Cultural rights

What the Act says

Section 27 of the Human Rights Act 2019 says that:

All persons with a particular cultural, religious, racial or linguistic background must not be denied the right, in community with other persons of that background, to enjoy their culture, to declare and practise their religion and to use their language.

This right is based on Article 27 of the International Covenant on Civil and Political Rights, which Australia ratified in 1980.

The Act also protects the distinct cultural rights of Aboriginal peoples and Torres Strait Islander peoples under section 28. These rights are complemented by freedom of religion (section 20) and expression (section 21).

Scope of the right

This right promotes the right to practise and maintain shared traditions and activities, supporting the survival and development of cultural heritage.

It protects the ability of people from particular cultural, religious, racial or linguistic backgrounds to:

enjoy their culture
profess and practise their religion
use their language
participate effectively in cultural life.

The protection applies to all people with a particular cultural background, whether or not they are part of a minority group. The right to enjoy culture ‘in community with other persons of that background’ is a key aspect of this protection, as cultural practices are often shared and collective.

Internationally, the obligations on the State to ensure cultural rights are not denied extends to taking positive action to prevent private organisations and groups from contravening these rights.

Cultural rights can be limited by public entities, but only where it is reasonable and demonstrably justified in a free and democratic society based on human dignity, equality and freedom.

Learn more about justification and other obligations on public entities to respect human rights.

When this right could be relevant

Section 27 may apply to laws, policies, acts or decisions that:

limit the observance of any religious practices

address discrimination based on race, religion or other cultural attributes

restrict people from declaring or publicly identifying with a particular racial, religious or cultural group

limit or prohibit communication in languages other than English, including the provision of information

prevent people from using their language in community with others

restrict the ability of ethnic groups to engage in cultural practices

limit services or trade on religious holidays

govern cultural or religious practices in secular public education

impose requirements that interferes with cultural practices (for example, wearing clothing that differs from traditional attire)

regulate traditional medical practices

restrict or license the preparation and serving of culturally significant food.

Case examples

Search cases

Refusal to provide phone passcode to police a reasonable excuse

The defendant refused to provide the passcode to his phone to the Queensland Police Service because it would offend his faith to expose photographs of his wife to male police officers. The Court accepted this was a ‘reasonable excuse’ in the circumstances, including having regard to police obligations to give proper consideration to, and act compatibility with human rights protected by the Human Rights Act 2019, including freedom of thought, conscience, religion and belief; cultural rights; and property rights.

Queensland Police Service v Ahmed [2023] QMC 2 (17 March 2023)

Cultural rights protected by revocation of guardianship order (Victoria)

A woman had been moved by her guardian into a residential facility that did not accommodate her cultural and religious needs. The facility lacked staff who spoke her language, understood her beliefs, or prepared food according to her religion. The woman and her family wanted her to live at home with them.

Her advocates argued that the decision was in breach of the Victorian Charter of Human Rights and Responsibilities Act, specifically the rights to protection of families and children, cultural rights, and freedom of religion. The tribunal agreed and revoked the guardianship order, allowing the woman to return to her family home.

(Public Interest Law Clearing House: Submission for Review of the Victorian Charter of Human Rights and Responsibilities Act 2006 (Case Study 77))

This information is not intended to be a substitute for legal advice.