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Australian Education Bill 2012

Introduced into the House of Representatives on 28 November 2012
Portfolio: Education, Employment and Workplace Relations

Committee view

1.1        The committee notes that the Commonwealth and each the states and territories are under an obligation to ensure the full enjoyment of the right to education.

1.2        The committee seeks clarification from the Minister of the potential impact of the reform directions referred to in the bill on the right of teachers to just and favourable conditions of work.

Overview

1.3        This bill is framework legislation that sets out a commitment to schooling reform, but it does not in itself create any legally binding rights or duties. The bill sets out that the Commonwealth will work with the states and territories and non-government authorities to:

• develop a national plan on school performance and improvement and opportunities for school students (and sets out principles and reform directions for the plan around quality teaching and learning, school leadership, transparency and accountability and meeting student need);
• develop benchmarks for assessing school and student performance and implementing ways to support increased transparency, assessing and improving school performance and gathering and sharing evidence.

1.4        The bill also sets out principles on school funding, providing that any state or territory government or non-government education authority that agrees to a national plan will be provided with funding based on three principles:

• every student will have the opportunity to an excellent education;
• funding will be allocated based on a recognition of the costs of providing a high quality education;
• there will be additional funding to recognise the needs of students with an educational disadvantage.

Compatibility with human rights

1.5        The bill is accompanied by a self-contained statement of compatibility which identifies a number of rights which it argues will be promoted through the achieving the broad goals set out in the bill. These include the right to education guaranteed in a number of international conventions, and the right to enjoy that right without discrimination.[1]

Right to education

1.6        The bill is in essence a statement of commitment to a number of principles and an indication of the way in which the Commonwealth government proposes to implement them, in particular through agreements with the states and territories and through cooperation with non-government education authorities. Clause 10 of the bill provides that the Act will ‘not create rights or duties that are legally enforceable in judicial or other proceedings’ and that a failure to comply with the Act will ‘not affect the validity of any decision, and is not a ground for the review or challenge of any decision.’

1.7        The bill reflects the Commonwealth’s commitment to implementing the reforms proposed by the 2011 Review of Funding for Schooling[2] (the report of which makes no explicit reference to the right to education).  There is a range of different ways of funding education systems that have been held to be consistent with international human rights obligations, and in broad terms the decision to focus on need as a basis for funding and a commitment to ensuring marginalised and disadvantaged groups enjoy full access to the right to education is consistent with those obligations.

1.8        The bill is expressed in general terms and might be appropriately described as framework legislation, something recognised by the statement in the explanatory memorandum that ‘amendments to this Bill will be moved following the conclusion of negotiations with States, Territories and the non-government school sector.’[3] It is difficult to assess whether the implementation of the Review’s principles by the governments involved will in practice give rise to any human rights concerns.

1.9        The emergence of specific human rights issues in implementation will depend to some extent on the overall funding made available. If this is less than required for full implementation of the Review’s goals, then determining which groups get preference is likely to raise issues that need to be considered under non-discrimination guarantees, the obligation of progressive realisation as it applies to the right to education, or questions of limitation on the enjoyment of the right.

1.10        Because of the division of responsibility between the states and territories and the Commonwealth in relation to school education, the funding and other arrangements are to be agreed by negotiation between them. The explanatory memorandum states that ‘Commonwealth funding will be made dependent on the parties’ agreement to implement the national plan for school improvement.’[4]

Right to work and to just and favourable conditions of work

1.11      The bill also contains provisions relating to teacher qualifications and training. Clause 7(1) sets out a commitment to ‘quality teaching’ and provides:

(1) All teachers will have the skills, and support they require, to improve their performance over time and to deliver teaching of a high quality to all of their school students. The work of teachers will:

(a) reflect rigorous professional standards and best practice; and

(b) be based on evidence of successful teaching methods.

1.12      This is relevant to the enjoyment of the right to work, which also include the right to have opportunities to develop professionally. To this extent the bill would promote the right to work and develop professionally. However, the implementation of higher standards, and the availability in practice of the time and resources to improve qualifications and performance, and the consequences for teachers who may not satisfy any new standards, may have implications for the right to work and the right to just and favourable conditions of work (articles 7 and 8 of the ICESCR).

1.13             The committee notes that:

(a) while the nature of the federal system in relation to responsibility for education means that agreement will be required between the Commonwealth and states/territories over the proposed arrangements, this internal constitutional division of responsibilities cannot, as a matter of international law, provide any justification for a failure to ensure the full enjoyment of the right to education; and

(b) each of the Commonwealth, and the states and territories, are in effect under an obligation to ensure the enjoyment of the right to education and other relevant rights in the context of school education.

The committee also notes that the right to just and favourable conditions of work of school teachers may be engaged by clause 7(1)(a) of the bill and intends to write to the Minister to seek clarification on the potential impact on the enjoyment of that right by the pursuit of the reform directions referred to in the bill.

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