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Constitutional and legislative framework for inclusive education in Australia.

IN this article we argue that, despite the complex arrangement of laws and policies for education in Australia Education in Australia is primarily regulated by the individual state governments. Generally education in Australia follows the three-tier model which includes Primary education (Primary Schools), followed by Secondary education (Secondary Schools / High Schools) and Tertiary , there is no legal mandate to ensure that inclusive education occurs. Although the legislative framework for inclusion appears deficient de·fi·cient
1. Lacking an essential quality or element.

2. Inadequate in amount or degree; insufficient.


a state of being in deficit.
 compared with other western countries, there are avenues for persons with a disability to seek redress Compensation for injuries sustained; recovery or restitution for harm or injury; damages or equitable relief. Access to the courts to gain Reparation for a wrong.

REDRESS. The act of receiving satisfaction for an injury sustained.
. 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 Verb 1. originate in - come from
stem - grow out of, have roots in, originate in; "The increase in the national debt stems from the last war"
 a number of international declarations and recommendations such as the Charter of the United Nations (1945) and the Universal Declaration of Human Rights Universal Declaration of Human Rights

Declaration adopted by the United Nations General Assembly in 1948. Drafted by a committee chaired by Eleanor Roosevelt, it was adopted without dissent but with eight abstentions.
 (1948). Children's rights The opportunity for children to participate in political and legal decisions that affect them; in a broad sense, the rights of children to live free from hunger, abuse, neglect, and other inhumane conditions.  to education have been enhanced further in the United Nations Declaration of the Rights of the Child The Declaration of the Rights of the Child, drafted by Eglantyne Jebb and adopted by the International Save the Children Union, Geneva, February 23, 1923 and endorsed by the League of Nations General Assembly on November 26, 1924: , 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 The International Covenant on Civil and Political Rights is a United Nations treaty based on the Universal Declaration of Human Rights, created in 1966 and entered into force on 23 March 1976. : UN 1966 (Osmanczyk, 1985). This Covenant includes a generality gen·er·al·i·ty  
n. pl. gen·er·al·i·ties
1. The state or quality of being general.

2. An observation or principle having general application; a generalization.

 clause: `All persons are equal before the law and are entitled en·ti·tle  
tr.v. en·ti·tled, en·ti·tling, en·ti·tles
1. To give a name or title to.

2. To furnish with a right or claim to something:
 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 Noun 1. mentally retarded - people collectively who are mentally retarded; "he started a school for the retarded"
developmentally challenged, retarded
 Persons, 1971; Declaration on the Rights of Disabled Persons The Declaration on the Rights of Disabled Persons was a declaration of the General Assembly of the United Nations, made on 9 December 1975. It is the 3447th resolution made by the Assembly. , 1975; International Year of Disabled Persons The year 1981 was proclaimed the International Year of Disabled Persons (IYDP) by the United Nations. It called for a plan of action with an emphasis on equalization of opportunities, rehabilitation and prevention of disabilities. , 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 The United Nations Convention on the Rights of the Child, often referred to as CRC or UNCRC, is an international convention setting out the civil, political, economic, social and cultural rights of children.  (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). The UN established that children are considered to have the right `to education' on the basis of `equal opportunity' and to the development of their `fullest potential'. In many instances, this has been interpreted to mean the inclusion of all students, regardless of disability, in regular classrooms. The UN has promoted greater commitment to inclusion by advocating the principle of equity throughout the whole school system. Inclusive education incorporates the notion of social justice and considers the education of students with a disability to be an issue of equity, rather than simply one of placement (Ashman & Elkins, 1994). Inclusive education also implies a need to reconsider and reform school curriculum in order to cater for all children.

The UN has provided the stimulus for individual countries and states to develop their own code of ethics Code of Ethics can refer to:
  • Ethical code, a code of professional responsibility, noting what behaviors are "ethical".
  • Code of Ethics (band), a 90's Christian New Wave/Pop band
 and legislation. The rights of a child to education, as advocated by the UN, are reflected strongly in the legislation that has emerged in the United States of America UNITED STATES OF AMERICA. The name of this country. The United States, now thirty-one in number, are Alabama, Arkansas, Connecticut, Delaware, Florida, Georgia, Illinois, Indiana, Iowa, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, Mississippi, Missouri, New Hampshire,  (USA).

Educational provision for students with a disability in the USA

In the USA, the education of children with a disability has been determined by federal and state law, the civil rights movement and associated court cases together with changing social and political beliefs (Friend & Bursuck, 1996). Federal and state laws reflect the UN principles of ensuring that all children have the right to equitable educational opportunities. In addition, legislation has been affected strongly by the outcome of key court cases which directly influenced the introduction of the first public law to establish federal guidelines guidelines, a set of standards, criteria, or specifications to be used or followed in the performance of certain tasks.
 for special education services. In Brown v. Board of Education Brown v. Board of Education (of Topeka)

(1954) U.S. Supreme Court case in which the court ruled unanimously that racial segregation in public schools violated the 14th Amendment to the U.S. Constitution.
 (347 U.S. 483, 1954) it was established that it was inequitable to discriminate by segregating specific children and denying them access to certain schools. The Pennsylvania and the Mills cases established the principle of providing a free public education for all students regardless of disability.(1)

