: behaviours of concerncognitive impairmentdisabilityConvention on the Rights of Persons with Disabilitieshuman rightshuman rights analysisVictorian Charter of Human Rights and Responsibilities Notes 1. This article has been developed from a paper delivered at 'Risks v Rights', the 28th Annual Congress of the Australian and New Zealand Association of Psychiatry, Psychology and Law (NSW), 23–26 October 2008. 2. For the purpose of this discussion we shall regard the International Bill of Rights as the original formulation. It is constituted by the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights (ICCPR), and the International Covenant on Economic Social and Cultural Rights (ICESCR). Under Art 2(1) of the ICCPR and Art 2(2) of the ICESCR, all persons are guaranteed recognition of human rights irrespective of their status. This includes persons with disability, who are understood to fall within the equal protection guarantee afforded persons of "other status" to those groups specifically enumerated. 3. See further: Rosemary Kayess and Phillip French, 'Out of Darkness into Light? Introducing the Convention on the Rights of Persons with Disabilities' (2008) 8:1 Human Rights Law Review 1, 12ff, and Theresa Degener and Gerard Quinn, Human Rights and Disability: The Current and Future Potential of United Nations Human Rights Instruments in the Context of Disability, 2002, HR/PUB/02, 1ff. 4. For the purpose of this discussion we loosely define "behaviours of concern" to be behaviours that pose a risk of serious harm to self and others, and that challenge the capacity of the service system to provide positive support. 5. As evidence of this we note recent or current inquiries in three Australian states that examine how human rights and legal protections are to be applied to this population group; see further, Victorian Law Reform Commission, People with Intellectual Disabilities at Risk: A Legal Framework for Compulsory Care: Report, Victorian Government Printer, November, 2003; WJ Carter, Report to Honourable Warren Pitt MP Minister for Communities, Disability Services and Seniors: Challenging Behaviour and Disability: A Targeted Response, Disability Services Queensland, July 2006; NSW Law Reform Commission, People with cognitive and mental health impairments in the criminal justice system (reference date September 2007; expanded July 2008; forthcoming). 6. Charter of Human Rights and Responsibilities Act 2006 (Vic); Human Rights Act 2004 (ACT). 7. The Tasmanian government is currently considering the question following the release of Tasmania Law Reform Institute, A Charter of Rights for Tasmania, Report No 10, October, 2007; The Western Australian government is currently considering the question following the release of Government of Western Australia, Report of the Consultation Committee for a Proposed WA Human Rights Act, November, 2007. The Australian government has initiated a national consultation to consider the question; see further < http://www.humanrightsconsult ation.gov. au/www/nhrcc/nhrcc.nsf> accessed 9 June 2009. 8. Disability Act 2006 (Vic): especially Part 3: Division 5: Senior Practitioner; Part 7: Restrictive Practices and Part 8: Compulsory Treatment. 9. Disability Services and Other Legislation Amendment Act 2008 (Qld). This Act amends the Disability Services Act 2006 (Qld) and the Guardianship and Administration Act 2000 (Qld) to provide greater regulation of restrictive practices for persons with "challenging behaviour". These amendments commenced on 1 July 2008. 10. Detailed analysis of these measures is beyond the scope of this paper. However, it should be noted that some commentators argue that any form of such restriction or compulsion is a human right violation. According to this analysis these measures would be more evidence of the problem, rather than its solution: see further Tina Minkowitz, 'The United Nations Convention on the Rights of Persons with Disabilities and the Right to be Free from Non-Consensual Psychiatric Interventions' (2007) 34(2) Syracuse Journal of International Law and Commerce 405; Amita Dhanda, 'Legal Capacity in the Disability Rights Convention: Stranglehold of the Past or Lodestar for the Future?' (2007) 34(2) Syracuse Journal of International Law and Commerce 429. 11. In fact, this engagement was escalating throughout the CRPD negotiation process, and it was provided with particular impetus by the United Nations Commission on Human Rights Resolution 200/51 (25 April 2000) which, inter alia, (par 11) "Invites all the human rights treaty monitoring bodies to respond positively to its invitation to monitor the compliance of States with their commitments under the relevant human rights instruments in order to ensure full enjoyment of those rights by persons with disability, and urges Governments to cover fully the question of the human rights of persons with disabilities in complying with reporting obligations under the relevant United Nations human rights instruments"; and (par 12) "Invites all special rapporteurs, in carrying out their mandates, to take into account the situation and human rights of persons with disabilities." 