What does the law say?

The Charter protects the fundamental rights and freedoms of all people in Victoria, including Aboriginal cultural rights. The Charter is fundamentally about the relationship between the Victorian government and the community. It requires that all public authorities in Victoria act compatibly with human rights and consider human rights when they make decisions that affect people.

The Charter considers Aboriginal peoples and culture in two ways.

Firstly, it acknowledges as one of its guiding principles that human rights have a special importance for the Aboriginal people of Victoria, as descendants of Australia’s first people, with their diverse spiritual, social, cultural and economic relationship with their traditional lands and waters.

Secondly, Aboriginal cultural rights are protected under section 19(2) of the Charter which states that Aboriginal persons hold distinct cultural rights and must not be denied the right, with other members of their community –

1. to enjoy their identity and culture
2. to maintain and use their language
3. to maintain their kinship ties
4. to maintain their distinctive spiritual, material and economic relationship with the land and waters and other resources with which they have a connection under traditional laws and customs. 

Aboriginal cultural rights are also protected by international instruments, including the United Nations Declaration on the Rights of Indigenous Peoples.

Consultation

The project team has consulted with public authorities and the Aboriginal community to:

• gather evidence about the use of Aboriginal cultural rights in Victoria
• identify resources that would be most useful for government and community
• feature case studies that highlight the use of Aboriginal cultural rights in practice.

The project will not define what ‘Aboriginal cultural practices’ are to the diverse and unique Aboriginal communities within the State. However, it is important that both public authorities and Aboriginal peoples understand that cultural rights are protected under the Charter and can be used to achieve positive outcomes for Aboriginal Victorians.

Preliminary findings

We feel like we can't be Aboriginal, we can't practice our culture, and we can't be ourselves. We feel like we have to hide inside.
– Community member

The Commission's consultation established that there is a need for, and strong interest in, targeted resources, training and engagement to support and promote Aboriginal cultural rights in Victoria.

Our preliminary findings show:

• a substantial lack of knowledge, understanding and use of Aboriginal cultural rights under section 19(2) of the Charter by both the Victorian Aboriginal community and Victorian public authorities
• fewer than half the community members who completed the survey knew that Aboriginal cultural rights were protected under the Charter
• most survey participants questioned whether section 19(2) has made a difference in practice, noting a lack of awareness and use of Aboriginal cultural rights by public authorities
• community organisations only use section 19(2) of the Charter as an advocacy tool in limited circumstances – in part, due to a lack of understanding about how and when to use it
• most Victorian government departments engage with Aboriginal culture as part of their work but do not refer to or use section 19(2) of the Charter. However, the extent of engagement with section 19(2) depends on the type of public authority and the work it does. In some cases, section 19(2) directly influences the work of public authorities.

The Commission also heard about the great work that the Victorian Aboriginal community and public authorities are already doing to protect and promote Aboriginal culture in Victoria. We hope to share some of these case studies as part of the next phase of the project.

Resources

• Declaration Dialogue Series, Australian Human Rights Commission

• Linking Our Past With Our future: How Cultural Rights Can Help Shape Identity and Build Resilience in Koori Kids 
  By Andrew Jackomos, The Indigenous Law Bulletin

• The Charter of Human Rights and Responsibilities, Section 19 - Right to Protection of Cultural Rights factsheet