Civil Aviation Amendment
(Relationship with Anti-discrimination Legislation) Bill
2004
Date Introduced:
11 March 2004
House: House of Representatives
Portfolio: Transport and Regional
Services
Commencement:
Royal
Assent
The purpose of
the Civil Aviation Amendment (Relationship with Anti-discrimination
Legislation) Bill 2004 is to allow the making of regulations under
the Civil Aviation Act 1988 (CAA) that are inconsistent
with Commonwealth anti-discrimination laws, where the inconsistency
is necessary for the safety of air navigation. A further purpose is
to retrospectively validate existing regulations that may be
inconsistent with Commonwealth anti-discrimination laws, where the
inconsistency is necessary for the safety of air navigation.
Regulations relating to civil aviation have
been made under section 98 of the Civil Aviation Act 1988
(the CAA). Section 98(1) provides as follows:
Regulations etc.
(1) The Governor-General may
make regulations, not inconsistent with this Act:
(a) prescribing matters required
or permitted by this Act to be prescribed;
(b) prescribing matters
necessary or convenient to be prescribed for carrying out or giving
effect to this Act;
(c) for the purpose of carrying
out and giving effect to the provisions of the Chicago
Convention(1) relating to safety;
(d) in relation to safety of air
navigation within a Territory or to or from a Territory;
(e) in relation to safety of air
navigation, being regulations with respect to trade and commerce
with other countries and among the States; and
(f) in relation to safety
of air navigation, being regulations with respect to any other
matter with respect to which the Parliament has power to make
laws.
The Disability Discrimination Act
1992 (DDA) makes discrimination on the basis of disability
unlawful in many areas of life. The Sex Discrimination Act
1984 (SDA) makes discrimination on the basis of sex, marital
status or pregnancy unlawful. Both Acts include a number of
exemptions.
Regulations made under an Act are generally
invalid if they are inconsistent with the Act under which they are
made, other Acts, or the common law.(2) Therefore,
unless either Parliament specifically provides that regulations
made under an Act may make discrimination on one or more of the
bases proscribed by the DDA or the SDA lawful, or the regulations
fall within one or more of the exemptions in the DDA or the SDA,
regulations that purport to allow such discrimination will be
invalid.
A number of regulations have been made under
the CAA that may be invalid for this reason. For example, there are
regulations that allow discrimination on the basis of the
disability of colour blindness, for instance in relation to air
traffic controllers. These regulations will be valid if the
discrimination allowed relates to the inherent requirements of a
job, as this exemption is provided for by the DDA.(3)
However, it has been argued that the current requirements of the
regulations go beyond what is required by the inherent requirements
of the job of an air traffic controller.(4) Furthermore,
regulations permitting discrimination on the basis of disability
that do not relate to a job (such as in relation to a private pilot
s licence) would probably be invalid. There are also regulations
that impose requirements on the basis of pregnancy.(5)
These regulations may be invalid, even if it can be established
that they are necessary for air traffic safety, as there is no
exemption in the SDA permitting discrimination based on the
inherent requirements of a job.
Under section 55 of the DDA and section 44 of
the SDA, the Human Rights and Equal Opportunity Commission (HREOC)
may grant exemptions from specified provisions of those Acts. On 26
November 2002 HREOC granted a conditional exemption to persons
acting pursuant to the then existing Civil Aviation Regulations
regarding medical fitness, or pursuant to amendments to those
regulations that were proposed at that time, for a period of 5
years. The exemptions were granted subject to the condition that
they were to apply only where a person s pregnancy (for the
purposes of the SDA) or disability (for the purposes of the DDA)
prevents the person safely fulfilling the inherent requirements of
the role covered by the licence concerned .(6)
In the process leading up to HREOC granting an
exemption, submissions were received from a number of bodies. Most
opposed the grant of an exemption, primarily taking issue with the
current colour blindness standards and arguing that current colour
blindness testing is inappropriately restrictive.(7) The
situation in relation to colour blindness following the granting of
the exemption appears uncertain as it may be argued that a
disability constituted by a level of colour blindness that
purportedly would result in the refusal of a licence does not
prevent the person concerned from safely fulfilling the inherent
requirements of the role covered by the licence concerned .
Civil Air also opposed the requirement that a
pregnant air traffic controller be required to obtain two medical
clearances in order to continue work after the 30th week
of pregnancy. They argued that this requirement was unduly
onerous.(8)
The exemption granted by HREOC relates only to
medical fitness to hold licences granted by the Civil Aviation
Safety Authority (CASA). It does not relate to discrimination that
may occur in the aviation regulations otherwise than in relation to
licences.
