Unrealised promises and hollow claims: Australia’s failure to enact its international obligations under the CRPD for the education of students with disability

Abstract

The adoption of the United Nations Convention on the Rights of Persons with Disabilities (CRPD) in 2006 and, in particular, Article 24 was a landmark in the struggle of people with disability for recognition of their fundamental human rights, including their right to education. As a legally binding treaty under international law, imposing obligations on States Parties that signed and ratified it (including Australia), it required those States Parties to bring their domestic legislation into conformity with their CRPD obligations. The Disability Discrimination Act 1992 (DDA), and the Disability Standards for Education 2005 (Standards) made under it, remain the principal Australian statutory protection of the rights of students with disability to access education on the basis of equality and non-discrimination even though the DDA and the Standards preceded the CRPD. This article explores the proposition that the DDA and the Standards do not adequately implement Australia’s international legal obligations in relation to the education of students with disability.

Note: This article makes use of agreed or legally defined terms. These terms are presented in italics throughout.

Keywords

Inclusive education disability Disability Discrimination Act CRPD human rights segregation special education

Introduction

The development, over nearly 80 years, of a comprehensive body of international human rights law under the auspices of the United Nations (UN), reflects a shared understanding among nations that there should be a universal set of standards to guarantee basic rights for all human beings, and established mechanisms to protect and promote them. The UN Convention of the Rights of Person with Disabilities (CRPD) applies the same standards and norms embodied by international law to guarantee human rights for every person, but it does this in a way that is specific to the situation of people with disability and the barriers they face (Kayess & French, 2008). This application has contributed to developments and introduced innovations in international human rights law (Kayess & French, 2008), such as an expanded model of equality incorporating a positive duty to provide reasonable accommodation (Degener, 2016). In the context of education, the CRPD aims to guarantee to people with disability the same things that every person has a right to expect – including the right to learn in the communities in which they live, the right to be supported to develop their talents and abilities, the right not to be discriminated against and the right to participate fully on an equal basis with others (Committee on Economic, Social and Cultural Rights, 1999).

Despite the promises and assertions made by successive governments since Australia’s ratification of the CRPD, human rights abuses and inequalities remain a pervasive part of the experience of Australians with disability ‘from cradle to grave’ (Australia Civil Society CRPD Shadow Report Working Group, 2019). Every day, Australian students with disability are excluded from school, denied the supports and accommodations needed to access education and segregated because of their disability. As adults, they will continue to face discrimination in every area of life, be more likely to live in poverty (Australian Institute of Health and Welfare [AIHW], 2022) and to experience violence and abuse, neglect and exploitation (The Centre of Research Excellence in Disability and Health, 2021). These adverse experiences have led to a range of inquiries in Australia over several decades, including the current Royal Commission into Violence, Abuse, Neglect and Exploitation of People With Disability (Disability Royal Commission), the terms of reference for which explicitly recognise that:

(1) ‘people with disability are equal citizens and have the right to the full and equal enjoyment of all human rights and fundamental freedoms’; and

(2) ‘Australia has international obligations to take appropriate legislative, administrative and other measures to promote the human rights of people with disability […] under the Convention on the Rights of Persons with Disabilities’.

(Commonwealth Letters Patent, 2019, p.1, p.1)

The Australian Government points to its 30-year-old Disability Discrimination Act 1992 (DDA) as evidencing its domestic implementation of its international human rights obligations to people with disability (Australian Government, 2019). Recent reviews of the effectiveness of the DDA, and the Disability Standard for Education (Standards) made under it, have questioned its effectiveness in the area of discrimination in education and explore a range of different considerations for this (Duncan et al., 2020; de Bruin, 2019b). However, there has been little substantive consideration of the alignment between the DDA (including the Standards) on the one hand, and the CRPD on the other, and the extent to which these statutory domestic protections from disability discrimination adequately discharge Australia’s international obligations in relation to the education of students with disability. This article will demonstrate that the DDA and the Standards:

(1) do not adequately implement Australia’s obligations under international human rights law (including in particular the CRPD) in relation to the education of students with disability; and

(2) operate to legitimise violations of the enjoyment of those rights, particularly in relation to the denial of reasonable accommodation and the continued segregated education of students with disability.

Methodology

This article draws on human rights–based legal and socio-legal analysis of the right to education under the CRPD, with regard to the conceptual framework that underpins it (Degener, 2016). This analysis is guided by:

(1) the international rules applicable to treaty interpretation as set out in the Vienna Convention on the Law of Treaties, and

(2) treaty body jurisprudence, such as Concluding Observations on implementation by States Parties, General Comments about treaty provisions and other relevant international instruments (Keller & Ulfstein, 2012).

The article also considers key provisions of the DDA and their interpretation by Australian courts, to examine their conformity with the CRPD in relation to the right to education. Legal doctrinal analysis is used as the starting point (Hutchinson & Duncan, 2012), together with a socio-legal approach to explore its operation and impact in context.

While the term persons with disabilities is used in the CRPD, the term people with disability is adopted in this article, consistently with terminology commonly used in Australia in policy contexts (Disabled Persons Organisations, n.d.) which Kayess and French (2008) suggest is more accurate from an ontological and phenomenological perspective.

Analysis

Human rights framework and key concepts

Foundations of the right to education of people with disability

The CRPD is widely regarded as the most authoritative international statement on the rights of people with disability, having been negotiated and drafted with their extensive participation and input (Kayess & French, 2008). Importantly, it was the culmination of a shift that began in the 1970s and 1980s and was led by the disability community itself in the wake of important gains from other movements for the rights of marginalised minority groups, as they too sought empowerment and self-determination. It was accompanied by a new understanding of the individual and systemic oppression experienced by people with disability, which challenged the prevailing medical model and individual-deficit perspectives of disability (Rieser, 2017).

