Exemption application under Sex Discrimination Act and Disability Discrimination Act: CASA: recommended decision
Recommendation:
That, pursuant to an application by the Civil Aviation Safety Authority,
the Commission grant a five year exemption under Sex Discrimination Act
1984 ("SDA"), section 44, and the Disability Discrimination
Act 1992 ("DDA"), section 55, for persons acting pursuant to
existing Civil Aviation Regulations regarding medical fitness and proposed
amendments to those regulations; but this exemption only to apply where
a person's pregnancy (under the SDA) or disability (under the DDA) prevents
the person safely fulfilling the inherent requirements of the role covered
by the licence concerned.
Application
On 29 July 2002 the Civil Aviation Safety Authority (CASA) applied for
a five year exemption under Sex Discrimination Act 1984 ("SDA"),
section 44, and the Disability Discrimination Act 1992 ("DDA"),
section 55, for persons acting pursuant to existing Civil Aviation Regulations
regarding medical fitness and proposed amendments to those regulations.
The exemption is sought from sections 19 and 29 of the DDA, and from
sections 18 and 26 of the SDA. These sections prohibit discrimination
on grounds of disability and sex (including pregnancy) respectively regarding
decisions by qualifying bodies and administration of Commonwealth laws
and programs.
CASA indicated concern that although the DDA provides an inherent requirements
defence regarding occupational qualifications it was not clear that this
would apply to licences for non-professional purposes. The SDA does not
have an inherent requirements defence so far as pregnancy is concerned,
and also lacks the DDA's provision for laws to be prescribed by regulation
so as to exempt actions in direct compliance with those laws.
CASA stated that this exemption is sought as an interim measure pending possible legislative amendments to clarify the relationship between the civil aviation safety regime and the SDA and DDA.
Submissions
A public notice of inquiry was posted on the HREOC
web site on 13 September. Submissions were requested by 24 October.
Eleven submissions were received, including
from Airservices Australia, the Flight Attendants Association, the Aircraft
Owners and Pilots Association and the Australan Women Pilots Association,
and the Civil Air association representing air traffic controllers.
Individual submissions oppose the granting of the application, taking
particular issue with colour blindness standards.
Airservices Australia supports the application for exemption. In relation
to disability they take particular issue on safety grounds with contentions
in several individual submissions that current colour blindness testing
is inappropriately restrictive. In relation to pregnancy they note that
the proposed regulations differentiate between the position of pilots
and of air traffic controllers, the latter being recognised as not presenting
the same risk.
The Civil Air association opposes the application, raising concerns regarding
colour blindness and the requirement for testing of pregnant air traffic
controllers after 30 weeks.
The Aircraft Owners and Pilots Association and the Australian Women Pilots
Association oppose the application on similar grounds.
The Flight Attendants Association oppose the application on the basis
that section 19 of the DDA which refers to inherent requirements provides
sufficient protection for legitimate decisions and that any change in
the relationship between the SDA and air safety regulation ought to be
a matter for legislative rather than administrative decision.
Recommended decision
We recommend that the Commission decide to:
Grant the application under the DDA, for a period of five years, but this exemption only to apply where a person's disability prevents him or her safely fulfilling the inherent requirements of the role covered by the licence concerned;
Grant the application under the SDA, for a period of five years, but this exemption only to apply where a person's pregnancy prevents her from safely fulfilling the inherent requirements of the particular employment, occupation or role covered by the licence concerned.
Effect of recommended decision
This decision would not make any change to the present legal position
under the Disability Discrimination Act in relation to professional employment
or occupation. Refusal of licenses in this area would remain subject to
review under the DDA.
Where a license is not for the purposes of employment, such a decision
would confirm for DDA purposes (what may already be the case but is not
certain) that the same inherent requirements test also applies as it does
to employment related decisions. There is no reason apparent from the
objects or terms of the DDA why non-professional pilots or other licence
holders should not be subject to an inherent requirements test; rather,
there are some obvious safety reasons why they should be subject to an
inherent requirements test.
The recommended decision would confirm (what may already be implicit
but is not certain) that the same inherent requirements test applies under
the SDA. This would be consistent with Australia's obligations under the
Discrimination (Employment and Occupation) Convention, which requires
that distinctions based on the inherent requirements of the particular
job not be deemed to be discrimination, as well as with the recognition
in the CEDAW Convention of possible legitimate restrictions based on pregnancy
so long as these are subject to review and based on objective evidence.
Although CASA is clearly the principal regulator in this area, such a
decision would mean that the DDA and SDA will continue to provide a safety
net against possible wrongful administration of the CASA regulation, or
against the regulations being overly restrictive in some respect, while
ensuring that correct decisions to refuse licences are not unlawful.
That is, complaints will still be able to be made, but CASA should be
able to defend them successfully so long as it is acting properly in pursuing
the public interest in air safety.
Submitted by:
Director, Disability Rights policy;
Director, Sex Discrimination policy