Skip to main content

Rural and Remote Education Inquiry Briefing Paper


and Remote Education Inquiry Briefing Paper

G. Indigenous

children's education rights

The principal issues

concerning human rights in education for Indigenous children are raised

in the inquiry's Briefing Paper on The Human Right

to Education.

G1 Availability

and accessibility

With respect to the

availability and accessibility of education the Briefing Paper concludes


education is accessible or available should be measured by objective criteria.

Students must be able to access education without forfeiting other rights

such as the right to rest or leisure or participation in family or cultural

events. The right is also violated if accessing education is substantially

harder or more onerous for one group than another or harder for a substantially

higher proportion of one group over another.


to Top

G2 Non-discriminatory

Every child has the

right to education without discrimination.


is most generally defined as 'any distinction, exclusion, restriction

or preference based on an irrelevant ground (eg sex, race, colour or language)

which has the purpose or effect of nullifying or impairing the recognition,

enjoyment or exercise of a right on an equal footing'. Freedom from discrimination

'does not mean identical treatment in every instance' and certain legal

exceptions do exist.

[T]he poor level

of literacy among Aboriginal and Torres Strait Islander children might

be seen as a breach of Article 28 of the Convention on the Rights of

the Child. This article articulates the right of every child to education.

Literacy is a basic outcome of education (ATSIC submission, page


It is vital to appreciate

that identical treatment which ignores relevant differences in fact has

the effect of entrenching inequality and disadvantage. The inquiry was

told that this is not widely appreciated in Australian education systems.


governments are wedded to policies of formal equality. That is services

and opportunities will be provided equally to all and some "special measures"

of a temporary nature may be employed to overcome disadvantage. In this

context the disadvantage of Aboriginal and Torres Strait Islander peoples

ceases to exist when parity is reached with non-Indigenous people on socio-economic

benchmarks. Such an approach provides for "special treatment" for as long

as any group is formally unequal and takes it away when it is considered

that the pendulum has swung to far.

A broader understanding

of equality, and one which ATSIC supports, is that of substantive equality.

Substantive equality provides that opportunities, services and structural

responses (eg "different treatment") should be provided on the basis

of people's specific needs and rights.


treatment may be necessary to respond adequately to the particular circumstances

of a person or a group or to reflect the special character of their

interests. ...Substantive equality recognises that different treatment

is not only permitted, but may be required to achieve real fairness

in outcome"44

Of particular

relevance here is the international jurisprudence of the Convention

on the Elimination of Racial Discrimination (CERD) and the Human Rights

Committee on the principles of equality and non-discrimination. This

body of jurisprudence establishes that not all differences in treatment

are discriminatory; that is, equality does not mean identical treatment.

Distinctions are not discriminatory where they pursue a legitimate aim.

Special measures -or affirmative action - are sometimes required to

redress inequality and to secure for members of disadvantaged groups

full and equal enjoyment of their human rights. And particular regimes

of minority rights are consistent with, and sometimes required to achieve

factual or substantive equality.45

Thus, the protection

of Indigenous peoples' distinct rights is also implicit in the concept

of substantive equality. Positive measures of protection are necessary

to achieve substantive equality and to accommodate the inherently different

and distinct Indigenous identities. When considering equality for Indigenous

peoples in the exercise and enjoyment of the right to education an assessment

must be made in an Indigenous human rights context (ATSIC submission,

page 31).

... understanding

when we talk of equity of outcomes, we are talking about a fair go in

terms of outcomes, and here of course we are talking about the cultural

background of the students and the desire of parents for cultural inclusiveness

within curriculum etc (John Bucknell, Aboriginal Independent Schools

Unit, Broome hearing, 20 May 1999).


to Top

G3 Education

in culture and language

Indigenous children

are entitled to receive an education which is culturally-appropriate and

teaches them their language and culture as well as the mainstream language

and culture. The objective is not identical education and outcomes but

comparable and equally valued outcomes and opportunities.

It was argued in

evidence that this right is being denied to Indigenous children in Australia.

... the

continuing disparity between Indigenous and non-Indigenous Australians

goes deeper than even the severe economic consequences. It becomes an

issue about Indigenous students' basic human rights not being met, their

right to receive a culturally appropriate education, one in which cultural

identity, languages and values are not disregarded, and an education free

from discrimination (David Curtis, ATSIC Commissioner, Melbourne hearing,

12 November 1999).

From the community

consultations another view of successful outcomes for Indigenous people

with regard to education, begins to emerge. When community people were

asked on their views on what education and/or school was for, 'to be

able to compete with mainstream kids and hopefully get a job' was the

desire most had for themselves/their children. It also became clear

that this should not be gained at any cost, and that Indigenous cultural

values should not be disregarded (ATSIC submission, page 32).

