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Chapter 2 - Background to the bill
2.1
This chapter briefly outlines the background to the
proposed amendments and the main provisions of the Bill.
Background
2.2
The Civil Aviation Amendment (Relationship with
Anti-discrimination Legislation) Bill 2004 seeks to amend Section 98 of the Civil Aviation Act 1988 to allow the
Governor-General to make regulations that may be inconsistent with current
Commonwealth anti-discrimination laws, provided the inconsistency is necessary
for aviation safety. It also seeks to validate past actions under existing
regulations and aviation safety standards that may have appeared to be
inconsistent with current anti-discrimination laws.
2.3
In her Second Reading Speech, Mrs
De-Anne Kelly
stated that the introduction of the Bill was a
direct result of the review of civil aviation regulations currently being
undertaken by the Civil Aviation Safety Authority (CASA). The purpose of CASA's
review is to:
harmonise where possible Australia's
aviation safety regulations with international standards and make them simpler
and easier to use and understand.[2]
2.4
As a member state of the International Civil Aviation
Organisation (ICAO), Australia
is obliged to implement ICAO standards in its aviation regulations.
2.5
Some of the procedures that Australia
has already implemented in complying with the ICAO standards may appear to be
inconsistent with the Sex Discrimination
Act 1984 or the Disability
Discrimination Act 1992. However they have been developed for the sole
purpose of aviation safety.
2.6
The proposed amendment aims to remove the uncertainty
currently existing in relation to any such actions or procedures, carried out
in accordance with safety standards and regulations, which may appear to be
inconsistent with either the Sex
Discrimination Act 1984 or the Disability
Discrimination Act 1992.
2.7
The Explanatory Memorandum notes that 'any regulations
having the potential to be inconsistent with Commonwealth anti-discrimination
legislation will be subject to clearance by the Human Rights Branch of the
Attorney General's Department and will undergo comprehensive consultation
procedures and parliamentary scrutiny.'[3]
2.8
Mrs Kelly
also stated that 'the Bill itself will have no
discriminatory effect.' She went on to say:
Although the Government acknowledges that these amendments will
allow inconsistency between aviation regulations and anti-discrimination
legislation, any such regulations will not be unnecessarily restrictive or
discriminatory, especially when viewed in the context of the Government's
obligation to protect the safety of flight crew, fare-paying passengers, other
aircraft and people on the ground.[4]
2.9
The purpose of this inquiry is to ensure there is appropriate
consultation with industry and community experts, and also to ascertain whether
sufficient mechanisms already exist within current legislation to cover these
inconsistencies.
Impact on passengers
2.10
An example of apparent inconsistencies with anti-discrimination
legislation is the now-routine practice for airline staff to question
passengers seated in exit rows as to whether they are willing and able to
assist staff in an emergency situation.
2.11
In her second reading speech, Mrs
De-Anne Kelly
stated that:
People sitting next to aircraft emergency exits should not be
suffering under any disability which would render them incapable of opening the
exit hatch in an emergency.[5]
Impact on airlines and flight crew
2.12
Airline staff should be free to ask passengers, who are
unable to assist in an emergency situation, to move from the exit rows, without
fear of contravening any of Australia's
anti-discrimination legislation.
2.13
Ms Alison
McKenzie, from Qantas Airways, gave evidence
that:
The requirement for exit row seating does not apply only to
disabled passengers but to anyone that cannot get up and open the exit row door
or who will obstruct the evacuation of the aircraft. It applies to elderly
passengers and to anyone who is incapacitated at that time When we are imposing
that requirement, we are complying with our obligations under the Civil
Aviation Act and the civil aviation regulations.[6]
2.14
There may be the need for regulations relating to the
medical fitness of flight crew or air traffic controllers, apart from those for
which an exemption was granted by the Human Rights and Equal Opportunity
Commissioner (HREOC) in November 2002, which may be inconsistent with the Sex Discrimination Act 1984.
2.15
The representative from the Department of Transport and
Regional Services (DoTARS) gave evidence of the type of regulations that might
be required:
The sorts of regulations that are currently in place and may be
changed in the future relate to the circumstances in which someone can be
cleared medically to fly an aircraft; the circumstances in which someone meets
the medical or other standards to operate in the cabin of an aircraft; [7]
2.16
In a limited number of cases, it may be impossible to
modify some aircraft (for example smaller aircraft) in order to provide
unassisted access for some disabled people, due to the onerous design standards
with which aircraft must comply. This inability to modify such aircraft could
be perceived as discrimination against disabled people.
