Is how, disability and discrimination law can be used to effectively discriminate against folks – by an exemption against the law which prohibits it?? The AOPA and WPA argument made by Marjorie Pagani (Hi Damon) makes excellent sense and supports Creampuff's stance. The ATCO union made equally as much sense; of course, now the expired exemption has been cast in stone as "policy" and just not challenged; perhaps these groups need to look once again to their armour to protect their digs – being as it's come now to the pilots turn to be the thin end of the wedge. Liability paranoia – writ large...
Pagani
a. The bases upon which it is based are fundamentally flawed;
b. It is anathema to the concept of protection of fundamental human rights to grant a “temporary” exemption for five years (or at all) for exemption from human rights legislation, so as to enable the applicant (the Civil Aviation Safety Authority, referred to as the CASA) time within which to attempt to persuade the parliament to amend the existing legislation (Civil Aviation Act) to exclude the human rights legislation;
c. The application, and proposed regulations, would have the combined effect of reversing the onus of proof from the authority seeking to discriminate, to the person against whom the discriminatory conduct has been directed.
The CASA (and former authorities differently named and constituted) has therefore had, respectively, fourteen years and ten years to take steps to have the CAA amended in order to protect it from suits brought pursuant to the human rights legislation. The CASA now and proposes further regulatory frameworks which it is concerned may offend the human rights legislation. The proposed regulations have been extant for more than four years, and contain some provisions which mirror those in the existing regulations.
The CASA alleges that it has “initiated action” to have the relevant section of the CAA amended so as to enable it to make the proposed regulations with impunity, so far as the human rights legislation is concerned. The submission made is vague in the extreme. No information is provided as to what steps have been taken, when they have been taken, what stage the action has reached, and importantly, when the debate is likely to occur. Indeed, the applicant merely submits that it “cannot..say what the time frame is for this amendment to be enacted.” The application appears to be brought for the purpose of buying an indefinite period of time within which to persuade parliament to enact legislation which would prevail over the human rights legislation.
The application is not consistent with the objects of the relevant human rights legislation. The effect of the proposed legislation and exemption will be to promote, rather than eliminate, discrimination, in circumstances where the affected person must have the financial and emotional resources to challenge the discriminatory act which has been carried out without regard to the individual circumstances of that affected person. A statutorily-imposed right to discriminate should only be permitted in the most extreme circumstances, and where no other course is possible. This is not the case in the present application, and it is submitted that there has been presented no evidence of such a nature as would permit a finding that the CASA would be compelled to do the proposed discriminatory acts for the purposes of aviation safety or consistency with other States.
The legislation seeks to eliminate discrimination where possible. The exemption sought seeks to permit mandatory discrimination with impunity against redress by the affected person.
Civil Air.
Civil Air seeks that the application by CASA for exemption from the DDA and the SDA be refused on the basis that the changes proposed by CASA to Part 6 of the Civil Aviation Medical Standards would be in conflict with the objects of the Disability Discrimination Act and Sex Discrimination Act. Those objects in essence seek to eliminate discrimination on the basis of disability or gender. Our interest in this issue applies to discrimination in the workplace.
In relation to the changes proposed by CASA to alter the testing regime for class 3 medical holders with colour defective vision (67.160(6) and (7)); we are aware of operational air traffic controllers who are working despite their colour vision impairment. These people have been employed by Airservices for significant periods of time and their length of employment combined with an absence of any evidence of identified problems in performance suggests that these individuals are most able to carry out the ‘inherent requirements’ of their particular employment. This continues to be the case in the current Australian Advanced Air Traffic System (“TAAATS”) environment where the colour palette is certainly diversified. TAAATS has been operational since 1999. The condition has not to date been safety relevant in any way.
The other submissions provided by Sarcs are equally compelling; perhaps it's just me being 'thick' but really, from where is the PonyPooh-Shambollic argument going to find some serviceable legs – in law – without that champion of law benders prepared to lend them the tools to do it.
The tick stopped tocking a number of years ago on the discrimination waiver; perhaps this is a heroic attempt to wind it up; it's certainly winding up everyone else's.
What say you Maestro Creampuff.
Hesitant Toot – with a slightly bemused second - toot.