The Australian Government’s International human rights obligations
The obligation to ensure an inclusive education system is a recognised obligation of the Australian government under international human rights law. Notably, Australia is a signatory to the United Nations Convention on the Rights of Persons with Disabilities (CRPD) which provides for this obligation in Article 24 (Inclusive Education).
Article 24.1 of the CRPD provides:
“State Parties [including Australia] recognise the right of persons with disabilities to education. With a view to realizing this right without discrimination and on the basis of equal opportunity, State Parties shall ensure an inclusive education system at all levels … .”
Article 24.2 of the CRPD provides:
“In realizing this right, State Parties shall ensure that:
- Persons with disabilities are not excluded from the general education system on the basis of disability, …;
- Persons with disabilities can access an inclusive, quality and free primary education and secondary education on an equal basis with others in the communities in which they live;
- Reasonable accommodation of the individual’s requirements is provided;
- Persons with disabilities receive the support required, within the general education system, to facilitate their effective education;
- Effective individualised support measures are provided in environments that maximize academic and social development, consistent with the goal of full inclusion.”
There has been significant ambiguity as to what is meant by “inclusive education” and that ambiguity has complicated efforts to implement inclusive education systems.
On 26 August 2016 the United Nations Committee on the Rights of Persons with Disabilities (Committee) adopted General Comment No. 4 to Article 24 (The Right to Inclusive Education). The purpose of General Comment No. 4 is to provide Governments with guidance on the scope of their obligation to provide quality inclusive education for people with disability. This guidance outlines the meaning of inclusive education and is instructive of the requirements that the Committee will apply in reviewing compliance by individual countries with Article 24.
The decision to issue a General Comment to Article 24 is stated to stem from the Committee’s “review of the national reports submitted since the beginning of its work and the information pertaining to the implementation of the right to education for persons with disabilities contained in those reports” and the Committee’s “concern that the exclusion in education on the basis of disability experienced by children and adults with disabilities not only constitutes discrimination, but also hinders their meaningful participation on an equal basis with others in all spheres of life” (see statement on the website of the UN Human Rights Commissioner here).
General Comment No. 4 has been the culmination of a near 2-year process involving the review of a draft General Comment and submissions from State Parties (including Australia), interested NGOs (including Children and Young People with Disability Australia), academics and disability advocates.
What does the human right to inclusive education mean in Australia?
While Australia has agreed to be bound by the CRPD and other major international human rights treaties and should enact domestic legislation to ensure those rights, Australia has not gone far enough in specifically incorporating its obligations under the CRPD into Australian law through legislation. This makes it difficult for individuals to enforce their human rights as they can only do so to the extent they are protected under domestic laws.
The Australian Government has endeavoured to discharge its obligations under Article 24 of the CRPD by imposing obligations on education providers (including private providers) to comply with the Disability Discrimination Act 1992 (Cth) (DDA) and the Disability Standards for Education 2005 (Standards) made under it. The Australian Human Rights Commission is responsible for investigating and resolving complaints of discrimination in breach of the DDA.
But, especially in light of General Comment No. 4, it seems clear that the DDA and the Standards may not go far enough to ensure the matters outlined in Article 24.1 and 22.4. It also seems clear that the obligation to “ensure and inclusive education system” requires more than the enactment of discrimination laws – it requires appropriate education reform and policies to support the implementation of inclusive education across the Australian education system.
Nevertheless, Article 24 and General Comment No. 4 together provide the most authoritative articulation of the human right of people with disability to an inclusive education and are important in advocating for access by Australian students with disability to an inclusive education. Every Australian parent, whether or not they have a child with disability, and every Australian education provider should take the time to read General Comment No. 4. Not only does it make clear that the right to an inclusive education is a fundamental human right of every child with a disability, it also looks at the scope of that right in providing an interpretative definition of it, and it presents that right within its historical context, acknowledging and highlighting barriers and in light of its supporting academic, social and economic cases. [paras 1-4]
For parents, teachers and school administrators, General Comment No. 4 provides a blue print for implementing inclusive education and for identifying whether a child is being excluded or segregated, offered merely “integration” in a mainstream school or being provided with an inclusive education. Too often, inferior delivery of education to students with disability is wrongly labelled “inclusion” and sold to them, their families and teachers. When this results in poor experiences and perceived “failures” in educating students with disability in regular schools and classrooms, inclusive education itself is blamed when, ironically, it is the very lack of inclusion that often results in such “failures”. In that sense, the General Comment No. 4 provides a guide for testing educational practices against the key characteristics of an inclusive education and an inclusive education system.
The General Comment No. 4 is also an important tool for disability rights and inclusion advocates, to engage stakeholders and decision makers such as Governments, Education Departments and school Principals in understanding inclusive education as a fundamental human right of students with disability and in supporting the reform that is required to ensure and an inclusive education system in Australia as required under Article 24 of the CRPD.
What does the General Comment No.4 say?