The CRPD’s conceptualisation of the right to education of students with disability evidences this shift, in contrast to some of its most prominent forerunners. These include the 1982 World Programme of Action Concerning Disabled Persons (WPO) (adopted by the UN General Assembly at the end of the International Year of Disabled Persons in 1981), the 1993 UN Standard Rules on the Equalisation of Opportunities for Persons with Disabilities (Equalisation Rules) (adopted at the end of the Decade of Disabled Persons declared from 1983 to 1992) and UNESCO’s 1994 Salamanca Statement and Framework for Action on Special Needs Education (Salamanca Statement). The latter succeeded in carrying the notion of inclusive education for students with disability beyond the global disability agenda and into the Education for All movement, being led internationally by bodies including UNESCO and the World Bank, which had, until then, largely overlooked disability issues (Davis et al., 2020). While the WPO, the Equalisations Rules and the Salamanca Statement were the first prominent international instruments to express the guiding philosophy that students with disability should have opportunities to access the general education system as a means of achieving full participation in society and committed to a ‘decrease in institutions and special schools’ (WPO, para. 61), they fell short of recognising inclusive education as a fundamental human right of all students with disability based on equal rights of access and participation, and outlining a set of coherent principles for determining the scope and application of these rights (Kayess & French, 2008).

The introduction of the DDA in the final year of the Decade of Disabled Persons represented Australia’s answer to the call in the WPO for nations to adopt ‘legislation which deals with [disabled people’s] needs’ (1981, para 66). In effect, the DDA sought to implement the Australian Government’s commitments as understood at that time, as a signatory to various antecedent international declarations on the rights of people with disability. Although the DDA was lauded for its innovation and promise (Basser & Jones, 2002), its genesis in pre-CRPD instruments is evident in its definitions, conceptualisations and operation, and reflects their shortcomings. Writing about the impact of these earlier pre-CRPD instruments, Kayess and Sands state:

[I]n and of themselves, these aspects of international human rights law achieved very little in improving recognition and respect of the human rights of people with disability. The normative standard of the medical model of disability embedded in the international human rights framework made it challenging to interpret and apply human rights to the inequality, discrimination and segregation experienced by people with disability. (2020, p.11)

In 2002, a decade later, negotiations commenced for the CRPD as a dedicated disability human rights treaty. Before the end of that process in 2006 and its ratification of the CRPD on 17 July 2008, Australia would see the first comprehensive review of its DDA culminating in the 2004 report of the Productivity Commission and the introduction of the Standards in 2005. Despite reviews and amendments in the years since their introduction, both the DDA and the Standards remain substantially pre-CRPD conceptualised creatures. Now with more than a decade of CRPD jurisprudence that has helped to clarify the meaning, scope and application of the human right of people with disability to inclusive education, and 30 years of the application and interpretation of the DDA and the Standards, the gaping extent of their divergence is clear.

Article 24 of the CRPD

Although recognition of a universal right to education and its status as a pillar of human rights (Kayess & Green, 2016) was articulated first in the Universal Declaration of Human Rights (1948) and more comprehensively in the International Covenant on Economic, Social and Cultural Rights (1966) (ICESCR), prejudice, discrimination, inaccessibility and other structural and systemic issues continued to prevent the realisation of education rights for people with disability (Davis et al., 2020). What Article 24 of the CRPD in effect seeks to do is to apply the normative standards embodied in the universal human right to education under international law to the specific situation of people with disability (Kayess & French, 2008). The explicit focus of Article 24 on inclusive education reflects the emergence of this notion in context as a counter-measure against the denial of education rights to people with disability through exclusion (Davis et al., 2020; Cukalevski & Malaquias, 2019). In essence, Article 24 imposes obligations on States Parties to ensure that people with disability can realise their right to education ‘without discrimination and on the basis of equality of opportunity’ (Art. 24.1 and GC4, para. 1) and complements this with a positive philosophy that envisages the progressive actions (Art. 24.3 and 24.5) required to be taken by governments to ‘ensure an inclusive education system at all levels’ (Art. 24.1 chapeau). As well as affirming disability as a dimension of human diversity (Art. 24.1(a)) and the goals of full and effective participation in society (Art. 24.1(c)), Article 24 seeks to specifically guarantee the right of students with disability to:

(1) non-exclusion ‘from the general education system on the basis of disability’ (Art. 24.2(a));

(2) ‘an inclusive […] education on an equal basis with others in the communities in which they live’ (Art. 24.2(a)); and

(3) ‘reasonable accommodation’ (Art. 24.2(c)) and effective individualised supports ‘within the general education system’ and ‘consistent with the goal of full inclusion’ (Art. 24.2 (d) and (e)). (emphasis added)

However, the obligations in Article 24 are considered to be of a ‘hybrid’ nature (Cukalevski & Malaquias, 2019, p.5) in that they are comprised of obligations:

(1) that are to be fulfilled immediately because they are characterised as civil and political rights, such as the right to equality and non-discrimination and the obligation to provide reasonable accommodation (General Comment No.6, 2016, para 31); and

(2) that are to be fulfilled progressively over time, as cultural, social and economic rights (Art 4.2; Broderick & Quinlivan, 2017).

The CRPD’s immediately applicable obligations of equality and non-discrimination including the provision of reasonable accommodation, are expressed in Article 5 as overarching obligations under the Convention. However, the same equality standard is evoked throughout Article 24 specifically in relation to the right to education, in its language of ‘equality’ and treatment ‘on an equal basis’ and ‘without discrimination’ and in the requirement to provide ‘reasonable accommodation’ (GC6, para. 7).

The usefulness of the distinction between civil and political rights versus cultural, social and economic rights and its implications has been the subject of debate for some time (Alston & Quinn, 1987; Eide, 2008), but it may help to explain the approach of the Australian Government to the implementation of its Article 24 obligations in enacting, through the DDA, only its anti-discrimination elements, which are immediately applicable, while seemingly overlooking its progressively realisable obligations (Committee on the Rights of Persons with Disabilities, 2019). Although progressively realisable obligations are envisaged to be achieved over time, State Parties are nonetheless required to move ‘as expeditiously and effectively as possible’ towards their full realisation (CRPD, Art 4(2); ICESCR Art 2; Committee on Economic, Social and Cultural Rights, 1990, para. 2). As demonstrated in this analysis however, even the partial enactment effort of the Australian Government in respect of its immediately applicable obligations under Article 24, represented by the DDA and the Standards, fails to adequately incorporate into our domestic law the equality and non-discrimination norms embodied in the CRPD and applicable to the right to education.

