kendell exemption decisionNotice of temporary exemption under the DDA: Kendell Airlines

Notice of decision

The Human Rights and Equal Opportunity Commission gives notice of a decision made on 22 August 2000 under section 57 of the Disability Discrimination Act 1992 ("DDA") concerning accessibility of small aircraft.

Applicants

The exemption application was submitted on behalf of Kendell Airlines.

Decision of the Commission

The Commission decided to grant an exemption under section 55 of the DDA to Kendell Airlines, from the provisions of sections 23 and 24 of the DDA for a period of five years,  regarding:

  • Lack of access to aircraft seats for people requiring wheelchair access, where this is prevented by limited aisle width
  • Lack of access to aircraft or seats for passengers requiring lifting, where this cannot be performed consistently with the requirements of applicable occupational health and safety laws due to space constraints of the particular aircraft
  • Requirement for a passenger to be accompanied by an assistant (so long as an if an assistant is required by Kendell travel is at "carer fare" as presently applied by Kendell's parent company Ansett) if the passenger is
    • unable to understand instructions given by the flight crew (even if instructions are available in both visual and audible form), or (where there is no cabin attendant)
    • unable to exit the aircraft unaided in case of an emergency, or
    • unable to administer themselves oxygen unaided during a depressurisation of an aircraft during an emergency, or
    • unable to attire themselves in a life jacket during an emergency landing over water (where applicable to the flight concerned).

This exemption is on condition that Kendell report to HREOC within 12 months:

  • confirming completion of delivery of aircraft aisle wheelchairs to all relevant ports
  • confirming completion of relevant staff training programs
  • advising on need for, feasibility of, and any progress in fitting movable armrests to additional seats in the Saab aircraft
  • advising on technological progress or other developments (whether in Australia or overseas) affecting the feasibility of access to aircraft and seats for people with mobility impairments where space constraints of aircraft currently present safe manual lifting and transfer
  • reporting on progress in discussions with the Civil Aviation Safety Authority with a view to use of these seats being permitted if possible in appropriate cases.

Finding and reasons

In making this decision the Commission accepted findings and reasons contained in a recommendation and statement of reasons prepared by the Deputy Disability Discrimination Commissioner.

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.

Alice Tay
President
on behalf of the Commission

Recommendation from Deputy Disability Discrimination Commissioner

Introduction and call for responses   
Recommended exemption
Issues raised by submissions and responses by Kendell
Breadth of exemption sought
Effect of exemption on existing levels of accessibility
Lifting devices
Substitution of aircraft
Aircraft accessibility
Review of Occupational Health and Safety Issues

Introduction

I recommend that the Human Rights and Equal Opportunity Commission (HREOC) grant a temporary exemption under section 55 of the DDA to Kendell Airlines, from the provisions of sections 23 and 24 of the DDA for a period of five years, to the extent and on conditions as detailed below.

I consider that granting an exemption in these terms would be appropriate and would be consistent with and advance the objects of the DDA.

This recommendation follows a notice of inquiry and call for submissions issued in accordance with HREOC's policy and practice on DDA exemption applications. I also issued a draft of this recommendation, for comment by 16 August.

This recommendation for a decision regarding Kendell Airlines also follows the related application in 1999 by the Regional Airlines Association of Australia, on which a notice of inquiry was also issued and submissions received. A recommendation on that application is being submitted to HREOC together with this recommendation.

One submission on my draft recommendation regarding Kendell Airlines was received by the due date.

That submission expresses concern regarding the capacity of Kendell's 50 seat aircraft to take electric wheelchairs in their cargo holds. These aircraft, however, are not within the scope of the exemption sought or recommended.

The submission also emphasises the issue of difficulty of passengers safely negotiating the aisles of small aircraft using aisle wheelchairs to reach seats.

As detailed in my draft recommendation I do not regard it as appropriate to require as a condition of an exemption that Kendell substitute larger aircraft where required in order to achieve accessibility. It would also not be possible or appropriate to require Kendell to deal with the issue of narrow aisles by permitting passengers to occupy forward seats which are generally occupied by crew and which are prohibited to mobility impaired passengers by Civil Aviation Safety Authority regulations. I do, however, recommend (in addition to the matters in my draft recommendation for Kendell to be required to report on) that Kendell be required to report within 12 months on progress in discussions with the Civil Aviation Safety Authority with a view to use of these seats being permitted if possible in appropriate cases.

