Does Disability Discrimination Legislation in Australia Protect the Right to an Inclusive Education?

Year: 2021

Author: de Bruin, Kate

Type of paper: Individual Paper

In this paper, we present an analysis of the effectiveness of Australia’s domestic legislation for upholding the educational rights of students with disabilities. Australia’s current system of state-run public education was conceived 150 years ago in Victoria’s Education Act of 1872. This legislation was born of a progressive dream to improve equity and social harmony and formed the origins of the state and territory based public education systems that remain today. Despite the declared aspiration to provide universal education, in reality, this early legislation did not extend the right to education to all students as children and youth with disabilities were not deemed “educable” at that time and thus mass education was never designed with them in mind. In the years since, advocates have pressed for equitable access by students with disabilities to receive the benefits afforded by a quality education. A suite of international policy statements and human rights treaties have increasingly clarified students’ educational rights and the obligations of education authorities, culminating in the 2006 Convention on the Rights of Persons with Disabilities (CRPD) which clarifies that the human right to education is in fact the right to an inclusive education. In Australia, domestic legislative reforms, the Disability Discrimination Act of 1992 (DDA) and the Disability Standards for Education 2005 (DSE), were enacted against the backdrop of this international advocacy. While these prohibit discrimination in access and enrolment within education, it remains unclear the degree to which these effectively protect students right to an inclusive education given that they pre-date the CRPD. In this paper, we consider the effectiveness of the DDA and the DSE legislation in two ways. First, we present our policy analysis and critique of the adequacy of the DDA and the DSE for meeting the obligations to ensure an inclusive education under the CRPD Article 24 and related General Comments 4 and 6. Second, we present the results of a national survey asked that asked students with disability and their associates to rate their school’s compliance under the DSE. Drawing on our analysis of the survey results, we outline the degree to which the DSE is perceived by the primary stakeholders of this legislation as providing sufficient protection for their educational rights and how this varies across states, sectors and levels of schooling. We conclude by offering recommendations for further national reforms to achieve the original vision of an education system that is truly for all students.