Site navigation

Change font size: SmallerLargerReload

Human Rights navigation

Rural and Remote Education Inquiry Briefing Paper

2. Defining key terms

Accessible

The Committee on Economic, Social and Cultural Rights has identified 3 inter-connected elements of 'accessibility' in the context of education.

  1. Non-discrimination - education must be accessible to all, especially the most vulnerable groups, in law and fact, without discrimination on any of the prohibited grounds;

  2. Physical accessibility - education has to be within safe physical reach, either by attendance at some reasonably convenient geographic location (e.g. a neighbourhood school) or via modern technology (e.g. access to a "distance learning" programme);

  3. Economic accessibility - education has to be affordable to all. This dimension of accessibility is subject to the differential wording of article 13 (2) [of the International Covenant on Economic, Social and Cultural Rights] in relation to primary, secondary and higher education: whereas primary education shall be available "free to all", States parties are required to progressively introduce free secondary and higher education (General Comment No. 13, 1999, paragraph 6).

Another element of 'accessibility' is what the Committee has termed 'acceptability': 'the form and substance of education, including curricula and teaching methods, have to be acceptable (e.g. relevant, culturally appropriate and of good quality) to students and, in appropriate cases, parents; this is subject to the educational objectives required by article 13 (1) and such minimum educational standards as may be approved by the State (see art. 13 (3) and (4))'.1

Whether education is 'accessible' must be measured by objective criteria. Children should not be required to forego other entitlements, such as rest and leisure or cultural commitments, in order to access an education.

Available

'Availability' has four dimensions:

'[F]unctioning educational institutions and programmes have to be available in sufficient quantity within the jurisdiction of the State party. What they require to function depends upon numerous factors, including the developmental context within which they operate; for example, all institutions and programmes are likely to require buildings or other protection from the elements, sanitation facilities for both sexes, safe drinking water, trained teachers receiving domestically competitive salaries, teaching materials, and so on; while some will also require facilities such as a library, computer facilities and information technology.'2

Secondary schooling must be 'generally available' which means 'firstly, that secondary education is not dependent on a student's apparent capacity or ability and, secondly, that secondary education will be distributed throughout the State in such a way that it is available on the same basis to all'.3

Child

A child is generally a person under 18 years of age, unless otherwise specified by law in the applicable geographic region. This definition is found in article 1 of the Convention on the Rights of the Child.

For the purposes of the present Convention, a child means every hu-man being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier.

Cultural identity

Many of the international treaties protect cultural rights or rights based on cultural identity or characteristics. However, it is not easy to define the characteristics of cultural identity. Various groups may define culture in different ways. The Human Rights Committee has stated

With regard to the exercise of [cultural rights], the Committee observes that culture manifests itself in many forms, including a particular way of life associated with the use of land resources, especially in the case of indigenous peoples.4

Article 12 of the Draft Declaration on the Rights of Indigenous Peoples gives some guidance on what cultural characteristics are.

Indigenous peoples have the right to practise and revitalize their cultural traditions and customs. This includes the right to maintain, protect and develop the past, present and future manifestations of their cultures, such as archaeological and historical sites, artifacts, designs, ceremonies, technologies and visual and performing arts and literature .

Disability

The term 'disability' encompasses many different functional limitations. These include 'physical, intellectual or sensory impairment, medical conditions or mental illness.'5 It encompasses both permanent and transitory conditions.

Section 4 of the Disability Discrimination Act 1992 (Cth) provides a specific list of circumstances that qualify as disabilities.

"Disability", in relation to a person, means:

  1. total or partial loss of the person's bodily or mental functions; or
  2. total or partial loss of a part of the body; or
  3. the presence in the body of organisms causing disease or illness; or
  4. the presence in the body of organisms capable of causing disease or illness; or
  5. the malfunction, malformation or disfigurement of a part of the person's body; or
  6. disorder or malfunction that results in the person learning differently from a person without the disorder or malfunction; or
  7. a disorder, illness or disease that affects a person's thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour; and includes a disability that:
  8. presently exists; or
  9. previously existed but no longer exists; or
  10. may exist in the future; or
  11. is imputed to a person.

Discrimination

Discrimination is most generally defined as 'any distinction, exclusion, restriction or preference based on an irrelevant ground (eg sex, race, colour or language) which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise of a right on an equal footing'.6 Freedom from discrimination 'does not mean identical treatment in every instance' and certain legal exceptions do exist.7 The pursuit of legitimate interests can justify different treatment. For example, different treatment is not a violation of the International Covenant on Civil and Political Rights 'if the criteria for such differentiation are reasonable and objective and if the aim is to achieve a purpose which is legitimate under the Covenant'.8

Race discrimination is defined by article 1(1) of the International Convention on the Elimination of All Forms of Racial Discrimination as 'any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life'.

Sex discrimination is defined in article 1 of the Convention on the Elimination of All Forms of Discrimination against Women

For the purposes of the present Convention, the term 'discrimination against women' shall mean any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.

