TITLE:

NAME:

DEGREE:

DATE OF SUBMISSION:

"RIGHTS, DUTIES AND OBLIGATIONS IN

EDUCATION, WITH PARTICULAR REFERENCE TO

EDUCATIONAL ADMINISTRATION".

HELEN CHRISTINE LANGLEY.

MASTER OF EDUCATION.

JANUARY, 1977.

TITLE:

NAME:

DEGREE:

DATE OF SUBMISSION:

"RIGHTS, DUTIES AND OBLIGATIONS IN

EDUCATION, WITH PARTICULAR REFERENCE TD

EDUCATIONAL ADMINISTRATION".

HELEN CHRISTINE LANGLEY.

MASTER OF EDUCATION.

JANUARY, 1977.

1 •

PREFACE.

The provision of public systems of education in Australia is

the direct result of legislative enactment, and reflects a widespread

belief that a right to education and a positive duty to expend

resources in its support are interdependent. Moreover, the

statutes define,in part, the legal rights and legal duties of those

involved in educational institutions, including the administrator

who has the responsibility for the management, co-ordination and

planning of the services.

However, educational institutions are a means to an end, not

ends in themselves. Therefore,the following work seeks to determine

what is meant by I right I and ' duty ' and, why the terms have

application to the intellectual, social and moral training of

individuals, especially children.

CHAPTER 1

RIGHTS AND DUTIES: MORAL AND LEGAL CONCEPTS

To make a study of semantics is to acknowledge that in a living

language the meaning of a word is not fixed in any absolute sense,

although it is possible to give an objective explanation of its

current usage amongst the speakers of the language. It is for this

2.

reason that entries in a dictionary describe usage at the date of the

book's publication, rather than define in a prescriptive way the

function a word performs. Thus, to ask what is meant by the terms

'right' and 'duty' is essentially to seek their current, accepted

usage.

When a person affirms that he has a right he is communicating, via

a simple statement, a complex situation. Citation of a right usually

acts as a justification for having behaved in accordance with, or in

exercise of, whatever has been claimed as a right. Moreover, in such

a situation that person is stating implicitly that there is no

obligation for him to weigh what in another situation could be

relevant considerations. In effect, an affirmation of right does not

invite argument or opposition from another person. However,

sometimes an assertion of right does not produce the desired result -

sometimes the expectations of the claimant are not realized. For

example, if one claims that a child of fourteen has a right to

secondary education then one is saying that every child of fourteen

is entitled, at least prima facie, to possess, receive or enjoy the

treatment such a right is held to imply. But, it could be that in a

given group of fourteen year old children there is one child with a

chronological age of fourteen and a mental age of seven. Does this

mean that the right to a secondary education is his; that it is

beyond the power of anyone else to withhold, modify or deny? In this

case most people would concede that the child's mental age indicates

that the claim for secondary education is not a right, because at

this moment in time the child is not capable of fulfilling the

expectations that such a right implies. It is not to deny that the

child has a right to education but it does recognize that a right to

education necessitates a provision for the child's mental age.

Rights are not always received as expectations. Often they are

regarded as being just, or valid, claims. This approach is clearly

illustrated with regard to things possessed by people. A blind man

has a watch. Since the watch is the man's property he can claim,

quite logically, that he has a right to it. However, if another person

robs him of the watch, then the right to possess the watch does not

pass to the thief even if no other person witnessed the robbery. The

right to the watch remains with the blind man although he may have no

expectation of regaining his watch, or of receiving compensation for

the loss of his possession. It is because it is possible to establish

beyond doubt the circumstances under which a person gained property and

hence to decide the validity of his claim to enjoy that property that

'right' has the connotation of exclusiveness about it. A person can

give away what he holds by right, but another person does not have the

authority to take it.

The concept of a right being a just or valid claim or entitlement

is the meaning generally associated with its use in the area of law.

Here judgements, that are binding on the parties in dispute, may be

made to determine who is entitled to receive or own the item in

question. Thus, in the legal sense, a right can be seen as a

4.

legally enforceable claim. This is why the blind man, whose watch was

stolen from him, retains a right to the watch. It is also why the

fourteen year old child whose mental age disqualified him from

receiving a secondary education retains a right to an education suited

to his capabilities.

Central to any discussion of the process of ascribing rights and

liabilities to people is the concept of obligation. In the example

given earlier, the blind man may have handed over his watch under

duress. However, he did not have an obligation to part with the watch.

The concept of obligation implies the existence of rules, whether

moral, social or legal, which determine behaviour in certain situations.

Just as one may deduce the existence of rights from rules governing

conduct, so too one may determine one 1 s obligations in safeguarding

one's own rights and the rights of others. However, to say that a

person had a specific obligation is quite different from saying that

he acted in a particular way. 1

Because duties impose demands on the individual to regulate his

behaviour, often 1 duty' and 1 obligation 1 are used as synonyms.

Although the interchangeability of the terms may be argued it is

illustrated clearly by the following situation they they are closely

associated. If it is accepted that a child has a right to education

and that, because of his dependency, it is the duty of his parents or

guardians to realize this right, his parents or guardians have an

obligation to ensure that the demands inherent in such a right are met.

So

However, they may send their child to school, not because they believe

the child has a right to education, but because they are obligated to

do so by the law of the land and they prefer to obey the law than to

incur legal sanctions against themselves. Nevertheless, even if such

p2rents believed that they would not be found out and had nothing to

fear from disobedience if they kept their child from school, the

statement that they had an obligation to realize the right of their

child to education remains true. In a legal sense one may speak of

the parents' failure to fulfil their legal duty towards the child,

but one can say also that they have failed to discharge their

obligations. As with a right, an obligation or a duty is both a moral

and a legal concept. Each can be ignored or violated, but neither of

these actions removes its presence.

It would appear then that there is a relationship between rights

and duties, for to say that a person has a legitimate claim, or a

right, means at the most that someone else will have to act to fulfil

the demands such a right creates or, at the least, that no other person

will interfere with the individual's possession of the righte As

Benn and Peters2 point out, this relationship is a logical one:

1 right 1 and 'duty' here are different names for the same normative

relation and their use is determined by the point of view from which

it is regarded. However, "there is a difference in emphasis and import

between the breach or neglect of a duty and the invasion or interference

with a right. For, to focus upon duties and their breaches is to

concentrate necessarily upon the person who has the duty; it is to

invoke criteria by which to m2ke moral assessments of his conduct.

Rights on the other hand, call attention to the injury inflicted; to

6.

the fact that the possessor of the right was adversely affected by

the action." 3

The relationship between rights and duties is not always as basic as

the scheme outlined above. Sometimes the enjoyment of rights is

conditional on fulfilling duties that have no immediate relationship

with the rights in question. For example, in On Liberty, John Stuart

Mill is emphatic that a person cannot expect his right to freedom to

be guaranteed by social institutions unless he recognizes and respects

the corresponding right to freedom of others and ensures his behaviour

meets his obligation not to infringe on the freedom of others.

Sometimes duties are spoken of in the absence of rights. If one

asserts that a person has a duty to do something, one presupposes that

the person is capable of knowing the rule and of acting in accordance

with it. By contrast, when one attributes a right, one makes no such

assumption. That this is so can be seen when one considers the legal

status of a child under the age of eight and living in New South Wales.

Rights are attributed to such a child but there is no imposition of

duties. This is because the immaturity, both physical and mental, of

a child of that age means he is not yet able to assume responsibility

for his own actions. Thus, a child under the age of eight cannot be

held responsible for a legal offence because as yet he does not possess

sufficient understanding to know and to perform duties pertaining to

himself and to others.

7.

Perhaps what emerges from the preceding glance at the ways in which

the terms 'rights', 'duties' and 'obligations' are used is that they are

associated with an expression of the relationship existing between

persons and things and/or persons and persons. And yet, if that is

the denotative function they perform there remains a need to explain

the connotative element associated with their useo When one abstracts

the terms from their specific contexts one finds that they frequently

are employed as concepts expressing human needs, values and aspirations.

What is claimed as a right, or regarded as a duty, or perceived as an

obligation is often something that may affect people's physical being

as well as their moral being. For this reason a brief consideration

needs to be made of the ways the terms have been used in moral theory,

or at least in a selection of post-Renaissance works.

In recent times one of the fullest statements of rights is the

Universal Declaration of Human Rights4 • The document is at once a

statement of what constitutes the needs of all people for a full and

positive existence (an existence that acknowledges the inherent worth

and dignity of the human person) and an affirmation of the approximate

equality of human beings. The rights it claims are seen as being

inalienable (i.e. belonging to all people by virtue of their humanity)

and being able to be claimed equally by all against any and every other

human being. Moreover the provisions contained in the various Articles

are based on the idea that an individual is master of himself and his

own actions. He therefore can justly claim those things necessary

for his own fulfilment. The rights that are listed range from the

classic ones of life, liberty and property to the more recently

enunciated ones such as the right to education, the right to leisure,

B.

the right to take part in national government, the right to work and

and the right to social security. However, whilst this particular

statement typifies twentieth century thought many of the underlying

assumptions as to the nature of man have their origin before this.

Therefore, it is profitable to review some of the earlier considerations

as to the nature of rights and duties.

It was John Locke who presented the view that a man, merely because

he was a man, was entitled to certain treatment. Locke believed that

Man, rational by nature and free because he is rational, is able to

discover for himself the fundamental principles and laws by which his

conduct ought to be governed. If he is able to discover what is

necessary for him, then he is able to deduce what is necessary for

others. For Locke, society is the result of rational men freely

entering an original contract in order to protect their individual

rights through co-operative collective action. These rights - the

rights of life, property and liberty - are basic to the survival of

an individual. They exist because a human being exists and has

5 approximately the same attributes as all other members of his species.

Thus, if every person, because he is a human being, has the moral right

to life, the right to live freely and the right to live of himself,

so he has the moral duty not to encroach on the self-same rights of

6 others. It can be seen that for Locke, a right is an entitlement,

the realization of which is necessary for a person's survival. A

duty is the corollary, and the continued existence of the human

species depends on both rights and duties being recognized and

enforced by the social group to which the individual belongse

9.

Although Locke saw civil government as the agency ensuring that

the fundamental rights were inviolate, it is the Declaration of the

Rights of Man and of Citizens, passed by the French National Assembly

in 1789, that firmly establishes the concept of civil rights in a

statement that is concerned both with individual and national liberty7 •

The preamble to the seventeen articles affirms that the rights set out

are "natural, imprescriptible and inalienable." The document first

presents what it considers to be universal precepts pertinent to the

well-being of Man and then it elaborates the various principles to be

followed both to realize and to guarantee the continued presence of

these rights. Here the state is guaranteeing to every citizen the

classic natural rights by incorporating them in its constitution or

code of legislation, and since civil rights can be violated, it provides

the means for redress in such an eventuality. As H.R. Brownlie says,

"It is a fairly complete code of principles of constitutional

government, and the rule of law, and is the first of its kind." 8

An anecdote presented by Thomas Paine in his review of the 1789

Declaration illustrates the contemporary attitude to rights and duties.

"When the Declaration of Rights was before the National Assembly some

of its members remarked, that if a Declaration of Rights was published,

it should be accompanied by a Declaration of Duties•••• A Declaration

of Rights is, by reciprocity, a Declaration of Duties also. Whatever

is my right as a man, is also the right of another, and it becomes my

9 duty to guarantee, as well as possess."

10.

The feature common to the Natural Law theory of Locke, the 1789

French Declaration and the 1948 United Nations Declaration is that

each conceives a right as a basic entitlement or expectation that is

universally valid. The treatments claimed as rights are important to

the survival of the individual and verification is possible through the

process of reasoning. What is claimed as a right, or imposed as a duty,

represents a rational principle of conduct and judgement that

recognizes the inherent dignity and worth of Man as well as his prime

needs. However, the view that rights and duties have their origin in

some objective, universal theory that has universal application is not

without its critics.

David Hume rejected both the concept of natural law and that of

government springing from an original contract entered by rational

10 men. He believed that most people behaved in a predictable way

because they had acquired the habit - their actions were determined by

the authority of whatever was the prevailing settled opinion and

custom. 11 ("Antiquity always begets the opinion of right") 12

Therefore to speak of rights as something Man is born with is absurd.

A person's conception of his rights is a result of his upbringing

and of the idea of justice found in the community to which the person

belongs. The argument that Hume uses to reach this explanation begins

by recognizing that survival is Man 1 s goal and that there is a

limitation of the number of goods in the world that are to be

distributed among all men. These two factors mean that there must

be some type of regulation so that an equitable distribution of

resources can take place. Hence, there have emerged the ideas of

justice and injustice, which in turn spawn the concepts of property,

11 •

right and obligation. A man's property is a constant possession

established by the laws of society - the relation is not natural, but

moral, and founded on justice. "As our first and most natural

sentiment of morals is founded on the nature of our passions and

gives the preference to ourselves and friends above strangers, it is

impossible there can be naturally any such thing as a fixed right or

property, while the opposite passions of men impel them in contrary

directions and are not restrained by any convention or agreement.» 13

Justice, therefore, is based on convention and is intended as a

"remedy to some inconveniences which proceed from the concurrence of

certain qualities of the human mind with the situation of external

objects. The qualities of the mind are selfishness and limited

generosity; and the situation of external objects is their easy

change, joined to their scarcity in comparison of the wants and

desires of men." 14

For Hume, a right is a power or claim that is both sanctioned by

custom and able to be verified by impartial consideration. In many

ways his view has more in common with legal theory than with theories

of morality.

Hume's approach to duties is also different from that of the

exponents of Natural Law. Virtue, for most people, means acting in

accordance with what they have learnt to be appropriate, and so there

are two kinds of moral duties. The first are those impelling men to

action because of instinct or in an automatic response to a situation.

Such action arises independently of all ideas of obligation, or of

public or private utility even though acting because of humane

instincts may earn esteem from others after the action has been

12.

completed. Moral duties of this type include love of children and

pity for the unfortunate. The second type of moral duties are

performed from a sense of obligation. Such duties are those of

justice and fidelity. The individual restrains his inclinations or

instincts because of his knowledge of the effects of unrestraint on

human society. However, it is not reason but moral sense, or the

disinterested passions, that produce moral distinctions. 15

Hume shows himself as being sceptical of rights being inalienable

to Man. Nor does he view duties as being correlative with rights. He

admits that Man is selfish but emphasizes that he is capable of

performing virtuous actions if he is made aware of the interests and

necessities of his society. A right therefore appears as a valid claim

supported by custom and personal and/or social need. Duty recognizes

the necessity of maintaining the status qua and of responding to

individual morality.

A fuller treatment of the relationship between the individual and

the social group is given in the works of John Stuart Mill. He

conceived utility, "grounded on the permanent interests of man as a

progressive being," 16 as the ultimate appeal on all ethical questions.

For him, the principle of utility demands that every person should be

free to develop his powers according to his own will and judgement and

the only restriction placed on the freedom of the individual is that

his behaviour must not adversely affect the rights of others. 17

13e

In delineating the nature and limits of power which legitimately

can be exercised by society over the individual, Mill presents the

rights that the individual can expect to be his - rights such as

freedom of thought, freedom of expression, freedom of choice, freedom

to self-realization. These are rights because they permit the person

to achieve his fullest potential and they promote his individual

happiness. However, the enjoyment of these rights is limited by the

obligation to respect the liberty of others to act similarly and to

restrain oneself if one's own conduct will adversely effect the

well-being of the group. The emphasis Mill places on self development

necessitates a recognition of the inherent worth of the individual and

affirms the same broad rights and duties associated with moral

theories grounded on the concept of natural rights. However, like

Hume, Mill refuses to reduce the moral basis of the rights to some

primordial contract. Rather morality is associated with impartially

viewing people as sources of claims and interests and with meeting

these claims or interests in a manner which promotes the well-being

of both the individual and the group.

There are obvious idealogical differences present in the works that

have been treated on the preceding pages. Yet, the writings are not

without their similarities. Each is concerned with the quality of

life experienced by the individual. Each recognizes the vulnerability

of Man and the fact that he is a social animal. Each acknowledges,

in varying degrees, the rational capacity of Man and his ability to

achieve for himself a balance between his own needs and those of others.

These are ideas central to the works and are ideas that have

application beyond the time at which each work was written. Because

14.

of this the reader senses that the terms 'right' and 'duty' have

not been used lightly. What is classified as a right is something

that has been perceived as being vital for the existence of the

human person, for his individuaJ. development and for his continuing

security within his social niche. Thus to speck of rights is to

speak of human needs that are characteristic of all people when one

contemplates the human being independently of any role or social

status. What is classified as a duty is some behaviour that the

individual must perform if harmony is to be maintained between himself

and others. The concept of duty rests on the understanding that

because of Man's rational capacity he is able to achieve self

responsibility and self regulation. The duties a person has to

himself and to others reflect an awareness that any action of the

individual can have an effect beyond the situation in which it

occurred. The list of rights and duties may have lengthened in the

course of the three centuries to accommodate the changes implicit in

the transition from an agrarian, paternalistic society to an

industrial, pluralistic and bureaucratic one. However, the way

'right' and 'duty' have been used has not altered greatly. Whatever

is claimed in their names is felt to be necessary for the physical,

h . d" "d 1 18 intellectual and social well-being oft e in ivi ua.

It was seen earlier how an affirmation of right or an assertion of

duty does not guarantee that a person will enjoy the benefits or

fulfil the obligations such statements imply. The development of

legal systems is due in part to an attempt to make this guarantee

real. Within the legal framework, rights are identified, duties

are defined, a machinery for implementation is provided and an avenue

15.

for redress when a breach of rights or obligations occurs is

provided. The law becomes a reflection of the social opinion of

the community, or rather of the majority of people forming the

·t 19 communi y. It is therefore necessary to consider the essential

features of those elements forming the law as a code that has the

authority to resolve a clash of interests and the power to enforce

its decisions.

20 Professor Hart perceives the Law as being a union of two types of

rules: primary and secondary. Primary rules are those requiring

individuals to carry out or abstain from certain actions whether

21 they wish to or not. These rules grant rights (e.g. the right to

life is guaranteed in part by the criminal laws forbidding murder)

and impose duties. Generally, the primary rules expressing obligations

are supported by serious social pressure because they are believed to

be necessary to the maintenance of social life or some highly prized

feature of it. They may require conduct that, wr.ilst bringing benefit

to others, conflicts with what the person who owes the duty wishes to

do. It is for this reason that obligations and duties are sometimes

thought of as involving sacrifice or renunciation.

Secondary rules, in a sense, are supplementary to primary rules for

they specify how, and by whom, such primary rules may be formed,

modified, implemented or extinguished. Thus, secondary rules confer

powers and may vary existing duties and obligations.

There are twc sources of a rule's authority. If a group accepts the

attitudes contained in a given rule as a standard mode of behaviour,

then the rule becomes binding in the sense that it imposes obligations

1 6.

to act in accordance with those attitudes. This source of authority

can be found in primitive societies where primary rules are operative

as well as in much of our customary behaviour in matters such as

dress or etiquette. The second source of a rule's authority lies in

its conformity to some secondary rule which Hart distinguishes as a

'rule of recognition'. It is this type of secondary rule which lies

at the basis of the legal system because it introduces the concept of

legal validity. Rules of recognition can be simplistic, e.g. Louis

XIV's distum "L'etat c 1 est moi", or sophisticated statements, e.g.,

The Australian Federal Constitution. Two other important types of

secondary rules are those of 1 change 1 and of 1 adjudication 1 • Rules

of change empower an individual, or bodies of people, to introduce,

modify or eliminate primary rules. They form the basis of legislative

enactment and repeal, and are closely connected to rules of recognition.

Rules of adjudication empower individuals to determine whether, on a

particular occasion, a primary rules has been broken. They are

central to the judicial process for they identify who is to act as a

judge and they determine what procedure is to be followed.

The framework established by Hart's primary and secondary rules

explains the transition from moral precepts to effective realization.

The legal provisions, or secondary rules, of any society reflect an

awareness that there are certain types of conduct that must be

followed if that society is to remain viable. The rules are grounded

on truisms concerning human nature and the world in which men live.

The recognition of human vulnerability is found in secondary rules

emphasizing forbearances (usually these are the legal rules formulated

in a negative form as prohibitions); the acknowledgement of

1 7.

approximate equality is seen in the various social welfare provisions

where individuals have to compromise their own interests in terms

of the benefit of another section of the society (these are presented

as entitlements to); and the fact that the natural resources

available to mankind are limited is shown in the rules demanding a

respect for property. The obligations that the rules impose are not

variable by individuals. In fact the obligations spring from the

classic rights already looked at in the works of Locke or Hume or in

the delineation of rights found in the United Nations Declaration.

The secondary rules represent social awareness and preparedness to

realize moral rights. 22

It is apparent that the legal system of a given society seeks to

moderate social interaction in such a way as to promote social

stability by making certain kinds of behaviour no longer optional.

Some of the rules apply to all people regardless of their views, e.g.,

the rules demanding an abstention from violence; other rules apply

to specific groups of people, e.g., those enforcing compulsory

school attendance for all New South Wales children between the ages

of six and fifteen years; and there are rules of procedure to

facilitate giving effect to one's wishes, e.g., laws for contracts

and wills. Moreover, central to the legal system are the connected

concepts of legal right and legal obligation.

A legal right is a valid claim or entitlement which is guaranteed

by the legal system. Since it is possible for a person to lay a claim

to something and not be entitled to receive it, the notion of

validity is important in deciding whether that person does possess a

legal right to the thing in question. Validity is determined by an

18.

impartial consideration of a person's entitlement to receive, possess

or retain something in view of the salient provisions existing

within the legal system. Where the claim is substantiated by this

process then the person possesses as a legal right whatever has been

demanded. Moreover, the recognition of a legal right in turn calls

into being the concept of legal obligation, for people now have a

legal duty to respect that right. In fact rights and duties receive

their most explicit statement in the provisions of the legal system,

because where the existence of a legal right or a legal duty is

ignored by another person then legal sanctions can be imposed on the

transgressor. This is illustrated by the provisions of both the

C .. l L 23 d h L T 24 rimina aw an t e aw of arts.

A clear statement of the nature of the concepts of legal obligation

and legal right has been made by Ronald Dworkin. He said:

"To say someone has a legal obligation is to say that his care

falls under a valid legal rule that requires him to do or forbear

from doing something. (To say he has a legal right, or has a

legal power of some sort, or a legal privilege or immunity, is

to assert •••• that others have actual or hypothetical legal

obligations to act or not to act in certain ways touching him.)

In the absence of such legal rule there is no legal obligation."25

However, to recognize that a law is an obligatory rule of conduct

and that within the coercive framework of the law rights and duties

are defined as well as guaranteed or enforced is to concentrate on

the effect of a societyVs legal system. It does not describe how, in

fact, that system functions as a process.

In a modern State, usually, the primary source of legal authority

19.

is its written constitution. "In it lies the explanation of the

Legislature's power to make laws, the Executive's power to govern and

administer, the Judiciary 1 s power to adjudicate. 1126 Not only does a

constitution designate the chief organs of government but, by

affirming the principles such organs are to reflect, it acts also

as a higher form of Law. (If a law is found to be inconsistent with

the provisions of the constitution then that law is held to be

invalid.)

Increasingly the source of legal rights and duties, which are

applicable in clearly defined ways to the citizens of a State, is the

legislature. 27 Its statutes, or Acts of Parliament, become legally

binding on the date it chooses and are deemed to be perpetual unless

and until they are repealed by later legislation. However, the

legislature is itself bound by rules of procedure in all stages of

legal enactment and hence it is not an omnipotent body.

Once an Act has been passed by the legislature then effect must

be given to the whole Act and not merely a section of it. Moreover, its

provisions cannot be construed to mean something other than what is

stated, although one needs to remember that "Words used in an Act of

Parliament (if they are not defined in the Act) are to be read as

having the same meaning which they had in ordinary speech (or, if

they are technical words, then as having their technical meaning) at

28 the time when the Act was passed." Where the meaning of a statute

is obscure then its meaning may be determined by the judiciary's

having recourse to the mischief rule. This involves a consideration

of "how the law stood when the statute to be construed was passed,

what the mischief was for which the old law did not provide, and the

20.

remedy provided by the statute to cure that mischief." 29 These

secondary rules that are concerned with the implementation and

interpretation of statutory law are important when it is remembered

that every enactment involves, to some degree, a modification of

existing rights whether they are customary ones or legal ones. It

is for this reason that any Act of Parliament is interpreted so as to

respect those rights which the law has already vested in the citizens

of a State. The only exceptions to this rule is where a statute says

explicitly that a right vested at the date the Act comes into force

is to be modified or cancelled.

It is the executive organ of the legal system that is responsible

for the implementation of Acts of Parliament. These public bodies,

e.g., the New South Wales Department of Education, possess delegated

authority to form rules and regulations but they are responsible to

the legislature which has the power to abrogate or alter such bodies'

powers and/or composition by an Act of Parliament. In addition the

public administrator can be held legally responsible for his behaviour

where he has infringed on a legal right of a private citizen, or where

he has failed in his legal duty to the legislature. In such a situation

the official can be brought before a court or before an administrative

tribunal.

