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Willing, Ross --- "The Right to Education in Australia: A Case Study of Higher Education Policy" [2014] UNSWLawJlStuS 6; (2014) UNSWLJ Student Series No 14-06


THE RIGHT TO EDUCATION IN AUSTRALIA: A CASE STUDY OF HIGHER EDUCATION POLICY

ROSS WILLING[*]

ABSTRACT

Economic, Social and Cultural Rights (ESCRs), along with other human rights, have limited formal protection in the Australian domestic context despite apparent support for the ends that these rights promote. This paper considers the scope and application of the right to education in the International Covenant on Economic, Social and Cultural Rights (ICESCR) to higher education policy. To do so, it uses a framework that considers the structure, process and outcomes of policy aimed at giving effect to the right to education, as it relates to recent announcements about Government policy. The paper concludes that a rights-based analysis has much to offer the debate on higher education reform and formal mechanisms should be considered for adopting this framework into the policy process.

I INTRODUCTION

The formal protection of human rights in Australia is notoriously limited in comparison to other nations. This is especially the case with the economic, social and cultural rights (ESCRs), which are provided in the International Covenant on Economic Social and Rights (ICESCR).[†] ESCRs, which include to work and workers’ rights, health, social security, and education, have for a long time played second-fiddle to civil and political rights (C&PRs),[‡] which are enumerated in the International Covenant on Civil and Political Rights (ICCPR) and include an array of individual freedoms and protections.[§] Australia’s protection of C&PRs is the most limited in the world and is currently the only democratic country in the world without a Bill of Rights. It is therefore unsurprising that ESCRs, which do not enjoy the same level of support in the domestic rights frameworks of many nations,[**] are not formally protected in Australia.[††]

However, over the past decade there have been a series of reviews into the potential enforcement of human rights in Australia and,[‡‡] when consulted, the Australian public would appear not to give much credence to the superiority of CPRs over ESCRs. In the Victorian Consultation, prior to the introduction of the Victorian Charter,[§§] over 41% of the submissions argued in favour of the introduction of ESCRs,[***] with the final report emphasising the importance of healthcare, education and basic services. However the Committee chose not to recommend the implementation of such rights in the Victorian Charter, and rather to defer until a later review.[†††] Although the 2003 ACT Consultative Committee recommended the introduction of socio-economic rights in the ACT Human Rights Act,[‡‡‡] that advice was not accepted. Finally, the 2010 National Human Rights Consultation (NHRC), led by Father Frank Brennan, noted that

[f]or most Australians the main concern is the realisation of primary economic and social rights such as the rights to education, housing and the highest attainable standard of health.[§§§]

These public consultations are intended to synthesise the public’s view on these rights, and their conclusions should be taken seriously. And, collectively, the evidence would appear to demonstrate that Australians do value ESCRs, despite the absence of any effective mechanism of seeing them enforced.

The NHRC did ultimately recommend that a Human Rights Act be introduced covering C&PRs,[****] however found that ESCRs, despite significant support, either should not be included or should not be justiciable under any prospective Act.[††††] Instead, the NHRC recommended that the scope of the Australian Human Rights Commission be expanded to include ICESCR.[‡‡‡‡] Consequently, there were effective case studies into areas in which the right may be applicable to determine what potential aspects of an individual right might lend themselves to different mechanisms for enforcement.

The purpose of this analysis is therefore to demonstrate the potential value of a rights-based analysis of ESCRs in the debate and development of public policy. To do so it considers the application of the right to education, just one of the enumerated rights in ICESCR, in relation to higher education policy in Australia, an important, though not the only, policy area to which the right has applicability. The recently proposed changes to the funding of the Australian higher education system make this analysis particularly timely, but also provide a demonstration of the value of a rights-based analysis.

The paper is separated into four parts, including this introduction. Part II will consider the scope of the right to education in international law and the obligations that it confers on State Parties as well as methods available to determine whether violations have occurred. Part III adopts a framework that analyses the structure, purpose and outcomes of higher education policy in Australia to assess whether the Commonwealth is meeting its obligations. This analysis reveals that there is significant scope for a rights-based analysis to be used in the process of policy development and evaluation. Part IV provides a brief summary and concludes that the analysis is valuable and that further research should be undertaken to consider the potential application of ESCRs protection mechanisms in Australia.

II THE RIGHT TO EDUCATION

The right to education is one of the most important rights in international human rights law. The right to education is an empowerment right that is intrinsically valuable, but also acts as a means to the realisation of other rights.[§§§§] The enjoyment of a decent standard of education enhances all other rights and its violation jeopardises them all[.] However it is also a particularly complex righ[t ]and the first step in the analysis of the right to education in Australia is to clarify its content. While some aspects do not relate to higher education, or clearly would not be applicable to Australia, the context of the obligations that arise under right is necessary to understand for the forthcoming analysis.

A The Right to Education in ICESCR

The Universal Declaration on Human Rights (UDHR) is the first example of the enunciation of education as a fundamental human right[.] However, the UDHR, while carrying a substantial degree of moral authority, is not a binding legal document since it is only a resolution of the UN General Assembly. Importantly, however, the UDHR became the foundation for the right to be included in Article 13 of ICESCR and adopts much of the same language with some variations[.] Unlike the UDHR, ICESCR is a legally binding treaty and is therefore the starting point for the right to education in International Law.

Furthermore, the Committee on Economic, Social and Cultural Rights (CESCR), which is responsible fro oversight of the covenant, often provides clarification of the interpretation of the relevant principles in General Comments and in its decisions under the Optional Protocol[.] Alongside academic work and other aspects of the international legal framework, these interpretations add a great deal of value in understanding the text of the charter and are conventionally used in assisting the determining the content of enumerated rights.

1 Articles 2 & 3

Unless otherwise provided, each of the rights in ICESCR is subject to the notion of ‘progressive realisation’ articulated in Article 2(1). It requires parties to ‘take steps ... to the maximum of its available resources, with a view to achieving progressively the full realization of rights ... by all appropriate means’[.] The Committee clarified this statement in General Comment 3: ‘the fact that realization over time, or in other words progressively, is foreseen under the Covenant should not be misinterpreted as depriving the obligation of all meaningful content.[’ ]Rather, it ‘imposes an obligation to move as expeditiously and effectively as possible towards that goal. Moreover, any deliberately retrogressive measures in that regard would require the most careful consideration’[. ]Consequently, the obligation is to take ‘immediate, deliberate, concrete, and targeted steps’ to the realisation of these rights[, ]as opposed to unequivocally provide them immediately.

