Decision granting temporary exemption: Tiger Airways

HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION

DISABILITY DISCRIMINATION ACT 1992 (Cth), Sections 55(1) and 55(1A)

By this instrument, the Human Rights and Equal Opportunity Commission (‘HREOC') grants a temporary exemption to Tiger Australia pursuant to sections 55(1) and 55(1A) of the Disability Discrimination Act 1992 (Cth) (‘DDA') in relation to access to and egress from aircraft operated by Tiger.

THE APPLICATION

Tiger made application by the attached letter for temporary exemptions from the effect of the DDA and from the Disability Standards for Accessible Public Transport 2002 (‘DSAPT').

Tiger request exemptions to excuse Tiger from liability for failure to provide access for persons unable to board or disembark using passenger boarding stairs. The exemption is requested for the period to 29 February 2008.

Tiger indicate in their application that

  • their aircraft will be using airport facilities which are generally not fitted with aerobridges
  • they have ordered purpose built passenger lifting equipment to provide access for persons unable to negotiate stairs (as well as making other arrangements to facilitate travel by passengers with mobility impairments including provision of aisle wheelchairs and fitting of aircraft with moveable armrests)
  • the passenger lifting equipment was not however available at all required locations in time for the scheduled commencement of operations in November 2007 for which bookings and other commercial arrangements have already been entered into
  • Tiger is in a position to undertake that passenger lifting equipment will be available by the end of the requested exemption period.

DECISION OF HREOC

HREOC hereby grants to Tiger a temporary exemption pursuant to sections 55(1) and 55(1A) of the DDA in the following terms:

  1. Tiger is exempted up to and including 29 February 2008 from liability which might otherwise arise under sections 23, 24 and 32 of the DDA for lack of access other than by stairs to and from aircraft operated by Tiger at locations where no aerobridge is available to Tiger.
  2. This exemption is on condition that Tiger:

•  make all reasonable endeavours during the exemption period to secure the use of lifting equipment where required to provide access for passengers or intending passengers, if and where available at airports used by Tiger, including through seeking to hire or borrow equipment from other operators and through earlier deployment of Tiger's own equipment at any locations where it is ready for use during the exemption period;

•  for any passenger who is unable to access aircraft by stairs and (1) already has a booking with Tiger, or (2) makes such a booking if the passenger was not made aware of limitations on access available:

•  make alternative travel arrangements for the passenger without additional expense for the passenger, or

•  refund fares if a booking accepted by the passenger as equivalent cannot be made;

•  contact the Australian Federation of Disability Organisations by 29 February 2008 to commence discussion of further actions by Tiger to achieve compliance with the DSAPT and the DDA, and report to HREOC by 29 August 2008 on results of those discussions;

•  contact Blind Citizens Australia by 29 February 2008 to commence discussion of independent travel by blind and vision impaired persons, and report to HREOC by 29 August 2008 on results of those discussions..

CONSIDERATION AND REASONS

In making its decision, HREOC relied upon the following documents available on its website:

  • The application document from Tiger
  • Advice from the Accessible Public Transport Jurisdictional Committee
  • Submissions provided by other persons and organisations.

In making its decision, HREOC had regard to the following:

  • the terms and objects of the DDA;
  • the DSAPT; and
  • the Disability Standards for Accessible Public Transport Guidelines 2004 (No 3).

HREOC's consideration of issues raised in this application is set out in Schedule 1 below by reference to submissions made.

REVIEW OF DECISION

Subject to the Administrative Appeals Tribunal Act 1975 , application may be made to the Administrative Appeals Tribunal for a review of the decision to which this notice relates by or on behalf of any person or persons whose interests are affected by the decision.

Dated this 1st day of February 2008

Signed by Commissioner Graeme Innes AM, on behalf of HREOC.


SCHEDULE 1: DISCUSSION OF ISSUES RAISED IN SUBMISSIONS

Accessible Public Transport Jurisdictional Committee :

While expressing concern that Tiger had not taken earlier action to ensure that lifting devices were in place prior to the commencement of business, APTJC members considered that the exemption sought by Tiger was a reasonable request and that Tiger had sufficiently demonstrated its intention to have in place appropriate equipment to meet the requirements of the DSAPT by the conclusion of the exemption period.

APTJC members did however question

•  directly in relation to the subject matter of the exemption, what alternative arrangements Tiger planned to make for persons affected by the exemption

•  on other issues, whether Tiger's arrangements for passengers to notify specific needs were adequate, and Tiger's provision for people using TTYs.

HREOC is required under section 55A of the DDA and pursuant to the Disability Discrimination Regulations to consult with APTJC, but remains responsible for making its own decisions. In this matter HREOC has taken the same view as APTJC: that is, that it would be appropriate and consistent with the objects of the DDA to grant an exemption for the limited period requested, on the condition that Tiger carry out its commitment to have lifting devices in place by the conclusion of the exemption period, and on further conditions as specified above intended to

  • address the position of persons having bookings and being disadvantaged by the limitation on access available covered by this exemption; and
  • promote further consideration of disability access issues by Tiger in consultation with representatives of people with disability.