The third significant organ of the legal system is the judiciarye

As mentioned earlier, the courts have the power to inquire into the

compatibility of legislative and administrative action with the

constitution. They can also be a source of law "by laying down rules

in decided cases which form binding precedents - binding till they

are overruled (by statute or in a later case), or distinguished, or

21 •

otherwise explained away." 30 Most importantly it is the courts which

have the function of administering justice: the upholding of rights,

and the punishment of wrongs, by law. Perhaps one of the clearest

means of determining the extent to which a community is prepared to

translate its morality into concrete guarantees is to turn to its

legal code and its judicial decisions. The explanation for this lies

in the legal maxims "ubi remedium ubi jus", (where there is a remedy,

there is a right), and "ubi jus ubi remedium," (where there is a

right, there is a remedy). 31

Although law and morality share a common vocabulary in the ascription

of rights and duties, the disciplines are overlapping ones rather than

identical fields. Both indicate that rights define and protect those

things which all men are entitled to have; that duties impose

obligations by making certain behaviours or attitudes mandatory so

that the well-being of others is not affected adversely. Clearly

morality and law are very similar in their attitude towards rules of

obligation and duty. These are held to be binding on the individual,

regardless of his consent and both are supported by serious social

pressure for conformity. The individual is expected to comply with

legal and moral obligations as a minimum contribution to social life

because, although both may include much that pertains to the real or

fancied needs of a particular society, both make demands which must

be satisfied if any group of people are to be able to live together.

The rights claimed or the duties prescribed are rules governing the

behaviour of people in situations that recur throughout life rather

than situations that are unique or occur very rarely.

22.

If one notes the similarities between law and morality one must

also indicate the differences. The most important divergence between

the related areas is that legal rules can be introduced, modified or

repealed by deliberate enactment, but moral rules cannot be brought

into being, changed or eliminated in this way. Thus, whilst it is

logical to say that as from January 1st it will be illegal to do

A, it is absurd to say that as from January 1st it will be immoral to

do A.

There is another important difference. When one asserts that a

person has a moral right, or a moral duty, one is making the strongest

claim possible, but it involves too, the recognition that if the claim

is not met then it may not be possible to force another to behave in

the desired way. Where a breach of a legal duty occurs, demonstration

that the person was not aware of, or was unable to keep, the law he

has broken generally does not exclude him from responsibility and from

subsequent censure. However, in morality 1 1 could not help it', or

1 1 did not know', is accepted as an excuse because the moral 1 ought 1

here did not imply the moral 1 can 1 : the person did not have the

necessary control over his conduct so that a morally responsible

decision could have been made. This is not to deny that where a

breach of a moral rule has occurred pressure will not be put on the

person, but it is to recognize that the form of pressure differs in

the two areas. Where a valid legal rule has been broken and the

person has been found guilty of the offence then the legally accepted

sanctions are applied against the person. Where a moral rule has been

broken then pressure is applied by appealing for respect for the

rules which are presumed to be shared by all members of the group

23.

and, as such, are things important in themselves. In morality the

appeal is made to the conscience of the person involved, especially

to the qualities of remorse and guilt.

There is a difference also in the scope of the two disciplines.

Whatever is claimed as a moral right, or attributed as a moral duty,

has the connotation of universality - it cuts across national and

cultural divisions and is applicable to all of mankind. By contrast,

a legal right or a legal duty has limited application - it is binding

only on those people who are governed by that particular legal system

and has no relevance to those people living under some other legal code.

In view of these factors, the examination of rights and duties in

education will follow a dual approach. Attention will be given to

both moral and legal considerations. However, before turning to

that task, an assessment needs to be made of the status and rights of

those for whom instruction principally is designed. This is because

any obligations imposed by the moral and legal rights possessed by the

child per se must be respected and will play a significant role not

only in determining the type of tuition offered, or the conditions

under which it is presented, but also in revealing on what basis

education ought to be given.

24.

Notes and References

1. Hart, H.L.A., The Concept of Law, p.81.

2. Benn, S.I., and Peters, R.S., Social Principles and the Democratic State, p.89.

3. Wasserstrom, R., Rights. Human Rights and Racial Discrimination, in Melden, A.I., (ed), "Human Rights," p.99.

4. Text of the 1948 Universal Declaration of Human Rights attached as an addendum.

5. Locke, J., Two Treatises of Government, (2.2.4), p.309.

"To understand Political Power right, and derive it from its Original, we must consider what State all Men are naturally in, and that is, a State of perfect Freedom to order their actions, and dispose of their Possessions and Persons as they think fit, within the bounds of the Law of Nature, without asking leave, or depending upon the Will of any other Man.

The State also of Equality, wherein all the Power and Jurisdiction is reciprocal, no one having more than another: there being nothing more evident, than that Creatures of the same species and rank promiscuously born to all the same advantages of Nature, and the use of the same faculties should also be equal one amongst another without Subordination or Subjection."

6. Ibid, (2.2.6), p.311.

"The State of Nature has a Law of Nature to govern it, which obliges everyone: And Reason, which is that Law, teaches all Mankind, who will but consult it, that being all equal and independent, no-one ought to harm another in his Life, Health, Liberty or Possession."

7. Text of 1789 Declaration is attached as an addendum.

8. Brownlie, I., Basic Documents on Human Rights, p.8.

(Whilst the document obviously reflects the ideals of the French Revolution, the values it sets out are applicable today. The document was affirmed in the preambles to the French Constitutions of 1946 and 1958.)

9. Paine, T., The Rights of Man, p.166.

10. Hume, D., Of the Original Contract, in Hendel, Ch2rles W. (ed), "David Hume's Political Essays", p.50. "Reason, history and experience indicate that all political societies have had an origin much less accurate and regular than the common consent theory."

11. Ibid, p.46.

12.

13.

Hume, D.,

Hume, D.,

25.

Of the First Principles of Government, i·n Hendel p 24 - ' . . Of the Origin of Justice and Property, · H d 1 34 _ _ _ in en e, p ••

14. Ibid, p.37.

15. Hume, D., Of the Original Contract, in Hendel, p.54-55.

16. Mill, J.S., On Liberty, p.6.

17. Ibid, p.44. "•••• everyone who receives the protection of society owes a return for the benefit, and the fact of living in society renders it indespensable that each should be bound to observe a certain line of conduct towards the rest. This conduct consists, first, in not injuring the interests of another; or rather certain interests which either by express legal provision or by tacit understanding, ought to be considered as rights; and secondly in each person's bearing his share (to be fixed on some equitable principle) of the labours and sacrifices incurred for defending the society or its members from injury or molestation."

18. The implications of this usage with regard to education will be examined at length in Chapter 3.

19. Waldock, Sir Humphrey, The Legal Protection of Human Rights -National and International, in Vallat, Sir Francis, (ed) 'Human Rights', p.83.

"•••• it is in a complex network of provisions of the criminal and civil law that what we conceive of as 'human rights and fundamental freedoms' find their basic guarantees in relation to other members of the community. Moreover, since one man's right or freedom used to excess may mean the destruction or impairment of that of others, these provisions seek to find the just balance between man and man and to draw the line between an individual's use and abuse of his rights and freedoms •••• Indeed, the very concept of the reasonable man •••• is an expression of that aspect of the legal protection of the rights and freedoms of the individual."

20. Hart, H.L.A., The Concept of Law, p.77-96.

21. There is a difference between being obliged to perform an action and being obligated to do so. 'Obliged' is psychologically based, for it refers to the beliefs and motives prompting an action. 'Obligation' is morally based, for it remains true irrespective of whether the action is carried out.

22. In addition to the static type of rules outlined above, there is another source of legal obligation. This is the making of a promise. If an individual pledges to act in a certain way towards another, whether the action is directed at realizing the right of another or fulfilling the duty of the individual, then the promise has the force of a legal obligation. The law of contracts is an example of such a secondary rule.

26.

23. Crimes are divided into treasons, felonies (murder, manslaughter, burglary, housebreaking, larceny, bigamy and rape) and misdemeanours (e.g., perjury, battery, libel, public nuisances) in that order of seriousness. (Osborn, P., A Concise Law Dictionary, p.97, p.135, p.210)

24. The Law of Torts is concerned with providing compensation to a person for the harm he has suffered as a result of the conduct of others. This area of Law is treated more fully in Chapter 4.

25. Dworkin, R.M., Is Law a System of Rules? in Summers, Robert S., "Essays in Legal Philosophy", p.29.

26. de Smith, S.A., Constitutional and Administrative Law, p.68.

27. Osborn, P.G., op.cit. p.300.

"Statutes are of the following kinds: (1) declaratory, when they do not profess to make any alteration to the existing law, but merely to declare or explain what it is; (2) remedial, when they alter the common law; (3) amending, when they alter the statute law; (4) consolidating, when they consolidate several previous statutes relating to the same subject-matter; (5) disabling or restraining, when they restrain the alienation of property; (6) enabling, when they remove a restriction or disability; (7) penal, when they impose a penalty or forfeiture."

28. Gifford, K.H., How to Understand an Act of Parliament, p.56.

29. re Mayfair Property Co., (1898) cited by Gifford, p.76.

300 de Smith, S.A., op.cit., p.333.

31. Osborn, P.G., op.cit., p.322.

27.

CHAPTER 2

CHILDREN AND RIGHTS

The child begins in a state of helplessness where he is dependent

entirely on others for the satisfaction of his needs but, provided those

early demands are met, he develops the capacity to maintain himself.

This is a statement of the obvious, and yet it is important to remember

that childhood is a process, not a static quantum. Nor are the

obligations that others have to the child unchanging. These alter

according to the needs of the child as he makes the transition from

complete dependency to the assumption of adult responsibility. The

moot issue is his status before he attains autonomy.

In an historical sense the answer was once relatively simple~ Under

Common Law the child remained, until the age of fourteen, the property

of the father. Not surprisingly, any wage earnt by the child was paid

to the father, who was entitled to compensation for loss of services

if the child was injured. Then, last century various legislation

was passed in response to the realization that the vulnerability of

the child in his dependency necessitated special legal provision.

In particular legislators sought to protect the child from exploitation

and gross physical abuse. 1 The period saw also the idea of compulsory

schooling making its appearance in statutory law. Probably it is

fair to say that the nineteenth century drew attention to the needs

of the child as a potential adulte More recently emphasis has been

placed on the rights he has in his position as a child and on the duties

others have towards him whilst he occupies that position. However, it

would be wrong to imply that the concept of children's rights is of

twentieth century origin.

28.

At a time when children were commonly regarded as chattels of the

father, John Locke affirmed that the child has a moral right to life

and property, and that parents, as the creators of life, have a moral

duty to support the being they have created. When one recalls Locke 1 s

belief that all men, by virtue of their humanity, possess the moral

right to life, liberty and property, then the denial of the child's

right to liberty appears to be in contradiction to the tenet of

Natural Law. Locke, himself, seems to have recognized the ambiguity

of his denying the right to liberty to the child because he takes

pains to link the dependency of the child with the absence of liberty. 2

The child is to be restrained so that he can be protected from harm,

and so a situation can be created whereby the child can mature

intellectually. Locke does not specify the age when the restrictions

on the child's freedom are lifted, but there is more than a suggestion

that liberty is attained only with the conferral of adult status.

Until that time parents have extensive powers over their children,

powers that arise from the moral duty "which is incumbent on them,

to take care of their offspring during the imperfect state of childhood.

To inform the Mind, and govern the Actions of their yet ignorant

Nonage, till Reason shall take its place, and ease them of that

trouble is what the children want, and the Parents are bound to.

For God having given Man an Understanding to direct his actions has

allowed him a freedom of Will, and Liberty of Acting, as properly

belonging thereunto, within the bounds of that Law he is under. But

whilst he is in an Estate, wherein he has not Understanding of his

own to direct his Will, he is not to have any Will of his own to

follow: He that understands for him, must will for him too; he must

prescribe to his Will, and regulate his Actions; but when he comes to

29.

the Estate that made his Father a Freeman, the Son is a Freeman too." 3

To the modern reader the parental control described by Locke is at

best a benign despotism. Admittedly there is mention of age and reason

loosening the parental restrictions on the child's liberty to decide

for himself, but there is no indication that the child gradually

assumes this right. Nor is there an attempt to examine explicitly the

changing needs felt by the child in his development and the bearing

that this has on his status as a person. In view of the increasing

rational capacity usually associated with physical maturation, it

would seem that the parents' obligations regarding the child alter

according to the extent of self sufficiency attained by the child.

However, quite apart from these considerations there is the question of

whether a child can be denied, on moral grounds, the right to liberty.

If, as Locke says, the adult has as rights life, property and liberty

because they are his due as a human being, and if the existence of the

child means he too has the right to life and property, then the denial

of the inviolacy of the right to liberty is hard to justify when the

ground for that denial amounts to the child being a child and not an

adult. After all, at times others have to make decisions on behalf

of the child to ensure that the child's rights to property and to

life are respected. The same situation is applicable to the child's

right to liberty. On occasions his freedom may have to be curtailed

for his benefit, but that is not to deny that the child has a right

to liberty. Locke 1 s deferment is rather like setting up a type of

trust fund that the child should receive provided he survives a

prescribed period of time. However, cloaking a negation of right

by appealing to the concept of dependency does not morally justify

30.

that negation from the child's point of view, although it may provide

an expedient measure for parents and society to adopt when seeking

to justify their actions in discharging their moral obligation to

give nurture to the child. One can validly claim that statutory law

or custom removes for a specified time the child's right to freedom

but one cannot say that a right that is morally a child's can be denied.

This issue of personal liberty receives a detailed examination by

John Stuart Mill, in whose view "the only purpose for which power can

be rightfully exercised over any member of a civilized community,

against his will, is to prevent harm to others. His own good, either

physical or moral, is not sufficient warrant. He cannot rightfully be

compelled to do or forbear because it will be better for him to do

so, because it will make him happier, because, in the opinion of others,

to do so would be wise, or even right."4 Although from this statement

it would appear that everyone has the right to freedom provided the

duty not to harm others is observed, Mill goes on to make an important

qualification. The doctrine of absolute liberty is meant to apply

"only to human beings in the maturity of their faculties. We are not

speaking of children, or of young persons below the age which the law

may fix as that of manhood or womanhood. Those who are still in a state

to require being taken care of by others, must be protected against

· t t 1 . . " 5 their own actions as well as agains ex erna inJury.

Whilst Mill may seem to give with one hand and take with the other,

there is a difference between his approach to the child's right to

liberty and Locke's approach to the same right. Locke confers the

right on adults only; Mill limits the child's right to liberty only

so far as his performing actions which would do him harm if he were

31 •

permitted to carry them out. Thus, there is the implication that

where there is no danger then the child is free to exercise his right

to liberty if he so wishes. This interpretation would support Mill's

affirmation that everyone has the right to individuality since freedom

of choice and the right to adopt whatever mode of life one wishes are

part of Mill's concept of "well-being". 6 However, these attributes are

the product of learning the grounds for holding one's opinions and of

becoming aware of the implications of one's judgement. 7 They are

properties of the rational being (the end justifying the limitations

placed on the liberty of the child) but for an adult to possess these

properties he must have been able to experiment himself whilst a child.

Mill restricts the freedom of adults with respect to the welfare

of others. He restricts the liberty of children so that they will be

protected from harm both for their own good and for the benefit of society

when these children have reached maturity. As he says:

"The existing generation is master both of the training and the

entire circumstances of the generation to come; it cannot indeed make

them perfectly wise and good because it is itself so lamentably

deficient in goodness and wisdom •••• but it is perfectly well able

to make the rising generation as a whole, as good as, and a little

better than, itself. If society lets any considerable number of

its members grow up mere children, incapable of being acted on by

rational consideration of distant motives society has itself to blame

for the consequences." 8

Thus, the child is not free in the hedonistic sense because such

freedom may expose him to danger and is not conducive to the efficient

development of his intellectual and moral capacities. However, the

limitation of his freedom so that these capacities can be fostered

32.

does not give limitless powers to either parents or society. These

agencies have the right to restrict the child only as far as it is

necessary to provide for that child's physical and mental welfare.

In all other respects the child is free. 9

Both Locke and Mill affirm it is the achievement of rationality

which permits the impartial consideration of the needs of the

individual and of his society and, ultimately, the behaviour which

benefits both. The rights of the child are couched therefore in

terms of providing future social stability. Locke recognizes the

child's right to life and property but withholds the right to liberty

until the child is no longer dependent: Mill limits the child's

right to liberty where it is necessary to protect him from harm or to

satisfy long term utilitarian goals. However, since the rights of

the child are defined in terms of his being a future adult, attention

is not given to an examination of the rights he might possess simply

because he is a child. It is this last approach that is associated

with twentieth century thought.

When the Universal Declaration of Human Rights was passed by the

General Assembly of the United Nations in 1948, the document made it

l h b . 10 clear that the rights claimed were applicable to al uman sings.

Article 1 begins "All human beings are born free and equal in dignity

and rights" and it is followed by Articles defining the nature of

everyone's civil and political rights (Articles 2 to 21), and the

economic, social and cultural rights that all human beings possess

(Articles 22 to 28). These rights also belong to children by virtue of

their humanity. The child in his dependency may be unable to claim

the right himself, but the denial of the right by another person does

330

not mean that the child does not possess the right on moral grounds.

In fact, the child's entitlement is of the same nature as that of an

adult who is deprived of the realization of one of his moral rights because

of discrimination, supported by custom and/or law, based on the adult's

colour, sex, religion etc.

The Declaration does, however, give special mention to children

in two of the thirty articles. The second clause of Article 25

(dealing with the right to social welfare) reads:

"Mothers and childhood are entitled to special care and assistance.

All children, whether born in or out of wedlock shall enjoy the

same social protection."

This clause reflects an awareness that to say it is everyone's right

to enjoy certain freedoms or treatments will not always mean that all

people will receive them. At times it is necessary to provide

preferential treatment for those groups of people who are at a

disadvantage, when compared with others, to realize effectively the

rights that are theirs. Childhood is seen as creating such a group,

for special action is required on the part of others to ensure that

all children will receive what is theirs by right. In addition,

since in many cultures both law and custom have protected the rights

of the legitimate child but often have ignored, or inadequately met,

the rights of the illegitimate child, the Declaration seeks to remove

the discrimination so that all children can receive those advantages

which are claimed as rights by mankind and which are conducive to

human well-being.

The third clause of Article 26 (dealing with the right to education)

reads:

34e

"Parents have a prior right to choose the kind of education that

shall be given to their child."

At first glance this provision appears to limit the child's

entitlement to receive the general, comprehensive training associated

with the use of 'education' by the Declaration. However, the

exercise of parental right is restrained, because it must respect the

child's prior claim to receive an education that is directed to the

full development of the human personality.

When one considers the 1948 Declaration in terms of its significance

for children, two important recognitions are made. Children share

with the rest of humanity certain rights, the fulfilment of which is

necessary for the well-being of each and every person, and because of

their dependency children also have the right to special treatment of

a supportive and protective kind. In Declarations and Covenants

appearing since 1948, members of the United Nations have attributed to

the child rights other than the long recognized ones of life, property,

liberty and nurturee 11 Acknowledgement has been made of the child's

moral right to a healthy development, to the protection from

exploitation especially in the area of employment, to a name and a

nationality, and to be provided for in the event of the dissolution of

his parents' marriage. Moreover, in the event of a child being found

guilty of a criminal offence, account is to be taken of the child's

age and of the desirability of his rehabilitation. Probably the

fullest statement of the rights of the child is still to be found in

the Declaration of the Rights of the Child, adopted by the General

Assembly in 1959. The ten principles are an elaboration of the

provisions of the Universal Declaration of 1948 in terms of the

35.

special needs created by the dependency of the child, and the

principles both affirm the status or treatment that the child is

entitled to and the practices that he is to be protected from. The

ten principles form a code of well-being for every child without

. 12 exception.

In the Preamble to the Declaration of the Rights of the Child

recognition is made to the duty of mankind to the child. By reason

of the physical and mental immaturity of the child provision has to be

made for "special safeguards and care, including appropriate legal

protection, before as well as after birth" so that the child can have

not only a happy childhood but can also enjoy the principles outlined

for his own good and ultimately for the good of society. All children

are entitled to a name and nationality; to food, shelter, recreation

and medical attention; to a safe environment where there is "an

atmosphere of affection and of moral and material security" so that

they might develop harmoniously; they have the right to education;

and "shall in all circumstances be among the first to receive

protection and relief." In addition children have the right to be

shielded from all forms of "neglect, cruelty and exploitation" as

well as from discrimination of all types. Where the child's rights

are not realized because of a physical, mental or social handicap then

the rest of society has an obligation to make compensatory provision

so that the child's moral right to self-realization will be met.

Above all, the Declaration affirms that the best interests of the

child are the paramount consideration in meeting the demands created

by the existence of the child.

The ten principles of the 1959 Declaration present the entitlements

36.

the birth of a child brings into being. Each reflects the needs of

the child for his continued development and imposes obligations upon

others for effective realization. The document illustrates the

change from considering the child's moral worth and nature primarily

in terms of his being a potential adult to seeing him as a person

with his own full range of rights. However, stating that a child has

rights does not guarantee that he will receive what is his by right.

As is the case with adults and moral rights, the translation of these

ethics into concrete actions finds its most effective realization in

the form of legal assurances that are either made by legislation and/or

regulations shaped by bodies sanctioned by legislation, or by judicial

provision for redress in the case of violation of a legal right.

Therefore, a brief consideration will be made of the legal status of

the child in Australia so that the effectiveness of the claims made

by the moralist on behalf of the child can be ascertained.

At law, until a person reaches the age of majority he does not

possess the full legal capacity to enter legal relations with others,

nor is he liable for the outcome of his actions in the same way as a

person who is of age. In Australia, a person attains the legal

. . • 13 A status of an adult at eighteen when he becomes sui Juris. ny

person under that age has the legal status of a child. 14

Except for people living in territories governed by the Federal

legislature only, the legal status of an Australian is the result of

both Federal and State enactments. The powers of the Federal Parliament

with respect to legislative enactments are defined by Section 51 of

Th C . 15 e onstitution. The provisions that have special relevance to

h f ·1 16 the child are the three clauses dealing with matrimony and t e ami y

37.

and the two clauses dealing with naturali~ation, immigr 3 tion and

. t· 17 A emigra ion. 11 other matters not expressly covered by Section 51

are the responsibility of the States. There is no single statute,

either Federal or State, that defines the rights of an Australian

child. However, the legal position of the child living in one state,

say in New South Wales, is similiar to that of a child living in any

other State. Thus, because of the breadth of the area to be covered

in examining the legal status of the child, attention will be given

to Federal and New South Wales enactments.

What then are the rights that are legally the child's? Both

Federal and State provisions affirm his moral right to recognition as a

person. Parents have a legal obligation to register the birth of the

child. 18 Such registration must be done within sixty days in all

States but South Australia, where it must be done with forty-two

days of birth. Any person born in Australia is, with certain exceptions,

an Australian citizen. A person born outside Australia and whose

father is an Australian citizen, or an illegitimate child whose mother

is an Australian citizen or whose mother was ordinarily resident in

Australia, is also an Australian citizen provided his birth is

19 registered at an Australian Consulate. An alien can become a

naturalized Australian, and the children of aliens also become

Australian citizens if named in the certificate of citizenship issued

to such adults. The Migration Act. 1958-731 provides that children

under the age of sixteen shall appear on the passport of a parent of

the child. Deportation and emigration and the rights of the child

20 are covered also.

38.

One of the most important effects of the statutes dealing with

nationality and registration of birth is that they define initially

the legal status that a particular child has and consequently help

to determine the form that the protection, implicit in the existence

of any legal system, will take with respect to that child.

The law still distinguishes between the legitimate and the illegitimate

child. The legitimate, or adopted or subsequently legitimated child

has a right to his father's surname, 21 the right to share in the

22 succession of his father's estate and the right to maintenance until

his majority or whilst receiving an education. 23 The illegitimate

24 child traditionally has been registered under his mother's surname

(a failure to fill in the sections on the registration certificate

dealing with the identity of the father and the particulars of the

parents' marriage is taken to establish the illegitimacy of the child).

Thus, the rights in respect of the illegitimate child are normally

vested in the mothere Nevertheless, the father has a legal duty to

maintain the child. 25 In New South Wales the illegitimate child

succeeds to his mother's estate, or shares in that estate with any

other children she has had, but unless express provision is made by

his father such a child may have difficulty in inheriting from his

26 father's estate. The differences in the manner by which the

legitimate and illegitimate child is recognised at law as a person

appears difficult to justify morally, although the recent definition

of "children of a marriage" as set out in the Family Law Act, No. 53 1

1975, 55 would indicate that the legal status of a child is a

recognition of his present situation and not of the legal status of

his parents at his birth.

39.

In the writings of Mill and Locke and in the 1959 Declaration of

the Rights of the Child attention was drawrr to the special needs of

the child in his dependency. It is probably fair to say that the

community has assumed that the family will provide adequately for the

needs of the child and that the family will ensure that the obligations

created by the child's right to life are met. In New South Wales the

Child Welfare Act, 1939 (as amended) is the key statute which in

effect expresses that the child, as a person, is legally entitled to

a life st~·J.e that meets 2 rrinimal standard for his continued

development. Parents or guardians have a legal obligation to provide

sufficient and proper food, nursing, clothing, medical aid and lodging

and are not to ill-treat or 27 expose the child to danger. Where

parents do not meet this legal obligation and the child is found to be

28 h s t . 29 k neglected then t e tate in its role of parens pa riae may ma e

changes in custody by granting guardianship to another adult, or it

can assume the guardianship itself by making the child a ward of the

M. • 30 inister. The Act provides for Children's Courts to deal with

offences committed by or against children31 and contains directives on

· d 32 · l d. th t f 11 f th maintenance proce ures, inc u ing e paymen o a owances or e

support of a destitute child where the parent or guardian is prevented

from fulfilling his obligations because of financial hardship. 33

Employment of children is dealt with, 34 but adoption is now covered by

35 d a separate statute. Whilst the Child Welfare Act is concerne

largely with procedural matters, it is significant in its recognition

of a child's right to a healthy and happy development. When this

right is thwarted because of social or economic deviation from what

is regarded as the community norm, then redress is provided through

40.

the principle of social justice. When the difficulty arises because

of the child's actions or through intellectual or physical handicap

then provision is made for the child's receiving special assistance.

