and Remote Education Inquiry Briefing Paper
The principal issues
concerning human rights in education for Indigenous children are raised
in the inquiry's Briefing Paper on The Human Right
- G1 Availability
- G2 Non-discriminatory
- G3 Education
in culture and language
- G4 Bilingual
- G5 Participation
With respect to the
availability and accessibility of education the Briefing Paper concludes
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.
Every child has the
right to education without 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'. Freedom from discrimination
'does not mean identical treatment in every instance' and certain legal
exceptions do exist.
[T]he poor level
of literacy among Aboriginal and Torres Strait Islander children might
be seen as a breach of Article 28 of the Convention on the Rights of
the Child. This article articulates the right of every child to education.
Literacy is a basic outcome of education (ATSIC submission, page
It is vital to appreciate
that identical treatment which ignores relevant differences in fact has
the effect of entrenching inequality and disadvantage. The inquiry was
told that this is not widely appreciated in Australian education systems.
governments are wedded to policies of formal equality. That is services
and opportunities will be provided equally to all and some "special measures"
of a temporary nature may be employed to overcome disadvantage. In this
context the disadvantage of Aboriginal and Torres Strait Islander peoples
ceases to exist when parity is reached with non-Indigenous people on socio-economic
benchmarks. Such an approach provides for "special treatment" for as long
as any group is formally unequal and takes it away when it is considered
that the pendulum has swung to far.
A broader understanding
of equality, and one which ATSIC supports, is that of substantive equality.
Substantive equality provides that opportunities, services and structural
responses (eg "different treatment") should be provided on the basis
of people's specific needs and rights.
treatment may be necessary to respond adequately to the particular circumstances
of a person or a group or to reflect the special character of their
interests. ...Substantive equality recognises that different treatment
is not only permitted, but may be required to achieve real fairness
relevance here is the international jurisprudence of the Convention
on the Elimination of Racial Discrimination (CERD) and the Human Rights
Committee on the principles of equality and non-discrimination. This
body of jurisprudence establishes that not all differences in treatment
are discriminatory; that is, equality does not mean identical treatment.
Distinctions are not discriminatory where they pursue a legitimate aim.
Special measures -or affirmative action - are sometimes required to
redress inequality and to secure for members of disadvantaged groups
full and equal enjoyment of their human rights. And particular regimes
of minority rights are consistent with, and sometimes required to achieve
factual or substantive equality.45
Thus, the protection
of Indigenous peoples' distinct rights is also implicit in the concept
of substantive equality. Positive measures of protection are necessary
to achieve substantive equality and to accommodate the inherently different
and distinct Indigenous identities. When considering equality for Indigenous
peoples in the exercise and enjoyment of the right to education an assessment
must be made in an Indigenous human rights context (ATSIC submission,
when we talk of equity of outcomes, we are talking about a fair go in
terms of outcomes, and here of course we are talking about the cultural
background of the students and the desire of parents for cultural inclusiveness
within curriculum etc (John Bucknell, Aboriginal Independent Schools
Unit, Broome hearing, 20 May 1999).
are entitled to receive an education which is culturally-appropriate and
teaches them their language and culture as well as the mainstream language
and culture. The objective is not identical education and outcomes but
comparable and equally valued outcomes and opportunities.
It was argued in
evidence that this right is being denied to Indigenous children in Australia.
continuing disparity between Indigenous and non-Indigenous Australians
goes deeper than even the severe economic consequences. It becomes an
issue about Indigenous students' basic human rights not being met, their
right to receive a culturally appropriate education, one in which cultural
identity, languages and values are not disregarded, and an education free
from discrimination (David Curtis, ATSIC Commissioner, Melbourne hearing,
12 November 1999).
From the community
consultations another view of successful outcomes for Indigenous people
with regard to education, begins to emerge. When community people were
asked on their views on what education and/or school was for, 'to be
able to compete with mainstream kids and hopefully get a job' was the
desire most had for themselves/their children. It also became clear
that this should not be gained at any cost, and that Indigenous cultural
values should not be disregarded (ATSIC submission, page 32).