12. United Nations General Assembly, Torture and other cruel, inhuman or degrading treatment or punishment; Interim report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, A/63/175 at paras 37–76. 13. Sometimes referred to as the "multi-track" or "twin-track" or "mainstreaming" approach because it relies not only upon a vertical implementation and monitoring strategy arising from the CRPD obligations directly, but also upon a horizontal implementation and monitoring strategy arising from the application of other treaty obligations specifically to persons with disability; see further United Nations General Assembly, Human Rights Council, Seventh Session, Report of the United Nations High Commissioner for Human Rights on progress in the implementation of the recommendations contained in the study on the human rights of persons with disabilities, A/HRC/7/61, 16 January 2008 especially at paras 6–7. 14. Under Art 34 of the CRPD, a Committee on the Rights of Persons with Disabilities is established. The Committee is initially comprised of 12, and ultimately 18, experts who serve in a personal capacity. The role of the Committee is to monitor and advise on the implementation of the CRPD at the international level by receiving and considering State Reports and formulating and publishing General Comments. Under the CRPD Optional Protocol the Committee may also receive and adjudicate individual communications (complaints) alleging CRPD right violations, and conduct inquiries into gross or systemic violations of CRPD rights. The initial members of the Treaty Body were elected at the First Conference of State Parties, which was held in November 2008. They take Office from 1 January 2009. 15. See generally Address of Hon Robert McClelland, MP, Attorney-General for Australia (Protecting Human Rights Conference, Melbourne Law School, 3 October 2008) < http://www.attorney general.gov.au/www/ministers/robertmc. nsf/Page/Speeches_2008_3October2008-Protecting Human RightsConference> accessed 9 June 2009. 16. Australia has also acceded to the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination Against Women and it has indicated an intention to specifically associate itself with the United Nations Declaration on the Rights of Indigenous Peoples. 17. In fairness, it ought to be noted that, contrary to its general stance on human rights, the former Australian government, after initially expressing opposition to the development of the CRPD, became an active and constructive participant in negotiations. Prior to the general election, it had also indicated an intention to ratify the CRPD following consultation with the states and territories; see further Phillip French, Rosemary Kayess, and Robin Banks, Report to the Human Rights and Equal Opportunity Commission on the Workshop on Promoting the Ratification and Implementation of the Convention on the Rights of Persons Disabilities in Australia 27–28 June 2007 (Public Interest Advocacy Centre for the Human Rights and Equal Opportunity Commission) (unpublished, available at < http://www. hreoc.gov.au/disabilityrights> accessed 9 June 2009. 18. Following submission of this article for publication the Australian Government acceded to the Optional Protocol to the CRPD on 21 August 2009, and it entered into force with respect to Australia on 20 September 2009. 19. McClelland (n 16). Australia signed the CAT Optional Protocol on 16 May 2009. 20. Hon Robert McClelland, MP, Attorney General for Australia, Invitation to United Nations Human Rights Experts (Media Release, 7 August 2008) < http://www. attorneygeneral.gov.au/www/ministers/robertmc.nsf/Page/Speeches_2008_7August 2008-StrengtheningHumanRightsandthe RuleofLaw> accessed 9 June 2009. 21. Australia's ratification or accession to an international treaty does not incorporate the terms of the treaty into Australian law. For that to occur, with very limited exceptions, the Australian Parliament must specifically legislate to incorporate the obligation: see generally, Minister of State for Immigration & Ethnic Affairs v Ah Hin Teoh [1985] HCA 20 per Mason CJ and Deane J at 25ff, with whom Gaudron J agreed on this point at 3; Toohey J at 20; McHugh J at 35ff. 22. Art 2, CRPD Optional Protocol 23. Art 6, CRPD Optional Protocol 24. General Comment No 2 of the Committee against Torture par 15 (CAT/C/GC/2); see also Interim report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment (n 13). For progress towards implementation of the CAT Optional Protocol in Australia see: Richard Harding and Neil Morgan, Implementing the Optional Protocol to the Convention against Torture: Options for Australia (Australian Human Rights Commission, 2008) available at: < http://www.hreoc. gov.au/human_rights/publications/opcat/opcat.pdf> accessed 9 June 2009. 