Together with Section 504 of the Vocational Rehabilitation Noun 1. vocational rehabilitation - providing training in a specific trade with the aim of gaining employment
rehabilitation - the restoration of someone to a useful place in society
 Act (1973), which enforced the principles of non-discrimination towards people with a disability and of equal educational opportunities for them, these cases were instrumental in promoting the Education for All Handicapped Children Act The Education for All Handicapped Children Act (sometimes referred to using the acronyms EAHCA or EHA, or Public Law (PL) 94-142) was enacted by the United States Congress in 1975.  (PL94-142, USA, 1975). Subsequent interpretations of the Act conclude that a child should be placed in the `least restricted environment' (LRE LRE Long-Reach Ethernet
LRE Least Restrictive Environment
LRE Law-Related Education
LRE Long Range Ethernet (Cisco)
LRE Launch and Recovery Element
LRE Latest Revised Estimate
LRE Lead Responsible Engineer
LRE Low Bit-Rate Encoding
). This Act was reauthorised as PL101-476 the Individuals with Disabilities Education Act
This article or section is currently being developed or reviewed.
Some statements may be disputed, incorrect, , biased or otherwise objectionable.
 (IDEA). IDEA reaffirms the major provisions of the earlier legislation but uses the preferred term of `disability' as opposed to `handicap' and reflects greater emphasis on inclusive education for children with severe disabilities. Under this Act, children whose educational achievements are affected by one or more of the following disabilities are entitled to receive special education services: mental retardation mental retardation, below average level of intellectual functioning, usually defined by an IQ of below 70 to 75, combined with limitations in the skills necessary for daily living. , learning disabilities, speech or language impairments, deaf-blindness, serious emotional disturbance This article requires authentication or verification by an expert.
Please assist in recruiting an expert or [ improve this article] yourself. See the talk page for details.
, autism autism (ô`tĭzəm), developmental disability resulting from a neurological disorder that affects the normal functioning of the brain. It is characterized by the abnormal development of communication skills, social skills, and reasoning. , hearing or visual impairments Visual Impairment Definition

Total blindness is the inability to tell light from dark, or the total inability to see. Visual impairment or low vision is a severe reduction in vision that cannot be corrected with standard glasses or contact lenses and
, orthopaedic impairments, traumatic brain injury Traumatic brain injury (TBI), traumatic injuries to the brain, also called intracranial injury, or simply head injury, occurs when a sudden trauma causes brain damage. TBI can result from a closed head injury or a penetrating head injury and is one of two subsets of acquired brain  and other health impairments.

Together with landmark cases landmark case Law & medicine A civil or, far less commonly, criminal action that has had an impact on a particular area of medicine. , the federal laws provide a basis for ensuring non-discrimination with respect to children with a disability, their equal access to appropriate education, and the financial provision necessary to support them. In the United States United States, officially United States of America, republic (2005 est. pop. 295,734,000), 3,539,227 sq mi (9,166,598 sq km), North America. The United States is the world's third largest country in population and the fourth largest country in area. , inclusion is considered to be a right rather than a privilege as defined in IDEA's requirement to prohibit the placement of a child with a disability outside a regular class if inclusion, with appropriate support services support services Psychology Non-health care-related ancillary services–eg, transportation, financial aid, support groups, homemaker services, respite services, and other services , can be achieved satisfactorily. There are also significant legislative frameworks in the United Kingdom (UK) for inclusive education.

Educational provision for students with a disability in the UK

England and Wales England and Wales are both constituent countries of the United Kingdom, that together share a single legal system: English law. Legislatively, England and Wales are treated as a single unit (see State (law)) for the conflict of laws.  have a key document, the Code of Practice, which was prepared by the Department for Education (1994), on the identification and assessment of children with special educational needs. This document sets out the legal position in respect of children with special education needs (SEN). Although the document does not legislate To enact laws or pass resolutions by the lawmaking process, in contrast to law that is derived from principles espoused by courts in decisions.  formally for inclusion, it does include the following presupposition pre·sup·pose  
tr.v. pre·sup·posed, pre·sup·pos·ing, pre·sup·pos·es
1. To believe or suppose in advance.

2. To require or involve necessarily as an antecedent condition. See Synonyms at presume.
 in favour of inclusion:
   Children with special education needs, including those children with
   statements of special educational needs, should, where appropriate and
   taking into account the wishes of their parents, be educated alongside
   their peers in mainstream schools (Department of Education, 1994 1:2).(2)

Although the Code has national implications, it is the local education authorities (LEAs) who have the legal responsibility for SEN provision. Consequently there is noticeable variation in the degree to which inclusive education is practiced among LEAs. Some authorities are highly inclusive whereas others maintain a segregated special school focus, although most LEAs provide a continuum of services.

Compared with the legislation in the USA (IDEA), whereby educational provision for children with a disability is seen to be a right, in the UK the duty to provide education for children with a disability is prescribed in law and policy.

Inclusive practices in Australia

Many of the arguments applied to educational practices in .Australia have emanated from other legal systems. In particular, the move towards inclusive education has been influenced greatly by PL 94-142 and the IDEA in the USA. The outcomes of the recommendations contained in these two acts have been a major influence on policy development in Australia for the education of children with a disability. Specifically the recommendation for an appropriate education in the `least restricted environment' is reflected in most Australian policies.

Written formulation for the protection of the interests of all children in Australia regardless of disability, to equal educational opportunities, :is located in an array of commonwealth, state and territory statutes, ordinances, regulations and court decisions. Statutory provisions are to be found in several acts, including anti-discrimination and disability services legislation, education acts and health and safety legislation. Although a child's right to education is not sated sate 1  
tr.v. sat·ed, sat·ing, sates
1. To satisfy (an appetite) fully.

2. To satisfy to excess.
 explicitly in any Australian law, these acts reflect the principles contained in the UN agreements.

The Commonwealth Government, unlike the federal system in the USA, or the Department for Education in the UK, has no specific legislative powers in state education, although it does have an influence over educational policy making via funding arrangements. A lack of national legislation regarding the education of students with a disability is seen by some to provide both a strength and a weakness (Friend 87 Bursuck, 1996). It can also be argued that, with the current trend throughout Australia towards decentralising Adj. 1. decentralising - tending away from a central point

centralising, centralizing - tending to draw to a central point

centralising, centralizing - tending to draw to a central point
 education and the devolution devolution n. the transfer of rights, powers, or an office (public or private) from one person or government to another. (See: devolve)

DEVOLUTION, eccl. law.
 of management to individual schools, the absence of appropriate federal legislation may result in inequality of service provision to students requiring additional support (Forlin 8: Forlin, 1996).