Equity of educational

outcomes means not just providing strategies to raise retention or graduation

rates, but also incorporating Indigenous perspectives and raising awareness

of Aboriginal and Torres Strait Islander issues and promotion of human

rights generally within the education system. 'Aboriginal children need

to be strong in their own cultural identity first' was how one parent

expressed the need to counter 'some of the [misinformation] still being

taught about Australian history and Indigenous cultures'. Again this

is supported by Article 29 of CROC where it states that the education

that is compulsorily provided is to instil respect in all children for

cultural identity and values (ATSIC submission, page 33).


to Top

G4 Bilingual


With respect to whether

Indigenous children whose first language is an Indigenous language have

a right to receive a bilingual education the Briefing Paper on the Human

Right to Education concludes

If the evidence

establishes that Indigenous children have better education outcomes if

taught, at least in part or for a time, in their own language, then the

answer is clearly yes because Indigenous children have a right to full

equality in education.

The importance of

valuing Indigenous languages was described.

In our remote

areas there are many linguistic backgrounds. These languages are the lifeline

for the remote communities, because you cannot separate culture from language

. Language gives identity, it gives self-esteem, it makes Indigenous people

unique .... (Sister Anne Gardiner, Darwin hearing, 10 May 1999).

Four different ways

to use two (or more) languages in education are described in the Definitions

section of this Briefing Paper: language immersion, language submersion,

bilingual and second language teaching. Children have a right to be taught

in a way which ensures equity in education access and outcomes. Therefore,

it is vital to appreciate which form of language teaching will achieve

the best results.

UNICEF has concluded

School can

be an alien and daunting place for the many . young children who begin

classwork in a language different from their own. Compelled to adopt a

second language when they are as young as four, five or six, these children

must give up an entire universe of meaning for an unfamiliar one. They

may also come to believe that the language they have known from birth

is inferior to the language of school. In learning complex subjects such

as mathematics and reading, they must undergo one of the greatest challenges

they will ever face, yet the linguistic skills on which much of their

cognitive faculties rest have suddenly been deemed irrelevant to the task

at hand.

As these building

blocks of knowledge crumble, so can the children's self-esteem and sense

of identity. It is no wonder that so many of them struggle to stay in

school and succeed ...

Experts increasingly

recognize how important it is for children to use their mother tongue

when they begin school. Use of this tongue validates their experiences.

It helps them learn about the nature of language itself and how to use

language to make sense of the world, including all aspects of the school


The mother tongue

is an essential foundation for learning.46

Children have another

language right as well according to UNICEF, namely the right to learn

the language of the dominant society.

... acquiring

proficiency in a national language . also has advantages. It broadens

communication and, later on, affords greater opportunities for higher

education and jobs.47

Professor Lo Bianco's

paper details some of the considerations, pre-requisites and barriers

to success in each form with particular reference to the differences between

language immersion and bilingual education.

1. Apparent contradiction

There is an apparent

contradiction in the practice of two-language education. Immersion education

has been found to be highly successful for children who are able to learn

general subject matter and the target language (and maintain their English

development) through the use of the target language as the principal medium

of instruction. This success has been attested to in Canada, the USA,

Australia and in Europe in many different kinds of what are essentially

immersion methodologies.

However, immigrant

or Indigenous minority children taught only in English (the target language)

often not succeed in schooling to the same degree, lose mastery of their

mother tongue and do not always attain high levels of standard English

proficiency. Therefore it seems that the use of a language other than

the home or mother tongue of learners can lead to educational success

in the case of elites, why should this not apply to minorities when they

are taught in English?

The similarities

between immersion and bilingual education although they may seem to be

substantial are more apparent than real. The following variables make

the distinction clearer.

2. Bilingual or

monolingual teachers

In immersion programs

teachers tend to be bilinguals and the class language groups monolingual,

or at least share a common language. This usually means that although

teachers 'present a monolingual model' of the target language to the learners

as their teaching approach (i.e. they do not use the learners' language)

they are in fact bilingual and therefore accept first language communication

from the students. This rarely applies in bilingual education. In bilingual

programs with language minority children the teacher often does share

a common language of communication with the learners.

3. Materials

Immersion programs

are invariably extremely well resourced with adaptations of the regular

curriculum in the target language, which is invariably a prestige international


4. Status

Immersion methodologies

typically apply to social elites with significant capacity to exercise

educational choice. Bilingual programs usually are typically language

bridging initiatives in which children are assisted to continue their

general education whilst they acquire the socially dominant language,

and language of the curriculum, as a prelude to transferring their learning

fully to that medium.