25. Art 21, CAT. 26. The Special Rapporteur on Torture's report is a first example of such scrutiny: (n 12). 27. Minkowitz (n 10); Dhanda (n 10). 28. See, for example, a recent statement by Louise Arbour, United Nations High Commissioner for Human Rights to the 8th Session of the Human Rights Council on 6 June 2008 in which she said: "Just one example of this change from a passive/charity model to a rights-based model is the Convention's affirmation that persons with disabilities enjoy legal capacity on an equal basis with others. Even today, persons with disabilities are robbed of their capacity to buy and sell property, to make decisions on inheritance, to choose medical treatment or to refuse to enter institutions. Guardians, even where properly appointed, make decisions in the name of the individual which are not in these individual's best interests. The supported decision-making model required by the Convention affirms the legal capacity to act of persons with disabilities and ensures that people are always at the centre of the decisions affecting their lives even if they might need support to take decisions or make decisions heard in some cases." < http://www.unhchr.ch/huricane/huricane.nsf/view01/1370BB1A2C13E7F0C125746000 27A971?opendocument> accessed 9 June 2009; Bell J recent decision in Kracke v Mental Health Review Board & Ors (General) [2009] VCAT 646 (revised 21 May 2009) is a salutary example of this. 29. This work is being undertaken by the Office of the Senior Practitioner, Victorian Department of Human Services. The views expressed in this article are, however, entirely our own, and should not be attributed to the agency. 30. Charter of Human Rights and Responsibilities Act 2006 (Vic). The Charter is based upon what is sometimes conceptualized as the dialogue model for incorporating human rights into domestic law, which preserves parliamentary sovereignty. This is because the Charter does not empower courts to strike down a law of the Victorian Parliament. Instead the Charter empowers the Victorian Supreme Court to issue a declaration that a statutory provision cannot be interpreted consistently with human rights. This declaration is then referred to the Attorney General who, in turn, refers it to the Minister responsible for the statutory provision. The Minister responsible must then table the declaration and their response in both houses of the Victorian Parliament within six months. This process causes the Parliament and the public to critically debate the statutory provision. However, there is no legal obligation on the Parliament to change the provision, and the Parliament has the power to expressly declare that a statutory provision has effect despite being incompatible with a human right. See further on the "dialogue model" F. Klug, 'The Long Road to Human Rights Compliance', (2006) 57(1) Northern Ireland Legal Quarterly, Special Issue: Human Rights and Equality 185–202. 31. Pamela Tate, A Practical Introduction to the Charter of Human Rights and Responsibilities, Solicitor General Victoria, 29 March 2007, 3 (on file with author). 32. Public authorities are defined in s 4 of the Charter to be: public official; an entity established by a statutory provision that has functions of a public nature; an entity whose functions are or include functions of a public nature, when it is exercising those functions on behalf of the state or a public authority; Victoria Police; a Council; a Minister; and members of a Parliamentary Committee when the Committee is acting in an administrative capacity. 33. It does so by making it unlawful for a public authority to act in a way that is incompatible with human rights or to fail to give proper consideration to a relevant human right when a decision is made: s 38(1) Charter of Human Rights and Responsibilities Act 2006 (Vic). 34. Civil and political rights are "negative" in the sense that they operate as a constraint on the exercise of power. The term "negative rights" was coined by Isaiah Berlin in his essay 'Two Concepts of Liberty' in Isaiah Berlin, Four Essays on Liberty (Oxford University Press, London 1969); Karel Vasak has categorized negative rights as first generation rights: K Vasak, 'Human Rights: A Thirty-Year Struggle: the Sustained Efforts to give Force of law to the Universal Declaration of Human Rights' (1977) 30(11) UNESCO Courier. 35. The Charter's exception of positive measures from the obligations related to non-discrimination (s 8(4)) is derived from Human Rights Committee General Comment 18: Non-Discrimination, 1989, para 10; also Art 1(4) of the International Convention on the Elimination of All Forms of Racial Discrimination, and Art 4 of the Convention on the Elimination of All Forms of Discrimination Against Women. 36. The Senior Practitioner is established under Part 5, Division 5 of the Disability Act 2006 (Vic). 