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Rural and Remote Education Inquiry Briefing Paper

3. Beginning a benchmarking process

Does the Commonwealth have an obligation to introduce measures to ensure that its international treaty obligations are implemented?

Yes. International law clearly establishes that States must do more than merely refrain from measures that would impede the exercise of human rights.21 For example

The obligation of States parties to the Covenant [on Economic, Social and Cultural Rights] to promote progressive realization of the relevant rights to the maximum of their available resources clearly requires Governments to do much more than merely abstain from taking measures which might have a negative impact on persons with disabilities. The obligation in the case of such a vulnerable and disadvantaged group is to take positive action to reduce structural disadvantages and to give appropriate preferential treatment to people with disabilities in order to achieve the objectives of full participation and equality within society for all persons with disabilities. This almost invariably means that additional resources will need to be made to available for this purpose and that a wide range of specially tailored measures will be required.22

This positive obligation on States extends beyond the public sphere, at least with regard to protecting the rights of people with disabilities. States have an obligation to 'ensure that not only the public sphere, but also the private sphere, are, within appropriate limits, subject to regulation to ensure the equitable treatment of persons with disabilities'.23

.there will always be instances in which the operation of the free market will produce unsatisfactory results for persons with disabilities, either individually or as a group, and in such circumstances it is incumbent on Governments to step in and take appropriate measures to temper, complement, compensate for, or override the results produced by market forces.

This burden on States is significant because it holds them accountable for all violations that occur within their territory, not just those violations which the States themselves perpetrate.

See also the short article 'Children's Rights, Adults' Duties' by Katarina Tomasevski at http://www.unesco.org/education/efa/contest/tomasevski.htm

Do children have a right to pre-school education?

International law does not impose on any government a duty to provide any type of pre-school education. However, where pre-school education is provided, it must be available to all without race or sex discrimination.

The Convention on the Rights of the Child does require States to assist parents in their child-rearing responsibilities, including by developing 'institutions, facilities and services for the care of children' (article 18.2).

What does 'available' mean? What does 'accessible' mean?

Australia has recognised the right of everyone to education and undertaken to make primary and secondary education available to all (Convention on the Rights of the Child article 28 and International Covenant on Economic, Social and Cultural Rights article 13). The Committee on Economic, Social and Cultural Rights has pointed out, in General Comment No. 13 of 1999 (in paragraph 6), that the provision of education must be characterised by four features to satisfy this undertaking: it must be available, accessible, acceptable and adaptable.

'Availability' means that 'functioning educational institutions and programmes have to be available in sufficient quantity'.

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.

'Accessibility' has three dimensions. It must be available to all without discrimination, in law and in fact, physically accessible and economically accessible. The Committee requires education 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)'. Education must also be affordable to all.

'Acceptability' means that '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'.

'Adaptability' means that 'education has to be flexible so it can adapt to the needs of changing societies and communities and respond to the needs of students within their diverse social and cultural settings.

Questions which arise when considering the right to access include

Whether education is accessible or available should be measured by objective criteria. Students must be able to access education without forfeiting other rights such as the right to rest or leisure or participation in family or cultural events. The right is also violated if accessing education is substantially harder or more onerous for one group than another or harder for a substantially higher proportion of one group over another.

How can primary education be both compulsory and a right?

The compulsory nature of primary education stems from the idea that the best interests of children are served by not allowing them to refuse education below a certain level.24 Are the two things necessarily in conflict? A comparison may be made with voting which is both a right and a duty in Australian law.

Hodgson sees an 'apparent inconsistency'. He suggests a reading of the word 'compulsory' to mean that 'no person or body can prevent children from receiving a basic education'.25 Nowak comments that 'Education is one of the few human rights for which it is universally agreed that the individual has a corresponding duty to exercise this right'.26

The element of compulsion serves to highlight the fact that neither parents, nor guardians, nor the State are entitled to treat as optional the decision as to whether the child should have access to primary education . It should be emphasized, however, that the education offered must be adequate in quality, relevant to the child and must promote the realization of the child's other rights.27

Do primary school fees violate human rights?