Overview of section 22 of the DDA and the Standards

As stated in its objectives (section 3), the DDA aims to ‘eliminate, as far as possible, discrimination against persons on the ground of disability’ in specified areas including education, and ‘to ensure as far as practicable that persons with disabilities have the same rights to equality before the law’. While a range of equal opportunity and anti-discrimination laws have also been enacted by State and Territory legislatures and operate in the context of education of students with disability (Murray, 2021), the DDA, which applies across all Australian jurisdictions and relies on the Commonwealth’s constitutional powers (Stubbs et al., 2020), is widely considered to provide the superior protection (Duncan et al.,2020). Importantly, none of the State and Territory anti-discrimination laws contain education standards. However, the Standards, as a subordinate instrument with the purpose of clarifying the legal obligations of education providers under the DDA and the rights of people with disability in relation to education, are constrained by the limitations in the DDA’s nature and framework as an anti-discrimination statute.

Section 22 of the DDA is the only provision in that statute that addresses discrimination in education. It makes it unlawful for an educational authority (including any school) to discriminate on the grounds of disability in deciding applications for admission (section 22(1)), in its development of curriculum (section 22(2A)) or in expelling a student or subjecting them to any other detriment (section 22(2)). The section also contemplates the existence of educational institutions established for students who have a particular disability, and makes it clear that rejecting the admission of a person who does not have that disability is not unlawful discrimination under section 22 (section 22(3)). The key concepts underpinning the operation of section 22 are discrimination on the ground of disability and the duty to provide reasonable adjustments.

Misalignment of cornerstone concepts in the CRPD and DDA

Definition of disability: A flawed foundation in the DDA

An interesting feature of the CRPD is that it does not provide a formal definition of the term disability. However, its conceptualisation, throughout the text of the CRPD, reflecting a social model understanding (Oliver, 1996), has been widely recognised and one of the ways in which that treaty departs from some of its antecedent UN instruments (Kayess & French, 2008; Degener, 2016). The social model of disability, which emerged as a challenge to the then prevailing understanding of disability as an inherent and individual problem resulting from ‘abnormality’ and functional limitations, frames disability instead as a social phenomenon resulting from the way that society is organised in ways that do not include people with impairments and deny them equal access and opportunity (Barnes, 2013). Under the social model impairments are distinct from the experience of disability. Paragraph (e) of the CRPD’s preamble describes ‘disability’ as ‘an evolving concept’ that ‘results from the interaction between persons with impairments and attitudinal and environmental barriers that hinders their full and effective participation in society on an equal basis with others’ (emphasis added). This is also reflected in Article 1 that provides that ‘[p]ersons with disabilities include those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others’ (emphasis added).

The DDA’s definition of disability (section 4) on the other hand, while broad in scope (Basser & Jones, 2002), is based primarily on impairment categorisations as being synonymous with disability. This reflects a medical model approach that is also evident in the above-mentioned pre-CRPD international instruments that were prominent at the time of the introduction of the DDA. This is notwithstanding amendments made to the DDA’s definition of disability in 2009 after the ratification of the CRPD, with the intent of addressing the problematic outcomes of the widely criticised High Court decision in 2003 of Purvis v New South Wales (hereafter Purvis (2003)) (Gooding & Kayess 2020; Campbell, 2007; Productivity Commission, 2004). Specifically, section 4 of the DDA was amended to make it clear that a disability ‘includes behaviour that is a symptom or manifestation of the disability’. These amendments have permitted a flawed analysis of disability discrimination especially where student behaviour is a factor in the alleged discrimination, by treating behaviour as a personal and inherent phenomenon to the impairment without regard to external factors. In their commentary about Purvis (2003), which continues to be the judicial precedent adopted by the courts, Gooding and Kayess (2020, p.203) note:

[T]he Court accepted that Daniel had a disability, but characterised his behaviour early in the judgment as being inherent to his impairment in isolation from his environment. The Court did not consider the extent to which his behaviour occurred in direct response to his environment despite the school having provided what appeared to be a standard classroom environment based on ableist norms.

The conceptualisation of disability in the DDA effectively negates the interactional nature and environmental dimension recognised by the CRPD and arguably establishes an inadequate foundation for the operation of disability discrimination protections that will inevitably fall short of the equality and non-discrimination standards required by the CRPD. This has been especially problematic for students with intellectual, sensory or other disabilities who may be more likely to express the failure to have their needs met or the adverse impact of their environment through their perceived ‘challenging behaviour’, and who continue to be largely denied the benefit of disability discrimination protections (Malaquias, 2020; Dickson, 2004; 2006) guaranteed by the CRPD.

Limited scope of discrimination

The CRPD and the DDA (including the Standards) each prohibit discrimination on the basis of disability. However, they reflect very different approaches. The DDA adopts the twin concepts of direct (section 5) and indirect (section 6) discrimination, to which the duty to make reasonable adjustments is tied. Direct discrimination is based on the notion of treating a person with disability in a way that is less favourable than a person without that disability in similar circumstances, whereas indirect discrimination is concerned with practices or requirements that apply generically but disadvantage a person because of their disability. This distinction broadly reflects the development of theories of equality before the law, from traditional formal equality based on the Aristotelian view that ‘equals should be treated equally’ (Aristotle, n.d.), to substantive equality that takes a broader approach and recognises that there are circumstances, especially under conditions of social inequality, where equal treatment may result in indirect discrimination (MacKinnon, 2020).

