Recommendation for decision
on application for temporary exemption under section 55 of the Disability
Discrimination Act

This paper recommends granting, in part and on conditions as specified
below, an application for temporary exemption under section 55 of the
Disability Discrimination Act ("DDA") by Capiteq Ltd, trading
as Airnorth.

Application

The Human Rights and Equal Opportunity Commission received, by letter
dated 15 April 2003, an application on behalf of Airnorth airlines for
temporary exemption under section 55 of the DDA regarding carriage of
passengers with disabilities on low capacity aircraft, for a period of
five years.

The nature of the exemption sought is set out in the following extract
from the application.

"Capiteq Limited seeks an exemption under section 55 of the DDA
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 in compliance 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 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
  • 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).
    

   

  A person who is mobility impaired may require to be lifted into and
  out of the aircraft. Where this assistance is unable to be provided
  by Airnorth due to the application of occupational health and safety
  laws, and due to space constraints of the particular aircraft, the
  person may have to provide his/her own assistants. In such a case
  Airnorth will offer the person travel at our proposed "greater
  freedom fare" where the cost of travel will be no more than 25%
  of the normal economy fare for that sector (75% discount which makes
  it significantly cheaper than even the heaviest discounted airfare).
  This discount is intended to defray any costs the person may incur
  in providing the necessary assistants.

  When an assistant is required by Airnorth to accompany the person
  on the flight for safety reasons, travel by the assistant is also
  to be at our proposed "greater freedom fare" where the cost
  of travel will be no more than 25% of the normal economy fare for
  that sector."
  

Airnorth also provided details of proposals to require passengers who
need some forms of assistance in relation to disability to provide 96
hours notice of those needs

By further email Airnorth amended its application to clarify that an
exemption is also sought from the operation of the Disability Standards
for Accessible Public Transport on the same conditions.

Inquiry process

In accordance with the Commission's policy on dealing with exemption
applications under the DDA a notice of inquiry
and call for submissions was issued on 28 April 2003.

Submissions

Seven submissions were received and published
on the Commission's website. Those submissions are summarised below with
comments.

Submissions supporting the application

Regional Airlines Association of Australia

The Regional Airlines Association of Australia supported Airnorth's application,
commenting as follows:

The RAAA supports the Airnorth initiatives, and objectives, in seeking
to find an acceptable system of compliance to enable the carriage of
disabled persons on its airline, and at the same time, meet the requirements
of safe work practices.

National Transport Secretariat

The National Transport Secretariat supports the application, commenting
that "The NTS is satisfied that Airnorth has applied its best endeavours
for meeting the needs of its passengers, its staff and the organisation",
while suggesting that Airnorth consult with national representative bodies
for people with a disability regarding its proposed systems for identifying
and responding to special needs.

Submissions opposing application

H. Rumley

Dr Hilary Rumley (an anthropologist who uses a wheelchair and uses Airnorth
services) opposes the application, arguing that staff should be trained
in safe lifting techniques and that granting an exemption would have a
serious impact on people with disabilities including Aboriginal people
with disabilities travelling to or from remote areas. She argues that
many people with disabilities would not have their own assistants available
to take advantage of Airnorth's offer of discount fares for assistants.

S.Sellar

Ms Sellar is a nurse who has acted as assistant for people with disabilities
travelling on Airnorth services. She welcomes Air North's proposal to
give customers with disabilities and their carers discounted tickets.
She expresses concern however regarding requirements for 96 hours notice
of requirements for wheelchair boarding and states that on occasions lifting
devices have not been able to be used even with 7 days notice because
of a lack of staff present licensed to use the device.

Darwin Community Legal Service

Darwin Community Legal Service opposes the application. They emphasise
the importance of air transport in northern Australia. They argue that
if assistants are required for travel these should be provided by the
airline and that staff should be trained in safe lifting techniques.

W. Jones

Ms Jones is an officer with the W.A. Disability Services Commission.
Her submission opposes the application and emphasises the impact on people
with disabilities if they are required to provide and pay for a carer
in order to travel.

