ASPECTOS A TENER EN CUENTA

Any discussion of the human right to an adequate education prompts an examination of the interrelation of rights and duties. If a moral claim to a human right is made, the claim has no meaning unless a moral duty exists in another.489 If rights are correlatives of duties,490 then finding a human right to an adequate education leads to a duty to educate adequately. John Austin asserted that:

Every right supposes a duty incumbent on a party or parties other than the party entitled. Through the imposition of that corresponding duty, the right was conferred. Through the continuance of that corresponding duty, the right continues to exist. 491

489

See eg, Jack Mahoney, The Challenge of Human Rights: origin, development and significance (2007) 90.

490

See Ashby v White (1703) 2 Ld Raym 938; 92 ER 126 below; See also Carson v Minister for Education (Qld) (1989) 25 FCR 326, 333 per Spender J; and Attorney-General v Daniels [2003] 2 NZLR 742, 766.

491

105

Against this it has been argued that a general right is only a ground of claim rather than a licence to infer what ought to be done. At best, it is an obligation which is defeasible in some cases by various pleas and excuses.492

In the specific context of education some argue against those who find rights and duties to be correlatives.493 Wringe placed a right to education as being sometimes a right conferred on individuals by governments and sometimes a welfare right. He considered welfare rights to be one of three types of moral rights, that is, those which do not need to be conferred to be enjoyed. The other two moral rights he regarded as being general rights of freedom, and special rights such as rights of restitution and reparation for damage and injury.494 From this it could be argued that where the right to education is conferred by law, then if we accept the critics of Austin’s formula, it is at least a ground of claim. At best, if we accept Austin’s formula, the right carries with it a duty incumbent on another party.

Although explicit affirmations of the right to education did not appear until later, by the 18th century there had developed a foundation for an obligation to be imposed on states.495 The 1703 case of Ashby v White 496 is authority for the proposition that a plaintiff who has a right should have a remedy. Holt CJ stated:

If the plaintiff has a right, he must of necessity have a means to vindicate and maintain it, and a remedy if he is injured in the exercise or enjoyment of it; and indeed it is a vain thing to imagine a right without a remedy; for want of right and want of remedy are reciprocal.497

The finding for the plaintiff by Holt CJ (in dissent) was upheld in the House of Lords. Although concerning a claim related to the right to vote, Holt CJ’s proposition has been referred to with approval (in different contexts) for three centuries since. For example, in the eighteenth century it was applied by Lord Chief Justice Willes in an action concerning the enticement and detention of a wife by her lover until her death to the detriment of her

492

Stanley Benn, The Meaning of ‘Right’

<www.philosophicalsociety.com/Archives/The%20Meaning%20Of%20Right.htm > at 13 January 2013.

493

Colin Wringe, ‘The Human Right to Education’ (1986) 18(2) Educational Philosophy and Theory 23, 23.

494

Ibid 26-27.

495

cf Katerina Tomaševic, ‘Human rights in education as a prerequisite for human rights education’ Right to Education Primer No. 3 (2001) 10.

496

(1703) 2 Ld Raym 938; 92 ER 126.

497

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husband.498 In the nineteenth century it was applied in a case involving the rights of a fisherman to dredge for oysters.499 The twentieth century case of Constantine v Imperial Hotels500 concerned a West Indian cricketer who was refused entry to a London hotel. Birkett J applied Ashby v White in finding Constantine’s right to accommodation violated and a remedy thus afforded by the law.501

In Australia, Griffith CJ referred to Holt CJ’s dictum in the ‘Union Label Case’ in 1908.502 The plaintiff brewers objected to the Union’s registration of a ‘workers trademark’ under the Trade Marks Act 1905 (Cth) as they were thus prevented from using their own similar trademark. His Honour stated that in the absence of statute the brewers had the right to offer their goods for sale without having to publish to the world any statement as to who they have employed in their production.503 More recently Spender J stated obiter dicta in Carson v Minister for Education (Qld) 504 that ‘legally rights are correlatives of duties.’ Justice Kirby referred to Ashby v White and Holt CJ’s dictum in APLA Ltd and others v Legal Services Commissioner (NSW).505 His Honour, in dissent, stated that the amended Legal Profession Regulation 2002 (NSW), prohibiting the advertising of legal services in relation to personal injury, attempted to prevent the activities of the plaintiff lawyers in such a way as to injure members of the public in the exercise or enjoyment of their rights conferred by federal law, and in the access of persons to federal courts and tribunals for the vindication of such rights.

