Rural and Remote Education Inquiry Briefing Paper

Rural and Remote

Education Inquiry Briefing Paper

2. Defining key terms

• Accessible
• Available
• Child
• Cultural

  identity

• Disability
• Discrimination
• Education
• Free
• Indigenous
• Language
• Minority
• Religion
• Vocational

  education

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:

• Geographic distribution
• Sufficient quantity
• Open and non-discriminatory

  right of entry

• Provision of proper

  facilities and staff.

'[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.

2. 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.