Thread by @AllMeansAllAus

#DisabilityRC has released the legal opinion it sought from eminent Int’l Human Rights Law Emeritus Prof @acbyrnes_andrew re Art 24 #CRPD. It concluded Aus is obliged to (1) build an inclusive general education system AND (2) abolish segregation for student with disability 1/

In his expert opinion for #DisabilityRC, Prof Byrnes also confirmed that the interpretation of Article 24 of the #CRPD set out in General Comment No. 4 is “the one that would be reached by the proper application of the accepted rules of treaty interpretation” (p.1). 2/

Professor Byrnes @acbyrnes_andrew specifically considered – and REJECTED - the (previous) Australian Government’s interpretation of Article 24 #CRPD & int’l law obligations (set out in its submission to #DisabilityRC) that it can continue to allow segregated special schools: 3/

In particular, in his legal opinion prepared for #DisabilityRC Prof @acbyrnes_andrew REJECTED the argument of the (previous) Aus Govt, that Art 13(3) of ICESCR means they need to give parents “choice” to put children in segregated settings & must therefore preserve segregation:4/

All Means All repeatedly challenged the (previous) Australian Govt about its misguided attempts to incorrectly rely on Art 13 of ICESCR to argue “parent choice” of segregation, including in our 2018 report to @UN in 2018. Read out report here: allmeansall.org.au/wp-content/upl… 5/

Professor @acbyrnes_andrew stated that in ratifying the CRPD, Australian governments are legally bound under international law to END the segregation of students with disability in Australian education AND can’t rely on “parents choice” arguments to avoid this #DisabilityRC 6/

This conclusion that segregated education is to be abolished is consistent with the views of @UN's treaty bodies + disability human rights experts, Aus Disabled Persons & Rep Orgs + international cross disability consensus on #InclusiveEducation (more below) #DisabilityRC 7/

The @UN’s expert who gave evidence at at #DisabilityRC hearing, Special Rapporteur Ms Devandas Aguilar stated that segregated ed is “against, of course, the Convention” and “segregation is a grave source of discrimination that we need to stop.” Transcript 19 Aug 2020 p185 8/

CRPD C'tee Chair & eminent Aus legal scholar @rosemary_kayess also gave evidence at a #DisabilityRC hearing that:
“CRPD is about addressing segregation on the basis of disability” & “[W]e need to interrogate that segregation [and] how we break down and end that segregation.” 9/

In a 2020 Position Paper submitted to #DisabilityRC Australia’s peak disability representative & advocacy orgs stated they are” fighting to end the segregation of people with disability in Australian education, housing and workplaces”. Read here: dpoa.org.au/wp-content/upl… 10/

The 2020 report by @IDA_CRPD_Forum (the peak international organisation disabled persons orgs ) represents the international and cross-disability consensus on #InclusiveEducation: it calls for implementation of inclusive ed & phasing out segregation: 11/ internationaldisabilityalliance.org/sites/default/…

The #CRPD's prohibition on segregation on the basis of disability as a form of discrimination arises through principles of equality & non-discrimination in int’l human rights law also recognised by other @UN treaty bodies, both generally & in context of #InclusiveEducation 12/

For example, in its 2017 review of Australia & Concluding Observations, the @UN Committee on Economic, Social and Cultural Rights raised the segregation of students with disability in “special” schools in Australia and the Aus Govt’s obligation to ensure inclusive education: 13/

In 2019 @UN Human Rights Council adopted a thematic report “Empowering Children with Disabilities for the Enjoyment of their Human Rights Including Through Inclusive Education” recognising need to phase out segregated education. 14/

The focus of the @UN Human Rights Council adopted report (and prepared by the the UN High Commissioner on Human Rights) was on the protection of disabled children from abuse, exploitation and violence. You can find that report here: 15/ ap.ohchr.org/documents/dpag…