The Act is not perfect, as a glance at the Report of the Child Welfare

L . l t. R . C . tt 3 6 · d · egis a ion eview ommi ee in icates. Its significance lies in

its recognition of the approximate equality of children and their

need for a secure childhood, free from neglect and deprivation, as

well as from exploitation and vice. The aim of the Act is to provide

for the well-being of the child, not to punish the adult who may not

be meeting his legal and/or moral obligations towards the child.

If the Child Welfare Act seeks to give legal guarantee that the

child's physical and emotional needs are respected, then the Public

Instruction (Amendment) Act 1916-1973 seeks to guarantee that the

child is given the opportunity to obtain at least the knowledge and

skills that are considered to be basic if a person is to be autonomous.

For the majority of children in New South Wales it is these statutes

that define in a legal sense the minimum entitlements that are theirs.

Although a child is not sui juris, this does not mean that he is

completely without legal capacity. After all, even the Child Welfare

Act implies that he has at least one legal obligation: not to be

uncontrollable. 37 The legal status of child does mean that from his

birth to his majority he has a guardian who has the legal right and

legal duty of protecting the child, the property of the child and the

rights of the child. The guardian is accountable at law for his

actions which ought to be prompted by whatever is in the best interests

of the child.

41 •

Finlay and Bissett-Johnson38 point out that the child's lack of

full legal capacity makes itself felt mainly in four legal areas:

contracts, torts, property and crime. The laws governing children

and contracts, and children and property follow the same principle.

A child can do things that are beneficial to him, but is restrained

from performing actions that prejudice his position. A child cannot

enter a contract and be bound by that contract unless it can be shown

that such an action is beneficial to him at the time of his participation

(e.g. contracts of apprenticeships or for teacher training), or that

the contract is for necessities that the child is not provided

adequately with (food, medicine, lodging, etc.) 39 • However, where

a child has fraudulently misrepresented his age, the contract is not

binding on the other party.

In the area of torts, a child can be held liable for his actions if

he is considered old enough to understand the nature of his act, that

is the child must be found capable of "forming the requisite intent.»40

Torts arising from the child's performing an adult activity, for

example, a seventeen year old driving a car, involve the child being

liable in the same manner as an adult.

Although tort includes offences such as assault, trespass, defamation

and nuisance, negligence is probably the civil offence which is used

most in claiming compensation from another. "In a negligence case a

child is only expected to conform to the standard of normal children

of his own age and experience. This rule governs the child's capacity

to foresee the risk as well as his sense of judgement and behaviour." 41

Where the child is guilty of contributory negligence the damages

42.

awarded to him will be reduced although any special damages for

medical expenses to which the child's guardian may be entitled will

42 not be reduced.

Whilst the law recognizes that the child can sue or be sued in civil

proceedings, "he will be required to be represented by a person of full

age who will have the conduct of the proceedings. This representative

is called the infant's next friend if the infant is the plaintiff,

and guardian ad litem, if the infant is the defendant." 43 The purpose

is to provide liability for the legal costs, though such a representative

(usually parent, guardian or relative) can recover the costs from the

child who has property. Any damages awarded to the child are invested

by the court until the child reaches his majority, but the court can

order the release, or part-release, of the sum earlier than this if

it is needed. Thus, when one considers the areas of tort and contract,

there is a reasonable degree of protection extended to children because

of the procedures established to safeguard the child who is party to

such a case. In addition, since the sanction is usually the payment

of money, people are unlikely to sue a child unless he has property.

And, a child who can afford to pay damages usually can afford to pay

for counsel.

It is criminal law which offers perhaps the clearest illustration of

a child's gradual assumption of legal capacity. In New South Wales

a child below the age of eight is conclusively presumed not be guilty

44 of a criminal offence. Then until fourteen "children are presumed to

lack capacity for criminal intent, but the presumption can be rebutted

by showing the degree of their comprehension and moral awareness, and

43.

accordingly they are open to prosecution. After fourteen, their

criminal responsibility is in principle the same as that of adults.» 45

The child who has been charged with a criminal offence usually appears

before a Children's Court. There are exceptions: In New South Wales,

if the offence is homicide or is one which carries a sentence of

fourteen years or life imprisonment for an adult then the case is

excluded from the jurisdiction of the Children's Court, and the

defendant must stand trial. The Children's Court can transfer cases

to a higher court if the offence is a serious one and it is felt that

it is in the interest of justice for this to occur. However, the

summary jurisdiction of the Children's Court applies to defendants

d . t 46 un er six een.

In practice many juvenile offenders are not prosecuted but instead

are reprimanded in the presence of their parents. Normally this

applies to "first offenders" where the charge has been minor. In most

cases the magistrate will place offenders under the supervision of an

officer of the Department of Youth and Community Services, and only

where the child's actions are of a serious nature or where the child

has appeared previously before the court will the magistrate order

that the child be placed in an institution. However, despite this

philosophy of guidance and rehabilitation, the Children's Court is

not without its critics.

The recent Report of the Child Welfare Legislation Review Committee

reflects an awareness of the need for legal reform in the area of

criminal law and child offenders. Its recommendations range from

raising the age of criminal responsibility in New South Wales from

44. 47

eight to ten years, to the setting up of Aid Panels to enable the

child to "avoid the stigma and trauma of Court proceedings" where

"bl 48 possi e. Other recommendations include a fresh look at methods

49 of dealing with young offenders and changes to the current means

f . t t· 50 o in erroga ion. However, recommendations are not statutory laws

and, until legislation is passed to remove the anomalies highlighted

by the Report, the child remains vulnerable to the inadequacies of

the existing laws meant to protect him and ensure that he will be

respected as a person whilst his case is dealt with by the

. d" t 51 JU ica ure.

The child's right to a guardian who will act for the best interests

of the child is firmly guaranteed by the Law. Where guardianship is

in dispute, the welfare of the child is the paramount consideration.

The Family Law Act 197552 provides that once a child has reached

fourteen, the wishes of the child will govern the decision reached in

matters of custody, guardianship or access unless there are special

circumstances where the child's wishes would be contrary to his best

interests. Moreover, the Family Court may "of its own motion, or on

the application of the child or of an organisation concerned with the

welfare of children or of any other such person, order that the child

53 be separately represented." The provision for separate representation

is significant for it reflects an awareness that the child's interests

may not coincide with the interests of one or both of his parents.

Despite the broad powers vested in a parent, or person loco parentis,

the Law will not sanction any behaviour that is harmful to the child.

For example, a parent, or a teacher, has the right to punish a child but

the punishment administered must be reasonable in view of the age and

45.

understanding of the child and the nature of the misdemeanour

committed by the child. If the punishment is excessive or endangers

the life of the child then the adult may be charged with assault or

some other offence under criminal law. However, generally it has to

be gross abuse of the child that leads to the parent, or offending

adult, facing a criminal charge. In fact, South Australia is the

only state making it compulsory for medical practitioners to report

cases of child abuse. 54 In other States abuse is a criminal offence, but

if a case is reported and there is inconclusive evidence that the child

has been maltreated then the persons reporting and/or investigating

the complaint could be sued by the parent for defamation or libel.

The relationship between a doctor and patient is, at law, a civil

contract. Since minors do not have generally the legal capacity to

enter a contract parental consent is usually required before a child

receives medical treatment. This is because without the consent of a

patient the doctor may be guilty of criminal assault or of trespass to

the person. However, it does not apply if treatment must be given

immediately to save a life. Nor does minority itself make a child

incapable of giving consent. A fifteen year old would be regarded as

capable of giving consent to treatment for a throat infection, although

a doctor would seek parental consent before performing a surgical

operation on the same child. Failure on the part of the parents, or of

the responsible adult, to procure or consent to medical treatment for

their child may, in the event of the

. "d 55 prosecution for culpable homici e.

parents because of religious beliefs,

child's death, lead to their

Where consent is withheld by

e.g., the refusal of Jehovah

Witnesses to receive blood transfusions, then the need for consent

46.

can be dispensed with when two or more medical practitioners agree

that much treatment is necessary for the life of the child. 56

In addition to the statutory provisions dealt with so far, there

exists a body of legislation that aims at giving financial support for

the child. Under Section 51(XXIIIA) of the Constitution, the

Australian Government is able to make valid laws by which it can

grant maternity allowances, child endowment, medical benefits and

student allowances. Financial assistance is given also under the

Income Tax Assessment Act which contains provisions enabling a taxpayer

to claim a fixed deduction for children up to the age of sixteen and ~

for students sixteen and over who are being supported by that taxpayer.

Although these and similar measures in no way defray the total

expenditure the child's parents, or guardians, face in discharging

their moral and legal obligations to provide for that childis healthy

and secure development, because the measures pertain to all children

in Australia, the services provided as a result of the legislation can

be deemed legal rights rather than privileges. They are also a measure

of the social awareness of the needs of the child, and the extent to

which the community will support directly the fulfilling of the moral

rights that the existence of the child brings into being.

Unfortunately the volume of legislation that has relevance to the

child is too great to consider fully. However, from the cursory

treatment that has been given of some of the key Federal and New

South Wales enactments, it is clear that long before adult status is

conferred on an individual, that person is recognized at law as

possessing rights for which he can obtain redress if others deny

47.

his enjoyment of them. Significantly the legal code also acknowledges

the developing rationality of the child, because once the child is

aware of the moral concepts of "right" and "wrong" then legally he

begins the gradual assumption of responsibility for his own actions.

The area of criminal law offers the clearest statement of this although

other areas of the law also admit that the child is capable of both

rational thought and conduct before he has attained adulthood e.g.,

the provisions to take into account the wishes of the child in custody

cases, or the affect a finding of contributory negligence against a

child has on the awarding of damages.

It is the inability of the child to both realize and safeguard his

own interests during his dependency that receives the greatest attention

in those statutes relating to children. Protective legislation such

as the Child Welfare Acts indicate that whilst the child possesses the

moral right to life that in itself is no guarantee that others will

fulfil their obligations to the child. Thus, the legal code not only

defines the claims or entitlements that the society sanctions as being

valid, but also provides that where these are not met because others

have either abused their powers or have ignored the interests of the child,

then the judicial system has the authority to both protect the child

and punish the transgressor.

Clearly, the legal status of the child has significance for those

with whom the child comes in contact. However, the presence of legal

guarantees does not necessarily mean that every child will enjoy what

the law ascribes to him, let alone what rights are his on moral grounds.

Any litigation that involves the well-being of a child is instigated

by adults, whether parents, guardians or public officials. To that

48.

extent therefore the legal rights of children are guaranteed only so

far as the significant adults have the inclination, or ability, to

enter legal proceedings on the child's behalf. Whilst the existence

of the concept of accountability within the judicial system may deter

some people from ignoring their legal duty towards children, not all

breaches of legal obligation will be punished. Admittedly in trying

to achieve a balance between opposing rights e.g., those attributed to

children, to parents, to minority groups and to the community at large,

there is usually a compromise whereby the groups in question wave aside

certain entitlements in view of present interests. However, adults, or

groups of adults, have the legal right to contest the validity of the

decision if they believe it involves a negation of an existing, or

vested, right. Children do not have the capacity to take this

independent action. Hence, despite an affirmation of rights with regard

to children, there is a loophole in the legal framework. Enjoyment

of the rights conferred on them by the legal system depends on adults,

parents especially, meeting fully any legal duty necessary for fulfilling

those rights possessed by children. Unfortunately that commitment can

. f t bl" t· 1157 be described as a "moral duty of imper ec o iga ion. For this

reason the vulnerability of minors within the legal provisions of the

community needs to be kept in mind.

Other than the family, the social agency having the greatest number

of dealings with the child during his dependency is probably the school.

Although a consideration of both statutory laws and judicial decisions

that are relevant to the provision of education in Australia will be

made later, it is clear that whatever else that process may involve it

must recognize the rights treated in this chapter. The child enters

49.

school already possessing rights that the law affirms are his and,

unless the school wishes to bring legal sanctions against itself,

it must respect those rights by ensuring that its activities do not

infringe on them. In addition the educational system is influenced

by the attitudes and beliefs of the society supporting it. Since

these are not as clearly defined as legal powers or entitlements,

despite their forming the assumptions underlying the provision of

education, attention will now be given to a consideration of the

basis for such provision. Again it is an area that involves judgements

about the moral status of the human person, especially children.

Notes and References

1. For an account of the development of special legal protection of the child in Britain see Berger, N., The Child. the Law and the State, in Hall, J., (ed) "Children's Rights: towards the liberation of the child", pp.154-161.

2 0 Locke, J., op.cit., (2.6.55), p.347.

"Children, I confess are not born in this full state of Equality, though they are born to it. Their Parents have a sort of Rule and Jurisdiction over them when they come into the World, and for some time after, but 1 tis but a temporary one. The bonds of this Subjection are like the Swaddling Cloths they are kept up in, and supported by, in the weakness of their Infancy. Age and Reason as they grow up, loosen them till at length they drop quite off, and leave a Man at his own free Disposal."

and (2.6.61), pp.350-351.

"Thus we are born Free, as we are born Rational: not that we have actually the Exercise of either: Age that brings one, brings with it the other too. And thus we see how natural Freedom and Subjection to Parents may consist together, and are both founded on the same Principle. A Child is Free by his Father's Title, by his Father's Understanding, which is to govern him, till he hath it of his own."

3. Ibid., (2.6.58), pp.348-349.

4. Mill, J • S. , op. ci t. , p. 6.

5. Ibid., p.6.

6. Ibid., pp.32-37

7. Ibid., PP· 33 - 34 · "Nobody denies that people sho~ld be so taught and trained in youth, as to know and benefit by the ascertained results of ~u~an experience. But it is the privilege and p~oper condition of a human being, arrived at the maturity of his faculties, to use and interpret experience in his own way."

8. Ibid., p.48.

so.

9. A fuller treatment of Mill's concept of adult responsibilities regarding the child will be given in the resume of his treatment of the child's right to education.

10. Article 2. "Everyone is entitled to all the rights and freedom set forth in this Declaration, without distinction of any kind." See addenda.

11. See addenda for the text of some of these provisions.

12. See addenda for the text of the Declaration of the Rights of the Child.

13. (one full of legal activity). Such a person can validly contract and bind himself by legal obligation uncontrolled by any other person. See Minors (Property and Contracts) Act (No. 60), 1970. ss 8-15 (N.5.W.) or Age of Majority (Reduction) Act, 1970-71, 54 (South Australia).

14. There is a variety of terms used for a person who has not yet attained his majority. The Family Law Act, No. 53, 1975, 560 (Australia) uses "child". The Child Welfare Act No. 17, 1939 54 (N.5.W.) uses two terms: "child" for a person under 16 and "young person" for one who has attained 16 but is under 18. In other N.5.W. Acts "minor" is favoured for a person under 18. Ironically when the age of majority was 21 the person below that age was termed an "infant", e.g. Infants Custody and Settlements Act, No. 39, 1899 (N.5.W.).

15. Commonwealth of Australia Constitution Act (190Q).

16. The Constitution, 551, ( xxi) Marriage: ( xxii) Divorce and matrimonial causes; and in relation thereto, parental rights, and the custody and guardianship of infants: (xxiiiA) The provision of maternity allowances, widows' pensions, child endowment, un~mployment, pharmaceutical sickness and hospital benefits, medical and dental services (but not so as to authorize any form of civil conscription), benefits to students and family allowances (inserted by No. 81, 1946, 52).

17. Ibid, clauses (xix) and (xxvii).

18. Registration of Births. Deaths and Marriages Act, No. 17, 1899 (N.5.W.) At law, provisions for the registration of still-births or perinatal deaths would indicate that a child is one who "is of at least twenty weeks gestation, or at least four hundred grammes

19.

20.

21 •

22.

23.

24.

25.

26.

27.

28.

29.

30.

31 •

51.

weight at delivery" Registration of Births, Deaths and Marriages (Amendment) Act, No. 45, 1967, Part VIA, 53, 530B, 530E, 530G.)

Citizenship Act 1948-69, 510, 511.

The Migration Act 1958-1973, 56(8), S21(8), 5561-63.

In Re T, (otherwise H) (an infant) 1962 1 3A11 E.R. 970, an English case where a mother changed by deedpoll the surname of her daughter by her first marriage, depriving the child of her father's surname, was ruled as not being in the best interests of the child. This ruling was followed in the Australian case K. v D, (1969) A.L.R. 311 1 13 F.L.R. 430.

Wills Probate and Administration Act, 1898-1954 (N.S.W.) Inheritance Act, No. 19 1 1901 (N.S.W.) ss 9-12. Testator's Family Maintenance Act.

Family Law Act, No. 53, 1975, 576. Maintenance Act, 1964, (N.s.w.) 526. Infants' Custody and Settlements Act, No, 39 1 1899 (as amended

by the Guardianship of Infants' Act, No. 20, 1934, and Minors (Property and Contracts) Act, No. 60, 1970) ss4A,5. Child Welfare Act 1939 (N.5.W.) SS 58-64.

Registration of Births, Deaths and Marriages (Amendment) Act, No. 93 1970 (N.S.W.) gave the father of the illegitimate child the right to register the child.

Maintenance Act, 1965 (N.S.W.) S15, S21. Workers Compensation Act, 1926 (N.S.W.) S6(i). Repatriation Acts 1920-1970 (Federal) 5108(i). Child Welfare Act, 1939 (N.s.w.) SS 58-64.

Wills, Probates and Administration Act, 1898-1954, (N.S.W.) 551.

Child Welfare Act, 1939 (N.s.w.) 572(d).

Ibid. 572 (the definition of neglect includes a child who is ' . . destitute, who is exposed to moral danger, who is lapsing or likely to lapse into a career of vice or crime).

"the protector of subjects unable to protect themselves".

Child Welfare Act, 1939 (N.S.W.), 5B2.

Ibid., 512.

32. Ibid., 55 5B-64. See also Family Law Act, 1975, 5572-77.

33. Ibid., 527.

34. Ibid., 565-71.

35. The Adoption of Children Act (1965-1966).

52.

36. Child Welfare Legislative Review Committee Report, August 1975. (T.E. Quinn, Executive Secretary) 0

37. Child Welfare Act, No. 17, 1939, 580.

38. Finlay, H., and Bissett-Johnson, A., Family Law in Australia p.189.

39. Minors (Property and Contracts) Act (N.S.W.) 1970 ss17-39. N.B. 518 "This part does not make presumptively binding on a minor a civil act in which he participates, or appears to participate, while lacking, by reason of youth, the understanding necessary for his participation in the civil act."

40. Foulsham, J., LeQal Sapctiops apd the Rights of the Child, p.3.

41. Ibid., p.4.

42. Finlay, H., and Bissett-Johnson, A., op.cit., p.193.

43. Ibid., p.196.

44. Child Welfare Act, 5126.

45. Sawer, G., The Australian and the Law, p.74.

46. Foulsham, J., op.cit., p.6.

47. Child Welfare Legislation Review Committee Report. August 1975, p.75.

48. Ibid., pp.76-79.

49. Ibid., ppo79-8D.

50. Ibid., p.82.

51. The rights of juveniles in criminal cases was treated by the Supreme Court of the United States. See In re Gault. 387 LI.So 1 (1967). For an analysis of the case and its implications see Stansby, J.F., In Re Gault: Children Are People, in Wilkerson, A.E., (ed) 'The Rights of Children: Emergent Concepts in Law and Society', pp.285-302.

52. The Family Law Act, No. 53 1 1975, 564.

53. Ibid., 565.

54. Campbell and Whitmore, Freedom in Australia, footnote p.88. "Amending legislation of 1969 obliges medical practitioners, dentists, and such other classes of persons as may be proclaimed, to report to the police suspected cases of ill-treatment or neglect of children under 12 years. The legislation also gives limited protection against liability in respect of the making of such reports - Children's Protection Act, 1936-1969, 55a."

53.

55. Ibid., p.212.

56. Bennett, J., Your Rights, p.46.

In the U.S.A. this problem is overcome by a court order where the State, in its role of parens patriae, authorizes the transfusion.

(Coyne, T.A., Who Will Speak for the Child?, in Wilkerson, A.E., op.cit., p.200).

57. Finlay, H.A., and Bissett-Johnson, A., op.cit., p.203.

54.

CHAPTER 3

RIGHTS AND DUTIES I~ EDUCATION

The present systems of public education in Australia have evolved

from those established by the six colonial legislatures late last 1

century. At the time the passages of the Education Acts were marked

by bitter sectarian argument. However, the belief that every child,

regardless of social and economic background, was entitled to receive

some schooling, was not doubted. It was clear that the existing systems

of denominational and national schools were giving instruction to less

than half of the children in the colonies and, since it was felt that

the future prosperity of both the child and the nation required an

improvement in the number of schools and the quality of schooling

generally available, legislation was passed to enable the State to

assume responsibility for providing educational facilities for those

children not receiving private tuition.

By making school attendance compulsory the early Education Acts

sought to guarantee that each child would receive instruction in

reading, writing and numeracy. Today our educational goals have

widened to include not only elementary schooling but also some

secondary. For those who have completed the period of compulsory

education and who have attained a level of performance acceptable to

post-secondary institutions, there continues to exist the choice of

tertiary or technical instruction. Moreover, the responsibility for

maintaining the "plant" for current educational provisions belongs

increasingly to the State, either in the form of total funding or

partial subsidy. However, the obligation of supporting the "client"

continues to rest almost exclusively with the parents.

55.

Obviously the broadening of the scope of educational provisions

during this century would imply that the majority of Australians

concur with the expenditure of a proportion of both family and national

resources in the support of education. But, describing present (or

past) educational provision does not explain the basis for such a

system. It is necessary, therefore, to consider why it is frequently

assumed that there is a universal right to education, why the

provision of tuition often is associated with compulsion and why both

human and material resources are directed towards supporting the

process.

John Locke has characterized Man as being both free and rational.

However, whilst Man is born to those qualities, at first he has not

the ability to exercise either. So that the effective realization

of both attributes might occur and the person thereby achieve adult

status, Locke believed that each person has a moral right to education

during his dependency. Moreover, the child's right to education is of

the same nature as his right to nurture, for just as the provision of

food and shelter is vital for the physical development and well-being

of the child, the provision of education is crucial for his intellectual

development. Locke does not specify the form that education is to

take but in delineating the Law of Reason as "the direction of a free 2

and intelligent Agent to his proper Interest", he describes the qualities

of behaviour that characterize the morally aware adult, the product

of education. Thus, for Locke, the right to education is a moral

right that is inalienable. It imposes on the parents of the child

a moral duty to ensure that his future well-being and behaviour will

not be affected by a failure to meet those claims, or entitlements, 3

for intellectual development that his existence brought into being.

56.

However, because under Natural Law the child's right to education is

perceived as being absolute, it is not surprising that Locke examines

the moral duties the right creates rather than the right itself.

Although the child's right to education is inalienable (it springs 4

from God and Nature) the duty of the child's parents, in particular

the father, is not. As Locke says:

"The first part ... of Paternal Power, or rather Duty, which is

Education, belongs so to the Father that it terminates at a certain

season; when the business of Education is over it eases of itself

and is also alienable before. For a Man may put the Tuition of

his Son in other hands; and he that has made his son an Apprentice

to another has discharged him, during that time, of a great part 5

of his Obedience both to himself and to his Mother."

Despite Locke's admission that the father can delegate authority to

another to realize the child's right to education, presumably such

delegation would not be absolute. Where the child's claim to tuition

appropriate to his circumstances was not being met then surely the

father would be morally bound to remedy the situation.

The creation of parental duties in education arises not only

because the parents are responsible for the existence of the child

but also because of a fundamental natural law: the law of universal

preservation. This Locke expresses in the following way:-

" ... to the Grandfather, there is due a long Score of Care and

Expenses laid upon the Breeding and Education of his Son, which

one would think in Justice, ought to be paid. But that having

been done in Obedience to the same Law, whereby he received

Nourishment and Education from his own Parents, this score of

Education received from a Man's Father, is paid by taking care, 6

and providing for his own children."

This conception of the source of parental duty is important. It

recognizes that education involves a positive contribution by adults,

whether in providing materials or skills necessary for instruction to

57.

occur, or in maintaining the child for the duration of such instruction.

In fact, Locke has identified education as being a generational duty

which is validated by its produce: a rational, autonomous adult who

is able to maintain himself and, in turn, recognizes the need to

support his children in response to the rationale that led to his

receiving both nurture and education from his parents.

In comparison with John Locke's belief that educational rights

and duties are absolute, being commanded by God and Nature, the

treatment given by John Stuart Mill is far more sophisticated. He

perceived education as performing a dual function: it cultivates 7

both "the self-regarding virtues and the social.'' Since these are

desirable attributes typifying the rationally aware, independent

person, who is able to regulate his own behaviour for the benefit of

himself and others, it would be easy to conclude that these outcomes

constitute sufficient reason for the provision of education. However,

despite the importance of these virtues for the continuing viability

of the species, there is a need to determine whether they are the

necessary and sufficient basis for attributing education as a right

possessed by all people.

