Last updated 1 December 2020
Section 36 of the Human Rights Act 2019 (Qld) (Human Rights Act) states that a child has the right to access primary and secondary education that is appropriate to the child’s needs. This right is also extended to include equal access to further vocational education and training.
Education is often referred to as a fundamental or foundational human right because the free exercise of other human rights relies on everyone having access to quality education.
Subsection 36(1) provides the right to access primary and secondary education appropriate to the child’s needs. The right operates consistently with the Education (General Provisions) Act 2006 (Qld) (Education Act) in relation to state education service delivery. The objects of the Education Act include to provide access to high-quality education that will help maximise the child’s educational potential, and allow them to become an effective and informed community member, with the costs met by the state. What is appropriate to the child’s needs, when read with the Education Act, is likely to require that education programs be responsive to the child’s age, ability and educational needs.
Subsection 36(2) provides for a right to access, based on the person’s abilities, further vocational education and training that is equally accessible to all. The provision does not specify what type of tertiary education or training the right may extend to, however, assuming eligibility for entrance, the right provides access to such education and training as would be available to others.
The right to education will be subject to the general limitation provision in s 13 of the Human Rights Act. This provides human rights may be subject under law to reasonable limits which are justified in a free and democratic society. See ‘Human Rights may be Limited’ for further explanation.
The right to education only exists in the Australian Capital Territory, where it has received limited consideration. It is likely the rights in s 36 of the Human Rights Act may be engaged:
- in decisions about suspension and expulsion of school-age children under the Education Act
- when considering support for children with special needs, so that they can access an education that is appropriate to their needs
- when delivering culturally appropriate education for Aboriginal and Torres Strait Islander children, given that a child’s educational needs may also be cultural.