What the Act says
This right is based on Article 13 of the International Covenant on Economic, Social and Cultural Rights, which Australia ratified in 1975. However, the rights in section 36 are narrower than those in Article 13.
Scope of the right
Primary and secondary education
Every child has access to primary and secondary education that meets their needs. This right aligns with the Education (General Provisions) Act 2006 and applies to public education services. Private and non-government schools are usually not public entities and not required to comply with the Act.
Public schools also have obligations to children in relation to the right to equality and protection from discrimination (section 15), and the right to protection of the child that is in the child’s best interests (section 26).
Further vocational education and training
Every person has the right to access further vocational education and training, based on their abilities, in a way that is accessible to all. However, this right does not guarantee access to education where eligibility requirements (for example, prior study or a certain level of academic achievement) are not met.
Whether or not university education is included under this right, most Queensland universities are public entities under the Act and must comply with their broader human rights obligations, including the right to equality (section 15).
Limitations on the right
Like all rights in the Act, the right to education can be limited, but only where it is reasonable and demonstrably justified in a free and democratic society based on human dignity, equality, and freedom.
Learn more about justification and other obligations on public entities to respect human rights
Case examples
Applicant for home schooling refuses to provide street address
A woman and her children moved to a different location in Queensland in an attempt to escape domestic violence. The woman applied to home school one of her children who had a disability. To keep her family safe, she did not disclose details of her address. The Department refused the application because the approved form and governing Act required specific details of her address. The woman applied to the tribunal for a review of the decision.
The tribunal interpreted the governing Act as not requiring the woman to disclose her street address where it would risk the health and safety of her children, particularly as she had given alternative contact details. This interpretation ensured compatibility with the rights to privacy, protection of children, and education.
The tribunal set aside the Department’s decision and substituted a decision to grant home education registration for the student.
SF v Department of Education [2021] QCAT 10
Exclusion of pregnant students violates right to education (South Africa)
In this case, the Constitutional Court of South Africa ruled that the exclusion of pregnant students from schools violated their right to education and equality.
Head of Department, Department of Education, Free State Province v Welkom High School and Another CCT 103/12 [2013] ZACC 25 (10 July 2013))
Exclusion during criminal investigation found reasonable (UK)
The European Court of Human Rights found that excluding a student from school during the investigation of a serious criminal offence was a reasonable limitation to their right to education.
Ali v United Kingdom 40385/06 [2011] ECHR 17 (11 January 2011))
This information is not intended to be a substitute for legal advice.