Temporary exemption : REX Airlines

Legal

Temporary exemption : REX Airlines

HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION

DISABILITY DISCRIMINATION ACT 1992 (Cth), Section 55(1)

By this instrument, the Human Rights and Equal Opportunity Commission (‘the Commission') grants a temporary exemption to Regional Express (“REX”) pursuant to section 55(1) of the Disability Discrimination Act 1992 (Cth) in relation to airline services operated by REX.

DECISION OF THE COMMISSION

The Commission

grants exemptions as set out in schedule 1 and
decides to decline requests for exemption as set out in schedule 2.

CONSIDERATION AND REASONS

In making its decision, the Commission relied upon the following documents available on its website:

The application from REX
Submissions provided by other persons and organisations.
A recommendation provided by its Director of Disability Rights policy (attached as schedule 3).

The Commission adopts the reasoning provided in this recommendation, which sets out the Commission's consideration of this application.

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.

Dated this 10th day of October 2008

Signed by Commissioner Graeme Innes AM, on behalf of the Commission

SCHEDULE 1: Exemptions granted

1.1 Requirement for notice of whether passenger will require staff assistance in transferring

The Commission grants an exemption from the operation of sections 23 and 24 of the Disability Discrimination Act 1992 , for the period to 13 October 2013, as follows:

REX may require passengers requiring staff assistance in transferring from a mobility aid to an aisle chair or from an aisle chair to an aircraft seat to provide reasonable notice of this requirement, on the conditions that

REX consults within 3 months from the date of this exemption with the Australian Federation of Disability Organisations on applicable notice requirements, and reports to the Commission within 6 months from the date of this exemption on the results of this consultation; and
REX implements its proposal to permit passenger facilitators to assist in transferring.

1.2. Passengers unable to understand instructions

The Commission grants an exemption from the operation of sections 23 and 24 of the Disability Discrimination Act 1992 , for the period to 13 October 2013, as follows:

REX may require that a passenger be accompanied by a companion if the passenger is unable to understand instructions from the flight crew on condition that:

REX takes all reasonable measures in the circumstances to enable passengers to receive and understand instructions; and
where an accompanying person is required the accompanying person is carried at the lowest fare applicable to the flight, regardless of the availability of that fare.

1.3 Passengers requiring administration of medication, assistance in eating or in going to the toilet

The Commission grants an exemption from the operation of sections 23 and 24 of the Disability Discrimination Act 1992 , for the period to 13 October 2013, as follows:

During the exemption period REX is not required to provide staff assistance on board:

(a) for passengers in going to the toilet, beyond assisting passengers to and from the toilet door; or

(b) in eating and drinking, other than by opening packages, identifying items and cutting large portions, and providing drinking straws;

on condition that where a passenger requires an assistant for these purposes REX provides travel for an assistant at the lowest applicable fare for the flight, regardless of the availability of that fare.

1.4 Safe lifting

The Commission grants an exemption from the operation of sections 23 and 24 of the Disability Discrimination Act 1992 , for the period to 13 October 2013, as follows:

During the exemption period REX is not required to provide transfer between mobility aids and aircraft seats by manual 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, on condition that:

REX trial the use of lifting devices and report to the Commission each 6 months during the exemption period on the results of trials;
REX trial use of sliding boards for transfer and report within 6 months from the date of this exemption on the results of trials;
REX staff continue to provide assistance to passengers in transferring where consistent with health and safety requirements;
REX conduct research in relation to safe lifting practices and report to the Commission within 6 months from the date of this exemption on the results of this research.

1.5 Time of check in

The Commission grants an exemption from the operation of sections 23 and 24 of the Disability Discrimination Act 1992 , for the period to 13 October 2013, as follows:

During the exemption period REX may require passengers travelling with a wheelchair or similar mobility aid to comply with a reasonable advance check in period, on condition that

REX consults within 3 months from the date of this exemption with the Australian Federation of Disability Organisations on advance check-in requirements applicable in different settings and reports to the Commission within 6 months from the date of this exemption on the results of this consultation
REX implements its proposal to permit passenger facilitators to assist in transferring.

1.6 Method of booking

The Commission grants an exemption from the operation of sections 23 and 24 of the Disability Discrimination Act 1992 , for the period to 13 October 2009, as follows:

REX may require passengers who need to give notice of a specific disability requirement in travelling to book using its phone booking service, on condition that (1) this involves no additional charges in comparison to online booking and (2) REX report within 6 months from the date of this exemption on its examination of upgrading of its online booking facility to include identification of disability related requirements.

1.7 De-activation of electric wheelchairs

The Commission grants an exemption from the operation of sections 23 and 24 of the Disability Discrimination Act 1992 , for the period to 13 October 2013, as follows:

During the exemption period REX may require that where a passenger will be travelling with an electric wheelchair or other powered mobility device, the passenger or an assistant or accompanying person on behalf of the passenger should deactivate the device for travel, or supervise or provide directions to REX staff to enable them to do so.

1.8 Wheelchair weights

The Commission grants an exemption from the operation of sections 23 and 24 of the Disability Discrimination Act 1992 , for the period to 13 October 2013, as follows:

During the exemption period REX may require passengers travelling with a wheelchair or other disability aid to provide reasonable advance notice of its size and weight, on condition that REX consults within 3 months from the date of this exemption with the Australian Federation of Disability Organisations on applicable notice requirements and reports to the Commission within 6 months from the date of this exemption on the results of this consultation.