The formal equality approach is evident in the DDA’s test of direct discrimination, which depends on the relative notion of less favourable treatment and creates a notional comparator against whom the conduct of the alleged discriminator is tested. However, as Campbell and Smith (2015) note the use of a comparator in discrimination law gives rise to a range of problems, especially in the context of disability where it establishes a non-disabled comparator as ‘the norm by reference to which the disabled person is judged’ (p. 92). In the Purvis case, which involved a claim of direct discrimination against a school, the test for discrimination required only a comparison of the consistency of disciplinary responses to a disabled and non-disabled student each engaging in the same behaviour and in materially similar circumstances (Gooding & Kayess, 2020), and overlooked the impact of the impairment and environmental factors on that behaviour (e.g. the school’s failure to adequately cater for the student’s cognitive or functional differences). The more recent case of Sklavos v Australasian College of Dermatologists decided by the Full Federal Court in 2017 effectively negates any right to adjustments in the instance of direct discrimination unless the claimant can establish that the reason for refusal to make adjustments is the disability itself (Taylor, 2020). That case concerned a claim by Dr Sklavos against the Australasian College of Dermatologists related to its requirement that, to be admitted as a Fellow, he had to sit the College’s examinations. Dr Sklavos was unable to do so due to a specific phobia related to those examinations and the College refused to waive its admission requirement or to provide the adjustment he sought. While indirect discrimination does not rely on a comparator test, the scope of its application in the DDA is also significantly constrained by the qualification that the relevant requirement or condition is not discrimination if it is deemed to be ‘reasonable having regard to the circumstances of the case’ (section 6(3)) and by conservative judicial interpretations of the law favouring limited notions of equality and discrimination (Taylor, 2019).

The CRPD does not explicitly distinguish between, or limit its concept of discrimination to, direct and indirect discrimination; rather, its definition of discrimination on the basis of disability in Article 2, is concerned with any ‘distinction, exclusion or restriction on the basis of disability’ that effectively limits or denies human rights and fundamental freedoms. Importantly, it explicitly includes the ‘denial of reasonable accommodation’ as a stand-alone form of discrimination. The requirement for reasonable accommodation as a prima facie entitlement is then expressed in Article 5, the CRPD’s overarching provision that prohibits ‘all discrimination on the basis of disability’. The UN Committee on the Rights of Persons With Disabilities (CRPD Committee) as that treaty’s monitoring body, has provided States Parties, in its General Comment No.6 (UN, 2018) (GC6), with detailed guidance about the CRPD’s standard of equality and non-discrimination which it characterises as inclusive equality, a notion that transcends not only formal equality but extends and expands on previous understandings of substantive equality and discrimination in international human rights law:

Inclusive equality is a new model of equality developed throughout the Convention. It embraces a substantive model of equality and extends and elaborates on the content of equality in: (a) a fair redistributive dimension to address socioeconomic disadvantages; (b) a recognition dimension to combat stigma, stereotyping, prejudice and violence and to recognize the dignity of human beings and their intersectionality; (c) a participative dimension to reaffirm the social nature of people as members of social groups and the full recognition of humanity through inclusion in society; and (d) an accommodating dimension to make space for difference as a matter of human dignity. The Convention is based on inclusive equality. (GC6, para 11).

Inclusive equality under the CRPD is understood as encompassing procedural requirements concerned with the removal of barriers to access on equal terms (Broderick, 2015) and substantive requirements concerned with whether a person has a ‘genuinely equal chance of satisfying the criteria for access’ (Fredman, 2016, p.724). While consideration of potential models for the operationalisation of the CRPD’s standard of equality and non-discrimination into domestic law is beyond the scope of this article, it is evident that the DDA applies limited notions of disability discrimination that fall substantially short of the CRPD standard. In addition, as discussed in more detail below, the DDA arguably gives some cover to two key forms of discrimination in breach of the right to education under Article 24: the denial of reasonable accommodation and the segregation of students with disability in ‘special schools, units and classrooms. Their centrality to disability discrimination in education was recognised by the CRPD Committee in its General Comment No.4 (2016) (GC4) on the right to inclusive education in its unequivocal assertion that ‘the right to non-discrimination includes the right not to be segregated and to be provided with reasonable accommodation’ (GC4, para 10).

‘Reasonable’ not a limitation on the duty to provide accommodations

As noted above, the CRPD imposes a positive duty on State Parties to provide reasonable accommodation that is subject only to the concept of disproportionate or undue burden. This duty is applicable in the context of education and is stated in Article 24 which requires States Parties to ensure that reasonable accommodation of the individual’s requirements is provided (Art. 24.2(c)). The CRPD Committee went to some lengths in GC6 to explain these concepts, making it clear that the term reasonable is not intended to operate as a word of limitation:

‘Reasonable accommodation’ is a single term, and ‘reasonable’ should not be misunderstood as an exception clause; the concept of reasonableness should not act as a distinct qualifier or modifier to the duty. It is not a means by which the costs of accommodation or the availability of resources can be assessed — this occurs at a later stage, when the disproportionate or undue burden assessment is undertaken. (GC6, para 25(a))

Importantly, the Committee asserts that the concept of reasonableness goes only to the ‘relevance, appropriateness and effectiveness for the person with a disability’ and whether it ‘achieves the purpose (or purposes) for which it is being made, and is tailored to meet the requirements of the person with a disability’ (GC6, para 25(a) and 26).

While the DDA adopts similar terminology in the concepts of reasonable adjustments and unjustifiable hardship and also imposes a duty to make reasonable adjustments to avoid discrimination, the tortuous application of these concepts across the DDA and the Standards has seen much ink spattered by scholars in law and education and given rise to considerable confusion among stakeholders struggling to make sense of them (Urbis Australia, 2015). One thing seems clear, however; these formalistic DDA concepts in practice bear little resemblance to their substantive CRPD brethren. For example, the DDA in section 4 states that ‘an adjustment to be made by a person is a reasonable adjustment unless making the adjustment would impose an unjustifiable hardship on the person’. On its face, reasonableness refers only to the degree of hardship imposed on the alleged discriminator in making the adjustment and does not import a qualitative criterion by reference to the disability and the purpose of the adjustment. This limitation is again repeated in section 29A of the DDA, which further provides that disability discrimination is lawful ‘if avoiding the discrimination would impose an unjustifiable hardship on the discriminator’, thereby applying a double limitation on the duty to provide reasonable adjustments with the effect that a ‘fairly thick protection is provided to schools’ in determining whether they have breached that duty (Dickson & Cumming, 2018, p.320).