However Articles 2(2) and 3 provide obligations toward non-discrimination and equal treatment that must be immediately realised. Article 2(2) explicitly states that ICESCR rights are guarantees that ‘will be exercised without discrimination of any kind’[, ]while Article 3 guarantees the ‘equal right of men and women to the enjoyment of all economic, social and cultural rights set forth in the present covenant’[.] Specifically in relation to education, Article 2(2) is ‘subject to neither progressive realization nor the availability of resources; it applies fully and immediately to all aspects of education and encompasses all internationally prohibited grounds of discrimination’[.] Consequently, in order to meet the obligations under ICESCR, it is clear that states must immediately guarantee non-discrimination as it relates to education.

2 Articles 13 & 14

The principal content of the right to education in international law lies in Articles 13 and 14 of ICESCR. Article 13(1) provides a basis to which all education must be directed. It states

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. ... [E]ducation 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[.]

This is a basic standard that applies to all levels of education, however Article 13(2) and 14 provide different obligations are articulated in relation to different levels of education.

(a) Primary

Articles 13(2)(a) and 14 require states party to prioritise the introduction of primary education ‘compulsory and available free to all’[.] CESCR has clarified this requirement as not being one of progressive realisation but one that applies immediately, the provision is ‘unequivocal’ and ‘expressly formulated so as to ensure the availability of primary education without charge to the child, parents or guardians.[&]

(b) Secondary and Tertiary

Articles 13(2)(b) and 13(2)(c) provide the standards for secondary and higher education respectively. Secondary education, which includes vocational and technical training, must be ‘generally available and accessible to all’[.] Higher education must be ‘equally accessible to all, on the basis of capacity’[.] While the progressive introduction of free secondary and tertiary education is also mandated[.] The obligation under article 13(2)(e) also requires that fellowships be provided for disadvantaged students[.]

(c) Fundamental Education and Educational Freedom

In addition to these requirements, fundamental education for people who have not received primary education shall be ‘encouraged and intensified’ according to Article 13(2)(d). While Articles 13(3) and 13(4) provide liberty to parents to select a school in accordance with their moral and religious conviction and for individuals, subject to minimum requirements, to establish independent educational institutions.

3 ‘Minimum Core Obligations’

A key issue that often arises is to what extent states are bound. One interpretation is that the ICESCR produces minimum core obligations on the state. CESCR introduced the concept of ‘minimum core obligations’ in General Comment 3. This means that there is an ‘obligation to ensure the satisfaction of, at the very least, minimum essential levels of each of the rights’, including ‘the basic forms of education’[.] Philip Alston introduced the concept prior to adoption by CESCR, as means of ensuring that there is substantial normative content within each right[.] He argues that each right must ‘give rise to an absolute minimum entitlement, in the absence of which a state party is considered to be in violation’[. ]

While the exact delineation of the core minimum is not clear, CESCR has outlined the core minimums as they apply to education, which are:

• to ensure the right of access to public educational institutions and programmes on a non-discriminatory basis;

• to ensure that education conforms to the objectives set out in article 13 (1); to provide primary education for all in accordance with article 13 (2) (a);

• to adopt and implement a national educational strategy which includes provision for secondary, higher and fundamental education;

• and to ensure free choice of education without interference from the State or third parties, subject to conformity with ‘minimum educational standards’ (art. 13 (3) and (4))[.]

If a state party does not meet these basic standards, then they will be in violation of the right, unless it can demonstrate that ‘that every effort has been made to use all resources that are at its disposition in an effort to satisfy, as a matter of priority, those minimum obligations.[&]

B The Scope of the Right to Education

The CESCR has also clarified the attributes of the right to education in General Comment 13. While other methods of delineating the content of the right to education had been proposed[, ]the CESCR chose to adopt the ‘4-A Right to Education Framework’ articulated by Katerina Tomaševski, a former Special Rapporteur on Education[.] The ‘4-As’ are: availability, accessibility, acceptability and adaptability[,] and despite CESCR not clearly linking the language of ICESCR to these principles, though attempt will be made below, they remain a useful tool in understanding the content of the right.

(a) Availability

The concept of availability in this context appears to be closely related to accessibility but is nonetheless distinct. The CESCR refer to the need for educational institutions and programs to be available in sufficient quantity and with the necessary means of functioning[.] The non-exhaustive list of examples used by CESCR includes ‘buildings or other protection from the elements, sanitation facilities for both sexes, safe drinking water, trained teachers receiving domestically competitive salaries, teaching materials’[.]

(b) Accessibility

Accessibility has three components according to CESCR[.] The first is non-discrimination as outlined in Articles 2(2) and 3, and includes the need to develop fellowship programs for the disadvantaged under Article 13(2)(e). The second component is that education must be physically accessible to all. Including those in rural areas or other vulnerable populations. The third is that education must be economically accessible to all. The words of Article 13(2) delineate the applicable standard to each level of education – the key question is the appropriate means taken to make education progressively free.

(c) Acceptability

The form and substance of education, for example the content of curriculum and the teaching methods have to be of an acceptable quality[.] This will include the objective outlined in article 13(1) and the minimum educational standards referred to Articles 13(3) and 13(4).

(d) Adaptability

Finally, education has to be flexible in order to meet the needs of the communities and societies in which it operates, in particular, it must respond to the needs of students within their diverse social and cultural settings[.] In other words, it appears that there must be some level of autonomy at the local level in order for teachers to adapt methods and curricula to ensure those students’ needs are met[.]

C Methods of Assessing Violations

Armed with the scope and content of the right, the next issue is the appropriate method used to determine whether a violation has occurred. As would be clear, determining whether or not a state party has met its obligations is not a simple exercise. However the Limburg Principles on the Implementation of the ICESCR and Maastricht Guidelines on Violations of Economic, Social and Cultural Rights[,] as well as the views of prominent academics and practitioners, assist in providing guidance.