SCHEDULE 2: DECISIONS TO DECLINE APPLICATIONS FOR EXEMPTION

2.1. Passengers unable to don a life jacket:

The Commission declines to grant the application for exemption in this respect.

2.2 Numbers of wheelchair using passengers on flights

The Commission declines to grant the application for exemption in this respect.

2.3 Number of wheelchairs per passenger

The Commission declines to grant the application for exemption in this respect.

2.4 Passengers with contagious diseases

The Commission declines to grant the application for exemption in this respect.

SCHEDULE 3: RECOMMENDATION FOR DECISION

Recommendation for decision on application for temporary exemption: REX Airlines

This is to recommend that an application for exemption made under section 55 of the Disability Discrimination Act 1992 (“DDA”) by and on behalf of Regional Express Airlines (“REX”) be granted in part, on conditions as set out below, and declined in part.

1. Summary of recommendations

1.1 Requirement for notice of whether passenger will require staff assistance in transferring

I recommend that an exemption from the operation of sections 23 and 24 of the DDA for a period of 5 years be approved as follows:

• REX consults within 3 months from the date of this exemption with the Australian Federation of Disability Organisations on applicable notice requirements, and reports to the Commission within 6 months from the date of this exemption on the results of this consultation; and

• REX implements its proposal to permit passenger facilitators to assist in transferring.

1.2 Passengers unable to understand instructions :

I recommend that the Commission grant an exemption from the operation of sections 23 and 24 of the DDA for a period of 5 years as follows:

REX may require that a passenger be accompanied by a companion if the passenger is unable to understand instructions from the flight crew on condition that:

• REX takes all reasonable measures in the circumstances to enable passengers to receive and understand instructions; and

• where an accompanying person is required the accompanying person is carried at the lowest fare applicable to the flight, regardless of the availability of that fare.

1.3 Passengers unable to don a life jacket:

I recommend that an exemption should be declined in this respect.

1.4 Passengers requiring administration of medication, assistance in eating or in going to the toilet

I recommend that an exemption from the operation of sections 23 and 24 of the DDA be approved as follows:

For a period of 5 years REX is not required to provide staff assistance on board:

(a) for passengers in going to the toilet, beyond assisting passengers to and from the toilet door; or

(b) in eating and drinking, other than by opening packages, identifying items and cutting large portions, and providing drinking straws;

1.5 Safe lifting

I recommend that an exemption from the operation of sections 23 and 24 of the DDA for a period of 5 years be approved as follows:

REX is not required to provide transfer between mobility aids and aircraft seats by manual 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, on condition that:

• REX trial the use of lifting devices and report to the Commission each 6 months during the exemption period on the results of trials;

• REX trial use of sliding boards for transfer and report within 6 months from the date of this exemption on the results of trials;

• REX staff continue to provide assistance to passengers in transferring where consistent with health and safety requirements;

• REX conduct research in relation to safe lifting practices and report to the Commission within 6 months from the date of this exemption on the results of this research.

1.6 Time of check in

I recommend that an exemption from the operation of sections 23 and 24 of the DDA for a period of 5 years be approved as follows:

REX may require passengers travelling with a wheelchair or similar mobility aid to comply with a reasonable advance check in period, on condition that

• REX consults within 3 months from the date of this exemption with the Australian Federation of Disability Organisations on advance check-in requirements applicable in different settings and reports to the Commission within 6 months from the date of this exemption on the results of this consultation

• REX implements its proposal to permit passenger facilitators to assist in transferring.

1.7 Method of booking

I recommend that an exemption from the operation of sections 23 and 24 of the DDA be approved as follows:

For a period of 12 months REX may require passengers who need to give notice of a specific disability requirement in travelling to book using its phone booking service, on condition that (1) this involves no additional charges in comparison to online booking and (2) REX report within 6 months from the date of this exemption on its examination of upgrading of its online booking facility to include identification of disability related requirements.

1.8 De-activation of electric wheelchairs

I recommend that an exemption from the operation of sections 23 and 24 of the DDA for a period of 5 years be approved as follows:

REX may require that where a passenger will be travelling with an electric wheelchair or other powered mobility device, the passenger or an assistant or accompanying person on behalf of the passenger should deactivate the device for travel, or supervise or provide directions to REX staff to enable them to do so.

1.9 Wheelchair weights

I recommend that an exemption from the operation of sections 23 and 24 of the DDA for a period of 5 years be approved as follows:

REX may require passengers travelling with a wheelchair or other disability aid to provide reasonable advance notice of its size and weight, on condition that REX consults within 3 months from the date of this exemption with the Australian Federation of Disability Organisations on applicable notice requirements and reports to the Commission within 6 months from the date of this exemption on the results of this consultation.

1.10 Numbers of wheelchair using passengers on flights

I recommend that the application for exemption be declined in this respect.

1.11 Number of wheelchairs per passenger

I recommend an exemption be declined in this respect.

1.12 Passengers with contagious diseases

I recommend that an exemption be declined in this respect.

2. Application

The Commission received an application (“the initial application”) in October 2007 from REX, requesting exemption from sections 23 and 24 of the DDA so far as to permit REX placing certain restrictions and requirements on the carriage of passengers with specific disabilities on its SAAB aircraft.

