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Article
The educational rights of persons with disabilities: International human rights law and Australian law perspectives
International Journal of Discrimination and the Law (2013)
  • Douglas Hodgson, The University of Notre Dame Australia
Abstract
Since the founding of the United Nations in 1945, the human rights normative framework
pertaining to persons with disabilities has expanded exponentially. In terms of international
public policy, it is now recognised that discrimination against persons with disabilities
is a violation of the inherent dignity and worth of the human person. This paper
proposes to examine those human rights which such persons now enjoy specifically in
relation to the human right to education. The first part of the paper will provide a
historical overview of the systematic development of the recognition of the educational
rights of persons with disabilities under the auspices of the United Nations, with particular
emphasis upon the Convention on the Rights of the Child 1989 and the Convention
on the Rights of Persons with Disabilities 2006. Brief mention will also be made
of the recognition of such rights under regional human rights systems. Other non-binding
UN instruments such as the World Programme of Action concerning Disabled Persons
1982 and the Standard Rules on the Equalization of Opportunities for Persons with Disabilities
1993 will also be analysed. The second part of the article will then consider how
these international standards have been adopted and applied in Australian law and policy.
It will specifically consider the relevant provisions of the Commonwealth of Australia’s
Disability Discrimination Act 1992 and the Disability Standards for Education 2005 which
have been enacted thereunder as well as case-law of Australian courts.
The aims of this article are threefold: (i) to identify and discuss impediments to the
fuller realisation of the educational rights of persons with disabilities; (ii) to compare and
contrast the extent and impact of the international and national legal recognition and
protection afforded to persons with disabilities in the educational context; and (iii) to
identify strategies for securing more effective implementation of the right to education of
persons with disabilities. While the UN has excelled in formulating relevant and noble
treaty obligations and aspirational principles in this area, the author argues that the next
developmental stage must systematically address practical measures which can deliver
meaningful and objectively verifiable progress in the monitoring and implementation of
these rights. While international human rights law has long influenced legislative initiatives
and policy development in UN Member States, it is the author’s contention that, in
this particular field, UN treaty-monitoring bodies can equally and reciprocally be
informed by relevant State practice including that offered by the Australian experience.
[T]he physical and mental handicaps which affect millions of children all over the
world ought also to be given particular attention, for it is essential, both for moral and for
economic reasons, that such children, to whom fate has been unkind but who are
perfectly capable of overcoming their handicaps, should not be excluded from the life of
society; they have a right to an education adapted to their situation.
Disciplines
Publication Date
2013
DOI
10.1177/1358229112473337
Citation Information
Hodgson, D. (2012). The educational rights of persons with disabilities: international human rights law and Australian law perspectives. International Journal of Discrimination and the Law, 12(4), 183-220. Doi: 10.1177/1358229112473337