Queensland’s ‘Right to Education’: implications for State educational institutions

We continue our series of updates about some of the key human rights protected under the new Human Rights Act 2019 (Qld) with an overview of the right to education.

Key takeouts

Queensland is the third jurisdiction in Australia to introduce specific Human Rights legislation, Human Rights Act 2019 (Qld), with the ACT being the only other jurisdiction that incorporates a right to education.

The “Right to Education” is intended to be interpreted in line with the Education (General Provisions) Act 2006 and to provide rights in relation to aspects of the State’s responsibilities for education service delivery.

Queensland is the third jurisdiction in Australia to introduce specific Human Rights legislation, Human Rights Act 2019 (Qld). Victoria and ACT have similar Acts, although the ACT is the only other jurisdiction that incorporates a right to education. The legislation picks up on Australia’s international rights based treaty obligations. The key substantive provisions commence from 1 January 2020.

Overview of all of the rights.

Key objectives

One of the key aims of the Human Rights Act 2019 is to bring human rights to the forefront of decision making in the Queensland public sector. Its objectives will be achieved by:

  • requiring a “compatibility statement” to accompany all new legislation tabled in the Parliament;
  • making it unlawful for public entities, including public education providers, to act or make decisions that are not compatible with human rights, or that fail to take human rights into proper consideration when making decisions; and
  • to empower the Supreme Court to make “declarations of incompatibility” if a statutory provision cannot be interpreted in a way that is compatible with a human right.

While decisions made and actions taken are required to contemplate any human right that could be affected, the rights are not absolute. A human right must either not be limited at all, or may be limited if it is reasonable and “demonstrably justifiable”. A test of proportionality will apply.

Entities can ‘opt in’ to the human rights obligations if they are not otherwise captured by the new laws.

Right to Education

The ‘Right to Education’ is described in section 36 of the Human Rights Act 2019 as:

  • Every child has the right to have access to primary and secondary education appropriate to their needs.
  • Every person has the right to have access, based on the person’s abilities, to further vocational education and training that is equally accessible to all.

This section is intended to be interpreted in line with the Education (General Provisions) Act 2006 and to provide rights in relation to aspects of the State’s responsibilities for education service delivery.

In the second limb, the Queensland version appears limited to vocational education rather than higher academic courses such as Masters and PhDs.

What happens if a human right is breached

The Bill includes a mechanism for resolving complaints about breaches of human rights, including by the Queensland Human Rights Commission, which will be established to replace the Anti-Discrimination Commission Queensland from 1 July 2019.

There is a requirement for an aggrieved person to first raise their complaint with the entity concerned.

If the complaint is not resolved locally, it may then be dealt with by the Human Rights Commission which can also refer to other agencies. The Queensland Ombudsman will likely be the most appropriate entity to deal with a complaint about State school services.

There is no standalone legal remedy following a finding that a human right has been contravened under the Human Rights Act 2019. The Act does not create any new offences at law, create any independent statutory cause of action, nor provide a mechanism for financial compensation. Instead, contravention of a human right may be raised as a ground in proceedings for any other cause of action that may exist against the entity concerned (for example, judicial review proceedings or anti-discrimination complaint).

Preparing for implementation

In order to prepare for the new legislation, State educational institutions should give consideration to:

  • develop decision-making support tools to ensure that relevant human rights have been considered and balanced when making decisions, and that this is documented
  • ensure internal complaints management processes are adapted to manage human rights complaints in compliance with the new law
  • provide education and training to staff in relation to human rights obligations, particularly front line staff and those with responsibility for complaint management
  • review and update existing policies and procedures to ensure that they acknowledge and reflect human rights obligations
  • review and update student / parent information documentation to include information about human rights
  • the right can extend to third party contractors if what they do can be defined as providing “public” functions or services – so being mindful about contracting terms
  • SourceAAP:www.lexology.com

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