Recommended exemption

I recommend the following exemption and conditions:

That Kendell Airlines be granted an exemption for a period of five years from sections 23 and 24 of the DDA regarding:

  • Lack of access to aircraft seats for people requiring wheelchair access, where this is prevented by limited aisle width
  • Lack of access to aircraft or seats for passengers requiring lifting, where this cannot be performed consistently with the requirements of applicable occupational health and safety laws due to space constraints of the particular aircraft
  • Requirement for a passenger to be accompanied by an assistant (so long as an if an assistant is required by Kendell travel is at "carer fare" as presently applied by Kendell's parent company Ansett) if the passenger is
    • unable to understand instructions given by the flight crew (even if instructions are available in both visual and audible form), or

    (where there is no cabin attendant)

    • unable to exit the aircraft unaided in case of an emergency, or
    • unable to administer themselves oxygen unaided during a depressurisation of an aircraft during an emergency, or
    • unable to attire themselves in a life jacket during an emergency landing over water (where applicable to the flight concerned).

This proposed exemption, which reflects revised criteria proposed by Kendell, would be on condition that Kendell report to HREOC within 12 months:

  • confirming completion of delivery of aircraft aisle wheelchairs to all relevant ports
  • confirming completion of relevant staff training programs
  • advising on need for, feasibility of, and any progress in fitting movable armrests to additional seats in the Saab aircraft
  • advising on technological progress or other developments (whether in Australia or overseas) affecting the feasibility of access to aircraft and seats for people with mobility impairments where space constraints of aircraft currently present safe manual lifting and transfer.

I should emphasise that the exemption proposed is considerably less extensive than that originally sought on behalf of Kendell and other members of the Regional Airlines Association of Australia by that Association. This is in part in response to points raised in submissions, and in part reflects initiatives taken by Kendell itself in the course of consideration of these applications.

In particular I note that Kendell no longer seeks, and that I am not recommending, an exemption covering provision or availability of lifting devices.

I note also that nothing in this decision would prevent Kendell from providing more extensive services to particular customers where this could be justified based on particular circumstances, commercial judgment or as negotiated from time to time.

In view of some comments on this and other recent applications for exemption, I think it is also necessary to re-emphasise that the temporary exemption process is an inherent part of the scheme of the DDA. While not every application for exemption will merit approval, it is a fundamental misconception to regard each and every exemption application as inherently contrary to the objects of the DDA.

The objects of the DDA are better served if organizations with responsibilities bring forward measures for meeting those responsibilities over time for consideration by HREOC and discussion with interested parties in the context of the exemption process than if those organizations elect instead to defer any positive action until successful complaint action is taken against them.  HREOC should continue to encourage organisations with responsibilities under the DDA to bring forward positive measures to meet those responsibilities in the context of temporary exemption applications under section 55, and grant exemptions where this advances the objects of the legislation.

Issues raised by submissions and responses by Kendell

Following the close of submissions I asked Kendell to respond to a number of issues which were raised in submissions or were apparent from the application.

Submissions referred to regulations made by the United States Department of Transportation under that country's Air Carrier Access Act. These regulations are available, with extensive commentary on the processes and reasoning leading to their adoption, on the internet at www.dot.gov/ost/docr/AIRACCES.HTM .  While these regulations are of course not in force in Australia and it is the DDA which HREOC has to administer, I agree that they provide an appropriate reference point. It is, however, necessary to emphasis both that submissions overlook some important limitations in the requirements of these regulations as they apply to smaller aircraft, and that in some respects the actions undertaken by Kendell and required as conditions on the exemption I propose go beyond the requirements of these regulations .

Breadth of exemption sought

In view of concerns raised in several submissions I requested clarification of the breadth of the exemption requested. Kendell  confirmed in response that they are not seeking an exemption which would give them an absolute right of veto over any and all passengers with a disability. I would not be prepared to recommend any exemption giving a carrier complete discretion over which passengers to carry, and note that the United States Department of Transportation in its regulatory process likewise rejected the concept of complete carrier discretion.

It is clear, nonetheless, that the exemption as sought is a substantial one with major implications for people with physical disabilities affecting mobility and for some people with intellectual or other disabilities affecting communication or comprehension.

Effect of exemption on existing levels of accessibility

Most submissions expressed concern regarding or opposition to this application on the basis that if the exemption were allowed, the ability of people with mobility impairments in regional and rural areas to use aircraft will be diminished compared to what is currently provided.

