Restraint and Seclusion of Students with Disabilities

A Child Rights Perspective from Victoria, Australia

In: The International Journal of Children's Rights
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  • 1 University of Melbourne, Australia

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Students with disabilities are being subjected to restraint and seclusion in some schools in Victoria, Australia. The practices are being used for purposes such as punishment, behaviour change and harm prevention. This article analyses the legality of the practices under the Victorian Charter of Human Rights and Responsibilities and the United Nations Convention on the Rights of the Child, which Australia has ratified.

It concludes that the use of restraint and seclusion on students with disabilities in some Victorian schools has violated children’s rights, under both domestic and international human rights law. The Australian and Victorian governments have failed to recognise the presumption against the use of restraint and seclusion on children with disabilities in school and have failed to justify the associated rights limitations. A cultural shift is required to ensure that children with disabilities no longer experience unlawful rights violations, injuries and mental anguish as a result of restraint and seclusion in the very institutions that have a duty of care to protect them.

  • 39

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  • 113

     For example, Topsfield, Jewel, “Concern at treatment of disabled in schools”, The Age (Melbourne), 26 November 2010, 2; Hamblin, Andrea, “Special School Probed”, Geelong Advertiser (Geelong), 12 September 2011, 1; Harris, Amelia, “Grapple over autistic boy Court told of martial arts training for educators”, Herald Sun (Melbourne), 4 September 2012, 11; Doherty, Elissa, “Heavy-handed tactics furore”, above, n. 6, 34.

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  • 170

    Michelle Grattan, “Grattan on Friday: Labor Shrapnel Flies”, The Conversation, 5 April 2013: www.theconversation.com/au, accessed 25 April 2013.

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  • 196

    Siracusa Principles 1985, cited in Tobin, “Understanding a Rights Based Approach”, above, n. 28, 16; Charter, s. 7(2).

  • 197

    Siracusa Principles 1985, cited in Tobin,”Understanding a Rights Based Approach”, above, n. 28, 16.

  • 224

    Siracusa Principles 1985, cited in Tobin, “Understanding a Rights Based Approach”, above, n. 28, 16.

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    Siracusa Principles 1985, cited in Tobin, “Understanding a Rights Based Approach”, above n. 28, 16.

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    Carr et al (1999), cited in Safran and Oswald (2003), cited in Growe, Roslin, Jamilah Hicks and Lola Vallaire-Thomas, “Solution-Focused Brief Therapy: An Interventional Approach to Improving Negative Student Behaviors”, (2011) 38 Journal of Instructional Psychology 224.

  • 277

    Siracusa Principles 1985, cited in Tobin, “Understanding a Rights Based Approach”, above, n. 28, 16. Proportionality is probably a general principle of international law, as seen in “Soering” [89] cited in Tobin, “Time to Remove the Shackles”, above, n. 31, 232; Charter, s. 7(2); “Kracke” [98–197].

  • 283

    Siracusa Principles (1985), para. 10, cited in Tobin, “Understanding a Rights Based Approach”, above, n. 28, 4.

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    Topsfield, Jewel, “No cash for Gonski funding in budget”, The Age, 7 May 2013: www.theage.com.au/victoria/no-cash-for-gonski-funding-in-budget-20130507-2j575.html, accessed 16 May 2013.

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