Firstly, however, it is necessary to consider the content of the right, followed by the relevant obligation that is owed. Following from the above analysis, it can fall into one of three categories: an obligation that must be immediately realised; a minimum core obligation; or an obligation subject to progressive realisation. Whether or not a state has breached ICESCR will invariably depend on the type of obligation that is owed.

Once the type of obligation is assessed, it necessary to turn to the content of the obligation. An example of a respected typology is the model that delineates states’ duties as to ‘respect, protect and fulfil’ and is adopted in the Maastricht Principles[.] This neatly summarises the obligations of states. Applied to education a state would need to respect, a negative obligation, one’s right by not banning a person from attending a particular University, protect, a positive obligation, their right from a third party expelling them school arbitrarily and fulfil their right by providing the progressive realisation of free secondary education.

A more comprehensive model was outlined in the 2006 Hunt Report in relation to health and is given further detail in relation to education by Kalantry, Getgen and Koh[.] This model is known as ‘structure, process, outcome’ where by indicators of each are used to determine if there has been a violation[.] Structure refers to ‘whether the laws of the country are in line with treaty obligations’[.] Process refers to ‘whether the country has processes in place to implement the treaty obligations. While, outcome refers to the ‘actual status of rights in the country’[.] This approach not only takes into account whether a State is doing what it can, it further considers whether the outcomes are being achieved. The ‘obligation of result’ is another core aspect of the Maastricht Guidelines which ‘requires States to achieve specific targets to satisfy a detailed substantive standard’[.] Given that the respect, protect, and fulfil method is encapsulated in the structural and procedural indicators this approach is more comprehensive and is preferred for the purposes of this discussion.

This broader approach, while not explicitly endorsed, does have support from CESCR as well the Limburg Principles and Maastricht Guidelines. The typology, combined with the text of the Covenant and the 4-As Framework, provides a meaningful method of analysis whereby a violation can be determined by: first, considering the content of the right in question; second, determining the nature of the obligation; and third, determining whether there is a structural, procedural or outcome based problem in light of the content of the right and nature of the obligation. With this framework it is possible to consider a particular policy area to assess whether violations may have occurred.

III HIGHER EDUCATION IN AUSTRALIA

By world standards Australia’s higher education system is among the best in the world. OECD date from 2010 shows that of those aged between 25 and 24, 44% had attained tertiary education. This ranks Australia 9th among OECD and Partner countries and a full 6% above the OECD average[.] The quality of Australia’s institutions, particularly its’ elite institutions is also high, with Australia having five institution in the top 100, behind only Germany, the UK and the USA[.] However, despite these statistics, a much closer look at the structures, processes and outcomes of Australia’s tertiary sector is required to determine whether it meets its obligations under ICESCR.

A Higher Education Policy and Recent Reform Proposals

The current model of Higher Education is funded in Australia predominantly based on student enrolments and research grants. Domestic students pay a co-contribution toward the cost of the degree depending on the course of study, which is capped by the Government. The private aspect of student cost is deferred by a government loan, indexed at inflation, payable when the student earned above a certain amount, administered through the taxation system and is known as the HECS-HELP Scheme[.]

The system was introduced in the early 1990s. Known as the Dawkins reforms, it replaced an old model of free education, and is predicated on a number of factors[.] Firstly, Universities (with research-teaching nexus) delivering post-secondary education to a large portion of the population, whereas before the Dawkins reforms, a much smaller proportion of the population were able to attend University. The reforms were also predicated on equality in the quality of education regardless of the university. That is that the higher education was a ‘flat’ system that is not meant to be stratified – however, in effect, there is some degree of stratification.

In the 2014 Budget, the new Coalition Government announced a series of planned changes to Higher Education[.] It is important to note that these proposed changes are not currently law, with opposition parties announcing that they plan to block parts of the plan in the Senate[.] At the core was the announcement that the amount universities could charge would be deregulated, in effect allowing students to be charged any amount with the limit being that it cannot exceed what is charged to international students. The contribution of the government to a person’s degree was also to reduce by 20% on average. The loans, including existing loans, are to be indexed at the Government bond rate, though it caps out at 6%. The loans would also become repayable at a lower amount. In addition, the government loan system would be made available to non-university providers of education, such as private technical colleges and other institutions. The Government also announced the significant increase of funding for Commonwealth Scholarships as one in every five dollars raised must be put into the scholarship scheme.

With this background, it is now possible to consider the right to education in ICESCR as it relates to Higher Education in Australia.

B Issues Relating to the Right to Education

The recent reforms are targeted at improving the competitiveness of Australia’s elite institutions[.] The Group of Eight, the advocacy body of Australia’s highest performing research-intensive institutions, has backed the Government’s reform agenda[.] The ability of these institutions to charge higher fees will undoubtedly increase their capacity to provide quality education and research into the future. However there have been critics of the reforms among members outside the Group of 8 (and even some within) with serious concerns about rising student debt[.]

On the face of the reforms and the existing arrangements, and based on public comments, the primary issue in relation to the right to education in the Australia University sector appears to be access. Especially given the obligation to progressively implement free tertiary education[.] Consequently, the following section will deal with these issues in detail.

However on the other measure of the 4-A’s Framework, there would not appear to be a prime facie case to think that there has been violations. The availability of higher education, as it relates to a functioning system of tertiary educations is not at issue. Australia has a system of almost 40 public universities, with over a million enrolled students[.] The current and proposed funding models would appear to provide an adequate amount to meet the basic standards required of the institutions. Though, this is not to say that in isolated cases there will not be issues.

The acceptability of higher education in Australia, in the sense that it meets minimum standards, also appears not be a significant issue. The Tertiary Education Quality and Standards Agency, commonly known as TEQSA, which oversees the Higher Education Standards Framework[,] should ensure that the basic standards expected for education meet the basic thresholds necessary to meet the requirement of acceptability under ICESCR. Once again, this is not to assert that there will not be issues in isolated cases where quality does not meet these standards, nor to suggest that the quality of institutions is perfect, merely that overall it meets a minimum standard that is required.

