Education and Human Rights – Recognising one, realising all

Speech delivered to the Centre for Equality event “Education Under Fire”

Speech by Professor Gillian Triggs
President, Australian Human Rights Commission

Wednesday, 28 November 2012

Chief Justice, your honours, friends and colleagues, students, ladies and gentlemen:

May I acknowledge the traditional owners of the land on which we meet, the Kaurna people, and pay my respects to their Elders, past and present.

As an international lawyer, I am delighted to be back in Adelaide where so many of Australia’s scholars in the subject have been nurtured: I am thinking in particular of DP O’Connor whose seminal work in the subject and on the law of the sea have been a bedrock of my own work, then Emeritus Professor Ivan Shearer and Professor James Crawford, and many others.

I am pleased to have the opportunity to speak at this forum of the Centre for Equality and welcome their work in keeping the right to equality and to education on the public agenda. This forum is intended to promote reflection on education as a human entitlement. It has become clear to me in the early days of my role at the AHRC that education is the key to everything that we aim to achieve in promoting human rights in Australia. We know that education unlocks opportunity and enables participation. While we may take the right to education for granted in Australia, (and we should not) we also need to reflect on the fact that access to education is denied to or is out of reach for many millions of children throughout the world.

Over the last few months, we have been horrified by the shooting by the Taliban of a 15-year-old Pakistani school girl Malala Yousafzai, who was well known in the Swat Valley in West Pakistan for her efforts to ensure girls have access to education. Last year she received the National Peace award from the Pakistan Prime Minister but remained vulnerable to extremist attacks against her advocacy for equality in education in her country.

Tonight, then, I’d like to reflect upon those who, like Malala and the courageous people in the film we will shortly see, struggle to access education; to challenge some assumptions about the experience of education in Australia; and to explore what the right to education might really involve. Perhaps most importantly, I’d like to consider what we might all do to better implement the international legal right – as concerned Australians, certainly, but also as members of the international community.

International recognition and the Baha’i community’s experience

Over the last sixty years, the international community has articulated the fundamental human right to education in unambiguous terms. As Article 26 of the Universal Declaration on Human Rights of 1948 (Doc Evatt and the UN GA Presidency) outlines:

(1) Everyone has the right to education. Education shall be free, at least in the elementary and fundamental stages. Elementary education shall be compulsory... and higher education shall be equally accessible to all on the basis of merit.

This provision goes on to state that:

(2) Education shall be directed to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms…

This entitlement has been further expressed in a number of other human rights instruments, featuring as the most substantial Article in the International Covenant on Economic, Social and Cultural Rights, as well as being an important part of the Convention on the Rights of the Child and the UNESCO Convention Against Discrimination in Education, to name just a few. Meanwhile, to remove any doubt, commentary by the UN Committee on Economic, Social and Cultural Rights is clear that education should be available to all people everywhere, regardless of race or cultural background, gender or other attribute^.1

It is not always understood that there is a significant disconnect between international law and Australian or other national laws. Much international human rights law has not been given legislative force at a domestic level in Australia. Nevertheless, it represents clear benchmarks against which we can monitor the implementation of rights in domestic law and administration.

In other words, the international community has been unambiguous about the fact that education should be available without discrimination; and that states have obligations to ensure it is provided.

Despite such clarity, the film we will watch this evening depicts a people denied this entitlement, and a state disregarding this obligation. As we will see, the Baha’i people of Iran – a community over 300,000 strong – have experienced systemic and often extreme violations of their basic human rights, denied access to tertiary education, to various forms of employment and, most of all, to religious freedom.

Not recognised as one of the three religious minorities in their country’s constitution and described by educational authorities as a ‘fabricated religion or illegal religious minority’,² the Baha’i’s determination to provide quality higher education for their people has recently been met with fierce and oppressive resistance by Iranian authorities. This is notwithstanding numerous recommendations from the international community, including through the UN’s Universal Periodic Review process.³

Distant and not too distant backyards

Their story is obviously one better told by the Baha’i community themselves and, as we hear them do so, we will doubtless count ourselves lucky that Australia does not sanction such palpable discrimination.

