Notice of refusal of temporary exemption
under the DDA: Regional Airlines Association of Australia

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 the Regional Airlines
Association of Australia.

Decision
of the Commission

The
Commission decided to refuse the exemption.

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
for decision on exemption application: Regional Airlines Association of
Australia

In
March 1999 HREOC received an application by the Regional Airlines Association
of Australia (RAAA), on behalf of its member airlines, for an exemption
for a period of five years from sections 23 and 24 of the Disability Discrimination
Act, so far as they concern carriage of persons using wheelchairs or other
mobility aids, where the constraints of aircraft or boarding systems prevent
boarding and carriage consistent with safety requirements for staff or
passengers.

Considerably
more time has passed since this application was lodged than is generally
aimed for or achieved by HREOC's disability discrimination policy section
in presenting exemption matters for decision by the Commission. The unusual
delay in this case is referable to the particular history of this matter.

In
its application,  the applicant association noted its expectation
that

"the
Commission's consideration of the application in conjunction with consumers
and other interested parties will assist in identifying in more detail
reasonable steps to be undertaken to deal with relevant constraints,
those constraints which remain unavoidable during the life of the exemption
and perhaps beyond, and other appropriate conditions and limits of an
exemption."

It
is entirely appropriate and reasonable for an applicant for exemption
to seek to use HREOC's processes to identify appropriate conditions on
an exemption so as to achieve progress towards the objects of DDA. The
Melbourne Trams matter, in which in response to comments made during HREOC's
processes the Victorian Government modified its Action Plan and brought
forward by a number of years its commitment to make trams accessible,
provides a positive example in this respect. However, on this occasion
HREOC's  process cannot be said to have succeeded in identifying
conditions on which it would be appropriate for this exemption to be granted.

In
accordance with HREOC's policy and practice on DDA exemption applications,
a notice of inquiry was issued and submissions sought. The notice of inquiry
sought comment on issues as follows:

• specific features
  of aircraft and/or boarding systems preventing boarding and/or carriage
  of persons using wheelchairs or other mobility aids
• features of aircraft
  and/or boarding systems which, while not absolutely preventing boarding
  or carriage, prevent persons using wheelchairs or other mobility aids
  boarding or travelling with equal convenience, comfort, dignity or safety
  to other passengers
• how far removal
  of these barriers is technically possible within currently available
  technology and design
• impact of relevant
  safety requirements
• whether the DDA
  should be regarded in any relevant circumstances as requiring substitution
  of larger aircraft on a particular route or particular flights to overcome
  access limitations of smaller aircraft
• costs involved in
  relevant barrier removal and relationship of these costs to revenue
  and viability of services, including any increase or decrease in revenue
  reasonably to be expected from modifications (to aircraft, other facilities,
  or staffing or other service delivery features) to achieve accessibility
• trials or studies
  (already undertaken or proposed during the life of the exemption sought)
  to examine means for eliminating or reducing barriers to equal access
  to relevant aircraft services, including consultation processes involving
  people with a disability
• measures undertaken
  or proposed to achieve non-discriminatory access consistent with the
  objects of the DDA to relevant aircraft services more generally.

The Association proposed in a subsequent letter to HREOC (29 July 1999)
that the exemption sought should apply when any two or more of the following
criteria are present:

• No
  flight attendant
• Non-retractable
  seat armrests
• Unable
  to be accessed by a passenger lifting device
• Nil
  access to seat via modified wheelchairs due to aisle width
• Available
  space prohibits the safe manual handling / manipulation of disabled
  passenger
• Remote
  location.

It
is fair to say that limited input addressing these issues specifically
was received.

Fourteen
submissions were received, from a range of organizations and individuals
in the disability community and from organizations in regional Australia.
These indicated a range of concerns and opposed granting of an exemption
in the terms applied for.

A number
of submissions reflected views that, first, the exemption was concerned
with permitting reductions in existing levels of accessibility and, second,
that exemptions were on principle inimical to the objects of the DDA.
I do not believe that the first view reflects the RAAA's intention in
bringing this application, and reject the second view as simply wrong.
However, several submissions raised more substantial issues.

The
Australian Quadriplegic Association's submission stated:

While
we acknowledge that the design of some smaller planes may prevent wheelchair
access at the present time, we believe it should still be possible without
unreasonable cost to provide access on certain types of aircraft and
at certain airports. However, the application does not specify what
services would be affected if the exemption were granted. Nor does it
provide any suggestions for a way forward.

The
submission from People with Disabilities NSW states:

We
do not question the right of RAAA to try and find ways to clarify and
codify its members' responsibilities in a systemic way, rather than
having to construct possible defences of unjustifiable hardship in individual
cases. We cannot, however, support such a strategy when it may result
in a wholesale reduction of the rights and benefits some of our members
currently have.

.
It is our belief that the only possible justification for granting an
exemption is to give service providers a period of time within which
they would address discriminatory practices. This means that, short
of unjustifiable hardship, service providers should:

• Obtain
  and implement world best practice technical means of providing access
  to aircraft in a dignified manner.
• Make
  all possible alterations to existing small aircraft to facilitate
  ease of access.
• Work
  out with people with disability and manufacturers design specifications
  to ensure best possible access to small aircraft on order.
• Develop
  and provide training to staff to ensure their health and safety needs
  are met whilst at the same time providing access.

HREOC
undertook some research of its own on relevant issues. However, resources
available for this purpose are limited. In my view (and taking into account
the comments made by the Administrative Appeals Tribunal in the Sex Discrimination
Act exemption decision Re:
Broken Hill Associated Smelters Pty Ltd and The Human Rights and Equal
Opportunity Commission),
HREOC should also reluctant to seek to set conditions which are not based
on the realities of the industry concerned and which may not be achievable
in practice.

This
issue may be particularly relevant where the application is made on behalf
of a number of organizations, whose ability or preparedeness to comply
with conditions not proposed by or negotiated with them may vary.

Of
course, this should not be taken to mean that industry wide exemption
applications should be discouraged. If a conditional exemption can deliver
progress in achievement of the objects of the DDA, then the more broadly
this progress is delivered the better. There may indeed be instances where
an industry wide approach is the most feasible means of delivering the
results sought (for example if an element of an exemption application
were the members of an industry agreeing to submit disputes on disability
discrimination issues to arbitration by an independent expert body).

In
my view it is desirable that a decision in this matter be made without
further delay. Decisions which are as prompt as possible are desirable
so that if applicants or other parties affected disagree with HREOC's
view they may seek to have the decision reviewed by the AAT, rather than
possibly being compelled to approach the Federal Court to seek a remedy
in the nature of an order of mandamus to require a decision to be made.

I recommend
that this exemption application be declined.

I note
that the RAAA or each or any of its members separately is free to make
a revised application. Indeed, Kendell Airlines has done so and I have
recommended to HREOC that Kendell's application should be granted on certain
conditions which have been proposed by or agreed to by Kendell. 

GRAEME
INNES AM

Deputy Disability Discrimination Commissioner

17 August 2000