37. Victorian Law Reform Commission (n 5). 38. Section 23(2)(a) of the Act. 39. The Senior Practitioner's functions are set out in ss 24, 150, 153, 190 and 195 of the Disability Act 2006 (Vic). 40. The Senior Practitioner's powers are set out in ss 27, 150, 191 and 199 of the Disability Act 2006 (Vic). 41. Section 3 of the Disability Act 2006. 42. Sections 140 and 141 of the Disability Act 2006 (Vic) 43. Victorian Government Department of Human Services, Office of the Senior Practitioner Annual Report 2007–2008 (Victorian Department of Human Services, Melbourne, 2008) 17. 44. Section 150 of the Disability Act 2006 45. For example, only service providers that have been approved by the Secretary are authorized to use a restrictive intervention (ss 134 and 135 of the Disability Act 2006), whereas it would appear that no such approval is required for other restrictive interventions (s 150 of the Disability Act 2006). Similarly, a restrictive intervention can only be used if it is included in the person's behaviour management plan and is practised in accordance with that plan (ss 140 and 141 of the Disability Act 2006). This does not appear to be required in relation to other restrictive interventions. 46. To date, only one short-term residential treatment facility has been gazetted; no long-term residential treatment facilities have been gazetted. 47. Subsection 152(2) of the Disability Act 2006: either persons who are subject to a "residential treatment order" made under the Sentencing Act 1991 (Vic), or a "custodial supervision order" made under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, or persons transferred from correctional facilities under s 166 of the Disability Act 2006. 48. Gazetted under s 86 of the Disability Act 2006 (Vic) 49. Section 191(6) of the Disability Act 2006 (Vic) 50. In Kracke (n 28) this issue does not appear to have been explicitly considered. The analysis tended to focus on the scope and content of the duty to "respect" Mr Kracke's human rights (that is, the "non-interference" or "negative" dimension), rather than upon what was required to affirmatively protect and fulfil his rights. 51. United Nations Human Rights Committee, General Comment No 31: Nature of the General Legal Obligation Imposed on States Parties to the Covenant CCPR/C/21/Rev 1/Add.13, 26 May 2004. 52. Teoh (n 21) Kracke (n 28) para 38. 53. This analysis is based upon United Nations Human Rights Committee General Comment No 6: Right to Life 27 July 1982. 54. Section 3. 55. United Nations Human Rights Committee General Comment No 31, Nature of the General Legal Obligation Imposed on States Parties to the Covenant, 26 May 2004 HRI/GEN/1/Rev.9 (Vol. I), 27 May 2008, 243. 56. Economic, social, and cultural rights are subject to the standard of "progressive realisation". This does not require nations to immediately fulfil these rights. However, the standard does require nations to work towards the fulfilment of these rights as quickly as possible, using the maximum resources at their disposal. Nations must also meet minimum essential levels of the right and avoid deliberately regressive measures. These issues do not yet arise under the Charter because, as noted, it is limited to civil and political rights at this stage. 57. Section 4. 58. See generally, Daniel Kahneman, Amos Tversky and Paul Slovic (eds) Judgment under Uncertainty: Heuristics & Biases (Cambridge University Press, Cambridge 1982). 59. See generally, TS Kuhn, The Structure of Scientific Revolutions (2nd edn University of Chicago Press, Chicago 1970). 60. This analysis is based on that proposed in Ahmed Sabet v Medical Practitioner's Board of Victoria [2008] VSC 346 (12 September 2008) per Hollingworth J at para 108. In Kracke (n 28), Bell J determined that for the judiciary there are four stages of analysis for interpreting legislation against the Charter: "engagement" (which conflates the engagement and limitation questions outlined here); "justification" (which is broadly equivalent to the "reasonableness" question outlined here); "reinterpretation" (which involves the application of the "special interpretive principle" set out in s 32(1) of the Charter requiring legislation to be interpreted consistently with human rights wherever possible); and, only in the case of the Supreme Court, declaring inconsistency. With respect, at least with regard to administrative action by executive government, we do not think it is helpful to conflate the engagement and limitation questions. One unfortunate effect of this may be to confine the analysis to non-interference with human rights, rather than to their protection and fulfilment. 61. See further I Merali and V Oosterveld (eds), Giving Meaning to Economic, Social and Cultural Rights (University of Pennsylvannia Press, Philadephia 2001). 62. Kracke (n 28) para 97. 