Australian Human Rights Commission Submission to the Committee on the Rights of Persons with Disabilities – 25 July 2019 DDA, a failure to provide a reasonable adjustment,27 may amount to direct disability discrimination28 or indirect disability discrimination29. The Commission is concerned that the decision of the Full Federal Court in Sklavos v Australian College of Dermatologists [2017] FCAFC 128 (Sklavos decision) narrows the scope of the duty to make reasonable adjustments under the DDA, by introducing a requirement that the disability of the aggrieved person be a reason for the failure to make reasonable adjustments, in order for it to amount to direct discrimination. It is the Commission’s view that this additional requirement is too onerous. It is also contrary to Article 5 of the CRPD, as clarified by General Comment No.6, which provides that any denial of reasonable accommodation, no matter the reason for the denial, is a form of disability-based discrimination. 34. The Commission has recommended that the Australian Government amend the DDA to address the implications of the Sklavos decision by creating a new standalone provision in the DDA that provides for a positive duty to make reasonable adjustments unless doing so would involve an unjustifiable hardship. 35. The Commission is also concerned that, in the absence of comprehensive human rights protections in Australia, people with disability are not adequately protected from intersectional discrimination.30 The effects of intersectional discrimination and disadvantage on Aboriginal and Torres Strait Islander peoples with disability are particularly pronounced. 36. The Australian Government Plan to Improve Outcomes for Aboriginal and Torres Strait Islander People with Disability was released in 2017.31 Aboriginal and Torres Strait Islander peoples with disability and their representative organisations must be consulted and enabled to participate meaningfully in all stages of the design, implementation, monitoring and review of this plan. The plan must be appropriately resourced to achieve real change for Aboriginal and Torres Strait Islander peoples with disability. The Commission recommends that the Australian Government review and update the plan as part of the next iteration of the NDS. Recommendation 12: The Australian Government review and amend the Disability Discrimination Act 1992 (Cth) to ensure it aligns with the CRPD, particularly the ‘reasonable accommodation’ duty. Recommendation 13: In respect of the Australian Government Plan to Improve Outcomes for Aboriginal and Torres Strait Islander People with Disability, the Australian Government: 11