Recommendation for decision on application for temporary exemption under section 55 of the Disability Discrimination Act

This paper recommends granting, in part and on conditions as specified below, an application for temporary exemption under section 55 of the Disability Discrimination Act ("DDA") by Capiteq Ltd, trading as Airnorth.

Application

The Human Rights and Equal Opportunity Commission received, by letter dated 15 April 2003, an application on behalf of Airnorth airlines for temporary exemption under section 55 of the DDA regarding carriage of passengers with disabilities on low capacity aircraft, for a period of five years.

The nature of the exemption sought is set out in the following extract from the application.

"Capiteq Limited seeks an exemption under section 55 of the DDA from the provisions of sections 23 and 24 of the DDA for a period of five years, regarding:

• Lack of access to aircraft seats for people requiring wheelchair access, where this is prevented by limited aisle width.
• Lack of access to aircraft or seats for passengers requiring lifting, where this cannot be performed in compliance with the requirements of applicable occupational health and safety laws due to space constraints of the particular aircraft.
• Requirement for a passenger to be accompanied by an assistant 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
  • 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).
  A person who is mobility impaired may require to be lifted into and out of the aircraft. Where this assistance is unable to be provided by Airnorth due to the application of occupational health and safety laws, and due to space constraints of the particular aircraft, the person may have to provide his/her own assistants. In such a case Airnorth will offer the person travel at our proposed "greater freedom fare" where the cost of travel will be no more than 25% of the normal economy fare for that sector (75% discount which makes it significantly cheaper than even the heaviest discounted airfare). This discount is intended to defray any costs the person may incur in providing the necessary assistants.When an assistant is required by Airnorth to accompany the person on the flight for safety reasons, travel by the assistant is also to be at our proposed "greater freedom fare" where the cost of travel will be no more than 25% of the normal economy fare for that sector."

Airnorth also provided details of proposals to require passengers who need some forms of assistance in relation to disability to provide 96 hours notice of those needs

By further email Airnorth amended its application to clarify that an exemption is also sought from the operation of the Disability Standards for Accessible Public Transport on the same conditions.

Inquiry process

In accordance with the Commission's policy on dealing with exemption applications under the DDA a notice of inquiry and call for submissions was issued on 28 April 2003.

Submissions

Seven submissions were received and published on the Commission's website. Those submissions are summarised below with comments.

Submissions supporting the application

Regional Airlines Association of Australia

The Regional Airlines Association of Australia supported Airnorth's application, commenting as follows:

The RAAA supports the Airnorth initiatives, and objectives, in seeking to find an acceptable system of compliance to enable the carriage of disabled persons on its airline, and at the same time, meet the requirements of safe work practices.

National Transport Secretariat

The National Transport Secretariat supports the application, commenting that "The NTS is satisfied that Airnorth has applied its best endeavours for meeting the needs of its passengers, its staff and the organisation", while suggesting that Airnorth consult with national representative bodies for people with a disability regarding its proposed systems for identifying and responding to special needs.

Submissions opposing application

H. Rumley

Dr Hilary Rumley (an anthropologist who uses a wheelchair and uses Airnorth services) opposes the application, arguing that staff should be trained in safe lifting techniques and that granting an exemption would have a serious impact on people with disabilities including Aboriginal people with disabilities travelling to or from remote areas. She argues that many people with disabilities would not have their own assistants available to take advantage of Airnorth's offer of discount fares for assistants.

S.Sellar

Ms Sellar is a nurse who has acted as assistant for people with disabilities travelling on Airnorth services. She welcomes Air North's proposal to give customers with disabilities and their carers discounted tickets. She expresses concern however regarding requirements for 96 hours notice of requirements for wheelchair boarding and states that on occasions lifting devices have not been able to be used even with 7 days notice because of a lack of staff present licensed to use the device.

Darwin Community Legal Service

Darwin Community Legal Service opposes the application. They emphasise the importance of air transport in northern Australia. They argue that if assistants are required for travel these should be provided by the airline and that staff should be trained in safe lifting techniques.

W. Jones

Ms Jones is an officer with the W.A. Disability Services Commission. Her submission opposes the application and emphasises the impact on people with disabilities if they are required to provide and pay for a carer in order to travel.

