Notice of inquiry: Application
for exemption under Disability Discrimination Act section 55 and Sex Discrimination
Act section 44: Civil Aviation medical standards

See also submissions in response . Submissions
requested by 24 October 2002.

The Civil Aviation Safety Authority (CASA) applied on 29 July 2002 to
the Human Rights and Equal Opportunity Commission for temporary exemption
under the 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 letter of application (Word
file) is attached to this notice together with

• Part 6 of the
  Civil Aviation Regulations 1988 (Word file) and Schedule
  1 to those Regulations (Word file);
• Draft Part 67 of the Civil Aviation Regulations
  1998 (Word file);
• Chapter 6 of
  Annex 1 to the Convention on International Civil Aviation (PDF file,
  large) .

(Documents are in the formats provided by the applicant. Please contact
disabdis@humanrights.gov.au if there are difficulties in accessing these
documents.)

The regulations and the proposed regulations prevent people with certain
disabilities from being issued with licenses. People with a further range
of disabilities, and women who are pregnant, may be issued with licenses,
but must first be assessed as being able to fulfil the conditions of the
license safely.

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.

The exemption is sought for a period of five years. CASA indicates 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.

HREOC's policy in dealing with applications for exemption under the DDA
is that interested parties should be provided with an opportunity to participate
in the decision making process.

Similarly HREOC's policy in dealing with applications for exemption under
the SDA is that interested parties should be given an opportunity to participate
where the application presents issues of public importance.

Accordingly, submissions in response to this application are sought by
24 October 2002. Submissions should preferably be made in electronic format,
and may be made to disabdis@humanrights.gov.au.
Submissions may also be made to Disability Rights unit, HREOC, GPO Box
5218 Sydney 1042.

The following discussion, and questions posed in the course of that discussion,
may assist persons considering making submissions.

Exceptional nature of exemptions

As indicated by HREOC's published policies on exemption applications,
the power for an administrative body such as HREOC to grant exemptions
from laws established by the Parliament is exceptional, and should only
be exercised where clear justification is shown. This is particularly
the case since exercise of this power under the SDA and DDA is not subject
to disallowance by the Parliament, unlike powers provided under many Acts
of Parliament to modify the effect of those Acts by later regulation.

HREOC is nonetheless bound to consider applications for exemption on
their merits and will grant exemptions where it is satisfied that this
is appropriate. Inappropriate refusal, or granting, of an exemption by
HREOC is subject to review by the Administrative Appeals Tribunal on application
by any interested party.

Summary of questions to be addressed

To assist HREOC in its consideration of this exemption application, submissions
are requested on the following issues (discussed in more detail later
in this notice):

• Would an exemption in this case be consistent with the objects of
  the DDA and SDA?
• Should an exemption be granted irrespective of consistency with the
  objects of the DDA or SDA?
• Is there an arguable case of unlawful discrimination to require an
  exemption?
• Are there conditions which should be imposed on the granting of an
  exemption in this matter?
• Would an exemption in this case be consistent with the objects of
  the DDA and SDA?
  

Overview

HREOC's policy on exemptions under the Disability Discrimination Act
states:

General administrative law principles require that the power of the
Commission under the DDA to grant exemptions should be exercised consistently
with the objects of the DDA.

HREOC's policy on exemptions under the Sex Discrimination Act states
similarly :

While all applications for a temporary exemption are considered on
their merits, the circumstances in which it will be necessary or appropriate
to grant such exemptions will be limited. This is because any exemption
must be consistent with and not undermine the objects of the Sex Discrimination
Act.

The most relevant object, in each case, is that of eliminating discrimination
as far as possible, on grounds of disability and of sex respectively.

As indicated in HREOC's published policy, the circumstances where granting
an exemption from the operation of legislation will promote or be consistent
with the objects of that legislation will be limited. However, such circumstances
may arise.

