Alternative Law Journal

Law reform based on international Indigenous rights: ACT Human Rights Act

Sean Costello

ACT

Earlier this year, key aspects of the United Nations Declaration on the Rights of Indigenous Peoples (‘UNDRIP’) were enacted into the Human Rights Act 2004 (‘HR Act’). The new section 27(2) of the ACT HR Act, which passed earlier this year, is also based on Article 27 of the International Covenant on Civil and Political Rights (‘ICCPR’) and s 19(2) of the Victorian Charter of Human Rights and Responsibilities 2006. Both the earlier Victorian provision and newer ACT amendment recognise Aboriginal cultural heritage, distinctive spiritual practices, languages, knowledge and kinship ties. The new ACT provision adds Torres Strait Islander Peoples’ cultural rights and a note explicitly cites UNDRIP, in particular articles 25 and 31.

These rights recognise Aboriginal and Torres Strait Islander Peoples’ material and economic relationships with the land and waters and other resources. The enjoyment of these cultural rights may include, for example, a way of life associated with territory, and the use of resources. This might include traditional activities such as hunting and fishing, or the right to live in reserves protected under law.

The HR Act obliges public authorities, including government agencies and those performing outsourced government functions, to act and make decisions consistently with human rights. These rights may also be used by courts and tribunals in interpreting laws, and where legislation is incompatible with s 27(2) and a consistent interpretation cannot be adopted, the ACT Supreme Court may issue a ‘declaration of incompatibility’.

In its submission to the ACT Legislative Assembly Standing Committee’s inquiry into the amending legislation, the Victorian Equal Opportunity and Human Rights Commission noted substantial outcomes from the cultural rights in that state included the passage of the Traditional Owner Settlement Act 2010. This legislation provides an out of court settlement of native title matters in Victoria.

It remains to be seen how the new rights will be applied in the ACT. Based on the experience of the HR Act to date, such application is important not only through courts and tribunals, but also behind the scenes as the government bureaucracy considers these new obligations in the provision of services and the making of decisions. In particular, the right has the potential to further fulfil and realise the principles of self-autonomy and engagement.

SEAN COSTELLO is Senior Manager, Legal and Governance, with the ACT Human Rights Commission.

Cite as

(2016) 41(3) AltLJ 210