Right to education

Public sector guidance sheet

Disclaimer
This material is provided to persons who have a role in Commonwealth legislation, policy and programs as general guidance only and is not to be relied upon as legal advice. Commonwealth agencies subject to the Legal Services Directions 2005 requiring legal advice in relation to matters raised in this Guidance Sheet must seek that advice in accordance with the Directions.

What is the right to education?

The UN Committee on Economic Social and Cultural Rights has stated that the right to education requires that functioning educational institutions and programs have to be available in sufficient quantity within a country. Education must be within safe physical reach, either by attendance at some reasonably convenient geographic location or via access to a 'distance learning' program. All institutions and programs are likely to require appropriate physical facilities, trained teachers receiving domestically competitive salaries, teaching materials, libraries and computer facilities.

Where does the right to education come from?

Australia is a party to seven core international human rights treaties. The right to education is contained in article 13 of the International Covenant on Economic, Social and Cultural Rights (ICESCR).

See also articles 5(e)(v) and 7 of the Convention on the Elimination of All Forms of Racial Discrimination (CERD) , articles 10 and 14(2)(d) of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) , articles 13, 17, 28 and 29 of the Convention on the Rights of the Child and articles 9, 21, 24 and 26 of the Convention on the Rights of Persons with Disabilities (CRPD).

The CRC contains similar provisions to article 13 of ICESCR, and also provides that the education of the child shall be directed to the development of the child's personality, talents and mental and physical abilities to their fullest potential.

CEDAW requires measures to be taken to ensure, on a basis of equality of men and women, the same conditions for access to studies and for the achievement of qualifications in educational establishments including in pre-school, general, technical, professional and higher technical education, as well as in all types of vocational training.

The CRPD requires countries to ensure an education system at all levels directed to the development by people with disability of their personality, talents and creativity, as well as their mental and physical abilities, to their fullest potential. CRPD also requires countries to ensure accessibility by people with disability to schools and to information and communications services.

When do I need to consider the right to education?

You will need to consider the right to education if you are working on legislation, a policy or a program that:

  • relates to any aspect of primary, secondary (including technical and vocational education) or higher education
  • establishes standards which must be met by educational institutions, both Government and non-Government
  • relates to the resourcing of educational institutions, including salaries for teachers
  • relates to access to education of particular classes of persons who may face barriers to it, such as Indigenous people with disability
  • relates to education of international students, dependent children of refugee applicants or unaccompanied minors
  • relates to the qualification for entry into higher education institutions
  • imposes restrictions on the ability to study (eg short term temporary entrants)
  • provides for the payment of fees by and for financial assistance to students in higher education institutions
  • relates to Government support for non-Government educational institutions
  • relates to the instruction in religion in educational institutions
  • relates to permissible forms of discipline in educational institutions, such as corporal punishment, or
  • relates to human rights education.

This list should not be regarded as exhaustive.

What is the scope of the right to education?

The UN Committee on Economic Social and Cultural Rights has stated that the right to education requires that functioning educational institutions and programs have to be available in sufficient quantity within a country. Education must be within safe physical reach, either by attendance at some reasonably convenient geographic location or via access to a 'distance learning' program. All institutions and programs are likely to require appropriate physical facilities, trained teachers receiving domestically competitive salaries, teaching materials, libraries and computer facilities.

While primary and secondary education must be available and accessible to all, higher education 'shall be made equally accessible to all, on the basis of capacity' under article 13(2)(c) of ICESCR. The UN Committee has stated that the 'capacity' of individuals should be assessed by reference to all their relevant expertise and experience.

Article 13(2)(b) presents technical and vocational education as part of secondary education, reflecting its particular importance at this level of education. Technical and vocational education should enable students to acquire knowledge and skills which contribute to their employability and enhance their productivity. It should also provide retraining for adults whose current knowledge and skills have become obsolete owing to technological or other changes.

The UN Committee has stated that public school instruction in subjects such as the general history of religions and ethics is permissible if it is given in an unbiased and objective way, respectful of the freedoms of opinion, conscience and expression. Instruction in a particular religion or belief should make provision for non-discriminatory exemptions or alternatives that would accommodate the wishes of parents and guardians.

Article 13(3) provides for the liberty of parents and guardians to choose non-government schools for their children, provided the schools conform to 'such minimum educational standards as may be laid down or approved by the State'. The UN Committee has stated that countries are obliged to establish 'minimum educational standards' to which all educational institutions established in accordance with article 13(3) and (4) are required to conform. They must also maintain a transparent and effective system to monitor such standards.

Article 13(4) affirms 'the liberty of individuals and bodies to establish and direct educational institutions', provided the institutions conform to the educational objectives set out in article 13(1) and to minimum educational standards.

In the view of the UN Committee, corporal punishment is inconsistent with the fundamental guiding principle of international human rights law, namely the dignity of the individual. Other aspects of school discipline may also be inconsistent with human dignity, such as public humiliation. The UN Committee has stated that a country is required to take measures to ensure that discipline which is inconsistent with human rights standards does not occur in any public or private educational institution within its jurisdiction.

A number of provisions require measures that provide for education in human rights. The third sentence of article 13(1) requires that education shall promote understanding, tolerance and friendship among all nations and all racial, ethnic or religious groups. The CRC requires that the education of the child shall be directed to the development of respect for human rights and fundamental freedoms, and for the principles enshrined in the Charter of the United Nations. CERD requires countries to adopt measures, particularly in the field of education, to combat prejudices which lead to racial discrimination and to promote understanding and tolerance among nations and racial groups.

The UN Committee on Economic Social and Cultural Rights has expressed concern about disparities in access to the educational system for Indigenous peoples, including those living in remote areas, compared with the rest of the population, as well as the deficient quality of education provided to persons living in remote areas, in particular indigenous peoples.