Before complacency takes too firm a hold, however - before we assume that a struggle for the right to education is something that could only occur in another, wholly different place - we should remember to look to those stories unfolding elsewhere around the world, as well as in our own backyard.

Though not always in circumstances as explicit as the context portrayed here, at the beginning of the 21st century, over 130 million children worldwide were not accessing formal or consistent education.⁴ Often the result of acute poverty, war or civil conflict, or other forms of economic disadvantage, of particular application to tonight’s subject, in over half these cases the children were from minority or indigenous backgrounds – the effects of social and cultural marginalisation in turn impacting on their attendance and success at school.⁵

As such, a curriculum provided in an unfamiliar language, or of little cultural relevance; staff who are not adequately trained or culturally competent, or who lack awareness of their students’ circumstances outside school; racism in the schoolyard, overcrowded classrooms and inequitable funding – all contribute to permanent disengagement from education for many children.

Australia’s Aboriginal and Torres Strait Islander peoples

Far from a situation confronting minority or indigenous communities only in other parts of the globe, however, this is one familiar to many of this country’s Aboriginal and Torres Strait Islander communities. Though formally available, the manner in which education is provided, or the disadvantage that students may experience outside the school system mean that, for too many Aboriginal and Torres Strait Islander students, regular attendance at school is simply untenable.

The Australian Human Rights Commission has long expressed concerns about low school attendance rates among Aboriginal and Torres Strait Islander children. In fact, the Social Justice Commissioner has repeatedly noted the insufficient funding and infrastructure available in schools in many remote Aboriginal communities, as well as the dearth of information about services and facilities.⁶

There is, however, a growing body of evidence concerning those factors that increase school attendance in many remote communities. These include a focus on cultural appropriateness, the availability of bilingual education, sporting and other motivational techniques; and a supportive environment that engages the external community in education as a shared endeavour.⁷

Commission Complaints; Access to justice service

Initiatives of this kind have been a focus of conciliated outcomes of complaints of discrimination made to the Commission about the quality of education provided to remote communities. Moreover, they could all be described as positive measures that recognise the other human rights of students in order to realise their right to education.

Yet too many programs still take a negative approach to increasing participation in education, such as linking a family’s welfare payments to their child’s attendance at school. There is little evidence, however, that this works, with the Northern Territory Emergency Response Evaluation Report finding no observable improvement in attendance rates between 2006 and 2010, and a decline in 2010.⁸ Further, when payments are suspended or cancelled, children may not have access to sufficient food, housing or medical care – compounding the problems which contribute to school absence in the first place.

Clearly, there is more to facilitating each person’s right to education than just formal recognition. In fact, as the Committee on Economic, Social and Cultural Rights has explained, the fulfilment of a state’s human rights obligations requires that education exhibits certain interrelated and essential features. Known as the Four As, these are:

• Availability, which includes the provision of safe and adequate facilities, as well as properly trained and renumerated staff;
• Accessibility, which has three overlapping dimensions of non-discrimination, physical accessibility, and affordability;
• Acceptability, meaning, for example, that education must be relevant, culturally appropriate and of good quality; and
• Adaptability – meaning that it is flexible and able to respond to the changing needs of communities and students alike.  

Again, it’s important to remember that these requirements have not been set out in domestic law. It is nonetheless apparent, however, that Australia is not always living up to its end of the bargain. For example, while formally on offer, the education provided to students in remote Aboriginal and Torres Strait Islander communities may not always meet all or any of these criteria.

NSW; fees charged for non-residents, Visa 457

Equally, it is valid to ask whether we are meeting these standards when the provision of free primary education is significantly dependent upon the visa status of a child’s parents; while access to higher education for students in regional Australia is also coming under increasing scrutiny.