In 1994, a ten-year framework for commonwealth departments and agencies was produced (Commonwealth Disability Strategy, 1994). This framework reflects a change in Australia from a welfare perspective to one which is fights based regarding meeting the needs of people with a disability. According to according to
1. As stated or indicated by; on the authority of: according to historians.

2. In keeping with: according to instructions.

 the Commonwealth disability strategy report (1994), `Australia is committed to the principle of equal opportunities for children, youth and adults with a disability in integrated settings in primary, secondary and tertiary education' (p.28). Currently, in most states and territories, education provision for children with a disability concludes at the age of 18 years when they are deemed to be no longer eligible under state education acts. Although several cases have `been brought which challenge this position (e.g. Hashish hashish (hăsh`ēsh, –ĭsh), resin extracted from the flower clusters and top leaves of the hemp plant, Cannabis sativa, and C. indica.  v. The Minister for Education of Queensland (1996) EOC EOC Emergency Operations Center
EOC Equal Opportunities Commission (UK)
EOC Educational Opportunity Center
EOC End Of Course
EOC Epithelial Ovarian Cancer
EOC Environment of Care (JCAHO) 
 92-806), they have all been unsuccessful.

Legislative structure for education in Australia

The structure and function of education law in any country emanates from a constitutional basis. Law provides a framework to permit the operation of educational systems in Australia from the perspective of authority, duty, power, responsibility and policy. The High Court of Australia The High Court of Australia is the final court of appeal in Australia, the highest court in the Australian court hierarchy. It has both original and appellate jurisdiction, has the power of judicial review over laws passed by the Parliament of Australia and the parliaments of the  interprets the Constitution through cases brought before it and rules on the validity of laws. Education law is, however, jurisdictionally discrete and the current legislative basis for education in Australia varies on a state-by-state basis. The Australian Constitution (1900) confirms that the organisation and governance of education is a responsibility of the states.

The Commonwealth Government is empowered to override An arrangement whereby commissions are made by sales managers based upon the sales made by their subordinate sales representatives. A term found in an agreement between a real estate agent and a property owner whereby the agent keeps the right to receive a commission for the sale of  state provisions by applying its `external affairs' power in Section 51(xxix) of the Constitution. The statutory framework for education in Australia is complex, but of primary concern are the education acts in the states and territories. These acts and their updates provide the structure for education provision and they also define the duties, rights and responsibilities of participants.

In Australia, many of the federal and state laws that determine the extent of inclusive education are relatively new. Although none of them guarantee an unequivocal right to inclusion, their interpretation by the courts is important. Judicial interpretation of law provides resolution to educational issues of dispute and establishes precedent for future decisions.

In schools, there is a weight of tradition which embraces ideas such as accepted practice, teaching beliefs, professional practice and community expectations among other issues of tradition. As a result, there may be conflict between established law and local customs which may require arbitration. Such was the case in Clayton v. State of Victoria [1968] VR 562 where the accepted practice of maintaining chemicals in a non-secure environment was criticised, but no liability was found as this was deemed to be traditional practice in the school. In the majority of cases, established law will override local customs. With respect to inclusive education, though, there is very little established practice in Australia. Traditions are emerging, however, and it will be interesting to see how custom law interfaces with established law in this regard.

Teachers now have to educate students with a broad range of disabilities in their classes. It is, therefore, important that they are aware of their duties, rights and responsibilities, particularly those that pertain to pertain to
verb relate to, concern, refer to, regard, be part of, belong to, apply to, bear on, befit, be relevant to, be appropriate to, appertain to
 inclusive education.

Teachers -- duties, rights and responsibilities

Many teachers in Australia include children in their regular classes who have a range of special needs. Of major concern to regular class teachers, when including a student with a disability in their classroom, is that the teachers may not perceive that they have the specific skills or training to perform their duties adequately. Regardless of training, all teachers owe a legal duty of care to all their students (Forlin & Forlin, 1998). In order to carry out this duty, teachers need to understand the special needs of each child so that reasonable care may be taken to ensure the child's safety. A lack of specific training for teachers regarding children with special needs does not justify the provision of less than adequate care. The duty of care for teachers is premised upon the susceptibility susceptibility

the state of being susceptible. Refers usually to infectious disease but may be to physical factors such as wetting or to psychological factors such as harassment.
 of children to injury. The more likely an accident, the greater the duty to guard against it (established in Ricketts v. Erith Borough Council and Another [1943] 2 All ER. 629). In educational systems, the duty of care is more onerous on·er·ous  
1. Troublesome or oppressive; burdensome. See Synonyms at burdensome.

2. Law Entailing obligations that exceed advantages.
 where younger children are concerned and where the activities being undertaken are of a hazardous nature. It is even greater for children with disabilities.

The standard of care which teachers are expected to show towards students under their authority is deemed to be that which would be exercised by a reasonably careful and prudent person in reasonably foreseeable circumstances (Fleming, 1992). The standard of care required is measured according to the circumstances. The more serious the likely outcomes of a course of action, the greater are the precautions precautions Infectious disease The constellation of activities intended to minimize exposure to an infectious agent; precautions imply that the isolation of an infected Pt is optional, but not mandatory.  required by law. For example, in Paris v. Stepney .Borough Council [1951] AC 367, a partially blind person was allowed to work without goggles goggles,
n the protective eyewear worn by dental personnel and patients during dental procedures.


see periocular leukotrichia.
. His good eye was seriously injured in·jure  
tr.v. in·jured, in·jur·ing, in·jures
1. To cause physical harm to; hurt.

