The UN, business and human rights

03 March 2012 By Lawyers Weekly

Alarmist assertions about the operation of the Victorian Charter of Human Rights

should have no weight in this year’s national consultation on human rights, says Philip Lynch

As the national debate on a human rights act gains momentum, it is time to look to the evidence and draw some conclusions from the operation of the Victorian Charter of Rights after two years.


Critics of the Victorian Charter of Human Rights have abjectly failed in their predictions of a flood of litigation, the transfer of power from Parliament to judges, or the end of democracy. The charter is being used to improve lives.

Far from a tidal wave, the flow of cases has been barely a trickle. Every case litigated under the charter was also brought on non-charter grounds. The myth that charters of rights create a lawyers’ picnic is unsubstantiated. With almost no exceptions, charter cases for disadvantaged Victorians are run pro bono.

The Victorian Charter of Human Rights (the Victorian Charter) has not shifted power to the judiciary. Con­tentious social policy issues, such as same sex marriage, abortion and access to IVF, have been determined by Parliament.

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Far from threatening democracy, the Victorian Charter entrenches democratic values such as free expression, peaceful assembly and public participation. It does not give courts the power to strike down legislation, but merely to send a law back to Parliament for reconsideration. Parliament can respond as it sees fit.

The most recent anti-charter tactic is to hysterically highlight any misconceived charter case, regardless of its outcome. You won’t read it in the anti-charter commentary, but the attempt by underworld figure Carl Williams to delay his criminal prosecution because his “lawyer of choice”, Peter Faris, was not available on the court dates fixed was quickly dismissed.

Channel 9’s reliance on the right to freedom of expression in its appeal against the suppression of Underbelly was similarly rejected. So, too, was a doctor’s reliance on the presumption of innocence in contesting his deregistration following charges of rape.

The charter’s impact in the courtroom to date is negligible. Far from being a failure, that is how it should be. The Victorian Charter minimises litigation by requiring that human rights are taken into account by Parliament and public services when developing policy and delivering services.

Outside the courtroom, however, the Victorian Char­ter is being used to address disadvantage and promote dignity – a fact conveniently ignored by charter critics.

You won’t have read, for example, that the charter prevented the eviction of a single mother and her kids from public housing into homelessness or that it assisted an elderly woman with brain injury to access critical medical assistance.

You’re unlikely to have heard that a 19-year-old woman with cerebral palsy relied on the charter to obtain support services and case management. And you won’t have read that, just a few weeks ago, children with autism were deemed eligible for disability support services after their advocates invoked the Victorian Charter.

Announcing an additional $2.75 million in support, the Community Services Minister, Lisa Neville, said: “This will make a major difference to the lives of many Victorian families facing the challenge of raising a child with an autism spectrum disorder.”

These are all common-sense decisions in real-life cases which show how the charter can improve lives and promote fundamentally Australian values such as freedom, respect, dignity and a fair go. Of course, the charter is not a panacea for disadvantage in Victoria and the State Government still has some way to go if the charter is to truly improve accountability and embed a culture of rights and respect.

For starters, the Government should spend less money on defending human rights claims and denying charter obligations, and more on public sector education and community


In the longer term, the charter should be amended to enshrine not only civil and political rights, but also the economic and social rights – such as health, housing and education – that are necessary for all people to participate fully in our community.

The UN, business and human rights
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