Academic journal article Australian Journal of Education

Constitutional and Legislative Framework for Inclusive Education in Australia

Academic journal article Australian Journal of Education

Constitutional and Legislative Framework for Inclusive Education in Australia

Article excerpt

IN this article we argue that, despite the complex arrangement of laws and policies for education in Australia, there is no legal mandate to ensure that inclusive education occurs. Although the legislative framework for inclusion appears deficient compared with other western countries, there are avenues for persons with a disability to seek redress. The legislative structure for education in Australia is presented from a constitutional basis. The duties, rights and responsibilities of teachers, specifically when including children with disabilities in their regular classrooms, are examined from a legal perspective. Finally, recent cases which have challenged regular class placements for children with disabilities are reviewed.


As countries have increasingly adopted inclusive approaches to education, their policies have reflected the need to ensure equitable educational practices for all children. International legal systems have formed a model by which educators have viewed the process of inclusion. Frameworks for determining the rights of a child to education originate in a number of international declarations and recommendations such as the Charter of the United Nations (1945) and the Universal Declaration of Human Rights (1948). Children's rights to education have been enhanced further in the United Nations Declaration of the Rights of the Child, 1959 (Osmanczyk, 1985) where the initial responsibility for the education and guidance of the child is bestowed upon the parents. In Principle 7 of this Declaration, the right to education provides reference to the need for both `equal' and `full' opportunity for a child's moral and social development. Equality of education is promoted in the International Covenant on Civil and Political Rights: UN 1966 (Osmanczyk, 1985). This Covenant includes a generality clause: `All persons are equal before the law and are entitled without any discrimination to the equal protection of the law' (Article 26).

The foundations for ensuring the rights of all children to education were first established by the United Nations (UN). These rights were then incorporated into national documents which formed the principles upon which educational policies were developed. Although the rights of a child to education have been established by international agreements, it is the interpretation of these rights that is crucial to the implementation of the fight of all children to access similar educational opportunities.

Since the early 1960s, the UN has promoted greater awareness of the educational needs and rights of children with a disability (Convention against Discrimination in Education, 1960; Declaration on the Rights of Mentally Retarded Persons, 1971; Declaration on the Rights of Disabled Persons, 1975; International Year of Disabled Persons, 1981; Decade of Disabled Persons, 1983-1992) (for UN and international agreements, see Osmanczyk, 1985). These initiatives have been aimed at full participation for people with a disability by promoting the development of positive attitudes and by the provision of appropriate physical, social, economic and educational opportunities for persons with a disability. The most recent UN framework regarding the fight of a child to education is the United Nations Convention on the Rights of the Child (1989). This has generated formal commitment by over 107 countries and states, 35 of which are signatories (Alston, Parker, & Seymour, 1992). The Convention imposes a series of duties owed to a child and/or the child's parents or guardians, and promotes the `best interests of the child' principle (Poiner, 1996). In addition to the right of a child to education, the Convention specifies that this should be on the basis of equal opportunity (Article 28(1)).

An important outcome of the UN recommendations on the protection of human rights, including the right to education, lies in their influence on law and practice in the international community (Baehr & Gordenker, 1992). …

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