Rural and Remote Education Inquiry Briefing Paper

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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?
Do
children have a right to pre-school education?
What
does 'available' mean? What does 'accessible' mean?
How
can primary education be both compulsory and a right?
Do
primary school fees violate human rights?
Do
secondary school fees violate human rights?
Does
secondary schooling have to be basically the same for everyone?
Are
students entitled to study VET at schools?
Do
parents and children have a right to choice in education?
Do
parents have a right to educate their children at home?
How
can education be both equal and plural?
Do
Indigenous children have a right to bilingual education?
Do
children with disabilities have a right to full integration in the school

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

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.

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

Is a student who
is being bullied at school denied access to education when he or she

stops feeling comfortable in his or her school environment?
Must a child actually
be physically denied a presence at the school to be denied access to

education?
What about a child
who is emotionally cut off from his or her peers or teachers because

of cultural, situational or emotional differences?
Is a school entitled
to suspend or expel a student and, if so, what justifies this step?

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:

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;

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;

Provides retraining
for adults whose current knowledge and skills have become obsolete

owing to technological, economic, employment, social or other changes;

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;

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.

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.

Rural and Remote Education Inquiry Briefing Paper

3. Beginning a benchmarking process

Endnotes

3. Beginning a benchmarking

process