EXPLANATORY STATEMENT

Select Legislative Instrument 2009 No. 217

Issued by the authority of the Attorney-General

Disability Discrimination Act 1992

Disability Discrimination Amendment Regulations 2009 (No. 1)

 

 

Subsection 132(1) of the Disability Discrimination Act 1992 (the Act) provides that the Governor‑General may make regulations prescribing any matter required or permitted to be prescribed under the Act, or necessary or convenient to be prescribed for carrying out or giving effect to the Act.

Part 2 of the Act prohibits discrimination on the basis of a person’s disability. However, exemptions to this prohibition are also provided in Division 5 of Part 2. Subsection 47(2) of the Act, in Division 5 of Part 2, provides that Part 2 does not make unlawful anything done by a person in direct compliance with a prescribed law. Prescribed laws are currently listed in Schedule 1 to the Disability Discrimination Regulations 1996 (the Principal Regulations).

Civil Aviation Order (CAO) 20.16.3 restricts people with disability from occupying emergency exit row seating in aeroplanes for safety reasons. On its face, this mandates discrimination on the grounds of disability. Prescription under section 47 of the Act renders an act done in compliance with CAO 20.16.3 not unlawful under the Act.

The Regulations add CAO 20.16.3 to the list of prescribed laws in Schedule 1 to the Principal Regulations. This is to ensure certainty for airlines and aviation operators that they would be protected from a claim of unlawful discrimination when complying with this aviation safety requirement. The restriction in CAO 20.16.3 is necessary to ensure the safety of everyone aboard the aircraft – it is imperative that anyone seated in the emergency exit row be capable of operating the exit and assisting in the event of an emergency. CAO 20.16.3 has recently been amended to clarify its operation and modernise its language and is suitable to be prescribed
under section 47.

The prescription of CAO 20.16.3 was put forward by the Aviation Access Working Group (AAWG), members of which include representatives from peak disability organisations and industry, the Australian Human Rights Commission, the Civil Aviation Safety Authority, and officers from relevant government departments. The AAWG is chaired by the Department of Infrastructure, Transport, Regional Development and Local Government. A full list of AAWG member organisations is at Attachment A.

The AAWG is an informal body established as a result of a forum on 7 April 2008 chaired by the Hon Bill Shorten MP, Parliamentary Secretary for Disabilities and Children’s Services, and the then Human Rights Commissioner and Acting Disability Discrimination Commissioner, Mr Graeme Innes AM, on disability discrimination issues in aviation. The purpose of the AAWG is to provide advice to Government on disability access policy, the relevant legislative frameworks and practical measures that can be taken to improve the access to air services for people with a disability.

Subsection 132(2) of the Act provides that before making any regulations for the purposes of section 47, the Governor-General is to take into consideration any comments made to the Attorney‑General by a Minister of a State or Territory who is responsible for matters relating to disability discrimination. No comments have been made by any relevant Ministers.

The Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003.

Details of the Regulations are set out in Attachment B.

 

Attachment A

 

Aviation Access Working Group – Member Organisations

1.      Australian Federation of Disability Organisations

2.      National Disability Services

3.      Deafness Forum of Australia

4.      Physical Disability Australia

5.      Australian Human Rights Commission

6.      QANTAS

7.      Virgin Blue

8.      Tiger Airways

9.      Regional Express

10.  Civil Aviation Safety Authority

11.  Australian Airports Association

12.  Regional Aviation Association of Australia

13.  Flight Safety Foundation

14.  Transport Workers Union

15.  Attorney‑General’s Department

16.  Department of Families, Housing, Community Services and Indigenous Affairs

17.  Department of Infrastructure, Transport, Regional Development and Local Government

 

Attachment B

 

Regulation 1 – Name of Regulations

 

This Regulation provides the name of the Regulations is Disability Discrimination Amendment Regulations 2009 (No. 1).

 

Regulation 2 – Commencement

 

This Regulation provides that the Regulations commence on the day after they are registered. Because the Regulations are a legislative instrument, the Legislative Instruments Act 2003 requires that they must be registered on the Federal Register of Legislative Instruments in order to be effective.

 

Regulation 3 – Amendment of the Disability Discrimination Regulations 1996

 

This Regulation provides that Schedule 1 amends the Disability Discrimination Regulations 1996 (the Principal Regulations).

 

Schedule 1 – Amendment

 

Item [1] – Schedule 1, before Part 1

 

This item inserts into Schedule 1 of the Principal Regulations, Part 1A, which refers to Civil Aviation Order (CAO) 20.16.3

 

This makes CAO 20.16.3 a prescribed law for the purposes of subsection 47(2) of the Disability Discrimination Act 1992 (the Act). This means that an act done in direct compliance with CAO 20.16.3 is not unlawful discrimination under Part 2 of the Act.