The following significant aspects of General Comment No. 4 should be noted:
(1) Persons with disabilities and, when appropriate, their families, must be recognised as partners and not merely as recipients of education. [para 7]
(2) The right to inclusive education encompasses a transformation in culture, policy and practice in all educational environments [including private] to accommodate the differing requirements and identities of individual students, together with a commitment to remove the barriers that impede that possibility. It requires an in-depth transformation of education systems in legislation, policy, and the mechanisms for funding, administration, design, delivery and monitoring of education. [para 9]
(3) Inclusive education is to be understood as, amongst other things:
- a fundamental human right of all learners – notably, education is the right of the individual learner and parental responsibilities in regard to the education of a child are subordinate to the rights of the child [including the right to an inclusive education]; and
- the result of a process of continuing and pro-active commitment to eliminate the barriers impeding the right to education, together with changes to culture, policy and practice of regular schools to accommodate and effectively include all students. [para 10]
(4) The need to distinguish between “exclusion”, “segregation”, “integration” and “inclusion” is critical. Paragraph 11 provides important definitions:
- “Exclusion occurs when students are directly or indirectly prevented from or denied access to education in any form.”
- “Segregation occurs when the education of students with disabilities is provided in separate environments designed or used to respond to a particular or various impairments, in isolation from students without disabilities.”
- “Integration is a process of placing persons with disabilities in existing mainstream educational institutions, as long as the former can adjust to the standardized requirements of such institutions.”
- “Inclusion involves a process of systemic reform embodying changes and modifications in content, teaching methods, approaches, structures and strategies in education to overcome barriers with a vision serving to provide all students of the relevant age range with an equitable and participatory learning experience and environment that best corresponds to their requirements and preferences.
Placing students with disabilities in mainstream classes without appropriate structural changes to, for example, organisation, curriculum and teaching and learning strategies does not constitute inclusion. Furthermore, integration (placing persons with disabilities in mainstream institutions so long as they can adjust to the standardised requirements) does not automatically guarantee the transition from segregation to inclusion. [para 11]
It is clear from General Comment No. 4 that education in segregated settings, whether separate special schools or special support units co-located with a regular school, is not inclusive education within the meaning of Article 24.
(5) The core features of inclusive education are:
- whole systems approach (education ministries must ensure that all resources are invested toward advancing inclusive education, and toward introducing and embedding the necessary changes in institutional culture, policies and practices);
- whole education environment (the committed leadership of educational institutions is essential to embed the culture, policies and practices to achieve inclusive education at all levels);
- whole person approach (recognition is given to the capacity of every person to learn, and high expectations are established for all learners – inclusive education offers flexible curricula, teaching and learning methods adapted to different strengths, requirements and learning styles – it commits to ending segregation within educational settings by ensuring inclusive classroom teaching in accessible learning environments with appropriate supports – the education system must provide a personalised educational response, rather than expecting the student to fit or “integrate” into the system);
- supported teachers (teachers and other staff in learning environments are provided with education and training as to core values and competencies to accommodate inclusive learning environments);
- respect for and value of diversity (all students must feel valued, respected, included and listened to and effective measures to prevent abuse and bullying are in place);
- learning-friendly environment (a positive school community where everyone feels safe, supported, stimulated and able to express themselves);
- effective transitions (learners with disabilities receive the support to ensure the effective transition from learning at school to vocational and tertiary education, and finally to work);
- recognition of partnerships (involvement of parents/caregivers and the broader community must be viewed as assets with resources and strengths to contribute);
- monitoring (inclusive education must be monitored on a continuing and regular basis to ensure that segregation or integration is not happening in effect). [para 12]
(6) Education systems should apply the Universal Design for Learning (UDL) approach which recognises that each student learns in a unique manner and involves developing flexible ways for students to learn. [para 25]
(7) The denial of reasonable accommodations constitutes discrimination and the duty to provide reasonable accommodation is immediately applicable and not subject to progressive realisation. [para 30]
(8) Any support measures provided [including provision of education assistant support] must be compliant with the goal of inclusion. Accordingly, they must be designed to strengthen opportunities for students with disabilities to participate in the classroom and in out-of-school activities alongside their peers, rather than marginalise them. [para 33]
(9) Learners with communication impairments must be provided with the opportunity to express themselves and learn using alternative or augmentative communication, including electronic communication aids. Learners with social communication difficulties must be supported through adaptations to classroom organisation, including working in pairs, peer tutoring, seating closer to the teacher and the creation of a structured and predictable environment. Learners with intellectual impairments must be provided with concrete, observable/visual and easy-read teaching and learning materials within a safe, quiet and structured learning environment. [para 34]
(10) Governments must adopt and implement a national education strategy which includes provision of education at all levels for all learners, on the basis of inclusion and equality of opportunity. [para 40]
(11) Governments should gather disaggregated data and evidence on the barriers that prevent persons with disabilities from having access to, remaining in, and making progress in quality education to enable the adoption of effective measures to dismantle such barriers. [para 66]
(12) Governments should transfer resources from segregated [special schools and special units within mainstream schools] to inclusive education environments. [para 68]
(13) Inclusive education requires a support and resource system for teachers in educational institutions at all levels. Parents/caregivers of students with disabilities, where appropriate, can serve as partners in the development and implementation of learning programs, including individualised education plans. They can play a significant role in advising and supporting teachers in provision of support to individual students. [para 70]
(14) Quality inclusive education requires methods of appraising and monitoring students’ progress that takes into account barriers faced. Traditional systems of assessment, utilising standardised achievement test scores as the sole indicator of success for both students and schools, may disadvantage students with disabilities. The emphasis should be on individual progress towards broad goals. [para 72]
Now that the Committee has adopted and published General Comment No. 4, the Australian Government should review the Australian education system generally and in particular the Disability Standards for Education 2005 for consistency with the right to a quality inclusive education under Article 24 of the CRPD, as clarified by the Committee.[Cover photo © Thomas Galvez]