Notice 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