Submission to Senate Legal and Constitutional Committee Inquiry into the provisions of the Civil Aviation Amendment (Relationship with Anti-Discrimination Legislation) Bill 2004

Submission to Senate Legal and Constitutional Committee Inquiry into
the provisions of the Civil Aviation Amendment (Relationship with Anti-Discrimination
Legislation) Bill 2004

Human Rights and Equal Opportunity Commission

See
also documents on this inquiry on the Committee's web site

Submission to Senate Legal and Constitutional Committee
Inquiry into the provisions of the Civil Aviation Amendment (Relationship
with Anti-Discrimination Legislation) Bill 2004

Human Rights and Equal Opportunity Commission

Introduction

1. The Human Rights and Equal Opportunity Commission (HREOC) appreciates
and endorses the objective of the Bill - to ensure that possible inconsistencies
with the Disability Discrimination Act 1992 ("DDA") and Sex
Discrimination Act 1984 ("SDA") do not prevent measures necessary
to ensure aviation safety.

2. The Bill confirms that civil aviation safety regulations can be made
notwithstanding that they may be inconsistent with the DDA and the SDA,
where this inconsistency is "necessary" to ensure aviation safety.


3. Although HREOC endorses the importance of ensuring aviation safety
it clearly remains important to ensure that the regulations do not require
or permit unnecessary discrimination on the basis of either disability
or pregnancy.

Disability Discrimination Act 1992 (Cth)

4. HREOC submits that the DDA already provides a suitable mechanism for
resolving the issue of possible inconsistency between the DDA and the
civil aviation regulations. The capacity to prescribe laws under subsection
47(2) effectively exempts discriminatory acts done in direct compliance
with a prescribed law from being unlawful. Subsection 47(5) expressly
includes regulations in the definition of 'law' in subsection 47(2).

5. The DDA also contains a number of relevant defences to claims of unlawful
disability discrimination.

6. In relation to medical standards for aviation related licenses, the
DDA, while seeking to eliminate discrimination based on disability "as
far as possible", permits restrictions based on disability where
these are based on the inherent requirements of the particular position
concerned. (s.15(4) DDA)

7. In relation to provision of public transport services to people with
disabilities, the DDA permits restrictions where provision of service
would impose an unjustifiable hardship. (s.24(2) DDA)Sex Discrimination
Act 1984 (Cth)

8. The SDA does not contain a "prescribed laws" provision;
nor does it have an explicit inherent requirements limitation or an unjustifiable
hardship defence in relation to pregnancy discrimination. However, in
accordance with established principles of statutory interpretation the
SDA should be interpreted in the light of the Convention on the Elimination
of All Forms of Discrimination Against Women, which does recognise (Article
11.3) that there may be possible legitimate restrictions based on the
right of pregnant women to work so long as these are subject to periodic
review and based on objective analysis of scientific and technological
knowledge.

9. It is important to emphasise that (as noted in the Report of the National
Pregnancy and Work Inquiry, HREOC, Sydney, 1999, p12) such restrictions
should be exceptional, and where possible, based on a case by case assessment
of the health and capacity of the individual woman rather than a blanket
displacement policy banning pregnant women in the third trimester of their
pregnancy from piloting a plane or working as air traffic controllers.
Such an approach recognises that pregnancy is a normal part of life rather
than pregnancy in itself being assumed to render women unfit for any particular
activity.

10. Section 40 of the SDA provides exemptions for actions in direct compliance
with industrial awards (paragraph 1(e)) and certified agreements under
the

(f) a certified agreement (within the meaning of the Workplace Relations
Act 1996 (Cth) (paragraph 1(e)). These exemptions provide significant
avenues for recognition under the SDA of circumstances particular to specific
working environments.

Uncertainty of what is meant by 'necessary for the safety
of air navigation'

11.The SDA and DDA currently provide processes for people affected by
restrictions based on pregnancy or disability to test whether these limitations
are justified in the circumstances.

12. The temporary exemptions from the operation of sections 18 and 26
of the SDA and sections 19 and 29 of the DDA granted by HREOC to the Civil
Aviation Safety Authority on 26 November 2002 are very limited in nature.
They only apply where a woman's pregnancy (for the purposes of the SDA)
or a person's disability (for the purposes of the DDA) prevents her or
him safely fulfilling the inherent requirements of the role covered by
the licence concerned.

