How would a statutorily prescribed right be interpreted?

The High Court has recognised the applicability of the Vienna Convention on the Law of Treaties rules of treaty interpretation in Australia440 and held that treaties should be given a broad, contextual interpretation ‘unconstrained by technical rules of [domestic] law, or by [domestic] legal precedent considering the objects and purpose of the treaty’.441

It is legitimate to seek assistance from the jurisprudence of specialist international courts,

437

(1981) 4 EHRR 38.

438

See also s 40(2)(b) of the Human Rights Act 2004 (ACT).

439

The Report of the National Human Rights Consultation Committee (‘NHRCC’) (2009) noted at 308 that the Australian Human Rights Commission submitted the definition of ‘public authority’ should be sufficiently clear to provide certainty about who is bound by an Australian Human Rights Act but ‘flexible enough to accommodate changes to governance arrangements’. The Report noted other submissions that an Act should specify that certain functions are taken to be of a public nature or provide a non-exhaustive list of factors for a court to take into account in determining whether a function is of a public nature.

440

Articles 26, 27, 31 and 32 discussed above at section 4.2.2.

441

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tribunals and specialist UN Committees when interpreting treaties.442 Should a right to education be framed in State or Federal legislation, the interpretation of the right in the UDHR, ICESCR, CROC and other relevant instruments in other common law countries will be legitimate persuasive sources for courts to observe.

In New Zealand, Attorney-General v Daniels443 considered the status of the right to education. There the Education Act 1989 s 3 states that every person … is ‘entitled’ to free enrolment and free education at any state school. The content of the stated right to education contained in the Education Act was discussed by Baragwanath J in the High Court and by the Court of Appeal. A group of special needs students argued that the closure of a special school discriminated against them and breached the New Zealand Bill of Rights Act 1990 and the Human Rights Act 1993 (NZ). Baragwanath J regarded the right to education as a

substantive right whereas the Court of Appeal said there was no general right to education enforceable by individual students. Rather, the Court held those rights to be:

essentially those specifically established by and under the legislation which … do in themselves provide for regularity and system and are designed to ensure appropriate quality’.444

In other words the right is a narrow procedural right. The Court noted that schools have ‘duties correlative to the students’ statutory rights’ and those general rights are capable of legal enforcement.445 In the lower court Baragwanath J found that while it is the function of the Crown to determine the content of the education, it is the Court’s responsibility to ensure that the adequacy of the education does not fall below certain minimum levels. He said this was a justiciable issue which could be determined with the help of expert evidence. On the other hand the Court of Appeal pointed to systems of review such as trustees’ reports, Education Review Office and independent reviews and seemed to imply that judicial scrutiny was thereby rendered inappropriate. The court found ‘suitability an uncertain premise that may prove difficult for judges’.446

It has been argued that the Court of Appeal’s

442

Applicant A v Minister of Immigration and Ethnic Affairs (1997) 190 CLR 225, 230-231. However see Al-Kateb v Godwin (2004) 219 CLR 562, discussed above at section 4.4.1, where the High Court held that there is no place for consideration of international law or the jurisprudence of other domestic jurisdictions if there is no ambiguity in the legislation to be applied.

443 [2003 2 NZLR 742. 444 Ibid 766-7. 445 Ibid. 446 Ibid.

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decision leaves considerable room for debate and that judicial review is a hollow remedy.447 Ryan suggested the Court of Appeal’s purported distinguishing of Phelps’ case448

was ineffective and noted that the finding of a duty of care in Phelps’ case depended to a large degree on a basic right to educate on which it could rest.449

In Australia, the question remains whether these statutorily prescribed rights are to be interpreted as containing substantive rights (as preferred by Baragwanath J in Daniels) or merely procedural rights (as limited by New Zealand’s Court of Appeal). Lord Clyde in Phelps found the administrative review measures inadequate in that they failed to provide students with redress.450 In relying on these parallel measures in New Zealand to imply judicial scrutiny was unnecessary, the Court of Appeal in Daniels was out of step with the House of Lords. Hence it is argued that in Australia a statutory prescribed right to education should be regarded as a substantive right.

Many contributors to the Australian NHRCC process raised the issue of the right to

education.451 The Report recommended that the Federal Government ‘conduct an audit of all federal legislation, policies and practices to determine their compliance with Australia’s international human rights obligations, regardless of whether a federal Human Rights Act is introduced.’ It recommended the Federal Government should then amend legislation, policies and practices as required, so that they become compliant’.452

The Committee heard submissions in favour of a human rights Act that applies uniformly across Australia, to Federal, State and Territory laws and the relevant public authorities. The main reason for this approach is that the Act would cover many of the human rights concerns that affect the day-to-day lives of most Australians. For example, the States and Territories are responsible for most areas of criminal law, as well as service delivery in the areas of education, transport, health, policing and housing.453 Constitutional difficulties which were

447

E J Ryan, ‘Failing the System? Enforcing the Right to Education in New Zealand’ (2004) 29 Victoria University of Wellington Law Review 1-

36<http://www.nzlii.org/nz/journals/VUWLawRw/2004/29.html> at 6 July 2012.

448

Phelps v Mayor of London Borough of Hillingdon [2001] 2 AC 619 discussed above in Chapter 3.

449

Ryan (2004) 17.

450

[2001] 2 AC 619, 672.

451

Report of the National Human Rights Consultation Committee 2009 Commonwealth of Australia, Recommendations, p xxxi.

452

Recommendation 4, p xxx.

453

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raised during the consultation process were seen as obstacles to the Committee formally recommending a uniform model.454 In April 2010, the Australian Government provided its response to the Report in the Australian Human Rights Framework 2010. This development did little to alter the status quo.455 Framing an Australian Human Rights Act needs to establish the right to education as a substantive right and its enforcement a justiciable issue.