By Catia Malaquias
The Australian Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (Disability Royal Commission) has released its Interim Report.
In the Interim Report the Disability Royal Commission emphasises that the ‘human rights of people with disability are an integral part of our inquiry’ and rightly point to the framework of their Terms of Reference by which the Australian Government ‘recognises’:
‘that people with disability are equal citizens and have the right to the full and equal enjoyment of all human rights and fundamental freedoms …
AND Australia has international obligations to take appropriate legislative, administrative and other measures to promote the human rights of people with disability … under the Convention of the Rights of Persons with Disabilities [(CRPD)]’.[1]
In describing the Disability Royal Commission’s ‘theoretical approaches to human rights’ and its aim ‘to translate human rights into practical and sustainable policies and practices that change the values and standards the community expects to be upheld for people with disability’, the Commission notes that the provisions of the CRPD may be open to different interpretations.[2]
The Interim Report only specifically identifies one issue – albeit perhaps the most critical and life-long influencing one in the context of their Terms of Reference – to counter the continuing violence, abuse, neglect and exploitation of people with disability and to promote an inclusive society. That critical issue is whether children with disability may continue to be placed in segregated ‘special’ education settings as a matter of the proper interpretation of Article 24 of the CRPD concerning the right to inclusive education:
‘The opinions expressed about the proper interpretation of Article 24 in submissions and responses to the [Education and learning] issues paper have varied. Some argue that Article 24 must be broadly interpreted to require, for example, State Parties to phase out special, or segregated schools. Others, including the Australian Government, contend that retaining state-run special/segregated schools is compatible with Article 24. On this approach, the broad interpretation of Article 24 endorsed by the CRPD Committee is not conclusive.’[emphasis added]
The Interim Report identifies the ‘broad interpretation’ of the right to inclusive education under Article 24 of the CRPD as being supported by the Committee on the Rights of Persons With Disabilities (a body of disabled human rights experts from around the world elected to the role by States Parties to the CRPD and responsible for administering State Party compliance with the CRPD) and submissions received from All Means All – The Australian Alliance for Inclusive Education, Women with Disabilities Australia and Children and Young People with Disability Australia.
In doing so, it is interesting to observe the Disability Royal Commission’s ‘interim’ preparedness to characterise the view of the CRPD Committee and of ‘peak’ Australian disability education representative organisations as ‘broad’, rather than describe the alternate Australian Government view as the ‘narrow’ or ‘narrower’ view – or to use completely neutral language to describe both ‘opposing’ interpretations. Even then, characterising the Australian Government’s view as ‘narrow’ or ‘alternate’ seems overly generous. As Rosemary Kayess, the eminent legal Australian academic, winner of the 2019 Australian Human Rights Medal and current Vice Chair of the CRPD Committee (who significantly was also a member of the Australian delegation involved in drafting the CRPD and person appointed by the Ad Hoc Committee as the facilitator in drafting Article 24), specifically wrote, with human rights and disability expert Therese Sands, in a research report for the Disability Royal Commission that the Australian Government’s view that ‘States Parties may offer education through specialist classes or schools consistently with article 24’ is in fact ‘misguided’.
It is also interesting that the Australian Government’s submission was made well after the ‘broad view’ submissions were received by the Disability Royal Commission. Further, the Australian Government, in providing a general ‘Part I background paper’ on Australia’s approach to interpreting the CRPD saw fit to provide a specific ‘Part 2 background paper’ dedicated to Article 24 of the CRPD (Australian Government Paper). No other Articles under the CRPD were the subject of a stand-alone dedicated paper (as far as has been published).
The Australian Government Paper identifies the ‘primary issue’ to be whether Article 24 of the CRPD ‘requires State Parties to dismantle and abolish specialist schools and other forms of segregated education for children with disability and instead, ensure access by all persons with disability to mainstream education.’[3]
The Australian Government Paper then seeks to reduce ‘inclusive education’ from a human right, to an ‘undefined concept’ that could be met in a range of ways – including segregated ‘special’ settings. This argument is then incorrectly supported by a misconstrued example of the CRPD Committee stating ‘[p]lacing students with disabilities within mainstream classes without accompanying structural changes … does not constitute inclusion’.[4] That ‘example’ is not an instance of the CRPD Committee supporting segregated settings as ‘inclusive’ or otherwise, rather it is an example used by the CRPD Committee to distinguish true inclusive education, where the relevant structural changes have been made to mainstream schooling, from ‘integration’, where the necessary accommodating and supportive changes have not been made at the time students with disability are enrolled in mainstream classes.