To assert that a person has a moral right is also to recognize

that unless the person is able to receive whatever treatment the

identification of that right calls into being, then the quality of

58.

that person's existence will be affected adversely. Mill, like Locke,

believes that there are rights in the sense of entitlements, which

are basic to every individual and which are created by the birth of

that individual. These rights reflect human needs and must be

fulfilled if the person is to survive and if the capacities, with which

he was born, are to be realized. Mill indicates that education is one

such right because education is basic to the full development of a

person's rational capacity. Whatever the rational person may promote

in terms of societal gains, the overriding recognition is that unless the

capacity to think and to act is stimulated and refined then the

individual will remain stunted and incomplete intellectually.

for this reason that education is regarded as a moral right.

It is

At the core of Mill's consideration of Man is the belief that

liberty is a condition to be achieved if full self-realization is to

exist. Since the presence of liberty is gauged by a person being

able to exercise a choice anc since education is the process that

fosters the development of Man's cognitive powers, it follows that a

person who is denied education is impeded in the exercise of his

liberty. After all, if a person is not taught, or encouraged, to

extend himself his ignorance will directly affect his capacity to

discriminate or to determine the best course of action to take in

the situations he is part of each day.

The right to education is morally justified in yet another

sense. Since there is no absolute certainty about the nature of

Man's world but only an assurance of predictability that has emerged

as the result of mankind being free to contradict, disprove, or

substantiate an opinion or proposition, the development of the

59. individual's capacity to reason is crucial. As Mill says, it is the

human mine that is "the source of everything respectable in man either 8

as an intellectual or as a moral being" and this is because his

errors are corrigible - he is capable of rectifying his mistakes by

discussion and by experience. Thus, the whole strength and value of

hu~an judgement depends on one property: it can be set right when it

is wrong. Reliance can be placed on it, therefore, only when the means

of setting it right are kept constantly at hand. This means that

freedom of opinion and freedom of the expression of opinion are

necessary "to the mental well-being of mankind (en which all their 9

other well-being depends)." Mill is m2king a plea for the toleration

of differences and also offering an explanation for an education

grounded on the widest base - an education which fosters liberty in 1 D

the "inward domain of consciousness" and in the pursuit of individual

interests and tastes, and in the sharing of experience with others.

To claim education as a right is to recognize that ration2lity is

learnt and that individual and social well-being depends on the adult's

possessing this ability to think, to disc~ss and to experiment.

Although Mill is concerned with the quality of indivi(ual existence

he also recognizes that Man is a social animal and that individual

well-being is, in part, a measure of the well-being of the grcup.

Thus, the individual's moral right to education is supported by social

sanctions because the continued progression of a given society relies

on the existing generation making "the rising generation, as a whole, 11

as good as, and a little better than itself." Since it is the

family which is the institution primarily responsible for the nurture

and continued development of the child in its dependency Mill, like

Locke, ascribes to the father the moral duty of providing the child

with an education. This moral duty arises not only because the

60.

existence of the child is the result of the actions of the parents

but because the physical dependency of the child and his undeveloped

intellectual potential mean that he is unable to know, let alone

attempt to claim, or enjoy, his own right to education. Thus the act

of education is a moral act not because the child has himself freely

chosen to take part in it, but because his future status as a person,

able to decide or act in a rational or moral manner, depends on the

quality of his earlier training and experience. If the father fails

to "give to that being an education fitting him to perform his part well 1 2

in life towards others and towards himself" then it becomes the

responsibility of the State to meet the obligations imposed by the

child's right to education. Mill is adamant that it is the role of

the State to enforce the provision of education but not to assume the 1 3

direction of the content of such provision. The only grounds that

State intervention is morally justified is when the State is performing

its function of both guaranteeing and safeguarding the interests of its

members. Hence, Mill's assertion that it is "almost a self-evident

axiom that the State should require and compel education, up to a 14

certain standard, or every human being who is born its citizen" must

be seen in its moral context. The father, as guardian of the child,

has the moral responsibility to act in the best interests of the child,

but if he does not discharge his obligations then the State morally

cannot ignore this failure. The State must intervene on behalf of the

child and also on behalf of the rest of society. Such intervention is

validated by the ethical consideration prompting the action: the State

is protecting the rights of one unable to claim them himself as well as

contributing to the future well-being of the society to which the child

belongs by giving him the opportunity to develop intellectually. It is

61 .

not a carte blanche to manipulate at will but a means to ensure that

the principles accepted as social ideals are respected by all. As

Mill concludes:-

"A government cannot have too much of the kind of activity which

does not impede, but aids and stimulates, individual exertion and

development ... The worth of a State, in the long run, is the worth

of the individuals composing it; and a State which postpones the

interests of their mental expansion and elevation, ... a State

which dwarfs its men, in order that they may be more docile

instruments in its hands, even for beneficial purposes, will find 1 5

that with small men no great thing can really be accomplished."

The actual provision of education causes parents and other members

of the community to make either direct or indirect contributions so

that the wherewithal required to realize the right to education of the

youth in the society is available. Mill does not examine what is

involved in supporting education nor, for that matter, the method to

fulfil the right. However, his belief that, in the first instant, it

is the duty of the father to provide for the child carries with it

the implication that the father is morally bound to meet any

expenditure that is involved in discharging his parental obligations.

Similarly, Mill's view of Man as a progressive being incorporates an

acceptance that the members of a society are obliged to contribute to,

or support, the well-being of the society. Education, involving present

expenditure for future well-being, is seen to create both parental and

generational duties. The utility of activity, in terms of the quality

of the individual produced and the continuing viability of the group,

justifies the obligation to forfeit a proportion of what otherwise

would be income for one's own enjoyment.

62.

Despite the differences in the views of Man expressed by the Natural

Law doctrine of John Locke and the Utilitarianism of John Stuart Mill,

there is agreement that education, being the process crucial to the

development of the rational autonomous adult, constitutes a right each

person possesses at birth. Without receiving tuition the development

of the child's cognitive ability will be impaired and this, in turn,

will influence the quality of life that the individual is capable of

achieving. Where a person, in the full maturity of his faculties,

exercises a choice reflecting his own assessment of his needs and

affecting his own well-being then others usually respect the decision

because it is the action of a reasonable man. However, there is a

difference between the resolutions of one whose rational capacity has

been developed and one w~ose capacity is either fugacious or stunted.

Since the aptitude for rational behaviour is something learnt rather

than something instinctive education is every persons moral right.

It is the parents, in their role as guardians or trustees, who have

the moral duty to ensure that the child receives whatever treatment

or benefit necessary to realize the right. However, despite the

absolute nature of the child's claim, it is possible that his parents

might ignore, or inadequately meet, the obligations imposed by the

existence of the right. Whilst Mill asserts that such neglect cannot

be justified morally, he also emphasizes that in this situation it is

the well-being of the child that is paramount. Consequently, the State

has the moral duty of discharging the obligations that the child's

right to education creates.

The crux of Locke and Mill's examinations of the basis for

educational provision is their affirmation that, regardless of custom

or law, education is a moral right. Because of the approximate

63.

equality of Man and because he must develop both physically and

mentally before he achieves the capacity for autonomy, no-one in all

conscience can deny the individual the means to self-realisation.

The writers' enunciations of the moral basis of education prefigured

the acknowledgement of the right by statutary law and yet today, despite

laws that make schooling compulsory for every child for a given

minimum number of years, the moral aspect of educational provision

can be lost as one looks instead at the content, or duration, or

effects of such legislation. In addition there is the danger that an

evaluation, or justification, of a specific approach to education may

be influenced by the tendency to use as a yardstick the form of

educational provision one experienced oneself. For those reasons

Article 26 of the 1948 Universal Declaration of Human Rights will be

considered in an attempt to determine the principles underlying

educational provision in the twentieth century. The article reads:-

" ( 1 ) Everyone has the right to education. Education shall

be free, at ledst in the elementary and fundamental stages. Elementary

education shall be compulsory. Technical and professional education

shall be made generally available and higher education shall be equally

accessible to all on the basis of merit.

(2) Education shall be directed to the full development of the

human personality and to the strengthening of respect for human rights

and fundamental freedoms. It shall promote understanding 1 tolerance

and friendship among all nations, racial or religious groups, and shall

further the activities of the United Nations for the maintenance of

peace.

(3) Parents have a prior right to choose the kind of education

that shall be given to their children."

64.

Assuming the existence of a general code of morality, which human

beings are aware of and feel they are entitled to experience simply

because they are human beings, the Declaration asserts that education

is an inalienable right the effective realization of which is

necessary for the full development of the human person. In this

sens2 the right to education is perceived as an instrument for the

realization of more general rights and for the implementation of the

goals of the United Nations. Thus, the Declaration does not examine

in any real way the basis for asserting education as a right.

However, it does present the process whereby this human right can ba

achieved.

In the first clause it is affirmed that education is to be both

free and compulsory in the elementary stages. Although the duration

of this period is not specified, customary practice in Western

industrial countries has tended to terminate such tuition when the

child is making the transition from concrete to abstract thought.

At that point he usually has mastered the techniques of literacy and

numeracy, although he is capable of developing these-skills still

further as well as acquiring more ~omplex skills. However, if the

child reaches the minimum le1Jel of proficiency that the Declaration

has stated to be compulsory, then it is possible for him to realize

effectively his own potential because he possesses the skills which

permit him to discover, assess and accommodate further information.

His progress may not be as rapid as it would be if he were still

receiving direction in developing his talents, but nevertheless, it

is possible for him to achieve the status of the rational autonomous

adult spoken of by both Mill and Locke. The qualifications placed on

the receipt of subsequent education reflect social or economic, rather

65.

than moral, considerations. At that stage when selectivity on the

basis of individual ability and/or social need enters the educational

arena. the escalation of supportive costs makes it difficult to

continue providing education for all students. Thus. vocational

and higher education are conceived as being rights the enjoyment of

which is conditional on the individual's displaying competency in

comparison with his peers. Merit is put forward as the sole reason

for determining inclusion or exclusion. Again this is a reflection

of customary practice that has developed in an attempt to overcome

disadvantages an individual may experience because of economic or 1 6

social factors.

Finally, the third clause of the Article confers on parents the

right to choose the kind of education they wish for their child, but

it does not give limitless power to parents. They cannot escape their

obligation to ensure that their child receives an "elementary and

fundamental" education which is directed at realizing the principles

contained in the second clause. However, within that framework they

can make selections determining the manner in which those goals will

be achieved.

When one recalls that ri~hts define those things essential to the

well-being of the individual and, by the principle of aggregation, of

the social group, then it is clear that education is a right on moral

grounds because it is of the same nature as an infant's right to

nuture. However, after recognizing that each person is entitled to

receive an education one then has to effectively realize the claim.

This is not as straight-forward as it may first appear.

Although education is a continuous process, initially those who

have the right are children who, by reason of their youth, neither

66.

know what a right is nor have the capacity to claim what is theirs by

right. As McCloskey has pointed out, children enjoy the right to

education "only in so far as others, parents, society and state accept 17

and carry out the positive duties which the right brings into being."

He then goes on to say that what is important about the relation between

rights and duties in the context of education "is not simply that

others have duties towards the possessor of the right but that it is

part of the right itself that its possessor and/or his guardian, and/or 18

his representative is/are entitled to demand fulfilment of the duty."

Most people would not dispute the moral inviolability of the child's

right to education. However, in practical terms the form that the

provision of education takes has created a web of overlapping rights,

duties and obligations. Since the parties to such provision do not

always have identical interests, it is often difficult to satisfy the

needs of children, parents anc society. Thus, attention will now be

gi~en to the implications of both recognizing that the child has a

moral right to education and attempting to meet this right by

establishing public systems.

In this country there is a general acknowledgement of the inter-

dependence of the right to education and of the positive duty to expend

resources in support of education. The right is formally recognized by

legislation and the obligation to provide public expenditure on

education is justified in terms of both parental and collective

generational duties The moral basis of parental obligation rests

not only on the dependency of the child but also on the circumstance

that they are responsible for the very existence of the child. The

collective obligation of society is a recognition that each member of

that society has received benefit from such anonymous generational

67.

support himself and so has a duty to extend such support to others.

This duty is quite apart from any decision to contribute to the

education of the rising generation because of benefit to the society

that may be the result of such an action.

Since the introduction of compulsory education, the administrative

structure employed in discharging the obligations associated with the

provision has involved the principle of accountability. Governments

have increasingly assumed responsibility for financing all aspects of

education and legislation provides for Ministerial, and hence

Parliamentary, accountability for the adequacy of the provision. In

practice there is a delegation of both responsibility and authority to

bodies under Ministerial supervision, e.g., the various State Departments

of Education, and the functions of these bodi~s are diverse as each has

an obligation to realize one aspect of the total provision of education.

Hence, the role of the educational administrator is very important.

Not only is he responsible for servicing and maintaining existing

programmes and organizational patterns but he also is attributed with

a professional responsibility to plan for the future. As Jecks says:

"Present administrative decisions will influence the future

significantly, and the administrator must ensure that decisions are

taken against a broader background than the urgent and expedient

solution of the immediate day-to-day problems." The administrator

is generally held accountable for the right to education being met,

as well as for the manner in which educational duties are fulfilled.

This is not to imply that he is the only person involved in these

aspects of education but to admit that the basis of his role carries

the legislative sanction for such involvement. Consequently, the

administrator is an intermediary between parents and children on the one

68.

hand and society on the other.

Although agencies other than schools help meet the individual's

right to education, it is primarily through such institutions that the

community at large fulfils its obligations. Initially the duty to

secure the child's right to education lies with his parents who legally

are recognized as his guardians or trustees. However, as was raised in

the Declaration of Human Rights, parents have certain rights also.

Among them is the right to have the opportunity of both realizing and,

if need be, safeguarding the rights of their child. In education this

opportunity involves the right to choose the manner in which their

child will be educated and, in theory, the legal obligation to provide

an education for their child does not remove this parental freedom of

choice. In practice this choice is usually selecting either one of

the various private schools or a government school for their child to

attend. Later, when the child enters secQndary school, the parents may

play a key role in choosing the particular group of subjects their

child studies. Yet, in view of the similarity of curricula found in

both private and public schools, the choice of school is largely nominal.

Generally, there is concurrence between the rights of child and

parents and the fulfilment of both parental and social obligations.

However, occasionally confrontation does occur, and although the

child's prior right to self-realization ought to determine the nature

of the education he receives this might not be so in actual practice.

It could be that the child's right is being thwarted by insufficient

viable educational options, whether involving the existence of differing

educational institutions or differing educational progrummes that are

available to the rising generation as a whole. Perhaps the negation of

the child's right reflects the failure of one institution to recognize

69.

adequately the needs created by individual differences in terms of

the ranges in ability found at that school: whatever the nature of

the failure there is a parental obligation to attempt to effect a

remedy. Where the rights of the child are not being met because of

inadequate planning or lack of resources then the parents have the

right to demanc of the educational administrator that the child's

needs be met. However, a child's right to an education appropriate to

his needs may be being frustrated by influences other than educational

agencies. It could be that the child's parents are abusing their

position (e.g. by forcing the child into a subject field inappropriate

for his ability and/or interests), or perhaps neglecting their duties

(e.g. by tolerating a high rate of absenteeism or truancy). In cases

such as these then the educational administrator has an obligation to

intervene to protect the child and to ensure the child's right to

education is respected.

The relatively controlled and structured environm~nt found in

educational institutions raises important issues in the area of rights

and duties. Economically it is not possible to educate all people

individually, thereby fulfilling rights and duties in a one-to-one

si~uation. This means that with the development of collective systems

there is a risk that a levelling of the specific needs of individuals

will occur. Although such a levelling may not he intentional, it still

signifies a threat to the child, as well as a failure to meet the 20

expectations that constitute the goals of such institutions.

Unfortunately, the extent to which it occurs is not always ea~y to

determine. Underachievement on the part of the child may be undetected

by parents and teachers, and the fact that a child has been misdirected

in terms of subject selection may not be apparent if the child seems

70.

to be producing a standard of work acceptable to his teacher. Often

the complexity of providing tuition consistent with the needs of both

the students and the society supporting this provision has meant that

an educational policy may really be a compromise. Frequently areas

considered to be less important than others receive little in the way

of direct subsidy from government revenue because this treatment is

known to be acceptable to the majority of taxpayers. Expediency thus

can play a large part in coping with the sheer size of the total demand

made upon educational resources. Hence, whilst the community's

educational system generally acknowledges and provides for obvious needs

causero by differences, e.g. specially equipped institutions for children

who are physically handicapped, it generally withholds support in areas

where there is disagreement as to the social benefit to be gained from

its involvement, e.g. the piecemeal support presently given to pre-

school education. Where the collective outcome, rather than the indivi-

dual, is given attention, the moot question is whether, morally,

immediate collective interests ought to take precedence over those of

the individual.

In attempting to realize everyone's right to education there are

many occasions when a specific educational need means a possible conflict

of rights among the various groups of people within a community. One

such area is that of equality of educational opportunity and the

implied need for compensatory provision where inequality is thought to

exist. Usually when this act of educational redress is advocated, the

need for such action is verified by appealing to the general principle

latent in the concept of justice. Since individuals are felt to be

entitled, in respect of each other, to a certain relative position of

equality or inequality "justice is traditionally thought of as

71 .

maintaining or restoring a balance or proportion and its leading 21

precept is often formulated as Treat like causes alike." This

principle is reflected in provisions such as the Disadvantage School

Grants, or the appointment of teachers trained to give intensive

English language instruction to children disadvantage because English

is not commonly used for communication in the home, or the compensatory

educational programmes aimed at removing the disadvantage many

Aboriginal children experience because of the socio-economic status

of their families. However, whilst such programmes may reflect a

willingness to meet the rights of a specific group, they also imply

the withdrawal of rights from another sector of the community, because

few social changes, or laws, are agreeable to, or advance the welfare

o~ all individuals alike. The dilemma facing an educator when he

recognizes that environmental factors are causing an unequal influence

on the attainment of educational outcomes can be difficult to solve.

Yet, as Olafson points out, "if those inequalities are of such a

nature as to be remedial through forms of intervention that do not

themselves involve an even graver violation of human rishts, then it

seems clear that the right to education ren.uires that action be taken

to equalize the conditions in the schools and in the society under 22

which children receive their schooling."

Often the obstruction to fulfilling obligations associated with

educational provision comes not from competing educational claims but

from insufficient funds beins available to educational authorities.

The States have the responsibility for the implementation of

educational programmes but their revenue raising capacity is inflexible.

Thus, if the finance necessary for a new educational programme is not

available from State revenue and if the Commonwealth Government is

72.

reluctant to give the support needed for the implementation of the

provision, then it may not be possible for the State to meet the

educational demand unless funds are diverted from other areas of State

responsibility e.g. hospitals or housing. This whole issue of school

funding and of educators being hamstrung in the fulfilling of their

duties to both the student and society is illustrated by the

recommendations of the Australian Schools Commission for the triennium

1977-79. In 1977 $508 million dollars (an increase of 2% or $10

million on 1976) is to be allocated to the States for schools. The

Schools Commission recommended that grants be shared among programmes

in the following way: general recurrent grants, $313 million;

disadvantaged schools, $20 million; special education $12.9 million;

services and development, $15.5 million; special projects, $4.8

million, and capital grants, $141 .5 million. However, the report also

indicated that to meet the needs of schools in 1977 a further $155 23

million dollars would have to be available for education. The

Editorial in The Sydney Morning Herald, 12/8/76 comments "the 2 per

cent real growth in funds for 1977 must be related to the fact that

school enrolments are expected to increase by 1 .11 per cent. The

Government asked the commission to maintain existing standards and to

recommend modest initiatives in areas of immediate need. The

commission has found that was too much to ask. It makes the valid

point that the community's expectations of schools almost certainly

do not decline with every downturn in economic circumstances; they

may indeed be raised as the competitive value of educational 24

qualifications increases." Money may not be everything, but its

presence can often be decisive in determining the ability of

educational authorities to discharge their obligations. The problem

may also illustrate the Australian electorate's belief in the

provision of a minimum education and its general reluctance to

73.

exercise political action to demand more than "equal minimum resources"

for its schools. Unfortunately educ2tion is an on-going process and

the results of a policy may take several years to reach fruition. If

a policy has meant that society has ignored its duty to the child in

realizing its right to education no argument that seeks to justify the

negation can be regarded as being morally valid.

The right to education has been seen to impose parental and

generational duties of a supportive nature. However, recognition that

everyone is entitled to receive an education generally is not felt to

imply that an individual has a limitless ri~ht to public support whilst

pursuing his studies. In fact most systems recognize the prior claims

of merit and social need at some time in the educational sequence.

This is first clearly seen towards the final years of secondary

schooling and is associated with an entry to tertiary and vocational

institutions. It is felt that once the legal age marking the end of

compulsory attendance has been reached, then th1~ community's obligation

to provide educational opportunities for the rising generation has been

largely met. This is not to say that an individual does not have the

right to attain the highest level of education of which he is capabl~

but it does mean that after a certain level the individual assumes

responsibility for his own education. The direction he takes is

therefore a reflection of both his ability and his inclinations, and

represents an exercising of his freedom of choice. Often the student

continues to receive the supQort of others but in this area of

education the student is aware of the obligations he assumes himself in

accepting such support.

74.

It was stated earlier that central to the provision of education in

Australia is the concept of accountability existing between the

administrator and those supplying the resources for the maintenance of

such a system Although it is the Minister for Education who, in his

role of Cabinet member, plays an important part in the determination of

the Government's educational policy and the status education occupies

in the overall economic and social planning, the Minister himself has

not necessarily had a direct professional knowledge of education. In

fact, the Minister relies on the career administrator for most of his

information concerning the functioning of present educational

institutions and services, as well as for an informed judgment of

priorities if these institutions are to continue meeting the needs of

both the community and the students.

The career administrator is concerned with both planning and

present organizational patterns. He is responsible for the implementation

of the educational policies of the Government, as well as for the

co-ordination of the experiences and judgments of the officials

employed in the various areas of education, e.g. curricula development,

teacher training, inspection, regional or area direction etc, so that

foresight can be exercised in determining future policies, priorities

and financing. He, like the politician, is influenced by the prevailing

mood of the community as well as by the attitudes it takes for granted.

He realizes that there is an expectation on the part of older students,

parents and the taxpayer that the school system is attuned to the

economic and manpower needs of the community as well as to ±he social

values affirmed by the community. Probably he is also cynical enough

to realize that however satisfying in theory a plan appears in meeting

educational rights or expectations, in practice to some extent

educational policy will reflect political pressures and half expected

75.

crises. As Beeby says, "some 'political' element enters into almost

every phase of the planning process in the sense that a choice of

priorities at any level normally involves vested interests, material

or intellectual, and some degree of tension between their proponents."

Thus, whilst legislation or regulations determined by statutory bodies

set the framework within which the administrator works and describe

specific duties that are basic to his role, they do not fully 26

charac~erize his position.

In discharging his obligation to give advice to the Government,

the administrator represents many interestsJ each with its own set of

rights and each depending in varying degrees on the administrator for

the effective realization of these rights. In particular the

25

administrator has an obligation to protect the rights of the child when

policy is at the planning stage. This role in fact sets him apart from

other specialists involved in the planning: "he is the only one there

whose professional duty it is to think first of all of the interests of

the child. The others, the politicians, economists, statisticians, in

their capacity as parents and citizens may be as interested as he is in

the welfare of the children, and even in their professional roles they

are unlikely to treat the growing generation simply as a means to an

end. But each h3s his dominant professional interest, and, ... every

man will tend to lay special stress on the set of values and the

principles with which he finds himself most at home. It would be

arrogant of the educational administrator to regard himself as the only

guardian of the rights of the child, but, within the official planning

establishment, he may quite properly be expected to be their chief 27

expositor."

The administrator has an obligation to ensure that the resources

76.

allocated to education are used efficiently. The complexity of this

task is illustrated by the recommendations made by the Schools

Commission to the Federal Government on the distribution of funds to the

various major divisions within the educational system for 1977. The

predicted budget fi~ure for education falls short of the required amount

to implement fully Government policy. However, the Commission has

submitted its advice as to the allocation of money within the target

figure set. In fact, it is vital that the administrator be actively

involved in the process of allocating finance available, because he,

more than any other, is aware of the nature of the balance between the

various parts of the educational system and will know the effects that

a sudden expansion or the starving of one part of the system will have

on another. It is his task to ensure that any one programme will not

result in undue hE1rdship for one area of educational provision, or for

any one group of children, The economic trimming of today may affect

society in the long term, but the administrator has an obligation that,

where possible, he is to maintain both the quality and quantity of

educational provision so that no one group of students has to bear the

brunt of policy changes and so be disadvantaged in comparison with other

groups of students.

The administrator, in his role of watchdog knows what the existing

deficiencies of t~e system are. He therefore has an obligation to

advise in terms of the present capacities of the system in coping with

lon;er-term goals. Knowing that there will be an increase in the demands

made on one area of education five years from hence means that

preparation has to be made for it now. The training of staff, the

provision of buildings and the development of materials or equipment

are processes that involve forward planning and a failure to recognize

77.

this will mean that the administrator has not carried out his duty

as adviser.

Once a policy has been approved by the legislature, it is the

responsibility of the administrator to see that it works, regardless

of the advice he may have given to the Government earlier. Often

policies are not explicitly worded and so the administrator has an

obligation to interpret them in the manner which the Government would

expect. Where he is unsure of the Government's reaction then he has

an obligation to consult the Minister in whose name he is implementing

policy.

