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Source: Human Rights Commission

The Education and Training Bill needs amending to strongly enshrine disabled children’s rights to an inclusive education, Disability Rights Commissioner Paula Tesoriero told the Education and Workforce Select Committee today.

“Incorporating the right to inclusive education in the Act will also have a flow on effect for policies and practices in schools. It will make the human rights of disabled students more visible. Greater awareness will lead to better policy and practice. It will also ensure that resources are deployed more effectively and lead to better outcomes.”

“Countless reviews and reports have confirmed that despite disabled people making up 24% of the population, they are not getting a fair go in the education system. They are not getting educated, not getting jobs, they are ending up in disproportionate numbers into the youth justice system. This is not just about human rights compliance. It is about designing an education system that is truly inclusive of all people regardless of their disability, diversity or difference.”

Speaking to the Bill’s proposed changes to physical restraint provisions of the Education Act 1989, Ms Tesoriero also said that rather than changing legislation to allow teachers to use force, priority should be given towards providing training on the physical restraint guidelines and professional development in behaviour management and de-escalation techniques.

Full text of the oral submission:

Tēnā koutou katoa -Ko Paula Tesoriero, Toku ingoa. I am the Disability Rights Commissioner.  

Thank you for inviting me to present today. I want to focus on two matters raised in my submission.  

The first regards the Commission’s longstanding position that the right to inclusive education, as provided for by the UN Convention on the Rights of Persons with Disabilities, should be expressly recognised and affirmed in New Zealand’s education legislation. 

The second regards the Bill’s amendments regarding the use of physical restraint and force. 

Right to an Inclusive Education 

Firstly, I wish to start with a quote from the 2017 minority report of Labour, Green and NZ First in the Education and Science Committee’s Inquiry into dyslexia, dyspraxia and autism spectrum disorders in primary and secondary schools. 

“Without changes to the Education Act 1989 to strongly enshrine disabled children’s rights to education and a strong directive to fix a broken system, [the Committee’s] recommendations fail to address the equity and accountability issues raised.” [1] 

Given that strong statement, it is highly disappointing that this Bill has not strongly enshrined disabled children’s rights to an inclusive education. 

 In fact, the Bill merely continues the status quo. Clause 33 of the Bill makes no substantive changes to current s 8 of the Education Act 1989, which provides that students with disabilities have the same rights to receive education as non-disabled students.  

Section 8 has been in place since 1989, before the enactment of the NZ Bill of Rights Act, the Human Rights Act 1993 and almost 20 years before New Zealand ratified the UN Convention on the Rights of Persons with Disabilities.  

It follows that clause 33 of this Bill is therefore simply out of date. 

Against this context, I must emphasise the significance of the ratification of the Convention in 2007. It provides, under Article 24, for the right to an inclusive education. The right to inclusive education is not merely as an equal right to enrol and access education, as section 8 and clause 33 of the Bill provides, but entails: 

  • the principle of non-exclusion 
  • the reasonable accommodation of the needs of individual disabled students 
  • provision of support within the general education system 
  • provision of individual support to maximize academic and social development, consistent with the goal of full inclusion. 

These elements, in themselves, indicates why it is essential to amend clause 33 to reflect the right to inclusive education. They are minimum human rights standards that the state has agreed to meet. They are also human rights standards that New Zealand is legally accountable to under the Optional Protocol to the Convention. 

Yet for many disabled students, these rights are not met. 

Incorporating the right to inclusive education in the Act will have a flow on effect for policies and practices in schools.  

It will make the human rights of disabled students more visible. Greater awareness will lead to better policy and practice. It will also ensure that resources are deployed more effectively and lead to better outcomes.  

Countless reviews and reports have confirmed that despite disabled people making up 24% of the population, they are not getting a fair go in the education system. They are not getting educated, not getting jobs, they are ending up in disproportionate numbers into the youth justice system. 

This is not just about human rights compliance.[2] It is about designing an education system that is truly inclusive of all people regardless of their disability, diversity or difference.  

Nor is this a radical proposition; I note the recent incorporation of the Conventions on the Rights of the Child and Persons with Disabilities within the principles section of the Oranga Tamariki Act and the Children’s Act.  

Therefore, as my primary recommendation, in order to fix the broken system identified by this Committee’s predecessor, I strongly urge the Committee to amend clause 33 of the Bill to expressly recognise and affirm the right to inclusive education.  

The Commission would be happy to provide the Committee with supplementary advice on this issue. 

Restraint and Force 

Secondly, I wish to speak to the Bill’s proposed changes to physical restraint provisions of the Act. 

I am concerned that these provisions potentially place disabled students at risk.  

Ministry data shows that they are already at significantly higher risk of being restrained. Approximately 25 percent of restraint incidents between August 2018 and August 2019 occurred in special schools despite these making up only 1.5 percent of schools across the country.[3] 

I am concerned that by removing the contextual specific language of “restraint” and replacing it with the much broader term “force”, the Bill has the potential to broaden the circumstances under which physical force may be used against children by school staff.[4]  

Let’s be clear about the proposed changes: the current wording states that a teacher “must not physically restrain a student” unless…….., whereas the proposed new wording is expressed as “may use physical force on a student”……. This is a considerable change in context. 

The proposed changes are not child-centred and appear at odds with principles regarding child wellbeing in this country.  

In the 1990’s, our Parliament removed the authorised use of force in classrooms. In 2007, Parliament removed the authorised use of force by parents against children. Now, this Parliament is being asked to consider putting the authorised use of force, albeit in certain prescribed circumstances, back into the classrooms when the current laws have not been properly implemented and the changes are likely to have a disproportionate impact on disabled children. 

It is my view that these changes are, at best, unnecessary and, at worst, send a signal that it is OK to use force on children at a time when considerable resources are trying to keep children safe and secure.  

I have spoken not only to disabled people and their families but also bodies like the Teachers Council. Teachers and others working in the education settings want clarity. What is permitted and what is not. We strongly suggest that changing the Primary Legislation here adds no clarity. It does not clarify the situations when you need lawful licence to use force or not.  

Like many other policy matters, this is a question of implementation, guidance and support not of changing statute.  Rather than changing legislation, priority should be given towards providing teachers and school staff with training on the guidelines and professional development in behaviour management and de-escalation techniques. 

We suggest it is not right to alter the Statute before there is comprehensive implementation.  

I draw the Committee’s attention to the 2017 Guidelines[5] that the Ministry of Education produced for schools on the use of physical restraint. These are thorough, clear guidelines. However, we understand they have not been well implemented. 

We consider updating the Rules (s 139AD of the Education Act 1989) and 2017 Guidelines is the best way to proceed rather than changing the primary legislation. 

I therefore strongly recommend that the Committee reject clauses 94-97 of the Bill. 

I want to circle back to my initial point. I suggest if we worked on making education truly inclusive, we would have less of a need to consider changes like the ones proposed. 

Thank you for this opportunity to address you on these matters. We are happy to take questions. 

Video of disability advocates’ presentations on the Bill can be viewed here.

MIL OSI