Equity of educational
outcomes means not just providing strategies to raise retention or graduation
rates, but also incorporating Indigenous perspectives and raising awareness
of Aboriginal and Torres Strait Islander issues and promotion of human
rights generally within the education system. 'Aboriginal children need
to be strong in their own cultural identity first' was how one parent
expressed the need to counter 'some of the [misinformation] still being
taught about Australian history and Indigenous cultures'. Again this
is supported by Article 29 of CROC where it states that the education
that is compulsorily provided is to instil respect in all children for
cultural identity and values (ATSIC submission, page 33).
With respect to whether
Indigenous children whose first language is an Indigenous language have
a right to receive a bilingual education the Briefing Paper on the Human
Right to Education concludes
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 importance of
valuing Indigenous languages was described.
In our remote
areas there are many linguistic backgrounds. These languages are the lifeline
for the remote communities, because you cannot separate culture from language
. Language gives identity, it gives self-esteem, it makes Indigenous people
unique .... (Sister Anne Gardiner, Darwin hearing, 10 May 1999).
Four different ways
to use two (or more) languages in education are described in the Definitions
section of this Briefing Paper: language immersion, language submersion,
bilingual and second language teaching. Children have a right to be taught
in a way which ensures equity in education access and outcomes. Therefore,
it is vital to appreciate which form of language teaching will achieve
the best results.
UNICEF has concluded
be an alien and daunting place for the many . young children who begin
classwork in a language different from their own. Compelled to adopt a
second language when they are as young as four, five or six, these children
must give up an entire universe of meaning for an unfamiliar one. They
may also come to believe that the language they have known from birth
is inferior to the language of school. In learning complex subjects such
as mathematics and reading, they must undergo one of the greatest challenges
they will ever face, yet the linguistic skills on which much of their
cognitive faculties rest have suddenly been deemed irrelevant to the task
As these building
blocks of knowledge crumble, so can the children's self-esteem and sense
of identity. It is no wonder that so many of them struggle to stay in
school and succeed ...
recognize how important it is for children to use their mother tongue
when they begin school. Use of this tongue validates their experiences.
It helps them learn about the nature of language itself and how to use
language to make sense of the world, including all aspects of the school
The mother tongue
is an essential foundation for learning.46
Children have another
language right as well according to UNICEF, namely the right to learn
the language of the dominant society.
proficiency in a national language . also has advantages. It broadens
communication and, later on, affords greater opportunities for higher
education and jobs.47
Professor Lo Bianco's
paper details some of the considerations, pre-requisites and barriers
to success in each form with particular reference to the differences between
language immersion and bilingual education.
1. Apparent contradiction
There is an apparent
contradiction in the practice of two-language education. Immersion education
has been found to be highly successful for children who are able to learn
general subject matter and the target language (and maintain their English
development) through the use of the target language as the principal medium
of instruction. This success has been attested to in Canada, the USA,
Australia and in Europe in many different kinds of what are essentially
or Indigenous minority children taught only in English (the target language)
often not succeed in schooling to the same degree, lose mastery of their
mother tongue and do not always attain high levels of standard English
proficiency. Therefore it seems that the use of a language other than
the home or mother tongue of learners can lead to educational success
in the case of elites, why should this not apply to minorities when they
are taught in English?
between immersion and bilingual education although they may seem to be
substantial are more apparent than real. The following variables make
the distinction clearer.
2. Bilingual or
In immersion programs
teachers tend to be bilinguals and the class language groups monolingual,
or at least share a common language. This usually means that although
teachers 'present a monolingual model' of the target language to the learners
as their teaching approach (i.e. they do not use the learners' language)
they are in fact bilingual and therefore accept first language communication
from the students. This rarely applies in bilingual education. In bilingual
programs with language minority children the teacher often does share
a common language of communication with the learners.
are invariably extremely well resourced with adaptations of the regular
curriculum in the target language, which is invariably a prestige international
typically apply to social elites with significant capacity to exercise
educational choice. Bilingual programs usually are typically language
bridging initiatives in which children are assisted to continue their
general education whilst they acquire the socially dominant language,
and language of the curriculum, as a prelude to transferring their learning
fully to that medium.
It is often the case
that immersion programs are made up of monolingual common language learner
cohorts. This is significant since knowledge of the constrastive differences
between the target and the source language are part of the educational
preparation of the teachers. In addition this means that learners and
their bilingual teachers share a common language.