Although the Standards were adopted with the seeming intent of clarifying the obligation to provide reasonable adjustments in education, they appear to have in fact added additional barriers. For example, they provide that ‘an adjustment is reasonable in relation to a student with a disability if it balances the interests of all parties affected’ (Standards, section 3.4(1)) and expressly qualify the provision of reasonable adjustments to students with disability by reference to a range of factors, including impact on other students, staff or the education provider and the costs and benefits of adjustments (Dickson, 2014). Some disability legal advocates have gone as far as calling for the rescission of the Standards altogether (Disability Discrimination Legal Service, 2022). Arguably, while the CRPD recognises a strong prima facie right of students with disability to supports and accommodation, the DDA and the Standards, through the application of multiple qualifying concepts and weak tests for compliance, provide only for a limited duty to provide adjustments and substantial defences to breach. The effect of this is that students with disability are left with very few enforceable rights and protections under domestic law.

Separate is not equal: Segregation in education as discrimination

The CRPD Committee considers that segregation ‘occurs when the education of students with disabilities is provided in separate environments designed or used to respond to a particular impairment or to various impairments, in isolation from students without disabilities’ (CRPD Committee, 2016, para 11) and that ‘segregated models of education, which exclude students with disabilities from mainstream and inclusive education on the basis of disability, contravene articles 5(2) and 24(1)(a)’ (CRPD Committee, 2018, para 64). In 2019 during Australia’s appearance at the 22^nd Session of the CRPD Committee in Geneva, Dr Ben Gauntlett (2019), the Federal Disability Discrimination Commissioner stated plainly:

Applying Article 24 of the Convention, Australia has a segregated education system where schools have turned away students because of their disability and the rate and extent of segregation is growing, which is contrary to Article 24 and GC4.

The DDA, in its enactment of section 45 on special measures as a specific exempting provision from its anti-discrimination prohibitions, like section 22(3), appears to accept the construction of segregation on the basis of disability as a form of discrimination. The effect of section 45 is to permit segregated services, facilities and programs for people with disability, including in education, to meet ‘special needs’ (noting that the term ‘special’ – and increasingly ‘specialist’ – is a common euphemism for education that entails segregation of students with disability). While the issue of whether segregation is indeed necessary (or even beneficial) to meet the education ‘needs’ of people with disability (de Bruin, 2019a) is beyond the scope of this article, there is nothing in the CRPD that exempts segregation on the basis of disability in education (or in any other area).

However, the absence of an explicit prohibition in the CRPD in relation to segregated education has given rise to much commentary over the years (Cukalevski & Malaquias, 2019). This has often been leveraged by opponents of desegregation arguing to preserve the dual general/special education system status quo (Anastasiou et al., 2018), such as professional groups invested in the provision of ‘special’ education (Council of Europe Commissioner for Human Rights, 2017, p.10–11). In more recent times the Australian Government has resorted to the same argument to mount its dogged defence of segregated settings (Australian Government, 2016, 2019, 2020b) and the dual system that has prevailed since the 1970s across Australia and continues to grow (Chambers & Forlin, 2021; de Bruin, 2019b). Kayess (2019), who was appointed by the Ad Hoc Committee as Facilitator for the drafting of Article 24 of the CRPD and is the current Chair of the CRPD Committee, has detailed the process of the negotiations, noting that the final text reflected explicit agreement to remove wording inserted early in the drafting process that had permitted, in specified circumstances, education for students with disability in segregated settings. The reason for its removal, which was championed by the then Australian Government, was a recognition that it would have embedded ‘parallelism’ (Cisternas Reyes, 2019, p. 421) and the notion of ‘choice’ of segregation, contrary to the general principles of equality and ‘full and effective participation and inclusion in society’ at the core of the CRPD (Art. 3(c); see also Kayess, 2019; Kayess & Sands, 2020).

The Australian Government has since then also sought to invoke the notion of ‘parent choice’ in Article 13 of the ICESCR to support its contented interpretation of the CRPD, to oppose desegregation. However, nothing in the ICESCR requires the maintenance of segregated education on the basis of disability (indeed, that Convention is considered to embed a prima facie prohibition of ‘separate’ standards for ‘separate’ groups, see Kayess, 2019; Kayess & Sands, 2020) and the requirements of the CRPD, as the more recent and specific treaty, are to transition to an inclusive education system. It seems particularly egregious to seek to justify segregated education on the basis of parent choice given the extensive discrimination experienced by students with disability and their families from the general education system that effectively denies them access to it (Poed et al., 2020; Duncan et al., 2020; Australian Senate, 2016).

Not surprisingly, the Australian Government’s regressive position on segregated education and the maintenance of the dual system, has found no real support among UN treaty monitoring bodies, including the Committee on Economic, Social and Cultural Rights (2017), the Committee on the Rights of the Child and the CRPD Committee (most recently in their 2022 joint statement), UN experts (e.g. United Nations Commissioner for Human Rights, 2019; UN Special Rapporteur on the Rights of Persons With Disabilities, 2020) and disability representative organisations and advocates (Children and Young People With Disability Australia et al., 2020). It also represents a departure from its own position at the time of entry into the CRPD where it noted that ‘its approach to education is the entitlement to inclusive education’ and rejected building exceptions into Article 24 in favour of ‘a clear a statement that [people with disability] receive the support required to facilitate their education within the general education system and the communities in which they live’ (United Nations, 2006, p.61). In a legal opinion prepared for the Disability Royal Commission, human rights law expert Emeritus Professor Andrew Byrnes also rejected the Australian Government’s current position, as outlined to the Disability Royal Commission (Australian Government, 2020b), stating:

I do not agree with the central contentions that the CRPD permits the indefinite or long term maintenance of segregated special schools […] or that Article 13 of the International Covenant on Economic, Social and Cultural Rights requires that Australia continue to allow special schools. (Byrnes, 2020, p.4, p.4)

Notwithstanding clear guidance by the CRPD Committee, in particular about the requirements of Article 24 through GC4 and its Committee on the Rights of Persons With Disabilities 2013 and 2019 Concluding Observations on Australia’s compliance with the CRPD, the Australian Government continues to ignore the issue of segregation in education as a form of discrimination. For example, in the recent review of the Standards in 2020, the Discussion Paper (Australian Government, 2020a, p.4) expressly limited the scope of the review by excluding issues in relation to inclusive education and the segregation of students with disability in ‘special’ schools.