The restrictions proposed in the initial application are set out at Appendix 1, rather than at this point, since as noted below REX has subsequently submitted a significantly revised application (“the application”) in response to issues raised in submissions received.

In turn, the exemption I recommend is significantly more restricted at most points than that applied for.

3. Inquiry and Submissions

In accordance with the Commission's policy on exemption applications, a notice of inquiry was published seeking submissions by 5 December 2007 .

Ten submissions were received indicating opposition to the initial application. These submissions are available on the Commission's website. Points made in submissions are discussed below by reference to particular issues.

The Accessible Public Transport Jurisdictional Committee (APTJC), with which the Commission is required to consult in relation to exemptions regarding the Disability Standards for Accessible Public Transport (DSAPT), was also invited to comment, but declined this invitation. The APTJC noted that REX had applied only for exemption from sections 23 and 24 of the DDA, and had expressly disclaimed any intention of applying for exemption in relation to the DSAPT.

4. Response and revised application by REX

REX was offered, and accepted, an opportunity to consider issues raised in submissions prior to the Commission making a decision.

On 23 May 2008 REX submitted a revised application including the following (with underlining indicating amendments from the initial application):

REX seeks to amend its Application to read as follows:

Requirement for a Facilitator

If the wheelchair dependant passenger cannot assist him/herself to move between their own wheelchair and the REX aisle chair and between the aisle chair and the aircraft seat, a Passenger Facilitator (provided by the passenger) may be provided to attend both the departure and destination airport to assist with moving the wheelchair passenger between the wheelchair and the aisle chair and between the aisle chair and the aircraft seat. Facilitators are not required to travel with the passenger and there is no additional financial burden on the passenger. If the passenger is unable to provide a Passenger Facilitator at either or both airports, the passenger must advise REX during booking to allow sufficient time for REX to source and deploy resources to assist the passenger .

Requirement for a Companion

If the passenger is unable to understand and follow safety directions (written, pictorial or verbal), is unable to don a life vest, requires the application of medication in flight, or requires assistance to the toilet or to eat, a companion is required to travel with the passenger. If the passenger's only restriction is the inability to attend the toilet , eat or drink unaided, a companion is not required if the passenger elects to forgo catering during booking and advises that a toilet requirement would not normally be required for the duration of the flight .

To help with the costs of this requirement, REX will provide the lowest fare applicable to the flight, regardless of availability of that fare, for the companion.

Wheelchair dependant passengers who are able to assist in the transfer between their own wheelchair and the aisle chair and between the aisle chair and the aircraft seat by bearing weight using their upper torso and arms will be carried without the requirement for a companion to travel with them or the requirement for a passenger facilitator to assist at the departure and destination airports.

Scheduling Requirements

Wheelchair dependant passengers must check-in no later than 45 minutes prior to the scheduled departure time at regional airports and 60 minutes prior to the scheduled departure time at capital city airports to allow sufficient time to prepare the wheel chair for carriage and to board the passenger without unduly delaying the flight.

All flight bookings must be made with the REX Customer Contact Centre on 131713 to ensure that all special requirements are notified to the airline in the proper manner. The weight of the chair will have to be notified to REX during booking. No extra charge is applicable to this service. Bookings for disabled persons cannot be made on the REX website.

Wheelchair dependant passengers will be required to book at least two days in advance of the flight to enable REX to make all necessary preparations.

Disabling Electric Wheelchairs: Dangerous Goods Regulations

Passengers with electric wheelchairs must either disable their own electric wheelchair or supervise REX staff in disabling and reactivating the wheelchair after their transfer to an aisle chair. This will ensure that the chair will not be activated in the aircraft hold and, if the batteries are of a type that are required to be disconnected due to Dangerous Goods Regulations, they are disconnected and reconnected in a manner that will not damage the chair.

Wheelchair Weights

Wheelchairs less than 64Kg in weight may be carried with no restrictions. Wheelchairs weighing between 64Kg and 140Kg require approval from REX to ensure that sufficient capacity is available on the requested flight. If sufficient capacity is not available, alternative flight arrangements will be discussed. REX will not carry a wheelchair in excess of 140Kg.

REX will limit the number of wheelchair passengers per regular public transport flight to two. If either or both passengers have chairs between 64Kg and 140Kg approval from REX must be obtained to ensure that the flight has sufficient carrying capacity.

REX will carry one chair per passenger free of charge. Any additional chairs will be carried as excess baggage and will be subject to the excess baggage conditions.

Contagious Diseases

REX will not carry a passenger with a prescribed contagious disease unless notification is provided from a doctor stating that the person is fit to fly and poses no danger of infecting the crew or other passengers in the aircraft.

REX argues in support of its application that:

• it is not seeking to avoid its responsibilities under the DDA through this Application, but to achieve the Act's objectives within the constraints of its fleets infrastructure, size, and staff capacity

• REX recognises the temporary nature of the exemption and intends to utilize the exemption period to achieve a series of action plan objectives to improve opportunities for passengers with disability to travel

• it is not REX's intention to stop carrying passengers with special needs, but to ensure that it does so with comfort, convenience and dignity.