Under the Disability Discrimination Act exemptions have most commonly
been granted to give temporary protection while transitional measures
are implemented, to move from a discriminatory or inaccessible past to
a non-discriminatory or accessible future: see for example the Melbourne
Trams decision.

What is proposed by CASA here are not transitional measures in the same
sense.

HREOC has however also granted exemptions under the DDA to permit a review
to be conducted of an area where there are competing or unclear standards
to be applied to an issue with significant public safety implications:
see the Queensland Rail decision. It might be argued that an exemption
in this instance could be justified similarly, to permit the Government
and Parliament to consider whether, and in what terms, legislative or
regulatory action should be taken to give Civil Aviation Regulations clear
precedence over the DDA.

Temporary exemptions under the SDA have rarely been granted.

It may be argued that this is not an appropriate case for an exemption
under the SDA should be refused because nothing in the exemption requested
promotes the objects of the SDA, and that if it is necessary for the Civil
Aviation Regulations to have primacy over the SDA this should be decided
by the Parliament rather than HREOC.

However, decisions have been made in favour of exemptions in some cases
where a matter appears within the spirit of one of the permanent exemptions
provided within the SDA but not covered directly by that exemption.

The exemption in section 30 of the SDA recognises that it is not discrimination
to differentiate on the basis of a "genuine occupational qualification".

The DDA provides exceptions where a person is not able to perform the
"inherent requirements" of a job or occupation.

As discussed below, the terms of the permanent exemptions provided under
the SDA and the DDA are in each case not wide enough to cover all of the
situations which may be covered by the Civil Aviation Regulations - which
is why CASA consider a temporary exemption is needed rather than simply
relying on the permanent exemptions already provided in these Acts.

However, considering the presence in the SDA and DDA of these permanent
exemptions, it may be argued that an exemption in this matter would in
fact be consistent with the objects of those Acts, so long as the Civil
Aviation Regulations (in their existing or proposed form) are accepted
as establishing a scheme for appropriate assessment of the capacity of
pilots and others with relevant responsibilities to perform the inherent
requirements of those occupations.

Ability to discharge the duties of a pilot safely is clearly one of the
inherent requirements of employment or occupation as a pilot. (See the
decisions of the High Court in X
v the Commonwealth and HREOC and Qantas
v Christie on inherent requirements.)

Inherent requirements in the DDA

The constitutional foundations of the DDA include the Discrimination
(Employment and Occupation) Convention 1958 which provides that distinctions
based on the inherent requirements of a particular job are not to be regarded
as discrimination.

Section 15 of the DDA recognises accordingly that it is not unlawful
discrimination in employment to dismiss or fail to employ a person who
cannot perform the inherent requirements of the particular position.

Similarly section 19 of the DDA recognises that it is not discrimination
for a body that is empowered to confer, renew, extend, revoke or withdraw
an authorisation or qualification that is needed for or facilitates the
practice of a profession, the carrying on of a trade or the engaging in
of an occupation, to refuse, withdraw or place conditions on that authorization
if the person because of his or her disability, would be unable to carry
out the inherent requirements of the profession, trade or occupation.

This provision would appear to mean that so long as decisions that a
person's disability prevents them from performing safely are made correctly,
no unlawful discrimination will occur in implementing the existing or
proposed Civil Aviation Regulations regarding people with a disability
who are or wish to work as pilots as employees or otherwise as a professional
occupation.

CASA is concerned however that this provision may not extend to protecting
decisions by CASA regarding people who are or wish to be pilots (or who
hold or wish to hold other authorisation under the Civil Aviation Regulations)
but who do not do so as employees or as an occupation.

It might well be argued that whether or not DDA section 19 in its terms
would apply to such decisions, it would be consistent with the objects
of the DDA to grant an exemption so as to permit such decisions to be
made for non-professional pilots in the same manner as section 19 appears
to permit for professional pilots.

Such an exemption might appropriately be made subject to a condition
that it only applied to decisions made on reasonable grounds, so as to
ensure that a remedy remains for any instances of arbitrary or unnecessary
refusals of licenses.