Whether in the role of professional adviser or professional manager,

the educational administrator is an intermediary between those

supplying the resources and those making use of them. In this position

he expected to safeguard the rights of both. Obviously there will be

occasions when there is a clash of interests. Probably in situations

where it is impossible to apply legal provisions and/or a moral

principle that will satisfactorily settle the question at issue, the

administrator will be obliged to follow the procedure that is adopted

in a court of law where there are competing interests and where there

is a need to reach a decision that nevertheless is acceptable to the

parties in question, despite the fact that such a decision involves a

choice between moral values rather than the application of some single

moral principle. The judge, who presides over such a case, is expected

to consider the interests of all who will be affected; and in

reaching his decision he is expected to apply some acceptable general

principle as a reasoned basis for his verdict. Thus, whilst it may

not be possible to demonstrate that a judicial decision is uniquely

correct it may be acceptable still "as the reasoned product of

78. 28

informed impartial choice."

Central to the provision of education in Australia is the

recognition that each person has a moral right to receive instruction

in the skills permitting his development as a rational, autonomous

adult. The dependency of the child, the complexity of the task in

organizing an efficient system to fulfil educational obligations and

the need for someone to be accountable for the manner in which

resources are used mean that the career administrator is the

professional guardian for a whole generation. His work involves the

translation of the ethics of a community into reality by finding a

balance between the complex patterns of obligations and expectations

vying with each other. He can never escape from the fact th2t the

whole concept of rights is ineffectual without its due recognition by

others, and that the extent to which a child's right to education is

fulfilled will be largely the result of his professional efforts.

Notes and References

1. Clark, G.M.H. Select Documents in Australian History 1851-1900 p. 700. (Victoria: The Education Act, 1872. 36 Vic. No. 477; South Australia: The Education Act, 1875. 38 and 39 Vic. No. 11; Queensland: The State Education Act, 1875. 39 Vic. No. 11; New South Wales: Public Instruction Act of 1880. 43 Vic. No. 23; Tasmania: The Education Act, 1885. 49 Vic. No. 15; Western Australia: The Elementary Education Act, 1871, 35 Vic. No. 14., and assisted Schools Abolition Act, 1895. 59 Vic. No. 27.)

2. Locke, J., op. cit., (2.6.57), pp. 347-8.

3. Ibid., (2.6.67), pp. 355-6. "The Nourishment and Education of their children is a charge "so incumbent on Parents for their children's good, that nothing can absolve them from taking care

of it." (2.6.65), pp. 352-3. The father, in his role of guardian,

has power over his children "which goes along with their Nourishment and Education to which it is inseparably annexed, and it belongs as much to the Foster Father of the exposed child, as to the Natural Father of another."

4. Ibid., (I.9.90), p. 245.

79.

Notes and References

5. Ibid., (2.6.69), p.356.

6. Ibid., (I.9.90), p.245.

7. Mill, J. s.' op. cit., p.44.

B. Ibid., p.11-12.

9. Ibid., p.30.

1 D. Ibid., p. 7.

1 1 . Ibid., p.48.

12. Ibid., p.62.

13. Ibid., p.63. "A general State education is a mere contrivance for moulding people to be exactly like one another: and as the mould in which it casts them is that which pleases the predominant power in the government it establishes a despotism over the mind, leading by natural tendency to over the body."

14. Ibid., p.62.

15. Ibid., p.68.

16. Discrimination in education was treated more fully in the Convention Against Discrimination in Education, General Conference of UNESCO, 14th December, 196C.

17. McCloskey, H., The Rights of the Parent, in Fensham, P., (ed),

"Rights and Inequality in Australian Education", p.9.

18. Ibid., p.9.

19. Jecks, D., The 197D's and 198D's - Some Administrative Issues, in Australian Journal of Education, Vol. 13, No. 3, 1969, p.308.

20. The affirmed purposes of education in New South Wales Secondary Schools can be read in Aims of Secondary Education in N.S.W The following extract from page 11 is typical alsQ of the goals of other similar institutions:-"The central aim of education, which, with home and community, the school pursues. is to guide individual development in the context of society through recognizable stages of development towards perceptive understanding, mature judgement, responsive self-direction and moral autonomy."

21. Hart, H., The Concept of Law, p.155.

22. Olafson, F., Rights and Duties in Educution, in Doyle (ed) "Jedgements in Education", p.195.

BO.

Notes and References

23. The Sydney Morning Herald, 12/8/76, No. 43, 261, p.2.

24. Ibid., p.6.

25. Beeby, C.E., Planning and the Educational Administrator, p.21.

26. See next section for details.

27. Beeby, C.E., op. cit., p.24.

28. Hart, H.L.A., op. cit., p.200.

81 •

CHAPTER 4

EDUCATION, LAW AND THE CHILD

In practical terms the realization of a child's right to education

takes place within the framework established by the legal recognition of

the validity of the claim. Consequently, to determine in a legal sense

the rights and duties associated with education in Australia attention

needs to be given to the exercise of legislative, administrative and

judicial power with respect to education.

Because education was not a power specifically vested with the

Commonwealth by the drafters of the Constitution, there has been a

tendency to regard it as a State responsibility or power. Admittedly,

within the six Australian states public instruction is an area

administered under a panoply of statutes enacted by each of the State

legislatures, but since World War II Federal enactments have played an

increasingly important part in the provision of education in Australia.

Similarly judgements given by both Federal and State courts are important

in determining the validity of legislative and executive action

pertaining to education. Judicial decisions provide precedents

regulating the manner in which education is to be given and defining

the nature of the relationship existing among those involved in the process,

whether as administrators, instructors or students. Thus, whilst the

child's legal right to education is a right created by statutory law and

whilst the validity of the child's claim to education is recognized by

Australian Law, the particular series of enactments defining the specific

educational rights of a given child will depend largely, though not

exclusively, on the State or Territory of which the child is a resident.

For this reason it is misleading to speak of education as being a power

belonging only to the States. Rather, the Federal and State Parliaments

82.

exercise concurrent powers, and the legal guarantees and stipulations

defining the nature of the child's entitlement to education are found

in legislation passed by the seven parliaments in Australia.

Unlike the Commonwealth of Australia Constitution Act which strictly

defines the powersof the Federal Government, the Constitutions of each

of the six States confer general legislative powers. For example, the

relevant section of the New South Wales Constitution reads:-

"The Legislature shall, subject to the provisions of the Commonwealth

of Australia Constitution Act, have power to make laws for the peace,

welfare and good government of New South Wales in all cases whatsoever."

Public education falls under that general legislative mantle.

In each Australian State the responsibility for framing educational

policy and having it implemented lies with the Minister for Education,

who is a member of State Cabinet. "The administrative authority in each

State is a department of education established by an Act of Parliament

and headed by a Director General. The education departments are divided

into divisions administering primary, secondary and technical education.

(In New South Wales there is a separate Department of Technical

Education; im South Australia the Department of Further Education is

responsible for technical education.) Other divisions are responsible

for such matters as teacher recruitment and in-service training ...

curriculum and research, education of .atypical children, physical 2

education, psychology and guidance." The basic organizational pattern

of parliamentary responsibility, mininsterial accountability and

delegated authority to a government department was established by the

Education Acts passed by the six colonies prior to federation. These

early Acts are the first in Australia to acknowledge that every child

possesses a legal right to education and that it is the duty of the

83.

community to ensure that the means for fulfilling that legal right

are available to the child. At the same time because public funds were

being used the legislatures created educational systems that were

integrated into the States' machinery of government. Today education 3

is compulsory for a prescribed period of time. (In all States a

child must begin his primary schooling at six years of age and legally

he is permitted to leave school in New South Wales, Victoria, Queensland

and South Australia when he has reached fifteen years of age. In

Western Australia he can leave school the year in which he turns 4

fifteen and in Tasmania he can leave once he is sixteen.) The

significance of the laws enforcing schooling is that they impose

obligations on parents or guardians to ensure that each child will

have the opportunity to learn those skills necessary for him to maintain

himself in the community. Thus, not only is the child's legal right

to education found in the legal code of each State but that right is

perceived as creating legal duties which, if ignored, can bring 5

sanctions against the transgression.

Although Australian parents have the legal right to choose between

sending their child to a Government (or public) primary and secondary

school, or to a non-Government (priv2te or independent) school only 6

twenty per cent of Australian children attend the latter. However,

despite the autonomy implied by the terms 'non-Government' and

'independent' such schools are not without the influence of the State

Minister of Education. Each State authority has the legal duty of

ensuring that the instruction offered is 'regular and efficient' and

that the buildings and facilities are suitable. Where any of these 7

conditions are not present then the Minister can close the school.

(Since inspectors from the State systems also examine the Government

84.

administered schools the role of the State in this matter is one of

guaranteeing a basic standard of educational provision for the children

in the State.) Another important area of influence is that of curricula

offered by the schools. The courses of instruction found in Government

schools are determined by the State Departments of Education in

accordance with Ministerial Regulations and/or an Act of Parliament.

Both kinds of schools prepare students for the same secondary public

examinations and hence the non-Government schools do not differ markedly

from the Government schools in terms of the courses stucied by their

pupils. Moreover the private educational authorities do have

representatives on the State Departmental boards that determine the 8

curricula for public examinations.

When one turns to the area of post-secondary education the statutary

provisions recognize that the individual has the right to develop his

abilities as far as he wished. However his entry to post-secondary

institutions is not automatic. There are now eighteen universities in

Australia and all but the Australian National University have been

established by an Act of the State Parliament. The Acts confer

autonomous status on the universities and provide for their

administration by their own Council or Senate. Each university sets

its matriculation regulations which intending students must satisfy if

they wish to be considered for enrolment. (Matriculation is not in

itself a guarantee that a student will be admitted to a university he

has sought a position in.) The other major tertiary institutions

providing vocational training are the Colleges of Advanced Education.

Again selection depends on a student's performance in the final

secondary examination. Trade courses are provided by the State

administered technical colleges but here a student need not have

85.

completed junior secondary schooling to gain admission.

Finance for both establishing and maintaing the wherewithal for 9

education at all levels comes increasingly from Government. Those

institutions under the direction of State Departments of Education are

financed from State revenue and loan raising. Colleges of Advanced

Education and universities are now the financial responsibility of the

Australian Government. However both State and Federal Governments

provide financial assistance for the 'independent' educational

institutions. The national government also makes special purpose

grants to the States.

Although the States have long been associated with fulfilling the

individual's legal right to education, it is only in the last thirty-

five years that the Australian Government has become actively involved

in the area. This is not to say that the national government lacked

the power to make laws pertaining to education had it so desired.

For Federal legislation to be valid it must be framed in such a way

that its provisions can be linked to one or more of the heads of power

attributed to the Commonwealth by the Constitution. Where this

reouirement is not met, because there is not a definite connection

between the subject matter of an Act and the section of the Constitution

it seeks to use as its legislative head, then the Act is invalid.

Howev.er, as Ca.mpbell and Whitmore point out, if a "Federal Act can be

characterized as one with respect to one or more of the enumerated

heads of federal legislative powers it matters not that it could also

be classified as a law with respect to a subject not within federal

10 power." This means it is possible for the Federal Government to pass

an Act where the mischief it seeks to remedy appears to have little in

common with the legislative head to which it is linked. Nevertheless

the enactment may be quite valid. The Feder0l code of aviation law

is an example of this and so are some Federal Acts dealing with

education.

86.

The Commonwealth of Australia Constitution Act conferred on the

Federal Parliament a limited number of exclusive powers (e.g. defence,

currency, customs and excise, the government of Federal territories

and control of the Federal Public Service.) The powers defined under

Section 51 are, for the most part, exercised concurrently by the

Commonwealth and the States, although Section 109 provided that where

there is inconsistency between a State and Commonwealth law then the

Commonwealth law is to prevail and the State law is, to the extent of

the inconsistency, invalid. Under Section 107 powers which are not

either vested exclusively with the Federal Parliament or held 1 1

concurrently by the States and the Commonwelath remain with the States.

The Constitution makes no reference to education but the Australian

Government has passed legislation which relates to education and which

has not been cha1lenged as an unconstitutional exercise of power.

Rather the existence of State and Federal enactments illustrates

Sawer's view that on the whole the two sets of legislation harmoniously

supplement each other "like common law and equity in the English system."

In 1901, when the first national parliament met, to say that a child

had a legal right to 8ducation was to acknowledge his right to an

elementary education in numeracy and literacy. Generally it was felt

this was a matter being executed satisfactorily by the six State

legislatures. However, as the century progressed, the right to

education came to mean more than just primary schooling. The first

indication that the Federal legislature was willing to exercise its

powers in the a~ea of public education came with the passing of child

endowment legislation in 1941. The Bill had the support of members

1 2

87.

from both the Government and Opposition and although the allowances

to be paid were for "the maintenance, training and advancement of the 1 3

child", the politicians and the electorate regarded the endowment

money as being, in part, an educational allowance. Today, it is clear

"that in the decade to 1945 education had become a little less peripheral

in the affairs of the national Parliament.Legislation such as the Youth

Employment Act, the National Fitness Act, the Child Endowment Act, and

the Regulations under the National Security Act had involved the

Commonwealth in decision-making on education. While the non-labour

parties maintained their distance from this 'States responsibility',

there was a consistent call from the labour ranks for federal

involvement in, and even control of, education. There were similar 14

calls from outside the Parliament too."

In 1945 the Education Act was passed. This legislation sought to

enable the national government to award university scholarships to

students throughout Australia. Like the Child Endowment Act it was

supportive of the child and did not seek to modify the educational

systems that had developed under the auspices of the State legislatures.

However, in 1945 the High Court handed down a judgement that was to

have an impact on the involvement of the national parliament in

education.

In Attorney-General for Victoria (ex rel. Dale) V The Commonwealth

the High Court ruled that provisions under the Pharmaceutical Benefits

Act, 1944, were invalid. This Act had provided for free medicine and

had used Section 81 (the appropriation power) of the Constitution as

the legislative power to enable it to do this. If pharmaceutical

benefits was not a purpose for which the Commonwealth could appropriate

money then the validity of other Acts using that head of power was

88.

also in doubt. In particular it was felt the Child Endowment Act and

the Education Act may have been unconstitutional. The Chi fley

Government sought a Constitutional amendment to give it the power to

provide social services, and at the referendum held on the 28th

September, 1946, the electors in the six States voted in favour of the

provisions found in the Constitution Alteration (Social Services) Bill.

(The proposed amendment was carried by an absolute majority, 54.39% of 1 6

the formal votes cast being 'yes' votes.) As a result, placitum

(xxiiiA) was inserted to Section 51 of the Constitution. Under the

"benefits to students" provision the Education Act, 1945 was validated,

and the Federal legislature now had a legislative head of power which

it could use in the future for similar statutes. Moreover, the gnomic

characteristic of the phrase appears to have been intentional. Arthur

Caldwell, a member of the 1946 Chifley cabinet, has described how after

writing the "benefits to students" provision into the amendment Dr.

Evatt turned to Chifley and said, "Well, benefits to students means

everything. It's not limited. A benefit is a benefit and students are 1 7

students."

To date the High Court has not had to interpret "benefits to students",

but it would appear that Evattt was right: 1 8

the phrase ~oes have very

wide reference. Students can refer to any person enrolled at an

educational institution, whether a pre-school kindergarten or a university.

Similarly benefits can imply an allowance paid either to a student or

his guardian, or assistance given to an educational authority to improve

the facilities available to students. It is inte~esting to note that

when the Whitlam Government established the Schools Commission the

Constitutional authority for the legislation was placitum (xxiiiA).

Whilst Section 51 (xxiiiA) contains the most explicit educational

19

89.

power found in the Constitution, other sections have been used for

legislation dealing with education. Section 122 gives the Commonwealth

the exclusive power to make laws for the government of territories.

Thus, in Federal territories public education is an area over which it

has legislative authority. The Australian National University,

Canberra, was established by an Act of the Federal Parliament and, like

the State universities, is an autonomous body receiving most of its

funds from the Australian Government. Until 1974 the school system in

the Australian Capital Territory was administered by the Federal

Government in co-operation with the New South Wales Government and that

in the Northern Territory with the co-operation of South Australia.

However, now that the Australian Government has assumed full

responsibility for the administration of public education and the

provision of educational facilities for students resident in Australian

Territories, it is perfor~ing the same function as the six State

Governments do with regard to fulfilling the legal right to education

possessed by students resident in each of the States.

The State Governments lost their power to impose income tax in 1942

and instead receive most of their revenue from the Federal Government.

This development, plus the increased demand for services such as

education during the 19SD's and 1960 1 s, meant that State Governments

often were unable to discharge their obligations without the aid of

Federal grants. The dissatisfaction at the effect this had on the

funding of education, and on the quality of the service provided, is

typified by the following comment:-

"Our traditional ad hoe piecemeal approach has to go. Australian

governments must bring to an end the over-played political game

wherein the States bear the major responsibility but lack sufficient

90.

resources and the Commonwealth has the resources but disclaims any

major responsibility for providing educational services. Already

this has proved a costly game which has served to sell a whole 21

generation of Australians short."

The transition from regarding education as a legislative responsibility

exclusive to the States to viewing it as one that is shared by State

and Commonwealth is associated with the two decades following World

War II. The first area of joint action was that of higher education,

and the constitutional head of power used was Section 96. By this

provision financial assistance can be given to the States through

direct grants. Moreover the Australian Parliament can define the terms

and conditions associated with such gr~nts, although attention needs

to be given to Section 99 which specifies that the Commonwealth is not

to give preference to one State at the expense of another State. In

November, 1951, the States Grants (Universities) Bill was intcoduced

into Federal Partiament. Later Menzies, who was Prime Minister in 1951,

was to explain:

"The bill was a 'States Grants Bill' because Section 96 of the

Commonwealth Constitution, which empowers the Commonwealth to make

grants to the States on such terms and conditions as Parliament thinks

fit, provided, constitutionally our card of entry into the general 22

universities field."

Under this Act of 1951 the Commonwealth agreed to provide matching

grants to the State universities. However, it would be wrong to imply

that this was the first time the Federal Parliament had made financial

grants to universities. In the financial year 1936-37 a grant of 23

$30,000 was made for the support of research, and the Commonwealth

later became more actively involved in university development and

91.

finance because of World War II. Under a National Security Regulation

of 1943 a Universities Commission was established to implement the

scheme of scholarships provided by the Regulation and to supervise the

quota scheme imposed on certain faculties e.g. medecine, engineering,

veterinary science and agriculture. Later the scheme was extended to

technical education too. The authority to co-ordinate manpower and

resources with national needs came ultimately from the defence power.

After the war ex-servicemen training schemes continued to involve the 25

Commonwealth in education. It was a combination of rapidly rising

costs and a decline in enrolments by ex-servicemen that led to the

24

1950 Report of the Commonwealth Mills Committee on Needs of Universities. 26

The States Grants (Universities) Act followed. This legislation

was renewed annually until 1959 when a triennial system of reviews

and grants was established. In 1959 the Australian Universities

Commission was formed to assess the needs of the institutions, and to

recommend the level of support to be given to each. Finally, on 1st

January, 1974, the Australian Government assumed full financial

responsibility for all tertiary education.

Use of Section 96 with regard to education is not confined to

Commonwealth support for higher education. For more than a decade the

Australian Government has made grants to the States for improving

educational facilities in both Government and non-Government schools.

In particular grants have been made for capital expenditure on school

Science laboratories and school libraries. The States Grants

27

(Independent Schools) Act, 1972, ~uthorised payments to the States, who

then passed them on to the non-Government schools, of contributions to

school running costs at rates of $50 per primary pupil and $68 per 28

secondary pupil per year. (This system of uniform per capita grants

92.

to non-Government schools was replaced in 1974 by a system of grants

related to the needs of such schools.) The special needs of minority

groups or disadvantage groups also receive attention.

Taken together the provisions of Section 96 anc of Section 51

(xxiiix) have given the Australian Government the authority to

legislate on a wide range of matters relating to the fulfillment of

the child's legal right to education. However there would appear to

be two other Sections of the constitution which probably could be used

with regard to education. Section 51 (xxxix) gives the Commonwealth

the power to make laws with respect to matters incidental to the

execution of any power vested by the Constitution in the Parliament, or

in the Federal Judicature or in any department or officer of the

Commonwealth. The external affairs power, found in Section 51 (xxix)

enables the central government to make laws for Australia so as to

implement international agreements even though the Commonwealth would

otherwise not have the authority to legislate on the matter contained

in the agreement. The High Court case that affirms this right is 29

RV Burgess, Ex parte Henry (1936). (The one international agreement

was the 1919 Paris Convention on Aerial Navigation). Since Australia

has been a signatory to agreements on education as part of her

membership of organizations such as UNESCO, it would seem that the

external affairs power gives the Federal Parliament the authority to

pass legislation enabling the implementation of such agreements

throughout the country.

From the provisions of both the Federal and State Constitutions it

is clear that education is an area where the legislatures have authority

to make valid laws to facilitate the realization of the child's moral

right to education. However, once legislation has been passed the

onus for its application rests with the statutory bodies established

93.

to administer the services for the benefit of the public. It was

noted earlier that the actions of such bodies are performed in the

name of the Minister who is responsible to Parliament. However it is

obvious that not Parliament, nor the Minister, nor even the most senior

professional administrator, is able to control and supervise all acts

of administration. As a recent article in The Australian pointed out

eoucation is Australia's biggest industry. In 1974-75, "145,006 full-

time and 15,602 part-time teachers were employed in Australian schools,

Sta~e and private. The total number of students was 2,919,280, which

means that almost a quarter of our population is directly involved in 30

the education industry." Thus, to a very real extent, the actual

educational rights of the child and the duties that others have towards

him are a reflection of the way in which those with delegated authority

exercise their powers in implementing legislation. The danger is that

within the machinery of administrative decision-making and the large

networks of institutions existing to meet the obligation of educating

all children, the legal entitlements of an individual can become

secondary to the smooth running of the entire system.

For a minimum of at least ten years the daily life of a child in

Australia is directly affected by the legislation making education

compulsory. Both legislation and statutory regulations define the care

that is owed to the child whilst at school and define the obligations

of those involved in the provision of instruction. However accidents

happen, mistakes are made and sometimes the best interests of the

individual do not appear to be acted upon. It is for these reasons

that attention will be given now to judicial decisions that are

significant in their examination of the relationship existing between

the child and the educational institution. The judgements handed

94.

down have implications beyond the specific dispute because they

influence in the formation of the legal rights of the child and of

those working as educators, as well as in the formation of legal duties

associated with providing instruction.

Probably the greatest number of cases associated with education are

tort cases where the child, through his parents, seeks compensation for

injuries received at school. However. although it has been established

that during school hours the child has the right to a safe environment,

when dealing with the legal relationship that exists between the pupil

and the teacher the courts have varied in their definitions of teacher

liability.

In New South Wales, the case that established the duty of the

teacher to take due care of the pupil, and the liability of that

teacher if he was negligent, was Hole V Williams (1910). Doyle,

headmaster of West Marrickville Public School, was preparing a chemistry

lesson and sent a boy to fetch a tumbler from another room. The glass

contained dilute sulphuric acid but Doyle omitted to tell this to the

boy, who threw the contents out the window. The plaintiff received

some of the acid in his eye and sued the Crown for damages for the

negligence of the schoolmaster. The Supreme Court of New South Wales

held that there was evidence of negligence on the part of Doyle and

also held that the government was not liable. The Crown was freed

from any obligation towards the boy b~cause, in the opinion of the

Court, a teacher engaged in his function of imparting instruction was

not the deputy, servant or agent of the Government in the sense

necessary to make it dCtionable at the suit of a pupil for his defaults.

In his judgement, the Chief Justice said that there was no statutory

definition of the duties of a teacher employed in a school under the

95.

Public Instruction Act of 1880 and that any regulations made under the

Act could not be regarded as commands directed by a master to his

servant. Consequently, "the obligations of the teacher in the

selection of his methods of tuition and discipline seem to be governed

by the rules of the common law, under which he simply exercises an 32

authority delegated to him by the parents of his pupils." Street, J.,

in agreeing with the Chief Justice that the teacher held delegated

authority from the parents and not the Crown, added: "The fact that

the Legislature has converted the moral obligation of educating his

children which formerly rested on a parent, into a legal obligation 33

does not, in my opinion, materially affect the matter."

1964 the Hole v Williams (1910) finding was overruled. 34

However, in

In Ramsay v Larsen (1964) it was established that the authority of

a State school teacher over a pupil is derived from the Crown, and not

by delegation from the parent. Larsen, a school boy aged twelve, was

injured after falling from a tree. He had climbed the tree in

disobedience of the teacher, but the teacher then asked the boy to pass

a rope over the branch that was above the one on which the boy stood,

so that the keys that the boy had been trying to retrieve could be

knocked down. Having accomplished the teacher's request, the boy was

returming to his former position when he fell. Despite a finding of

contributory negligence on the boy's part, the High Court of Australia

found that the Government of New South Wales was liable for the

negligence of a school teacher in its service which results in injury

to a pupil in his charge. In his written judgement, McTiernan J.,

said, "I think that nothing ought to be said which would derogate

from so salutary a principle as that a school or a teacher exercises a

quasi-parental authority over the pupils while they are at school or

96.

in the care of the teacher ... However, in my view a teacher employed

by the Department of Education in a State School is in loco parentis 35

only in virtue of his appointment by the Crown as a teacher."

Kitto J., after pointing out that the Claims Against the Government

~nd Crown Suits Act, 1912 subjects the New South Wales Government to

the same liability in tort as if it were a subject, then said: "In

the absence of a special arrangement to the contrary, it is, I think,

the necessary inference of fact from the acceptance of a child as a

pupil by a school authority, whether the authority be a Government or

a corporation or an individual, that the school authority undertakes

not only to employ proper staff but to give the child reasonable care.