Submission supporting granting in part

Department of Transport, South Australia

The South Australian Department of Transport notes that the exemptions
sought are similar to those granted to Kendell Airlines and are for similarly
sized aircraft, so that it might seem reasonable that the Air North application
could be approved with conditions similar to those applied to Kendell
Airlines in August 2000. However it also notes that the intent of the
exemption approved for Kendell was to give the airline time to improve
access to its aircraft (through the purchase of narrow boarding-wheelchairs,
the installation of moveable seat armrests and the investigation of other
means to improve access), while the Air North application claims that
the nature of the aircraft involved makes it technically unachievable
or unreasonably expensive to provide access to passengers with certain
types of disability without putting its employees at unreasonable risk
of injury, for as long as the aircraft remain in service.

The Department states regarding Airnorth's application:

Rather than propose means to improve access, it puts forward a system
of categorising passengers according to their disablement and proposes
courses of action to deal with them ranging from refusal of carriage
to carriage at reduced fares for the passenger and a passenger-provided
assistant.

The Department concludes that Air North's application, as it applies
to its smaller Metro 23 aircraft, appears reasonable in view of the limitations
of aircraft of that size and their exclusion from the access requirements
of the Disability Standards for Accessible Public Transport, so that the
application in this respect should be approved subject to consultation
on and modification if necessary of the categorisation of people with
disabilities it includes, and its advance booking and documentation requirements.

However the Department argues that the exemption as it applies to the
larger Brasilia aircraft requires further justification on a number of
issues:

• why Air North uses a forklift to lift disabled passengers to aircraft
  floor height rather than wheelchair lifts which are hand positioned
  rather than driven and thus may reduce the risk of flap damage;
• need for specifications of the aircraft's aisle width and the width
  of the narrowest specialised aircraft-boarding wheelchair to demonstrate
  that wheelchair access to this aircraft is not possible;
• why the cabin attendant carried on Brasilia aircraft could not assist
  any passenger, disabled or otherwise, to apply an oxygen mask or put
  on a life jacket in the event of an emergency; and
• Requiring a passenger who cannot understand instructions given by
  the flight crew (even if instructions are available in both visual and
  audible form) to be accompanied by an assistant suggests that this requirement
  might apply to any passenger unable to speak or read English (this reservation
  applies also to Metro 23 aircraft).

The Department also comments:

While these comments advocate caution in accepting certain provisions
of the Air North application, they should not be taken as criticism
of the proactive approach the airline has taken in seeking to ensure
that it can comply with the DDA to the maximum extent it considers possible
without subjecting its employees to risk of injury.

It recommends clarification of the requirements of the DDA and the Disability
Standards for Accessible Public Transport for the carriage of passengers
using wheelchairs in aircraft having less than 30 seats; promotion of
development by operators of practical solutions for addressing difficulties
associated with the carriage of people with disabilities in such aircraft;
and promotion of development of national guidelines governing the carriage
of people with disabilities in aircraft of less than 30 seats.

AirNorth response

Airnorth was invited to provide comments in reply to submissions and
did so. These comments have also been published on the Commission's website.

In response to submissions Airnorth emphasises the limited space available
in its aircraft. This includes clearances being narrower than available
aisle wheelchairs. They also note limited headroom and state:

Despite the wishes of some of your correspondents, within the confines
of the cabin described above, safe lifting is not possible.

They then describe the alternative rear boarding procedure used to date
for the larger Brasilia aircraft through the emergency exit:

As stated in our application, the company has in the past allowed the
use of the rear floor level emergency exit for the loading of passengers
in a wheelchair. The gap between the seats at this exit allows the wheelchair
to enter but not proceed down the aisle. The person is then assisted
to the nearest available seat across the aisle. However the procedure
requires the lifting hoist, be it a forklift or a specially designed
man powered device such as is used in much larger aircraft by Qantas,
to be positioned perilously close to the aircraft flaps. The company
considers the potential damage to the flaps, with consequent loss of
use of the aircraft and cost of repair, perhaps at a remote port, is
not acceptable. The emergency exit was never designed to be used in
this manner and the crews must be specially trained to certify the correct
reinstallation of the exit if it is so used, at further cost.

They also comment in relation to proposed arrangements regarding passengers
with specific needs:

Some correspondents have made mention of the conditions which the company
has proposed regarding notice in bookings. It is our intent to use the
notice to prepare to carry the person concerned, allowing that some
of our network is remote and special arrangements may have to be made.
In particular loading of a person by their own carers may take more
time than is normally allowed in turnarounds and we may have to make
minor schedule adjustments on certain days and advise other passengers
accordingly. We also expect that this notice period will be much less
for regular travellers whose details are known to us and whose requirements
will be familiar to our staff.

