Recommendation for further temporary exemption: Airnorth

On 14 September 2005 the Commission received an application for temporary exemption under section 55 of the DDA regarding carriage of passengers with disabilities on low capacity aircraft, from Capiteq Ltd, trading as Airnorth.

The application requests 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 three 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.

This application follows an exemption granted in October 2003 in precisely similar terms.

The exemption requested is proposed by the applicants to be conditional on Capiteq Limited:

• Continuing to provide the Greater Freedom Fare as has been provided for the last two years (in effect, a two for one fare where a person would not be able to travel without an assistant).
• Reporting 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 at a periodicity set by the Commission.
• Reporting on any technical solutions which may be feasible to difficulties in passengers with disabilities boarding and being seated safely as and when they become apparent.

Call for submissions

In accordance with Commission policy on exemption applications under the DDA, a notice of inquiry and call for submissions was issued on 26 September.

One submission was received, from the Accessible Public Transport Jurisdictional Committee (APTJC), a body which the Commission is required under the DDA and its Regulations to consult before making decisions on applications for exemption in relation to the Disability Standards for Accessible Public Transport. A requirement to consult does not of course mean that the Commission is required to follow APTJC's views, only to give them due regard.

APTJC recommends that the following occur:

• A further temporary exemption should be granted to Airnorth.
• Airnorth should consult with other airlines and aircraft manufacturers, that are providing access for people with disabilities to small aircraft.
• The Australian aviation industry should be encouraged to lobby manufacturers to consider access for people with disabilities when constructing aircraft.

Issues

In my view the discussion of the issues in my recommendation to the Commission in favour of granting the initial exemption to AirNorth in 2003 remain relevant. That recommendation is attached for reference and also remains available at http://www.humanrights.gov.au/disability_rights/exemptions/airnorth/rec.htm .

The only additional issue which appears to arise in this application is whether, being an application for a second exemption in the same terms as an exemption previously granted to the same applicants, an exemption in this matter would have the temporariness of purpose which the Commission, in common with other decision makers exercising similar powers under other Australian anti-discrimination laws, has thought required for appropriate use of the power to grant temporary exemptions; or whether a second exemption in this matter would instead simply certify that the existing state of affairs may continue due to technical constraints and occupational health and safety issues (which might be viewed as establishing an unjustifiable hardship defence into the indefinite future).

A critical point in establishing the temporariness of purpose of the exemption granted by the Commission in October 2003 was the requirement for AirNorth to report on possible technical solutions to difficulties in passengers with disabilities boarding and being seated safely.

AirNorth's application indicates that they have been unable to identify any technical developments during the exemption period which would remove the need for a further exemption.

However, during the submission period the Australian Federation of Disability Organisations advised (by phone rather than by way of formal submission) that there had been promising progress in trials by another airline (Qantas) of new hoist systems to assist in boarding and transfer within smaller aircraft.

In my view it would be appropriate to extend a further exemption to AirNorth on the conditions they propose, but with the additional condition in point 3 as proposed that reporting on technical solutions occur each 3 months (rather than only at the 12 month point) and specifically include reporting on applicability of solutions similar to those being trialled by Qantas.

I also recommend that rather than exemption being granted for 3 years as requested, an exemption be granted for 2 years only. This would align the expiry of the exemption with the point at which the 5 year review of the Disability Standards is due to occur, which should provide an opportunity for broader review of the relationship between occupational health and safety and access requirements in the circumstances of small aircraft and for removal of the need for this relationship to be approached through repeated applications to the Commission for temporary exemptions.

Graeme Innes AM

Disability Discrimination Commissioner