5. Previous exemption decisions by the Commission on related issues

REX refers to exemptions previously granted in the aviation area:

1. to Kendell Airlines in 2000, in relation to:

(a) 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; and

(b) Requirements 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 (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) ; and

2. exemptions granted to Airnorth in 2003 and 2006, in relation to:

(a) 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; and

(b) Imposition on intending passengers of requirements for notice of disability access needs, where notice required is reasonable in the circumstances.

In my view, REX (and a number of persons and organisations making submissions on this application) are correct in indicating that previous decisions by the Commission on exemption applications provide guidance on decisions that the Commission may make in this matter. This is not, of course, to say that previous decisions on exemption applications constitute binding precedents constraining the ability of the Commission to make appropriate decisions in the circumstances of each application. In particular, decisions by the Commission on similar applications might differ due to

• different considerations brought to the Commission's attention by applicants and by other parties making submissions; and

• differences in the impact an exemption would have, including in relation to measures applicants are prepared to undertake to achieve the objects of the DDA during the exemption period and how far requested points of exemption in each case constitute part of a broader plan of action calculated to improve access over time.

The relevance of previous decisions to specific issues is discussed later in this recommendation.

6. General issues raised by submissions

6.1 Unjustifiable Hardship and Applicable Legislation

A number of submissions responding to the initial application suggested an exemption should not be granted, on the basis that REX can rely on a defence of unjustifiable hardship in any instance where failure to comply with the terms of sections 23 or 24 of the DDA or of the DSAPT is justifiable.

In response, REX adopts the comments made by the Commission in its decision on the Kendell Airlines exemption: that the objects of the DDA are better served if organisations bring forward measures in the context of the exemption process rather than “elect instead to defer any positive action until successful complaint action is taken against them”.

In my view the principle thus stated by the Commission remains the correct one to apply.

However it is also necessary to re-emphasise the view adopted by the Commission on a number of occasions, that it would not be a proper use of the Commission's power to grant temporary exemptions simply to certify that a particular action would involve unjustifiable hardship.

Rather, factors which would be relevant to establishing a defence of unjustifiable hardship in response to a complaint may also be relevant to establishing that it would be appropriate to grant an exemption on condition that the applicant undertake positive measures specified by the exemption.

6.2 Exemption only from sections 23 and 24 and not from the DSAPT

Some submissions argued that an exemption if granted only in relation to section 23 and 24 would be futile, since complaints could still be made by reference to the DSAPT.

The Commission, in previous decisions and in its published policy on applications for temporary exemption, and in common with other bodies with responsibility for determining applications for temporary exemption under Australian discrimination laws, has indicated that it will not grant an exemption where it would be futile to do so.

It is clearly the case that REX would receive more limited protection through an exemption from sections 23 and 24 as sought than from an exemption also dealing with potential liability by reference to the DSAPT. This does not however mean that such an exemption would be futile. Although an act in accordance with a provision of the DSAPT is, by virtue of DDA section 34, lawful for the purposes of the DDA, the DSAPT as currently framed do not, and do not purport to, provide an exhaustive code of what is and is not discrimination for the purposes of the DDA and thus do not exclude all possible application of sections 23 and 24.

It is appropriate to note that nothing in this recommendation depends on the exemption applied for being limited in this manner – that is, I would make the same recommendations regarding exemption in relation to the DSAPT were that applied for.

6.3 Issues outside the purview of the DDA?

Some submissions, including a detailed submission from the Cairns Community Legal Centre, argued that exemptions regarding check-in times, low cost fares and excess baggage charges are not within the purview of the DDA and therefore should not be the subject of an exemption.

The Commission has indicated, both in its published policy on applications for temporary exemption and in previous decisions, that it will not grant an exemption where there is no arguable case that the action sought to be exempted would otherwise constitute unlawful discrimination.

In my view it is correct that there are a number of items within the application which, if considered alone, ought not to be regarded as instances of unlawful discrimination requiring exemption. As discussed below, however, not all of these matters should in fact be considered alone.

6.3.1 Passenger facilitator

In particular, the indications in the application that REX will permit, but not require, a passenger provided assistant or facilitator to assist with transfer between the passenger's own mobility device and an aisle chair, and between an aisle chair and aircraft seating, would not, considered alone, appear to involve any action that ought to be regarded as involving discrimination.

However, in my view it is not appropriate that this proposed procedure be considered alone, rather than in conjunction with other proposed measures, to which exception might be taken (and indeed is taken by submissions) as involving discrimination.

The proposal to permit a passenger provided assistant to assist with transfers is clearly put forward in association with, and as a means of minimising the impact of, requirements for staff assistance in transfer, not only for REX but on the passenger who would (on REX's proposal and on my recommendation consistent with previous decisions) be subject to a requirement to give reasonable notice of a requirement for assistance.

REX's application states:

If requested during booking, assistance will be provided to passengers to transfer from their wheelchair to the aisle seat, however, an option will now be available for a Passenger Facilitator to assist if so desired.

The revision of REX's application on this point, from an initial application which sought permission to require passenger provided facilitators, clearly indicates the benefit of the procedure by which the Commission seeks public comment on applications for exemption. Both the applicant and the Commission have had the benefit of cogent submissions on this point, including the detailed points made by Mr Dougie Herd, as well as the arguments of the Cairns Community Legal Centre, the Disability Council of NSW, the NSW Disability Discrimination Legal Centre and others.

