ACT Discrimination Act Positive Duty
Positive duty to make reasonable adjustments
A positive duty to make reasonable adjustments is provided for by the new Part 9 of the ACT Discrimination Act which commences in April 2024.
The duty to provide reasonable adjustments requires a person to make reasonable adjustments to accommodate another person's particular needs arising from a protected attribute if discrimination on the ground of the attribute is unlawful under this Act.
An adjustment is not reasonable if it would cause unjustifiable hardship to the person making the adjustment.
Failure to make reasonable adjustments, except where it would cause an unjustifiable hardship, would be an unlawful act.
The positive duty to make reasonable adjustments applies to all protected attributes in section 7 of the Discrimination Act.
This includes disability, age, sex, gender identity, race, parent, family, carer or kinship responsibilities, religion, subjection to family violence, employment status and accommodation status and other attributes covered by the Discrimination Act.
Positive duty to eliminate discrimination
A positive duty to eliminate discrimination has been introduced into the ACT Discrimination Act and has a staged commencement.
The positive duty requires any organisation or business, and any individual with organisational management responsibility that is subject to the Discrimination Act, to take reasonable and proportionate steps to eliminate discrimination, sexual harassment and unlawful vilification.
In deciding whether steps are reasonable and proportionate, all the circumstances must be considered, including the following:
- the nature and size of the organisation or business;
- the resources of the organisation, business or individual;
- the business or operational priorities of the organisation, business or individual;
- practicability and cost of the steps
The positive duty relates to all protected attributes in the Discrimination Act including disability, sex, race, nationality, colour, age, gender identity, accommodation status, employment status, subjection to family violence, religion, immigrant status, carer, parent or kinship status, sexuality as well as sexual harassment and vilification.
From April 2025 the positive duty applies to any ACT government administrative unit, territory authority and territory instrumentality and any individual with organisational management responsibility for any of these entities.
From April 2027 the positive duty applies to all other people and entities who are duty holders under the Discrimination Act eg service providers, employers, education providers, accommodation providers, health service providers etc.