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Indigenous
Education (Targeted Assistance) Amendment Bill 2013
Introduced into the House of
Representatives on 20 March 2013
Portfolio: School Education, Early
Childhood and Youth
Overview
1.52
The bill seeks
to amend the Indigenous Education (Targeted Assistance) Act 2000 (IETA)
to increase the legislative appropriations for the period from 1 January
2012 to 30 June 2014. The additional appropriation allows for an adjustment to
the School Nutrition Program and the Additional Teachers initiative, which
forms part of the Stronger Futures in the Northern Territory programs, and
includes new funding for the Achieving Results Through Indigenous Education project
which will be administered through the Sporting Chance program funded under
IETA.
Compatibility with human
rights
1.53
The bill is
accompanied by a self-contained statement of compatibility which notes that the
bill will promote enjoyment of the right to education by Indigenous children.[1]
It also states that the measures, although involving a racially based program,
are not discriminatory under the Convention on the Elimination of All Forms of
Racial Discrimination (ICERD) or other relevant treaty non-discrimination
guarantees because they constitute a ‘special measure’ within the meaning of
article 1(4) of the ICERD.
1.54
The committee is
currently examining a number of other aspects of the Stronger Futures in the
Northern Territory legislation. It does not appear from the explanatory
memorandum or the statement of compatibility that the bill relates directly to
aspects of the Stronger Futures package that have been identified in
submissions to the committee as possibly raising human rights compatibility
issues, and the committee assesses this bill on this basis.
Right
to education and the right to an adequate standard of living
1.55
The effect of
the bill is to provide for additional funds for programs that will enhance
enjoyment of the right to education by Indigenous students. Insofar as the
additional funds will help to support the continuation of the School Nutrition
program ‘which enables a nutritious breakfast, lunch and snacks to be provided
to 5,000 students in 67 target schools across remote Northern Territory
communities’[2]
it is likely to contribute not only to students’ participation in education but
also to promote enjoyment of their right to an adequate standard of living (including the right to adequate
food) and the right to the highest attainable standard of health.[3]
Right
to non-discrimination on the basis of race and special measures
1.56
The statement of
compatibility states that, even though the programs to be funded by the
additional appropriations are racially based, this involves no violation of
international guarantees of non-discrimination on the basis of race. The statement
of compatibility notes that article 2 of the ICERD
requires Australia to take positive measures to address racial inequality. It
justifies the measures as special measures permitted under the ICERD and so
should not be considered to be discriminatory for the purposes of that treaty.
1.57
Article 1(4) of
the CERD provides that, where special measures are taken for the sole purpose
of securing adequate advancement of certain racial or ethnic groups or
individuals in the equal enjoyment of their human rights, those measures will
not amount to racial discrimination.
1.58
Not all
treatment that is racially based will be discriminatory within the meaning of
the ICERD and the other international treaties that fall within the committee’s
mandate.[4]
The recognition that not all race-based distinctions will be discriminatory
reflects the notion of substantive equality. While special measures are
explicitly permitted by ICERD, it is intended that such measures will be
temporary and will be terminated once the disadvantage has been redressed (even
though this may involve a considerable period). On the other hand, differential
treatment based on race that is objectively justified may continue
indefinitely.[5]
Both types of measures are consistent with the obligation not to discriminate
on the basis of race.
1.59
The High Court
of Australia has held that the following criteria need to be satisfied in order
for a measure to be characterised as a ‘special measure’:
- the measure must
confer a benefit on some or all members of a class of people;
- the membership
of this class must be based on race, colour, descent, or national or ethnic
origin;
- the sole purpose
of the measure must be to secure adequate advancement of the beneficiaries so
they may equally enjoy and exercise their human rights and fundamental
freedoms;
- the protection
given to the beneficiaries by the measure must be necessary for them to enjoy
and exercise their human rights equally with others; and
- the measure must
not have already achieved its objectives.[6]
1.60
It is now also accepted
that, as a general rule, any special measure should be developed in
consultation with the group whose members are to be the beneficiaries of the
measure.
1.61
In the present
case, it appears that the measures supported by the proposed appropriations can
reasonably be justified as ‘special measures’. The statement of compatibility
notes:
It is widely
acknowledged that Aboriginal and Torres Strait Islander students have a lower
level of educational engagement, attendance and attainment than non-Indigenous
students.[7]
It goes on
to note that the additional appropriations which ‘provide funding for
programs that are intended to achieve equality in educational outcomes for
Indigenous students is a special measure and is not discriminatory as it is
designed to benefit and ensure the improved educational attainment of
Indigenous students.’[8]
1.62
The
committee considers that the bill promotes the right to education, the right to
an adequate standard of living and the right to equality and
non-discrimination, and is compatible with Australia’s obligations not to
discriminate on the basis of race.
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