6.3.2 Low cost fares

Similarly, REX's proposal to charge the lowest applicable fare for a journey for an assistant would not, considered alone, appear to involve discrimination. But it would be artificial and incorrect to insist that this proposal be considered alone, when it is put forward as a positive measure to reduce at least the financial impact of the proposal for REX to be permitted to require an assistant to accompany a person unable to understand or follow crew directions; or to eat unassisted; or to move to the toilet unassisted – which as discussed below I recommend should be accepted in part.

7. Recommendations and reasons

7.1 Requirement for notice of whether passenger will require staff assistance in transferring

I recommend that an exemption from the operation of sections 23 and 24 of the DDA for a period of 5 years be approved as follows:

• REX implements its proposal to permit passenger facilitators to assist in transferring.

As noted above, the grounds on which the Commission decided to granted exemptions to Airnorth, and also the Commission's decision granting an exemption on the same issue to the Australasian Railways Association, support granting of an exemption regarding requirements for reasonable notice of access requirements.

In his recommendation (which the Commission adopted) for the initial Airnorth exemption, then Deputy Disability Discrimination Commissioner Innes said:

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.

(http://www.humanrights.gov.au/disability_rights/exemptions/airnorth/rec…)

In this matter, similarly, I do not recommend that the Commission approve particular periods as reasonable but do recommend that REX be required to consult with the Australian Federation of Disability Organisations and report on that consultation to ensure as far as possible that airline procedures have regard to passenger expectations and that community expectations are informed by operational requirements.

7.2 Requirement to be accompanied by a companion

7.2.1 Passengers unable to understand instructions:

I recommend that the Commission grant an exemption from the operation of sections 23 and 24 of the DDA for a period of 5 years as follows:

REX may require that a passenger be accompanied by a companion if the passenger is unable to understand instructions from the flight crew on condition that:

• REX takes all reasonable measures in the circumstances to enable passengers to receive and understand instructions; and

• where an accompanying person is required the accompanying person is carried at the lowest fare applicable to the flight, regardless of the availability of that fare.

As noted above, in my view the reasons for the exemption previously granted by the Commission to Kendell Airlines regarding unaccompanied passengers unable to understand instructions from flight crew supports granting of an exemption on this matter to REX.

In his recommendation for decision on the Kendell Airlines application, which the Commission adopted, Deputy Commissioner Innes said:

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.

(http://www.humanrights.gov.au/disability_rights/exemptions/kendell/kend…)

The same reasons in my view apply in the present matter.

However, experience since 2000, when the Kendell Airlines decision was made by the Commission, indicates that it would be desirable to make clear that a passenger should only be regarded as unable to understand instructions if they remain so despite all reasonable measures being taken to ensure that instructions can be understood. In particular I think it is likely that where a deaf blind passenger can read instructions in Braille, it would be reasonably possible to provide safety instructions in that format, at least where the airline is alerted to this requirement in advance.

7.2.2 Passengers unable to don a life jacket:

REX requested an exemption to permit them to require a companion for a passenger unable to don a life jacket unassisted. I recommend that an exemption should be declined in this respect.

As noted above the exemption granted to Kendell Airlines regarding emergency situations where there is no cabin attendant do not provide support for the granting of an exemption to REX regarding situations where a cabin attendant is present.

This does not involve the Commission making a decision one way or the other on REX's arguments regarding safety requirements, but rather a view that such a decision would be more appropriately made legislatively (through review of civil aviation safety regulations and of the DSAPT) or if necessary judicially rather than administratively, and on the basis of fuller evidence and argument than is available to the Commission at this point.

In particular, the Commission in the present matter does not have before it evidence on whether air safety requirements in this respect could or could not be met by requesting passengers to assist (as is the practice for activation of emergency exits by passengers seated in exit rows).

7.3.3 Passengers requiring administration of medication, assistance in eating or in going to the toilet

I recommend that an exemption from the operation of sections 23 and 24 of the DDA be approved as follows:

For a period of 5 years REX is not required to provide staff assistance on board:

(a) for passengers in going to the toilet, beyond assisting passengers to and from the toilet door; or

(b) in eating and drinking, other than by opening packages, identifying items and cutting large portions, and providing drinking straws;

on condition that where a passenger requires an assistant for these purposes REX provides travel at the lowest applicable fare for the flight for an assistant, regardless of the availability of that fare.

Submissions including from the Australian Federation of Disability Organisations suggest that an exemption is not required on this issue and that REX should instead make it clear that staff assistance will not be available for the administration of medication in flight or in eating or using toilet facilities.

Although in my view it is likely that the argument is correct that REX would not be discriminating unlawfully in limiting staff assistance in these areas, I do not think that this conclusion is certain beyond argument such that an exemption can be regarded as so clearly unnecessary that it ought to be refused on that basis. A consideration in favour of granting an exemption to confirm what may well be the position already under the DDA, is that REX are prepared in return to undertake the positive measure of offering the cheapest fare possible to an accompanying person or assistant where required to provide assistance in these areas.

Having regard to concerns expressed in submissions, I recommend that an exemption should refer to limiting staff assistance in these areas rather than excluding passengers who require it. I consider that the submission from the Public Interest Advocacy Centre correctly identifies the boundaries of staff assistance which ought to be expected: assistance to and from the toilet door, but to not carry someone or assist with personal care in the toilet; and assistance with meals by opening packages, identifying items and cutting large portions, but not assisting someone to eat a meal or drink.