They do if the child has no access to alternative education free of charge. States are under an obligation to provide primary schooling free of charge. That answer, however, leads to other questions. Must everything connected with primary schooling be free of charge (for example, uniforms, textbooks, excursions, transport)? If not, at what point do charges for these effectively deny a child's right to free primary education?

... 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.28

Do secondary school fees violate human rights?

Article 28(1)(b) of the Convention on the Rights of the Child requires that 'different forms of secondary education' be made 'available and accessible to every child'. Article 13(2)(b) of the International Covenant on Economic, Social and Cultural Rights additionally requires 'the progressive introduction of free [secondary] education'.

Australia cannot escape its obligation to introduce free secondary education by pointing to the silence of the Convention on the Rights of the Child on this precise point. Superior rights always prevail. Australia has undertaken to work progressively towards the introduction of free secondary education. Once a free secondary education is available for all, as has been the case in Australia, fees should only be reintroduced for exceptional reasons.

There is a strong presumption of impermissibility of any retrogressive measures taken in relation to the right to education ... If any deliberately retrogressive measures are taken, the State party has the burden of proving that they have been introduced after the most careful consideration of all alternatives and that they are fully justified by reference to the totality of the rights provided for in the Covenant and in the context of the full use of the State Party's maximum available resources.29

The same questions about charges other than fees arise in relation to free secondary education as to free primary education.

Does secondary schooling have to be basically the same for everyone?

Everyone is entitled to education without discrimination on any ground. However, secondary education should be delivered in different forms, flexible curricula and varied delivery systems 'to respond to the needs of students in different social and cultural settings'.30

In fact, the Committee on Economic, Social and Cultural Rights 'encourages "alternative" educational programmes which parallel regular secondary school systems'.31

The phrase 'every appropriate means' reinforces the point that States parties should adopt varied and innovative approaches to the delivery of secondary education in different cultural contexts.32

The Committee has also made clear that, in some circumstances separate educational institutions for minority groups would not be discriminatory.

The adoption of temporary special measures intended to bring about de facto equality for men and women and for disadvantaged groups is not a violation of the right to non-discrimination with regard to education, so long as such measures do not lead to the maintenance of unequal or separate standards for different groups, and provided they are not continued after the objectives for which they were taken have been achieved.

In some circumstances, separate educational systems or institutions for groups defined by the categories in article 2 (2) shall be deemed not to constitute a breach of the Covenant.33

Caution must be exercised when contemplating separate education systems for minorities.

If governments wish to prevent certain groups from equally participating in the political, social, economic or cultural life . one of the most efficient methods is to deny them equal access to education or to maintain segregated educational facilities with different educational standards.34

Are students entitled to study VET at school?

Vocational education and training is increasingly being offered even during the compulsory years of schooling. The International Covenant on Economic, Social and Cultural Rights and the Convention on the Rights of the Child both list technical and vocational education as one of the forms which secondary education may take. The Committee on Economic, Social and Cultural Rights has endorsed the right to VET as 'an integral element of all levels of education'.35

An introduction to technology and to the world of work should not be confined to specific TVE [technical and vocational education] programmes but should be understood as a component of general education . [T]he right to TVE includes the following aspects:

  1. It enables students to acquire knowledge and skills which contribute to their personal development, self-reliance and employability and enhances the productivity of their families and communities, including the State party's economic and social development;

  2. It takes account of the educational, cultural and social background of the population concerned; the skills, knowledge and levels of qualification needed in the various sectors of the economy; and occupational health, safety and welfare;

  3. Provides retraining for adults whose current knowledge and skills have become obsolete owing to technological, economic, employment, social or other changes;

  4. It consists of programmes which give students, especially those from developing countries, the opportunity to receive TVE in other States, with a view to the appropriate transfer and adaptation of technology;

  5. It consists, in the context of the Covenant's non-discrimination and equality provisions, of programmes which promote the TVE of women, girls, out-of-school youth, unemployed youth, the children of migrant workers, refugees, persons with disabilities and other disadvantaged groups.36

Do parents and children have a right to choice in education?