It is worth noting that the CRPD Committee recently issued its first ruling in a case brought by parents against Spain under the CRPD’s Optional Protocol (United Nations, 2018), holding the Spanish government liable for breaching Article 24 after it enforced an executive action to place a student in a segregated ‘education centre’ within a regular school. In doing so, the Committee affirmed the student’s right to learn in a general education classroom and to receive accommodation. Spain’s failure to adopt adequate statutory protections for the right to education was also the subject of criticism, given the time elapsed since its adoption of the CRPD in 2008. Australia has also ratified the Optional Protocol, and is thus at risk of similar complaints and rulings by the CRPD Committee.

Conclusion

While the achievement of an inclusive education system and the aims of Article 24 of the CRPD call for comprehensive systemic reform to be progressively implemented over time, legislation is a powerful lever within a broader reform agenda (Australian Coalition for Inclusive Education, 2021). Further, Australia has specific immediately applicable obligations under the CRPD to take measures to eliminate discrimination on the basis of disability, including in the context of education. Over the last 30 years, the DDA and the Standards have unfortunately underachieved in facilitating the realisation of the right to education of students with disability, and have in significant part operated to insulate and entrench discriminatory practices and segregated education settings – with the consequences of discriminatory experiences in the general education system perversely fuelling growth in segregation – by exclusion often in the guise of ‘parental choice’.

The DDA, in its terms and operation, is a pre-CRPD creature founded on pre-CRPD two-dimensional conceptualisations – it has proven incapable of adapting or being adapted to the social model framework and equality and non-discrimination legal concepts that underpin Australia’s obligations under the CRPD. As such, a rewrite and modernisation of the DDA, with accessible and effective enforcement mechanisms, is well overdue and a priority if Australia is ever to implement its international obligations in relation to the rights of people with disability, informed by and in discharge of its three-dimensional obligations under the CRPD, the leading international instrument on the right to education of students with disability.

Footnotes

Declaration of conflicting interests

The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.

Funding

The author(s) received no financial support for the research, authorship, and/or publication of this article.

ORCID iD

Catia Malaquias

References

Alston

Quinn

(1987). The nature and scope of states parties' obligations under the international covenant on economic, social and cultural rights, Human Rights Quarterly, 9(2), 15. https://doi.org/10.2307/762295, https://www.jstor.org/stable/762295

Anastasiou

Gregory

Kauffman

(2018). Article 24: Education. In Bantekas

Stein

M.A.

Anastasiou

(Eds.), The UN convention on the rights of persons with disability: A commentary (pp. 656–704). Oxford University Press.

Australia Civil Society CRPD Shadow Report Working Group . (2019). Disability rights now 2019 – Australian civil society shadow report to the United Nations Committee on the rights of persons with disabilities: UN CRPD review 2019.

Australian Coalition for Inclusive Education . (2021). Driving change: A roadmap for achieving inclusive education in Australia. https://acie105204494.files.wordpress.com/2021/02/acie-roadmap-final-11-feb-2021.pdf

Australian Government . (2020a). Review of the disability standards for education – discussion paper.

Australian Government (2020b). Submission to the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability: The Australian Government's background paper on the United Nations Convention on the Rights of Persons with Disabilities Part 2 - The right to Education in Article 24. https://disability.royalcommission.gov.au/system/files/2020-09/Australian%20Government%20Position%20Paper%20on%20the%20UNCRPD%20-%20Part%202%20-%20The%20right%20to%20education%20in%20article%2024.pdf

Australian Institute of Health and Welfare . (2022). People with disability in Australia 2022. Catalogue number DIS 72, AIHW, Australian Government.

Australian Senate Education and Employment References Committee . (2016). Report: Access to real learning: The impact of policy, funding and culture on students with disability. https://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Education_and_Employment/students_with_disability/Report

Barnes

(2013). Understanding the social model of disability: Past, present and future. In Watson

Roulstone

C.M.

(Eds.), Routledge handbook of disability studies (pp.12–29). Routledge.

10.

Basser

Jones

(2002). The Disability Discrimination Act 1992 (Cth): A three-dimensional approach to operationalising human rights. Melbourne University Law Review, 26(2), 254–284. https://search.informit.org/doi/10.3316/agispt.20025188

11.

Broderick

(2015). The long and winding road to equality and inclusion for persons with disabilities: The United Nations Convention on the Rights of Persons with Disabilities Intersentia.

12.

Broderick

Quinlivan

(2017). The right to education: Article 24 of the CRPD. In O’Mahony

Quinn

(Eds.), Disability law and policy: An analysis of the UN Convention (pp. 293–310). Clarus Press.

13.

Byrnes

(2020). Analysis of article 24 of the convention on the rights of persons with disabilities and its relation to other international instruments. Royal commission into violence, abuse, neglect and exploitation of people with disability.

14.

Campbell

(2007). A hard case making bad law: Purvis v New South Wales and the role of the comparator under the Disability Act 1992 (Cth). Federal Law Review, 35(1), 111–128. https://doi.org/10.22145/flr.35.1.4

15.

Campbell

Smith

(2015). Direct discrimination without a comparator? Moving to a test of unfavourable treatment, Federal Law Review, 43(1), 91–118. https://doi.org/10.22145/flr.43.1.4

16.

Centre of Research Excellence in Disability and Health . (2021). Nature and extent of violence, abuse, neglect and exploitation against people with disability in Australia. Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability. https://disability.royalcommission.gov.au/publications/research-report-nature-and-extent-violence-abuse-neglect-and-exploitation-against-people-disability-australia

17.

Chambers

Forlin

(2021). An historical review from exclusion to inclusion in Western Australia across the past five decades: What have we learnt? Education Sciences, 11(3), 119. https://doi.org/10.3390/educsci11030119

18.