The particular teacher who performs the tasks of care and tuition in a

State School therefore performs them as a civil servant of the Crown 36

and not on his own account only."

The duty of care arising from the relationship between the pupil

and teacher, and the liability of the employing authority when a case

of neglect of legal duty results in injury has been upheld in cases

subsequent to the High Court ruling in Ramsay v Larsen. In Richards v 32

Victoria (1969) the Victorian Department of Education was held

liable when a sixteen year old boy received injuries (resulting in

spastic paralysis) during a fight that occurred in a lesson. There

was evidence that the teacher, although present, took no steps to

prevent the altercation and that this failure on the teacher's part

was a breach of his duty of care that he owed to the plaintiff. In

Victoria v Bryar (1970) the High Court again found in favour of a child

injured in class. In this case a teenage boy sustained an eye injury

after being hit by a paper pellet fired from an elastic band by

another pupil. It was found that the teacher's failure to maintain

97.

discipline was in causal relationship with the injury.

The four cases mentioned, where the character and extent of the duty

owed by a school teacher to a pupil to take reasonable care for the

safety of the pupil, and where the question of teacher and/or Crown

liability has been raised, all deal with injuries that have occurred 39

during school hours. However, in Geyer v Downs and Another

injury occurred in the playground before school commenced.

the

Geyer, a

pupil in fifth class when the accident happened in 1966, was hit by a

softball bat as she was going to her classroom at approximately 8.50 A.M.

As a result she sustained serious brain injuries. A case was brought

against the Crown and the headmaster of the school claiming that there

was a duty to supervise the children playing in the school yard at

that time, and the breach of the duty was the proximate cause of the 40

injury. After a jury found in favour of the plaintiff, the

defendants lodged an appeal which was heard by the New South Wales

Supreme Court. Ey majority the verdict of the jury was set aside.

(The case is now to be heard by the High Court.)

In finding in favour of the defendants at the Appeal, Hutley, J.A.,

said, "The mere presence of the pupil in the school yard is not

sufficient to establish the special quasi parental obligation of the

teacher, otherwise the child who entered early or stayed late would

have to be supervised - this would present an impossible burden. Nor

do I think the fact that there may be a considerable number present

makes any difference. A large congregation of children at an early

hour cannot increase the responsibility of the Crown - pupils cannot

force themselves on educational authorities. The responsibility of

the Crown begins when the child is accepted as a pupil or when the

child reports as a pupil pursuant to compulsion." However, in his

98.

dissenting judgement, Mahoney J. A., argues that the demarcation of a

duty of care is not simply coterminus with the period of time during

which a child is required by law to be at the school. Whatever the

decision is that is reached by the High Court it will have important

implications for all schools. At present though it would appear that

the duty of the Crown begins at 9.00 am, or at whatever time the normal

school day commences, and until that time the duty of care rests with

the parents of the child.

The legal duty to provide a safe environment within the school 41

grounds was emphasized again in Ramsay v Appel (1972). Appel, a six

year old pupil at a New South Wales school where building work was

being carried out by the Department of Public Works, was in the habit

of playing after school in the school grounds. He was hit in the eye

by a ball moulded out of slaked lime and lost the sight of the eye as

a rssult of this. The jury entered a verdict for the boy on a count

based on a breach of duty by the Government as occupier to the boy as

a licensee and on a count based on the negligence of the Government by

its servants and agents in the performance of work. (In this case the

fact that the deputy Headmaster had said it was all right for the boys

to play was taken as their having the permission of the Government to

be there. Account was also taken of the fact that to a boy of six,

slaked lime constituted a concealed danger.)

From the cases viewed thus far, it can be seen that the child's

right to safety and security impose duties on an educational institution

to ensure that reasonable care is taken of that child whilst he is at

that institution. (In the case Geyer v Downs and Another the moot

is at what time the school assumes that duty.) Because a child is not

always to foresee the full extent of risk that might be present in some

99.

of his actions, it is the responsibility of the teacher to restrain

the child from activities that are threatening to the well-being of

the child and to prevent children from inflicting injury on each other.

Thus in Ramsay v Larsen (1964) the previous negligent act of the pupil

in climbing the tree was immaterial to the subsequent risk the boy was

exposed to in order to carry out the teacher's instructions. Similarly

the failure of a teacher to fulfil his legal obligation to maintain

order within his class and a teacher's failure to intervene in a fight

between pupils were seen as acts of negligence in Richards v Victoria

(1969) and in Victoria v Bryar (1970) because the element of risk the

boys were exposed to was forseeable to an adult. The child's right

to a safe physical environment within the school yard is illustrated

by Ramsay v Appel (1972). Neither the school authorities nor the

builders took sufficient care to protect the child despite their

knowing that slaked lime was dangerous. The judicature is adamant

that the teacher has a duty of care to his pupil and, if one follows

the exposition of that duty by the High Court in Ramsay v Larsen, the

standard required during school hours is a duty to take "such precautions

for his (i.e. the pupil's) safety on the occasion in question as a 42

reasonable parent would h2ve taken in the circumstances." However,

to speak of education is to speak of more than a legal duty of care.

When one attributes a right, one also raises issues related to the

manner in which that right is to be fulfilled. If the child possesses

a right to education, who is to determine the content of the instruction?

And does he determine when he is to leave school, or does someone else

do that? Are records of his academic performance confidential unless

he chooses to made them known to people other than his teachers and

parents? Can he be punished for misdemeanours at school? Does he, or

100.

do his parents, have the right to select the educational institution

he will attend? The "answers" to most of these questions can be found

in statutory provisions and in customary practices associated with

public educational systems. However, in the century of compulsory

education in Australia the validity of the Acts themselves and the

appropriateness of their interpretation have not often been considered

by the courts. For this reason those judgements that have been reached

are significant for all people engaged in the provision of education.

The right of parents to choose the school their child will attend

was considered by a Full Court sitting of the New South Wales Supreme

Court in Ex parte Wilkes: Re Minister for Education and Ex parte 43

Cornford: Re Minister for Education (1961 ). The parents of three

children attending Beecroft Public School sought writs of mandamus to

command the Minister of Education and others to allow the children to

remain at Beecroft Public School and not attend another school which

had been specified by the Minister. The court held that a writ of

mandamus goes to compel the performance of a duty, not simply to enforce

a right, and that there was no right given to parents by the Public

Instruction (Amendment) Act 1916-1956 of an unfettered selection of

schools which their children may attend, nor is there any right given

of continued and uninterrupted attendance at any given school. In

particular Section 14 of the Public Instruction Act (which says that

a child shall go to a public or to a certified school) and Section 17

of the 1916 Act (which says that the Minister may refuse admission of

any child to a State school if there is accommodation in another State

school within the prescribed distance of the child's home) were treated.

Moreover, it was pointed out in the written judgement that it "seems

n2tural in Acts of this type to imply a permission without creating a

101 •

right; and the recognition of a permission cannot readily be converted

to a right which handicaps or partially prevents the fulfilment of the

overriding objects of the Acts. The duty of establishing public

schools to service a rapidly growing community must carry with it

power to do things (not inconsistent with the Acts) which are necessary 44

and convenient for performing that duty."

This finding that once a parent had elected to send his child to a

Public School then that parent was bound by the decisions of the

Minister as to the particular school the child was to attend was 45

reaffirmed in Morris v Minister for Education. An application by a

mother to have her daughter admitted to Fort Street Girls' High School

was dismissed because the girl did not satisfy the admission

qualifications as determined by an Admission Committee within the New

South Wales Department of Education. Thus, whilst the child has a

legal right to education, the parental choice of institution is

limited. If the State system of education is selected then the parents

are bound by the decisions of the State as it discharges its legal

obligations to all of its students.

The right to choose institutions at the post secondary level can be

illustrated with reference to one High Court Case. In R v University

of Sydney; Ex parte Drummond (1943), Drummond sought to gain entry to

the Faculty of Medicine or the Faculty of Dentistry for the 1943

academic year. At that time entry to the two faculties was governed

by a quota system imposed by the Universities Commission under

Regulations made in accordance with the National Security Act. 1939-40.

It was claimed that Drummond had matriculated and was therefore

entitled to be enrolled and admitted to either of the faculties and

that he had complied with the relevant by-laws of the university made

102.

under the University and University Colleges Act, 1900-1937. The

High Court ordered that Sydney University allow Drummond to matriculate.

However, the mandamus did not direct the University to enrol him and

whether a university has a legal duty to enrol a newly matriculated

student has not been decided by an Australian Court. Nevertheless,

it would appear that a university is free to exercise its powers and 47

perform its functions as it sees fit.

The authority of the Crown to exclude a child from a school in which

he has been a pupil was established very recently. 48

In McMahon v Buggy

and Others, ninety two years after schooling was made compulsory in

New South Wales, it was determin°d that the Minister has the discretion

to refuse to enrol a person over school leaving age at a secondary

school. Of particular importance is the interpretation of Section 6(a)

and (b) of the Public Instruction Act, 1880 (as amended). Mahoney J.,

ruled that Section 6(a) implies the statutory intention that the

Minister's obligation to accept children as pupils extends prima facie

to all children to whom a primary education can be given. However the

use of ''may" in Section 6(b) in relation to secondary schooling is

permissive and so the Minister here has a discretion as to the extent

to which the education beyond primary education level is to be given.

Moreover, once the socially (and legislatively) agreed minimum period

of education has been reached, "it would be under~tandable that, just

as the pupil then has to choose whether and to what extent he will

seek education further, the State should have the discretion to choose

whether and to what extent it will make available facilities for such 50

education." Since the boy in question had been enrolled in Year 11

and since the principle of natural justice was adhered to in the period

between notifying the boy and his mother of the contemplated expulsion

of the boy because of his activities at school and the official

notification that the boy would not be readmitted, the action of the 51

school authorities was deemed to be valid.

103.

If the Crown, in discharging its legal duty to provide the

wherewithal to meet those needs created by the child's legal right to

education, has the power to determine the school which the child will

attend and is able to exercise a right of determination in continuing

to give access to educational facilities to that child once the

compulsory age of attendance has been reached, it is not surprising

that it also exercises power in determining the content of education

by prescribing subjects that may be offered in schools. In Minister

for Education v Maunsell (1925) the Minister was seen to possess the

power of deciding whether a child is receiving efficient education,

and a court before whom such a matter was brought has the duty to 52

accept and act upon such certificate.

The issue of the confidentiality of Pupil Record Cards was raised in 53

McLean v Moore (1969). The case involved an action for damages

where it was claimed for the infant plaintiff that he had suffered

brain damage in the collision between the bicycle he was riding and a

car. The defendant issued a subpoena duces tecum addressed to the

Director of the Department of Education calling for the two record

cards of the boy. The Department claimed that they were privileged,

being confidential government documents. However it was held that

disclosure of the documents was not prejudicial to the public interest,

or that, in any event, any possibility of such prejudice was insufficient

to justify their being withheld.

Just as the law gives parents the power to discipline their

children, so teachers have the power to discipline pupils. A

104.

definition of that power was given in Smith v D'Byrnej Ex parte

D'Byrne (1894) and the attitude of the judicature was not really

altered since that ruling. A teacher can lawfully inflict "moderate

corporal punishment, commensurate with the offence, upon a scholar

capable of appreciating the punishment." If the teacher exceeds

those bounds "eit~er in the manner, the instrument or the quantity of

the punishment" then he is answerable at law. A second Queensland

case is significant in its treatment of corporal punishment and female

pupils. There is a customary belief that a teacher is restrained by

law from hitting a girl after the onset of puberty. However, in 55

King v Nichols (1939), although there was evidence of a breach of a

departmental regulation, it was found that a head teacher who had hit

a girl by way of correction was not guilty of an offence under the

criminal law.

In recent years there has been a degree of public debate about

corporal punishment, especially the use of the cane, in schools. As

a result most teachers are aware that they ~isk being charged with

assault if they hit a child. Moreover, in many schools now there is

a policy where the authority to administer such punishment is not

delegated to all teachers by the school principal. Nevertheless, at

law, any teacher retains the right to punish the child where it is

considered to be necessary if school discipline is to be maintained

or where the safety of other children is in question. The presence of

bruises after such punishment is not legal proof that it was excessive.

For some time it has been the habit of Departments of Education to

offer trainee teacher scholarships to a number of students who have

completed senior secondary school. This activity has involved a

contract between the education authority, the trainee teacher and a

guarantor whereby if the terms of the contract are broken, then the

trainee teacher and/or the guarantor are/is liable to pay a specified

sum of money to the education authority. In Minister for Education v

105.

Oxwell (1966) a female minor aged seventeen had entered such a contract

with the Western Australia Department of Education. By the terms of

the agreement the student and guarantor jointly agreed to pay to the

Minister damages and a refund of the total allowances received by her

if the student's course was terminated for any reason other than death,

disease or accident. The girl's course was terminated by her marriage,

and the girl and her father (the guarantor) contested the validity of

the contract. The court held that it was valid as the Minister had

power under the Education Act, 1928-1964 tc prescribe by regulation

the form of the contract. Nor could the contract be repudiated on the

grounds of the girl's minority. The Minister had the authority to

enter a binding contract with such a minor and in any case the contract

precluded the defence of infancy because it was for the benefit of the

girl.

The breadth of the powers associated with the Australian Parliaments

and their agents with respect to the realization of each child's legal

right to education is great. To the child they have an obligation to

provide facilities, staff and courses suitable for both realizing the

individual potential of the child and preparing him for his role as an

autonomous adult. To the community they owe the duty of seeing that

public money is not wasted and that the rising generation is in fact

receiving an education appropriate to the needs of the society in at

least the immediate future. However, although each Parliament frames

its legislation in accordance with the legislative powers conferred

on it by its Constitution, the vast educational systems that have

106.

resulted from the need to provide a minimum education for all children,

and the opportunity for continuing with academic or vocational training

for a large proportion of those children, have also meant that the

responsibility for implementation of that legislation creates an

onerous task for the administrator. The interpretation of statutes,

the forward planning, the co-ordination of needs and income, the

maintenance of adequate staffing and building ratios with enrolment

figures: these are some of the matters he is expected to deal with.

The danger is that in attempting to provide facilities that meet the

needs of the majority, or that present an expedient solution to a

current problem, the rights of the individual child may be lost.

Although the judicature has ruled on some aspects of educational

provision its definitions of the extent of administrative power has

been limited. It has established that the child has a right to a

safe environment whilst at school, that the employing authority is

responsible for the actions of its teachGrs, that the child's

entitlement to education is not limitless and, that educational

institutions also have rights with respect to standards of behaviour

and performance that they can expect from students and employees.

Perhaps the absence of any volume of legal precedent relating to the

provision of education in Australia is a reflection of a reluctance

amongst the community to instigate. litigation, or perhaps most

members of the public concur with the methods presently employed to

realize the child's legal right to education. Whatever the answer,

it is clear that much administrative practice continues to be the

result of custom or of habit. It is ironic therefore that it is the

professional administrator who is expected to be the champion of the

child, of the bureaucracy and of the people.

Notes and References

1. Constitution Act, 1902, S.5.

2. Official Year Book of Australia Nq~, 1973, p. 638.

3. In New South Wales the relevant Act is the Public Instruction (Amendment) Act, 1916-1973, S2A{c), 54(1) and S4(1A).

4. Official Year Book of Australia, No. 59, 1973, p. 638.

5. E.g., Public Instruction (Amendment) Act, 1916-1973, 54(2). Exemptions can be granted uncer the terms of 56.

6. In 1972 there was a total of 2,840,951 students in Australian schools (including the Northern Territory and the Australian Capital Territory). Of these 612,010 were at private schools and 2,228,941 were at public schools. There was a total of 9,552 schools (2,190 private and 7,362 public). Official Year Book of Australia, No. 59, 1973, p. 644.

107.

7. E.g., Public Instruction (Amendment) Act, 1916-1973, 510(4), 511.

8. In N.S.W. the Secondary Schools Board and the Board of Senior School Stu~ies, established by the Education Act, 1961-1973, determine the courses followed in secondary schools.

9. See Addenda for New South Wales and Australian Government allocations for education 1973.

10. Campbell, E., and Whitmore, H., op. cit., p. 440.

11. For a full description of the powers of the Federal Parliament see Commonwealth of Australia Constitution Act. See also Sawer, G., Australian Government Today, pp 36-38 and pp 6-8; and Lumb, R. D., The Constitutions of the Australian States, Chapter 5.

12. Sawer G., op. ci t., p. 8.

13. Child Endowment Act, No. 8. 1 1941, S. 20

14. Birch, I. K. F., Constitutional Responsibility for Educatio~ in Australia. pp 34-35.

15. The case is discussed by Birch, ibid, pp78-80. See also 71 C.L.R. 237-282

16. Crisp, L. F., Australian National Government, p. 47.

17. Birch, I. K. F., op. cit., p. 54.

18. Sir Robert Gordon Menzies felt the phrase was too general. He has described it as "somewhat sketchy and un~efined." (Menzies, The Measure of the Years, p. 83.)

19. Schools Commission Act, 1973.

108.

Notes and References

20. Australian National University Act, 1946-1975.

21. Fitzgerald, R. T., Economic Aspects in Fensham, P. J., op. cit., pp 123-124.

22. Menzies, Sir Robert Gordon, op. cit., p. 83.

23. Auchmuty. J. J., Commonwealth and State RelEtions in Hioher Education in Harman, G. S., and Selly Smith, C., (ed), "Australian Higher Education", p. 46.

24. Birch, I. K. F., op, cit., pp. 38-39.

25. Under the Commonwealth Reconstruction Training Scheme universities received subsidies from the Commonwealth Government which also paid the fees of students being educated by the Scheme.

26. Professor Mathews h2s seen the importance of the legislation in its establishing the pattern for future financial arrangements. "This pattern involved an independent examination of the financial needs of universities for both recurrent and capital purposes, together with a requirement whereby Commonwealth grants to the States for universities were dependent on matching state grants an~ fees". (Mathews, R., Financing Higher Education, in Harman and Selby Smith, op. cit., p. 87.)

27. See Addenda for further details.

28. Official Year Book of Australia, No. 59., 1973, p. 560.

29. 55 C.L.R. pp 608-696; Birch, I. K. F., op. cit., p66-67.

30. The Australian, Saturday, November 13, 1976. p. 23.

31. Hole v Williams (1910), 10 5.R. (N.5.W.) 638.

32. Ibid., at 648.

33. Ibid., at 657.

34. Ramsay v Larsen 111 C.L.R. 16.

35. Ibid., at 25.

36. Ibid., at 28.

37. Australian Annual Digest 1969, p. 119. See also Richards v V.R. 136 CVic. Sup. Ct. F.C.

38. The Australian Annual Digest 1970 1 p 159. See also Victoria v Bryar ( 1970) 44 A. L. J. R. 1 7 4 (H. C. )

39. Geyer v Dcwns and Another., C.L. 1378 of 1970, C.A. 189 of 1975.

109.

Notes and References

40. Regulation 383 made under the Public Service Act 1902 reads: "TeachErs are required to be on duty at their school& half an hour before school work begins in the morning and may be required to be present, if thought necessary by the teacher in charge of the school, for half an hour after the business of the school in the afternoon. Where special circumstances arise which, in the interests of the school, necessitate attendance beyond these hours, the attendance of the staff may be required." (This has now been replaced by the Teaching Service Act, 1970 and Section 26, 3(a) is almost identical in its wording.) Under Departmental Instruction 5.2.4.1 found in the Handbook the daily routine for all State schools is presented, and 5.2.4.1(ii) provides: "Normal hours may be varied only with the authority of the Director concerned an~ the variation shall be operative in accordance with the Director's approval or until such approval is withdrawn." The counsel for the plaintiff argued that since there were usually 150 or so pupils at school by 8.45 am then the headmaster should have exercised his special power under Reg. 383 to provide super­vision of the playground. Counsel for the defendants argued that the duty of supervision began at 9.00 AM., and that the plaintiff was not required to be at school before, at the earliest, 9.20 A.M., no duty of care arose until she was at school in compliance with the relevant statutory requirements.

41. The Australian Dioest 1972., p. 331; Ramsay v Appel (1972) 46 A.L.J.R. 510 (H.C.)

42. Ramsay v Larsen, op. cit., per Kitto at p. 27.

43. Ex parte Wilkes; Re Minister for Education. 1961 N.S.W. R. 989 Ex parte Cornford; Re Minister for Education 1961 N.S.W. R. 989

44. Ibid at p. 995.

45. Morris v Minister for Education, in the Supreme Court of New South Wales before Mclelland, C.J., in Eq., Thursday, 10th April, 1969.

46. R v The University of Sydney; Ex parte Drummond, 17 A.L.J. 103.

47. Ex parte Forster; Re University of Sydney (1963) S.R. (N.S.W.) deals with the University's power to exclude a student. Forster, a student in the Faculty of Econo~ics was deemed to have failed in 1961 and 1962. He sought a-writ of mandamus commanding the University to enrol him. However the Supreme Court of New South Wales held that the University had the power to preclude or defer any further participatior in a course of study of a student whose p2st performance in that course was unsatisfactory. Moreover the procedure relating to failure that was laid down by the Senate of the University was not invalid. Thus, the Court ruled that Forster had failed to establish that the University had a duty of admit him.

110.

Notes and References

48. McMahon v Buggy and Others, in the Supreme Court of New SoLth Wales Equity Division, No. 2093/72, before Mahoney, ~-, December 19 72.

49. The classes of schools that may be established and maintained uncer the Act are:-"S.6(a) Prim2ry Schocls in which the main object shall be to afford the best primary education to all children without sectarian or class distinction;

(b) Secondary Schools in which courses of study beyond the primary level may be given and pupils may be prepared for admission to institutions of higher vocational education.

50. Taken from the Judgment delivered by Mahoney, J.

51. The Handbook of the N.S.W. Department of Education contains regulations dealing with the procedure to be followed if a student is to be expelled. A school principal can impose a temporary suspension on a pupil. If the matter is not resolved it is referred to the District Inspector, the Area Director, the Director of Primary or Secondary Education, the Director General and ultimately the Minister. However, Departmental regulations are not statutes. Where a child is under fifteen a N.S.W. State School may expel him if his conduct is adversely affecting other children or if it is in the best interests of the school, but that child then attends another school.

52. The Australian Digest, Column 618

53. McLean v Moore (1969) 90 W.N. (Pt 1) (N.S.Ji.) 679 (N.S.W Sup. Ct., Begg J.)

54. Smith v O'Byrnej Ex pate O'Byrne (1894) 5 Q.L.J. 126. (Case was held in~ Q. Sup. Ct. F.C.)

55. King v Nichols (1939) 33 Q.J.P.(Mag. Case) 171

56. Minister for Education v Oxwell (1966) W.A.R. 39 (W.A. Sup. Ct. Vintine, J.)

111.

CHAPTER 5

RIGHTS, DUTIES AND EDUCATIONAL ADMINISTRATIO~

The assumption underlying the provision of education in Australia

is that trained personnel and the curricula devised by the various

Departments cif Education can facilitate in the mental and social

development of the child ~aced under the auspices of the school.

Moreover, the public systems that have emerged during the past century

are similar in their organization. Policy making ultimately is the

responsibility of Parliament 1 and the execution of policy is the

responsibility of the various Departments of Education who not only

interpret the relevant statutes but have 80th the power and authority

to make regulations to enable their implementation. The efficiency of

the Departments themselves is checked partly by other government

departments (e.g. the Public Service Board or the Auditor General's

Department are involved with the supervision of the New South Wales

Depc,rtment of Education) but the Departments of Education have practical

autonomy in discharging the obligations created by the child's legal

right to education. The decisions regarding how best that can be done

within the framework of current policy determine the nature of the

educational service provided at the local school level.

Education is administered within an hierarchical structure, and

typically eac~ position, the authority that position holds and the

responsibilities that the incumbent has are defined by regulation.

The person who is held to be generally accountable for the activities

of all employees of the Department of Education is the Director­

General. However, he delegates duties and responsibilities to

particular officers beneath him in the bureaucracy and they, in turn,

delegate to those occupying positions beneath them. What in fact

11 2.

happens is that a person at a specified administrative level

authorizes actions to be undertaken by those at lower levels. Thus,

communication of matters of policy usually involves information being

passed down through the various superordinate positions until it reaches

the headmaster in the school, the person who occupies the intermediate

position within the bureaucratic structur8. He then gives the

information to teachers, the subordinates in the system. As Trone

has noted, the ccmm~nication of policy is typically in the form of

instructions, almost all of which are prescriptive and very few are 1

pern;issive.

For the administrator at the top of the bureaucr~tic hierarchy the

task is providing, within the legal framework, the means for a child

to receive an education appropriate to his needs. Howl er, such an

administrator is dealing with the total system, or at least a very

large sector within that total. In this context the specific needs of

an individual are rarely known, as the administrator attempts to

achieve what is in the best interests of most. At law he may be

accountable for any misadventure that befalls a child but that

accountability is derived from the power and authority he has to

direct the behaviour of those beneath him. Similarly the administrator

occupying lower positions within the hierarchy is more likely to be

concerned with the practical issue of maintaining that part of the

educational system for which he has responsibility than with the

learning needs of a particular child. This is not to say that if his

attention is drawn to a specific case he will not attempt to fulfil

any special entitlement that the student has, but it is to recognize

that the administrator in discharging his function as manager is

likely to focus on the most efficient way to discharge the obligation

11 3 •

of providing educational facilities.