The 2019 @UN Human Rights Council adopted report stated:
“[i]nclusion in education is more than a means of ending segregation [and] involves a commitment to creating schools which respect and value diversity … so that all children can participate in teaching and learning.” 16/

The 2019 @UN Human Rights Council endorsed Thematic Report also recommended the transfer of “resources currently dedicated to special education” to be made available in the general education system “as segregated settings are progressively replaced” (para 44). 17/

General Comment No.4 which Professor Andrew Byrnes @acbyrnes_andrew has analysed provides guidance to States Parties on Article 24 of the #CRPD and the requirements applied by the Committee in reviewing compliance by States Parties. Read more here: allmeansall.org.au/un-general-com… 18/

General Comment No.4 articulates the rights of students with disability to inclusive education & states the segregation of students with disabilities it is NOT compatible with inclusive education. 19/

General Comment No.4 provides in paragraph 10 that “Segregation occurs when the education of students with disabilities is provided in separate environments designed or used to respond to a particular or various impairments, in isolation from students without disabilities". 20/

General Comment No.4 also states “Integration is a process of placing persons with disabilities in existing mainstream educational institutions, as long as the former can adjust to the standardized requirements of such institutions." 21/

Prof Byrnes @acbyrnes_andrew in his legal opinion for #DisabilityRC agrees with the definitions of these key concepts and the distinctions made between "inclusion" and "segregation" and "integration". 22/

Paragraph 13 of General Comment No.4 on Article 24 #CRPD re #InclusiveEducation further states that “the right to non-discrimination includes the right not to be segregated and to be provided with reasonable accommodation.” #DisabilityRC 23/

Para 39 of General Comment No.4 makes it clear full realisation of Art 24 “is not compatible with sustaining two systems of education: mainstream and special/segregated education systems” & para 68 calls for “a transfer of resources from segregated to inclusive environments.”24/

In 2018 #CRPD C'tee issued General Comment No.6 on Art 5 (Equality & Non-discrimination) stating “segregated models of education, which exclude students with disabilities from mainstream and inclusive education on the basis of disability, contravene articles 5(2) and 24(1)(a) 25/

In 2018 #CRPD C'tee issued its first ruling in a case against Spain under the Optional Protocol, holding Spanish govt liable for breach Art 24 after it enforced an executive action to place a disabled student in a segregated ‘education centre’ in a school #DisabilityRC 26/

In March 2022, C'tee on Rights of the Child & CRPD C’ttee issued joint statement affirming “the right to quality inclusive education is not compatible with sustaining two systems of education: a mainstream education system and a special/segregated education system” 27/

As shown by Prof Byrne legal opinion, Aus Govt’s position on General Comment No.4 isn’t supported by proper interpretation of int’l law. In our view it’s driven by political convenience – protecting disabled children’s right to inclusive ed means defying powerful status quo. 28/

The political power of a range of vested interests protecting segregated systems was also highlighted by the Council of Europe Commissioner for Human Rights in his 2017 Position Paper referring to barriers to inclusion in Europe (you can read it here rm.coe.int/fighting-schoo…): 29/

Despite strongly supporting #CRPD ratification, recent Aus Govts especially under LNP, have sought to avoid legal obligations and since 2015 in particular have attempted to advance “interpretations” that are incorrect at best - calculated and disingenuous distortions at worst 30/

CRPD C’tee member Prof M. Schefer took aim at Aus Govt in 2019 for saying inclusive education encompasses choice by the parents of segregated education, stating “this view stands in stark contrast to what this Committee has consistently defined ‘inclusive education’ to mean.” 31/

You can read what Professor Schefer had to say about the Australian Government’s position on inclusive education here: allmeansall.org.au/committee-righ… 32/

Dr Gauntlett in an opening statement for @aushumanrights at @UN in 2019 stated “Australia has a segregated education system [...] and the rate and extent of segregation is growing, which is contrary to Article 24 and General Comment No.4.” 33/