Inherent requirements in the SDA

The Sex Discrimination Act does not refer to the Discrimination (Employment
and Occupation) Convention and does not rely on that Convention, rather
than the Convention on the Elimination of All Forms of Discrimination
Against Women (CEDAW), for its constitutionally valid application.
Its objects are accordingly required to be construed by reference to the
CEDAW convention first and foremost.

The CEDAW Convention does not use the concept of inherent job requirements.
However, in relation to pregnancy it does recognise (in article 11) that
some limitations on work by pregnant women may be justified, so long as
these are established on scientific grounds and regularly reviewed.

As noted above, the SDA gives some recognition in its substantive provisions
to the concept of inherent requirements, referring in section 30 to a
"genuine occupational qualification".

However, this section deals only with situations where it is a genuine
occupational qualification to be a person of a particular sex: not where
it is a genuine occupational qualification or inherent requirement to
be not pregnant, or not at a particular stage of pregnancy, or not to
have or to be at risk of a particular complication of pregnancy.

Exclusion of or restrictions on pregnant women pursuant to the Civil
Aviation Regulations would not appear to come within the strict terms
of the exception provided by SDA section 30 as presently drafted.

However it may be argued that an exemption would be consistent with the
spirit and purpose of this provision of the SDA.

It may also be argued that granting an exemption, pending legislative
or other clarification of the relationship between the civil aviation
safety regime and the SDA and DDA, to permit actions implementing the
Civil Aviation Regulations, does (despite appearances) promote the objects
of the SDA and DDA, on the basis that the effect of decisions under these
regulations is in fact to permit people with disabilities and pregnant
women to fly aircraft or to perform other civil aviation responsibilities
- when, absent such decisions being made to assess them as fit to fly,
the default position under the regulations would be to disqualify them.

In this respect it may be relevant that the Australian regulations, and
the proposed regulations, appear to direct attention more closely to a
person's actual fitness to perform relevant responsibilities than do the
relevant International Civil Aviation Organisation rules. The proposed
regulations do follow the recommendation in the ICAO rules in disqualifying
women beyond 30 weeks of pregnancy, but there is provision for a weekly
certificate to be issued up to 38 weeks allowing for continued flying.

Exemptions under the SDA may be made subject to conditions determined
by HREOC, as may exemptions under the DDA. It would be possible for an
exemption under either Act to be limited in its reach to protect only
those decisions made where there are reasonable grounds to conclude that
exclusion or restriction is necessary to protect aviation safety.

Comments are requested on whether granting an exemption in this matter
would be consistent with the objects of the DDA or the SDA

Should an exemption be granted irrespective of consistency
with the objects of the DDA or SDA?

If an exemption in this matter is not regarded as consistent with the
objects of the SDA and/or the DDA it may still be necessary to consider
whether an exemption should nonetheless be granted. Although HREOC's policy
is that exemptions as an exercise of statutory power should be consistent
with the objects of the enabling Act in each case, HREOC is also required
to consider each applications on its merits.

Exemptions have not to date been granted by HREOC under either Act simply
on the basis that compliance with the legislation as written would be
inconsistent with other public policy objectives.

There is, however, an instance where an exemption was granted on this
basis, not by HREOC but by the Administrative Appeals Tribunal overruling
HREOC's refusal of an exemption for the lead industry, in BHAS
v HREOC (AAT 5 June 1990) to permit that industry to continue excluding
women from certain positions on the basis of risks to reproductive health.

Without necessarily endorsing the result in that case (since HREOC's
view was and is that health and safety should be protected by non-discriminatory
means wherever possible, for the benefit of all persons concerned, rather
than by exclusion of particular groups except as a last resort), it appears
clear from this decision that HREOC in exercising its exemption power
must take into account the limitation in the objects of both the DDA and
the SDA to elimination of discrimination "as far as possible".

The AAT decision indicates that it may be appropriate to grant an exemption
where the SDA or DDA as passed do not permit, or do not sufficiently clearly
permit, actions to prevent a sufficiently significant risk of some serious
harm.