Issues raised by submissions

Approach to exemption applications

HREOC has indicated in previous decisions that an application for exemption
under the DDA does not necessarily represent an attempt to avoid responsibilities
under the DDA rather than seeking means to achieve these objectives within
constraints provided by existing infrastructure or other regulatory requirements.
The comment by South Australia's Department of Transport commending Airnorth
for taking a proactive approach to the issues dealt with in this application
while raising concerns regarding some aspects of the application is relevant
in this respect.

HREOC's policy and statutory obligation is to decide exemption applications
on their merits, taking into account the objects of the DDA.

The objects of the DDA refer to elimination of discrimination as far
as possible. With this in mind, the Commission has sought to use the exemption
process to advance the objects of the DDA and in particular in the public
transport area has made decisions intended to assist in the process of
transition from systems and facilities which do not provide access for
people with disabilities to systems and facilities which do provide access.

Although issues which would be relevant to determination of unjustifiable
issues in the context of complaints may also be relevant to determination
of the merits of an application for temporary exemption, the Commission
has not been prepared to grant exemptions simply to certify the existence
of unjustifiable hardship in cases where accessibility is technically
or financially unachievable.

Exemptions have been granted where it is not certain that there would
otherwise be liability for unlawful discrimination (such as the ORTA decision),
but not where there is no reasonably arguable case of unlawful discrimination
(see the Employers Making a Difference decision).

Exemptions have been granted to provide time to implement solutions (such
as in the Melbourne Trams case); to permit processes of review to identify
possible solutions (such as in the Queensland Rail case); or to facilitate
clarification of the relationship of the DDA to other legal requirements
(such as in the CASA case.)

Impact of proposed exemption on people with disabilities

The importance to mobility for people with disabilities of the services
provided by Airnorth in the areas it serves is clear from submissions,
as well as being clear from the materials provided by Airnorth itself.

It is also clearly true that requiring a person with a disability to
provide his or her own assistant for boarding and for in flight requirements
is a significant additional requirement to what is expected of other passengers,
and that this would have a significant financial and practical impact
on the ability of some people with disabilities to travel. Airnorth's
proposals regarding discount fares for passengers with disabilities and
assistants may mitigate but not remove these impacts.

It is less clear how far the proposed exemption would represent a reduction
in the level of Airnorth's current obligations under the DDA, as compared
to a possible reduction in the responsibilities it currently undertakes
in practice. These issues are discussed further below.

Relationship of proposed exemption to obligations under the DDA and
Standards

The first point on which exemption is sought is lack of access to aircraft
seats for people requiring wheelchair access, where this is prevented
by limited aisle width.

The second point on which exemption is sought is lack of access to aircraft
or seats for passengers requiring lifting, where this cannot be performed
in compliance with the requirements of applicable occupational health
and safety laws due to space constraints of the particular aircraft.

Position of Airnorth Brasilia aircraft

Point one of exemption applied for

In relation to AirNorth's Brasilia aircraft, the Disability Standards
for Accessible Public Transport require wheelchair access to seats, or
equivalent access by direct assistance. This is subject (under section
33.7) to scope for an operator to demonstrate unjustifiable hardship in
exceptional cases.

Section 3.3 of the Standards states:

If the design restrictions of a conveyance limit on-board manoeuvring
areas for wheelchairs and similar mobility aids, the operator of the
conveyance must ensure equivalent access by direct assistance to passengers.

This requirement is expressed as applying to aircraft except small aircraft.
Small aircraft are defined in section 1.24 of the Standards as aircraft
having less than 30 seats for carriage of passengers.

However, the compliance timetable for the Standards (Schedule 1, clause
1.3) indicates that (except for aircraft newly acquired since the commencement
of the Standards) obligations in relation to accessibility in boarding
conveyances, including aircraft of 30 seats or more, do not apply until
the first five year point (that is, 31 December 2007), at which point
25% of services must comply.

The effect of this is that until 31 December 2007, in relation to the
Brasilia aircraft it is highly likely that Airnorth in effect already
has the benefit of point 1 of the exemption sought (that is, in relation
to accessibility of the aircraft itself).

