Right to enjoy and benefit from culture

Public sector guidance sheet

Disclaimer
This material is provided to persons who have a role in Commonwealth legislation, policy and programs as general guidance only and is not to be relied upon as legal advice. Commonwealth agencies subject to the Legal Services Directions 2005 requiring legal advice in relation to matters raised in this Guidance Sheet must seek that advice in accordance with the Directions.

What is the right to enjoy and benefit from culture?

The right to enjoy and benefit from culture includes:

  • the rights of individuals belonging to ethnic, religious and linguistic minorities within a country to enjoy their own culture, practise their own religion and use their own language
  • the right of all persons to take part in cultural life
  • the right of all persons to enjoy the benefit of scientific progress and its applications
  • the right of all persons to benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he or she is the author.

Where does the right to enjoy and benefit from culture come from?

Australia is a party to seven core international human rights treaties. The right to enjoy and benefit from culture is contained in article 27 of the International Covenant on Civil and Political Rights (ICCPR) and article 15 of the International Covenant on Economic, Social and Cultural Rights (ICESCR).

See also article 5(e)(vi) of the Convention on the Elimination of All Forms of Racial Discrimination (CERD) , article 13(c) of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) , articles 30 and 31 of the Convention on the Rights of the Child (CRC) and article 30 of the Convention on the Rights of Persons with Disabilities (CRPD).

Article 27 of the ICCPR protects the rights of individuals belonging to ethnic, religious and linguistic minorities within a country to enjoy their own culture, practise their own religion and use their own language. These rights are particular to members of such minorities, who also enjoy the other rights guaranteed in the human rights treaties.

Article 15 of ICESCR protects the right of all persons to take part in cultural life and to enjoy the benefits of scientific progress and its applications. Article 15(1)(c) of ICESCR protects the moral and material interests of the author of scientific, literary or artistic productions. This right does not necessarily coincide with intellectual property rights under national legislation or international agreements, and need not necessarily reflect the level and means of protection in copyright, patent and other intellectual property regimes.

Similar protections for women, children and people with disabilities are found CEDAW, the CRC and the CRPD respectively.

Further, the CERD guarantees the right of everyone to equal participation in cultural activities without distinction as to race, colour, or national or ethnic origin.

When do I need to consider the right to enjoy and benefit from culture?

You will need to consider the right to enjoy and benefit from culture when you are working on legislation, a policy or a program that:

  • limits the observance of religious practices
  • limits the ability of members of an ethnic group to take part in cultural practice
  • limits the ability of Indigenous Australians to observe and take part in cultural practices, including use and enjoyment of land and natural resources, for example by engaging in traditional hunting and fishing practices
  • interferes with the right of persons to wear traditional religious or cultural attire
  • regulates the observance of religious holidays
  • regulates the observance of religious or cultural practices in education
  • regulates traditional medical practices
  • regulates the preparation and serving of food that may impact on the observance of religious or cultural practices
  • regulates the conduct of commercial activity on the traditional lands of Indigenous Australians
  • regulates the establishment and maintenance of and access to libraries, museums, theatres, cinemas and sports stadiums, or
  • addresses discrimination on the basis of race, religion or national or ethnic origin.

This list should not be regarded as exhaustive.

The UN Human Rights Committee and the UN Committee on Economic, Social and Cultural Rights have recognised that the exercise of the right to enjoy culture by minorities and the right to take part in cultural life may in certain circumstances affect the interests of others. The guidance that has been issued by the Committees is dealt with in the section below on 'Can the right to enjoy culture be limited?'.

What is the scope of the right to enjoy and benefit from culture?

Right to enjoy culture

The UN Human Rights Committee has stated that article 27 of the ICCPR is directed towards 'ensuring the survival and continued development of the cultural, religious and social identity of the minorities concerned, thus enriching the fabric of society as a whole'.

The Committee has stated that culture can manifest itself as a particular way of life associated with the use of land resources, especially in the case of Indigenous peoples, which may include such traditional activities as fishing or hunting and the right to live on lands protected by law. This means that the concept of culture will embrace not only the maintenance of traditional practices, but also those social and economic activities that are part of the group's tradition.

