Aboriginal Cultural Rights – Quiz

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While the right to self-determination is part of international law, including the Declaration of the Rights of Indigenous Peoples, it is not in the Charter. However, Aboriginal self-determination assists the protection and use of cultural rights.

Find out more about self-determination
or read the Commission’s 2010 report, Indigenous self-determination and the Charter of Human Rights and Responsibilities: A framework for discussion.
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All of the above may involve cultural rights. Aboriginal people have the right to enjoy their identity and culture. This includes access to culturally safe services provided by public authorities (for example, a university or health service). Voting for a community leader may involve the right to identity, and performing a spiritual ceremony could constitute enjoyment of both identity and culture.
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Section 19(2) of the Charter differs from the general right to enjoyment of culture set out in section 19(1). Section 19(2) contains distinct rights for Aboriginal and Torres Strait Islander people. Ahmed’s religious practices would more likely fall under section 19(1). Find out more about section 19(1) of the Charter.
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Colonisation and discriminatory policies have caused the use of Aboriginal languages in Victoria and across Australia to decline to a critical state, threatening their survival. Section 19(2) recognises that Aboriginal people have the right to ‘maintain and use’ their language, meaning public authorities are obliged to act in accordance with the right.

There are more than 38 Aboriginal languages spoken in Victoria. The Victorian Aboriginal Corporation for Languages does important work on the revival and teaching of Koori languages.
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The Charter only applies to public authorities (that is local or state government) and not to privately owned companies. However, the Equal Opportunity Act 2010 makes it against the law for employers to discriminate based on certain characteristics, such as disability, race, age or sexual orientation.

If an employee of a private company feels they are being discriminated against, they may be able to take action under the Equal Opportunity Act. Find out more about how the Commission can help
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No rights are absolute, and certain rights may be limited as a direct consequence of being in custody, for example, freedom of movement or the right to liberty. However, public authorities managing prisoners have a duty to act compatibly with and to give proper consideration to the human rights of prisoners, including the right for Aboriginal people to maintain kinship ties.

So, Aboriginal and Torres Strait Islander people in custody still retain cultural rights, but their rights may be limited where it is reasonable and proportionate in accordance with section 7(2) of the Charter.
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Public authorities (such as government departments or Victoria Police) are required to give proper consideration to human rights and to act compatibly with human rights. This obligation is connected to all powers and functions. The obligation still applies in emergencies and extreme circumstances, such as a flood or bushfire, and needs to happen before making decisions that might limit Charter rights.

However, human rights are not absolute and have to be balanced with other rights and interests. When a public authority (for example a public servant in a government department) is making a decision that could limit human rights, they must consider which rights affected by the decision are relevant, and how the decision will interfere with those rights. Giving proper consideration involves balancing competing rights and interests, and a decision may ultimately limit human rights, as long as it is done in accordance with the Charter.

Example of limiting cultural rights
The fire authority grants a permit so that you can exercise your right to make a fire for cultural purposes during a total fire ban day. However, in the interest of broader safety considerations, your right to make a fire might be limited by the permit, by specifying certain times or places for the fire.
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It is critical that consultation takes place at the start and during the development of projects, policies and programs that have an impact on Aboriginal peoples. Consulting in this way follows the international law principles of self-determination and obtaining the free, prior and informed consent of Indigenous peoples. Aboriginal people might also argue that it is their cultural right to take part in decisions that affect them.
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Public authorities, including local councils, must consider Aboriginal cultural rights when they make decisions that may impact upon Aboriginal peoples’ distinctive relationship with land. Therefore, the Traditional Owners may raise these rights and use them as a tool in their dealings with the council.

Proper consideration of the Charter by the local council involves balancing competing interests, for example, interests of Traditional Owners and the interests of the public as a whole. This may mean that the cultural rights are limited in some way.

The local council might make some kind of compromise and build in a different way or avoid a certain area.

Notably, Aboriginal cultural heritage is protected under the Aboriginal Heritage Act 2006 and the local council would have to comply with the Act in the process of building its offices, which could prevent them building in a way that affects the cultural heritage. If they did not, they might be sanctioned under that Act.
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The Charter says that Aboriginal people ‘must not be denied the right ‘to enjoy their identity’.

You can’t take direct legal action for a breach of the Charter but you can raise it in other types of legal action. Charter rights may be enforced where a decision by a public authority is challenged and is found to be against the law.

The student support officer is an agent of the university, and universities are considered to be public authorities. Therefore, Sarah may be able to take legal action and challenge the decision of the student support officer on the basis that it is against the law.

She could argue that the university did not take into account all relevant considerations, notably, that she is Aboriginal. During the legal process, Sarah’s cultural right to enjoy her identity could be raised. This could lead to a settlement, or a court decision in her favour, allowing access to the tutoring service and meaning Sarah’s cultural right is enforced and upheld.
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