Education in Australia : a statute and case law perspective

Abstract

This study describes the statute and case law aspects of education In Australia and examines the assumption that the involvement of the Commonwealth government in education lS, constitutionally, a valid one. Education in Australia is hedged about with a considerable amount of statute law. Much of this legislation has been passed by the State Parliaments which exercise the primary responsibility for education in the Australian federal system of government. These statutes establish and maintain systems of education under a Minister responsible to the Parliament. They, along with Regulations, prescribe in considerable detail what sort of education will be given in the State and what roles teachers, students and parents will have in the education system. The very existence of these prescriptions raises questions as to whether they are desirable or suitable for a modern education system and, therefore, whether and how the law should be modified. A certain amount of case law has accompanied the growth of statute law In the States. The few reported cases have required the courts to apply the common law or the statute law in particular situations, administer penalties to recalcitrant participants in the education system, and adjudicate between the claims of aggrieved parties. The Commonwealth Parliament has played an increasing part in the provision of education in Australia since Federation. National governments have established a Ministry of Education (and Science), engaged in international activities concerned with education, and accepted responsibility for education in external and internal territories. The Commonwealth has also influenced education in the States with its grants to tertiary, secondary, primary and pre-school education institutions and assistance to the students in those institutions. It has also made direct grants to particular groups in the society such as ex-service personnel and their dependants, student s of all ages, social service beneficiaries, aborigines and migrants, and enabled them to begin, continue or re-engage in education pursuits. The Commonwealth's involvement in education ralses the question of the constitutional validity of its laws on these matters. The definition given by the High Court of Australia, particularly as it relates to powers with respect to external affairs, defence, grants, appropriation, social services and establishment of religion leads to the conclusion that the Commonwealth's activities in education, although largely unchallenged before the Court, are within power.