Rural and Remote
Education Inquiry Briefing Paper
3. Beginning a benchmarking
the Commonwealth have an obligation to introduce measures to ensure
that its international treaty obligations are implemented?
children have a right to pre-school education?
does 'available' mean? What does 'accessible' mean?
can primary education be both compulsory and a right?
primary school fees violate human rights?
secondary school fees violate human rights?
secondary schooling have to be basically the same for everyone?
students entitled to study VET at schools?
parents and children have a right to choice in education?
parents have a right to educate their children at home?
can education be both equal and plural?
Indigenous children have a right to bilingual education?
children with disabilities have a right to full integration in the school
'measures to reduce drop-out rates' would be lawful?
the Commonwealth have an obligation to introduce measures to ensure that
its international treaty obligations are implemented?
law clearly establishes that States must do more than merely refrain from
measures that would impede the exercise of human rights.21
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
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
See also the short
article 'Children's Rights, Adults' Duties' by Katarina Tomasevski at
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.
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).
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.
that 'functioning educational institutions and programmes have to be available
in sufficient quantity'.
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.
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.
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'.
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
- 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?
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.
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
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
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?
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
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'.
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.
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.
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
'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.
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.
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
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
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
- 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
- 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
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
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
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
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.
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
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.
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
. 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
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
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.
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
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
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
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.
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
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
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
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
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
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
Hodgson notes that
the drafters of the Convention on the Rights of the Child intended
these measures to be 'positive' rather than 'punitive'.48
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.
31General Comment No. 13, 1999, paragraph 12.
32 Paragraph 13.
33General 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.
35General Comment No. 13, 1999, paragraph 15.
36General 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.
39Nowak, at pages 200-201.
40Nowak, at page 207.
41Blom, 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  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
48 Douglas Hodgson, The Human Rights to Education, Ashgate
Publishing Ltd, 1998, page 47.
updated 2 December 2001.