The government’s proposed changes to higher education have provoked fierce debate, with critics arguing the reforms will be detrimental to students, higher education institutions and the economy. What has not been noted in the discussion is that the reforms will constitute a clear breach of international legal obligations to which Australia is a signatory.

International law provides for a right to education, and specifically to higher education. The most important expression of this right is found in Article 13 of the International Covenant on Economic, Social and Cultural Rights, which forms part of the International Bill of Human Rights and is one of the core international human rights documents. The Covenant has 162 state parties, including Australia, which ratified it in 1975.

What does the Article say?

Article 13 of the Covenant provides as follows:

1) The States Parties to the present Covenant recognise the right of everyone to education. They agree that education shall be directed to the full development of the human personality and the sense of its dignity, and shall strengthen the respect for human rights and fundamental freedoms. They further agree that education shall enable all persons to participate effectively in a free society, promote understanding, tolerance and friendship among all nations and all racial, ethnic or religious groups, and further the activities of the United Nations for the maintenance of peace.

2) The States Parties to the present Covenant recognise that, with a view to achieving the full realisation of this right:

c) Higher education shall be made equally accessible to all, on the basis of capacity, by every appropriate means, and in particular by the progressive introduction of free education…

What does the Article mean?

A number of elements are in play here. First, higher education is to be equally accessible to all.

In particular, this includes ensuring that education is provided without economic discrimination. This means that the government is obliged to ensure that those without financial means still enjoy equal access to higher education. In terms of the government’s proposals, this requirement clearly isn’t met in that a deregulated fee system privileges those who can afford to pay.

Second, higher education is to be provided on the basis of capacity. In other words, higher education need only be provided to those people that have the capacity to successfully complete it. Capacity can be assessed using measures such as past success or entry exams and can be used to justify restrictions on entry and restrictions on progress within higher education.

Finally, all appropriate means, including the progressive introduction of free education, are to be used in order to ensure equal accessibility. This requires the government to ensure policy moves toward the introduction of free higher education. Tuition fees aren’t in themselves a contravention of Article 13 and there is no deadline within which a state must achieve “free” higher education, but a failure to take steps towards free higher education is a contravention of the Article.

What happens if we breach the Covenant?

There are legal justifications for introducing retrogressive measures, such as increased higher education fees, which can be invoked in exceptional circumstances. Governments may argue that such measures are justified in the context of available resources or that restrictions are compatible with the nature of the right.

These arguments would be unlikely to succeed in Australia’s case, however, given that the equal accessibility aspect of the right arguably goes to the heart of Article 13. Regardless, even if a one-off fee increase could be justified, a deregulated system definitely could not be, as the requirement to move progressively towards free higher education continues to apply.

While international law is legally binding in theory, the lack of international enforcement mechanisms mean that there is unlikely to be any real consequence for breaching Article 13. The Committee on Economic, Social and Cultural Rights may criticise Australia’s decision to deregulate the higher education sector and urge it to reverse the reforms.

Yet the importance of the right to higher education doesn’t lie in its doubtful enforceability as a rule of international law but in the values that it represents and the promise that governments make to their people when they sign such documents. If we really believe in the value of equal educational opportunity, then it must inform our higher education policy.

In the context of this discussion, it is worth considering the agreed purposes for higher education set out in the Covenant, which include “the full development of the human personality”, “respect for human rights and fundamental freedoms”, empowering people to “participate effectively in a free society” and to “promote understanding, tolerance and friendship” (Article 13).

Do we wish to be a society underpinned by these values, or a country that measures value only in terms of the dollar? We hope, of course, that the answer is the former.