Australian Federation of Disability Organisations

AFDO indicated support for granting the exemption as requested, on condition that:

  1. Tiger seek to use lifting equipment which other operators have in place where possible
  2. Tiger not have the benefit of the exemption where lifting equipment has been delivered earlier, noting that the application indicated this would be the case in four locations in December 2007
  3. Alternative arrangements made for passengers impacted by the temporary restrictions by Tiger include making bookings for passengers on other airlines, at equivalent times, at no cost to the individuals, and this should apply to prospective passengers as well as existing bookings
  4. Passengers be provided with full refunds where Tiger is unable to make equivalent bookings
  5. Tiger work with stakeholders including the AFDO to develop an Action Plan that details how it will improve its access for people with disabilities as required under the Accessible Public Transport Standards 2002 . The Action Plan should include:
    • The provision of information in alternative formats
      • Refinements to equipment such as Disabled Person Lifters that will improve its operation
      • The provision of other equipment, such as an eagle lifter, to improve travel for people with disability.

HREOC agrees with suggested condition (1) and has incorporated it in point 2(a) of its decision.

In relation to suggested condition (2) , HREOC agrees that Tiger should not be granted an exemption broader than required by the circumstances. The issue raised by this suggestion is incorporated in point 2(a) of HREOC's decision. It should be noted that this condition as decided by HREOC is included as part of a requirement to make reasonable endeavours, and refers to equipment being ready for use rather than only to its having been delivered to the locations concerned, noting that there may be issues to address such as staff training before equipment can be safely and effectively deployed.

In relation to suggested conditions (3) and (4), HREOC agrees in substance and has incorporated a condition reflecting these suggestions in point 2(b) of its decision. HREOC's decision applies this condition to any passengers holding existing bookings, as proposed by Tiger. It also applies prospectively through the exemption period to any persons for whom a booking is made in error, through the person not being made aware of the access limitation covered by the exemption.

Cairns Community Legal Centre

Cairns CLC argue that the request for exemption should be denied on the basis that Tiger had sufficient time and had the obligation to ensure compliance with the DSAPT in advance of commencing operations and that arrangements for access to other flights do not constitute compliance with the DSAPT.

HREOC agrees that the interim arrangement proposed by Tiger during the exemption period would not suffice to constitute compliance – otherwise the need for an exemption would not arise. HREOC also agrees that, as provided by the DSAPT, new public transport conveyances, premises and infrastructure are expected to comply from the outset. It cannot be assumed from HREOC's decision in the present matter that exemptions will automatically be granted to operators to provide an extension of time for compliance. However, in this case HREOC has decided that an exemption, which will only operate for one month, is appropriate. HREOC notes that at the conclusion of the exemption period Tiger will be required to be, and has indicated commitment to being, compliant with the DSAPT in relation to the subject matter of the exemption. Tiger will also be required to consult with representatives of people with disability on further measures to provide equitable access in compliance with the DDA and DSAPT and has indicated commitment to so consult. In HREOC's view a decision to grant an exemption on these conditions will promote the achievement of the objects of the DDA.

Blind Citizens Australia :

BCA express concern that Tiger requires visually impaired passengers to be assisted by a fully sighted person in order to travel. As Tiger notes, application of such a policy is not protected by the exemption sought, or by the exemption now granted by HREOC. However, Tiger have indicated agreement to consult with BCA to address this issue, and HREOC's decision makes it a condition of this exemption that Tiger do so.

Gold Airways

Gold Airways argue similarly to Cairns CLC that Tiger has had sufficient time to ensure DSAPT compliance prior to commencing operations. HREOC's response to this submission is as indicated above in response to that from Cairns CLC.

Disability Services Commission Western Australia

The Disability Services Commission do not oppose granting of an exemption but call for Tiger to develop an action plan to address the requirements of the DDA and the DSAPT including training of its staff.

HREOC's decision, in point 2(c), requires Tiger to consult with representatives of people with disability on actions to ensure compliance with the DDA and DSAPT. Tiger has also indicated willingness to work on an Action Plan under the DDA. HREOC does not however consider it appropriate in this decision to require that Tiger develop an action plan, noting that an item for discussion between Tiger and AFDO may be whether priority should be given by Tiger to actions to addressing specific access issues already identified, or whether these actions would more appropriately be addressed within the more general framework of an action plan.

Physical Disability Council of NSW

PDCN recommend

  1. that Tiger provide information on where its lifting devices will become available earlier than the end of the requested exemption period
  2. that Tiger be required immediately to purchase or lease lifting equipment for other locations to comply with the requirements of the DDA, or if this is not possible, to borrow equipment from other carriers, or provide reimbursement or transfer of tickets at comparable fare structure within 24 hours of the original flight time or at a time convenient to the passenger
  3. that Tiger develop strategies so that passengers with a disability are not prevented from flying domestically in Australia

PDCN's recommendation (1) is addressed by point 2(a) of HREOC's decision. Issues in this respect are discussed above by reference to AFDO's similar recommendation.

In relation to recommendation (2), HREOC does not consider it appropriate specifically to require Tiger to purchase or lease general use forklift equipment as a means of providing access to aircraft during the exemption period. Rather, the appropriateness of such equipment (including in relation to safety for use in close proximity to aircraft and in relation to acceptability for passengers) would be matters for Tiger to consider amongst other means of complying with the condition that Tiger use all reasonable endeavours to secure the use of lifting equipment during the exemption period.