Australia is a contracting state to the
Convention on International Civil Aviation(9) (generally
referred to in the aviation industry as the Chicago Convention).
Part 67 of the Civil Aviation Safety Regulations (which deal with
medical requirements) is based on international standards and
recommended practices, as prescribed in Chapter 6 of Annex 1 to the
Chicago Convention. CASA stated in its request to HREOC for an
exemption from the provisions of the DDA and the SDA that:
Conformity with international standards and
practices prescribed under the Convention is necessary, otherwise
Australia s regulatory regimes for aviation safety and practices
would be put at great risk of not being accepted by the
International Civil Aviation Organisation (the body administering
the Convention) and other Contracting States.(10)
Australia is a party to the Convention on the
Elimination of All Forms of Discrimination against Women
(CEDAW).(11) As such it is required to take appropriate
measures to eliminate discrimination against women in the field of
employment.(12) States Parties are required to take
appropriate measures to prevent discrimination against women on the
grounds of marriage or maternity.(13) The Convention
recognises that protective legislation may be appropriate in
relation to women s employment, but is concerned with the
protection of women s health against risks to them arising from
their employment rather than the protection of others against
perceived risks. Risks to women from their employment may arise in
some areas affected by this Bill (such as where the employment of a
pregnant woman involves flying) but in other areas (for example, in
relation to the employment of a pregnant air traffic controller) it
appears unlikely.
In international law, not all distinctions and
different treatment will constitute discrimination. Distinctions
will not be discriminatory if the criteria for discrimination are
reasonable and objective and if the aim is to achieve a purpose
which is legitimate under the Convention.(14)
The SDA relies in part on CEDAW for its
constitutional validity. The objects of the Act include:
to eliminate, so far as is possible,
discrimination against persons on the ground of sex, marital
status, pregnancy or potential pregnancy in the areas of work,
accommodation, education, the provision of goods, facilities and
services, the disposal of land, the activities of clubs and the
administration of Commonwealth laws and
programs.(15)
Australia is also a party to the
Discrimination (Employment and Occupation) Convention
1958,(16) ( the Employment Convention ) the
International Covenant on Civil and Political Rights ( the ICCPR
)(17) and the International Covenant on Economic, Social
and Cultural Rights ( the ICESR ).(18) The DDA relies in
part on these instruments for constitutional validity. The most
relevant in relation to the types of discrimination proposed to be
permitted under the Bill is the Employment Convention. It should be
noted that this Convention permits discrimination which is based on
the inherent requirements of a particular job.(19) As
under CEDAW, discrimination would only include unreasonable
differential treatment.
The objects of the DDA are set out in section
3, which provides as follows:
Objects
The objects of this Act are:
(a) to eliminate, as far as
possible, discrimination against persons on the grounds of
disability in the areas of:
-
work, accommodation, education, access to premises, clubs and
sport; and
-
the provision of goods, facilities, services and land; and
-
existing laws; and
- the administration of Commonwealth laws and programs;
and
(b) to ensure, as far as
practicable, that persons with disabilities have the same rights to
equality before the law as the rest of the community; and
(c) to promote recognition and
acceptance within the community of the principle that persons with
disabilities have the same fundamental rights as the rest of the
community.
The substantive provisions of the Bill are
contained in Schedule 1.
Part 1 of the Schedule amends
the CAA so that regulations with certain limited discriminatory
effect may validly be made in the future.
Item 1 of Part 1 of the
Schedule inserts new subsections 98(6A) and
(6B) into the CAA. New subsection
98(6A) enables the making of regulations containing
provisions relating to medical standards that are inconsistent with
the SDA.
New subsection
98(6B) enables the making of regulations containing
provisions that are inconsistent with the DDA.
In both cases such regulations are only
authorised by the Act where the inconsistency is necessary for the
safety of air navigation.
Part 2 of the Schedule
validates any existing regulations that may previously have been
invalid due to inconsistency with the DDA or the SDA, provided that
they would have been valid if the amendment made by Item
1 had always been in place.
Item 3 of the Schedule
retrospectively validates regulations that would have been invalid
because of inconsistency with the DDA or the SDA but could validly
be made after the commencement of the Bill. It does this by
declaring rights and liabilities to be, and to have been, the same
as if the amendment made by Item 1 had been
in place when such regulations commenced.
Item 3(3) of the Schedule
provides that the retrospective validation of regulations does not
affect rights and liabilities of parties to a proceeding heard and
finally determined by a court before the commencement of the
Schedule.
Item 4 of the Schedule
provides that regulations made before the commencement of the Bill
that would, at the time they were made, have been invalid because
of inconsistency with the DDA or the SDA, operate as valid
regulations after the commencement of the Bill if the regulations
would have been valid if the amendment made by
Item 1 had been in place when they
commenced.