In minority language
contexts the social circumstances of language shift are often in evidence.
This means that there is progressive attrition of the mother tongue of
the learners who are therefore gaining a temporary bilingualism as a prelude
to monolingualism in the target or dominant language. In immersion contexts
the reverse situation applies in that the learners are adding a socially
esteemed skill to their established linguistic repertoire.
For minorities involved
in transitional bilingual education the time involved in gaining skill
in the target language and the mother tongue has been found to be highly
inadequate to the task. On the other hand, immersion children enjoy sustained
and extensive long term opportunities to develop their bilingual proficiency.
8. The source
language and its status
For immersion students
the source language is typically the dominant language of the society
and of the curriculum and usually the target language for minorities involved
in bilingual education. This is a highly felicitous condition that makes
a substantial impact on the kinds of programs that immersion versus bilingual
instruction really are.
For immersion education
the principal justificatory rationale is the greater demonstrated effectiveness
of immersion education regarding the learning of esteemed languages.
In bilingual education
there have been four main justifications: uninterrupted or minimally disrupted
conceptual development; the claimed effects of early bilingualism on general
intellectual development; the claimed enhanced ultimate acquisition of
English; and fourth the socio-cultural and identity justifications to
do with the connection between the child and its home language, culture
In essence the educational
principle on which transitional bilingual education has been based is
the idea that uninterrupted conceptual development is a necessary precondition
for allowing learners to participate in schooling at age appropriate norms.
The main educational principle for maintenance bilingual education concerns
the socio-cultural and identity rationale of advancing bilingualism as
a personal and social asset.
10. Content conveyed
in the languages
In immersion programs
there is extensive effort to research the learners progress in the language,
and to retain skill in the mother tongue, often by 're-labelling' knowledge
gained in the language of instruction. A commensurate effort is not typically
found in bilingual education programs.
Utilising these distinctions
in types and kinds of programs and some of the variables that are salient
in thinking about the programs what are the general options that Australian
schools might adopt for effective education. Effective education here
means a bilingual and bicultural outcome from schooling involving least:
- the attainment
of academic-literate success for Australian indigenous children according
to age appropriate norms
- the acquisition
of English sufficient to permit the learners to progress through upper
schooling and beyond to further education
- the maintenance
and development of the communicative and academic proficiency in the
- an educational
experience which fosters and reinforces the distinctive cultural identity,
self-esteem, family and cultural knowledge and of the learner and his
or her community.
For Indigenous children
who speak a language other than English as their principal language when
they commence schooling the broad options are
- Immersion in English
medium education (with ESL)
- Submersion in
English (without ESL)
- Transitional Bilingual
Education (monoliterate or partial biliterate) with ESL
- Maintenance Bilingual
on the Rights of the Child requires governments to introduce measures
to limit school drop-out and also to make primary education compulsory.
Measures to reduce truancy must be 'positive' rather than 'punitive'.
Some witnesses were critical of anti-truancy measures as they affect Indigenous
At the beginning
of the year the police put up a sign saying that children have to attend
school and that if they do not their parents will be fined. Imposing fines
on parents when their children don't attend school is not a good idea.
It will only result in people being dragged into the criminal justice
system if they can't pay the fine (Doomadgee Qld community meeting,
6 October 1999).
penalties [for non-attendance at school] could be imposed on parents
pursuant to a council by-law rather than through the criminal justice
system (Doomadgee Qld community meeting, 6 October 1999).
The right of Aboriginal
and Torres Strait Islander peoples to ensure that their children receive
a culturally appropriate education and the rights of all children to
have a voice in the various aspects of their lives, provides the context
against which to evaluate the success of mechanisms to provide compulsory
free education. Education systems with compulsory attendance regimes
therefore face the challenge of ensuring that the service provided meets
human rights imperatives in terms of cultural and children's rights
(ATSIC submission, page 32).
Native Title Report, 1997-98
45 CERD General Recommendations XIV (1993), XXI (1996), XXIII
(1997), General Comments of the Human Rights Committee: 12 (1984), 17
(1989), 18 (1989), 23 (1994).
46 Carol Bellamy, The State of the World's Children 1999:
Education, UNICEF, 1999, page 44.
Recommendations to the inquiry
updated 2 December 2001.