2.17
In her second reading speech, Mrs
Kelly explained:
Aircraft must conform to onerous design standards which may, in
a limited number of cases, render them incapable of being modified to provide
unassisted access for some disabled persons. These types of provisions are
important for aviation safety, and should not be construed as being unlawfully
discriminatory.[8]
2.18
There may be other examples of inconsistencies, as yet unforeseen,
which could arise in the future. As the DoTARS representative stated at the
hearing:
There can be no set of standards sufficiently prescriptive to
deal with all cases.[9]
Mechanisms in existing legislation
2.19
There are mechanisms within the Disability Discrimination Act 1992 and the Sex Discrimination Act 1984 that may already provide means to allow
these apparent inconsistencies. These are listed and explained below:
Provisions of the Disability Discrimination Act 1992
2.20
There are a number of provisions within the Disability Discrimination Act 1992 (DDA)
that allow lawful discrimination in certain circumstances.
Section 11: Unjustifiable hardship
2.21
This section defines what constitutes unjustifiable
hardship when determining whether, in the circumstances, discrimination may be
lawful.
2.22
Unjustifiable hardship is used as a reason to claim
that the discrimination is lawful in the circumstances. For example, subsection
15(4) states that it is not unlawful for an employer to discriminate against a
person on the grounds of a person's disability if providing services or
facilities to accommodate that person's disability would 'impose an
unjustifiable hardship on the employer.'[10] This is also
the case in subsection 24(2), where it states that
This section does not make it unlawful to discriminate . if the
provision of the goods or services .. would impose unjustifiable hardship on
the person who provides the goods or services [11]
Section 15: Discrimination in
employment
2.23
This section has an 'inherent requirements' provision
that allows disability discrimination in employment. Section 15(4) states that:
Neither paragraph (1)(b) nor (2)(c) renders unlawful
discrimination by an employer against a person on the ground of the person's
disability, if the person because of his or her disability:
(a) would be unable to carry out the inherent requirements of
the particular employment;[12]
2.24
This equates to allowing an employer to effectively
discriminate against a disabled person if that person's disability does not
allow them to perform the 'inherent requirements' of that particular role.
Section 47: Acts done under a
statutory authority
2.25
Subsection 47(2) states that:
This part does not render unlawful anything done by a person in
direct compliance with a prescribed law. [13]
2.26
The definition of 'law' given in subsection 47(5)
includes a law of the Commonwealth or any state or territory, or any
regulations or any other instruments made under the law. This could include any
action performed under the Civil Aviation Act 1988 or any of its regulations.
Section 48: Infectious Diseases
2.27
Section 48(b) states that:
This part does not render it unlawful for a person to
discriminate against another person on the ground of the other person's
disability if:
(b) the discrimination is reasonably necessary
to protect public health.
2.28
It could be argued that actions performed pursuant to
the Civil Aviation Act 1988 or its
regulations, which are necessary for air navigation safety, would also be
performed in the interests of protecting public health.
Section 55: Commission may grant
exemptions
2.29
This is probably the mechanism most useful in providing
a way to allow unlawful discrimination 'for the air navigation safety'. Any
organisation or person can apply to HREOC to be granted an exemption from the
operation of the DDA.
2.30
The disadvantage claimed by those in favour of the Bill[14] is that these
exemptions are granted temporarily, applying for a maximum of five years, with
the intention that the person or organisation will utilise that period of time
to comply with the DDA. They are also specifically tailored to meet the
requirement of the situation to be exempted.
2.31
The exemption process necessarily includes close
scrutiny of the sought exemption, and the seeking of the opinions of those it
would directly affect. Those who support the Bill
say that it provides an efficient and permanent resolution to past and future
inconsistencies between the anti-discrimination legislation and the Civil Aviation Act 1988, while the
exemption process would necessitate continually applying, reviewing and
re-applying for exemptions.
Provisions of the Sex Discrimination Act 1984
Section 7B: Indirect discrimination
- reasonableness test
2.32
This section of the Sex
Discrimination Act 1984 (SDA) allows lawful discrimination under the Act if
the practice is considered to be 'reasonable in the circumstances.'
Section 40: Acts done under
statutory authority
2.33
This section is similar to section 47 of the DDA. It
states that:
(1) Nothing in Division 1 or 2 affects anything done by a person
in direct compliance with:
(c) a determination or decision of the Commission;
(d) an order of a court; ..[15]
2.34
However, notably missing from the SDA is the
'prescribed law' inclusion in this section. Consequently, section 40(1) of the
SDA is not as useful to respondents to claims of discrimination, as comparable
section 47 of the DDA.
Section 44: Commission may grant
exemptions
2.35
This section is similar to section 55 of the DDA. Any
organisation or person can apply to the HREOC to be granted an exemption from
the operation of the SDA.
2.36
It has limitations identical to those in the DDA,
whereby each exemption is specifically tailored to meet a given discrimination
circumstance; each application undergoes an approval process involving
consultation with affected persons and stakeholders. Again, exemptions granted
by HREOC under the SDA are for a specified period, not exceeding five years.
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