Submission supporting granting in part

Department of Transport, South Australia

The South Australian Department of Transport notes that the exemptions sought are similar to those granted to Kendell Airlines and are for similarly sized aircraft, so that it might seem reasonable that the Air North application could be approved with conditions similar to those applied to Kendell Airlines in August 2000. However it also notes that the intent of the exemption approved for Kendell was to give the airline time to improve access to its aircraft (through the purchase of narrow boarding-wheelchairs, the installation of moveable seat armrests and the investigation of other means to improve access), while the Air North application claims that the nature of the aircraft involved makes it technically unachievable or unreasonably expensive to provide access to passengers with certain types of disability without putting its employees at unreasonable risk of injury, for as long as the aircraft remain in service.

The Department states regarding Airnorth's application:

Rather than propose means to improve access, it puts forward a system of categorising passengers according to their disablement and proposes courses of action to deal with them ranging from refusal of carriage to carriage at reduced fares for the passenger and a passenger-provided assistant.

The Department concludes that Air North's application, as it applies to its smaller Metro 23 aircraft, appears reasonable in view of the limitations of aircraft of that size and their exclusion from the access requirements of the Disability Standards for Accessible Public Transport, so that the application in this respect should be approved subject to consultation on and modification if necessary of the categorisation of people with disabilities it includes, and its advance booking and documentation requirements.

However the Department argues that the exemption as it applies to the larger Brasilia aircraft requires further justification on a number of issues:

• why Air North uses a forklift to lift disabled passengers to aircraft floor height rather than wheelchair lifts which are hand positioned rather than driven and thus may reduce the risk of flap damage;
• need for specifications of the aircraft's aisle width and the width of the narrowest specialised aircraft-boarding wheelchair to demonstrate that wheelchair access to this aircraft is not possible;
• why the cabin attendant carried on Brasilia aircraft could not assist any passenger, disabled or otherwise, to apply an oxygen mask or put on a life jacket in the event of an emergency; and
• Requiring a passenger who cannot understand instructions given by the flight crew (even if instructions are available in both visual and audible form) to be accompanied by an assistant suggests that this requirement might apply to any passenger unable to speak or read English (this reservation applies also to Metro 23 aircraft).

The Department also comments:

While these comments advocate caution in accepting certain provisions of the Air North application, they should not be taken as criticism of the proactive approach the airline has taken in seeking to ensure that it can comply with the DDA to the maximum extent it considers possible without subjecting its employees to risk of injury.

It recommends clarification of the requirements of the DDA and the Disability Standards for Accessible Public Transport for the carriage of passengers using wheelchairs in aircraft having less than 30 seats; promotion of development by operators of practical solutions for addressing difficulties associated with the carriage of people with disabilities in such aircraft; and promotion of development of national guidelines governing the carriage of people with disabilities in aircraft of less than 30 seats.

AirNorth response

Airnorth was invited to provide comments in reply to submissions and did so. These comments have also been published on the Commission's website.

In response to submissions Airnorth emphasises the limited space available in its aircraft. This includes clearances being narrower than available aisle wheelchairs. They also note limited headroom and state:

Despite the wishes of some of your correspondents, within the confines of the cabin described above, safe lifting is not possible.

They then describe the alternative rear boarding procedure used to date for the larger Brasilia aircraft through the emergency exit:

As stated in our application, the company has in the past allowed the use of the rear floor level emergency exit for the loading of passengers in a wheelchair. The gap between the seats at this exit allows the wheelchair to enter but not proceed down the aisle. The person is then assisted to the nearest available seat across the aisle. However the procedure requires the lifting hoist, be it a forklift or a specially designed man powered device such as is used in much larger aircraft by Qantas, to be positioned perilously close to the aircraft flaps. The company considers the potential damage to the flaps, with consequent loss of use of the aircraft and cost of repair, perhaps at a remote port, is not acceptable. The emergency exit was never designed to be used in this manner and the crews must be specially trained to certify the correct reinstallation of the exit if it is so used, at further cost.

They also comment in relation to proposed arrangements regarding passengers with specific needs:

Some correspondents have made mention of the conditions which the company has proposed regarding notice in bookings. It is our intent to use the notice to prepare to carry the person concerned, allowing that some of our network is remote and special arrangements may have to be made. In particular loading of a person by their own carers may take more time than is normally allowed in turnarounds and we may have to make minor schedule adjustments on certain days and advise other passengers accordingly. We also expect that this notice period will be much less for regular travellers whose details are known to us and whose requirements will be familiar to our staff.

Issues raised by submissions

Approach to exemption applications

HREOC has indicated in previous decisions that an application for exemption under the DDA does not necessarily represent an attempt to avoid responsibilities under the DDA rather than seeking means to achieve these objectives within constraints provided by existing infrastructure or other regulatory requirements. The comment by South Australia's Department of Transport commending Airnorth for taking a proactive approach to the issues dealt with in this application while raising concerns regarding some aspects of the application is relevant in this respect.

