Exemption application under Sex Discrimination Act and Disability Discrimination Act: CASA: recommended decision

Exemption application under Sex Discrimination Act and Disability Discrimination Act: CASA: recommended decision

Recommendation:

That, pursuant to an application by the Civil Aviation Safety Authority, the Commission grant a five year exemption under 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; but this exemption only to apply where a person's pregnancy (under the SDA) or disability (under the DDA) prevents the person safely fulfilling the inherent requirements of the role covered by the licence concerned.

Application

On 29 July 2002 the Civil Aviation Safety Authority (CASA) applied for a five year exemption under 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 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.

CASA indicated concern that although the DDA provides an inherent requirements defence regarding occupational qualifications it was not clear that this would apply to licences for non-professional purposes. The SDA does not have an inherent requirements defence so far as pregnancy is concerned, and also lacks the DDA's provision for laws to be prescribed by regulation so as to exempt actions in direct compliance with those laws.

CASA stated 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.

Submissions

A public notice of inquiry was posted on the HREOC website on 13 September. Submissions were requested by 24 October.

Eleven submissions were received, including from Airservices Australia, the Flight Attendants Association, the Aircraft Owners and Pilots Association and the Australian Women Pilots Association, and the Civil Air association representing air traffic controllers.

Individual submissions oppose the granting of the application, taking particular issue with colour blindness standards.

Airservices Australia supports the application for exemption. In relation to disability they take particular issue on safety grounds with contentions in several individual submissions that current colour blindness testing is inappropriately restrictive. In relation to pregnancy they note that the proposed regulations differentiate between the position of pilots and of air traffic controllers, the latter being recognised as not presenting the same risk.

The Civil Air association opposes the application, raising concerns regarding colour blindness and the requirement for testing of pregnant air traffic controllers after 30 weeks.

The Aircraft Owners and Pilots Association and the Australian Women Pilots Association oppose the application on similar grounds.

The Flight Attendants Association oppose the application on the basis that section 19 of the DDA which refers to inherent requirements provides sufficient protection for legitimate decisions and that any change in the relationship between the SDA and air safety regulation ought to be a matter for legislative rather than administrative decision.

Recommended decision

We recommend that the Commission decide to:

Grant the application under the DDA, for a period of five years, but this exemption only to apply where a person's disability prevents him or her safely fulfilling the inherent requirements of the role covered by the licence concerned;

Grant the application under the SDA, for a period of five years, but this exemption only to apply where a person's pregnancy prevents her from safely fulfilling the inherent requirements of the particular employment, occupation or role covered by the licence concerned.

Effect of recommended decision

This decision would not make any change to the present legal position under the Disability Discrimination Act in relation to professional employment or occupation. Refusal of licenses in this area would remain subject to review under the DDA.

Where a license is not for the purposes of employment, such a decision would confirm for DDA purposes (what may already be the case but is not certain) that the same inherent requirements test also applies as it does to employment related decisions. There is no reason apparent from the objects or terms of the DDA why non-professional pilots or other licence holders should not be subject to an inherent requirements test; rather, there are some obvious safety reasons why they should be subject to an inherent requirements test.

The recommended decision would confirm (what may already be implicit but is not certain) that the same inherent requirements test applies under the SDA. This would be consistent with Australia's obligations under the Discrimination (Employment and Occupation) Convention, which requires that distinctions based on the inherent requirements of the particular job not be deemed to be discrimination, as well as with the recognition in the CEDAW Convention of possible legitimate restrictions based on pregnancy so long as these are subject to review and based on objective evidence.

Although CASA is clearly the principal regulator in this area, such a decision would mean that the DDA and SDA will continue to provide a safety net against possible wrongful administration of the CASA regulation, or against the regulations being overly restrictive in some respect, while ensuring that correct decisions to refuse licences are not unlawful.

That is, complaints will still be able to be made, but CASA should be able to defend them successfully so long as it is acting properly in pursuing the public interest in air safety.

Submitted by:

Director, Disability Rights policy;

Director, Sex Discrimination policy