Disability Discrimination, the Duty to Make Adjustments and the Problem of Persistent Misreading

Abstract

The statutory duty to make adjustments contained in the Disability Discrimination Act 1992 (Cth) is one mechanism to promote substantive equality in Australia. In theory, it requires duty-bearers to adjust existing practices to accomodate a person's needs. However, in Sklavos v Australasian College of Dermatologists, it was established that a duty-bearer is only required to make adjustments for persons with disabilities where the reason for the refusal to make adjustments is based on the disability itself. This removes the positive aspect of the duty from the requirement and it makes it almost impossible for a claimant to prove their claim. This is not the first time that an Australian appellate court has effectively removed the positive duty aspects of the duty to make adjustments. This article will consider the reasons why higher courts in Australia appear to struggle to give meaning to such a duty. It will outline the purpose of the duty to make adjustments, before considering the approach of Australian courts to the duty. It will conclude by considering the different approaches adopted to such a duty in comparable jurisdictions and suggest reforms to the current Australian approach.