Bills Digest no. 152 2004–05
Civil Aviation Amendment Bill 2005
This Digest was prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments. This Digest
does not have any official legal status. Other sources should be
consulted to determine the subsequent official status of the
Contact Officer & Copyright Details
Amendment Bill 2005
Date Introduced: 16 March 2005
House: House of
Portfolio: Transport and Regional Services
Commencement: On Royal Assent
main purpose of the Civil Aviation Amendment Bill 2005 (the Bill)
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 related 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.
The Bill was introduced in March 2004 as the Civil Aviation
Amendment (Relationship with Anti-discrimination Legislation) Bill
2004 (the 2004 Bill). The 2004 Bill was not debated before the
proroguing of Parliament for the 2004 election. However, the 2004
Bill was subject to an inquiry by the Senate Legal and
Constitutional Legislation Committee which
reported on June 30 2004. The majority of the committee
supported the 2004 Bill - their only recommendation was the
requirement for consultation with Human Rights and Equal
Opportunity Commission (HREOC).(1) This recommendation
was implemented through new subsection
98(6C) see the main provisions section of this
Digest. The Australian Democrats reserved their
position, citing serious concerns about the 2004
The Bill contains only relatively minor changes to the 2004
Bill. The changes are in items 1-3 of
Schedule 1 and a new Schedule 2.
These changes are discussed in the main provisions section of this
Regulations relating to civil aviation have been made under
section 98 of the Civil Aviation Act 1988 (the CAA).
Subsection 98(1) provides as follows:
(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
(c) for the purpose of carrying out and giving
effect to the provisions of the Chicago Convention(3)
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.(4) 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.(5) 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.(6) 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.(7) 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 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 .(8)
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.(9) 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, the association representing air traffic controllers,
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.(10)
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(11) (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
Australia is a party to the Convention on the Elimination of All
Forms of Discrimination against Women (CEDAW).(13) As
such it is required to take appropriate measures to eliminate
discrimination against women in the field of
employment.(14) States Parties are required to take
appropriate measures to prevent discrimination against women on the
grounds of marriage or maternity.(15) 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
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.(16)
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.(17)
Australia is also a party to the Discrimination (Employment and
Occupation) Convention 1958,(18) ( the Employment
Convention ) the International Covenant on Civil and Political
Rights ( the ICCPR )(19) and the International Covenant
on Economic, Social and Cultural Rights ( the ICESR
).(20) 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.(21) As under CEDAW, discrimination
would only include unreasonable differential treatment.
The objects of the DDA are set out in section 3, which provides
The objects of this Act are:
(a) to eliminate, as far as possible,
discrimination against persons on the grounds of disability in the
(i) 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.
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)-(6C) 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. New subsection 98(6C)
requires CASA to consult with HREOC regarding any proposals to make
regulations under new subsections 98(6A) or
(6B), but a failure to do so does not effect the
validity of any subsequent regulation. New
subsection 98(6C) was not included in the 2004
Items 2 and 3, which were also
not included in the 2004 Bill, insert minor explanatory notes in
the DDA and SDA respectively.
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 5 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.
Subitem 5(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 6 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.
Schedule 2 was not included in the 2004
Items 1-7 amend some terminology in the CAA by
replacing the phrase foreign aircraft with foreign registered
Part 2 - Ongoing licence conditions
The CAA requires CASA to issue air
operator s certificates (AOCs) if the applicant can satisfy CASA of
certain matters set out in existing section 28.(22)
Further, paragraph 4.4 of Civil Aviation Orders 82.0 requires that
the holder must continue to satisfy CASA of these matters in order
to retain the AOC. Collectively, items 8-10
transfer this requirement and associated enforcement provisions
from the Civil Aviation Orders to the CAA. The Explanatory
Memorandum comments that
The opportunity has been taken to lift this fundamental
condition from a relatively obscure piece of legislation into the
Act where it properly belongs.(23)
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 5(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,(24) are not preserved.
- Senate Legal and Constitutional Legislation Committee, report
on the Civil Aviation Amendment (Relationship with
Anti-discrimination Legislation) Bill 2004, pp. 25-26.
- ibid., p. 27.
- 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.
- D. Pearce and S. Argument Delegated Legislation in
Australia, Butterworths, Sydney, 1999, pp. 198,
- 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.
- See for example the submission from Civil Air, the Association
representing air traffic controllers:
(site visited 10 May 2005).
- 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.
- Notice of HREOC exemption decision re: Civil Aviation Safety
(site visited 10 May 2005).
- op. cit., footnote 6.
- See http://www.iasl.mcgill.ca/airlaw/public/chicago/chicago1944a.pdf,
- Letter from Peter Ilyk, General Counsel CASA to HREOC dated 29
(site visited 10 May 2005).
(site visited 10 May 2005).
- ibid., Article 11.
- See, for example, W. McKean, Equality and Discrimination
under International Law, Oxford University Press, 1983, pp.
- Sex Discrimination Act 1984 paragraph 3(a).
(site visited 10 May 200).
(site visited 10 May 2005).
(site visited 10 May 2005).
- ibid., article 1.
- The listed matters include requirements such as the
organisation applying for the AOC must have a sufficient number of
suitably qualified and competent employees to carry out operations
in a safe manner.
- Explanatory Memorandum, p. 5.
- For instance, rights and liabilities relating to a decision by
HREOC would not be preserved.
10 May 2005
Bills Digest Service
Information and Research Services
This paper has been prepared to support the work of the
Australian Parliament using information available at the time of
production. The views expressed do not reflect an official position
of the Information and Research Service, nor do they constitute
professional legal opinion.
IRS staff are available to discuss the paper's
contents with Senators and Members and their staff but not with
members of the public.
© Commonwealth of Australia 2005
Except to the extent of the uses permitted under the
Copyright Act 1968, no part of this publication may be
reproduced or transmitted in any form or by any means, including
information storage and retrieval systems, without the prior
written consent of the Parliamentary Library, other than by members
of the Australian Parliament in the course of their official
Published by the Parliamentary Library, 2005.
Back to top