HREOC's policy and statutory obligation is to decide exemption applications on their merits, taking into account the objects of the DDA.

The objects of the DDA refer to elimination of discrimination as far as possible. With this in mind, the Commission has sought to use the exemption process to advance the objects of the DDA and in particular in the public transport area has made decisions intended to assist in the process of transition from systems and facilities which do not provide access for people with disabilities to systems and facilities which do provide access.

Although issues which would be relevant to determination of unjustifiable issues in the context of complaints may also be relevant to determination of the merits of an application for temporary exemption, the Commission has not been prepared to grant exemptions simply to certify the existence of unjustifiable hardship in cases where accessibility is technically or financially unachievable.

Exemptions have been granted where it is not certain that there would otherwise be liability for unlawful discrimination (such as the ORTA decision), but not where there is no reasonably arguable case of unlawful discrimination (see the Employers Making a Difference decision).

Exemptions have been granted to provide time to implement solutions (such as in the Melbourne Trams case); to permit processes of review to identify possible solutions (such as in the Queensland Rail case); or to facilitate clarification of the relationship of the DDA to other legal requirements (such as in the CASA case.)

Impact of proposed exemption on people with disabilities

The importance to mobility for people with disabilities of the services provided by Airnorth in the areas it serves is clear from submissions, as well as being clear from the materials provided by Airnorth itself.

It is also clearly true that requiring a person with a disability to provide his or her own assistant for boarding and for in flight requirements is a significant additional requirement to what is expected of other passengers, and that this would have a significant financial and practical impact on the ability of some people with disabilities to travel. Airnorth's proposals regarding discount fares for passengers with disabilities and assistants may mitigate but not remove these impacts.

It is less clear how far the proposed exemption would represent a reduction in the level of Airnorth's current obligations under the DDA, as compared to a possible reduction in the responsibilities it currently undertakes in practice. These issues are discussed further below.

Relationship of proposed exemption to obligations under the DDA and Standards

The first point on which exemption is sought is lack of access to aircraft seats for people requiring wheelchair access, where this is prevented by limited aisle width.

The second point on which exemption is sought is 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.

Position of Airnorth Brasilia aircraft

Point one of exemption applied for

In relation to AirNorth's Brasilia aircraft, the Disability Standards for Accessible Public Transport require wheelchair access to seats, or equivalent access by direct assistance. This is subject (under section 33.7) to scope for an operator to demonstrate unjustifiable hardship in exceptional cases.

Section 3.3 of the Standards states:

If the design restrictions of a conveyance limit on-board manoeuvring areas for wheelchairs and similar mobility aids, the operator of the conveyance must ensure equivalent access by direct assistance to passengers.

This requirement is expressed as applying to aircraft except small aircraft. Small aircraft are defined in section 1.24 of the Standards as aircraft having less than 30 seats for carriage of passengers.

However, the compliance timetable for the Standards (Schedule 1, clause 1.3) indicates that (except for aircraft newly acquired since the commencement of the Standards) obligations in relation to accessibility in boarding conveyances, including aircraft of 30 seats or more, do not apply until the first five year point (that is, 31 December 2007), at which point 25% of services must comply.

The effect of this is that until 31 December 2007, in relation to the Brasilia aircraft it is highly likely that Airnorth in effect already has the benefit of point 1 of the exemption sought (that is, in relation to accessibility of the aircraft itself).

Until this first compliance date is reached, an operator of existing larger aircraft which do not meet the standards requirements in relation to boarding access is still acting in compliance with the standards, and thus appears to be protected from liability under the DDA by virtue of DDA section 34 which states:

If a person acts in accordance with a disability standard this Part does not apply to the person's act.

This is consistent with the clear intent of the standards in giving time for operators to bring fleets into compliance in return for added certainty that compliance will be achieved over time.

This could be taken as an argument for not granting the first point of the exemption applied for in relation to the Brasilia aircraft since until December 2007 the limited accessibility of the Brasilia aircraft itself is not unlawful. After 31 December 2007 Airnorth might need to rely on the unjustifiable hardship provision of the Standards, or else have an exemption in place, if it wishes to discontinue the practice of using the rear emergency exit to provide wheelchair access, but until that date the Standards do not impose a requirement for there to be an accessible entrance.

However, noting that the airline is seeking a consistent approach to apply across its fleet for operational reasons, the facts that in this respect no substantive loss of rights under the Standards is proposed and that an exemption can be made subject to conditions to promote provision of access could also be seen as arguments in favour of granting this point of the exemption in relation to the Brasilia aircraft. In particular, granting of an exemption can be made subject to conditions which under the Standards might not otherwise have applied to an operator or might not have applied until a later date.