2. To cause damage to; impair.

. Damages were claimed in respect of that injury on the grounds that the employers were negligent negligent adj., adv. careless in not fulfilling responsibility. (See: negligence)  in failing to demand the wearing of goggles. The case was upheld and the defendants were found to be negligent.

In schools, some students may be more susceptible than others to accidents and therefore require extended or more diligent dil·i·gent  
Marked by persevering, painstaking effort. See Synonyms at busy.

[Middle English, from Old French, from Latin d
 supervision. In Moore v. Hampshire County Hampshire County is the name of two counties in the United States:
  • Hampshire County, Massachusetts
  • Hampshire County, West Virginia
See also: Hampshire for the county in England and the Hampshire County Lunatic Asylum.
 Council (1982) 80 LGR LGR London Greek Radio
LGR Leucine-Rich Repeat-Containing G Protein-Coupled Receptor
LGR Local Government Review (UK)
LGR Local Grid Refinement (reservoir engineering) 
. 418, a gift aged 12 had been born with dislocated dis·lo·cate  
tr.v. dis·lo·cat·ed, dis·lo·cat·ing, dis·lo·cates
1. To put out of usual or proper place, position, or relationship.

 hips. As a result, she had undergone numerous operations and walked with a limp LIMP - ["Messages in Typed Languages", J. Hunt et al, SIGPLAN Notices 14(1):27-45 (Jan 1979)]. . Her mother told the school that she was not to take part in physical education. While attempting a handstand, the plaintiff fell and broke her ankle. On appeal, it was held that the teacher had failed to conform to Verb 1. conform to - satisfy a condition or restriction; "Does this paper meet the requirements for the degree?"
fit, meet

coordinate - be co-ordinated; "These activities coordinate well"
 the standard required of her towards the child who was in her care. In the final ruling, Watkins LJ. stated that when the parent of a child who has a physical disability tells the school the child is not to participate in physical education, the school is under a duty to give effect to it. The Moore ruling implies an increased duty of care for teachers who include children with disabilities in their classrooms. It is of particular note, with respect to this ruling, that even when a teacher is unaware of a parental directive, that teacher is still under a duty to comply with it.

Further issues such as school excursions need to be considered within a framework of inclusive education. The duty of care for teachers with respect to off-site activities is unclear. What is established is that such activities require careful planning (Ayoub v. Downs (1982, SC(NSW NSW New South Wales

Noun 1. NSW - the agency that provides units to conduct unconventional and counter-guerilla warfare
Naval Special Warfare
) unreported), full authority from school administration (Brown v. Nelson and Others (1971) LGR. 20), and adequate supervision (Bills v. State of South Australia South Australia, state (1991 pop. 1,236,623), 380,070 sq mi (984,381 sq km), S central Australia. It is bounded on the S by the Indian Ocean. Kangaroo Island and many smaller islands off the south coast are included in the state.  (1987) 38 SASR SASR Special Air Service Regiment (Australian SAS)
SASR Special Application Scoped Rifle (US military)
SASR South Australian State Reports
SASR Strategic Airport Security Rollout
SASR Software Accomplishment Summary Report

Teachers have a responsibility to supervise adequately all students in their care. Supervision that falls below a certain standard may result in injuries to students and subsequent legal action. The duty to look after students with appropriate care intensifies when students with a range of disabilities, including behavioural Adj. 1. behavioural - of or relating to behavior; "behavioral sciences"
 and emotional problems, are included in regular classrooms. Teachers are required to refrain from actions that may cause injury to students as well as take positive steps towards maintaining their students' safety.

If teachers do not provide an adequate standard of care for their students they may be in breach of their duty. Breach of duty is the failure to conform to the standard of conduct required in a given set of circumstances which results in the cause of harm (Carmarthenshire County Council Carmarthenshire County Council (Welsh: Cyngor Sir Caerfyrddin) is the administrative authority for the county of Carmarthenshire, Wales, providing a range of services under the control of elected county councillors that include  v. Lewis [1955] AC 549). For example, in Barnes v. Hampshire County Council [1969] 1 WL1K 1563, a five-year-old child was run down by a vehicle following release from school. The authority was held liable for damages because further issues such as age and disability were considered as relevant to the capacity of the child to appreciate the danger. The duty and standard of care, therefore, vary according to the circumstances. To explain the duty of care for teachers in inclusive education, it is necessary to determine the standard of care required of all teachers.

In the majority of cases, the courts have looked to the profession to define which standard of care and supervision may be applied, noting that professional standards have changed over time. Decisions made regarding the standard of care required need to reflect both the foreseeability of a situation and the determination of what may be deemed to be reasonable in that situation.

A person cannot be held negligent if the damage was not a foreseeable consequence of the conduct. An individual is not expected to avoid injury at all costs, but is expected to act with reason in particular circumstances. The standard used to define reasonable action is an objective standard. In Foster v. Houston General Insurance Company, 407 So.2d 759 (La. App 1981, USA), an elementary school elementary school: see school.  teacher took a group of 10- and 11-year-old children, who were to varying degrees intellectually impaired, on a walk to a local park. One boy suddenly ran onto the road and was hit by a vehicle. He died later. The Court held that the teacher had breached the duty of care by not providing appropriate supervision and not acting in a reasonable manner. The Court held further that the teacher should have chosen a safer route to the park and should have foreseen the risk. The children in question had poor attention spans, poor hearing and insufficient experience with busy roads and highways List of articles related to roads and highways around the world. International/World
  • Asian Highway Network
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  • European route
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. The teacher was, therefore, found to be negligent in providing reasonable care. The Foster v. Houston ruling implies that a teacher has an increased duty to look after students with intellectual impairments and, in this particular case, the teacher had failed to act in a reasonable manner in the circumstances that had prevailed. The foreseeability and reasonableness of an action, therefore, is the test for negligence in education and elsewhere (Glasgow Corporation v. Muir [HL, 1943]).