7.4 Safe lifting of passengers

I recommend that an exemption from the operation of sections 23 and 24 of the DDA for a period of 5 years be approved as follows:

• REX trial the use of lifting devices and report to the Commission each 6 months during the exemption period on the results of trials;

• REX trial use of sliding boards for transfer and report within 6 months from the date of this exemption on the results of trials;

• REX staff continue to provide assistance to passengers in transferring where consistent with health and safety requirements;

• REX conduct research in relation to safe lifting practices and report to the Commission within 6 months from the date of this exemption on the results of this research.

As noted above, the reasons for the exemptions previously granted (on conditions in each case) to Kendell Airlines and Airnorth, regarding lifting of passengers who cannot be safely lifted, support the granting of such an exemption to REX in this instance, subject to appropriate conditions requiring provision of assistance in transferring other than by lifting, and the conduct of and reporting to the Commission on trials of the “Eagle Lifter” as an alternative to manual lifting of passengers.

In his recommendation to the Commission for the initial exemption to Airnorth, then Deputy Disability Discrimination Commissioner Innes said:

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.

: http://www.humanrights.gov.au/disability_rights/exemptions/airnorth/rec…

7.5 Time of check in

I recommend that an exemption from the operation of sections 23 and 24 of the DDA for a period of 5 years be approved as follows:

REX may require passengers travelling with a wheelchair or similar mobility aid to comply with a reasonable advance check in period, on condition that

• REX implements its proposal to permit passenger facilitators to assist in transferring.

In my view the Commission should not grant the applicant's request for an exemption permitting a requirement for a particular advance check in period for passengers requiring assistance or travelling with a mobility aid, but should instead grant an exemption permitting a requirement for a reasonable check in time.

As noted above in relation to requirements for notice of whether passenger will require staff assistance in transferring, t he reasons for which the Commission granted exemptions to Airnorth, and also the reasons for the Commission's decision granting an exemption on the same issue to the Australasian Railways Association, support granting an exemption regarding requirements for reasonable notice of access requirements.

I recommend that, as in these earlier decisions, an exemption should refer only to reasonable notice, rather than specifying particular notice periods as permissible.

I think it is likely that what is reasonable will vary according not only to differences between regional and capital city airports but also according to other factors such as the characteristics of wheelchairs and of aircraft, as well as the ease and speed with which particular passengers might be able to transfer and whether transfer is able to occur with or without staff assistance. I do not think in particular that the Commission has sufficient evidence to conclude that a passenger travelling with lightweight folding wheelchair should be required to comply with the same advance check in time as a passenger travelling with a heavy electric wheelchair requiring particular deactivation and loading procedures.

As with the recommended exemption on notice of requirements for assistance in transferring, I recommend that an exemption on this point should include a requirement of consultation with the Australian Federation of Disability Organisations and reporting on that consultation.

7.6 Method of booking

I recommend that an exemption from the operation of sections 23 and 24 of the DDA be approved as follows:

REX's application seeks permission to require that passengers using wheelchairs use its phone booking facility rather than booking online. This request is argued to be necessary in the interests of ensuring that disability needs are met.

In my view, there is not sufficient evidence to satisfy the Commission that phone booking only would provide equivalent or superior access to an upgraded online booking system.

It would, however, be consistent with the Commission's established approach to exemption applications to afford REX protection in this area for a limited period pending the results of its current examination of upgrading its online system.

7.7 De-activation of electric wheelchairs

I recommend that an exemption from the operation of sections 23 and 24 of the DDA for a period of 5 years be approved as follows:

REX requested an exemption to permit application of a requirement as follows:

Passengers with electric wheelchairs must either disable their own electric wheelchair or supervise REX staff in disabling and reactivating the wheelchair after their transfer to an aisle chair.

REX, in common with the Australian Federation of Disability Organisations, note the importance of disability aids being handled correctly to reduce risks of damage to expensive equipment on which passengers depend for mobility.

In my view an exemption on this issue would promote the objects of the DDA, by setting out how access is to be achieved rather than providing that it need not be achieved.

One submission (Ms A.Snow) objects to REX's proposal on this issue on the basis that some passengers with disability might be unable to assist in the required manner.

In November 2007 the Commission granted an exemption on the same issue to the Australasian Railway Association, which made clear that direction may be provided either in written form or through another person on behalf of the passenger, or the chair may be disabled by an assistant or accompanying person on behalf of the passenger. I recommend the same approach in this instance.

7.8 Wheelchair weights

I recommend that an exemption from the operation of sections 23 and 24 of the DDA for a period of 5 years be approved as follows:

I do not think it would be appropriate for the Commission to use the power to grant a temporary exemption to certify as correct REX's view that carrying wheelchairs between 64 and 140 kg may sometimes involve unjustifiable hardship, and that carrying wheelchairs over 140kg will involve unjustifiable hardship in all cases.

This is not to deny the strength of the arguments advanced by REX on the difficulties of accommodating larger mobility aids on their aircraft. It is (or should be) self evident that weight is a more significant factor in aviation than in other transport modes - since planes have to fly.

Permitting REX to require passengers wishing to travel with wheelchairs to give notice of the weight of the chair would facilitate timely discussion between airline and passenger on the options available to both parties, in the interests of enabling people with disability to travel and to do so without inconvenience or indignity as far as possible.