Children and Young People with Disability Australia Women with Disabilities Australia National Ethnic Disability Alliance Australian Federation of Disability Organisations Inclusion Australia Disability Advocacy Network Australia . (2020). Segregation of people with disability is discrimination and must end: Position statement. https://dpoa.org.au/wp-content/uploads/2020/11/Segregation-of-People-with-Disability_Position-Paper.pdf

19.

Cisternas Reyes

M. S.

(2019). Perspectives from the UN committee on the rights of persons with disabilities. In De Beco

Quinlivan

Lord

(Eds.), The right to inclusive education under International Human Rights Law (pp. 122–140). Cambridge University Press.

20.

Committee on the Rights of The Child Committee and Committee on the Rights of Persons with Disabilities . (2022). Joint Statement CRC-CRPD on the rights of children with disabilities

21.

Council of Europe Commissioner for Human Rights . (2017). Fighting school segregation in Europe through inclusive education: A position paper. https://rm.coe.int/fighting-school-segregation-in-europe-throughinclusive-education-a-pos/168073fb65

22.

Cukalevski

Malaquias

(2019). A CRPD analysis of NSW’s policy on the education of students with disabilities – a retrogressive measure that must be halted. Australian Journal of Human Rights, 25 (2): 232–247. https://doi.org/10.1080/1323238X.2019.1609720

23.

Davis

Gillett-Swan

Graham

L.J.

Malaquias

(2020). Inclusive education as a human right. In Graham

L.J.

(Ed.), Inclusive education in the 21st century: Theory, policy and practice (pp. 79–99). Routledge. https://doi.org/10.4324/9781003116073

24.

de Bruin

(2019a). Does inclusion work? Graham

L.J.

(Ed.), Inclusive education in the 21st century: Theory, policy and practice (pp. 55–76). Routledge. https://doi.org/10.4324/9781003116073

25.

de Bruin

(2019b). The impact of inclusive education reforms on students with disability: An international comparison. International Journal of Inclusive Education, 23(7–8), 811–826. https://doi.org/10.1080/13603116.2019.1623327

26.

Degener

(2016). Disability in a human rights context. Laws 5(3): 35–59. https://doi.org/10.3390/laws5030035

27.

Dickson

(2004). Disability discrimination, unjustifiable hardship and students with disability-induced problem behaviour. Australia & New Zealand Journal of Law & Education, 9(2), 37–51. https://search.informit.org/doi/abs/10.3316/aeipt.143345

28.

Dickson

(2006). Disability standards for Education and the obligation of reasonable adjustment. Australia & New Zealand Journal of Law & Education, 11(2), 23–42. https://search.informit.org/doi/abs/10.3316/aeipt.158518

29.

Dickson

(2014). Disability Standards for Education 2005 (Cth): Sword or shield for Australian students with disability? International Journal of Law and Education, 19(1), 5–19. http://classic.austlii.edu.au/au/journals/IntJlLawEdu/2014/1.html

30.

Dickson

Cumming

(2018). Reasonable adjustments in assessment: The Australian experience. In Trimmer

Dixon

Findlay

Y. S.

(Eds.), The Palgrave Handbook of education law for schools (pp. 315–333). Springer. https://doi.org/10.1007/978-3-319-77751-1_14

31.

Disability Discrimination Legal Service . (2022). Submission: Autism Australian Senate inquiry. https://www.aph.gov.au/DocumentStore.ashx?id=d79e824f-560f-422c-a8ac-7ee9358b205f&subId=691472%3c

32.

Disabled People’s Organisations Australia . (n.d.). Terminology. https://dpoa.org.au/about/terminology/

33.

Duncan

Punch

Gauntlett

Talbot-Stokes

(2020). Missing the mark or scoring a goal? Achieving non-discrimination for students with disability in primary and secondary education in Australia: A scoping review. Australian Journal of Education, 64(1), 54–72, https://doi.org/10.1177/0004944119896816

34.

Eide

(2008). Economic, social and cultural rights as human rights. In Falk

Elver

Hajjar

(Eds.), Human Rights: Critical Concepts in Political Science (Vol 2, pp. 299–318). Routledge.

35.

Fredman

(2016). Substantive equality revisited. International Journal of Constitutional Law 14(3), 712–738. https://doi.org/10.1093/icon/mow043

36.

Gauntlett

(2019). Australia’s appearance: Opening Statement, 22nd Session of the Committee on the Rights of Persons with Disabilities, Palais Des Nations, Geneva. https://humanrights.gov.au/about/news/speeches/22nd-session-committee-rights-persons-disabilities

37.

Gooding

Kayess

(2020). Human rights and disability: An Australian experience. In Gerber

Castan

(Eds.), Contemporary perspectives on human rights law in Australia, (Ch. 8, Vol. 1). Thompson Reuters.

38.

Hutchinson

Duncan

(2012). Defining and describing what we do: Doctrinal legal research. Deakin Law Review, 17(1), 83–119. https://doi.org/10.21153/dlr2012vol17no1art70

39.

Kayess

(2019). Drafting Article 24 of the Convention on the Rights of Persons with Disabilities. In De Beco

Quinlivan

Lord

(Eds.), The right to inclusive education under international human rights law (pp. 122–140). Cambridge University Press. https://doi.org/10.1017/9781316392881.006

40.

Kayess

French

(2008). Out of darkness into light? Introducing the convention on the rights of persons with disabilities. Human Rights Law Review 8(1), 1–34. https://doi.org/10.1093/hrlr/ngm044

41.

Kayess

Green

(2016). Today’s lesson is on diversity. In Blanck

Flynn

(Eds.), Routledge Handbook of Disability law and Human Rights (pp. 69–87). Routledge. https://doi.org/10.4324/9781315612881

42.

Kayess

Sands

(2020). Convention on the Rights of Persons with Disabilities: Shining a light on Social Transformation. Sydney: UNSW Social Policy Research Centre. https://disability.royalcommission.gov.au/system/files/2020-09/Research%20Report%20-%20Convention%20on%20the%20Rights%20of%20Persons%20with%20Disabilities%20Shining%20a%20light%20on%20Social%20Transformation.pdf

43.

