Academic journal article Australian Journal of Education

Australia, Quality Education and the 'Best Interests of the Child'

Academic journal article Australian Journal of Education

Australia, Quality Education and the 'Best Interests of the Child'

Article excerpt


The United Nations Convention on the Rights of the Child, ratified by Australia, states that the 'best interests of the child' shall be a primary consideration in all decisions about children, yet these are rarely considered in Australian education-related legislation and policy. This article considers the history and current practice of national educational reforms aimed at high quality education, including educational accountability and publication of school performance data. Research on quality education and parent perspectives is examined in two contexts: first, economic research on relationships between reported school performance and housing prices; and, second, research on indicators that parents value as quality education. The final section examines legal decisions in family law, where decisions about quality education and choice of school are explicitly based on the best interests of the child. We conclude that current Australian educational reforms, while intended to promote education quality, do not always give specific attention to the best interests of the child. They should.


Best interests of the child, education law, quality education, education reforms, family law, Australia


Article 3(1) of the UN Convention on the rights of the child ('CRC') (United Nations [UN], 1989, p. 2) states that:

   In all actions concerning children, whether undertaken by public or
   private social welfare institutions, courts of law, administrative
   authorities or legislative bodies, the best interests of the child
   [emphasis added] shall be a primary consideration.

Australia signed the CRC 22 August 1990, with ratification on 17 December 1990.

Unlike the Constitution and Bill of Rights of the United States of America (US) or the Charter of Fundamental Rights of the European Union (EU, 2000), the Australian Constitution does not protect individual interests or create individual rights. (1) In general, individual interests in Australia are protected through statute-based rights in specific circumstances or for specific groups, as in anti-discrimination law, or rights implied in common law, for example, the right to freedom of [political] expression (Nationwide News v Wills, 1992). Ratification and importation of conventions such as the CRC into Australian law and policy are therefore important for protection of individual rights in Australia.

Best interests of the child in Australian education law, regulations and policy

If the 'best interests of the child' are to be the primary concern in all matters relating to children, it is logical to expect that these are a major consideration in education laws and policies in Australia. Australian education laws and policies have a primary stated goal of provision of high quality education for all (see, e.g. Gillard & Garrett, 2013; Nelson, 2004). A bill before the Australian Parliament at the time of writing identifies the goal that

[t]he educational experience for students will be high-quality, inclusive and responsive [emphasis added] to the needs of students. (Garrett, 2013, p. 1)

An assumption of this discussion is that high quality education is an 'imperative' for Australia because of 'global economic, technological and social changes' and the need for an 'increasingly skilled workforce' (Australian Government [AG], 2005, p. 11). To be 'inclusive and responsive to the needs of all children', high quality education must also promote children's 'behavioural and psychosocial well-being, further education and training, occupational success, [and] productive and fulfilling participation in social and economic activity' (AG, 2005, p. 11), comprehensive goals that may relate to the best interests of each child.

Examination of Australian education-related statutory law, regulations and national education agreements created since ratification of the CRC, however, identifies very limited reference to 'best interests' of the child for any educational purpose. …

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