Point two of exemption applied for

The terms of the Standards could also be interpreted to mean that until 31 December 2007, in relation to its Brasilia aircraft Airnorth in effect already has the benefit of point 2 of the exemption sought, since section 3.3, which requires provision of equivalent access through assistance in boarding and seating in aircraft where design constraints apply, appears to be a provision dealing with "manoeuvring" and/or "boarding", and thus to be governed by the compliance timetable in clause 1.3 of schedule 1 which lists those items as not requiring compliance by a first stage 25% of services until 31 December 2007.

This possible result, deferring obligations in relation to provision of assistance, appears less readily justifiable than deferral of obligations regarding conveyances and infrastructure in terms of the purpose of the Standards and in terms of consistency with the objects of the DDA. For this reason it may well be that in the event of a complaint requiring determination by the courts the Standards would not be interpreted as having this effect. Operators would be wise to act on the basis that where boarding assistance can be provided without unjustifiable hardship it is currently required to be provided.

Airnorth's application is made on the basis that the airline does accept an obligation (under the Standards and under the DDA) to provide assistance where necessary for boarding and seating, but argues that implementation of this obligation is limited by occupational health and safety considerations, as well as requiring advance notice.

What approach should be taken to occupational health and safety issues in dealing with this application is discussed further below.

The proposal for carrying assistants and passengers with disabilities at reduced fares may be seen as a measure aimed at complying as far as possible with the Standards by providing "equivalent access" in response to limited accessibility of the aircraft and limits on ability to provide staff assistance, although for the reasons raised in submissions this measure does not fully meet the requirement of the Standards that equivalent access measures should provide equal convenience of travel. Measures which may not fully satisfy the requirements of the Standards for compliance by equivalent access may still be relevant to deciding whether compliance with the Standards would involve unjustifiable hardship (see Standards section 33.7.4), and also relevant to whether an exemption applied for should be granted. Position of smaller aircraft (including Airnorth Metro 23)

South Australian Department of Transport's submission notes that the clear intention of the Disability Standards for Accessible Public Transport in applying certain accessibility requirements only to aircraft of 30 seats or more was that wheelchair access to seats on these aircraft should be achievable, while these requirements were not applied to smaller aircraft because difficulties of providing the same degree of access to these aircraft were regarded as such that operators' obligations should be limited without having to seek individual exemptions.

However, the effect of smaller aircraft being excluded from these requirements of the Standards may be to leave smaller aircraft covered by the existing provisions of DDA sections 23 and 24, rather than to give operators of small aircraft complete protection from potential liability. Since the requirements of the Standards fail to apply to smaller aircraft they may fail to displace the otherwise applicable requirements of sections 23 and 23.

This may be seen as a paradoxical result, which would merit revisiting in future revisions of the standards to determine what level of access to smaller aircraft is feasible and appropriate to specify as satisfying the requirements of the DDA.

Alternatively, it could be argued that while smaller aircraft cannot be subjected to the same timetable and requirements for provision of physical access under the Standards as larger aircraft are, it is appropriate to retain some capacity under the DDA to examine - through the complaints process and also through other processes including exemptions and development of action plans. If the view is correct that DDA sections 23 and 24 continue to apply to access to smaller aircraft, obligations under these sections are subject to limits which an operator may be able to demonstrate by reference to the defence of unjustifiable hardship.

As noted above, measures which an operator is prepared to undertake to mitigate the effect of lack of aircraft accessibility, or limited availability of staff assistance, may be relevant to determination of unjustifiable hardship issues in response to complaints as well as to issues of whether an exemption applied for should be granted.

Health and safety issues

Several submissions opposing the granting of an exemption in this matter clearly contemplate that occupational health and safety concerns regarding lifting can be removed by appropriate training in safe lifting techniques.

It is not clear whether these comments take sufficient account of the issues raised by Airnorth regarding the particular difficulties of lifting in confined spaces with limited headroom as presented by its aircraft: both the smaller Metro 23 because of its nature as a smaller aircraft, and the Brasilia because of its specific design.

In the Kendell Airlines matter, the recommended decision included the following comment:

One submission from a leading consumer advocate conceded that "it is almost impossible for anyone to stand up straight in these smaller aircraft which makes it impossible to do a safe lift" but argued that with further technological development it must be possible to find a solution to this issue.