The educational policy that the administrator is expected to

implement is strongly influenced by government. Although any government

is reluctant usually to do anything that will be unpopular with the

electorate, it does act on the advice of top public servants, and when

fiscal policy is being determined the Department of Education is

consulted as to the needs of that particular service. If adequate

provisions are to be made, then it is vital that information about

building and staffing requirements, equipment needs, the results of

pedagogic research and any problems faced by particular educational

institutions because of the composition of their students does in fact

reach the top strata of the administrative bureaucracy. There is a

difference between having a right to education and beins compelled by

law to sit behind a desk in a classroom. So that the clain,s cf the

former are met, the administrator must be aware of his responsicility

to ensure that policy is decided with reference to the actual

requirements of the system.

Mention has been made of the principle of accountability that is

associated with the provision of education. The administrator, in his

professional capacity, is employed to supervise the manner in which

pLblic money is used to discharge what is helc to be the public's duty

to guarantee that each and every individual will receive the instruction

necessary for him to be able to take his place in the adult community.

However, to whom and for what is the educational administrator

accountable?

It was seen earlier thBt the individual's right to education is of

the same type as his moral riuht to nurture. Moreover, that education

is to be directed towards the development of the rational, autonomous

114.

individual who is able to exercise responsible choices, who has the

ability to both underst2nd and control his own impulses and who can

accommodate himself in the externLll world. Such is the ideal that

schools and other educational institutio~s aim towards. However, this

is not to say th~t they achieve it.

In frnc:teri r,s the de1Jelq,r.·1c:r,-t c:f self-reliant citizens, who also

Lnderstand the ways of Australian society, the school is expected to

impart to the child the skills of literacy and numeracy as well as the

2bility to reEson and to show consideration of others. But, children

v2.r:y greatly in terms of intelliuence, learning efficiency, motivation

and interest,;. It is, c'ifficult to mEet thE, rwecs of ,c;J.J chilC:ren,

an~ son1c~imes one would not be wrong in saying that not all schools try.

Where educational expectations are not being ~et, it might be easy to

blame the system, or the administrator of that system, but is it

reasonable to do so?

As an employee, the educational administrator is accountable to his

employer for the effects of any decision he has made. However, his

decision has an influence on teachers, children and parents, and so one

cannot limit his accountability to the Department of Education, or to

whatever educational authority is employing him. At the same time,

whilst his responsibilities towards his employer are defined by

regulations and/or by the function he is performing in the bureaucracy,

his relationships with the pupil and the parent, and even with the

teacher, is not as easy to determine. This is because the educational

expectations held by various groups within the community are not

identical. Nor is there agreement as to the most effective manner to

facilitate the cognitive development of the learner. It is not clear, I

therefore, the extent ~~i_c}i the administrator is accountable both

11 5.

for the process used in discharging the duties created by the child's

legal right to education and for the product which emerges from such

instruction.

Administrative decisions that result in a modification to, or

replacement of, existing provisions, whether in the area of buildings

and equipment, .) ~ .. , .,

or staffing and curricula, have an obvious affect b"f..: the

child or older student. At law the administrator can be held account-

able if an individual is injured through the negligence of those with

delegated authority to maintain a safe environment within the

educational institution. Similarly the administrator is responsible

for the staff servicing such an institution being properly trained.

However, there hcs not been a legal challenge which seeks to establish

the nature of the obligation that is gene1,lly attributed to him for

the provision of curricula that meet the needs of both the pupil and

society.

When one considers the output or product of the educational system

it is difficult again to determine the extent to which the administrator

can be held accountable. The end product reflects the interaction of

many variubles, only one of which is the school and its curricula.

The student's family and the degree to which they share the apparent

objectives of the school in which the child is enrolled, the values of

the community in which the school is located, the ambitions and ability

of the student himself: all these are important influences on the

progress a child makes whilst attending school. However, they are

areas over which the educational administrator has little impact and

as such his accountability is limited. Provided he has enabled the

student to avail himself of the opportunity to learn and to develop

his potential, and provided the skills taught by the school have

11 6.

relevance to the individual when he takes his place in the community

as a self-supporting person, then the administrator has fulfilled his

professional task. He cannot force a child to learn, nor can he

guarantee that the outcome of instruction will be the same for all

children.

Since public revenue is used in the support of education many feel

that the accountability of administrators should refer to the products

of the system. This belief was illustrated recently when the results

of a survey of literacy and numeracy levels among high school students

in New South Wales were released. It was found that 10% of all

fourteen year olds could not tell the time, 40% of all fourteen year

olds had extreme difficulty in reading, 20% of all school leavers had 2

a reading age of seven to ten years. 'ince reading and numeracy are

among the stated objectives of primary education the results were

presented by the media as if they proved beyond doubt that public

money was being squandered and that the educational system was failing to

discharge its duty to the public sector. What was not presented were the

parameters for the investigation and significant data relating to the

sample population. Nevertheless the principle that, apart from the

specific responsibilities that the administrator has in his role of

manager or planner, he possesses a general duty to the community to

safeguard its "investment" is important. It illustrates the need for

educational goals to be clearly defined, but not to be defined solely

by educators. The community, being made up of parents and taxpayers

who hold differing attitudes and represent broad interests, needs to

be able to share the objectives of the educational system. There may

not exist at present a "gulf of misunderstanding" between and/or

among educators, children, parents and citizens generally, but these

11 7.

groups of people do not always fully understand, let alone support,

one another. Until they define educational goals that are mutually

acceptable, the concept of accountability will remain imprecise in all

but the areas where the educational administrator is answerable at law

for his actions.

The largest single group of people directly involved in education

are children. Despite the statutory provisions making schooling

compulsory for a minimum of ten years, the dependency of the child

places obligations on others to guarantee that his right to education

will be realized. Since educational administration is concerned with

the establishment and maintenance of educational facilities, part of

the professional role of the administrator concerns fulfilling

entitlements that are brought into being by the child.

The administrator has a duty to support teachers so that the learning

situation that the child becomes part of is one where effective

instruction can occur. This duty of support involves making sure that

buildings are adequate to cope with the numbers of children enrolled

at the school, that equipment necessary for both class and individual

instruction is supplied,and that where problems arise because of the

special needs of a group within the school then specific provisions

are made to minimize the disadvantage that the learners face. However,

the duty of support is not confined to physical improvements to the

school. The administrator also has a duty to give assistance to the

teacher in curricula matters. This is especially so when new curricula

are introduced, or modifications are made to existing ones. Teachers

need to know how best to achieve the objectives of a curriculum, as

well as why those objectives are relevant to a child's development.

There is a need also to ensure that the community shares these aims

118.

with the school. Finally, teachers need to keep abreast with the

findings of educational research that are relevant to their areas of

specialization and to be aware of the application of such findings as

a means for improving the quality of education the child is receiving.

Again the support of the administration is required if the majority of

teachers are to be able to receive assistance in achieving further

professional development.

If the administrator has a duty to support teachers, he also has a

duty to assist pupils. Not only is the school responsible for

developing the intellectual capacity of the child but it also plays

an important role in the socialization of the child. Thus, the

administrator has a duty to ensure that a wide choice of activities,

catering for both the interests and abilities of the child, are

offered by the school so that the child does in fact have the

opportunity to develop his potential. Similarly where the comprehensive

school is unaole to discharge its duty to the child because of its

inability to meet his special needs, then the administrator has a

duty to provide an alternative which accommodates such a child. This

may be accomplished through establishing separate institutions (e.g.

schools for the gifted, or for the retarded, or for the physically

handicapped) where the curricula followed reflect the abilities of

the students and where buildings and equipment have been designed to

suit the needs of the particular group of learners.

In any school there are always children who are not reaching their

fullest potential because of some social factor. Sometimes the child

is disadvantaged in comparison to others because of family economic

hardship. Where this is the case then the administrator (who here is

likely to be the headmaster) has a duty towards that child. Within

119.

the school he is in a position to give support such as supplying the

child with books or remedial instruction. He also may be able to

enlist the aid of government welfare agencies. Where poverty is a

widespread problem within a given school population then the duty to

assist the child will probably involve the headmaster and an

administrator of higher status in the bureaucracy than the headmaster.

Here, as in thE case of atypical children, special provision needs to

be made for learning needs. Remedial programmes, perhaps additional

teachers, and special equipment will need to be introduced. At the

same time the administrator has a duty to ensure that the child does

not suffer a harmful loss of dignity in being seen by others as the

recipient of special instruction. The problems of minority groups

such as aborigines, or migrant children who have insufficient

knowledge of English to enable them to participate effectively in class,

and the presence of groups of children with specific learning problems

mean that there is often the need for differing specialist services

within a so called (average) school. Again the administrator has a

duty to provide remedial and/or compensatory services for the benefit

of these children. Without this action the child's right to education

will be only imperfectly recognized.

For those students who are about to leave school, or any other

educational institution, there is the expectation that these people

will be readily integrated into the community. The existence of

vocational guidance facilities within such institutions would indicate

that they accept there is a need to provide advice about employment.

However the exact form that this advice or guidance is to take is not

clear. To date, career education in schools has amounted to little

more than giving a description of the vocation the student has

120.

expressed interest in, and presenting him with the academic

requirements needed for the position. The inadequacy of the service

has been highlighted by the problems many former students have had in

finding employment at the end of 1976.

It is true that students often do not know what occupation they

wish to enter. Many, no doubt, do profit from the suggestions made to

them by the career officers found in most schools. However, to tell a

person that he i~ suited to a particular kind of work is not necessarily

to tell him how to enter that field. Any programme that is aimed at

providing career advice needs to incorporate information about job

application procedures, the frequency with which employment

opportunities occur in the vocation in which the student is interested,

and whether it is possible for the student to obtain advice from, or to

have work experience for a limited trial period in, a firm associated

with the student's contemplated occupational field.

Educational administration is concerned with discharging a duty to

the child, or the older learner. Since almost every decision that the

administrator makes, has an influence on the quality of the instruction

that groups of students will experience, it is clear that, in some

respects, the duties of administrators and the educational rights of

children are correlates. For this reason, those occupying positions

in the bureaucracy need to remember that they are managing a public

service which has been provided for the benefit of children, although

ultimately the whole society will profit from the realization of

educational goals. The onus remains with the administrator to ensure

that the right of the student is as well satisfied as possible.

When one considers the variety of tasks that are to be performed if

almost three million students in Australia are to have access to an

1 21 .

education appropriate to their abilities and inclinations, the

existence of large, centralized systems is probably to be expected.

However, whilst these organizations are the loci 11 for allocating and

integrating roles, personnel, and facilities to achieve the goals of 3

the system", because education is directed towards the development of

human abilities, rather than the production of readily measurable units,

not all aspects of educational administration can be related to

business management. About all the corporation and the educational

system have in common are their sizes, and the danger that, because

of their hierarchical structures, groups within the organization can

blame one another for a decision that is no longer held to be

appropriate, and for which no one wishes to accept responsibility.

In a business it is possible to establish absolute goals, supervise

their realization by enforcing standards and measure success by

looking at profits. Education cannot be controlled in this way. One

can say that an educational goal is developing individuals capable of

abstract thought. However, if a person has not the capacity to

achieve anything more than concrete thinking, it does not necessarily

follow that he is a failure. Goals are set for education anc the

effects that measures for their realization have on the learner, or

teacher, or community are noted. Yet>the goals that are set are often

idealistic; quality control is difficult when the variables

influencing the learning situation differ from one school to the next;

the outcome of being a participant in the educational system established

to discharge a perceived social, or individual,need is not obviously

something tangible. In short, to speak of educational administration

is to place emphasis on the process, education.

In order to survive each person has to learn the skills that will

122.

enable him to fit into the community and to support himself. Since

Australian society has developed to the stage where it ic, unlikely

that parents, or guardians, can effectively impart the knowledge

necessary for a child to become self sufficient, public systems of

education have emerged to discharge the obligation. The administrative

structures that are used reflect the specialist nature of the service

and, for the most part, those with authority to direct the manner in

which the child receives instruction, are trained educators, or

professionals motivated by educational principles.

Their function within the area of policy making is to ensure that

decisions are made primarily on educational grounds, and not in response

to political pressure, or a desire to solve a problem in an expedient

way. The professional insight that they can give because of their

knowledge of child development, learning theory, pedagogy, the

ramifications of the social systems existing within schools and the

effectiveness of existing administrative patterns in discharging

educational duties: this information is a necessary element in any

discussion which seeks to determine policy. For example, the provision

of educational accommodation is more than building a school that is

large enough to cope with predicted enrolments. If effective learning

is to take place then accommodation should be designed to suit the

particular educational objectives or function of the institution. A

building that is aesthetically pleasing to an architect, or whose cost

wins the approval of a financier, is not necessarily a building where

staff and students are able to work with ease. The educational

administrator, in his capacity of adviser, must communicate the

educational needs that are to receive attention if the building is to

serve its educational purpose.

The educational administrator's role is not confined to working

within the bureaucratic framework of his employing organization.

123.

Public

opinion can be influential in the extent to which a government is

willing to support education. Moreover compulsory education is viewed

as something that is in the best interests of the child and community.

Thus, the administrator has a duty to those he serves to provide infor-

mation about the system he helps to co-ordinate. If the community

understands policy and has insight into the learning process, then

there is a greater chance that educational decisions will be made in

accordance with actual educational need.

Education has been seen as both a legal and moral right that each

and every person possesses. However, the existence of a riuht means

that others have duties towards the person possessing that right. It

is within the legal system that the clearest definition of rights and

duties is found, and so it is not surprising that educational

administration is primarily concerned with the realization of the child's

legal right to education and with discharging the duties created by the

recognition of that right. But, since education is also a moral righ~

the educational administrator is influenced by the ethical status of

those whose interests he is safeguarding. For these reasons the tasks

of the administrator are often ambiguous. Thus, he needs to be flexible

in his approach to problems and aware that he has an obligation at all

times to consider the best interests of the learner.

124.

Notes and References

1. Trone, K., A Conceptual Model for the Study of the Communication of Authority in a Bureaucratic Education System in "The Journal of Educational Administration", Vol. V, No. 2, 1967, pp. 107-123.

2. The Australian, Saturday November 13th, 1976, p. 23.

3. Getzels, J., et al., Educational Administration as a Social Process, p. 1 33.

ADDENDA

1. Universal Declaration of Human Rights

Adopted by the General Assembly of the United Nations 10th December, 1948.

125.

Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world,

Whereas disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind, and the advent of a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people,

Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law,

Whereas it is essential to promote the development of friendly relations between nations,

Whereas the peoples of the United Nations have in the Charter reaffirmed their faith in fundamental human rights, in the dignity and worth of the human person and in the equal rights of men and women and have determined to promote social progress and better standards of life in larger freedom,

Whereas Member States have pledged themselves to achieve, in co-operation with the United Nations, the promotion of universal respect for and observance of human rights and fundamental freedoms.

Whereas a common understanding of these rights and freedoms is of the greatest importance for the full realization of this pledge.

Now, Therefore,

THE GENERAL ASSEMBLY

proclaims

This universal declaration of human rights as a common standard of achievement for all peoples and all nations, to the end that every individual and every organ of society, keeping this Declaration constantly in mind, shall strive by teaching and education to promote respect for these rights and freedoms and by progressive measures, national and international, to secure their universal and effective recognition and observance, both among the peoples of Member States themselves and among the peoples of territories under their jurisdiction.

Article 1

All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.

Article 2

Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other statuse

Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty.

Article 3

Everyone has the right to life, liberty and security of person.

Article 4

No one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms.

Article 5

No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishmente

Article 6

Everyone has the right to recognition everywhere as a person before the lawo

Article 7

All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.

Article B

Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.

Article 9

No one shall be subjected to arbitrary arrest, detention or exile.

127.

Article 10

Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.

Article 11

1. Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence. 2o No one shall be held guilty of any penal offence on account of any act or omission which did not constitute a penal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the penal offence was committed.

Article 12

No one shall be subjected to arbitrary family, home reputation. against such

Article 13

or correspondence, nor to Everyone has the right to interference or attacks.

interference with his privacy, attacks upon his honour and the protection of the law

1. Everyone has the right to freedom of movement and residence within the borders of each state. 2. Everyone has the right to leave any country, including his own, and to return to his country.

Article 14

1. Everyone has the right to seek and to enjoy in other countries asylum from persecution. 2. This right may not be invoked in the case of prosecutions genuinely arising from non-political crimes or from acts contrary to the purposes and principles of the United Nations.

Article 15

1. Everyone has the right to a nationality. 2. No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.

Article 16

1. Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution. 2. Marriage shall be entered into only with the free and full consent of the intending spouses. 3. The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.

1280

Article 17

1. Everyone has the right to own property alone as well as in association with others. 2. No one shall be arbitrarily deprived of his property.

Article 18

Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.

Article 19

Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.

Article 20

1. Everyone has the right to freedom of peaceful assembly and association. 2. No one may be compelled to belong to an association.

Article 21

1. Everyone has the country, directly or 2. Everyone has the country.

right to take part in through freely chosen right of equal access

the government of his representatives. to public service in his

3. The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall held by secret vote or by equivalent free voting procedures.

Article 22

Everyone, as a member of society, has the right to social security

be

and is entitled to realization, through national effort and international co-operation and in accordance with the organization and resources of each State, of the economic, social and cultural rights indispensable for his dignity and the free development of his personality.

Article 23

1. Everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment. 2. Everyone, without any discrimination, has the right to equal pay for equal work.

1290

3. Everyone who works has the right to just and favourable remuneration ensuring for himself and his family an existence worthy of human dignity, and supplemented, if necessary, by other means of social protection. 4. Everyone has the right to form and to join trade unions for the protection of his interests.

Article 24

Everyone has the right to rest and leisure, including reasonable limitation of working hours and periodic holidays with pay~

Article 25

1. Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control. 2. Motherhood and childhood are entitled to special care and assistancee All children, whether born in or out of wedlock, shall enjoy the same social protection.

Article 26

1. Everyone has the right to education~ Education shall be free, at least in the elementary and fundamental stages. Elementary education shall be compulsory~ Technical and professional education shall be made generally available and higher education shall be equally accessible to all on the basis of merit. 2. Education shall be directed to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedomse It shall promote understanding, tolerance and friendship among all nations, racial or religious groups, and shall further the 9ctivities of the United Nations for the maintenance of peace. 3. Parents have a prior right to choose the kind of education that shall be given to their'children.

Article 27

1. Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits. 2. Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.

Article 28

Everyone is entitled to a social and international order in which the rights and freedoms set forth in this Declaration can be fully realized.

t3D.

Article 29

1. Everyone has duties to the community in which alone the free and full development of his personality is possible. 2. In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society. 3. These rights and freedoms may in no case be exercised contrary to the purposes and principles of the United Nations.

Article 30

Nothing in this Declaration may be interpreted as implying for any State, group or person any right to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms set forth herein.

Taken from Brownlie, I., Basic Documents in International Law, p.p. 144-149.

1 31 •

2. French Declaration of the Rights of Man and of the Citizen, 1789

By the National Assembly of France.

'The Representatives of the people of FRANCE, formed into a NATIONAL ASSEMBLY, considering that ignorance, neglect, or contempt of human rights, are the sole causes of public misfortunes and corruptions of Government, have resolved to set forth, in a solemn declaration, these natural, imprescriptible, and inalienable rights: that this declaration being constantly present to the minds of the members of the body social, they may be ever kept attentive to their rights and their duties: that the acts of the legislative and executive powers of Government, being capable of being every moment compared with the end of political institutions, may be more respected: and also, that the future claims of the citizens, being directed by simple and incontestible principles, may always tend to the maintenance of the Constitution, and the general happiness 11

1 For these reasons, the NATIONAL ASSEMBLY doth recognize and declare, in the presence of the Supreme Being, and with the hope of his blessing and favour, the following sacred rights of men and of citizens:

1 I. Men are born, and always continue, free, and equal in respect of their rights. Civil distinctions, therefore, can be founded only on public utility.

'II. The end of all political associations, is, the preservation of the natural and imprescriptible rights of man; and these rights are liberty, property, security, and resistance of oppression.

1 III. The nation is essentially the source of all sovereignty; nor can any INDIVIDUAL, or ANY BODY OF MEN, be entitled to any authority which is not expressly derived from it.

'IV. Political Liberty consists in the power of doing whatever does not injure another. The exercise of the natural rights of every man, has no other limits than those which are necessary to secure to every other man the free exercise of the same rights; and these limits are determinable only by the law.

•v. The law ought to prohibit only actions hurtful to society. What is not prohibited by the law, should not be hindered; nor should any one be compelled to that which the law does not require.

1 VI. The law is an expression of the will of the community .. All citizens have a right to concur, either personally, or by their representatives, in its formation. It should be the same to all, whether it protects or punishes; and all being equal in its sight, are equally eligible to all honours, places, and employments, according to their different abilities, without any other distinction than that created by their virtues and talents.

132.

1 VII. No man should be accused, arrested, or held in confinement, except in cases determined by the law, and according to the forms which it has prescribed. All who promote, solicit, execute, or cause to be executed, arbitrary orders, ought to be punished; and every citizen called upon, or apprehended by virtue of the law, ought immediately to obey, and renders himself culpable by resistance.

1VIII. The law ought to impose no other penalties but such as are absolutely and evidently necessary: and no one ought to be punished, but in virtue of a law promulgated before the offence, and legally applied.

'IX. Every man being presumed innocent till he has been convicted, whenever his detention becomes indispensable, all rigour to him, more than is necessary to secure his person, ought to be provided against by the law.

'X. No man ought to be molested on account of his opinions, not even on account of his religious opinions, provided his avowal of them does not disturb the public order established by the law.

1 XI. The unrestrained communication of thoughts and opinions being one of the most precious rights of man, every citizen may speak, write, and publish freely, provided he is responsible for the abuse of this liberty in cases determined by the law9

1 XII. A public force being necessary to give security to the rights of men and of citizens, that force is instituted for the benefit of the community, and not for the particular benefit of the persons with whom it is entrusted.

'XIII. A common contribution being necessary for the support of the public force, and for defraying the other expenses of government, it ought to be divided equally among the members of the community, according to their abilities.

1 XIV~ Every citizen has a right, either by himself, or his representative, to a free voice in determining the necessity of public contributions, the appropriation of them, and their amount, mode of assessment, and duration.

'XV. Every community has a right to demand of all its agents, an account of their conduct.

1 XVI. Every community in which a separation of powers and a security of rights is not provided for, wants a constitution.

'XVII. The right to property being inviolable and sacred, no one ought to be deprived of it, except in cases of evident public necessity, legally ascertained, and on condition of a previous just indemnity.'

Taken from Paine, T., Rights of Man. P•P• 132-134.

3. EXTRACTS FROM COVENANTS AND CONVENTIONS OF THE UNITED NATIONS (Articles selected deal with the rights of the child.)

International Covenant on Economic, Social and Cultural Rights. Adopted by the General Assembly of the United Nations 16th December, 1966.

Article 10"

The States Parties to the present Covenant recognize that:

1. The widest possible protection and assistance should be accorded to the family, which is the natural and fundamental group unit of society, particularly for its establishment and while it is responsible for the care and education of dependent children. Marriage must be entered into with the free consent of the intending spouses. 2. Special protection should be accorded to mothers during a reasonable period before and after childbirth. During such period working mothers should be accorded paid leave with adequate social security benefits. 3. Special measures of protection and assistance should be taken on behalf of all children and young persons without any discrimination for reasons of parentage or other conditions. Children and young persons sho~ld be protected from economic and social exploitation. Their employment in work harmful to their morals ar health should be punishable by law. States should also set age limits below which the paid employment of child labour should be prohibited and punishable by law.

Article 12

1. The States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health. 2. The steps to be taken by the States Parties to the present Covenant to achieve the full realization of this right shall include those necessary for: (a) The provision for the reduction of the stillbirth-rate and of infant mortality and for the healthy develop­ment of the child•••••

International Covenant on Civil and Political Rights Adopted by the General Assembly of the United Nations i6th December, 1966.

Article 6

1. Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life •••• 5. Sentence of death shall not be imposed for crimes committed by persons below eighteen years of age and shall not be carried out on pregnant women.

134.

Article 14

1. All persons shall be equal before the courts and tribunalsu In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent and independent and impartial tribunal established by law. The Press and the public may be excluded from all or part of a trial for reasons of morals, public order (order public) or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice; but any judgement rendered in a criminal case or in a suit at law shall be made public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children •••••• 4. In the case of juvenile persons, the procedure shall be such as will take account of their age and the desirability of promoting their rehabilitation.

Article 18

1. Everyone shall have the right to freedom of thought, conscience and religion•••••• 4. The States Parties to the present Covenant undertake to have respect for the liberty of parents and, where applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions.

Article 23

1. The family is the natural and fundamental group unit of society and is entitled to protection by society and the State•••••• 4. States Parties to the present Covenant shall take appropriate steps to ensure equality of rights and responsibilities of spouses as to marriage, during marriage and at its dissolution. In the case of dissolution, provision shall be made for the necessary protection of any children.

Article 24

1. Every child shall have, without any discrimination as to race, colour, sex, language, religion, national or social origin, property or birth, the right to such measures of protection as are required by his status as a minor, on the part of his family, society and the State. 2. Every child shall be registered immediately after birth and shall have a name. 3. Every child has the right to acquire a nationality.

135.

Proclamation of Tehran, 1968

16. The protection of the family and of the child remains the concern of the international community. Parents have a basic human right to determine freely and responsibly the number and the spacing of their children. 17. The aspirations of the younger generation for a better world, in which human rights and fundamental freedoms are fully implemented, must be given the highest encouragement. It is imperative that youth participcte in shaping the future of mankind.