Disabilities

Finally, many students with disabilities struggle to find schools that are fully accessible, or indeed ready to adapt to meet the needs of their student population. As such, some have brought complaints of discrimination where schools have not been prepared to adjust their facilities to enable a student to attend. Others have brought complaints that schools have not been prepared to enable students to reach their potential, by providing Auslan interpreters on request, for example, rather than other assistance for students with hearing impairments.⁹

Education as a human right, education about human rights

The determination of the students and families in these cases reflects their pursuit of the ‘full development of the human personality’, as set out in the Universal Declaration of Human Rights. As theoretical as international treaties and declarations can sometimes seem, the reality is one in which people must fight for the access to education that others take for granted.

We should not shrug off the challenges as too difficult or resource intensive and should not be shrugged off as inevitable casualties of an otherwise equitable system, but should challenge us to grapple with the complexities of protecting, promoting and fulfilling the right to education of all people everywhere.
This means that we must get better at acknowledging where people still fall through the cracks - cracks that may not exist if a better conceptual link was made between education and the fulfilment of other entitlements.

As the Committee on Economic, Social and Cultural Rights has said:

‘Education is both a human right in itself and an indispensable means of realising other human rights’.¹⁰

This simple observation addresses two sides to the same essential coin. Yes, education is a powerful vehicle to bring whole communities out of poverty; to enable people’s participation in civic and economic life, and to help them realise their own potential.

Education about human rights

Just as importantly, however, education can open hearts and minds to the human rights of others. That is why one of the most important tasks of the Australian Human Rights Commission is not only to promote the value of education as a human right but the value of education about human rights.

This means that, in addition to providing cost-effective access to justice through its conciliation service, the Commission is charged with improving awareness of human rights all around Australia. In particular, the Commission is contributing to the inclusion of human rights education in the development of the National Schools Curriculum; as well as working with the Australian Public Service as part of its role in implementing the Government’s Human Rights Framework.

Equally, the Commission’s community engagement programs help to translate human rights values into practical reality, using social media and other tools to harness that sense of the fair go so celebrated in the national imagination.

Consolidation Bill: Human Rights and Equal Opportunity Bill 2012

Most recently, we have welcomed the Government’s proposed consolidated human rights and anti-discrimination legislation. Bringing together all laws, under which the Commission currently operates, the draft Bill streamlines their provisions; expands the definition of human rights; clarifies the meaning of discrimination and takes a proactive approach. 

As dry as this may sound to anyone without a penchant for legislative drafting, this in fact represents an exciting opportunity – a chance to increase understanding about human rights considerations and to prevent discrimination before it occurs. In fact, by simplifying the legal process, the Bill provides greater certainty – clarifying evidentiary requirements and making them consistent with other civil claims processes. Meanwhile, proposed voluntary codes of practice and other measures will enable businesses to take positive steps to address discrimination and therefore reduce the likelihood of legal action being taken against them.

Propelling the conversation

The implementation of these reforms, then, will be just one of many ways we can build an understanding of the positive effects of fulfilling human rights – effects that can be felt not just by those directly concerned, but which can ripple through the wider community.

Whether as individuals or as organisations, all of us can play a part in propelling this tide. We can look for better ways to ensure that education is fully, rather than just formally, available to students in remote communities. We can demand that schools adapt so that their facilities and activities enable, rather than disable students. We can call on governments to collaborate and ensure that every child, regardless of their origin, has their right to education fulfilled. 

Most of us can only imagine what it is like to risk everything for the chance to gain a tertiary higher education. Equally, we can often feel powerless to change the circumstances of others on the other side of the world. What we can do, however, is propel the global conversation about the value of human rights – calling for their protection in the domestic sphere, and promoting them with increased credibility on the international stage. It is only through this dialogue, and through a readiness to account for our own actions, that we can call with full legitimacy for better rights recognition in other, more distant, backyards.

The presentation this evening reminds us that the right to education is, ultimately, about the recognition of human dignity. The ingenuity, resilience and sheer determination it portrays challenge us to stave off any complacency and work to fulfil this entitlement for every person around the world.

They also remind us that we must keep talking about human rights – here this evening, at home with our families and friends, in our workplaces and in our educational institutions. For it is only through the valuing of every right – whether it be to education or otherwise – that our shared humanity is realised.

That humanity shines through in spades in Education under Fire. Let it be a beacon for our own aspirations.