It does not appear possible in the context of this application to make conclusive and comprehensive judgments whether lifting any or all people requiring this service in boarding and being seated in Airnorth's aircraft would require actions inconsistent with occupational health and safety requirements but at the least it can be said that substantial issues in this respect have been raised.

It is also important to note that Airnorth's application does not seek a general exemption in this respect, but seeks an exemption from being required to provide access by lifting where this is inconsistent with health and safety requirements.

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.

If an exemption as proposed is granted regarding lifting which breaches occupational health and safety requirements, and in reliance on that exemption Airnorth refuses to provide lifting assistance (and thus may end up refusing carriage to an intending passenger unless the passenger secures other assistance to board and be seated) the intending passenger would still be able to make a complaint under the DDA. That complaint would fail if Airnorth and its staff were found in the circumstances to have been correct in deciding that lifting would breach occupational health and safety duties, but would succeed if Airnorth or its staff were found to have acted incorrectly in interpreting or applying their duties under occupational health and safety law.

This is not to say that the effect in practice of a decision on an exemption application can or should be ignored. The DDA aims to eliminate discrimination as far as possible, which involves preventing it occurring as far as possible and not only providing for people to seek remedies after discrimination does occur.

An exemption on occupational health and safety decisions which leaves an airline open to continued liability under the DDA if it makes incorrectly restrictive decisions on health and safety grounds may provide some incentive for correct decision making, including provision of appropriate training and procedures. This continuing potential liability, as well as commercial considerations in favour of being able to carry and receive fares from passengers rather than not being able to carry and be paid by passengers, may also provide some incentive to examine possible means of boarding and seating passengers. Rather than relying entirely on these possible incentive effects however, if an exemption is to be granted on this issue of consistency with occupational health and safety it appears appropriate to include conditions to ensure

• that the impact of restrictions in this area on ability for people with disabilities to travel is subject to continuing scrutiny, including how far offsetting measures including discount fares may be effective in mitigating that impact;
• that occupational health and safety considerations are not being applied more restrictively than necessary; and
• that consideration is given to means for avoiding the need for lifting to achieve access (such as any possibilities there may be for approaches based on hoists or slides).

The need to monitor the impact of an exemption also indicates that at least initially an exemption should be for a shorter period than the five years requested.

Requirements for passenger provided assistant during travel

The third point of Airnorth's application seeks exemption to allow it to require 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
• 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).

The exemption granted in the Kendell Airlines matter included very similar points to these. The following comment was included in the recommendation for an exemption accepted by the Commission in that case:

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.

Clearly, these reasons also support granting a similar exemption on this point to Airnorth.

However, as noted by the South Australian Department of Transport, in the Kendell Airlines matter this point was part of a larger package for improving access over time.

Whether an exemption is appropriate to grant and is consistent with or promotes the objects of the DDA should be assessed on an overall basis rather than taking a particular point in isolation.

There appears no reason to question that Airnorth's concern in this area is to ensure appropriate safety to all passengers. However, I consider that on this issue the appropriate decision is to leave the matter to the operation of the DDA and the Standards as they stand, providing for case by case determination, rather than applying an across the board exemption. Under the DDA and the Standards alike Airnorth would be able in appropriate cases to raise an unjustifiable hardship defence regarding a requirement for provision of an assistant by passengers, similar to that which was successfully raised in McLean v Airlines of Tasmania. Extension of discount fares to carers or assistants as proposed by Airnorth would assist in establishing that defence

Notice requirements

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.

Recommended decision

I recommend that the Commission grant an exemption from the operation of sections 23 and 24 of the DDA and from the operation of the Disability Standards for Accessible Public Transport, for a period of two years, regarding:

• Lack of access to aircraft seats for people requiring wheelchair access, where this is prevented by limited aisle width.
• Lack of access to aircraft or seats for passengers requiring lifting, where this cannot be performed in compliance with the requirements of applicable occupational health and safety laws due to space constraints of the particular aircraft.
• Requirements for notice of disability access requirements, where these requirements are reasonable in the circumstances.

I recommend that the exemption not extend to requirements for passenger provided assistants in flight.

The exemption should be conditional on Airnorth:

• implementing its proposals for carrying passenger with disabilities and assistants at reduced fares where Airnorth requires a passenger provided assistant
• reporting each three months during the exemption period to the Commission on any instances where a passenger has been unable to travel or has been required to travel with an assistant because of restrictions permitted by this exemption
• reporting within twelve months on any technical solutions which may be feasible to difficulties in passengers with disabilities boarding and being seated safely

Graeme Innes AM Deputy Disability Discrimination Commissioner