It is clear that a significant risk of serious harm may arise from a
pilot or other person in a position of responsibility in aviation being
or becoming incapacitated in performing their responsibilities.

It also appears clear that some disabilities may involve, or lead to,
incapacity to carry out the relevant responsibilities safely. It is by
no means as clear that pregnancy in itself presents any comparable risk,
but it may be conceded that some complications of pregnancy, or the onset
of labour, will not be consistent with safe conduct of the responsibilities
of a pilot.

Comments are requested on whether HREOC ought to grant exemptions from
the SDA and DDA in this matter on the basis that the objectives of the
Civil Aviation Regulations ought to be given precedence over the terms,
or over the objects, of the SDA and DDA.

Is there an arguable case of unlawful discrimination
to require an exemption?

HREOC, in common with decision makers exercising comparable powers under
other Australian anti-discrimination laws (see for example the decision
of the Victorian Equal Opportunity Tribunal in Re
Doveton North Primary School) will not grant an exemption where it
is unnecessary - that is, where there is not at least an arguable case
that unlawful discrimination will otherwise be found.

As discussed earlier in this notice, whether or not the Civil Aviation
Regulations (current or proposed) are consistent with the objects of the
SDA and the DDA, there appears scope for inconsistency to be found between
the substantive provisions of these Acts and the regulations.

However, it may be argued that any discrimination is in the Civil Aviation
Regulations rather than in actions by persons acting pursuant to those
regulations, in requiring people with disabilities and pregnant women
to have their fitness to fly (or to hold other licenses under those regulations)
assessed or in refusing a license.

HREOC and the Federal Court have decided on a number of occasions that
no act of unlawful discrimination can be found against a person where
he or she had no discretion but to act as he or she did.

If this were all that there was to be said in this matter there would
be no arguable case of discrimination to deal with under the SDA or DDA
and no further basis for considering a need for exemption.

However, as seen in the Victorian IVF case, where a lack of discretion
results from another law, this conclusion only stands if the other law
is not overridden by the SDA or DDA.

CASA is concerned that the Civil Aviation Regulations and the proposed
revision of those regulations may be repealed by the DDA - since the DDA
is a later law than the Civil Aviation Act 1988, and later laws made by
the same legislature prevail over earlier if there is inconsistency.

CASA does not regard the Civil Aviation Regulations made later than the
DDA as overriding the DDA in this area if the two are inconsistent, since
primary legislation (such as the DDA) generally prevails over delegated
legislation (such as regulations) unless the enabling legislation (in
this case the Civil Aviation Act) says otherwise, which in this case it
does not.

Comments are requested on whether there is a substantial risk of reasonable
safety decisions under the Civil Aviation Regulations being found unlawfully
discriminatory so as to justify an exemption under the SDA and/or DDA.

Are there conditions which should be imposed on the
granting of an exemption in this matter?

Section 44 of the SDA and section 55 of the DDA permit HREOC to impose
conditions on the granting of a temporary exemption. An exemption on conditions
may be consistent with the objects of the legislation where an unconditional
exemption would not. For example in a number of cases HREOC has granted
exemptions under the DDA to public transport operators on condition that
the operator agree to and implement actions to increase access for people
with disabilities during the life of the exemption.

If it were found appropriate to grant an exemption in this matter, possible
conditions might include

• conditions designed to ensure that decisions to restrict or refuse
  licenses for people with disabilities or pregnant women are made accurately
  or reasonably based on evidence
• requirements for CASA to take account of current and expert opinion
  (noting the reference in the CEDAW Convention to the need for any restrictions
  on work by pregnant women to be regularly reviewed in the light of scientific
  developments)
• conditions to ensure accountability for decisions made - such as publicly
  and regularly reporting to HREOC on decisions made under the exemption.

Comments are requested on what conditions might be appropriate to impose
if an exemption in this matter were granted under the SDA and/or the DDA.