(NSW) Impose a Positive Duty to Provide Reasonable Adjustments for People with Disabilities

Author: Xuan Vu | Publish date: 07/08/2025

Problem Identification: 

In NSW, there is no positive duty to make reasonable adjustments for people with disability. 

The Anti-Discrimination Act 1977 (NSW) (the Act) does not include a provision that expresses a positive requirement for organisations to make reasonable adjustments for individuals with disability. 

This means that organisations in NSW are not legally obligated to proactively provide reasonable adjustments accordingly. Disability Advocacy NSW has highlighted a ‘perpetual problem where [people with disability] are expected to proactively attempt to enforce their own legal rights’.

Context: 

A positive duty refers to an obligation to ‘take preventative measures regardless of whether a complaint has been made.' It ‘requires a person to make reasonable adjustments to accommodate another person’s particular needs’. Reasonable adjustments can refer to ‘a change to an existing approach or process which is essential to ensure a person’s access to a service.’

The Act has prohibited discrimination on the grounds of disability across settings, such as employment, education and the provision of goods and services. These prohibitions against discrimination are enforced by lodging a complaint with Anti-Discrimination NSW, which resolves complaints through conciliation. Conciliation is an attempt to resolve a complaint, which involves a discussion between the alleged victim and persecutor of discrimination. 

However, People with Disabilities Australia (PWDA) believes the Act is ‘almost entirely reliant on a person coming forward to make a complaint’.  Australian Lawyers for Human Rights (ALHR) claims the Act ‘does not require steps to be taken to make reasonable adjustments to accommodate a person’s disability.’ They argued the Act ‘only prohibited discrimination, making no effort to actively promote equality.’ 

If a complaint is successful, the outcome tends to be individual financial compensation rather than reform of an organisation’s practices. In contrast, PWDA believes ‘positive duties can directly address systemic discrimination.’ The Australian Human Rights Commission (AHRC) echoed this sentiment when they stated positive duties ‘are focused on instituting change rather than on fault.’ 

PWDA also raised concerns that many people who have experienced disability discrimination, don’t take action. They claim it may be due to a ‘lack of knowledge about their rights…where to get assistance, and concerns about the impact of proceedings on their health and wellbeing or future career.’ Further, disability lawyer Natalie Wade said ‘it is near impossible to prove disability discrimination in court’. 

The AHRC noted that a positive duty could ‘benefit businesses by helping to prevent individual claims of discrimination from being brought against them.’ 

Australian Lawyers for Human Rights, Legal Aid NSW, People with Disability Australia, NSW Law Society, Disability Advocacy NSW and the Public Interest Advocacy Centre have recommended introducing to the Act, a positive duty to make reasonable adjustments for people with disability. The ALHR stated it could be applied to ‘employers, educators, providers of goods and services and others’. They argued imposing this positive duty could ‘motivate more employers, educators and other bodies to develop clear policies on reasonable adjustment.’ ALHR believe it could promote the ‘full and equal participation of people with disability in all areas of public life.’  

Precedent: 

There is domestic precedent for imposing an obligation to provide reasonable adjustments to people with a disability. Both VIC and the ACT have a positive duty to provide reasonable adjustments for people with disability. The Victorian Equal Opportunity and Human Rights Commission (VEOHRC) has assisted organisations in upholding their positive duty by creating action plans and conducting reviews. VEOHRC also has the power to initiate investigations without relying on individual complaints.

Advice/Solution Identification:

The NSW Attorney General should introduce a provision in the Anti-Discrimination Act 1977 (NSW) to impose a positive duty to make reasonable adjustments for persons with disabilities.

This could help to ensure that employers, educators, and service providers proactively make reasonable adjustments for people with disability. Thus, promoting the full and equal participation of people with disability in all areas of public life. 

Download the 1-Page Brief Here - (NSW) Impose a Positive Duty to Provide Reasonable Adjust.

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Public Support: 

1. Australian Lawyers for Human Rights

2. NSW Law Society 

3. Public Interest Advocacy Centre

4. Legal Aid NSW

5. People with Disability Australia

6. Disability Advocacy NSW

News Coverage:

• The Conversation - “NSW’s anti-discrimination law is confusing and outdated. Why is it lagging behind the country on reform?”. Identifies limitations of the NSW Anti-Discrimination Act. By: Simon Rice | Fri 3 Sept 2021. Read the article here.

• The Conversation - “Millions of Australians have a chronic illness. So why aren’t employers accommodating them?”. Explains that reasonable adjustments should be made for chronically ill employees. By: Peter Ghin and Susan Ainsworth | Mon 5 Feb 2024. Read the article here.

• The Guardian - “‘I was terrified of the tea round’: the small changes that can help neurodivergent people thrive at work”. Discusses how reasonable adjustments can benefit neurodivergent employees. By: Gaby Hinsliff | Tue 4 Jun 2024. Read the article here.

• The Conversation - “Explainer: what is a ‘positive duty’ to prevent workplace sexual harassment and why is it so important?”. Explains positive duty in regards to preventing sexual harassment. By: Sue Williamson | Wed 8 Sept 2021. Read the article here.

Where to go to learn more: 

• Anti-Discrimination NSW - Provides information on how discrimination complaints are handled. Visit Anti-Discrimination NSW here.

• People with Disabilities Australia - Explains the benefits of a positive duty to provide reasonable adjustments. Read the full submission here.

• Anti-Discrimination Act 1977 (NSW) - Read the full act here.

• Equal Opportunity Act 2010 (VIC) - Read the suggested model legislation here.