7.9 Numbers of wheelchair using passengers on flights

I recommend that the application for exemption be declined in this respect.

In my view this aspect of the application seeks resolution by way of exemption application what is in effect a claim of unjustifiable hardship without more, which might or might not succeed as a defence to a complaint or as an argument for review of the DSAPT but which is not a sufficient basis for an exemption.

The exemption which I recommend to permit REX to require reasonable notice of the weight of a wheelchair or similar mobility aid may assist REX in planning for appropriate aircraft loadings.

7.10 Number of wheelchairs per passenger

As already noted, REX seek an exemption to permit charging of excess baggage fees and restrictions where a passenger wishes to travel with more than one wheelchair. I recommend an exemption be declined in this respect.

Some submissions argued that an exemption on this point should be declined on the basis that that there is no arguable case of discrimination raised by a proposal to charge excess baggage rates for a second or further mobility aid for a passenger, and thus that an exemption would be unnecessary on this point. My recommendation is not based on these arguments. I note that other submissions in fact argue strongly that this would indeed involve discrimination.

It likely in my view that REX are not proposing any substantial diminution of existing rights in this area. However, it is difficult to identify any respect in which REX's proposals on this point constitute measures to reduce discrimination or achieve access over time in implementation of the objects of the DDA, rather than simply seeking to remedy current uncertainty in the law. For ease of reading of this recommendation, I have placed at Appendix 2 rather than here a short discussion of uncertainty in the application to this issue of sections 6 and 7 of the DDA as well as clause 30.1 of the DSAPT.

7.11 Passengers with contagious diseases

I recommend that the Commission decline an exemption on this point. This is because

• granting the requested exemption would not advance the objects of the DDA;

• the existing provisions of the DDA (i.e. section 48) already provide broader protection for appropriate measures to protect public health than the exemption proposed by REX.

REX seek an exemption to permit application of the following policy:

A number of submissions argue that there is excessive uncertainty regarding what would be regarded as a contagious disease.

REX in response submit that contagious diseases are prescribed by legislation and well known by medical practitioners.

DDA section 48 provides that the unlawful discrimination provisions of the Act (including those which give effect to Disability Standards including the DSAPT) do not render it unlawful for a person to discriminate against another person on the ground of the other person's disability if:

(a) the person's disability is an infectious disease; and

(b) the discrimination is reasonably necessary to protect public health.

The concept of “infectious” disease is broader than “contagious” disease: since while not all infectious diseases are so readily transmissible as to be contagious, all contagious diseases would be defined as infectious. This would be so whether or not they have yet been prescribed for this purpose under the law of any Australian jurisdiction.

Accordingly, section 48 of the DDA would permit REX and other airline operators to take reasonable measures to prevent spread of contagious diseases notwithstanding refusal of an exemption on this point. This exemption is unnecessary.

If the Commission nonetheless considers an exemption justified I recommend that any exemption in this area not be framed as requested by reference to a “prescribed” contagious disease.

There does not appear to be currently in place a single and comprehensive prescription of contagious diseases for the purposes of air travel in Australia .

Contagious diseases are prescribed under State laws – such as the Public Health Act 2005 (Qld) and the Public Health Regulation 2005 (Qld) - for the purposes of institutions such as child care and school facilities.

I do not think that the Commission should accept that measures which have been determined to be necessary in the context of child care and school facilities are automatically applicable to the conditions of air travel. The following comments from the Australian Transport Safety Bureau appear relevant in this respect:

The evidence suggests that passengers' health is not greatly at risk through air travel and widespread infections are unlikely. When infection transmission has been reported to have occurred in an aircraft cabin, it has required close contact with an infected passenger. This suggests that the risk of transmission within an aircraft cabin is no greater than in other crowded and confined spaces, provided circulation and filtration systems are working properly. More risk might be associated with other parts of a journey, including the time spent mixing with other passengers at the airport, or even on the journey to the airport.

…

Although the overall risk of transmission of infection in an aircraft cabin is low, passengers need to give sufficient thought to their fitness to fly – not only for their own health, but also for that of the other passengers who will be travelling with them. Information to assist passengers make more responsible decisions about whether or not to travel could be made more prominent.

The only way of eliminating any risk of transmission of infectious diseases within an aircraft cabin would be to prevent potentially infective passengers from flying. However, this is rarely feasible. Although airlines can refuse to fly passengers that they consider may obviously be a risk to others, the incubation period for most viral and bacterial infectious diseases is typically several days or even weeks (House of Lords, 2000). A person may travel during this period whilst highly infectious but the disease may not be obviously present. Furthermore, some passengers may have been in contact with an infectious disease against which they have immunity, but they may still be capable of infecting others (House of Lords, 2000). The risk would also be a lot easier to manage if people with known infectious diseases voluntarily postponed their air travel until they were no longer contagious. In reality, however, this is not always possible and there are few incentives to do so due to the cost associated with rearranging travel plans and forgoing the cost of non-refundable tickets (typically associated with leisure travel).