The Australian Government Paper also suggests that the negotiations for the drafting of Article 24 of the CRPD support that Article 24 was not intended to exclude segregated ‘special’ settings. This is incorrect. In this regard, Rosemary Kayess contends that Article 24 was in fact intended to phase out segregated education settings, with the final wording being agreed for Article 24 following the removal of wording in earlier draft versions that had permitted, in specified circumstances, education for students with disability in separate segregated settings.[5] This is evidenced by the evolving drafts and materials of the Working Group established by the Ad Hoc Committee to draft the CRPD.
It is also noteworthy that at the time the United Kingdom ratified the CRPD they did so with an express ‘reservation’ and ‘interpretative declaration’ in respect of Article 24 to specifically preserve their capacity to maintain segregated ‘special’ settings. Mauritius did so as well. The Australian Government, on the other hand, did not.
It is not unusual for States Parties who are in breach of their international obligations to seek to justify their position. However, international law is clear that post ratification attempts by governments from time to time to qualify the extent of the legal obligations of States Parties, do not have the status of reservations or interpretive declarations, which must be made by States Parties at the time of ratification of treaties.
As a matter of international law, Australia has a legally binding obligation to implement Article 24 in full.
Further, Australia’s ratification of the CRPD as well as its Optional Protocol signifies its acquiescence to the treaty monitoring process, including the CRPD Committee’s (as the relevant administering treaty body) function of making General Comments as part of its treaty monitoring and guidance role, as well as its role in examining individual complaints by individuals and groups, alleging that their rights have been violated under the CRPD.
So far, the CRPD Committee has issued specific recommendations to Australia in 2013 and 2019 requiring Australia to address the segregation of students with disabilities in education.
The last key but misguided argument in the Australian Government Paper is that Article 24 of the CRPD is subject to Article 13(3) of the International Covenant on the on Economic, Social and Cultural Rights (ICESCR) which provides for the ‘liberty of parents … to choose for their children schools, other than those established by public authorities, which conform to … minimum education standards … and to ensure the religious and moral education of their children in conformity with their own convictions’ [emphasis added].
It is clear that Article 13(3) does not subordinate inclusive education under Article 24 of the CRPD to ‘parental choice’ for segregated education settings on the basis of disability, in the private schooling system let alone in the public schooling system which provides the vast majority of segregated placements. Article 13(3) of ICESCR is about maintaining the liberty of parents to choose (non-State funded) education on the basis of religious or moral beliefs (eg. Catholic or Jewish schools – but not disability based segregation).
Further, like the CRPD Committee, the Committee on Economic, Social and Cultural Rights, being equally critical of segregation of students with disability, most recently at its 2017 review asked the Australian Government to explain the ‘evidence of a rise in segregated education’ and in its concluding observation urged Australia to address the segregation of students with disability and implement inclusive education [6].
This follows from a long-standing prohibition of ‘separate’ standards for ‘separate’ groups under the ICESCR which is also reflected in that Committee’s 1994 ‘General Comment No. 5: Persons with disabilities’. Paragraph 15 of that General Comment states that ‘the requirement contained in article 2 (2) of the Covenant that the rights ‘enunciated … will be exercised without discrimination of any kind’ based on certain specified grounds ‘or other status’ clearly applies to discrimination on the grounds of disability.’ And paragraph 35 then expressly applies this principle in the context of education with effect that disability based segregated education is also a breach of the ICESCR.
In any event, the reality is that very, very few parents would deliberately ‘choose’ to place their child with a disability in a segregated education setting IF they had the genuine option to place their child in a regular classroom in a regular school with all necessary supports and accommodations being provided.
The mantra of ‘parental choice’, in circumstances where parents know that the general education system (or large parts of it) is not appropriately supporting students with disability in regular classrooms, does not provide any ‘genuine’ demand for segregated ‘special’ education settings – rather in effect it is a nothing more than a Government-engineered ‘systemic’ default demand for segregated education settings.
More insidiously, while a parallel ‘segregated education system’ is preserved, ‘gatekeeping’ (the overt and ad hoc encouragement of parents by mainstream schools to enrol their child in segregated education settings) will naturally flourish – particularly where parents have very limited rights and relatively limited resources to enforce their child’s right to an inclusive education compared to the resources marshalled to defend the actions of mainstream schools.
The Australian Government’s position on the meaning of ‘inclusive education’ and its obligations to students with disability under international human rights law is not supported by any of the United Nations treaty bodies or by the sound application of the relevant principles under international human rights law. To borrow the line immortalised by Mandy Patikin’s Inigo Montoya in the ‘Princess Bride’:
‘You keep using that word. I do not think it means what you think it means.’
