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

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

The Civil Aviation Safety Authority (CASA) applied on 29 July 2002 to the Human Rights and Equal Opportunity Commission for temporary exemption under the Sex Discrimination Act 1984 ("SDA"), section 44, and the Disability Discrimination Act 1992 ("DDA"), section 55, for persons acting pursuant to existing Civil Aviation Regulations regarding medical fitness and proposed amendments to those regulations.

The letter of application (Word file) is attached to this notice together with

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

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

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

The exemption is sought from sections 19 and 29 of the DDA, and from sections 18 and 26 of the SDA. These sections prohibit discrimination on grounds of disability and sex (including pregnancy) respectively regarding decisions by qualifying bodies and administration of Commonwealth laws and programs.

The exemption is sought for a period of five years. CASA indicates that this exemption is sought as an interim measure pending possible legislative amendments to clarify the relationship between the civil aviation safety regime and the SDA and DDA.

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

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

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

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

Exceptional nature of exemptions

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

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

Summary of questions to be addressed

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

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

Overview

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

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

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

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

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

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

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

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

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

Temporary exemptions under the SDA have rarely been granted.

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

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

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

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

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

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

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

Inherent requirements in the DDA

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

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

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

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

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

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

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

Inherent requirements in the SDA

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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