Accordingly Kendell was asked to clarify whether the exemption applied for is intended to excuse Kendell from providing any aspect of accessible service currently provided.

Kendell's response makes clear that the purpose of the application is to address current barriers to providing fully equal access and to allow time while some of these barriers are removed and others are further examined. Much of the force of concerns expressed in submissions does not, therefore, apply to the exemption as actually sought or as proposed to be granted.

However, it is also clear that a major concern for Kendell is that in some cases (as specified in their proposed criteria for exemption) meeting passenger expectations and complying with potential requirements of discrimination law may place Kendell in breach of both occupational health and safety and air safety laws.

To the extent that any person is currently being provided with services by Kendell in circumstances where these safety exclusions apply, it must be acknowledged that this exemption could permit a reduction in existing service.

My reasons for regarding it as appropriate for HREOC to grant an exemption nonetheless are as follows.

    1.The Commission has consistently decided that no act of unlawful discrimination occurs if a person has no discretion to act otherwise, including where the action is compelled by another legal provision. On this view, an airline does not have any legal right, power or duty under the DDA to act in a way which is in breach of occupational health and safety legislation or in breach of air safety legislative and regulatory requirements - even if an airline or its staff may wish on occasion to do so either out of a desire to provide service to passengers (which is after all the business these organizations are in) rather than refuse, or out of concern over potential liability under discrimination law for refusing.

    2.The Commission has refused, in a number of decisions, to grant exemptions where an exemption would be unnecessary because there is no reasonable prospect of unlawful discrimination being found. This is because using the exemption power simply to certify that an action or situation is already lawful does not in itself do anything to advance the objects of the legislation. However, in this case the safety elements of this exemption are part of a package designed overall to advance the objects of the DDA and to expand equitable access to air travel. It is a proper use of the exemption process for an applicant to seek to convert a possibly good defence (whether by reference to considerations of unjustifiable hardship, compliance with other laws or other factors) into a certain defence by putting forward measures it is prepared to undertake to achieve greater compliance with the objectives of the DDA.

    3.This exemption would permit Kendell to require a person to travel accompanied by an assistant only on specified safety grounds and not for other reasons. Further, where a person is accompanied by an assistant because Kendell requires this, Kendell would be required to apply the "carer fare" arrangements currently applied by Kendell's parent company Ansett. To permit a requirement for an assistant in limited circumstances is consistent with the approach taken by the United States Air Carrier Access Act regulations after a very extensive process of regulatory negotiation involving industry and disability community organizations. It is also consistent with the approach taken by the Commission in McLean v Airlines of Tasmania in applying the DDA.

Lifting devices

Several submissions questioned the adequacy of the commitment indicated in Kendell's Action Plan to review and consult regarding lifting devices over the next 24 months. Some submissions however also indicated that substantial progress already achieved by Kendell in implementation of lifting devices was not clearly reflected in this application.

It is relevant to note that the draft Disability Standards for Accessible Public Transport would require upgrading of all boarding facilities to provide non-discriminatory access, but that this would be allowed to occur proportionately over 20 years (that is, 25% of services accessible after 5 years, 50% after 10 years and so on).

By contrast, and more specifically in relation to aviation, in the United States the regulations adopted in 1990 under the Air Carrier Access Act appear to have required, subject to the exceptions noted below, accessibility of all boarding facilities within 3 years of those regulations becoming effective. Submissions referred to this requirement, but failed to note that this is subject to an exception for airports with less than 2500 passenger movements per year, and regarding aircraft having 30 seats and under "in the event that physical limitations of an aircraft with less than 30 passenger seats preclude the use of existing models of lifts, boarding chairs or other feasible devices to enplane a handicapped person": United States Code of Federal Regulations 382.39(a)(4).

Kendell was asked to

  • indicate why a two year exemption period would not be sufficient in relation to a two year review of lifting devices
  • clarify whether it is correct that the need for review relates only to those aircraft types not able to be effectively served by the lifting devices already put in place by Kendell
  • indicate what level of progress has been made to date in provision of lifting devices or other accessible means of boarding by Kendell or in association with its services
  • indicate what further level of practical progress regarding lifting or boarding devices Kendell would be in a position to undertake to achieve in practice as a condition of an exemption over a period of two, three or five years.