• Discrimination Act 1991 (ACT) - Read the existing provision that imposes a positive duty to provide reasonable adjustments here.

Human Perspective: Alexia, a university student in NSW who uses a wheelchair, often faces barriers accessing lecture halls and campus facilities that aren’t wheelchair accessible. Given the Anti-Discrimination Act 1977 (NSW) does not impose a positive duty to provide reasonable adjustments, her university is not legally required to make changes unless she lodges a formal complaint. This places the burden on Alexia to advocate for her rights, causing stress, delays and disruption to her education. The absence of a proactive legal obligation means people with disabilities like Alexia are left without the support they need to participate equally in public life.

To protect the anonymity of those involved, this is a fictionalised account drawn from an amalgamation of real-life stories, experiences, and testimonials gathered during the research process for this brief. Any resemblance to actual individuals is purely coincidental.

Conflict of interest/acknowledgment statement: 

N/a

Support 

If your organisation would like to add your support to this paper or suggest amendments, please email Info@foreaustralia.com. 

Reference list: 

Anti-Discrimination Act 1977 (NSW). https://legislation.nsw.gov.au/view/html/inforce/current/act-1977-048 

ACT Human Rights Commission. (2024). ACT Discrimination Act Positive Duty . ACT Discrimination Act Positive Duty; ACT Human Rights Commission. https://www.hrc.act.gov.au/discrimination/act-discrimination-act-positive-duty 

Allen, D. (2014). In defence of settlement: Resolving discrimination complaints by agreement. International Journal of Discrimination and the Law, 14(4), 199–220. https://doi.org/10.1177/1358229114548145 

Buckland, A., Dockery, M., Duncan, A., Arenas, V., Sotirakopoulos, P., Twomey, C., & Vu, L. (2024, March). Employment and Disability in Australia: Improving employment outcomes for people with disability. Bankwest Curtin Economics Centre. https://bcec.edu.au/assets/2024/03/BCEC-Employment-and-disability-in-Australia-2024-WEB.pdf 

Conciliation Conferences. (2022, March 29). Anti-Discrimination NSW; NSW Department of Communities and Justice. https://antidiscrimination.nsw.gov.au/complaints/conciliation-conferences.html 

Disability Discrimination Act 1992 (Cth). 

https://www.legislation.gov.au/C2004A04426/latest/text 

Disability Advocacy NSW. (n.d.). Anti-Discrimination Act NSW (1977) review [Submission to NSW Law Reform Commission]. https://lawreform.nsw.gov.au/documents/Current-projects/ada/preliminary_submissions/PAD18.pdf 

Disability and Employment: Reasonable Adjustments. (n.d.). Victorian Equal Opportunity and Human Rights Commission. https://www.humanrights.vic.gov.au/for-individuals/disability-and-the-workplace/ 

Disability statistics. (2024). Australian Disability Network. https://australiandisabilitynetwork.org.au/resources/disability-statistics/ 

Discrimination Act 1991 (ACT). 

https://www.legislation.act.gov.au/a/1991-81/

Equal Opportunity Act 2010, Victorian Legislation (2022). https://www.legislation.vic.gov.au/in-force/acts/equal-opportunity-act-2010/030  

Laurens, J. (2023). Making NSW discrimination laws work for people with disability. Anti-Discrimination Act 1977 (NSW) review [Submission to NSW Law Reform Commission]. People with Disability Australia. https://pwd.org.au/wp-content/uploads/2023/09/PWDA.SUB_.NSW_.Anti_.Discrimination.Act_.Review.2023-2023-09-29.pdf 

Positive Duty. (n.d.). Victorian Equal Opportunity and Human Rights Commission. https://www.humanrights.vic.gov.au/for-organisations/positive-duty/ 

Preventing sexual harassment in retail franchises. (2022). Victorian Equal Opportunity and Human Rights Commission. https://www.humanrights.vic.gov.au/static/0e635cd9874d974bcae48ecfecab4215/Resource-Investigations-Preventing_Sexual_Harrassment_in_Retail_Franchises.pdf 

Reasonable adjustments. (2019). Australian Commission on Safety and Quality in Healthcare. https://www.safetyandquality.gov.au/our-work/intellectual-disability-and-inclusive-health-care/reasonable-adjustments

Review of the Anti-Discrimination Act 1977 (NSW). (2023). Legal Aid NSW. https://www.legalaid.nsw.gov.au/content/dam/legalaidnsw/documents/pdf/about-us/law-reform/law-reform-submissions-2023/legal-aid-nsw-submission-nswlrc-review-anti-discrimination-act.pdf 

Smith, B., & Allen, D. (2012). Whose fault is it? Asking the right question to address discrimination. Alternative Law Journal, 37(1), 31–36. Deakin Research Online. https://scispace.com/pdf/whose-fault-is-it-asking-the-right-question-to-address-3l09f0iz5x.pdf.

Submission In Response To The Australian Law Reform Commission’s Review Of The Anti-Discrimination Act 1977 (NSW). (n.d.). Australian Lawyers for Human Rights. https://lawreform.nsw.gov.au/documents/Current-projects/ada/preliminary_submissions/PAD62.pdf 

Wade, N. (2021, July 2). Disability community calls for reform after discrimination claims become “impossible to prove” [Press release]. People with Disability Australia. https://pwd.org.au/media-release-disability-community-calls-for-reform-after-discrimination-claims-become-impossible-to-prove/ 

What we do. (2024, July 26). Anti-Discrimination NSW. https://antidiscrimination.nsw.gov.au/about-us/what-we-do.html