In Australia, children have a legal right to attend school and their parents must ensure that this occurs. Although parents have a legal obligation to enrol their children in school, there is no reciprocal obligation for education authorities to provide an education for the child once enrolled. In Queensland, for example, `the Minister's duties are entirely discretionary and consequently the Minister has no real obligation to provide your child with an education once you have enrolled him or her' (Fitzgerald, 1994, p.63).

The promotion of equal educational opportunities for all children, together

with greater emphasis being placed on the right of children to be educated in the school of their choice, has led many parents to opt to enrol their children with disabilities in their local regular school. This has resulted in some difficulties whereby parents have begun to challenge the right of their children to attend their local school and, simultaneously, schools have begun to question the suitability of regular class placement for all children. With respect to children with severe disabilities, the situation of placement varies throughout Australia. In Western Australia Western Australia, state (1991 pop. 1,409,965), 975,920 sq mi (2,527,633 sq km), Australia, comprising the entire western part of the continent. It is bounded on the N, W, and S by the Indian Ocean. Perth is the capital. , Tasmania, South Australia, Victoria and the Northern Territory, there are provisions that empower the Minister to place such students (e.g. Education Act, Tas, 1994, s.21). In the Australian Capital Territory Australian Capital Territory (1991 pop. 276,468), 939 sq mi (2,432 sq km), SE Australia, an enclave within New South Wales, containing Canberra, capital of Australia. It was called the Federal Capital Territory until 1938. , Queensland and New South Wales New South Wales, state (1991 pop. 5,164,549), 309,443 sq mi (801,457 sq km), SE Australia. It is bounded on the E by the Pacific Ocean. Sydney is the capital. The other principal urban centers are Newcastle, Wagga Wagga, Lismore, Wollongong, and Broken Hill. , the laws are silent on this placement issue. To date there have been only limited challenges regarding school placement and choice under the various state anti-discrimination and equal opportunity acts (e.g. Martinovic v. Ministry of Education (1989) EOC 92-264; Finn v. Minister of Education (1995) EOC 92-722).

The legislative framework for special education in Australia does not provide for inclusion rights despite the fact that there are currently several policies for inclusion and integration. Notwithstanding the presence of policy :frameworks for inclusion, law will override policy on an issue, if tested. Although all states and territories in Australia appear committed to inclusion in principle, these inclusion policies are not formalised Adj. 1. formalised - concerned with or characterized by rigorous adherence to recognized forms (especially in religion or art); "highly formalized plays like `Waiting for Godot'"
formalistic, formalized
 by legal mandates. In this respect, Australia differs from the USA and the UK. Before such rights are effected in law in Australia, the various education statutes require amendment. This has not yet occurred. In Australia, there is a trend towards anti-discrimination and equal opportunity legislation as a means of resolving issues such as inclusion. This trend is now reviewed.

Anti-discrimination law Anti-discrimination law refers to the law on people's right to be treated equally. Most developed countries mandate that in employment, in consumer transactions and in political participation people may be dealt with on an equal basis regardless of sex, race, ethnicity,  as a vehicle for redress

Anti-discrimination legislation in the commonwealth and in the states and territories is complex and expansive. Commonwealth anti-discrimination legislation covers the areas of sexual, racial, political, and disability discrimination.(4) In the states and territories, the range of issues covered by this type of legislation varies. These laws are applicable to primary, secondary and tertiary education Tertiary education, also referred to as third-stage, third level education, or higher education, is the educational level following the completion of a school providing a secondary education, such as a high school, secondary school, or gymnasium.  systems, together with further education and training sectors (e.g. Disability Discrimination Act, Clth, 1992, s.4(1); Anti-Discrimination Act, Qld, 1991, s.,4). In general, comprehensive anti-discrimination legislation has been enacted in Australia in response to international approaches to human rights. In the context of this article and within the debate regarding inclusive education, disability legislation is of critical importance.

Of particular significance is the meaning of the terms applied. Definitions of disability are highly relevant when explaining a legal framework. Although there are definitions for disability(5), issues such as learning difficulty and learning disability are not adequately defined. In order to proceed with a case under anti-discrimination legislation, it is necessary to show that a person possesses a disability as defined in law. Currently, throughout the various jurisdictions, broad definitions apply. (e.g. Disability Services Act, Qld, 1992, s.5; Disability Services Act, WA, 1993, s.3).

In Australia, two approaches are recognised: direct discrimination (e.g. Anti-Discrimination Act, Qld, 1991, s.9, s.10; Equal Opportunity Act, Vic, 1995, s.7, s.8) and indirect discrimination (e.g. Equal Opportunity Act, WA, 1984, 66V(3); Equal Opportunity Act, SA, 1984, s.29, s.51, s.85). Implicit in Adj. 1. implicit in - in the nature of something though not readily apparent; "shortcomings inherent in our approach"; "an underlying meaning"
underlying, inherent
 direct discrimination is that no student should receive less acceptable educational treatment because of a disability than would be received by a person without a disability in the same educational environment. This principle does not demand inclusion but mandates educational authorities to provide facilities for a person or persons with a disability that permit an equal access to education (Martinovic v. Ministry of Education (1989) EOC 92-264). In the Martinovic case, brought before the Victorian Equal Opportunity Board, it was alleged that two children with hearing and intellectual disabilities were discriminated against by receiving less favourable treatment. No discrimination was found to have occurred. The Board ruled that, if the Ministry had provided all the services requested for the two children with disabilities, this might have constitututed discrimination against other children in the same educational environment.