In essence, the Australian Government’s rhetoric on inclusive education and on the interpretation of Article 24 of the CRPD is not sound and is a departure from the position that Australia adopted at the time of drafting of the CRPD.
While it is recognised that the Disability Royal Commission must, as a threshold question, consider the content of Article 24, it is disappointing that the Interim Report framed the issue by stating that ‘the broad interpretation of Article 24 endorsed by the CRPD Committee is not conclusive’. It also seems peculiar that 18 months and two education public hearings into its inquiry, the Disability Royal Commission is still considering the requirements of Article 24.
In that regard, a recent and first decision of the CRPD Committee on the right to inclusive education, handed down following a complaint for human rights violation brought under the CRPD’s Optional Protocol (that Australia has also ratified) is significant. In that case, a Spanish family complained to the CRPD Committee (as Spain, like Australia, has ratified the Optional Protocol) that their son with Down syndrome was being denied his right to an inclusive education as the local education authority required him to attend a segregated ‘special’ school. Further, the education authority brought criminal charges against the parents as they refused to send their son to the special school.
The CRPD Committee found that Spain had violated their son’s right to an inclusive education, that he be admitted to an inclusive education setting and that he be compensated. Further, the CRPD Committee also urged Spain to eliminate educational segregation of students with disability in both special schools and special units within mainstream schools and to ensure parents were not prosecuted for claiming their child’s right to inclusive education.
Article 6(1) of the Optional Protocol to the CRPD provides jurisdiction for the Committee to hear and determine complaints concerning ‘grave or systematic violations’ by a State Party of rights under the CRPD. Article 6 of the Optional Protocol and the adjudicative role of the Committee certainly suggests that State Parties like Australia that have ratified the Optional Protocol and subjected themselves to its jurisdiction are legally bound to accept the views of the Committee as to the proper interpretation of Article 24.
Accordingly, characterising the considered position of the CRPD Committee on Article 24 as ‘broad’, ‘inconclusive’ or unsupported by the Australian Government does not give sufficient weight to the jurisprudential role of the Committee in determining the proper scope of the legal right to inclusive education over the life of the CRPD.
The CRPD Committee’s current caseload under Article 6 of the Optional Protocol involves 24 matters, 5 of which are complaints relating to Australia. Only one pending matter relating to Austria, involves education.
So the ‘critical issue’ of the progressive phasing out of segregated ‘special’ settings and the transfer of their sustaining resources to making regular classrooms inclusive, while pronounced upon by the CRPD Committee in its General Comment No. 4 and in its recent decision concerning Spain, has not been considered as a ‘systemic’ complaint against Article 24 by the CRPD Committee under Article 6 of the Optional Protocol.
Particularly having regard to the perverse disproportionate growth in Australian segregated ‘special’ settings since Australia’s ratification of the CRPD, there may well be a basis for a complaint to the CRPD Committee to consider a ‘systemic violation’ by Australia of the right to inclusive education by its failure to take steps to ‘phase out’ segregated ‘special’ settings, and by permitting ‘retrogression’ in its realisation of the right to inclusive education.
Such a complaint to the CRPD Committee may assist, if accepted on an expedited basis, in confirming once and for all (and finally closing the door on the elephant), Australia’s obligations under Article 24 of the CRPD for the purposes of the Disability Royal Commission and the intransigence of Australian governments towards their obligations to address the issue of segregation of students with disability.
Watch Mr Jorge Cardona, member of the United Nations Committee of the Rights of the Child, speaking at the Day of General Discussion on the Right to Inclusive Education (Article 24 CRPD) about the need for a paradigm shift for inclusive education.
[1] Interim Report, p96.
[2] Interim Report, p343.
[3] Australian Government Paper, paragraph 16.
[4] Australian Government Paper, paragraph 18 – quoting UN CRPD Committee’s General Comment No. 4 (Right to Inclusive Education), paragraph 11.
[5] Rosemary Kayess, ‘Drafting Article 24 of the Convention on the Rights of Persons with Disabilities’ In Gauthier De Beco, Shivaun Quinlivan and Janet E. Lord (eds), The Right to Inclusive Education Under International Human Rights Law (Cambridge, UK: Cambridge University Press, 2019) 122-140, 135134
[6] Committee on Economic, Social and Cultural Rights, ‘Concluding Observations on the Fifth Periodic Report of Australia’ (2017) E/C.12/AUS/CO/5; Committee on Economic, Social and Cultural Rights, ‘Committee on Economic, Social and Cultural Rights Reviews the Report of Australia’ (31 May 2017)