Until this first compliance date is reached, an operator of existing
larger aircraft which do not meet the standards requirements in relation
to boarding access is still acting in compliance with the standards, and
thus appears to be protected from liability under the DDA by virtue of
DDA section 34 which states:

If a person acts in accordance with a disability standard this Part does
not apply to the person's act.

This is consistent with the clear intent of the standards in giving time
for operators to bring fleets into compliance in return for added certainty
that compliance will be achieved over time.

This could be taken as an argument for not granting the first point of
the exemption applied for in relation to the Brasilia aircraft since until
December 2007 the limited accessibility of the Brasilia aircraft itself
is not unlawful. After 31 December 2007 Airnorth might need to rely on
the unjustifiable hardship provision of the Standards, or else have an
exemption in place, if it wishes to discontinue the practice of using
the rear emergency exit to provide wheelchair access, but until that date
the Standards do not impose a requirement for there to be an accessible
entrance.

However, noting that the airline is seeking a consistent approach to
apply across its fleet for operational reasons, the facts that in this
respect no substantive loss of rights under the Standards is proposed
and that an exemption can be made subject to conditions to promote provision
of access could also be seen as arguments in favour of granting this point
of the exemption in relation to the Brasilia aircraft. In particular,
granting of an exemption can be made subject to conditions which under
the Standards might not otherwise have applied to an operator or might
not have applied until a later date.

Point two of exemption applied for

The terms of the Standards could also be interpreted to mean that until
31 December 2007, in relation to its Brasilia aircraft Airnorth in effect
already has the benefit of point 2 of the exemption sought, since section
3.3, which requires provision of equivalent access through assistance
in boarding and seating in aircraft where design constraints apply, appears
to be a provision dealing with "manoeuvring" and/or "boarding",
and thus to be governed by the compliance timetable in clause 1.3 of schedule
1 which lists those items as not requiring compliance by a first stage
25% of services until 31 December 2007.

This possible result, deferring obligations in relation to provision
of assistance, appears less readily justifiable than deferral of obligations
regarding conveyances and infrastructure in terms of the purpose of the
Standards and in terms of consistency with the objects of the DDA. For
this reason it may well be that in the event of a complaint requiring
determination by the courts the Standards would not be interpreted as
having this effect. Operators would be wise to act on the basis that where
boarding assistance can be provided without unjustifiable hardship it
is currently required to be provided.

Airnorth's application is made on the basis that the airline does accept
an obligation (under the Standards and under the DDA) to provide assistance
where necessary for boarding and seating, but argues that implementation
of this obligation is limited by occupational health and safety considerations,
as well as requiring advance notice.

What approach should be taken to occupational health and safety issues
in dealing with this application is discussed further below.

The proposal for carrying assistants and passengers with disabilities
at reduced fares may be seen as a measure aimed at complying as far as
possible with the Standards by providing "equivalent access"
in response to limited accessibility of the aircraft and limits on ability
to provide staff assistance, although for the reasons raised in submissions
this measure does not fully meet the requirement of the Standards that
equivalent access measures should provide equal convenience of travel.


Measures which may not fully satisfy the requirements of the Standards
for compliance by equivalent access may still be relevant to deciding
whether compliance with the Standards would involve unjustifiable hardship
(see Standards section 33.7.4), and also relevant to whether an exemption
applied for should be granted.

Position of smaller aircraft (including Airnorth Metro 23)

South Australian Department of Transport's submission notes that the
clear intention of the Disability Standards for Accessible Public Transport
in applying certain accessibility requirements only to aircraft of 30
seats or more was that wheelchair access to seats on these aircraft should
be achievable, while these requirements were not applied to smaller aircraft
because difficulties of providing the same degree of access to these aircraft
were regarded as such that operators' obligations should be limited without
having to seek individual exemptions.

However, the effect of smaller aircraft being excluded from these requirements
of the Standards may be to leave smaller aircraft covered by the existing
provisions of DDA sections 23 and 24, rather than to give operators of
small aircraft complete protection from potential liability. Since the
requirements of the Standards fail to apply to smaller aircraft they may
fail to displace the otherwise applicable requirements of sections 23
and 23.

This may be seen as a paradoxical result, which would merit revisiting
in future revisions of the standards to determine what level of access
to smaller aircraft is feasible and appropriate to specify as satisfying
the requirements of the DDA.