498

Winsmore v Greenbank (1745) Willes 578; The husband was also deprived of the wife’s substantial inheritance; See also Williams v Lewis (1797) Peake Ad Cas 157- another voting case.

499

Harman v Tappenden (1801) 1 East 555, 566; ER 214, 217 per Lord Kenyon; See also Burdett v Abott (1811) 14 East 1 [58], [59], 104 ER 501, 523; Tozer v Child and Howard (1857) 7 EL & BL 377, 380, ER 1286, 1289 per Lord Campbell CJ.

500

[1944] 1 KB 693.

501

Ibid 708. The plaintiff was awarded only nominal damages since the Hotel chain offered him accommodation at another hotel; See also Neville v London “Express” Newspaper Ld [1919] AC 368, 379 per Lord Finlay; and the United Kingdom Court of Appeal in Three Rivers District Council v Governor and Company of the Bank of England (No 3) [2000] 2 WLR 15, 43 per Hirst LJ, 148-149 per Auld LJ, a case which concerned depositors’ rights and misfeasance in public office.

502

The Attorney-General for New South Wales (at the Relation of Tooth and Co Ltd) v The Brewery Employees' Union of New South Wales - BC0800029 (Unreported, High Court of Australia -- Full Court Griffith CJ, Barton, O'Connor, Isaacs and Higgins JJ, 8 August 1908).

503

Ibid 3.The relevant Part VII of the Act was found to be invalid; See also Isaacs J in The Townsville Harbour Board v Scottish Shire Line Ltd - BC1400042 (Unreported, High Court of Australia -- Full court Griffith CJ, Barton and Isaacs JJ, 15 May 1914) 5.

504

(1989) 25 FCR 326, 333.

505

(2005) 219 ALR 403 [255]; See also Gummow J in Commissioner, Australian Federal Police and another v Propend Finance Pty Ltd and others (1997) 141 ALR 545, 588, 589 citing Ashby v White in the context of a claim of legal professional privilege.

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The notion of a duty of the state to educate children arose after the time of the American and French Revolutions, promoted as a means of sustaining the egalitarian ideals of the

revolutions.506 John Stuart Mill later wrote in 1869 that the state should require and compel the education of every citizen.507 The United Stated Supreme Court declared education to be the most important function of the state in Brown v Board of Education of Topeka.508 As noted above, the ICESCR of 1966 held the state to be the main actor for implementing the right to education. In 1979, the Conference on the Legal Protection of the Rights of the Child (Warsaw) set out in Principle 4 that ‘the duty to provide the means of education … falls in the first place on the State.’509

The lead up to CROC and the subsequent impact of the Convention was the high point in establishing the state’s historical duties to the child. The Children Act 1989 (UK) reframed parental ‘rights’ as ‘responsibilities’ and reconceptualised children as persons to whom duties are owed, rather than as minors over whom power is exercised.510 As noted above, Australia’s ratification of the CROC led to a similar change in terminology (although the Full Family Court firmly stated that the ‘best interests of the child’ was certainly no more powerful than the paramountcy of the ‘welfare of the child’).511

The Family Law Act 1975 Section 60B as amended by the Family Law Reform Act 1995 (Cth) states:

(1) The objects of this Part are to ensure that the best interests of children are met by…

(d) ensuring that parents fulfil their duties and meet their

responsibilities, concerning the care welfare and development of their children.

(2) …

(a) children have the right to know and be cared for by both parents…

506

Douglas Hodgson, ‘The international human right to education and education concerning human rights’ (1996) 4 International Journal of Children's Rights 237, 239 .

