By Natalie Plumstead -
Snapshot
- Distinct cultural rights of Indigenous Peoples existed long before the advent of the ‘statutory dialogue model’ found in human rights legislation enacted in Victoria and Queensland. The statutory dialogue model has a significant weakness as it does not create a standalone cause of action to challenge the lawfulness of the actions or decisions of any public entity, and so does not comprehensively protect these rights.
- The recent decision in Chief Executive, Department of Environment, Science and Innovation v Nagana Yarrbayn Wangan and Jagalingou Cultural Custodians Ltd sets an important new precedent on challenging the inaction of a public entity that affects distinct cultural rights. The decision also confirms the statutory dialogue model ‘piggyback’ requirement that an individual must have an arguable other claim in order to bring any challenge to the actions and decisions of a public entity.
- Drafting conventions emerging in the Pacific region offer a new approach to ensuring the comprehensive protection of the collective and individual dimension of distinct cultural rights in legislation.
Drafting is the difficult craft of constructing legislative schemes using predictable drafting conventions and accepted rules of interpretation. Legislatures may express an intent to create, alter or abrogate legal rights and obligations (including human rights norms) to advance policy goals and meet societal expectations. Legislation in this regard may sometimes be ‘harsh’, but it is ‘rarely incoherent’ (R v Independent Broad-based Anti-corruption Commissioner [2016] HCA 8 at [76]).
In the human rights context, societal expectations and the approach of courts to the rules of interpretation change. So too, then, must drafting conventions — to express legislative intent with clarity, coherence and fidelity.
It appears there is pressure to reconsider the accepted rules of interpretation and established drafting conventions used for legislative schemes that engage with the distinct cultural rights of Indigenous Peoples. There have been calls for legislatures to rethink the legislative schemes required to comprehensively protect distinct cultural rights that have been in existence before the common law arrived in this country (see Yoorrook Justice Commission, Yoorrook for Justice: Report into Victoria’s Child Protection and Criminal Justice Systems (Report, August 2023) (‘Yoorrook Report’) at 98).
