Last updated 1 December 2020
The Human Rights Act 2019 (Qld) (Human Rights Act) recognises the special importance of human rights for Aboriginal and Torres Strait Islander peoples. Section 28 of the Human Rights Act recognises that Aboriginal and Torres Strait Islander peoples hold distinct cultural rights, which must not be denied or forcibly assimilated or destroyed.
The rights encompassed in s 28 are extensive and include the right to:
- enjoy, maintain, control, protect and develop:
- their identity, cultural heritage, including traditional knowledge, distinctive spiritual practices, observances, beliefs and teachings
- use of language and traditional cultural expressions
- kinship ties
- maintain and strengthen their distinctive spiritual, material and economic relationship with the land, territories, waters, coastal seas and other resources with which they have a connection under tradition or custom
- conserve and protect the environment and productive capacity of land, territories, waters, coastal seas and other resources.
Cultural rights are likely to be interpreted as having greater breadth and significance than the cultural rights protected by s 27 of the Human Rights Act because of the history of colonisation and their unique connection with lands and seas in Queensland.
Cultural rights may be relevant in decisions about bail and other release from custody, child protection decisions including placement and addressing a child’s cultural support needs and in the procedures of the specialist Murri Court. Additionally, economic regulation by a public entity that impacts on the exercise of cultural rights (e.g. rights over fishing) may require consideration of this right.
Nothing in the Human Rights Act, including s 28, affects Native Title rights or interests. Additionally, the Human Rights Act cannot be interpreted to prejudice Native Title rights and interests to the extent they are recognised and protected under Native Title law.
Cultural rights of Aboriginal and Torres Strait Islander peoples will be subject to the general limitation provision in s 13 of the Human Rights Act. This provides human rights may be subject under law to reasonable limits, which are justified in a free and democratic society. See ‘Human Rights may be Limited’ for further explanation.
The cultural rights of Aboriginal and Torres Strait Islander peoples may be engaged:
- during bail applications brought by Aboriginal and Torres Strait Islander peoples, where cultural considerations are relevant to a bail application and refusal of bail decision under the Bail Act 1980 (Qld)
- in the exclusion of an Aboriginal person from special courts such as the Murri Court, which may be inconsistent with both cultural rights and the right to recognition and equality before the law (s 15 Human Rights Act)
- where cultural rights are considered relevant in child protection proceedings (e.g. where an application is brought to return children to the care of their Aboriginal or Torres Strait Islander family member)
- in an application for an exemption under the Anti-Discrimination Act 1991 (Qld) (e.g. to create and advertise a position that can only be taken by Aboriginal and Torres Strait Islander peoples).
Economic regulation may also give rise to cultural rights (e.g. where the Swedish government attempted to regulate the practice of reindeer breeding by ethnic Sami peoples). Similarly, regulation of fishing, land use and other traditionally exercised economic rights, even where those rights have adapted to modern times, are likely to require consideration of cultural rights.
These examples have been adapted from international and Australian cases. They are provided by way of example only, and are not a substitute for legal advice.