Finally, the adaptability of the system does not seem to be at issue. The system allows Universities to dictate their own curriculum, provided they meet minimum standards, they have more than enough to respond to needs of students. There is perhaps an argument that the funding limitations on Universities limit the flexibility in being able to provide the highest quality education. This could possibly be considered as a factor in the progressive realisation of other aspects of the right. Consequently this point will also be addressed in the following section. Nonetheless, it is doubtful that a capped system of private funding would amount to a breach. Consequently, by far the most significant issue is access and this is addressed in detail below.

C Accessibility to Higher Education

The standard to be applied to higher education is ‘equally accessible to all, on the basis of capacity’[. ]Consequently it falls short of the standard required for other forms of education, nonetheless access on the basis of capacity is an important qualification. As outlined above, there are three components to accessibility of education: non-discrimination, economic accessibility and physical accessibility. These issues will be addressed in turn.

1 Non-Discrimination

The obligation of non-discrimination from Articles 2(2) and 3 of ICESCR is one that is exempt from progressive realisation and must be applied immediately, at least as it relates to formal discrimination within the scope of the grounds listed in ICESCR[.]

Firstly, looking to the structures of Australia’s anti-discrimination regime, there is robust protection against discrimination. The Anti-Discrimination Act 1991 (Cth), prohibits direct and indirect discriminatio[n] on the basis of an enumerated list in s 7 of the Act. These measures are explicitly applied to educational authorities, which include universities[.] Exceptions exist for religious and single-sex institutions who may discriminate on their respective grounds[, ]or those who do not meet minimum age requirements[.] It is fair, therefore, to conclude that the structural aspect of non-discrimination, in the sense that the Government not only does not prevent discrimination, but also protects against third-party discrimination.

However, non-discrimination may also apply to outcomes, and, consequently, whether processes are in place for the progressive realisation of those outcomes. Beiter, for example, has argued that the obligation extends state parties providing incentives to increase school participation for girls[, ]and this can be analogised other areas of disadvantage. In some areas, such as gender, Australia is doing well on the basis of outcomes. For example in 2013, 56.8% of enrolments were women[.] However on other measures there is room for improvement, for example only 1% of enrolments were students who identified as Indigenous, with 1 in 6 dropping out in the first half of 2013[.] This question could be expanded to consider a range of different areas of disadvantage, such as non-English speaking background, ethnicity and disability, however for the purposes of this discussion will look only at Indigenous students.

The question is whether the Government is taking appropriate action to implement processes that can overcome Indigenous underrepresentation. In all, the Commonwealth does provide significant support to address the issue[.] The Government received a detailed review into the issue in 2012 and has ongoing advice from the Aboriginal and Torres Straight Islander Higher Education Council as well as having a range of other programs that include increased funding for students who are enrolled, tutorial assistance and support from Indigenous Higher Education Centres on campuses[.] Taken together there is certainly a concerted process to attempt to address the issue and for this reason it could hardly be said to represent a violation based on non-discrimination. However this is not to discount the value of using the rights-based analysis as a framework to draw attention to this issue and ensure that appropriate mechanisms are in place to ensure that more equal outcomes are attained.

2 Economic Accessibility and the Progressive Introduction of Free Education

The obligation in regard to economic accessibility is the progressive introduction of free education[.] This question of progressive introduction is particularly relevant in this country since Australia did have a model of free education in the past, and on the face of it, appears to be implementing regressive policies. The progressive nature of the right means that the starting point is important and any policy has to be considered in light of the end goal and also the previous policy regime. CESCR has made clear

any deliberately retrogressive measures in that regard would require the most careful consideration and would need to be 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 maximum available resources[.]

This goes to the heart of whether the processes in place meet the standard of the progressive introduction of free education. Both the existing HECs model and the proposals in the 2014 Budget shifted away from a model of free education. The issue is whether they are ‘fully justified’ by reference to other rights and available resources.

These processes are introduced in the context of evidence that suggests the outcomes being achieved for students from a lower socio-economic background are not good. Overall statistics for low socio-economic background students show that they represent only 16.9% of enrolments in 2013[, ]well below the 25% that they represent in the general population. However in 2011, low SES students represented just 8.7% of those attending Group of Eight Universities, meaning that access to the best education is significantly below what might be desirable[.] This may be partially explained by inequity in student achievement in the secondary and primary system. Students may well be selected on the basis of capacity after high school results, but if they did have the opportunity to develop their full capacity their disadvantage will be compounded at the University stage. Recent OECD data suggests that this is certainly an issue[, ]however analysis of policy in secondary education is beyond the scope of this essay, while further issues beyond education policy may also be to blame for performance below a student’s potential capacity. Nonetheless it is also necessary to determine whether there are processes in place that address these inequities, in light of the regressive moves.

(a) The HECS Model

The reforms of Dawkins that brought in the HECS model removed a system of free higher education and replaced it with a deferred loan. This would appear to be a regressive step in violation of Australia’s obligations. Though the Hawke Government could raise a number of arguments in its defence. The intention of the reforms was to vastly expand access to higher education by creating new institutions, an outcome which it achieved[.] Furthermore, while an economic barrier existed, the structure of the Government loan – effectively zero interest, payed back only after reaching a threshold income – made it a relatively low barrier since the key decision for individual would be based on an estimation of future income and not their pre-existing economic position. In this context, and taking into account the limited resources of the state, the Hawke Government could well have made a plausible argument as to why their policy reform did not represent a move away from the progressive realisation of free education, given the size of the barrier and the mass expansion of students, including low SES students, into higher education.

(b) The 2014 Budget Reforms

Once again, the announcements earlier this year would appear to move regressively from free education. Critics of the reform have warned of rising values in student debt and inequity in the new model of paying the loans back[.] Clearly this would amount to a move further away from the progressive realisation of free education and, prima facie, a breach of the overall obligation. It is therefore necessary for the Government to justify this move in light of the circumstances.

The Government does have arguments that it can raise in its defence. Firstly, the loan is still at low interest and although the threshold has been dropped, it is still there. This means that the decision still rests heavily on anticipated future income rather than current economic status. Secondly, the commitment to invest in Commonwealth Scholarships, while addressing the obligation under Article 13(2)(e), also may assist in addressing economic disadvantage. Thirdly, again, this needs to be balanced against the expansion of the scheme to non-University institutions, which should provide greater access to non-University education, as well as the available resources of the state. Each of these factors would need to be balanced against the regression away from a model of free education.