The UN Committee on Economic, Social and Cultural Rights has stated that culture encompasses:

ways of life, language, oral and written literature, music and song, non-verbal communication, religion or belief systems, rites and ceremonies, sport and games, methods of production or technology, natural and man-made environments, food, clothing and shelter and the arts, customs and traditions.

The same Committee has stated that in order to assure enjoyment of the right to take part in cultural life, countries should provide cultural services that are open for everyone to enjoy and benefit from, including libraries, museums, theatres, cinemas and sports stadiums.

In the context of the right to freedom of religion, the Human Rights Committee has interpreted religion to include theistic, non-theistic and atheistic beliefs.

While the right in article 27 is expressed as one to be enjoyed in community with others, it is an individual, not a collective right. This means that the right is to be enjoyed by individuals, rather than by groups of persons. The individuals who enjoy the right are those who belong to a group which shares a common culture, religion or language. The right is to be distinguished from the right to self-determination on this basis. The Committee on Economic Social and Cultural Rights has stated that cultural rights may be exercised by a person as an individual, in association with others, or within a community or group.

The Human Rights Committee has regarded Indigenous peoples as a minority for the purposes of article 27.

The Committee on Economic, Social and Cultural Rights has stated that countries should guarantee that the exercise of the right to take part in cultural life takes due account of the values of cultural life, which may be strongly communal or which can only be expressed and enjoyed as a community by Indigenous peoples. Indigenous peoples' cultural values and rights associated with their ancestral lands and their relationship with nature should be regarded with respect and protected. Countries must take measures to recognise and protect the rights of Indigenous peoples to own, develop, control and use their communal lands, territories and resources. Indigenous peoples have the right to act collectively to ensure respect for their right to maintain, control, protect and develop their cultural heritage, traditional knowledge and traditional cultural expressions.

Declaration on the Rights of Indigenous Peoples

The Declaration on the Rights of Indigenous Peoples contains numerous provisions regarding the right of Indigenous peoples to observe their distinct religious and cultural practices and to use their own languages. The Declaration does not create legally binding obligations, but informs the way governments engage with and protect the rights of Indigenous people.

Right to benefit from culture

Article 15(1)(b) of ICESCR obliges countries to recognise the right of everyone to enjoy the benefits of scientific progress and its applications. For example, this would require that, when significant new medical treatments are discovered that make it possible to cure diseases that were in the past incurable, the country should, within the limits of its available resources, make those treatments available to its population. Countries are also obliged to protect individuals from any negative applications of scientific progress, for example progress that may be contrary to the enjoyment of human rights such as the rights to life, health and privacy.

The UN Committee on Economic, Social and Cultural Rights considers that the creator of scientific, literary or artistic productions, such as a writer or an artist, can be the beneficiary of the protection of article 15(1)(c) of ICESCR, but also that the right to benefit from the protection of the moral and material interests resulting from scientific, literary or artistic productions can, under certain circumstances, be enjoyed by groups of individuals or by communities.

The UN Committee considers that 'any scientific, literary or artistic production' includes scientific publications and innovations, including knowledge, innovations and practices of Indigenous and local communities, poems, novels, paintings, sculptures, musical compositions, theatrical and cinematographic works, performances and oral traditions.

The right under article 15(1)(c) requires the availability of adequate legislation, as well as effective administrative, judicial or other appropriate remedies, for the protection of the moral and material interests of authors resulting from scientific, literary or artistic productions, and the accessibility to all authors of these remedies. The UN Committee has stated that the precise application of these remedies will depend on the economic, social and cultural conditions prevailing in a particular country.

Can the right to enjoy and benefit from culture be limited?

Derogation

Under article 4 of the ICCPR, States may take measures derogating from certain obligations under the Covenant, including the right under article 27 'in time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed'. Such measures may only be taken 'to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.'

Limitation

While article 27 does not contain a limitation, the Human Rights Committee has considered cases which call into question the impact of the right of minorities to enjoy their own culture on the rights of others. It has stated that commercial activity on lands belonging to minorities, such as mining, that has a limited impact on the right of minorities to enjoy their own culture, may not be incompatible with article 27. In these cases, the Committee has been influenced by the fact that consultation with affected minority representatives has taken place in the process of deciding to approve the activity.