Keller

Ulfstein

(Eds.). (2012). UN Human Rights Treaty Bodies: Law and legitimacy. Cambridge University Press. https://doi.org/10.1017/CBO9781139047593

44.

MacKinnon

C. A.

(2020). Equality. Daedalus, 149(1), 213–221. https://doi.org/10.1162/daed_a_01783

45.

Malaquias

(2020). Discrimination ‘law is an ass’: Disability erasure in education for ‘anti-social behaviour’, starting with Julius. http://www.startingwithjulius.org.au/discrimination-law-is-an-ass/?fbclid=IwAR2cdn1mUTqnAtVS_NE1BsKRstTOVh9nilg4Q7Py0jJZ7lDqfQPwqR43KiY

46.

Murray

S. J.

(2021). Research report – legislation and regulation in Australia: Children and young people with disability in primary and secondary education settings. Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability. https://disability.royalcommission.gov.au/publications/research-report-legislation-and-regulation-australia-children-and-young-people-disability-primary-and-secondary-education-settings

47.

Oliver

(1996). Understanding disability: From theory to practice. Sage.

48.

Poed

Cologon

Jackson

(2020). Gatekeeping and restrictive practices by Australian mainstream schools: Results of a national survey. International Journal of Inclusive Education. 26(8), 766–779, https://doi.org/10.1080/13603116.2020.1726512

49.

Productivity Commission . (2004). Review of the Disability Discrimination Act 1992 (Report No 30, 30 April 2004). https://www.pc.gov.au/inquiries/completed/disability-discrimination/report/disability-discrimination.pdf

50.

Rieser

(2017). Achieving disability equality: The continuing struggle. In Cole

(Ed.), Education, equality and human rights: Issues of gender, ‘race’, sexuality, disability and social class. Routledge. https://doi.org/10.4324/9781315208602

51.

Stubbs

Webster

Williams

(2020). Research Report: Persons with disability and the Australian Constitution. Royal Commission into Violence, Abuse, Neglect and Exploitation of People With Disability. https://disability.royalcommission.gov.au/publications/persons-disability-and-australian-constitution-research-report

52.

Taylor

(2019). The conflicting purposes of Australian anti-discrimination law, UNSW Law Journal, 42(1) 188–210. https://doi.org/10.53637/TYBL5821

53.

Taylor

(2020). Disability discrimination, the duty to make adjustments and the problem of persistent misreading, Monash University Law Review, 45(2), 461–486. https://doi.org/10.26180/5e6c77949d4d0

54.

Urbis Australia . (2015). Final Report: 2015 review of the disability standards for education 2005. Department of Education and Training. https://www.dese.gov.au/swd/resources/final-report-2015-review-disability-standards-education-2005

55.

Disability Discrimination Act . (1992). (Cth).

56.

Disability Standards for Education . (2005). (Cth).

57.

Commonwealth Letters Patent, Royal Commission into Violence, Abuse, Neglect and Exploitation of People With Disability . (2019). (as varied).

58.

Purvis v New South Wales (Department of Education and Training) [2003] HCA 62 . (2003) 217 CLR 92.

59.

Sklavos v Australasian College of Dermatologists . (2017). FCAFC 128.

60.

Australian Government . (2016). Submission of the Australian Government on Draft General Comment on Article 24 United Nations Convention on the Rights of Persons with Disabilities. https://www.ohchr.org/en/documents/general-comments-and-recommendations/general-comment-no-4-article-24-right-inclusive

61.

Australian Government . (2019). Combined second and third periodic report – United Nations convention on the rights of persons with disabilities, CRPD/C/AUS/2-3.

62.

Committee on Economic, Social and Cultural Rights . (1999). General comment No. 13: The right to education (Art. 13 of the covenant), E/C.12/1999/10.

63.

Committee on Economic, Social and Cultural Rights . (2017). Concluding observations on the fifth periodic report of Australia, E/C.12/AUS/CO/5.

64.

Committee on the Rights of Persons with Disabilities . (2013). Concluding observations on the initial report of Australia, CRPD/C/AUS/CO/1.

65.

Committee on the Rights of Persons with Disabilities . (2016). General comment No. 4. (Right to inclusive education), CRPD/C/GC/4.

66.

Committee on the Rights of Persons with Disabilities . (2018). General comment No. 6 (equality and non-discrimination), CRPD/C/GC/6.

67.

Committee on the Rights of Persons with Disabilities . (2019). Concluding observations on the combined second and third reports of Australia, CRPD/C/AUS/CO/2-3.

68.

Committee on the Rights of The Child Committee and Committee on the Rights of Persons with Disabilities. (2022). Joint Statement CRC-CRPD on the rights of children with disabilities.

69.

International Covenant on Economic, Social and Cultural Rights . (1966). 993 UNTS 2.

70.

United Nations Convention on the Rights of Persons with Disabilities . (2006). 2515 UNTS 3.

71.

United Nations World Programme of Action concerning Disabled Persons . (1982).

72.

United Nations . (2006). UN convention on the human rights of persons with disabilities Ad-Hoc committee, daily summaries, seventh session (24 January 2006), Comments by Australia.

73.

United Nations . (2018). Spain must ensure inclusive education for persons with disabilities, UN human rights experts say. www.ohchr.org/en/press-releases/2018/05/spain-must-ensure-inclusive-education-persons-disabilities-un-human-rights

74.

United Nations High Commissioner for Human Rights . (2019). Report: Empowering children with disabilities for the enjoyment of their human rights, including through inclusive education, A/HRC/40/27.

75.

United Nations Special Rapporteur on the Rights of Persons With Disabilities . (2020). Disability royal commission into violence, abuse, neglect and exploitation: Public hearing 5 transcript 19 August 2020.

76.

Universal Declaration of Human Rights . (1948). 217 A (III).

77.

Vienna Convention on the Law of Treaties . (1969). 1155 United Nations Treaty Series 331.