13. The current Bill greatly extends the legitimacy of discriminatory
restrictions based on pregnancy or disability by civil aviation regulations
if these are "necessary for the safety of air navigation".

14. What is meant by "necessary" in this context is open to
conjecture. Nevertheless, the Bill as currently drafted is far wider in
scope in permitting discriminatory regulations to be made than the existing
temporary exemptions allow.

15. The degree of restriction imposed by the word "necessary"
has received judicial consideration in the context of other statutory
instruments. For example, in dealing with the meaning of "necessary"
within s.236(1) of the Telecommunications Act 1991 in General Newspapers
Pty Limited and Others v Telstra Corporation (1993) 117 ALR 629 Gummow
J stated (at 665):

The term "necessary" will take its colour from its context;
in ordinary usage it may mean, at one end of the scale, "indispensable"
and at the other end "useful" or "expedient": Re an
Inquiry under the Company Securities (Insider Dealing) Act 1985 [1988]
AC 660 at 704.

16. Clearly, in achieving an appropriate relationship between discrimination
laws and civil aviation safety, most practical importance lies not in
what a court might ultimately find to be "necessary", but in
appropriate judgments being made in advance by Government and Parliament
in making regulations. For this reason, HREOC welcomes the commitment
made in the Explanatory Memorandum and in Second Reading speeches to wide
consultation before making of regulations pursuant to the Bill.

17. HREOC submits that this commitment might more appropriately be reflected
in provisions on consultation, including with HREOC, being included within
the Bill itself in the making of prospective civil aviation regulations.

18. Part 2 of Schedule 1 of the Bill also seeks to retrospectively make
lawful existing civil aviation regulations that are inconsistent with
the SDA or the DDA. Such a regulation is Reg 67.235 Suspension of medical
certificates - pregnancy. The regulation provides:

Suspension of medical certificates - pregnancy

(1) A medical certificate held by a pregnant woman who holds, or is
an applicant for, a licence is taken to be suspended:

(a) during the period beginning immediately after the end of the 30th
week of gestation and ending when a DAME certifies that she is fully
recovered following delivery or the termination of the pregnancy; or


(b) if in a particular case CASA directs in writing that a different
period should apply - during the period so directed by CASA; or

(c) if, before the start of the period mentioned in paragraph (a), the
pregnancy ends in miscarriage or premature labour, or is terminated
by medical intervention - from the time of the miscarriage, premature
labour or intervention until a DAME certifies that the woman is fully
recovered.

Note This regulation does not preclude a pilot who is pregnant from
undertaking or receiving instruction in a flight simulator at any stage
of the pilot's pregnancy.

(2) Despite subregulation (1), a pregnant woman who holds an air traffic
controller licence may continue to exercise the privileges of the licence
until the end of the 38th week of gestation if:

(a) the medical practitioner who is attending the woman certifies her
continued medical fitness to do so each week beginning at the 31st week
of gestation; and

(b) a DAME certifies the woman's continuing fitness to do so each week
beginning at the 31st week of gestation; and

(c) another person who holds an air traffic controller licence, and
is medically fit and able to take over responsibility for the function,
is on duty and available at the times when she does so.

19. At the time of making this regulation and up to the expiry of the
temporary exemptions granted by HREOC from the operation of the SDA and
the DDA on 26 November 2007, the act of the Governor-General in exercising
his regulations-making power under section 98 of the Civil Aviation Act
1988 and making a discriminatory regulation, is not unlawful.

20. HREOC submits that at the expiry of the temporary exemptions, existing
regulations such as Reg 67.235 - and in particular the severe restrictions
applying to pilots beyond 30 weeks of pregnancy - should undergo the same
scrutiny as prospective regulations under the Bill, with wide consultation
being undertaken to determine whether their inconsistency is still necessary
for the safety of air navigation. Such a procedure is in keeping with
Article 11(3) of CEDAW in relation to legitimate restrictions based on
pregnant women's right to work.

The effectiveness of the Bill

21. The intention of the Bill appears clearly to be that civil aviation
regulations should deal conclusively with relevant rights and responsibilities
rather than these being open to question through the SDA and DDA. There
may however remain some doubt whether these amendments and making of regulations
pursuant to them would be sufficient to remove the possibility that persons
acting pursuant to such regulations could nonetheless remain subject to
liability under the SDA or DDA.