Alternatively, it could be argued that while smaller aircraft cannot
be subjected to the same timetable and requirements for provision of physical
access under the Standards as larger aircraft are, it is appropriate to
retain some capacity under the DDA to examine - through the complaints
process and also through other processes including exemptions and development
of action plans.



If the view is correct that DDA sections 23 and 24 continue to apply to
access to smaller aircraft, obligations under these sections are subject
to limits which an operator may be able to demonstrate by reference to
the defence of unjustifiable hardship.

As noted above, measures which an operator is prepared to undertake to
mitigate the effect of lack of aircraft accessibility, or limited availability
of staff assistance, may be relevant to determination of unjustifiable
hardship issues in response to complaints as well as to issues of whether
an exemption applied for should be granted.

Health and safety issues

Several submissions opposing the granting of an exemption in this matter
clearly contemplate that occupational health and safety concerns regarding
lifting can be removed by appropriate training in safe lifting techniques.

It is not clear whether these comments take sufficient account of the
issues raised by Airnorth regarding the particular difficulties of lifting
in confined spaces with limited headroom as presented by its aircraft:
both the smaller Metro 23 because of its nature as a smaller aircraft,
and the Brasilia because of its specific design.

In the Kendell Airlines matter, the recommended decision included the
following comment:

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.

It does not appear possible in the context of this application to make
conclusive and comprehensive judgments whether lifting any or all people
requiring this service in boarding and being seated in Airnorth's aircraft
would require actions inconsistent with occupational health and safety
requirements but at the least it can be said that substantial issues in
this respect have been raised.

It is also important to note that Airnorth's application does not seek
a general exemption in this respect, but seeks an exemption from being
required to provide access by lifting where this is inconsistent with
health and safety requirements.

Occupational health and safety laws have not to date been made the subject
of prescription under DDA section 47 so as to protect actions in direct
compliance with these laws against liability under the general non-discrimination
provisions of the DDA including sections 23 and 24, or made the subject
of specific exceptions in the Disability Standards for Accessible Public
Transport. (The power in DDA section 47 to prescribe laws does not extend
to excluding liability under a Disability Standard: see DDA section 33.)

However, even without these laws being prescribed under DDA section 47
or made the subject of specific exceptions under the Standards, it must
be accepted that being required to undertake an action which involves
sufficient risk of injury to staff and/or to passengers such that refusing
to undertake that action is required in order to comply with occupational
health and safety duties, would be very highly likely to constitute an
unjustifiable hardship for the purposes of the DDA and of the Disability
Standards for Accessible Public Transport.

The recommendation for an exemption in the Kendell Airlines matter which
the Commission accepted included the following comment:

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.

On this view, although the effect in practice of granting an exemption
would be likely to involve assistance not being offered in future in some
circumstances where at present it is offered, the effect in law of granting
an exemption to certify that actions which breach occupational health
and safety duties are not required might be regarded as not involving
any loss of existing rights. This would also mean that any offsetting
measures included as conditions on an exemption, such as Airnorth's proposed
discount fare arrangements, would in fact involve an increase in legal
rights for travellers with disabilities compared to the current legal
position in the absence of such an exemption.

If an exemption as proposed is granted regarding lifting which breaches
occupational health and safety requirements, and in reliance on that exemption
Airnorth refuses to provide lifting assistance (and thus may end up refusing
carriage to an intending passenger unless the passenger secures other
assistance to board and be seated) the intending passenger would still
be able to make a complaint under the DDA. That complaint would fail if
Airnorth and its staff were found in the circumstances to have been correct
in deciding that lifting would breach occupational health and safety duties,
but would succeed if Airnorth or its staff were found to have acted incorrectly
in interpreting or applying their duties under occupational health and
safety law.

This is not to say that the effect in practice of a decision on an exemption
application can or should be ignored. The DDA aims to eliminate discrimination
as far as possible, which involves preventing it occurring as far as possible
and not only providing for people to seek remedies after discrimination
does occur.

An exemption on occupational health and safety decisions which leaves
an airline open to continued liability under the DDA if it makes incorrectly
restrictive decisions on health and safety grounds may provide some incentive
for correct decision making, including provision of appropriate training
and procedures. This continuing potential liability, as well as commercial
considerations in favour of being able to carry and receive fares from
passengers rather than not being able to carry and be paid by passengers,
may also provide some incentive to examine possible means of boarding
and seating passengers.