Of course, the Government’s rhetoric does not appear to be particularly concerned with issues of access. In his speech to the Universities Australia, the Education Minister, Christopher Pyne, emphasised that

[t]he single most important thing ... is to encourage you to embrace with enthusiasm the new freedom that this Government plans for the university sector. Freedom and autonomy will be the hallmarks of this Government’s approach to universities. As we reduce the burden of regulation on universities, I would urge you to grasp your destiny into your own hands[.]

The Government’s priority, reflected clearly in this statement and emphasised in the announcement of the reforms, is to increase competition among the Universities. Questions of equity and access would appear, therefore, to be secondary.

Overall the argument that the Government’s reforms do not represent a regressive measure is harder to make, though the Government could attempt to justify it within a rights framework. Ultimately, further research will be required to determine the actual effect on student choices. However, given the requirement of accessibility of the basis of capacity, a barrier that excludes or even disincentives based on a person’s current economic status would be a violation of ICESCR.

In each case, both of the Dawkins reforms and the recent announcements by the Abbott Government, arguments for whether Australia has met it’s obligation to progressively introduce free higher education is not necessarily as clear as it would seem on the face of the reforms. However, the real value here is progressing public debate. Drawing out arguments from Government as to why they are moving away from a desired model, can be an important outcome of a rights based analysis.

(c) The Costs of Attending University beyond Fees

It should be noted that course fees are not the only barriers to receiving an education[;] economic accessibility will vary based on contextual and geographical factors. The indicators above show that students from lower socio-economic backgrounds do not attend Universities, particularly prestigious Universities, at the same rate as students from wealthier backgrounds. Another reason for this is the cost of living while receiving an education. The costs of being at University are substantial for those who must support themselves. UNSW, for example, currently estimates that the total cost of living while studying is $21,275 per academic year of 37 weeks[,] while the University of Sydney indicates a similar rate[.]

Welfare for students exists through ‘Youth Allowance’, however the assumption is that parents will be expected to provide for a student during study, since a student cannot access the payment unless there parents meet an assets and income test or they can demonstrate that they are independent from them[.] There are a litany of factors and circumstances that may cause a person to not be able to live at home. Among these include physical isolation, discussed below, as well as breakdowns in family relationships. These may be taken into account in receiving Youth Allowance, however, a single person without children receiving full youth allowance and rent assistance would only receive about $10,000 across the 37-week academic year[.] Meaning that most students who cannot live at home will have to find part-time work to supplement their income in order to survive, though the payment will be affected if the student earns more than $415 per fortnight[.] On that rate, a student would only be able to earn approximately $17,000 during the academic year, still below what leading Sydney universities indicate the cost of living actually is. All of which, depends on the availability of flexible casual work in reasonable proximity to where they live.

This can also amount to a breach of their right to have access to education. Once again it must be considered in the context of Australia’s available resources and a system that may prevent a small number of people falling through the cracks, may also be significantly more expensive. However if students who must live away from their family cannot have reasonable financial support needed to actually attend University, then this is a significant problem at least worthy of public attention.

3 Physical Accessibility

The limit of general accessibility, on the basis of capacity, gives some scope for a lesser standard to be applied to tertiary education. Obviously a University need not be in proximity to every rural or remote person who might have the capacity to attend a university. The concentration of universities in large populations centres does however make it imperative that measures are taken to assist people to get higher education, even if they do not physically live near a university.

Based on recent data, over 21% of all domestic undergraduate students are from regional or remote areas, a total of about 150,000 students[.] This number may appear to be healthy, but it belies the number that are attending Australia’s best institutions. Only 13% of regional and remote students who attend university, attend a Group of Eight institution compared to the almost 23% of all domestic undergraduate students[. ]Plainly a disparity exists. It may be partially explained by issues in secondary education, though other factors should be considered.

As is noted above, Youth Allowance is available for students from regional and rural areas to assist in covering the costs of education and the threshold test of work for earning independence is lower from people from areas outside the city. If a student does not qualify and their parents are not prepared to support them, then they must work to earn independence or work to survive while studying. A 2009 Senate Committee inquiry into the issue recommended increased funding for students relocating amongst other recommendations[.] Relocation scholarships now provide further financial assistance for those who must move to access education. While not perfect, the Government does appear to have processes in place to ensure that the costs of relocation associated with the tyranny of distance are mitigated.

However, once again, it is clear that it is not easy to survive at University where a person is required to move cities. This is especially true if parents or guardians are unable or unwilling to provide financial assistance. Bringing these issues to the forefront of public discussion has been demonstrated to be valuable and there is no reason this should not have significant utility into the future.

D The Value of a Rights-Based Analysis

The above analysis of the right to higher education in Australia is just a snapshot of Australia’s obligations with respect to ESCRs. Higher education is just part of an overall right to education, and the right to education is just one among many ESCRs. However, this example demonstrates the value of a rights-based analysis of public policy.

The analysis demonstrates that treating education as a right, and using a legal analysis to determine whether that right is being fulfilled, can make a meaningful contribution to public debate. This occurs in two ways. Firstly, it can bring the issue onto the agenda of public debate. If the obligation to provide a quality education to everyone is one that the public take seriously, as it appears from the series of reviews into human rights in Australia, then it follows that it ought to be brought to their attention when that right is not being met. Secondly, it reframes the debate. The primary aim of any policy becomes giving each individual access to a quality education and any other consideration, such as resources or economic imperatives or international competition, can be taken into account but only balanced against the right of each individual.

This form of analysis may also have value in the policy process itself. The development, implementation and evaluation of policy behind the public debate must take into account a range of factors. This analysis shows that by understanding education as a right, policy changes that adversely affect the ability of a person to have access to a decent education can be avoided or at least mitigated. The primary question is the appropriate mechanism to use to ensure that such an analysis takes place in the policy process.