5. Monolingual

learner groups

It is often the case

that immersion programs are made up of monolingual common language learner

cohorts. This is significant since knowledge of the constrastive differences

between the target and the source language are part of the educational

preparation of the teachers. In addition this means that learners and

their bilingual teachers share a common language.

6. Additive/subtractive


In minority language

contexts the social circumstances of language shift are often in evidence.

This means that there is progressive attrition of the mother tongue of

the learners who are therefore gaining a temporary bilingualism as a prelude

to monolingualism in the target or dominant language. In immersion contexts

the reverse situation applies in that the learners are adding a socially

esteemed skill to their established linguistic repertoire.

7. Time

For minorities involved

in transitional bilingual education the time involved in gaining skill

in the target language and the mother tongue has been found to be highly

inadequate to the task. On the other hand, immersion children enjoy sustained

and extensive long term opportunities to develop their bilingual proficiency.

8. The source

language and its status

For immersion students

the source language is typically the dominant language of the society

and of the curriculum and usually the target language for minorities involved

in bilingual education. This is a highly felicitous condition that makes

a substantial impact on the kinds of programs that immersion versus bilingual

instruction really are.

9. Justification

or rationale

For immersion education

the principal justificatory rationale is the greater demonstrated effectiveness

of immersion education regarding the learning of esteemed languages.

In bilingual education

there have been four main justifications: uninterrupted or minimally disrupted

conceptual development; the claimed effects of early bilingualism on general

intellectual development; the claimed enhanced ultimate acquisition of

English; and fourth the socio-cultural and identity justifications to

do with the connection between the child and its home language, culture

and family.

In essence the educational

principle on which transitional bilingual education has been based is

the idea that uninterrupted conceptual development is a necessary precondition

for allowing learners to participate in schooling at age appropriate norms.

The main educational principle for maintenance bilingual education concerns

the socio-cultural and identity rationale of advancing bilingualism as

a personal and social asset.

10. Content conveyed

in the languages

In immersion programs

there is extensive effort to research the learners progress in the language,

and to retain skill in the mother tongue, often by 're-labelling' knowledge

gained in the language of instruction. A commensurate effort is not typically

found in bilingual education programs.


Utilising these distinctions

in types and kinds of programs and some of the variables that are salient

in thinking about the programs what are the general options that Australian

schools might adopt for effective education. Effective education here

means a bilingual and bicultural outcome from schooling involving least:

  • the attainment

    of academic-literate success for Australian indigenous children according

    to age appropriate norms

  • the acquisition

    of English sufficient to permit the learners to progress through upper

    schooling and beyond to further education

  • the maintenance

    and development of the communicative and academic proficiency in the

    first language

  • an educational

    experience which fosters and reinforces the distinctive cultural identity,

    self-esteem, family and cultural knowledge and of the learner and his

    or her community.

For Indigenous children

who speak a language other than English as their principal language when

they commence schooling the broad options are

  • Immersion in English

    medium education (with ESL)

  • Submersion in

    English (without ESL)

  • Transitional Bilingual

    Education (monoliterate or partial biliterate) with ESL

  • Maintenance Bilingual



to Top

G5 Participation

and attendance

The Convention

on the Rights of the Child requires governments to introduce measures

to limit school drop-out and also to make primary education compulsory.

Measures to reduce truancy must be 'positive' rather than 'punitive'.

Some witnesses were critical of anti-truancy measures as they affect Indigenous


At the beginning

of the year the police put up a sign saying that children have to attend

school and that if they do not their parents will be fined. Imposing fines

on parents when their children don't attend school is not a good idea.

It will only result in people being dragged into the criminal justice

system if they can't pay the fine (Doomadgee Qld community meeting,

6 October 1999).

Maybe financial

penalties [for non-attendance at school] could be imposed on parents

pursuant to a council by-law rather than through the criminal justice

system (Doomadgee Qld community meeting, 6 October 1999).

The right of Aboriginal

and Torres Strait Islander peoples to ensure that their children receive

a culturally appropriate education and the rights of all children to

have a voice in the various aspects of their lives, provides the context

against which to evaluate the success of mechanisms to provide compulsory

free education. Education systems with compulsory attendance regimes

therefore face the challenge of ensuring that the service provided meets

human rights imperatives in terms of cultural and children's rights

(ATSIC submission, page 32).


to Top



Native Title Report, 1997-98
45 CERD General Recommendations XIV (1993), XXI (1996), XXIII

(1997), General Comments of the Human Rights Committee: 12 (1984), 17

(1989), 18 (1989), 23 (1994).
46 Carol Bellamy, The State of the World's Children 1999:

Education, UNICEF, 1999, page 44.
47 Ibid.



Recommendations to the inquiry


updated 2 December 2001.