The Social Construction of Human Rights Legislation: Interpreting Victoria’s Statutes through their Limitations

Abstract

Interpreting human rights statutes through their objectives encourages their description as empowering instruments with their hortatory language emphasising the potential of each instrument to protect and promote rights. This article examines Victoria’s Equal Opportunity Act 2010 (Vic) and Charter of Rights and Responsibilities Act 2006 (Vic) through a different lens and argues that a focus on their limitations and derogations offers a better understanding of the nature and extent of the human rights protection that each purports to provide. These limitations are no mere peripheral encumbrances and help shape the rights protecting functions of each statute. This article adopts a social constructivist approach to explain how, as socially constructed instruments, the operation of the limitations reveals an ambivalent role for each statute. The design and functionality of each statute, with their self-limiting provisions, means that each acts to sustain as well as challenge the existing power relationships and social arrangements.