In response, Kendell advised that lifting devices have now been manufactured and installed at some 14 locations, suitable for both the new aisle wheelchair and for the three types of aircraft operated in its fleet. Accordingly Kendell advised that the time frame sought in its action plan on this point is no longer relevant.

This is a very welcome result. It should be noted that in this respect Kendell have met ahead of time, or exceeded, the requirements which would apply were the Draft Standards for Accessible Public Transport to enter into force immediately, and have also met or exceeded the requirements were this decision to apply conditions based on the relevant provisions of the regulations made under the United States Air Carrier Access Act.

Substitution of aircraft

At least one submission argued that it should be possible, and required, for airlines to substitute larger capacity aircraft (enabling fuller accessibility) for smaller aircraft when a person requiring an accessible aircraft wishes to travel.

In my view this fundamentally misconceives the nature of the service provided by airlines such as Kendell, in that it confuses public transport with personal or specialised transport.

Kendell acknowledge that during the period of the exemption sought some people wishing to travel will have difficulty doing so because of aircraft size, in particular in 19 seat aircraft, but argue against any requirement limiting the airline's ability to select the aircraft to be applied to a service.

I do not propose that Kendell should be required to substitute aircraft at a passenger's option as a condition of an exemption in this matter.

Aircraft accessibility

A major accessibility issue identified in the application and in submissions is that of movable armrests to minimise need for, and difficulties in, lifting passengers who use wheelchairs into and out of seats.

One submission argues that Kendell should refit all aircraft with movable armrests for all seats to cater for situations where a number of passengers requiring this facility wish to travel on the same service.

Another submission, however, notes that "it is virtually impossible to get an aisle wheelchair down these small planes given that the distance between seats is only 10 inches apart".  This would appear to indicate that requiring movable armrests in all seats in some aircraft at least would be futile for the intended purpose.

The United States regulations require for new aircraft that "aircraft with 30 or more passenger seats on which passenger aisle seats have armrests shall have movable aisle armrests on at least one-half of passenger aisle seats", and further require for existing aircraft that this requirement be met whenever an aircraft undergoes replacement of existing seats with newly manufactured seats. Aircraft with under 30 seats however are required to comply only to "the extent not inconsistent with structural, weight and balance, operational and interior configuration limitations" (U.S. Code of Federal Regulations 382.21 (d) ).

I requested advice from Kendell on

  • whether existing aircraft operated by Kendell, other than the Saab aircraft discussed in its action plan, are capable of being fitted with movable armrests
  • if so, whether and to what extent Kendell is prepared to undertake such fitting during the life of the proposed exemption, either in the course of otherwise scheduled refitting or (in excess of the requirements applying under United States regulations) specifically for the purpose of increasing accessibility
  • the feasibility of fitting movable armrests to more than one seat pair in an aircraft (whether Saab or other types) and Kendell's preparedness to undertake this during the life of an exemption (taking into account any limitations on usefulness of this action which may exist in some aircraft types with limited aisle width).

In response Kendell advised that it had completed the process of seat modification for its SAAB aircraft; that seat modification on the Metro 23 does not present a problem as all arm rests fold down; and that the CRJ 200 50 seat regional jet does not present a problem as all arm rests fold up.

Clearly, very substantial progress has been achieved in this area. I consider however that it would be appropriate to require as a condition of an exemption in this matter that Kendell report on need for, feasibility of, and any progress in fitting movable armrests to additional seats in the Saab aircraft.

Review of Occupational Health and Safety Issues

A number of submissions questioned the 24 month timeframe provided in Kendell's Action Plan for review of occupational health and safety issues regarding lifting of passengers, and queried a lack of specified responsibility for actions in this respect.

One submission from a leading consumer advocate conceded that "it is almost impossible for anyone to stand up straight in these smaller aircraft which makes it impossible to do a safe lift" but argued that with further technological development it must be possible to find a solution to this issue.

Neither Kendell's response nor other submissions indicate any immediately applicable solutions to this issue. In view of its importance, however, I propose that the Commission should require as a condition of this exemption that Kendell report within 12 months advising on technological progress or other developments (whether in Australia or overseas) affecting the feasibility of access to aircraft and seats for people with mobility impairments where space constraints of aircraft currently present safe manual lifting and transfer.

GRAEME INNES AM
Deputy Disability Discrimination Commissioner
17 August 2000