IV CONCLUSION

It must be remembered that it is far from a merely academic exercise to attempt to understand the applicability of these rights. Technical and legalistic as it may seem, giving effect to ESCRs, particularly education, has the ability to profoundly effect people’s lives. In the detail of a legal analysis it is easy to lose the value of the subject matter of this paper. Education is more than a commodity or a means to build human capital for an economy. It is an essential element of a good human life. It allows a person to live a purposeful, directed existence and reach their full potential, as well as giving them a means of income and allowing them to participate in democracy. For these reasons the deprivation of a decent education should be treated at least as seriously as the deprivation of one’s freedom of movement or freedom of expression, even if the best mechanism for enforcement may differ.

Understanding education as a right is a distinctive approach. Aside from a fundamental right, education can be seen as a social good in a number of ways that could influence the way policy is formulated. For example it can be understood as both a social and economic good, not just for the individual but the state. Each of these may represent a different conceptual basis for understanding the value of education, however none of these other interpretations imply that it should inherently be made available to all. Treating education as a right requires focus on each individual is not denied the possibility of a quality education. As the above analysis shows, this is a particularly important feature when considered in the context of the immediately realisable rights under ICESCR.

The above analysis demonstrates that a legal analysis, that treats education as an individual right, can be a valuable tool in the policy process. It can contribute to public discussion and force Government’s to frame arguments in terms of ensuring that everyone has access to quality education or, at least, make clear that this is not the Government’s priority. It may also have utility as part of the formal policy process. Policy outcomes may well improve if policy makers are required to turn their minds to a rights-based analysis of education during the development, implementation and evaluation of policy.

Consequently, further research should consider the appropriate mechanisms for enforcement. There is some merit model of Parliamentary Scrutiny that is currently in place, though further options are available. South Africa, for example, has adopted justiciable ESCRs within its written constitution[,] though the political will required for such a reform would not appear to be on the horizon. In a similar vein there is little support for the legislative enactment of judicially enforceable C&PRs let alone ESCRs. This is despite examples of the right to education in Europe broadly and in India and Ireland[.] Further options, which would be decidedly less controversial, include adopting the NHRC recommendation of expanding the scope of AHRC to include ICESCR[, a]s well as signing up to the Optional Protocol to ICESCR. Both of these reforms would allow for independent oversight and would perhaps provide the formal inclusion of ESCRs into the policy process and public debate.

However, in considering methods of implementation, the analysis also demonstrates the multifaceted nature of the right to education. Even aspects of this one right may lend themselves to different obligations and better or worse mechanisms for ensuring compliance. Given the complexity and, indeed, technicality involved, it is clear that a one-size-fits-all-approach to the treatment and enforcement of ECSRs is perhaps misguided. Far more detailed analysis is required of the variety of rights that already exist in ICESCR to determine which exact process may be best for each individual right. Any future reviews of the applicability of ESCRs in Australia must take into account the detail of the various components that make up a right, and also consider the institutional context very closely to devise the best possible mechanisms for upholding the obligations that are owed to Australian citizens under ICESCR.

It should be stressed that the implementation of a right to education in the domestic context will not be the silver bullet that delivers education and opportunity to the poor, the marginalised or the otherwise disadvantaged. It would be naïve to think it would. But it can provide an extra piece of support that can bring this society closer to realising the promises that it has made to the international community and its citizens.


[*] A Research Thesis completed for the course LAWS3423, toward the award of a Bachelor of Law at the University of New South Wales.

[†] International Covenant on Economic Social and Cultural Rights, opened for signature 16 December 1966, 993 UNTS 3 (entered into force 3 January 1976).

[‡] See Andrew Byrnes, ‘Second Class Rights Yet Again? Economic, Social and Cultural Rights in the Report of the National Human Rights Consultation’[2010] UNSWLawJl 10; , (2010) 33 UNSW Law Journal 193.

[§] International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976). Protections include, inter alia, life, liberty and security of the person, freedom of opinion and expression, freedom of religion.

[**] The Constitution of the Republic of South Africa Act 1996 (South Africa) ch 2 is an obvious exception with several explicit ESCRs. Education is also explicitly protected in some constitutional mechanisms for example the Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 4 November 1950, 213 UNTS 221 (entered into force 3 September 1953) art 2; The Constitution of India (India) part III; See also Constitution of Ireland (Ireland) art 42.

[††] The only exception to this is the Human Rights Act 2004 (ACT) s 27A with the right to education, however the ability of an ACT Court to issue any declaratory remedy is questionable after Momcilovic v the Queen (2011) 245 CLR 1. ICESCR, however, is included in the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), but not the Australian Human Rights Commission Act 1986 (Cth).

[‡‡] National Human Consultation Committee, National Human Consultation Report, (2009); Human Rights Consultation Committee, ‘Rights, Responsibilities and Respect’, Report of the Victorian Human Rights Consultation Committee (2006); ACT Bill of Rights Consultative Committee, Towards and ACT Human Rights Act, Report of ACT Bill of Rights Consultative Committee (2003).

[§§] Charter of Human Rights and Responsibilities Act 2006 (Vic).

[***] Victorian Human Rights Consultation Committee, above n 6, 27.

[†††] Ibid, 29.

[‡‡‡] ACT Bill of Rights Consultative Committee, above n 6, 95.

[§§§] National Human Consultation Committee, above n 6, 365.

[****] Ibid, 227–340. The right to property was an exception but is often regarded as both an CPR and ESCR: Byrnes, above n 2, 196. Recommendations rejected by the Rudd Government in the National Human Rights Framework: ‘Australia’s Human Rights Framework’, Commonwealth of Australia (April 2010).

[††††] National Human Consultation Committee, above n 6, xxxv.

[‡‡‡‡] Ibid, xxxii.

[§§§§] Committee on Economic Social and Cultural Rights, General Comment No 13: The Right to Education, 21st sess, UN Doc E/C.12/1999/10 (1999) [31].

Katarina Tomaševski, Human Rights Obligations in Education: Making Education Available, Accessible, Acceptable and Adaptable (Latin American Council of Social Sciences, 2006) 10[.]

See Manfred Nowak, ‘The Righ[t ]to Education’, in Asbjørn Eide, Catarina Krause and Allan Rosas (eds), Economic, Social and Cultural Rights (Martinus Nijhoff, 201).