The Committee on Economic Social and Cultural Rights has stated that limitations on the right to take part in cultural life may be necessary in certain circumstances, in particular in the case of practices attributed to customs and traditions which infringe upon other human rights. Such limitations must pursue a legitimate aim, be compatible with the nature of the right and be strictly necessary for the promotion of general welfare in a democratic society.

Which domestic laws relate to the right to enjoy and benefit from culture?

Section 116 of the Constitution provides:

The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth.

Section 5B of the Classification (Films, Publications and Computer Games) Act 1995exempts films which wholly comprise a record of a cultural activity or event from classification, unless certain exceptions apply. In addition, section91 of the Act allows the Director of the Classification Board to waive, in part or in whole, classification fees if the payment is for 'special interest material' having a limited distribution that is of a 'cultural or like nature'. The Classification ( Fee Waiver Principles) 2008 define 'special interest material' as material that relates to a subject, interest or pursuit that is of particular interest to a group of persons, such as a community group or cultural group, as distinct from the public at large' . The Principles also contains a broad definition of material 'of a cultural or like nature'.

The Native Title Act 1993 contains a preamble that sets out considerations taken into account by the Parliament of Australia in enacting the Act. The preamble includes:

to ensure that Aboriginal peoples and Torres Strait Islanders receive the full recognition and status within the Australian nation to which history, their prior rights and interests, and their rich and diverse culture, fully entitle them to aspire.

The traditional use of land for hunting, food gathering and ceremonial or religious purposes by Indigenous Australians is recognised in the Environment Protection and Biodiversity Conservation Act 1999 (see sections 303BAA and 359A).

The Special Broadcasting Service Act 1991 contains a Charter in section 6 that requires SBS to perform a number of functions, including the promotion of understanding and acceptance of the cultural, linguistic and ethnic diversity of the Australian people, and contributing to the retention and continuing development of language and other cultural skills.

The functions of the Australia Council, as set out in section 5 of the Australia Council Act 1975 include to uphold and promote the right of persons to freedom in the practice of the arts, which includes creative and interpretative expression through theatre, literature, music, visual arts, film and crafts.

Legislation governing intellectual property rights includes the Copyright Act 1968, the Patents Act 1990, the Trade Marks Act 1995, the Designs Act 2003, the Plant Breeders Rights Act 1994 and the Circuit Layouts Act 1989. It should be noted that some of the rights in these domestic laws stem from Australia's obligations under a complex arrangement of treaties that constitute the international intellectual property system. While human rights under the ICESCR are expressed in general terms, intellectual property rights (and exceptions to those rights) are normally defined more specifically in treaties and intellectual property domestic laws. Further information on copyright and intellectual property may be obtained from the Attorney-General's Department and IP Australia (see the links contained in the 'Where can I read more about the right to enjoy and benefit from culture?' section below.

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What other rights and freedoms relate to the right to enjoy and benefit from culture?

The right to enjoy and benefit from culture may also be relevant to:

  • the right to self-determination in article 1 of the ICCPR and ICESCR
  • the right to be free from discrimination and to equality before the law in articles 2 and 26 of the ICCPR
  • the right to freedom of religion in article 18 of the ICCPR
  • the right to freedom of expression in article 19 of the ICCPR
  • the right to education in article 13 of the ICESCR
  • have the opportunity to gain one's living by work which one freely chooses in article 6 of ICESCR
  • adequate remuneration under article 7(a) of ICESCR
  • an adequate standard of living in article 11(1) of ICESCR.

Articles from relevant Conventions

International Covenant on Civil and Political Rights

Article 27

In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language.

International Covenant on Economic, Social and Cultural Rights

Article 15

  • The States Parties to the present Covenant recognize the right of everyone:
  • To take part in cultural life;
  • To enjoy the benefits of scientific progress and its applications;
  • To benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.

See also: CRC articles 30, 31; CRPD article 30; CERD article 5(e)(vi); CEDAW article 13(c).

Where can I read more about the right to enjoy and benefit from culture?