Landmark decision by Court of Appeal

The Associate Minister of Education (Special Education), Lianne Dalziel is pleased the Court of Appeal has given its decision in the special education case Attorney General v Daniels and Others.

"This is a landmark decision as the earlier High Court judgment appealed by the Crown had serious ramifications for education.

“A full bench of the Court of Appeal has upheld the Crown's interpretation of sections 3,8, 9 and 10 of the Education Act. The court has said the policy known as Special Education 2000 does not breach the education rights of children with special education needs," said Lianne Dalziel.

"Last year’s High Court decision went too far. There is no ‘free standing’ general right to education of the kind found by the High Court judge, " Lianne Dalziel said.

The High Court did, however, find that the 1998 decision by the former Minister of Education to disestablish special education units did not comply with section 98 (2) of the Education Act. The section requires a locality-by-locality comparison of existing and proposed resources.

"This should have been done before the decision was taken and not shortly afterwards as happened,” said Lianne Dalziel.

This issue is therefore to be referred back to the High Court to see what remedy, if any, should be made.

Although the previous government disestablished all the country’s special education units (approximately 350), in fact around 230 remained open.

The Court of Appeal also noted that a critical part of SE2000 was the increased resourcing that saw funding rise from $170m in 1995 to $329m in 2002. The numbers of students directly receiving assistance rose from about 20,000 in 1995 to over 50,000 today.

Lianne Dalziel said the provision of special education has moved on since the case was lodged.

“I am looking forward to the conclusion of the remedies hearing, so I can re-open my door to direct discussions with parents, which could not occur while the case was in progress. I am keen to have their input into developing the Learning Support Network as the future direction for children with special needs,” said Lianne Dalziel.

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