( Passenger health: The risk posed by infectious disease in the aircraft cabin , 2007, http://www.atsb.gov.au/publications/2008/pdf/AR2007050.pdf )

8. APPENDIX 1: Measures proposed in initial application by REX

Passengers unable to move unassisted between their own wheelchair, the operator's aisle chairs and aircraft seats to be required to provide an assistant
Passengers who are unable to understand and follow safety directions (written or verbal), unable to don a life vest, require the application of medication in flight, or require assistance to the toilet or to eat, to be required to be accompanied by a companion to travel with the passenger.
Passengers using wheelchairs must check-in no later than 45 minutes prior to the scheduled departure time at regional airports and 60 minutes prior to the scheduled departure time at capital city airports to allow sufficient time to prepare the wheel chair for carriage and to board the passenger without unduly delaying the flight.
Passengers with electric wheelchairs must either disable their own electric chair or supervise REX staff in disabling and re-activating the electric wheelchair after transfer to the aisle chair.
All flight bookings must be made with the REX Customer Contact Centre to ensure that all special requirements are notified to the airline. The weight of the chair will have to be notified to REX during booking. No extra charge is applicable to this service. Bookings for disabled persons cannot be made on the REX website.
Wheelchairs must not weigh more than 64Kg, except that with prior approval, wheelchairs in excess of 64 kg but not exceeding 140 kg may be carried at ports where specialist lifting equipment is provided.
Passengers using wheelchairs will be required to book at least two days in advance of the flight to enable REX to make all the necessary preparations.
REX will limit the number of wheelchair bound passengers to 2 per flight and will carry only one chair weighing in excess of 64 Kg per flight.
If approval is obtained to carry chairs in excess of 64 Kg an excess baggage fee will apply.
A limit of one chair per disabled passenger will be carried free of charge. Additional chairs will be charged at the normal excess baggage rates with the normal excess baggage restrictions.
Passengers who are unable to understand instructions from the Flight Crew or Flight Attendant in an emergency due to intellectual disability are required to travel with a companion
REX will not carry a passenger with a prescribed contagious disease unless a notification is provided from a doctor stating that the person is fit to fly and poses no danger of infecting the crew or other passengers in the aircraft.

9. APPENDIX 2: Application of the DDA and DSAPT to carriage of more than one wheelchair per passenger

As noted in the body of this recommendation there is some uncertainty and complexity in the application of the DDA and the DSAPT to the issue of whether a second or subsequent wheelchair is required to be carried without excess baggage charges and restrictions.

The DSAPT state:

30.1 Disability aids to be in addition to baggage allowance

(1) Disability aids (for example, equipment and apparatus including mobility, technical and medical aids) are to be in addition to normal baggage allowances.

This provision does not state any express limitation on the number of aids required to be treated as within normal baggage allowances by operators – although, clearly, there would be implicit limits due to the operation of the unjustifiable hardship defence, having regard to issues of limitations of available stowage space and impacts of additional use of that space on other passengers, and impacts of additional weight on operating costs for airlines.

It may well be desirable for these implicit limits to be clarified by revision of the DSAPT or by related regulatory processes. It is necessary to note again, however, that REX in this instance have disclaimed any intention to seek exemption from the operation of the DSAPT, but do seek exemption from the operation of sections 23 and 24 of the DDA.

Sections 23 and 24 must be considered in conjunction with the relevant definitions of discrimination. Relevant definitions for the present purpose are provided by sections 6 and 7.

Section 6 defines as indirect discrimination the imposition of a condition or requirement

• with which a substantially higher proportion of persons without the disability comply or are able to comply;

• which is not reasonable having regard to the circumstances of the case; and

• with which the aggrieved person does not or is not able to comply.

The present structure of section 6 may present a number of difficulties for a person seeking to argue that a requirement to pay excess baggage fees constitutes discrimination as defined by section 6.

Unable to comply with paying excess baggage charge ?: If the relevant condition or requirement were identified as that of being required to pay an excess baggage fee, it is not clear that (despite people with disability having on average lower incomes than people without disability) any particular intending passenger with disability could establish that he or she is unable to comply with the requirement to pay an extra fee.

Unable to comply with using only one wheelchair etc ?: The condition or requirement might be identified (more correctly in my view as being more consistent with the objects of the legislation) as being that, in order to travel without excess baggage fees, a person must be able to travel without a second or additional disability aid. This approach would bring within the ambit and protection of section 6 a person who, for example, in order to travel requires both a mobility aid and oxygen equipment (subject to possible capacity for operators to demonstrate unjustifiable hardship in specific circumstances). Considerably greater difficulty, however, would seem to face a person who wishes to travel with two or more wheelchairs or similar mobility aids. While, as noted in submissions, a person may well benefit greatly in convenience and independence of mobility through travelling with more than one wheelchair or other mobility aid, it would appear more difficult to establish that a person is “unable” to comply with a condition of only travelling with one mobility aid – either at all, or, still more difficult to establish, as a condition of not incurring excess baggage fees.

Section 7 ( Disability discrimination—palliative and therapeutic devices and auxiliary aids) provides as follows:

For the purposes of this Act, a person (discriminator) discriminates against another person with a disability (aggrieved person) if the discriminator treats the aggrieved person less favourably because of the fact that the aggrieved person is accompanied by, or possesses:

(a) a palliative or therapeutic device; or

(b) an auxiliary aid.

As indicated by the emphasis I have added, section 7 contemplates “a” device or “an” aid, singular. In my view this provision might well be insufficient to create an entitlement (even subject to an unjustifiable hardship defence) to be accompanied on an aircraft, without additional charge, by more than one wheelchair.

David Mason

Director Disability Rights Policy

Australian Human Rights Commission