63. Hon Robert Hulls, MP, Attorney General for Victoria, Charter of Human Rights and Responsibilities Bill; Second Reading Speech, Legislative Assembly, Hansard, 4 May 2006. 64. These divisions include Disability Services (which provides directly and funds a wide range of specialist services for persons with disability), the Senior Practitioner, and the Disability Services Commissioner. 65. It is not yet clear if non-government organizations funded by the Victorian government may be reliably characterized as "public authorities" bound by the Charter (on the basis that they are publicly funded and are exercising functions of a public nature under contract with government). The Victorian Department of Human Services has adopted the policy position that they are so bound: see also in support of this interpretation, Victorian Equal Opportunity and Human Rights Commission, 'The Meaning of "Public Authority" under the Charter' (undated) (on file with author). However, apart from being counter-intuitive, on the basis of the current comparative case law from the United Kingdom, it would appear that this position is far from certain: see for example, YL (by her litigation friend the Official Solicitor) v Birmingham City Council & Ors [2007] UKHL 27; see also Johnson v London Borough of Havering [2007] EWCA Civ 26. 66. Vriend v. Alberta [1998] 1 S.C.R. 493. 67. In Kracke (n 28), Bell J frames this stage of the analysis as the "justification stage". 68. This would appear to be the intention of the use of the words "subject under law" in s 7(2) of the Charter. 69. Kracke (n 28) para 168. 70. This implication arises from General Interpretive Principle 8 of the Siracusa Principles on the Limitation and Derogation of Provisions in the International Covenant on Civil and Political Rights; United Nations Economic and Social Council, United Nations Sub-Commission on Prevention of Discrimination and Protection of Minorities, Annex UN Doc E/CN.4/1984/4 (1984) which requires that "Every limitation imposed shall be subject to the possibility of challenge to and to remedy against its abusive application." 71. (2006) 2 AC307 at 34, cited in Kracke (n 28) 168. 72. [1985] DLR (4th) 503 at 506. 73. Section 7(3) of the Charter. 74. Victorian Law Reform Commission (n 5). 75. Such detention would be subject to judicial review. 76. Bell J, s 7(2) of the Charter; this test derives from a decision of the Canadian Supreme Court in R v. Oakes [1986] 1 S.C.R. 103, see in particular Dickson CJ at 138–139. In Kracke (n 28), Bell J referred to these requirements as the legality and the proportionality requirement respectively. 77. In Kracke (n 28), Bell J expresses this point by describing the Charter as "fundamental law": at para 22. 78. These five factors are based on s 36 of the South African Bill of Rights. 79. Section 7(2)(a) 80. Section 7(2)(b) 81. Section 7(2)(c) 82. Section 7(2)(d) 83. Section 7(2)(e) 84. The Court appears to have adopted a linear approach to the interrogation of these factors in Sabet (n 60) para 187 in particular. 85. Sabet (n 60). 86. Kracke (n 28). 87. Kracke (n 28) para 135. 88. Oakes (note 76). 89. S v Makwanyane 1995 (3) SA 391 [104]. 90. Moonen v Film and Literature Board of Review (Moonen (no.1) [2000] 2 NZLR 9 91. R v Home Secretary; ex parte Daly [2001] 2 AC 532. See further, J McBride, 'Proportionality and the European Convention on Human Rights' in E Ellis (ed), The Principle of Proportionality in the Laws of Europe (1999) and S Choudhry, 'So What is the Real Legacy of Oakes? Two Decades of Proportionality Analysis under the Canadian Charter's Section 1' (2006) 34 (No. 2d) Supreme Court Law Review 501. 92. In Sabet, the Court said in obiter "although many of the international cases to which I was taken apply general notions of proportionality … the Charter requires a Victorian court to have regard to the specific factors mentioned in s 7(2), not to such general concepts": (n 60) para 187. With respect, it is not clear what the intellectual structure of these tests is if it is not one of proportionality, so we would argue that the comparative jurisprudence remains an important guide to the interpretation and application of these factors. 93. Kracke (n 28) paras 137–142. 94. Ibid. para 140. 95. At various points in his judgement in Kracke (ibid.), Bell J also asserts that this is the case. 96. Australia lodged reservations to ICCPR Arts 10, 14 and 20 at the time of its ratification (13 August 1980). These reservations relate to the separation of accused persons from convicted offenders, the separation of accused and convicted juveniles from adults; provision of compensation for miscarriage of justice; and legislative prohibition of war propaganda and advocacy of national, racial, or religious hatred. 97. United Nations, Treaty Series, Vol 1155, 331; See also United Nations Human Rights Committee, General Comment No. 31 Nature of the General Legal Obligation Imposed on States Parties to the Covenant CCPR/C/21/Rev.1/Add13. 