Read the speech given by Dr Ben Gauntlett, who is the Australian Disability Discrimination Commission, here: humanrights.gov.au/about/news/spe… 34/

Prof @acbyrnes_andrew independent expert opinion for #DisabilityRC states Art24 #CRPD requires fully inclusive education & this is not consistent with maintaining “dual system” that segregates on basis of disability. It represents proper application of contemporary int’l law 35/

Article 24 #CRPD doesn’t mean tomorrow shut down all segregated ed settings – it means taking steps immediately to ensure gradual & planned reform to transition a full inclusive system & phase out segregation – it will take time because “mainstream” hasn’t been built for ALL. 36/

Professor @acbyrnes_andrew explains that this is called “progressive implementation” (sometimes called “progressive realisation”) in international law terms: 37/

Australian Coalition for Inclusive Education (ACIE) released a “Roadmap” for Inclusive Education consistent with Art 24 $CRPD, setting out short, medium & long term actions towards the implementation of an inclusive education system for ALL. Read here: acie.org.au/acie-roadmap/ 38/

It seems the legal opinion of Prof Byrnes – an eminent independent international human rights law expert - was requested by #DisabilityRC to test the correctness of the (previous) Aus Govt position & legal basis for the General Comment No.4 & it has done so comprehensively. 39/

The #DisabilityRC Interim Report revealed some difficulty with these issues but seemed to also suggest some predispositions, in choosing to characterise the CRPD C’tee’s as the ‘broad’ view – as noted by @StartingWJulius: 40/

You can read @StartingWJulius article on the #DisabilityRC Interim Report re education here: startingwithjulius.org.au/drc-interim-re… 41

#CRPD Committee’s view is supported by peak disabled persons & rep orgs in Aus @DPOAustralia & internationally including @IDA_CRPD_Forum, @UN treaty bodies & experts including witnesses at #DisabilityRC, eminent Aus disability human rights legal scholars AND @allmeansallaus 42/

And by the many disabled people, parents & allies who’ve asked the #DisabilityRC to hear their voices about human right to inclusive education - including rights to supports & accommodations & rights not to be segregated – they have fought hard for so long. 43/

Who doesn’t agree with CRPD Committee’s view? The (previous) Aus Govt who made a submission to the #DisabilityRC on Article 24 - and possibly some #DisabilityRC Commissioners, if you read Counsel Assisting’s Opening Statement in PH 24 as implying this 44/ disability.royalcommission.gov.au/system/files/2…

It is worth noting the strong criticism by @DPOAustralia orgs of the Chair’s opening statement for Public Hearing 24, which was understood as implying a willingness to recommend solutions which are not compliant with disabled people’s human rights 45/ dpoa.org.au/media-release-…

It is not clear whether in his Opening Statement for Public Hearing 24 the Chair of #DisabilityRC was expressing personal views or representing the views of other Commissioners. Either way the statement has rightly caused great concern. 46/ #DisabilityRC

Emeritus Professor Andrew Byrnes @acbyrnes_andrew has provided a comprehensive 131 page independent expert opinion to the #DisabilityRC outlining the correct legal interpretation of Article 24 of the @UN #CRPD 47/ disability.royalcommission.gov.au/publications/p…

The question is: will #DisabilityRC be guided by interpretation of Art 24 requiring move to inclusive system w/o segregation – the formal position of CRPD C’tee, consistent with @UN bodies & experts, eminent legal academics & Position Statement of Aus Disabled Persons orgs? 48/

Or will the #DisabilityRC contort itself, like the Australian Government has been doing, in seeking justify and defend the systemic status quo that denies disabled people their #HumanRights - on the basis of “parent choice”, “complexity” and whatever else is convenient? 49/

So we ask: will this #DisabilityRC contribute to upholding disabled people’s human rights or the structures that oppress them? This question was posed by @StartwingWJulius at the first education Public Hearing & we hope the answer will be YES - It's time. 50/