Article 13(3) of the International Covenant on Economic, Social and Cultural Rights obliges governments to respect parents' right to choose schools other than those established by public authorities. Article 13(4) protects the liberty of private individuals and bodies to establish schools. However

... the freedom to establish private schools has not been recognised in international law within the framework of treaties protecting civil and political rights but only as a limitation clause relating to the right to education.37

Independent schools must conform to 'such minimum educational standards as may be laid down by the State'.

Two questions arise. First, if there is an independent school available and accessible for a child, must the government nevertheless provide a public school as an alternative? Second, must the government fund independent schools if parents wish to enrol their children there?

Must the government ensure there is a choice for every child? It is clear that it is governments which have 'principal responsibility for the direct provision of education in most circumstances'.38

Under international law the right to receive education is directed at the State and therefore only obliges governments to provide for adequate education facilities. This does not mean, however, that all schools must be established and maintained by the government alone. If there are sufficient private facilities, the State may fulfil its obligations even without its own schools.39

A government can satisfy its obligation to provide an education to all children by pointing to the availability of an appropriate institution albeit one operated by a private body. The institution would have to satisfy all four criteria of availability, accessibility (including being free of charge), acceptability (including culturally and religiously acceptable) and adaptable. Rarely will a Catholic school, for example, satisfy all criteria for all children within its catchment.

Must the government fund private schools, either at all or equally with government schools, as a way of providing parental choice? While governments must not interfere in parental choice in education, it is not so clear that choice is a right which governments must fund. Nowak sets out the argument in favour of equality in government funding for private schools.

[F]reedom of education can only be achieved on an equal basis if private schools are free of charge which is only possible through public financing.40

This argument has been rejected by international decisions makers, however. Parents in Sweden (Blom, Lindgren, Hjord and others) complained that their government was discriminating against private schools by giving preferential treatment to the public sector - eg free transport, textbooks, school meals and provision of education allowances were provided for public school children but not those attending private schools. The Human Rights Committee decided the government had done no wrong and had committed no act of unlawful discrimination.41

Do parents have a right to educate their children at home?

This issue is not addressed explicitly in international instruments. The matter is left to individual governments. Two rights need to be balanced.

Parents may claim a right to exclude the government and keep the child at home on the basis of freedom of conscience or religion and/or on the basis of family privacy. All of these can be limited, however, in the interests of the rights of others, including the children of the family. Ultimately the children's best interests must prevail.

Home schooling does not, in and of itself, violate the child's right to education. But the State has a legitimate interest in monitoring the standard of home schooling - where home schooling is permitted - to ensure its quality and aims are consistent with the Convention on the Rights of the Child.

How can education be both equal and plural?

Is it possible to reconcile the minority child's right to full educational equality with majority children and his or her right to an education in his or her own language, culture and religion? The drafters of the Convention on the Rights of the Child recognised this tension.

In spite of the complexities inherent in this question, it is possible to strike the appropriate balance. 'Equality' does not mean identical treatment in all situations because that approach, sometimes called formal equality (or 'equality in law'), can entrench existing inequalities. The real objective - achieved in an approach of actual or substantive equality (or 'equality in fact') - is comparable and equally valued outcomes and opportunities. The following quotes attempt to convey the differences.

It is perhaps not easy to define the distinction between the notions of equality in fact and equality in law; nevertheless it may be said that the former notion excludes the idea of a merely formal equality . Equality in law precludes discrimination of any kind; whereas equality in fact may involve the necessity of different treatment . in order to attain a result which establishes an equilibrium between different situations.42

The sex and colour blindness of the concept of formal equality is both its greatest strength and its ultimate weakness. On the one hand, people would undoubtedly benefit from being judged on their merits rather than on the basis of sex or race. On the other hand, formal equality is blind to the substantive inequalities that separate people and prevent them from competing on equal terms.43

. it has long been recognised that formal equality before the law is insufficient to eliminate all forms of racial discrimination. Human rights and fundamental freedoms may be nullified or impaired by political, economic, social, cultural or religious influences in a society as well as by the formal operation of its laws. Formal equality before the law is an engine of oppression destructive of human dignity if the law entrenches inequalities "in the political, economic, social, cultural or any other field of public life".44

Equality of opportunity must be ensured for all regardless of ethnic, language, religious or cultural differences. This means that an individual must have the chance to be a full participant in national society while retaining all desired aspects of his or her culture, language and/or religion. Anything less would be either a denial of equal opportunity (and hence unlawful discrimination) or effectively enforced assimilation. Neither is acceptable.

