What the Act says
This section is based on:
- Article 27 of the International Covenant on Civil and Political Rights, which Australia ratified in 1980; and
- Articles 8, 25, 29 and 31 of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), for which Australia announced support in 2009.
The Human Rights Act also protects general cultural rights under section 27.
Scope of the right
Firstly, section 28 recognises that Aboriginal peoples and Torres Strait Islander peoples have distinct cultural rights.
Secondly, section 28 recognises the rights of Aboriginal peoples and Torres Strait Islander peoples to live their lives as an Aboriginal or Torres Strait Islander person, free to practise their culture. They must not be denied this right, either individually or together with other members of their community:
- to enjoy, maintain, control, protect and develop their identity and culture
- to enjoy, maintain, control, protect and develop their language and traditional cultural expression
- to ensure, maintain, control, protect and develop their kinship ties
- to maintain and strengthen their distinctive spiritual relationship with their traditionally owned or otherwise occupied and used lands, territories, waters and coastal seas and other resources, and to uphold their responsibilities to future generations in this regard (Article 25 of UNDRIP)
- to ensure the conservation and protection of the environment and the productive capacity of their land, territories and resources (Article 29 of UNDRIP).
Practising culture includes the freedom to teach traditional knowledge, cultural practices and beliefs to their children. Protection of identity is unique to section 28, and is not referred to in the general cultural rights under section 27.
Thirdly, section 28 provides that Aboriginal peoples and Torres Strait Islander peoples have the right not to be subjected to forced assimilation or destruction of culture. (Article 8 of the UNDRIP).
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.
Section 107 of the Human Rights Act 2019 provides that nothing in the Act affects native title rights and interests.
Case examples
Aboriginal peoples and Torres Strait Islander peoples are advised that these examples contain sensitive material, including references to deceased First Nations persons and details from a coronial inquest. This content may be distressing and may bring up sadness, grief, or trauma. We encourage readers to take care when engaging with this information and to seek support if needed.
Cultural rights supported by Aboriginal Community Controlled Health Organisation
This inquest investigated the deaths of 3 young Aboriginal women from the same remote community in Queensland as a result of rheumatic heart disease. The issues for the coroner included the adequacy of health services and prevention strategies in the community for rheumatic heart disease.
The coroner acknowledged concerns raised by the community regarding cultural safety at the health services and made recommendations to address these. The findings outline how cultural rights are preserved by the existence of an Aboriginal Community Controlled Health Organisation in the community, including because it supports community identity by employing locals, ensures observance of language and cultural expression, recognises kinship ties and how those relationships may be impacted, and is governed by a predominantly First Nations Board of Directors and CEO, some of whom have close cultural connections to the community.
RHD cluster inquest (Findings of inquest, Coroners Court of Queensland, 30 June 2023)
Full case note for Inquest into RHD Doomadgee Cluster (PDF File, 299.9 KB)
Harm to cultural rights by mining activities not justified
In this case, the Land Court of Queensland recommended that the mining lease and environmental authority for a coal mine be refused on several grounds, including that limitations on human rights as a result of climate change could not be justified.
The effects of climate change would have a profound impact on the cultural rights of Aboriginal peoples and Torres Strait Islander peoples and, for people who would be displaced from their Country, the survival of their culture was at risk. The impacts of climate change and displacement would also limit the right to privacy and home, and the right to enjoy human rights equally.
The court was not persuaded that the limits on human rights identified were demonstrably justified, even taking into account the economic benefit and supply of thermal coal in South-East Asia.
Waratah Coal Pty Ltd v Youth Verdict Ltd & Ors (No 6) [2022] QLC 21 (25 November 2022)
Cultural rights support the taking of evidence on Country
Objections to a mining lease in Queensland included the impact it would have on Aboriginal peoples and Torres Strait Islander peoples. The objectors proposed the Land Court take on Country evidence from 4 First Nations witnesses. In agreeing to make such an order, the court acknowledged that it is unlawful for the court to conduct a hearing in a way that was incompatible with human rights. Refusing the witnesses’ request would limit their ability to enjoy and maintain their cultural heritage, specifically the way traditional knowledge is imparted, as protected by section 28(2)(a) of the Human Rights Act 2019
On Country evidence also respected the collective nature of these rights and would ensure the Court received the best evidence from First Nations witnesses. The increased inconvenience and cost of litigation this would cause did not justify the limitation of these rights if the witnesses were confined to written statements.
Waratah Coal Pty Ltd v Youth Verdict Ltd & Ors [2022] QLC 4 (18 March 2022).
This information is not intended to be a substitute for legal advice.