Section 27(2) of the Human Rights Act 2004 (ACT) says that:
Aboriginal and Torres Strait Islander peoples hold distinct cultural rights and must not be denied the right—
(a) to maintain, control, protect and develop their—
(i) cultural heritage and distinctive spiritual practices, observances, beliefs and teachings; and
(ii) languages and knowledge; and
(iii) kinship ties; and
(b) to have their material and economic relationships with the land and waters and other resources with which they have a connection under traditional laws and customs recognised and valued.
Note: Under the Act, all rights may be subject to reasonable limits (section 28). The nature of the right is relevant when considering what is reasonable.
This factsheet is not intended to be a substitute for legal advice.
This section focuses on the distinct rights of Aboriginal and Torres Strait Islander peoples in relation to their ancestral lands, cultural heritage, traditional languages and knowledge and natural resources. It reflects the necessary and long overdue understanding of the culture of Aboriginal and Torres Strait Islander peoples as essential to the distinctive character of Australia as a nation.
This section is based on Article 27 of the International Covenant on Civil and Political Rights (ICCPR), and Articles 25 and 31 of the UN Declaration on the Rights of Indigenous Peoples (UNDRIP). Australia is a party to the ICCPR, and has formally expressed its support for UNDRIP. This section also draws from section 19(2) of the Charter of Human Rights and Responsibilities Act 2006 (VIC).
This new right is not intended to change current arrangements dealing with intellectual property or land rights, which will continue to be dealt with under existing laws. Rather, the enjoyment of these cultural rights may include, for example, a way of life associated with land, and the use of resources. This might include traditional activities such as hunting and fishing, or carrying out cultural practices on lands that are protected (for example in national parks).
These rights may be used by ACT Courts and Tribunals in interpreting laws, and where legislation is incompatible with s 27(2) (if it can’t be interpreted to be consistent with the right), the ACT Supreme Court may issue a ‘declaration of incompatibility’. The right also creates expectations and positive obligations for consideration of the cultural rights of Aboriginal and Torres Strait Islanders peoples by the Government and Legislative Assembly. In particular, ACT Government agencies and other public authorities must act and make decisions consistently with this right.
As a new right, s 27(2) has not yet been considered by the ACT Courts and Tribunals, but similar cultural rights have been considered in other Australian jurisdictions, which may reveal how s 27(2) can be used:
We can gain a further idea of how s 27(2) might be applied by looking at relevant international cases about cultural rights of minority groups from regional human rights regimes, and the UN Human Rights Committee.
The actions of public authorities can both promote and limit rights. Section 27(2) could be engaged by activities that:Limit or prohibit communication in an Indigenous language;