A CRPD analysis of NSW’s policy on the education of students with disabilities – a retrogressive measure that must be halted

ABSTRACT

Local schools are at the heart of Australian communities. Yet too often students with disabilities do not receive an inclusive education in regular classrooms at their local schools. Instead, education is delivered to them in segregated environments, such as special schools, special units within mainstream school grounds or special classes in mainstream schools. Australia was one of the first States Parties to ratify the Convention on the Rights of Persons with Disabilities (CRPD) in 2008. The CRPD recognises the right of all learners with a disability to inclusive education, which the CRPD Committee further clarified in General Comments Nos 4 and 6. In light of Australia’s federal system, realising the right to inclusive education necessarily involves the commitment of state governments. However, the extent to which they have embraced the principle of inclusive education and implemented the measures needed to achieve it has been mixed. Indicators suggest that the segregation of Australian students with disability has, in fact, increased over the last decade. This article specifically considers the recent policy commitments made by the NSW Government and demonstrates that the policy not only contravenes the CRPD but also constitutes an impermissible retrogressive measure that must be addressed.

KEYWORDS:

• Disability
• inclusive education
• special education
• segregation
• CRPD
• Art 24
• inclusion

Disclosure statement

No potential conflict of interest was reported by the authors.

Notes

1. For further discussion on participation of persons (including children) with disabilities, see CRPD Committee (2018b).

2. For a review of the evidence in this respect, see: Hehir et al. (2016); European Agency for Special Needs and Inclusive Education (2018); Jackson (2008).

3. In particular, it remains to be seen whether the Queensland Government is prepared to revisit laws and policies that have the potential to undermine its efforts to improve outcomes for students with disabilities, such as its policy on the criteria to determine whether a person is a ‘person with a disability’ for the purpose of enrolment in state special schools or its legislative and policy reforms relating to suspensions and exclusions, which, in accordance with 2018 research, disproportionately adversely impact children with disabilities, Indigenous children and children in out-of-home care. For more information see Graham (2018).

4. Australia has also been criticised by other UN Committees in respect of its progress in realising the right to inclusive education. See UN Committee on the Rights of the Child (2005, para 61); UN Committee on Economic, Social and Cultural Rights (2017, para 56).

Additional information

Notes on contributors

Emily Cukalevski

Emily Cukalevski is a lawyer and disability rights advocate. She recently graduated from the National University of Ireland Galway with first class honours in a LLM in International and Comparative Disability Law and Policy and has worked with the UN Special Rapporteur on the rights of persons with disabilities.

Cátia Malaquias

Cátia Malaquias is a lawyer and award-winning human rights and inclusion advocate. She has been involved in various United Nations processes in relation to the rights of persons with disabilities and participated in the development of General Comment No. 4 (Right to Inclusive Education) on Article 24 of the Convention on the Rights of Persons with Disabilities. Cátia won the 2018 Human Rights Award – Tony Fitzgerald Memorial Community Individual and the 2018 Australian Financial Review Women of Influence Diversity and Inclusion Award. She also won a National Disability Award in 2017. Cátia is undertaking PhD studies at the Centre for Human Rights Education, Curtin University, Western Australia.