The United Nations Committee on Economic, Social and Cultural Rights defines 'disability-based discrimination' as 'including any distinction, exclusion, restriction or preference, or denial of reasonable accommodation based on disability which has the effect of nullifying or impairing the recognition, enjoyment or exercise of economic, social or cultural rights'.9

In Australian law the most recent definition of discrimination is in section 5 of the Disability Discrimination Act 1992 (Cth).

For the purposes of this Act, a person ('discriminator') discriminates against another person ('aggrieved person') on the ground of a disability of the aggrieved person if, because of the aggrieved person's disability, the discriminator treats or proposes to treat the aggrieved person less favourably that, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person without the disability.

Section 6 of the Act defines indirect disability discrimination.

For the purposes of this Act, a person ('discriminator') discriminates against another person ('aggrieved person') on the ground of a disability of the aggrieved person if the discriminator requires the aggrieved person to comply with a requirement or condition:

  1. with which a substantially higher proportion of persons without the disability comply or are able to comply; and
  2. which is not reasonable having regard to the circumstances of the case; and
  3. with which the aggrieved person does not or is not able to comply.

Education

'Education' is not confined to schooling. It is 'the imparting or acquisition of knowledge, skills, etc; systematic instruction or training'.10 Such 'imparting' or 'training' occurs throughout life and in all areas of life - from the family home to the school to the workplace. UNESCO has defined 'education' to cover 'the entire process of social life by means of which individuals and social groups learn to develop consciously within, and for the benefit of, the national and international communities, the whole of their personal capacities, attitudes, aptitudes and knowledge'.11

However, in other international treaties the reference to 'education' is to the formal education system. In article 28(1) of the Convention on the Rights of the Child, for example, 'education' means formal education or schooling. Article 1(2) of the Convention Against Discrimination in Education refers to 'levels' of education, thus indicating a formal system.

Free

Primary education is to be compulsory and free to all. This principle dates from 1948 when the Universal Declaration of Human Rights was adopted. Article 26(1) states

Everyone has the right to education. Education shall be free, at least in the elementary and fundamental stages. Elementary education shall be compulsory. Technical and professional education shall be made generally available and higher education shall be equally accessible to all on the basis of merit.

Hodgson concludes that 'The term "free" must be understood to mean that the delivery of elementary education itself would be free of charge but it is not as certain that other expenses of the student such as transportation costs, books, and school uniforms would be covered'.12

More recently the Committee on Economic, Social and Cultural Rights has commented that the right to a free primary education 'is expressly formulated so as to ensure the availability of primary education without charge to the child, parents or guardians' (General Comment No. 11, 1999, paragraph 7).

Fees imposed by the Government, the local authorities or the school, and other direct costs, constitute disincentives to the enjoyment of the right and may jeopardize its realization. They are also often highly regressive in effect. Their elimination is a matter which must be addressed by the required plan of action. Indirect costs, such as compulsory levies on parents (sometimes portrayed as being voluntary, when in fact they are not), or the obligation to wear a relatively expensive school uniform, can also fall into the same category. Other indirect costs may be permissible, subject to the Committee's examination on a case-by-case basis.13

Indigenous

There is no universally accepted definition of 'Indigenous' in international law.14 In his 1986 report, the Special Rapporteur on the Prevention of Discrimination and Protection of Minorities, Mr Martinez Cobo, proposed the following criteria which have gained wide acceptance.

Indigenous communities, peoples and nations are those which, having a historical continuity with pre-invasion and pre-colonial societies that developed on their territories, consider themselves distinct from other sectors of the society now prevailing in those territories or parts of them. They form at present non-dominant sectors of society and are determined to preserve, develop and transmit to future generations their ancestral territories, and their ethnic identity, as the basis of their continued existence as peoples, in accordance with their own cultural patterns, social institutions and legal systems.15

The Convention concerning Indigenous and Tribal Peoples in Independent Countries (ILO 169) explains the scope of its protected group in article 1, thus providing guidance on which groups qualify as Indigenous.

  1. This Convention applies to:
  1. tribal peoples in independent countries whose social, cultural and economic conditions distinguish them from other sections of the national community, and whose status is regulated wholly or partially by their own customs or traditions or by special laws or regulations;

  2. peoples in independent countries who are regarded as indigenous on account of their descent from the populations which inhabited the country, or a geographical region to which the country belongs, at the time of conquest or colonisation or the establishment of present state boundaries and who, irrespective of their legal status, retain some or all of their own social, economic, cultural and political institutions.

It should be noted that the Convention explicitly requires that the group in question identify itself as Indigenous or tribal.

  1. Self-identification as indigenous or tribal shall be regarded as a fundamental criterion for determining the groups to which the provisions of this Convention apply.

Language

The right to preserve languages and linguistic differences gives rise to the question of defining language. What qualifies as a language? Some languages may not have a written form or that written form might use pictures or some type of code other than traditional letters or characters. International law protects these languages equally with more widely used ones. There is no requirement that a language be written or capable of being reduced to writing.

