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.
The exemption application was submitted on behalf of the Regional Airlines Association of Australia.
Decision of the Commission
The Commission decided to refuse the exemption.
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.
on behalf of the Commission
Recommendation for decision on exemption application: Regional Airlines Association of Australia
In March 1999 HREOC received an application by the Regional Airlines Association of Australia (RAAA), on behalf of its member airlines, for an exemption for a period of five years from sections 23 and 24 of the Disability Discrimination Act, so far as they concern carriage of persons using wheelchairs or other mobility aids, where the constraints of aircraft or boarding systems prevent boarding and carriage consistent with safety requirements for staff or passengers.
Considerably more time has passed since this application was lodged than is generally aimed for or achieved by HREOC's disability discrimination policy section in presenting exemption matters for decision by the Commission. The unusual delay in this case is referable to the particular history of this matter.
In its application, the applicant association noted its expectation that
"the Commission's consideration of the application in conjunction with consumers and other interested parties will assist in identifying in more detail reasonable steps to be undertaken to deal with relevant constraints, those constraints which remain unavoidable during the life of the exemption and perhaps beyond, and other appropriate conditions and limits of an exemption."
It is entirely appropriate and reasonable for an applicant for exemption to seek to use HREOC's processes to identify appropriate conditions on an exemption so as to achieve progress towards the objects of DDA. The Melbourne Trams matter, in which in response to comments made during HREOC's processes the Victorian Government modified its Action Plan and brought forward by a number of years its commitment to make trams accessible, provides a positive example in this respect. However, on this occasion HREOC's process cannot be said to have succeeded in identifying conditions on which it would be appropriate for this exemption to be granted.
In accordance with HREOC's policy and practice on DDA exemption applications, a notice of inquiry was issued and submissions sought. The notice of inquiry sought comment on issues as follows:
- specific features of aircraft and/or boarding systems preventing boarding and/or carriage of persons using wheelchairs or other mobility aids
- features of aircraft and/or boarding systems which, while not absolutely preventing boarding or carriage, prevent persons using wheelchairs or other mobility aids boarding or travelling with equal convenience, comfort, dignity or safety to other passengers
- how far removal of these barriers is technically possible within currently available technology and design
- impact of relevant safety requirements
- whether the DDA should be regarded in any relevant circumstances as requiring substitution of larger aircraft on a particular route or particular flights to overcome access limitations of smaller aircraft
- costs involved in relevant barrier removal and relationship of these costs to revenue and viability of services, including any increase or decrease in revenue reasonably to be expected from modifications (to aircraft, other facilities, or staffing or other service delivery features) to achieve accessibility
- trials or studies (already undertaken or proposed during the life of the exemption sought) to examine means for eliminating or reducing barriers to equal access to relevant aircraft services, including consultation processes involving people with a disability
- measures undertaken or proposed to achieve non-discriminatory access consistent with the objects of the DDA to relevant aircraft services more generally.
The Association proposed in a subsequent letter to HREOC (29 July 1999) that the exemption sought should apply when any two or more of the following criteria are present:
- No flight attendant
- Non-retractable seat armrests
- Unable to be accessed by a passenger lifting device
- Nil access to seat via modified wheelchairs due to aisle width
- Available space prohibits the safe manual handling / manipulation of disabled passenger
- Remote location.
It is fair to say that limited input addressing these issues specifically was received.
Fourteen submissions were received, from a range of organizations and individuals in the disability community and from organizations in regional Australia. These indicated a range of concerns and opposed granting of an exemption in the terms applied for.
A number of submissions reflected views that, first, the exemption was concerned with permitting reductions in existing levels of accessibility and, second, that exemptions were on principle inimical to the objects of the DDA. I do not believe that the first view reflects the RAAA's intention in bringing this application, and reject the second view as simply wrong. However, several submissions raised more substantial issues.
The Australian Quadriplegic Association's submission stated:
While we acknowledge that the design of some smaller planes may prevent wheelchair access at the present time, we believe it should still be possible without unreasonable cost to provide access on certain types of aircraft and at certain airports. However, the application does not specify what services would be affected if the exemption were granted. Nor does it provide any suggestions for a way forward.
The submission from People with Disabilities NSW states:
- Obtain and implement world best practice technical means of providing access to aircraft in a dignified manner.
- Make all possible alterations to existing small aircraft to facilitate ease of access.
- Work out with people with disability and manufacturers design specifications to ensure best possible access to small aircraft on order.
- Develop and provide training to staff to ensure their health and safety needs are met whilst at the same time providing access.
We do not question the right of RAAA to try and find ways to clarify and codify its members' responsibilities in a systemic way, rather than having to construct possible defences of unjustifiable hardship in individual cases. We cannot, however, support such a strategy when it may result in a wholesale reduction of the rights and benefits some of our members currently have.
. It is our belief that the only possible justification for granting an exemption is to give service providers a period of time within which they would address discriminatory practices. This means that, short of unjustifiable hardship, service providers should:
HREOC undertook some research of its own on relevant issues. However, resources available for this purpose are limited. In my view (and taking into account the comments made by the Administrative Appeals Tribunal in the Sex Discrimination Act exemption decision Re: Broken Hill Associated Smelters Pty Ltd and The Human Rights and Equal Opportunity Commission), HREOC should also reluctant to seek to set conditions which are not based on the realities of the industry concerned and which may not be achievable in practice.
This issue may be particularly relevant where the application is made on behalf of a number of organizations, whose ability or preparedeness to comply with conditions not proposed by or negotiated with them may vary.
Of course, this should not be taken to mean that industry wide exemption applications should be discouraged. If a conditional exemption can deliver progress in achievement of the objects of the DDA, then the more broadly this progress is delivered the better. There may indeed be instances where an industry wide approach is the most feasible means of delivering the results sought (for example if an element of an exemption application were the members of an industry agreeing to submit disputes on disability discrimination issues to arbitration by an independent expert body).
In my view it is desirable that a decision in this matter be made without further delay. Decisions which are as prompt as possible are desirable so that if applicants or other parties affected disagree with HREOC's view they may seek to have the decision reviewed by the AAT, rather than possibly being compelled to approach the Federal Court to seek a remedy in the nature of an order of mandamus to require a decision to be made.
I recommend that this exemption application be declined.
I note that the RAAA or each or any of its members separately is free to make a revised application. Indeed, Kendell Airlines has done so and I have recommended to HREOC that Kendell's application should be granted on certain conditions which have been proposed by or agreed to by Kendell.
Deputy Disability Discrimination Commissioner
17 August 2000