American Convention on Human Rights, 1969

Right to Life

Article 4

1. Every person has the right to have his life respected. This right shall be protected by law, and, in general, from the moment of conception. No one shall be arbitrarily deprived of his life. 5. Capital punishment shall not be imposed upon persons who, at the time the crime was committed, were under 18 years of age or over 70 years of age: nor shall it be applied to pregnant women.

Right to Humane Treatment

Article 5

s. Minors while subject to criminal proceedings shall be separated from adults and brought before specialized tribunals, as speedily as possible, so that they may be treated in accordance with their status as minors.

Rights of the Family

Article 17

4. The States Parties shall take appropriate steps to ensure the equality of rights and the adequate balancing of responsibilities of the spouses as to marriage, during marriage, and in the event of its dissolution. In case of dissolution, provision shall be made for the necessary protection of any children solely on the basis of their own best interests.

s. The law shall recognize equal rights for children born out of wedlock and those born in wedlock.

Right to a Name

Article 18

Every person has the right to a given name and to the surnames of his parents or that of one of them. The law shall regulate the manner in which this right shall be ensured for all, by the use of assumed names if necessaryv

Rights of the Child

Article 19

136.

Every minor has the right to the measures of protection required by his condition as a minor on the part of his family, society, and the state.

Right to Nationality

Article 20

1. Every person has the right to a nationality. 2. Every person has the right to the nationality of the state in whose territory he was born if he does not have the right to any other nationality.

Taken from Brownlie, lo, Basic Documents on Human Rights.

4. Declaration of the Riahts of the Child, 1959

Adopted by the General Assembly of the United Nations 20th November, 1959.

Whereas the peoples of the United Nations have, in the Charter, reaffirmed their faith in fundamental human rights and in the dignity and worth of the human person, and have determined to promote social progress and better standards of life in larger freedom,

137.

Whereas the United Nations has, in the Universal Declaration of Human Rights, proclaimed that everyone is entitled to all the rights and freedoms set forth therein, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status,

Whereas the child by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection, before as well as after birth,

Whereas the need for such special safeguards has been stated in the Geneva Declaration of the Rights of the Child of 1924, and recognized in the Universal Declaration of Human Rights and in the statutes of specialized agencies and international organizations concerned with the welfare of children,

Whereas mankind owes to the child the best it has to give, Now therefore, The General Assembly

Proclaims this Declaration of the Rights of the Child to the end that he may have a happy childhood and enjoy for his own good and for the good of society the rights and freedoms herein set forth, and calls upon parents, upon men and women as individuals, and upon voluntary organizations, local authorities and national Governments to recognize these rights and strive for their observance by legislative and other measures progressively taken in accordance with the following principles:

Principle 1

The child shall enjoy all the rights set forth in this Declaration. Every child, without any exception whatsoever, shall be entitled to these rights, without distinction or discrimination on account of race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status, whether of himself or of his familye

138.

Principle 2

The child shall enjoy special protection, and shall be given opportunities and facilities, by law and by other means, to enable him to develop physically, mentally, morally, spiritually and socially in a healthy and normal manner and in conditions of freedom and dignity. In the enactment of laws for this purpose, the best interests of the child shall be the paramount considerations.

Principle 3

The child shall be entitled from his birth to a name and a nationality.

Principle 4

The child shall enjoy the benefits of social security. He shall be entitled to grow and develop in health; to this end, special care and protection shall be provided both to him and to his mother, including adequate pre-natal and post-natal care. The child shall have the right to adequate nutrition, housing, recreation and medical services.

Principle 5

The child who is physically, mentally or socially handicapped shall be given the special treatment, education and care required by his particular condition.

Principle 6

The child, for the full and harmonious development of his personality, needs love and understanding. He shall, wherever possible, grow up in the care and under the responsibility of his parents, and, in any case, in an atmosphere of affection and of moral and material security; a child of tender years shall not, save in exceptional circumstances, be separated from his mother. Society and the public authorities shall have the duty to extend particular care to children without a family and to those without adequate means of support. Payment of 5tate and other assistance towards the maintenance of children of large families is desirable.

Principle 7

The child is entitled to receive education, which shall be free and compulsory, at least in the elementary stages. He shall be given an education which will promote his general culture, and enable him, on a basis of equal opportunity, to develop his abilities, his individual judgement, and his sense of moral and social responsibility, and to become a useful member of society.

The best interests of the child shall be the guiding principle of those responsible for his education and guidance; that responsibility lies in the first place with his parents.

139.

The child shall have full opportunity for play and recreation, which should be directed to the same purposes as education; society and the public authorities shall endeavour to promote the enjoyment of this right.

Principle 8

The child shall in all circumstances be among the first to receive protection and relief.

Principle 9

The child shall be protected against all forms of neglect, cruelty and exploitation. He shall not be the subject of traffic, in any form.

The child shall not be admitted to employment before an appropriate minimum age; he shall in no case be caused or permitted to engage in any occupation or employment which would prejudice his health or education, or interfere with his physical, mental or moral development.

Principle 10

The child shall be protected from practices which may foster racial, religious and any other form of discrimination. He shall be brought up in a spirit of understanding, tolerance, friendship among peoples, peace and universal brotherhood, and in full consciousness that his energy and talents should be devoted to the service of his fellow men.

Taken from Brownlie, I., Basic Documents on Human Rights~ p.p. 188-190.

140 ..

5. Government Expenditure on Education in New South Wales.

The following tables are taken from the Official Yearbook of New South

Wales, No,63 1 1974,pp.612-613.

Table 4o'J. Government Expendilure in N.S. W. on Education and Enceuraa:emeat of Science, .-\r1, and Re~earch

falw:atioo

' s,~,.

Au,truiao New South Wales Tut.ii Expenditure

Government Govcmwcnl oo Encou.r• Year AuatraJiao OIWlCIII or ended and Science. An.

JO F,001 Toi..l. N.SW. ...,d Rcxcarcb'

Grants From Payment& I Tow, Govoni• Juno lo to Australian Revenue loans N.S.W. I menu Suto Person• Gove. i , GovL . •t

S lbousaod

1961 29,236 IO,H2 39,568 205,6111 50,ll] 255,7~ 295,318 4,a71

1961 JJ,216 U95 42,111 225,127 47,962 273,089 JIS,200 4.)03

1969 37,582 11,349 48,931 249,538 55,891 305,429 354,360 4.690

1970 52,444 12,854 65,298 290,204 S4,459 344,663 409,961 6,478

1971 61,988 16,259 78,247 347,542 56,908 404,451 482,698 7,788

1972 71,009 1'1,316 90,JH 410,0SJ 69,640 479,693 570,018 8,450

197J 91,0,5 26,)66 117,421 476,490 77,891 554,381 671,802 9,408

• Seo Table 470 for details of items of e1<penditure. t Includes pay men IS to persons in the Australian Capital T <rnlory. t ExpcndillMO from Con•ohdatcd Reve'!uc Fund, les> Au...trahan Oovermncnt 11r,n1_s paid to that Fund ' 1 Gross Loaa l!apaulirun:, lcu Allltrahaa Goverumcnt 1ranu towards that upco<lituro.

from revenue and loana.

Table 470. Expenditure by Australian Government on Education ia New Soutll Wala

Panicul&n

Oranu w S1a10--Toward1 Rccuncnl Expenditure on-­

Private Schools• . . . . . . . . Teacbcra' and Pre-School Teachers'

Collc11cs.. . . . .. Colle1e1 of Advanced Education .. Univcni1ica . . . . . . . . Research Grants . . . . . . Aboriainal Advancement ..

Tow•rda Capiw Expclll.li1ura oo--Publlc Schools . . . . . Scicocc Labor.1,orlca ·UI---

Public Schools . . . . Pri¥ilte Scboola• . . . .

School Ubnrica . . . . . . Teachen' Collc11cs . . . . T cchnical Colleacs Colle11es of Advanced Education Univcr1i1ie.a . . . . Pre-w:bool Tc.ichen' CollellCI .. Aburi11inal Advancement

Year en.Jed JO Juoa

1969 I ,no I 1971 I 1972 I 197)

S thou.ao.i

bn 17.378

899

2.b84 1,979

450 l.210 2,999 1,717 7,569

834 20,218

1,161 102

9,017

J.4711 2),594 I

1,565 llS

I0,8$4

J.71 J 27,223

1,638 114

U,IM6

28 , .. ,n u.u, 2,112

229

4,246

2,bU 2,684 2,Jb8 2,l611 1,979 1,979 l,BS 1,ll5 l,ll6 ,,990 4,19S 2,61& 6,017 ,46 4.194 S,160 l,212 4.846 2,416 S,040 2,!ll7 4,068 2,666 4,261 6,512 4,o,o 9,6M2 10.,22

26 2, Jll l70

Total Oranu 10 S1.i1c

Parmcnu 10 Pcnoruf-lkbolar•hip Schcmc•­

Sccon.iary Educauun

48 II 20 91

. . J7,582 52,44-1 61,98& I 71,009 91,0SS 1--1--1--,--

Tc.:hnical Educalion Adv.&n.:cJ Elluc.iuon Univc:nill)'.. . . . . . Pu••-aradu.a.te A" • .uJ.s . . . .

Soldicn' Children Educ.i1ic>11 S.:hemo Aboriajnal Study Grants (Post S.:hool) .. Abori1inal Secondary (School) Grants

T 01al, P.&ymcn1s to Pcr::.om,

2,bOJ ,UJ(>

214 5,407 1,584 l,IH

11.149

2,55b 421 386

6.116 2.011 1,1110

JO 114

12,1154

Total. Au,ualian Oovcnuncnc lcxpci.diturc I oa Education in N.S.W. . . . . . . 48,9ll b5,2\III

2. 7b0 I -IOI 7211

8,149 2,338 1,261

6i 541

10,259

7H,247

2.899 420 919

IU.071 2,60-4 1.372

171 160

19,]l6

90,325

• Paid lo Stal& (,11 •1cnl for Auotr,ilian Gnvcrnrnenl) fur diuributioa to private ""boob. f lncluJc1 PilYDICIIU 10 peCSODI in lho A.wiu.&lwi C..pilAII Tcnilory.

l,SO'I 442

l,]19 15,582 2,159 l,JJI

UJ 1,164

26,166

117,421

Table 471. CJassificatioa of Expenditure by the State Government on Education aad Eacoaragement of Science, Art, and Resan:h

Year ended lO June

Partiadan 1969 1 1970 I 1971 \ 1972 I 1973

ac-.i;tun from R_._ Primary and Secondary Bducatio­

Public Schools and Head Office Services Conveyaam of Pupils to &ad from Public

and Private Schools . . . . . . Direct Assistance to Private Schools .. Assistance to Pupils of Public and Private

Scbools-

EDUCATION

165,741

13,102 3,816

Bunaries and Scbolanhipl . . . . 1,339 Allowances for Secondary Pupils . . 1,835 Textbook Allowana:s for Secondary

Pupils . . . . . . . . 2,30S Training of Teachers, including Allow-

ances to Sludents . . . . . . 13,324 Total, Primary and Sccoadary E!dw:alion -20_1..;.,46_2_ 1

Asricultural Colleges . . . . . . 1,292 Conservatorium of Music . • . . . . 240 Other Colleges of Advanced Education

and Tecbnical Colleges . . . . 20,432 Univen.itlca . . . . . . . • . . 24,938 Other . . . . . . .. .. . . 1,174 Total Expenditure from Revenue•

Lou Ezpeaditure (Groa)t-Primary and Secondary F.ducatio-

Scbool Buildings, etc. . . . . Teachers' Colleges . . . .

. . 249,538

45,491 425

Total, Primary and Secondary Education 45,916

305 ~=~ll!fMmic : : Otbu Colle- of Advanced

and Technical Co"-5 Univorsitiea . . . . . .

Total l.oaD Expcodituret .•

Total, Education

Educati~D 3,623

.• •• __ 6,c._04_8_,

. • •• 55,891 , ____ , . . 305,429

191,953

14,393 4,586

s tbouland

233,710

16,092 5,165

2~,289

19,393 7,243

1,056 1,009 I , 142 1,751 1,926 2,759

2,416 2,501 2,617

15,910 20,899 28,937 232,0M 281,302 331,381

1,559 2,02) 2,567 549 564 701

25,341 30,283 36,928 29,357 31,457 35,998

1,333 1,914 2,478

_290_c._,204 __ , __ 34_7,:..54_J_,_4_10_,_05_J_

41,250 1,168

42,418 743

32

4,791 6,475

54,459

344,663

43,426 450

43,875

737 72

,,723 6,500

56.,908

404,451

52.166 1,686

53,852

735 40

7,574 7.439

69,640

479,693

ENCOUltAOJ!Ml!NT OP SCIENCE, AllT, AND REsl!ARCH

Expenditure from Rewennc-Public Library and Library Board . . 2,728 Australian Museum . . . . . . 390 Museum of Applied Arts and Sciences . . 232 Art Gallery . . . . . . . . . . 197 Observatory . . . . . . . . 65 Subsidies to Associations etc. . . . . 696 , ___ _ Total Expenditure from Revenue .. 4,308

Loan Expenditure (Gross) . . . • .. 381 Total, Encouragement of Science, Art. and, ___ _

Research . . .. .. . . . ·

• S.. note l, Table 469. t See noto 1, Table 469.

4,690

3,818 494 246 541

57 772

5,930

547

6,478

4,243 648 254 285 60

1,113

6,603

1.185

7,788

4,926 772 309 538

67 1,114

7,726

'724

8,450

306,972

25,149 8,869

1,131 3,578

2,719

35,424

383,843 2,802

824

43,581 42,598

2,842 476,490

59,539 480

60,019

900 2

8,300 8,670

77,891

554,381

5,594 1,035

339 689

78 1,353

9,088 ,20

9,408

141.

6. COMMONWEALffl AUTHORITIES: OUTLAY ON EDUCATION. 1967-68 TO 1971-72 ($'000)

Current outlay-Final consumption expenditure-

Department of Education and Science Australian Universitiea Commission . . Australian Commission on Advanced Education Australian Capital Territory education services(a) Northern Territory education services(a) . Australian National University . Canberra College of Advanced Education Child migrant education scheme . . . Australian Broadcasting Commission-School

broadcasts, etc. . . . . Melbourne University-Meteorology . . Sydney University-School of Public Health and

Tropical Medicine, etc. . . Technical training for ex-servicemen

Non-government schools-assistance(a) Australian Capital Territory Northern Territory

Total Cash benefits to persons-

Commonwealth scholarship scheme­Post-graduate University . . Advanced education Secondary . Technical . . . . .

Soldiers' children education scheme . Aboriginal study grants . Aboriginal secondary grants Other(b)

Total • Grants for private capital expenditure­

Non•govcrnment schools­Australian Capital Territory Northern Territory

Residential colleges-Australian National University

Abori11inal advancement Total •

Transfers oveneas(c)

Grants to the States-UniYersities . . . . Colleges of advanced education . . Australian Research Grants Committee grants Non-11overnment schools-per capita grants Abori11inal advancement

Total • Total cwrrent outlay

Capital outlay-Expenditure on new fixed asseto-

Dcpartment of Education and Science . • Australian Capital Territory education services . Northern Territory education services Australian National University . Canberra College of Advanced Education Child mi11rant education scheme . . . Sydney University-School of Public Health and

Tropical Medicine, etc. • . • .

Total • Grants to the States-

Uni vcraitics . . . . Collepa of advanced educatiou Teacher uainin11 colleges Pre-school teachers colleges Science laboratories School libraries . . Technical trainin11 facilities Aboriginal advancement Government schools

Total • Total capital outlay Total outlay on education

1967-68

2,849 197

5,669 3,401

16,276 43

817 12

623 20

377 17

30,302

2,899 13,383

754 6,474 1,031 2,720

717

27,979

50 6

1,435 129

1,610 791

39,912 5,273 3,154

48,338

109,030

48 4,771 1,883 6,074

439

112

JJ,328

16,329 6,647 4,518

12,58; 13,877

53,958

67,186 176,31S

1968-69

3,744 217

6,767 4,609

18,698 267

873 12

628 15

629 30

]6,488

3,588 16,268

1,001 6,558 1,123 3,154

62

753

31,508

397 7

428 42

874 800

43,534 6,282 2,879

151

51,846 llJ,515

124 4,731 1,711 5,604

808

113 13,090

19,097 8,080 6,322

170 11,762

1,703 7,587

656

55,377 6/J,467

191,982

1969-70

4,973 229

7,652 5.550

19,370 936

82

902 12

743 18

787 86

41,341

4,526 18,160

1,628 6,738 1,162 3,203

190 522 829

36,959

841 32

196 362

1,431 941

50,435 10,658

3,446 12,177

289

77,005

157,678

55 6,735 S,595 3,304 1,502

27

110 17,J18

17,234 9,486

13,160 309

12,898 7,540 9,878

655

71,160 88,489

246,167

1970-71

6,958 223

10,184 7,719

27,237 1,653 1,698

970 12

822 20

1,232 157

58,885

5,209 22,519

2,793 6,791 1,096 3,407

326 2,201

995

45,337

688 145

990 266

1,089 938

58,877 15,743

4,170 24,253

273

103,316 110,565

59 5,593 5,127 5,513 l,203

147

79

19,722

16,346 14,837 2,470

856 13,062 13,257 12,535

672

74,/JJJ 93,757

304.322

1971-72

8,263 301 69

11,929 9,392

28,800 2,100 3,155

1,093 12

956 30

1,667 242

68,009

5,888 28,127

3,552 6,924 1,048 3,625

473 2,536 1,221

53,393

975 IOI

88 209

1,373 1,003

67,596 18,372 4,341

29,594 347

120,249 144,019

42 6,370 7,672 6,900 3,300

109

51 24,441

23,002 15,641 11,153

631 10,824 9,780 7,411

867 6,660

85,969 110,4/J 354,440

142.,

(a) Further details of Commonwealth outlay in the Australian Territories is found on page 678 of the Yearbook of Australia 7 1973; (b) Includes: Forestery scholarships,C.S.I.R.D. research studentships, scholarships and allowances to students in the A.C.T. and N.T., and Australian Agricultural scholarships; (c) Relates mainly to expenditure in connection with Commonwealth Educational Ca-operation Scheme.

Taken from Official Yearbook of Australia 7 No,59,1973,p676.

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A. Books and Articles. B. Newspapers. c. Government Reports, Reference Papers, etc. D. Acts of Parliament. E. Sources for Legal Cases Referred to in Chapter Four.

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WALKER, J.C., "Freedom, Welfare and Compulsory Curricula", in Educational Philosophy and Theory, Volume 7, Number 2, 1975.

WASSERSTRDM, R., "Rights, Human Rights and Racial Discrimination'', in Melden, A.I., (editor), Human Rights, Wadsworth, Belmont, California, 1970.

WORSFOLD, V.L., "A Philosophical Justification for Children's Rights", in The Harward Educational Review, Volume 44, Number 1, 1974.

YOUNG, R., "Education and the 1 Rights 1 of Children and Adolescents", in Educational Philosophy and Theory, Volume 8, Number 1, 1976.

B. Newspapers

The Australian, Saturday, November 13, 1976. The National Times, August 30 - September 4, 1976. The Sydney Morning Herald, Number 43, 261, Thursday, August 12, 1976. The Sydney Morning Herald, Number 43, 262, Friday, August 13, 1976.

148.

The Sydney Morning Herald, Monday, November 22, 1976 0

The Sydney Morning Herald, Number 43, 376, Friday, December 24, 1976 0

C. Government Reports, Reference Papers. etc 1

Aims of Secondary Education in New South Wales, November 1973. Statement was prepared by the Directorate of Studies, New South Wales Department of Education.

Child Welfare Legislation Review Committee Report, August 1975. (P.E. Quinn, Executive Secretary), Department of Youth, Ethnic and Community Affairs, Sydney.

New South Wales Department of Education Handbook, Instructions and Information for the Guidance of Teachers, Books 1-4, Third Edition, New South Wales Government Printer, 1975.

Official Yearbook of Australia, Number 59 1 1973, Australian Bureau of Statistics, Canberra, 1974.

Official Yearbook of New South Wales, Number 63 1 1974, New South Wales Government Printer, Sydney, 1975.

Reference Papers published by the Australian Government Social Welfare Commission. The following are a selection of papers delivered at The Rights of The Child Conference, Canberra, November 1974 and published in July, 1975.

COLEMAN, M., Rights of the Child - Introductiono FDULSHAM, J., Legal Sanctions and the Rights of the Child. McLAREN, J., Educational Rights of the Child - Theoretical Aspects. MURRAY, K.A., Children and the Courts - Ideals and Reality 0

STEILE, J., Educational Rights of the Child - Practical Implications.

Schools in Australia: Report of the Interim Committee for the Australian Schools Commission, (Professor Karmel, Chairman) May 1973.

The Community and its Schools. Report of the review panel appointed by the Minister for Education, (J. Buggie, Chairman), New South Wales Department of Education, Sydney, 1974.

D. Acts of Parliament.

(a) New South Wales Parliament.

Aborigines Act, 1969 - 1973 Adoption of Children Act, 1965-1966 Bursary Endowment Act, 1912 - 1968 Child Welfare Act 1939 - 1970 Constitution Act, 1902 Education Act, 1961 - 1973 Higher Education Act, 1969 Infants Custody and Settlements Act, 1899 Inheritance Act, 1901 Library Act 1939 - 1971

Maintenance Act, 1964 - 1972 Minors (Property and Contracts) Act, 1970 Public Instruction Act, 1880 - 1970 Public Instruction (Amendment)Act, 1916 - 1973

149.

Registration of Births, Deaths and Marriages Act, 1899 Registration of Births, Deaths and Marriages (Amendment) Act, 1967 Registration of Births, Deaths and Marriages (Amendment) Act, 1970 School Forest Areas Act, 1936 - 1965 Teaching Service Act, 1970 - 1972 Testator's Family Maintenance and Guardianship of Infants Act,

1916 - 1954

(b) Australian Parliament

Australian National University Act, 1946 - 1975 Canberra College of Advanced Education Act, 1967 - 1975 Charter of the United Nations Act, 1945 Child Care Act, 1972 - 1973 Child Endownment Act, 1941 Children's Commission Act, Citizenship Act, 1948 - 1969 Commission on Advanced Education Act, 1971 - 1973 Commonwealth of Australia Constitution Act Commonwealth Teaching Service Act, 1972 - 1973 Curriculum Development Centre Act, 1975 Education Research Act, 1970 Family Law Act, 1975 Film and Television School Act, 1973 Immigration (Education) Act, 1971 - 1973 Immigration (Guardianship of Children) Act, 1946 - 1973 Income Tax Assessment Act, 1936 - 1975 Independent Schools (Loans Guarantee) Act, 1969 Migration Act, 1958 - 1973 Schools Commission Act 1973 States Grants (Advanced Education) Act, 1973 - 1975 States Grants (Capital Assistance) Act, 1971 - 1972 States Grants (Independent Schools) Act, 1969 - 1973 States Grants (Milk for School Children) Act, 1950 - 1973 States Grants (Pre-School Teachers Colleges) Act, 1972 States Grants (Research) Act, 1965 - 1966 States Grants (Schools) Act, 1972 - 1974 States Grants (Science Laboratories) Act, 1971 States Grants (Secondary School Libraries) Act, 1971 States Grants (Technical and Further Education) Act, 1974 States Grants (Technical Training) Act, 1971 - 1973 States Grants (Technical Training Fees Re-imbursement) Act, 1974 States Grants (Universities) Act, 1972 - 1975 Student Assistance Act, 1973 Technical and Further Education Commission Act, 1975 United Nations Educational, Scientific and Cultural Organization

Act, 1947 Universities Commission Act, 1959 - 1974

150.

E. Sources for Legal Cases Referred to in Chapter Four.

The Australian Annual Digest 1969

The Australian Annual Digest 1970

The Australian Annual Digest 1972

The Australian Digest

The Australian Law Journal ( ALJ )

The Australian Law Journal Reports ALJR )

The Commonwealth Law Reports ( CLR

New South Wales Reports ( NSWR

New South Wales State Reports ( SR(NSW)

Queensland Law Journal ( QLJ

New South Wales Weekly Notes WN (NSW) )

Cases and References

Attorney-General for Victoria (ex rel. Dale) V The Commonwealth, 71 CLR 237

Ex parte Cornford; Re Minister for Education Ex parte Wilkes; Re Minister for Education

1961 NSWR 989

Ex parte Forster; Re University of Sydney,1963 SR(NSW) 723

Geyer V Downs and Another, Case No.189,Supreme Court of New South Wales, Court of Appeal, 1975

Hole V Williams, 10 SR (NSW) 638

King V Nichols, The Australian Digest, Column 619

McLean V Moore, 90 WN (PT 1) NSW 679

McMahon V Buggy and Others, Case No.2093 Supreme Court of New South Wales, Equity Division, 1972

Minister for Education V Maunsell, The Australian Digest,Column 618

Minister for Education V Dxwell, The Australian Digest, Columns 621 - 624

Morris V Minister for Education, Supreme Court of New South Wales, Case heard before McLelland,C.J. in Equity. Judgment given 10/4/69.

Ramsay V Appell, 46 ALJR 510

Ramsay V Larsen, 111 CLR 16

R V Burgess, Ex parte Henry, 55 CLR 608

R V The University of Sydney; Ex parte Drummond, 17 ALJ 103; 67 CLR 95

Richards V Victoria, The Australian Annual Digest 1969, p 119

Smith V 0 1 Byrne; Ex parte 0'Byrne, 5 QLJ 126

Victoria V Bryan, 44 ALJR 174

151.