The educational system must adjust to accommodate children with different education needs; it is not the children who must change to fit into a standard system.

Hodgson argues for 'two desiderata which are usually complementary but which may occasionally conflict with each other. Equality of opportunity requires the provision of educational services which will enable minority group members to maximise their individual talents and take their place within mainstream society. Pluralism seeks to preserve minority identity and to celebrate the diversity of cultures.'45

Do Indigenous children have a right to bilingual education?

There is a difference between learning one's mother tongue and studying other academic subjects (such as maths and history) in one's mother tongue.

The Convention on the Rights of the Child does not explicitly declare the right of minority or Indigenous children to use their own language for the purposes of general schooling. The drafters rejected a suggestion from the Four Directions Council to include the right of Indigenous children '[t]o be educated, at least at the primary level . in the language of his parents as well as an official language of the State'.46

A proper interpretation of article 27 of the International Covenant on Civil and Political Rights and article 30 of CROC certainly includes the right to be taught one's own language at school. In its General Comment on article 27 the Human Rights Committee noted

Although the rights protected under article 27 are individual rights, they depend in turn on the ability of the minority group to maintain its culture, language or religion. Accordingly, positive measures by States may also be necessary to protect the identity of a minority and the rights of its members to enjoy and develop their culture and language and to practise their religion, in community with the other members of the group.

. article 27 relates to rights whose protection imposes specific obligations on States parties. The protection of these rights 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.47

For Indigenous children in Australia, the reality is that unless they learn their own language at school they will not grow up with the ability to speak it well. They will, therefore, be unable to enjoy their right under article 27 to use their own language in community with the other members of their group. Positive action on the part of the State in this context means teaching of the Indigenous language. It will also mean teaching in the Indigenous language if that is necessary for or conducive to learning the Indigenous language.

If the evidence establishes that Indigenous children have better education outcomes if taught, at least in part or for a time, in their own language, then the answer is clearly yes because Indigenous children have a right to full equality in education. The issue becomes what the test of education outcomes is, who decides and what happens if one measurement is favourable while another is not?

Article 28 of ILO 169 - not yet adopted by Australia - would not provide a definitive answer on bilingual education. It establishes a right for Indigenous children to learn their own language and also the national language but does not require that they learn other subjects in their own language.

Do children with disabilities have a right to full integration in the school system?

The answer given by international law to this question depends on what is necessary to achieve the objectives it sets for the education of children with disabilities. The aims of the Convention on the Rights of the Child include to promote the child's self-reliance, to facilitate the child's active participation in the community and to assist the child to achieve the fullest possible social integration. These aims strongly argue for integration into the school environment.

The Disability Discrimination Act 1992 (Cth) ('DDA') does not make any judgment as to the best type of education for students with disabilities. It does not favour mainstream over special, or vice versa.

It does require that, whatever choice is made for education, there be no unlawful discrimination on the ground of disability. Many parents may continue to prefer special education for their child. Section 45 of the DDA allows for such special measures provided they do not infringe the child's human rights and are reasonably intended to benefit the child.

Section 22 of the DDA states it is unlawful for an educational authority to discriminate against a person on the ground of the person's disability or a disability of any of the person's associates by refusing or failing to accept the person's application for admission as a student or in the terms or conditions on which it is prepared to admit the person as a student. Furthermore, it is unlawful to discriminate on the ground of disability by denying or limiting access to any benefit provided by the educational authority or by expelling the student or by subjecting the student to any other detriment.

It is not unlawful to refuse or fail to accept a person's application for admission as a student where the person, if admitted, would require services or facilities that are not required by students who do not have a disability and the provision of which would impose unjustifiable hardship on the educational authority.

Section 11 of the DDA sets out the relevant factors in determining 'unjustifiable hardship'. They include the nature of the benefit likely to accrue or the detriment which may be suffered by any persons concerned, the effect of the disability of the person concerned, the financial circumstances and the estimated amount of expenditure required to be made by the person claiming unjustifiable hardship and any other factors which may be relevant in the particular circumstances.