Indirect discrimination may be applicable in circumstances where there is no intention to discriminate but the practice of persons or the exercise of certain policies might be deemed discriminatory against persons with a disability. An example of indirect discrimination is the requirement that all children wear the same uniform irrespective of irrespective of
Without consideration of; regardless of.

irrespective of
preposition despite 
 religious and/or cultural belie be·lie  
tr.v. be·lied, be·ly·ing, be·lies
1. To picture falsely; misrepresent: "He spoke roughly in order to belie his air of gentility" James Joyce.
 (Mandla v. Lee [1983] 1 All ER 1062). The issue of services and facilities for children with disabilities poses particular problems for educational authorities. Authorities are obliged o·blige  
v. o·bliged, o·blig·ing, o·blig·es
1. To constrain by physical, legal, social, or moral means.

 to provide facilities that offer all students equal access to education. Should appropriate facilities not be provided for persons with a disability, then indirect discrimination might be found by a court. The Victorian Equal Opportunity Board, however, found otherwise in the Martinovic case. In educational establishments, the provision of facilities for all students is problematic. This issue encompasses a wide area including the provision of computers, library facilities, scientific, and technological equipment and off-site activities such as excursions and camps. To deny a person with a disability access to any of these facilities, among others, might be deemed to be discriminatory.

Should a student with a disability have been treated less favourably than other students, then anti-discrimination laws may provide a framework for redress. Should an education authority encounter `unjustifiable hardship', however, in meeting the requirements of anti-discrimination legislation (Disability Discmination Act, Clth, 1992, s.22(4); Anti-Discrimination Act, Qld, 1991, s.44(2)) then exemptions under the principle of `reasonable accommodation' may be applied.(6)

A further issue of potential discrimination during inclusive education relates to the behaviour of a child with a disability. In New South Wales, the Equal Opportunity Tribunal (1991) established that a person could not be discriminated against on the grounds of behaviour if that behaviour was imputed Attributed vicariously.

In the legal sense, the term imputed is used to describe an action, fact, or quality, the knowledge of which is charged to an individual based upon the actions of another for whom the individual is responsible rather than on the individual's
 to the disability (Welsh v. The Commissioner Soil Conservation Service of New South Wales EOC 92-330). The first educational case to challenge this issue was heard before the Victorian Equal Opportunity Tribunal (Lynch v. Sacred Hearst College Hearst College is a fictional Southern California college and one of the settings of Veronica Mars. In the universe of this series, the college's name derives from a Hearst family noted for the retailer Hearst-Mart.  & Ors, 92-724, 1995). The complainant A plaintiff; a person who commences a civil lawsuit against another, known as the defendant, in order to remedy an alleged wrong. An individual who files a written accusation with the police charging a suspect with the commission of a crime and providing facts to support the allegation  asserted that she suffered from a temporary psychological impairment Impairment

1. A reduction in a company's stated capital.

2. The total capital that is less than the par value of the company's capital stock.

1. This is usually reduced because of poorly estimated losses or gains.

 caused by an alleged sexual assault and it was this impairment that caused the unacceptable behaviour that she exhibited at the school. The complainant had been given various detentions and was suspended and advised to transfer to another school. The Tribunal found that, at the time of the alleged acts, there was nothing to indicate that the complainant was suffering from an impairment or that the respondent ought to have been aware of an impairment. The behaviour problems that caused the school to suspend the complainant were not found to be directly linked to any impairment; therefore, in this case, no discrimination had occurred.

The link between behaviour and impairment was also considered in the case of a seven-year-old child in Queensland brought under the Anti-Discrimination Act (Qld, 1991). The child exhibited an intellectual impairment but was expelled from the regular state school that she had been attending because of her disturbing behaviour (L v. Minister for Education (1996) EOC 92-787: Welsh v. Commissioner applied as authority). It was found that `her disruptive behaviours are elemental elemental

emanating from or pertaining to elements.

elemental diet
see elemental diet.
 to her impairment and without them she would not have been suspended from school' (Holmes J, 1995, p.8). The judgement upheld the claim that `L' had been discriminated against within the meaning of s.10(1) of the Anti-Discrimination Act, and specifically under s.39 by an educational authority denying her access to the opportunity of continuing her instruction at the same school. Although the judgement acknowledged that `L' had been discriminated against because her behaviour was a direct result of her impairment, it was also held that thins discrimination was not unlawful. The Minister for Education argued that, under s.44 of the Anti-Discrimination Act, `L' required special services or facilities that would impose unjustifiable hardship on the educational authority. Holmes J considered unjustifiable hardship to include not only economic liability but also the human costs and benefits involved. He ruled that although he was not required to resolve the debate as to whether full inclusion was the best method for teaching children with an intellectual disability, there were other relevant issues that needed consideration. Specifically Holmes J proposed:
   The stresses placed on teaching staff at Beta without specialist training
   and the disruption entailed to other children are such as to outweigh the
   benefits to L and to constitute unjustifiable hardship to the Department
   should it be compelled to accept L back into the Beta School (L v. Minister
   for Education (1996) EOC 92-787, p.78,821)

Similar findings have occurred in two recent cases in Queensland (K v. N School, No. H54 of 1996; P v. Director-General, Department of Education, No. H53 of 1995). In each case, the schools had advised the parents theft they could no longer continue to enrol their children as it was causing them unjustifiable hardship to meet their specialised needs. Both tribunals found that the children had been discriminated against on the grounds of their impairment. This discrimination was, however, not ruled to be unlawful as it was deemed that continued placement at the regular schools required special services or facilities that would have caused the schools unjustifiable hardship. Both cases were subsequently dismissed.