Concluding Comments
The Bill will allow regulations to be made
which permit conduct which would otherwise constitute a breach of
the DDA or the SDA. This is unlikely to constitute a breach of
Australia s obligations under international conventions (other than
in limited respects, such as the position of air traffic
controllers) given that the aim of the regulations is air
safety.
The Bill could also be seen as a weakening of
Australia s commitment to non-discrimination on the basis of
disability or sex. However, it can be argued that the
discrimination that will be permitted in this case is necessary and
proportionate to the need to ensure the safety of those utilising
civil aviation.
The Bill validates existing regulations both
in relation to the past operation of such regulations and in
relation to their future operation. Validation of the future
operation of the regulations may be seen as essentially a
convenient mechanism to avoid the need to remake regulations that
may have been invalid but could, after the passage of the Bill, be
validly made. However, retrospective validation of the regulations
may affect the rights of any person who may currently argue that
those regulations were invalid because of inconsistency with the
DDA or the SDA. It is not clear why retrospective validation is
considered to be necessary, or how many people s rights may be
affected.
Subitem 3(3) of the Schedule provides that the
retrospective validation of existing regulations does not affect
rights and liabilities to parties to a proceeding that has been
finally determined by a court. It is not clear why these rights and
liabilities are preserved but those arising where proceedings
before a court have been instituted but not yet finally determined,
or those involving a decision of a body other than a
court,(20) are not preserved.
1.
The Chicago Convention is defined in section 4 of the CAA as
follows:
Chicago Convention means:
(a) the Convention on
International Civil Aviation done at Chicago on 7 December
1944, whose English text is set out in Schedule 1 to the
Air Navigation Act 1920; (b) the Protocols amending that
Convention, being the Protocols referred to in subsection 3A(2) of
that Act, whose English texts are set out in Schedules to that Act;
and (c) the Annexes to that Convention relating to international
standards and recommended practices, being Annexes adopted in
accordance with that Convention.
2. D.
Pearce and S. Argument Delegated Legislation in
Australia, Butterworths, Sydney, 1999, pp. 198,
208.
3.
For example, section 19(2) of the DDA allows a body that has power
to confer a qualification in relation to an occupation to
discriminate on the grounds of a person s disability if the
disability is such that the person would not be able to carry out
the inherent requirements of the occupation.
4.
See for example the submission from Civil Air, the Association
representing air traffic controllers:
http://www.hreoc.gov.au/disability_rights/exemptions/casa/subs/civilair.doc
(site visited 17 May 2004).
5.
Civil Aviation Regulation 5.04 prohibits a person from performing
flight crew duties unless the person holds an appropriate current
medical certificate. Such certificates are issued under Part 67 of
the Civil Aviation Safety Regulations, and Regulation 67.235
provides that a certificate held by a pregnant woman is, in
general, taken to be suspended immediately after the
30th week of gestation.
6.
Notice of HREOC exemption decision re: Civil Aviation Safety
Authority
http://www.hreoc.gov.au/disability_rights/exemptions/casa/casadec.htm,
(site visited 26 May 2004).
7.
op. cit., n. 4.
8.
ibid.
9. http://www.iasl.mcgill.ca/airlaw/public/chicago/chicago1944a.pdf,
(site visited 26 May 2004).
10. Letter from Peter Ilyk,
General Counsel CASA to HREOC dated 29 July 2002,
http://www.google.com.au/search?q=cache:QLar3Lds2vkJ:www.hreoc.gov.au/disability_rights/exemptions/casa/Letter-Ilyk%2520to%2520HREOC.doc+civil+aviation+safety+exemption+ilyk&hl=en,
(site visited 17 May 2004).
11. http://www.unhchr.ch/html/menu3/b/e1cedaw.htm,
(site visited 26 May 2004).
12. ibid., Article 11.
13. ibid.
14. See, for example, W.
McKean, Equality and Discrimination under International
Law, Oxford University Press, 1983, pp.260-263.
15. Sex Discrimination
Act 1984 paragraph 3(a).
16. http://www.unhchr.ch/html/menu3/b/d_ilo111.htm,
(site visited 26 May 2004).
17. http://www.unhchr.ch/html/menu3/b/a_ccpr.htm,
(site visited 26 May 2004).
18. http://www.unhchr.ch/html/menu3/b/a_cescr.htm,
(site visited 26 May 2004).
19. ibid., article 1.
20. For instance, rights and
liabilities relating to a decision by HREOC would not be
preserved.
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Published by the Parliamentary Library, 2004.