The provision of 'adequate resources' as such is not demanded by the Act. The DDA cannot require State or other governments and authorities to make particular budgetary decisions: it can only require that whatever budget is available is distributed in a non-discriminatory way. The Act, however, does require reasonable accommodation. The level of resources provided is relevant in determining what is reasonable.

The purpose of ensuring access to education for young people with disabilities, and so for providing the funding, is learning to whatever level is possible. It is of no use to have access to being present - just sitting in a classroom - if genuine learning is not facilitated.

Other questions about the DDA and students with disabilities are answered on the Commission's website: http://www.humanrights.gov.au/disability_rights/faq/Education/education_faq.html

See the article 'One school for all children' at http://www.unesco.org/education/efa/efa_32/overview.htm. The article makes the point that 'Inclusive education is the most effective means of combating discriminatory attitudes, creating welcoming communities, building an inclusive society and achieving true education for all, according to the Salamanca Statement adopted at the 1994 World Conference on Special Needs Education'.

What 'measures to reduce drop-out rates' would be lawful?

Hodgson notes that the drafters of the Convention on the Rights of the Child intended these measures to be 'positive' rather than 'punitive'.48

Endnotes

21 In this paper the term 'States' refers to States Parties to international treaties, namely countries. It does not refer to the States of Australia.
22 Committee on Economic, Social and Cultural Rights, General Comment 5, paragraph 9.
23 Committee on Economic, Social and Cultural Rights, General Comment 5, paragraph 11.
24 Geraldine van Bueren, The International Law on the Rights of the Child, Martinus Nijhoff Publishers, 1995, page 237.
25 Douglas Hodgson, The Human Rights to Education, Ashgate Publishing Ltd, 1998, page 41.
26 Manfred Nowak, 'The right to education' in A Eide et al (eds) Economic, Social and Cultural Rights: A Textbook (Martinus Nijhoff, 1995), pages 189-211.
27 Committee on Economic, Social and Cultural Rights, General Comment No. 11, 1999, paragraph 6.
28 Committee on Economic, Social and Cultural Rights, General Comment No. 11, 1999, paragraph 7.
29 Committee on Economic, Social and Cultural Rights, General Comment No. 13, 1999, paragraph 45.
30 Committee on Economic, Social and Cultural Rights, General Comment No. 13, 1999, paragraph 12.
31 General Comment No. 13, 1999, paragraph 12.
32 Paragraph 13.
33 General Comment No. 13, 1999, paragraphs 32 and 33. 34 Manfred Nowak, 'The Right to Education' in A Eide et al (eds) Economic, Social and Cultural Rights: A Textbook (Martinus Nijhoff, 1995), pages 189-211 at page 202.
35 General Comment No. 13, 1999, paragraph 15.
36 General Comment No. 13, 1999, paragraph 16.
37 Manfred Nowak, 'The Right to Education' in A Eide et al (eds) Economic, Social and Cultural Rights: A Textbook (Martinus Nijhoff, 1995), pages 189-211, at page 206.
38 Committee on Economic, Social and Cultural Rights, General Comment No. 13, 1999, paragraph 48.
39 Nowak, at pages 200-201.
40 Nowak, at page 207.
41 Blom, Lindgren et al v Sweden and Hjord et al v Sweden, Communications 191/1985, 298/1988 and 299/1988 to the UN Human Rights Committee.
42 Permanent Court of International Justice, South-West Africa Case, 1935.
43 Jane Gregory, Sex, Race and the Law: Legislating for Equality, Sage Publications, 1987, page 16.
44 Justice Brennan, Gerhardy v Brown [1985] 92-123 Equal Opportunity Cases at 76,245.
45 Douglas Hodgson, The Human Right to Education, Ashgate Publishing Ltd, 1998, page 86.
46 Quoted by Douglas Hodgson, The Human Right to Education, Ashgate Publishing Ltd, 1998, page 93.
47 Human Rights Committee, General Comment 23, paragraphs 6 and 9.
48 Douglas Hodgson, The Human Rights to Education, Ashgate Publishing Ltd, 1998, page 47.

Last updated 2 December 2001.