It would appear that a precedent has now been set. Although it has been found to be unlawful to discriminate against a child on the grounds of behaviour if that behaviour is linked to a disability, it has also been established that this discrimination is not unlawful if its avoidance will cause the school unjustifiable hardship. Additional cases are likely to clarify the breadth of unjustifiable hardship and such interpretations will be significant for the inclusion movement in Australia.

It may take a considerable time for cases to go to trial and, because of the urgency to consider the child's education, interim decisions often have to be made. The two recent cases in Queensland brought before the Anti-Discrimination Tribunal required interim decisions. In both cases, the plaintiffs were applying to be allowed to continue at their present regular schools while waiting for their cases to be heard (K v. N School, No Misc. 10 of 1995; P v. Minister for Education, No Misc.12/95). In both cases the judgements were based upon the `balance of convenience' and what was in the `best interest' of the child. Where the child was still at the school (K v. N School), it was ruled that the child be allowed to continue until the case was heard. Where the child had already left the school (P v. Minister for Education), it was ruled that the child should not be allowed to return until the tribunal had met for a full hearing. The preservation of the status quo [Latin, The existing state of things at any given date.] Status quo ante bellum means the state of things before the war. The status quo to be preserved by a preliminary injunction is the last actual, peaceable, uncontested status which preceded the pending controversy.  was the underlying principle upon which both judges appeared to make their decisions.

Should anti-discrimination litigation An action brought in court to enforce a particular right. The act or process of bringing a lawsuit in and of itself; a judicial contest; any dispute.

When a person begins a civil lawsuit, the person enters into a process called litigation.
 not offer an appropriate solution for redress, then a student with a disability might proceed with a claim for educational negligence and seek compensation in this way.

Educational negligence

Educational negligence applies to the idea that teachers may be held accountable for how they teach. Educational negligence poses further considerations while the normal tests for negligence need to be met. A duty of care must be owed to the student; there must be educational carelessness proven as a result of that duty; and because of carelessness or incompetence in·com·pe·tence or in·com·pe·ten·cy
1. The quality of being incompetent or incapable of performing a function, as the failure of the cardiac valves to close properly.

, on the part of a teacher or an educational system, a student must have suffered damage. There is currently no case law in Australia concerning educational negligence. In the USA, most courts have decided against extending the duty of care to encompass educational negligence because of public policy considerations. That is not to suggest that students in Australia, including students with a disability, might not proceed with claims of educational negligence against teachers. A plaintiff will need to show that a duty of care exists between the teacher and the student with respect to the educational issues raised. In England and Wales, courts have accepted the principle that legal claims based on the negligence of school systems and on educators to respond properly to the learning needs of students with a disability may be heard. English courts, however, have not to date held teachers accountable for educating in a careless careless adj., adv. 1) negligent. 2) the opposite of careful. A careless act can result in liability for damages to others. (See: negligent, negligence, care)  manner. Nor have they held that educators who give careless advice or fail to discover a learning disability and fail to implement appropriate strategies are legally responsible. In X and others (minors) v. Bedfordshire County Council [1995] 3 All ER 353, it was ruled that schools assume responsibility for the physical safety and educational needs of children. Australia, however, is not bound by the rulings in the House of Lords House of Lords: see Parliament. , but such rulings may exert an influence on Australian courts.

The law of negligence has been developed so that students in schools have recourse to financial compensation should foreseeable physical damage occur during school hours. It may be reasonable to assume that similar principles might apply should intellectual damage occur to students as a result of incompetent incompetent adj. 1) referring to a person who is not able to manage his/her affairs due to mental deficiency (lack of I.Q., deterioration, illness or psychosis) or sometimes physical disability.  teaching or educational carelessness. An appropriate standard of care is, however, difficult to apply to all students due, in part, to the varying interpretation of acceptable teaching standards and the unacceptable burden on the courts should litigation in educational negligence become common.


It has been established that the legislative framework for special education in Australia does not provide for inclusion rights despite the fact that there are current policies for inclusion and integration within the various jurisdictions. Appropriate policy and practice in Australia are essential components of inclusion; however both are open to legal challenge and might be found deficient, if tested at law. Unlike the USA, where people's rights are promoted by constitution, in Australia, specific laws and policies are required to ensure equality of opportunity. In the absence of legal provisions for inclusion, anti-discrimination and equal opportunity law appear to be providing avenues for redress for persons with a disability. The lack of legislative frameworks for inclusion in Australian jurisdictions, promotes the need to develop suitable legal models.

Of major importance is that teachers have a legal responsibility to offer reasonable care to all children in their classes, regardless of the child's disability or the adequacy or otherwise of their own training. Teachers who dc, not provide an adequate standard of care may be deemed negligent. It is essential that teachers are fully aware of their obligations to all children in their care, particularly those with special needs. In cases where a child's

behaviour causes difficulties or where additional resources and support are required, schools appear reluctant to accommodate these students. In this regard, schools have been successful in challenging parents' right to choose a regular school for their child on the grounds of `unjustifiable hardship'. Even where an action by a school has been shown to be discriminatory, it has not necessarily been ruled as illegal. This is likely to form a precendent for future inclusive practices. Although regular schools are willing to include students who have reasonable social skills and who require limited additional support, they are concerned about accepting all children with special needs. In increasingly devolving education systems, resources are likely to be allocated more to individual schools and less externally funded support will be provided for children with disabilities. Extensive demands on limited resources may not augur augur: see omen.  well for increased inclusive practices.

constitutional law
disability discrimination
discriminatory legislation
educational discrimination
international law
special needs students


(1) The Pennsylvania Association for Retarded re·tard·ed  
1. Often Offensive Affected with mental retardation.

