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.
This paper has been prepared for general distribution to Senators and
Members of the Australian Parliament. While great care is taken to ensure
that the paper is accurate and balanced, the paper is written using information
publicly available at the time of production. The views expressed are
those of the author and should not be attributed to the Information and
Research Services (IRS). Advice on legislation or legal policy issues
contained in this paper is provided for use in parliamentary debate and
for related parliamentary purposes. This paper is not professional legal
opinion. Readers are reminded that the paper is not an official parliamentary
or Australian government document.
Published by the Parliamentary Library, 2004.