507

‘On Liberty’ (1869) Great Books Online [12] <http://www.bartleby.com/130/3.html> at 6 July 2012. 508 347 US 483 (1954) 493. 509 Hodgson (1996) 238, n 8. 510

Marie Parker-Jenkins, ‘Children's Rights and Wrongs: Lessons from Strasbourg on Classroom Management’, (Paper presented at the American Educational Research Association, New Orleans Conference: Validity and Value in Education, New Orleans, Louisiana, 2002) 12.

511

B and B: Family Law Reform Act 1995 (1997) FLC 92-755 per Nicholson CJ, Fogarty, Lindenmayer JJ; See also In the Marriage of L [1997] FLC 92-775, 84,226-84,227.

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(b) children have a right to [spend time with parents and other significant carers]

…

(e) children have a right to enjoy their culture…

It has been noted that following these developments in the area of family law, welfare professionals such as teachers are now more accountable for their decisions in relation to children.512 However, the nature and substance of the state’s duty to educate is still unclear. In the United Kingdom the Education Acts from 1944 onward gave the Local Education Authorities a duty to provide services.513 Section 8 of the 1944 Act sets out a statutory duty to provide sufficient schools in the area. Recent House of Lords decisions such as Re L include statements concerning the ‘duty to educate.’ Lord Hobhouse observed in that case:

The responsibility of teachers and the head teacher are owed to the body of pupils as a whole not merely to an individual pupil in isolation. The duties, including the duty to educate and to preserve safety, are underpinned by the more basic duty to

maintain discipline. This is a duty of each teacher within his sphere of activity and of the head teacher overall. Part of the duties of the head teacher is punishment in support of the maintenance of discipline.514

In Australia the Education Act 1990 (NSW) s 4, Education Act 2004 (ACT) s 7(1) and School Education Act 1999 (WA) s 3 all refer to the ‘right’ to an education. Victoria’s Education and Training Reform Act 2006 refers to all Victorians having ‘access to high quality education’.515

Jackson and Varnham noted that the principles set out in the current State Acts demonstrate the philosophy that the state has a responsibility to provide a free and accessible education system while the parent has a responsibility to ensure that the children attend.516 Unlike the United Kingdom Act, the word ‘duty’ does not appear. Queensland’s Education (General Provisions) Act 2006 states under section 5 that the objects of the Act include:

512

Parker-Jenkins (2002) 13.

513

Sally Varnham, Liability for Little Learning: An Examination of the Potential for

Educator/Student Liability in the Compulsory Education Sector (Master of Laws Thesis, Victoria University of Wellington, 1998) 31. 514 [2003] 2 AC 633 [34]. 515 Section 1.2.1 (b). 516

Jackson and Varnham (2007) 82; See also Anwar Khan, ‘Obligation to Attend School: the English Law’ (1998) 3 Australia & New Zealand Journal of Law & Education 74, 77; Kate Halvorsen, ‘Notes on the Realization of the Human Right to Education’ (1990) 12 Human Rights Quarterly 341, 349.

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(1) (a) to make available to each Queensland child or young person a high-quality education that will –

(i) help maximize his or her potential; and

(ii) enable him or her to become an effective and informed member of the community…

Education legislation of Tasmania, South Australia and Northern Territory517 do not mention either a right to education or duty to educate.

Section 1.2.3 of Victoria’s 2006 Act states: ‘Nothing in sections 1.2.1 or 1.2.2 [which includes having access to education] gives rise to, or can be taken into account in, any civil cause of action.’ As has been observed it is incongruous that children are compelled to attend school yet there is no legal compulsion to educate them.518

It is argued that the absence of the word ‘duty’ in the education legislation may not act as a future bar to finding an actionable duty to educate. In addition to the High Court’s statements in Purvis519 as to the school authority’s ‘responsibilities’, contemporary community values have strengthened the requirement of a duty to provide an adequate education.520