22. Dicta from the joint judgment of Brennan CJ and Dawson J in De L
v Director General, NSW Department of Community Services (1997) 143 ALR
171 indicate that

• there may be some room for argument on whether it is constitutionally
  permissible for the parliament to authorise the making of a regulation
  that would amend or repeal a provision of an earlier Act; and
• if parliament were to authorise the making of a regulation to confine
  or repeal an earlier Act, it would require express words to convey that
  intention.
  

23. It could be argued that an express statement that regulations inconsistent
with the SDA and DDA may be validly made does not amount to an express
statement that the SDA and DDA are not to operate regarding conduct authorised
or required by such a regulation.

24. In this respect it should be noted that section 47(2) of the DDA
presupposes a distinction between discriminatory regulations under other
laws being valid and being conclusive, since it contemplates the existence
of regulations (as well as other laws) which although valid require prescription
under the DDA so that actions in direct compliance with those laws are
not unlawful for the purposes of the DDA.

25. HREOC raises this issue not to argue against proceeding with the
Bill but to note that further consideration of measures to ensure an appropriate
relationship between anti-discrimination and civil aviation safety laws
may be required.

Effect of the temporary exemptions

26. HREOC submits that exemptions which HREOC granted on application
by the Civil Aviation Safety Authority in 2002 resolve this issue satisfactorily,
at least until the exemptions expire in 2007, in relation to medical standards
for flight and ground crews. 27. On 26 November 2002, HREOC granted an
exemption from sections 19 and 29 of the DDA, and from sections 18 and
26 of the SDA, to persons acting pursuant to Civil Aviation Regulations
regarding medical fitness. (The full text of this decision and the recommendation
on which it was based is publicly available on the HREOC website and is
included as Appendix 1 to this submission.) These exemptions were granted
with the same purpose as the present Bill - to ensure that the SDA and
DDA operate with due regard for the necessity of ensuring aviation safety.
The exemptions expire on 26 November 2007.

28. The exemptions apply only where a person's pregnancy (for the purposes
of the SDA) or disability (for the purposes of the DDA) prevents the person
safely fulfilling the inherent requirements of the role covered by the
licence concerned.

29. As noted by the Explanatory Memorandum, however, issues may also
arise under the DDA in relation to passengers and their equipment, which
are not covered by the current exemption. These may require consideration
of either a further exemption application or use of the provision under
section 47 of the DDA to prescribe laws such that actions in compliance
with a prescribed law are not unlawful under the DDA.

Conclusions

As noted at the outset HREOC supports the objective of the Bill in ensuring
that unintended inconsistencies with the SDA or DDA do not invalidate
measures necessary to secure air safety.

Noting, however, that there are temporary exemptions in force under the
SDA and DDA until 2007, and that there are a number of provisions of the
SDA and particularly the DDA already allowing safety issues to be considered,
HREOC recommends further consideration of whether this Bill is the most
appropriate means to that objective.

If the Bill proceeds HREOC recommends inclusion of specific provisions
requiring consultation before regulations inconsistent with the SDA or
DDA are made.

Appendix 1:

Notice of HREOC exemption decision re: Civil Aviation Safety Authority

Notice of decision

Under section 57 of the Disability Discrimination Act 1992 ("DDA")
and section 46 of the Sex Discrimination Act 1984 ("SDA") the
Human Rights and Equal Opportunity Commission gives notice of a decision
made on 26 November 2002.

Applicants

The exemption application was submitted by the Civil Aviation Safety
Authority ("CASA").

Decision of the Commission

The Commission grants a conditional exemption from sections 19 and 29
of the DDA, and from sections 18 and 26 of the SDA, to persons acting
pursuant to existing Civil Aviation Regulations regarding medical fitness,
or pursuant to currently proposed amendments to those regulations.

The exemption is subject to the following conditions.

1. The exemptions commence on 26 November 2002 and expire on 26 November
2007.

2. The exemptions are to apply only where a person's pregnancy (for the
purposes of the SDA) or disability (for the purposes of the DDA) prevents
the person safely fulfilling the inherent requirements of the role covered
by the licence concerned.

Findings and reasons

In making this decision the Commission accepted the findings and reasons
contained in the recommended decision submitted by its Directors of Disability
Rights Policy and Sex Discrimination Policy and published by the Commission
on the Internet at the following address: www.hreoc.gov.au/disability_rights

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

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