Rather than relying entirely on these possible incentive effects however,
if an exemption is to be granted on this issue of consistency with occupational
health and safety it appears appropriate to include conditions to ensure

• that the impact of restrictions in this area on ability for people
  with disabilities to travel is subject to continuing scrutiny, including
  how far offsetting measures including discount fares may be effective
  in mitigating that impact;
• that occupational health and safety considerations are not being applied
  more restrictively than necessary; and
• that consideration is given to means for avoiding the need for lifting
  to achieve access (such as any possibilities there may be for approaches
  based on hoists or slides).

The need to monitor the impact of an exemption also indicates that at
least initially an exemption should be for a shorter period than the five
years requested.

Requirements for passenger provided assistant during travel

The third point of Airnorth's application seeks exemption to allow it
to require a passenger to be accompanied by an assistant 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
• 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).

The exemption granted in the Kendell Airlines matter included very similar
points to these. The following comment was included in the recommendation
for an exemption accepted by the Commission in that case:

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.

Clearly, these reasons also support granting a similar exemption on this
point to Airnorth.

However, as noted by the South Australian Department of Transport, in
the Kendell Airlines matter this point was part of a larger package for
improving access over time.

Whether an exemption is appropriate to grant and is consistent with or
promotes the objects of the DDA should be assessed on an overall basis
rather than taking a particular point in isolation.

There appears no reason to question that Airnorth's concern in this area
is to ensure appropriate safety to all passengers. However, I consider
that on this issue the appropriate decision is to leave the matter to
the operation of the DDA and the Standards as they stand, providing for
case by case determination, rather than applying an across the board exemption.
Under the DDA and the Standards alike Airnorth would be able in appropriate
cases to raise an unjustifiable hardship defence regarding a requirement
for provision of an assistant by passengers, similar to that which was
successfully raised in McLean v Airlines of Tasmania. Extension of discount
fares to carers or assistants as proposed by Airnorth would assist in
establishing that defence

Notice requirements

Section 28.1 of the Standards states:

Operators of booked services may request advance notice of a requirement
for accessible travel.

This provision is expressed as applying to "aircraft" and thus
covers smaller as well as larger aircraft.

Section 28.2 goes on to state:

Any advance notice required of a requirement for accessible travel must
not exceed the period of notice specified for other passengers.

It is not completely clear with what notice period for other passengers
section 28.2 requires comparison, but in any event section 28.2 is not
expressed as applying to aircraft.

For aircraft, then, the Standards already permit operators to ask for
advance notice of accessibility requirements although they do not specify
what period of notice requirement is acceptable.

Given that the Standards need to be interpreted in the light of the objects
of the DDA including the elimination of discrimination as far as possible
(both as a matter of general interpretation and as indicated by the accompanying
Guidelines in section 1.2), notice requirements which are longer than
reasonably necessary should not be regarded as acceptable, but notice
requirements which are reasonably intended to ensure that facilities and
assistance can be made available where required would be permitted.

It is not clear that a further specific exception for Airnorth's particular
notice requirements should be granted but an exemption decision might
appropriately re-confirm that notice requirements are permissible if reasonable
in the circumstances.

Recommended decision

I recommend that the Commission grant an exemption from the operation
of sections 23 and 24 of the DDA and from the operation of the Disability
Standards for Accessible Public Transport, for a period of two 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 in compliance with the requirements of
  applicable occupational health and safety laws due to space constraints
  of the particular aircraft.
• Requirements for notice of disability access requirements, where these
  requirements are reasonable in the circumstances.
  

I recommend that the exemption not extend to requirements for passenger
provided assistants in flight.

The exemption should be conditional on Airnorth:

• implementing its proposals for carrying passenger with disabilities
  and assistants at reduced fares where Airnorth requires a passenger
  provided assistant
• reporting each three months during the exemption period to the Commission
  on any instances where a passenger has been unable to travel or has
  been required to travel with an assistant because of restrictions permitted
  by this exemption
• reporting within twelve months on any technical solutions which may
  be feasible to difficulties in passengers with disabilities boarding
  and being seated safely
  

Graeme Innes AM

Deputy Disability Discrimination Commissioner