Another issue is the preservation of regional dialects. Does a regional or cultural dialect or variation of a known language qualify as a separate language entitled to protection under international law?

Finally, there is the question of languages that are neither written nor spoken, such as languages for the deaf, including Auslan. Many in the Australian deaf community define their group as a linguistic minority. Is Auslan protected under the language provisions of the international treaties?

Minority

For the purposes of International Covenant on Civil and Political Rights article 27 and Convention on the Rights of the Child article 30, minority groups are those defined by a distinct ethnicity, religion or language. There is no universally accepted definition of 'minorities' in international law. Whether or not a group of people can be recognised as a minority will depend on objective criteria.

The UN Special Rapporteur Professor Francesco Capotorti suggested the following definition.

. a group numerically inferior to the rest of the population of a State, in a non-dominant position, whose members - being nationals of the state - possess ethnic, religious or linguistic characteristics differing from those of the rest of the population and show, if only implicitly, a sense of solidarity, directed towards preserving their culture, traditions, religion or language.16

The drafting documentation for the International Covenant on Civil and Political Rights indicates the drafters' intention that the term 'minorities' should be interpreted to mean 'separate or distinct groups, well-defined and long-established on the territory of a State'.

Religion

There is no universally accepted definition of 'religion'. One philosopher has defined 'religion' as a 'unified system of beliefs and practices relative to sacred things, that is to say, things set apart and forbidden-beliefs and practices which unite into one single moral community called a Church, all those who adhere to them'.17

Other definitions abound, but there is still much debate about what qualifies as a religion. It is difficult to distinguish between religious beliefs and beliefs that are not based on religion at all, but rather on culture or morals.

International law has established, however, that international protection of religion is not limited to protection of traditional or mainstream beliefs. Article 18 of the International Covenant on Civil and Political Rights 'protects theistic, non-theistic and atheistic beliefs, as well as the right not to profess any religion or belief'.18

The terms 'belief' and 'religion' are to be broadly construed. Article 18 is not limited in its application to traditional religions or to religions and beliefs with institutional characteristics or practices analogous to those of traditional religions. The Committee therefore views with concern any tendency to discriminate against any religion or belief for any reason, including the fact that they are newly established, or represent religious minorities that may be the subject of hostility on the part of a predominant religious community.19

Vocational education

The European Court of Justice definition of vocational education is

Any form of education which prepares for a qualification for a particular profession, trade or employment or which provides the necessary training and skills for such a profession, trade or employment is vocational training, whatever the age and the level of training of the pupils or students and even if the training programme includes an element of general education.20

Should this definition be adopted in Australia?

Endnotes

1 General Comment No. 13, 1999, paragraph 6.
2General Comment No. 13, 1999, paragraph 6.
3General Comment No. 13, 1999, paragraph 13.
4 General Comment 23, paragraph 7, referring to article 27 of the International Covenant on Civil and Political Rights.
5 Standard Rules on the Equalization of Opportunities for Persons with Disabilities, UNGA 48/96, Introduction.
6 Human Rights Committee, General Comment 18, paragraph 7.
7 Id, paragraph 8.
8 Id, paragraph 13.
9 UN Committee on Economic, Social and Cultural Rights, General Comment 5, paragraph 15, defining 'disability-based discrimination' for the purposes of ICESCR.
10 Macquarie Dictionary.
11 Recommendation Concerning Education for International Understanding, Co-operation and Peace and Education Relating to Human Rights and Fundamental Freedoms, UNESCO, 1974, article 1(a).
12 Douglas Hodgson, The Human Rights to Education, Ashgate Publishing Ltd, 1998, page 41.
13 General Comment No. 11, 1999, paragraph 7.
14 Russel L Barsh, 'Indigenous Peoples and the United Nations Commission on Human Rights: A Case of Immovable Object and Irresistible Force' (1996) 18 Human Rights Quarterly 782; J Corntassel and T Primeau, 'Indigenous "Sovereignty" and International Law: Revised Strategies for Pursuing "Self Determination"' (1995) 17 Human Rights Quarterly 343; E-I Daes, 'Indigenous people and their relationship to land: preliminary working paper', UN Doc. E/CN.4/Sub.2/1997/17 and Corr.1.
15 UN Doc. E/CN.4/Sub.2/1986/7 and Add.4, paragraphs 379-382. See also Sarah Pritchard (ed), Indigenous Peoples, the United Nations and Human Rights, Zed Books, The Federation Press, 1998.
16 Study on the Rights of Persons Belonging to Ethnic, Religious and Linguistic Minorities, UN Doc. E/CN.4/Sub.2/384/Rev.1, Add. 1.
17 Emile Durkheim, The Elementary Forms of Religious Life, 1915, trans. J W Swain, Free Press, New York, 1975, page 62.
18 Human Rights Committee, General Comment 22, paragraph 2.
19 Ibid.
20 Gravier v City of Liege [1985] ECR 593.

Last updated 2 December 2001.