98. This would also appear to be an implication of the High Court's decision in Teoh's case (n 21). 99. Kracke (n 28) paras 541–577. 100. UN Commission on Human Rights, The Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights, 28 September 1984 (E/CN.4/1985/4) < http://www.unhcr.org/refworld/docid/4672bc122. html> accessed 23 February 2009. 101. For background to the Siracusa Principles, see JF Hartman 'Working Paper for the Committee of Experts on the Article Derogation Provision' (1985) 7 Human Rights Quarterly 89. 102. In contrast, the principles are frequently applied to human right limitations in public health: see further LO Gostin, Public Health Law: Power, Duty and Restraint (University of California Press, Berkely and Los Angeles, CA, 2000). 103. Kracke (n 28) 143–148. 104. Cf. under the Canadian Charter, R v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295. 105. For example, Brooks v. Safeway Canada, [1989] 1 S.C.R. 1219. 106. For example, Ford v. Quebec (Attorney General), [1988] 2 S.C.R. 712. 107. For example Vriend (n 66). 108. Kracke (n 28) paras 149–152. 109. For example Ford v. Quebec (Attorney-General), [1988] 2 S.C.R. 712; Ramsden v. Peterborough (City), [1993] 2 S.C.R. 1084. 110. The Preamble of the Charter affirms that human rights are essential to a society that, inter alia, respects the rule of law. 111. Cf. Vriend (n 66) (discrimination is a form of arbitrary conduct). 112. Cf. Moonen v Flim and Literature Board of Review (Moonen No 1) [2000] 2 NZLR 9, per Tipping J: "A sledgehammer should not be used to crack a nut." 113. For a discussion as to the redundancy of this aspect of the test under the Canadian Charter, see PW Hogg, Constitutional Law of Canada (Thomson Canada Limited, Toronto 2003) 817. 114. Kracke (n 28) paras 153–155. 115. Cf. R v. Morgentaler [1988] 1 S.C.R. 30. 116. (n 72). 117. RJR MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199. 118. Kracke (n 28) paras 156–161. 119. R. v. Edwards Books and Art Ltd. [1986] 2 S.C.R. 713. 120. In Oakes (n 78), the test requires the impairment of the right "as little as possible", para 70. 121. See further Choudhry (n 91). 122. This was the issue in RJR MacDonald (n 117). 123. Cf. Vriend (n 66). 124. The Charter does not provide any "freestanding" right of action for breach of a human right. However, if there is an independent basis in law for the action, then unlawful conduct under the Charter may be raised in those proceedings as evidence of the unlawfulness of the primary conduct complained of. Apart from Victorian Civil and Administrative Tribunal proceedings under the Disability Act 2006 and the Guardianship and Administration Act 1986, one pre-existing right of action that is likely to accommodate Charter claims is the right of a person affected to seek judicial review of the legality of exercises of power by administrators. The Charter will allow the Victorian Supreme Court to review a decision or conduct of a public authority on two new grounds: acting incompatibly with a human right, and failing to give proper consideration to a relevant human right. The functions and powers of the Senior Practitioner under the Disability Act 2006 could potentially be the subject of an application for judicial review. 125. See (n 21). 126. Section 32(2) of the Charter. In any event, according to a more general principle, an international treaty may be used as an interpretive aid where a statutory provision is ambiguous or unclear: Teoh (n 21). 127. Kracke (n 28) para 202. 128. Kayess and French (n 3) 20. 129. GA Res. 56/168, Resolution on a Comprehensive and Integral International Convention to Promote and Protect the Rights of Persons with Disabilities, 19 December 2001, A/56/583/Add 2. 130. This is particularly so for Arts 5, 8 and 9. 131. Kayess and French (n 3) 32. 132. This model of disability is asserted in Art 1 of the CRPD, which describes persons with disability as including "those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others". For a discussion on the influence of the social model in the development of the CRPD, see further Kayess and French (n 3) 5–12. 133. Ibid. 24 134. Equality and non-discrimination are both cross-cutting principles and obligations to be applied in all aspects of CRPD implementation (Art 3(b) and (e) and Art 5 respectively) and are also peppered through the CRPD specific obligations (for example Art 24(1) (Education); Art 25 chapeau (health) and Article 27(1) (Work and employment). 135. Art 3(e) and Art 5(3) and (4). 136. Article 5 in particular. 137. Article 5(3) and Art 2 "Reasonable Accommodation" (Definitions). 138. Article 3(c) (General principles) and Art 19 (Living independently and being included in the community). 139. Brown v. Board of Education, 347 U.S. 483 (1954) 140. Article 19 (Living independently and being included in the community) and Art 20 (Personal Mobility) respectively.