Missing the mark or scoring a goal? Achieving non-discrimination for students with disability in primary and secondary education in Australia: A scoping review

Abstract

Australia has legislation in the form of the Disability Discrimination Act 1992 (Cth) and the Disability Standards for Education 2005 (Cth) that has the objective of eliminating disability discrimination. The purpose of this scoping review was to determine the extent to which this legislation is achieving the elimination of discrimination against students with disability in primary and secondary schooling. The review reports on the findings of a systematic search of law and education databases that identified 18 peer-reviewed articles discussing the legislation, relevant literature and related case law in the context of the education of students with disability in Australia. Content analysis of the articles indicated the existence of problems in several areas of the intersection between the law, policy and practice. These are outlined under five key themes: inclusion/exclusion, jurisdictions and definitions, the complaints-driven system, legislation clarity and reasonable adjustments. The review concludes with recommendations and suggestions for action.

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

“…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).…”

“…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.…”

“…(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.…”

Making Reasonable Adjustments for Students With Disability in Australian Mainstream Classrooms: A Scoping Review

“…Inclusive education in Australia and internationally, however, has experienced a long and contentious history where policymakers, advocates and practitioners have struggled with what inclusive education looks like (in policy and definition), sounds like (in the advocacy of placement), and feels like (in classroom practice). To date, there is a lack of a globally accepted definition for inclusive education, and this challenge presents many barriers when applying the concept of inclusive education, assessing its forward movement, or evaluating its success (Anderson & Boyle, 2015;Duncan et al, 2020.…”

“…Further, reasonable adjustments that were implemented were actioned by support staff rather than trained teachers (Punch, 2015). Additionally, the lack of guidelines to assist schools in determining a reasonable adjustment has been highlighted (Duncan et al, 2020;Poed, 2015). Significantly, the most controversial aspect of applying reasonable adjustments is interpreting what is deemed 'reasonable'.…”