Tuesday, October 05, 2004

HECS and international law

Charging fees in Australian universities is a violation of international law, and has been since 1989 when the Higher Education Contribution Scheme was introduced, write academics Di Otto, Mike Salvaris and Geraldine Van Beuren. (Also here)

Well, derr.

Far from “Australian governments have been hoping that no one would notice a treaty which has legally bound Australia for more than a quarter of a century”, the point was taken to the High Court in 1993, and there given short shrift.

The High Court’s reasons for refusing William Kavanagh (aka William Dudley Kavanagh and Dudley Kavanagh) leave to bring on case on HECS violating Article 13 of the UN International Covenant on Economic, Social and Cultural Rights don’t appear to be online.

My guess here, based on media coverage at the time*, is that the income-contingent nature of HECS was used to invert the original meaning of “capacity” within Article 13. As Robyn McKay, then an assistant secretary in the Department of Education, Employment and Training, wrote to Kavanagh in 1993:

HECS does not restrict access to higher education as it is based on personal capacity to pay . . . The Government’s higher education policy reflects the intent of article 13 of the covenant . . . but its capacity is obviously constrained by the funding available”*.

“Capacity” originally meant academic capacity, of course – a point which Otto, Salvaris and Van Beuren are admirably quite clear about. The three authors, incidentally, also effectively demolish the “limited available public funding” argument.

Otherwise, as to how and why the High Court got it so wrong in 1993, I suggest that the post-Mabo conservative backlash against the court would have made their Honours extremely reluctant to entertain such a politically controversial matter – especially when HECS had an effective bipartisan mandate (a rare thing then, but not now).

Oh, and the nation’s opinion-making baby boomers, including Di Otto**, were sitting on their hands something fierce at the time, too. The younger half of these boomers, it should surprise no one to know, were the main beneficiaries of the introduction of free higher education in 1973 – a policy move that was made explicitly, and with a three-year margin of generosity, pursuant to Article 13***.

My, how the worm turns – from crying “free education is a human right” in 1973, to crying poor in 1989, to crying wolf, and over spilt GenX sweat in 2004.

* Bruce Montgomery “HECS violates rights treaty: law student” Australian 11 August 1993

** Victoria University academic Mike Salvaris, although invisible according to that institution's website, is almost certainly a boomer too, while Geraldine Van Beuren is UK-based. In fairness, Di Otto only became a legal academic in 1994 – a date which still gave her plenty of time, however, to be trumpeting against the very same Labor government that had illegally introduced HECS.

*** The UN International Covenant on Economic, Social and Cultural Rights (1966) was signed by Australia on 18 December 1972, and became legally binding on 10 March 1976.

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