Universal Declaration of Human Rights, GA RES 217A (III), UN GAOR, 3rd sess, 183rd pen mtg, UN Doc A/810 (10 December 1948), art 24[.]

See ibid; also see International Covenant on Economic Social and Cultural Rights, opened for signature 16 December 1966, 993 UNTS 3 (entered into force 3 January 1976), arts 13 & 14[.]

Optional Protocol to the International Covenant on Civil and Political Rights, opened for signature 19 December 1966, 999 UNTS 171 (entered into force 23 March 1976)[.]

International Covenant on Economic Social and Cultural Rights, opened for signature 16 December 1966, 993 UNTS 3 (entered into force 3 January 1976), art 2(1)

Committee on Economic Social and Cultural Rights, General Comment 3: The Nature of States Parties[’ ]Obligations, 5th sess, UN Doc E/1991/23 (1991) [9].

Ibid[. ]

Matthew Craven[, ]The International Covenant on Economic, Social and Cultural Rights: A Perspective on its Development (Oxford University Press, 2001) 151.

International Covenant on Economic Social and Cultural Rights[, ]opened for signature 16 December 1966, 993 UNTS 3 (entered into force 3 January 1976) art 2(2).

Ibid, art 3[.]

Committee on Economic Social and Cultural Rights, General Comment No 13, above n 15, [31]

International Covenant on Economic Social and Cultural Rights, opened for signature 16 December 1966, 993 UNTS 3 (entered into force 3 January 1976), art 13(1)[.]

International Covenant on Economic Social and Cultural Rights, opened for signature 16 December 1966, 993 UNTS 3 (entered into force 3 January 1976), arts 13(2)(a) & 14[.]

Committee on Economic Social and Cultural Rights, General Comment 11: Plans of Action for Primary Education, 20th Sess, UN Doc E/C.12/1999/4 (1999) [9], [7].

International Covenant on Economic Social and Cultural Rights, opened for signature 16 December 1966, 993 UNTS 3 (entered into force 3 January 1976), art 13(2)(b)[.]

International Covenant on Economic Social and Cultural Rights, opened for signature 16 December 1966, 993 UNTS 3 (entered into force 3 January 1976), art 13(2)(c)[.]

Ibid[.]

Ibid, art 13(2)(e); Committee on Economic Social and Cultural Rights, General Comment No 13, above n 15, [26][.]

Committee on Economic Social and Cultural Rights, General Comment 3, above n 22, [10]

Phillip Alston, ‘Out of the Abyss: the Challenges Confronting the New UN Committee of Economic, Social and Cultural Rights’, 9 Human Rights Quarterly 332 (1987)[.]

Ibid, 353[. ]For further discussion on merits of this see Sital Kalantry, Jocelyn E Getgen & Steven Arrigg Koh, ‘Enhancing Enforcement of Economic, Social, And Cultural Rights Using Indicators: A Focus on the Right to Education in ICESCR’, 32 Human Rights Quarterly 253 (2012) 272.

Committee on Economic Social and Cultural Rights, General Comment No 13, above n 15, [57][.]

Committee on Economic Social and Cultural Rights, General Comment 3, above n 22, [10].

See[, ]eg, Isabel Kempf, ‘How to Measure the Right to Education: Indicators and their Potential Use by the Committee on Economic, Social and Cultural Rights’, (Background paper submitted to United Nations Economic and Social Council, 1998).

Tomaševski, above n 16[.]

Committee on Economic Social and Cultural Rights[,] General Comment No 13, above n 15, [6]; Katarina Tomaševski, Preliminary Report of the Special Rapporteur on the Right to Education, UN ESCOR, Communication on Human Rights, 55th sess, UN Doc E/CN.4/1999/49 (1999).

Committee on Economic Social and Cultural Rights, General Comment No 13, above n 15, [6][.]

Ibid[.]

Ibid[.]

Ibid[.]

Ibid[.]

Ibid[.]

UN Commission on Human Rights[,] Note verbale dated 86/12/05 from the Permanent Mission of the Netherlands to the United Nations Office at Geneva addressed to the Centre for Human Rights (‘Limburg Principles’), UN Doc E/CN.4/1987/17 (8 January 1987); International Commission of Jurists, Maastricht Guidelines on Violations of Economic, Social and Cultural Rights (26 January 1997).

Maastricht Guidelines, above n 49, [6][.]

Paul Hunt, ‘Report of the Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health, UN GAOR, Human Rights Council, 7th sess, UN Doc A/HRC/7/11 (2008) 52; Kalantry, Getgen and Koh, Enhancing Enforcement, above n 37[.]

Ibid, 281–2[.]

Ibid, 281[.]

Ibid[.]

Ibid[.]

‘Australia: Education at Glance 2012 OECD Indicators’, OECD (Country Note, 2012) <http://www [.] oecd.org/australia/EAG2012%20-%20Country%20note%20-%20Australia.pdf> .

‘World University Rankings 2013-2014’, Times University World Rankings <http://www [.] timeshighereducation.co.uk/world-university-rankings/2013-14/world-ranking> .

Conor King and Richard James, ‘Creating a demand-driven system’, in Simon Marginson, Tertiary Education Policy in Australia (Centre for the Study of Higher Education, University of Melbourne, 2013) 11, 12[.]

See John S Dawkins, ‘Higher Education, A Policy Statement’, Department of Employment, Education and Training (1988)[.]

‘Budget 2014-15: Higher Education’, Commonwealth of Australia (2014) <http://budget [.] gov.au/2014-15/content/glossy/education/html/index.htm> .

Matthew Knott, ‘“Grow a Set”: PUP opposes uni reforms’, Sydney Morning Herald (online) (10 August 2014) <http://www [.] smh.com.au/national/grow-a-set-pup-opposes-uni-reforms-20140809-3dfdu.html> . This is the case as of 19 August 2014.

Budget 2014-15, above n 60[.]

‘Structural Reform of Higher Education Long Overdue’, Group of Eight Australia (Media Release, 13 May 2014) <https://go8[.]edu.au/article/structural-reform-higher-education-long-overdue>.