Declaration on the Rights of Indigenous Peoples

The Declaration on the Rights of Indigenous Peoples contains provisions relevant to the right of Indigenous peoples to education. The Declaration does not create legally binding obligations, but informs the way governments engage with and protect the rights of Indigenous peoples.

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What is the obligation under ICESCR?

Obligations of progressive realisation

Under article 2(1) of ICESCR, a country is obliged to take steps 'to the maximum of its available resources, with a view to achieving progressively the full realisation' of the rights recognised in ICESCR. The UN Committee on Economic Social and Cultural Rights has stated that this provision is 'a necessary flexibility device, reflecting the realities of the real world and the difficulties involved for any country in ensuring full realization of economic, social and cultural rights'. However, the Committee has also stated that 'the phrase must be read in the light of the overall objective ... of the Covenant which is to establish clear obligations for States parties in respect of the full realization of the rights in question', and that 'it thus imposes an obligation to move as expeditiously and effectively as possible towards that goal'.

Obligations of immediate effect

The Committee has stated that, notwithstanding the progressive realisation provision, there are two obligations that are of immediate effect. They are the guarantee in article 2(2) of ICESCR that the rights under the Covenant will be exercised without discrimination of any kind and the obligation under article 2(1) to 'take steps'. This means that steps towards realisation of the rights under the Covenant must be taken within a reasonably short time after the country becomes party to the Covenant and that the steps should be deliberate, concrete and targeted as clearly as possible towards meeting the obligations under the Covenant.

Can the right to education be limited?

Article 4 of ICESCR provides that countries may subject economic social and cultural rights only to such limitations 'as are determined by law only in so far as this may be compatible with the nature of these rights and solely for the purpose of promoting the general welfare in a democratic society'. The UN Committee has stated that such limitations must be proportional, and must be the least restrictive alternative where several types of limitations are available, and that even where such limitations are permitted, they should be of limited duration and subject to review. Measures that are retrogressive to the realisation of economic, social and cultural rights must also be properly justified. A retrogressive measure is one that reduces the extent to which an economic, social and cultural right is guaranteed.

Which domestic laws relate to the right to education?

The state and territory governments are responsible for most aspects of primary and secondary education, and provide most of the funding. Legislation in every state and territory makes school attendance compulsory from age six to 15 or 16. There is no Commonwealth legislation explicitly enshrining the right to education. The following laws deal with aspects of the right to education relevant to the Commonwealth's responsibilities.

The Higher Education Funding Act 1988 provides for funding for certain institutions of higher education and for the Higher Education Contribution Scheme (HECS) and other forms of financial assistance for students at higher education institutions.

The Schools Assistance Act 2008 provides for financial assistance to the States and Territories for non-Government primary and secondary education.

The Indigenous Education (Targeted Assistance) Act 2000 provides targeted financial assistance which is intended to advance the education of Indigenous persons.

The Education Services for Overseas Students Act 2000 is designed to provide financial and tuition assistance to overseas students for courses for which they have paid.

Under the Disability Discrimination Act 1992, the Attorney-General may make Disability Standards to specify rights and responsibilities about equal access and opportunity for people with disability, in more detail and with more certainty than the Act itself provides. A Standard has been made under the Act in relation to education, which sets out the right to comparable access, services and facilities, and the right to participate in education and training without discrimination for students with disabilities.

What other rights and freedoms relate to the right to education?

The obligation to provide technical and vocational education is related to the right to work in article 6 of ICESCR.

The right to education may be relevant to:

  • the rights of the child in the CRC
  • the rights of people with disability in the CRPD
  • the right to freedom of religion in article 18(4) of the ICCPR
  • the obligation to accord refugees the same treatment as is accorded to citizens with respect to elementary education in article 22 of the Convention relating to the Status of Refugees.

Articles from relevant Conventions

International Covenant on Economic, Social and Cultural Rights

Article 13

1. The States Parties to the present Covenant recognize the right of everyone to education. They agree that education shall be directed to the full development of the human personality and the sense of its dignity, and shall strengthen the respect for human rights and fundamental freedoms. They further agree that education shall enable all persons to participate effectively in a free society, promote understanding, tolerance and friendship among all nations and all racial, ethnic or religious groups, and further the activities of the United Nations for the maintenance of peace.

2. The States Parties to the present Covenant recognize that, with a view to achieving the full realization of this right:

  • Primary education shall be compulsory and available free to all;
  • Secondary education in its different forms, including technical and vocational secondary education, shall be made generally available and accessible to all by every appropriate means, and in particular by the progressive introduction of free education;
  • Higher education shall be made equally accessible to all, on the basis of capacity, by every appropriate means, and in particular by the progressive introduction of free education;
  • Fundamental education shall be encouraged or intensified as far as possible for those persons who have not received or completed the whole period of their primary education;
  • The development of a system of schools at all levels shall be actively pursued, an adequate fellowship system shall be established, and the material conditions of teaching staff shall be continuously improved.

3. The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to choose for their children schools, other than those established by the public authorities, which conform to such minimum educational standards as may be laid down or approved by the State and to ensure the religious and moral education of their children in conformity with their own convictions.

4. No part of this article shall be construed so as to interfere with the liberty of individuals and bodies to establish and direct educational institutions, subject always to the observance of the principles set forth in paragraph I of this article and to the requirement that the education given in such institutions shall conform to such minimum standards as may be laid down by the State.

See also: CERD articles 5(e)(v), 7; CEDAW articles 10, 14(2)(d); CRC articles 13, 17, 28 and 29; CRPD articles 9, 21, 24, 26.

Where can I read more about the right to education?