Cultural rights

Section 19 of the Charter is about cultural rights. It says that all people in Victoria with a particular cultural, religious, racial or linguistic background must not be denied their right to:

• Enjoy their culture
• Declare and practise their religion
• Use their language

This includes the right to do any of these things with other people who have the same background.

This section is based on Article 27 of the International Convention on Civil & Political Rights (ICCPR) about ‘minority rights’. For more information on the ICCPR, click here.

Section 19 cultural rights for Aboriginal and Torres Strait Islander people

The Charter speaks directly about Aboriginal people in Victoria, who have their own specific cultural rights. In the preamble (introduction) of the Charter, it says:

‘Human rights have 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.’

Section 19 of the Charter says that Aboriginal people have their own distinct cultural rights. It says Aboriginal people must not be denied the right to:

• Enjoy their identity and culture
• Maintain and use their language
• Maintain their kinship ties
• Maintain their distinctive spiritual, material and economic relationship with the land and waters and other resources they have a connection with under traditional laws and customs

Part 2.07 of the Corrections Victoria Deputy Commissioner’s Instructions says that prisons are expected to do the following things to support the cultural rights of Aboriginal and Torres Strait Islander people in prison:

• Ensure access within 24 hours of an Aboriginal or Torres Strait Islander person arriving at a prison to an Aboriginal Wellbeing Officer (AWO), Aboriginal Liaison Officer (ALO), Aboriginal staff member from Naalamba Ganbu Nerrlinggu Yilam, or an Aboriginal community member known to the prison
• Train all prison staff to have an understanding of Aboriginal culture and the cultural needs of Aboriginal people in prison, so they can work with people in prison in a culturally relevant and responsive way
• Ensure all prison staff treat Aboriginal and Torres Strait Islander people in prison with dignity and understanding
• Ensure programs are available for Aboriginal and Torres Strait Islander people in prison that reflect their culture, and involve links to community programs
• Assist and support families of Aboriginal and Torres Strait Islander people in prison to visit them
• Recognise the unique importance of Aboriginal and Torres Strait Islander people’s family and cultural obligations, including to extended family kinship, when considering applications to for leave to attend a funeral
• If an application by an Aboriginal person to attend a funeral in prison is rejected, alternative options like livestream should be considered. The person should also have access to support services

Limits to section 19 cultural rights

Under section 7(2) of the Charter, Corrections Victoria or their staff are only allowed to limit section 19 cultural rights when it is reasonable and justified.

When it comes to deciding whether the limitation of a right is reasonable and justified, the Charter says all relevant factors should be considered, including:

1. The nature of the right (what the right is);
2. The importance of the reason for limiting the right;
3. The nature and extent of the limitation;
4. The relationship between the limitation and the reason for limiting the right; and
5. Any other, less restrictive options reasonably available to address the reason.

When Corrections Victoria or their staff make a decision, they balance Charter rights against their duties in sections 20 and 21 of the Corrections Act 1986 (Vic). Those duties are about:

• Security of the prison
• Safe custody and welfare of people in prison
• Management, security and good order of the prison

Whether a limit on section 22 rights is reasonable and justified will depend on the circumstances or facts of each individual case.

International human rights for Indigenous people

The UN Declaration on the Rights of Indigenous People (UNDRIP) lists the rights of Indigenous people around the world, and sets out minimum standards for their survival, dignity and well-being.

Some of the rights particularly relevant to prisons are:

• Right to be free from discrimination for being Indigenous
• Right to practice cultural tradition and customs
• Right to maintain, control, protect and develop cultural heritage, traditional knowledge and traditional cultural expressions
• Right to not be subjected to forced assimilation or destruction of culture
• Right to practice, develop and teach spiritual and religious traditions, customs and ceremonies
• Right to access social and health services without discrimination, and to enjoy the best achievable physical and mental health

For more information on UNDRIP, click here.

Important: Section 32(2) of the Victorian Charter of Human Rights says that international law (including the UNDRIP) can be considered when interpreting Victorian laws like the Corrections Act 1986 (Vic).