Daniel Hurst, ‘University Leaders Have Serious Concerns About Higher Education Plan’, The Guardian (online) (23 May 2014) <http://www [.] theguardian.com/world/2014/may/23/university-leaders-have-serious-concerns-about-higher-education-plan> .

International Covenant on Economic Social and Cultural Rights, opened for signature 16 December 1966, 993 UNTS 3 (entered into force 3 January 1976), art 13(2)(c)[.]

‘Key Facts & Data’, Universities Australia (7 July 2014) <https://www[.]universitiesaustralia.edu.au/australias-universities/key-facts-and-data#.U-eKkYCSw00>.

Higher Education Standards Framework (Threshold Standards) 2011 made under Tertiary Education Quality and Standards Agency Act 2011 (Cth).

International Covenant on Economic Social and Cultural Rights, opened for signature 16 December 1966, 993 UNTS 3 (entered into force 3 January 1976), art 13(2)(c)[. ]

The list in ICESCR is non-exhaustive and includes other non-enumerated statuses upon which discrimination is prohibited, for example disability[.] There is some commentary to the extent that socio-economic status may be prohibited as a ground for discrimination, however this would involve a simultaneous violation of the substantive rights in the convention. For a full discussion see Craven, above n 24, 175–6.

ss 911.

Ibid, div 4, ss 3744[.]

Ibid[, ]ss 40, 41.

Ibid, s 43[.]

Klaus Dieter Beiter[, ]The Protection of the Right to Education by International Law (Martinus Nijhoff, 2006) 489.

‘Selected Higher Education Statistics: 2013 Student Data’, Australian Government, Department of Education (2013) <https://education[.]gov.au/selected-higher-education-statistics-2013-student-data>; though some commentators have warned the announced reforms will have a disproportionate impact on women: Andrew Tounson, ‘HECS plan offers alternative’, The Australian (online) <http://www.theaustralian.com.au/higher-education/hecs-plan-offers-alternative/story-e6frgcjx-1227014554665> .

Ibid

‘Indigenous Higher Education’, Department of Industry <http://www [.] industry.gov.au/HigherEducation/IndigenousHigherEducation/Pages/default.aspx> .

Ibid[.]

International Covenant on Economic Social and Cultural Rights, opened for signature 16 December 1966, 993 UNTS 3 (entered into force 3 January 1976), art 13(2)(c)[.]

Committee on Economic Social and Cultural Rights, General Comment 3, above n 22, [9][.]

‘Selected Higher Education Statistics’[, ]above n 75.

Tim Pitman, ‘A Low Target: Enrolling Poor Uni Students Remains a Challenge’, The Conversation (online) (16 November 2012) <http://theconversation [.] com/a-low-target-enrolling-poor-uni-students-remains-a-challenge-10297> .

Charls Palmer[, ]‘Australia Colising Equity Gap, but Education Performance Slipping: OECD’, The Conversation (online) (13 February 2013) <http://theconversation.com/australia-closing-equity-gap-but-education-performance-slipping-oecd-12195> .

Glyn Davis, ‘Fairness, Fees and Equity in Higher Education’, (Presentation, AFR Higher Education Summit, 3 April 2007)[.]

See, eg, Alexandra Smith and Jonathon Swan, ‘Uni Course Fees Expected to Double, Analysis Shows’, Sydney Morning Herald (online) (1 June 2014) <http://www [.] smh.com.au/national/education/uni-course-fees-expected-to-double-analysis-shows-20140531-39b0b.html> .

Christopher Pyne, ‘Embracing the New Freedom: Classical Values and New Frontiers for Australia’s Universities’, PyneOnline (Address to the Universities Australia Conference Dinner, 26 February 2014) <http://www [.] pyneonline.com.au/media/speeches-media/address-to-the-universities-australia-conference-dinner> .

For further research, see Michael Long and Martin Hayden, &#8216[;]Paying their way: a survey of Australian undergraduate university student finances, 2000’, Australian Vice-Chancellor’s Committee (2001); Richard James, ‘Social Equity in a Mass, Globalised, Higher Education Environment: the Unresolved Issue of Widening Access to University’, (Faculty of Education, Dean’s Lecture Series, 18 September 2007).

This is based off an academic year of 37 weeks: ‘Cost of Living’[,] UNSW International <http://www.international.unsw.edu.au/living-sydney/cost-living/> .

‘Living Costs’, University of Sydney <http://sydney [.] edu.au/future-students/domestic/undergraduate/costs/living-costs.shtml> .

‘Eligibility for Youth Allowance’, Department of Human Services <http://www [.] humanservices.gov.au/customer/enablers/centrelink/youth-allowance/eligibility-for-youth-allowance> .

Fortnightly payment is AUD$414[.]40 per fortnight for youth allowance: ‘Youth Allowance’, Department of Human Services <http://www.humanservices.gov.au/customer/services/centrelink/youth-allowance> and AUD$126.40 for rent assistance: ‘Payment rates for Rent Assistance’, Department of Human Services <http://www.humanservices.gov.au/customer/enablers/centrelink/rent-assistance/payment-rates> .

‘Income and assets test for Youth Allowance’, Department of Human Services <http://www [.] humanservices.gov.au/customer/enablers/centrelink/youth-allowance/income-assets-test#a5> .

‘2013 Student Summary Tables’, Department of Education <https://education[.]gov.au/selected-higher-education-statistics-2013-student-data>; these numbers based on calculations in Table 2.6.

Ibid[. ]These numbers are also based on calculations from data in Table 2.6.

Senate Standing Committee on Rural and Regional Affairs and Transport, ‘Rural and Regional Access to Secondary and Tertiary Education Opportunities’, (Report, 18 December 2009) <http://www [.] aph.gov.au/Parliamentary_Business/Committees/Senate/Rural_and_Regional_Affairs_and_Transport/Completed%20inquiries/2008-10/rural_and_regional_education/report/c05>

Constitution of the Republic of South Africa Act 1996 (South Africa) ch 2.

Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 4 November 1950, 213 UNTS 221 (entered into force 3 September 1953) art 2; The Constitution of India (India) part III; See also Constitution of Ireland (Ireland) art 42[.]

National Human Consultation Committee[, a]bove n 6, xxxv.


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