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Reforming the Disability Discrimination Act following the Sklavos Decision

Disability Law book and stethoscope on the desk.

People with Disability Australia and the Public Interest Advocacy Centre are writing to the Federal Attorney-General Michaelia Cash to urge the Government to introduce legislation to make targeted amendments to the Disability Discrimination Act 1992 (DDA) to counter the effect of the decision of the Full Court of the Federal Court in Sklavos v Australian College of Dermatologists [2017] FCAFC 128.

The DDA was intended by Parliament to recognise that positive action may be required to avoid disability discrimination. The reasonable adjustment provisions were designed to achieve this by ensuring that changes to structures, systems and practices are made to enable the full and effective participation and inclusion of people with disability in society.

Sklavos has drastically reshaped this positive obligation placed on duty holders by interpreting the DDA as requiring a person with disability to prove their disability was the reason a person failed to provide a reasonable adjustment.

This interpretation has created a new legal hurdle when people with disability seek reasonable adjustments in workplaces, schools or other areas of public life, making it much more difficult to establish that we’ve experienced unlawful discrimination.

The Full Court’s interpretation of the reasonable adjustment provisions undermines the protections afforded by the DDA. Urgent reform is needed to restore the original intention of these provisions.

We would like to see changes made to the definitions of direct and indirect disability discrimination, and the introduction of a new standalone provision clarifying that failure to provide reasonable adjustments to a person with disability constitutes discrimination.

We invite interested organisations to endorse the letter to the Attorney-General and support this request for reform. You can read the letter and the amendments we’re proposing here in Word or as a PDF.

If you wish to become an endorsing organisation, please email Fleur Beaupert, Senior Policy Officer at People with Disability Australia at fleurb@pwd.org.au with your organisation name and logo by 28 May 2021.

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