2. Occurring or developing later than desired or expected; delayed.
 Children v. Commonwealth of Pennsylvania (334 F.Supp. 1257 (E.D.Pa. 1971); 343 F.Supp. 279 (E.D.Pa. 1972); and Mills v. Board of Education of District of Columbia District of Columbia, federal district (2000 pop. 572,059, a 5.7% decrease in population since the 1990 census), 69 sq mi (179 sq km), on the east bank of the Potomac River, coextensive with the city of Washington, D.C. (the capital of the United States).  (348 F.Supp.866 (D.D.C. 1972)).

(2) The Code defines explicitly the provision that schools need to make for children identified as giving their teachers 'cause for concern'. It also defines these children in terms of identifiable characteristics. It prescribes the degree of assessment and support that should be provided at different levels within a school using existing resources.

(3) Currently the following legislation provides for the placement of children with disabilities in special education: Education Act, SA, 1972, s.75(a); Education Act, Vic, 1958, ss.64(C)-(H); Education Act, WA, 1928, ss.20(A)(D)(F); Education Act, NT, 1979, ss.34-35; Education Act, Tas, 1994, s.21.

(4) Sex Discrimination Act, C1th, 1984; Racial Discrimination Act, C1th, 1975; and the Disability Discrimination Act, Clth, 1992.

(5) A comprehensive explanation of disability is supplied in the commonwealth act at Section 4 (Disability Discrimination Act, Clth, 1992).

(6) For variations in interpretation of `unjustifiable hardship' and `reasonable accommodation', see Anti-Discrimination Act, NSW, 1977, s.4(4); Anti-Discrimination Act, Qld, 1991, s.5, s.44; Disability Discrimination Act, Clth, 1992, s.11, s.22(4).


Alston, P., Parker, S., & Seymour J. (1992). Children, rights, and the law. Oxford: Clarendon Press.

Ashman, A. & Elkins, J. (1994). Educating children with special needs (2nd ed.). Sydney: Prentice Hall Prentice Hall is a leading educational publisher. It is an imprint of Pearson Education, Inc., based in Upper Saddle River, New Jersey, USA. Prentice Hall publishes print and digital content for the 6-12 and higher education market. History
In 1913, law professor Dr.

Baehr, P. R., & Gordenker, L. (1992). The United Nations in the 1990s. London: Macmillan.

Charter of the United Nations signed June 26, 1945, entered into force Oct. 24, 1945, 59 Stat. 1031, T.S. No.993, 3 Bevans 1153 (1969).

Commonwealth Disability Strategy: A ten year framework for Commonwealth departments and agencies. (1994, Dec.) Commonwealth of Australia Commonwealth of Australia: see Australia. .

Commonwealth of Australia Constitution Act (1900), 63 & 64 Victoria, Chapter 12. Canberra: Commonwealth Government Printing Office.

Convention Against Discrimination in Education (1960). Under the auspices of UNESCO UNESCO: see United Nations Educational, Scientific, and Cultural Organization.
 in full United Nations Educational, Scientific and Cultural Organization
. Adopted 14 December 1960. Entered into force 22 May 1962.

Department of Education (1994). Code of Practice. On the identification and assessment of special educational needs. London: Author.

Department of Human Services and Health (1993). Disability services standards handbook. Canberra: Commonwealth Government Printing Office.

Fitzgerald, J. (1994). Include me in: Disability, rights and the law in Queensland. Brisbane: Queensland Advocacy Incorporated.

Fleming, J.G. (1992). The law of torts (8th ed.). Sydney: Law Book Company.

Forlin, C. I. & Forlin, P. R. (1998). The legal implications of including students with disabilities in regular schools. In M. Hauritz, C. Sampford & S. Blencowe (Eds.), Justice for people with disabilities: Assessing legal and institutional responses (pp. 109-126). Brisbane: Federation Press.

Forlin, P. & Forlin, C. (1996). Legal frameworks for devolution in regular and special education. Australian Journal of Education, 40, 177-189.

Friend, M. & Bursuck, W. (1996). Including students with special needs. Needham Heights: Allyn & Bacon.

Osmanczyk, E. J. (1985). The encyclopedia encyclopedia, compendium of knowledge, either general (attempting to cover all fields) or specialized (aiming to be comprehensive in a particular field). Encyclopedias and Other Reference Books
 of the United Nations and international agreements. London: Taylor & Francis.

Poiner, K. (1996) In the best interest of all children: Legal and policy perspectives associated with the education of students with special needs. Proceedings of the Fifth Australian and New Zealand New Zealand (zē`lənd), island country (2005 est. pop. 4,035,000), 104,454 sq mi (270,534 sq km), in the S Pacific Ocean, over 1,000 mi (1,600 km) SE of Australia. The capital is Wellington; the largest city and leading port is Auckland.  Education Law Association (ANZELA ANZELA Australia and New Zealand Education Law Association ) Conference on Education, Law and the Future (pp. 143-158). Brisbane: ANZELA.

United Nations Convention on the Rights of the Child. (1989). UN Doc A/44/25. Adopted on 20 November 1989. Entered into force on 2 September 1990.

Universal Declaration of Human Rights. (1948). G.A. Res. 217A (III), U.N. Doc.A/810, at 71.

Dr Peter Forlin and Dr Chris Forlin are Lecturers in the Faculty of Education, University of Southern Queensland USQ has a substantial campus in Hervey Bay (Fraser Coast Campus) to the north of Brisbane, and has recently established a new campus at Springfield in Brisbane's outer suburbs (2006). Another major campus of University of Southern Queensland has been set up in Auckland, New Zealand. , Toowoomba, Queensland Toowoomba (also known as the 'The Garden City') is a city in South East Queensland, Australia. It is located 132 km (82 mi)  4350.

Peter Forlin

Chris Forlin

University of Southern Queensland
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Author:Forlin, Chris
Publication:Australian Journal of Education
Geographic Code:8AUST
Date:Aug 1, 1998
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