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2002-2003-2004
THE PARLIAMENT OF THE
COMMONWEALTH OF AUSTRALIA
HOUSE OF
REPRESENTATIVES
CIVIL AVIATION
AMENDMENT (RELATIONSHIP WITH ANTI-DISCRIMINATION LEGISLATION) BILL
2004
EXPLANATORY
MEMORANDUM
(Circulated by
authority of the Minister for Transport and Regional Services,
the
Honourable John Anderson, MP)
CIVIL AVIATION AMENDMENT (RELATIONSHIP WITH ANTI-DISCRIMINATION
LEGISLATION) BILL 2004
The purpose of the Civil Aviation Amendment (Relationship with
Anti-Discrimination Legislation) Bill 2004 (the Bill) is to amend the Civil
Aviation Act 1988 (the Act) to empower the Governor-General to make
regulations that may be inconsistent with the Disability Discrimination Act
1992 and the Sex Discrimination Act 1984 and to validate existing
regulations and past actions based on those regulations.
As the Act
currently stands, there is some uncertainty in relation to the validity of some
actions carried out in accordance with safety regulations where these actions
may appear inconsistent with either the Disability Discrimination Act
1992 or the Sex Discrimination Act 1984.
This Bill
is necessary for Australia to comply with its international obligations under
the Convention on International Civil Aviation, done at Chicago 1944
(Chicago Convention). The International Civil Aviation Organization (ICAO) has
established a set of Standards and Recommended Practices for the safety of
international civil aviation. As a member state, Australia is obliged to
implement ICAO standards in its aviation regulations.
Although some of
these standards may appear to be inconsistent with the Disability
Discrimination Act 1992 or the Sex Discrimination Act 1984 they are
not unnecessarily restrictive or discriminatory and have been developed solely
for reasons of aviation safety. For example, ICAO Annex 1 Chapter 6.3.2 states
that to obtain a Class 1 Medical Assessment (to exercise the privileges of a
commercial or transport pilot licence, flight navigator licence or flight
engineer licence) the applicant shall not suffer from any disease or disability
which could render that applicant likely to become suddenly unable either to
operate an aircraft safely or to perform assigned duties safely.
In the
higher interests of aviation safety it is important that the Governor-General
has the power to make regulations, from time to time, that could be construed by
some as inconsistent with anti-discrimination legislation.
The amendment
allows the Governor-General to make regulations relating to medical fitness of
flight crew or air traffic control licence holders that may be inconsistent with
the Sex Discrimination Act 1984. However, it is possible that perceived
disability discrimination may occur elsewhere in the aviation safety regulations
other than in relation to medical standards. For example there is a regulatory
requirement that when handicapped persons are carried in an aircraft, all
reasonable precautions shall be taken to prevent hazards to other occupants.
This may mean that a person must be both physically and mentally capable of
opening emergency exits if seated in an exit row.
As such, a broader
regulation-making power, and hence a broader scope of the validation provisions,
are required in relation to inconsistency with the Disability Discrimination
Act 1992.
As for all regulations made by the Governor-General under
section 98 of the Act, regulations which have the potential to be
inconsistent with Commonwealth anti-discrimination legislation will be subject
to clearance by the Human Rights Branch of the Attorney-General’s
Department and will undergo comprehensive consultation procedures and
parliamentary scrutiny.
It is not anticipated that there will be any financial impact from the
passage of this Bill.
CIVIL AVIATION AMENDMENT (RELATIONSHIP WITH
ANTI-DISCRIMINATION LEGISLATION) BILL 2004
1. The Act, once enacted, may be cited as the Civil Aviation Amendment
(Relationship with Anti-Discrimination Legislation) Act 2004.
2. This clause provides that the Act commences on Royal Assent.
3. The Civil Aviation Act 1988 is amended as set out in Schedule 1
to the Bill.
Part 1 – Amendment of the Civil Aviation Act 1988
This item amends section 98 of the Act by inserting the new subsections
(6A) and (6B). Subsection 6A provides that regulations made by the
Governor-General under subsection 98 (1) of the Act may contain
provisions relating to medical standards that are inconsistent with the Sex
Discrimination Act 1984 where those regulations are necessary for the safety
of air navigation.
Subsection 6B provides that regulations made by the
Governor-General under subsection 98 (1) of the Act may contain
provisions that are inconsistent with the Disability Discrimination Act 1992
where those regulations are necessary for the safety of air navigation.
Part 2 – Provisions dealing with the effect of the Civil
Aviation Regulations 1988 and the Civil Aviation Safety Regulations
1998.
This item provides definitions for the purposes of the provisions set out
in Part 2 Schedule 1.
The effect of this item is to validate actions taken under the Civil
Aviation Regulations 1988 and the Civil Aviation Safety Regulations
1998 before commencement of Item 1 of Schedule 1, despite any potential
inconsistency with the anti-discrimination legislation, except where the rights
and liabilities of those concerned had already been determined by a court prior
to commencement of that Item.
This item deems the new subsections 98 (6A) and (6B) to have always
existed, the effect of which is to prospectively validate any provisions of the
Civil Aviation Regulations 1988 and the Civil Aviation Safety
Regulations 1998 that may be inconsistent with the anti-discrimination
legislation. This ensures valid actions may be taken under such provisions
after commencement of Schedule 1 of the Bill despite any inconsistency of those
regulations with existing Commonwealth anti-discrimination
legislation.