Aviation DDA Standards for Accessible Public Transport
Disability Discrimination Commissioner
Graeme Innes explains the case of
King vs Jetstar, and
looks at how little the Aviation Industry is Regulated by the DDA standards for Accessible Public Transport in
Australia.He asks for Aviation under The Disability Standards
for Accessible Public Transport to be updated so they become more in line with other Public Transport modes
such as Buses and Trains.
As you've no doubt heard, Jetstar's "two wheelchair" policy -
they will only carry two travellers who use a wheelchair on their
narrow-bodied aircraft - was the subject of a recent court
decision, and much media and online discussion.
Sheila King lodged a Disability Discrimination Act complaint against Jetstar when she was refused carriage on a flight between Adelaide and Brisbane in
2008. The basis for Jetstar's refusal of service was that there were already two people using wheelchairs
travelling on that flight.
Sheila was offered carriage on a later flight, but this did not
suit her other travel arrangements, and she had to travel with another airline at an increased
Sheila King is a well-known disability
advocate, who has had successes taking on big issues. She's also an
"ordinary person" aged 78, and we might wonder how fair it is to expect someone like her to take a leading role in
Australian transport and social inclusion policy.
Sheila's complaint was investigated by the Australian
Human Rights Commission, and conciliation was attempted. Over 50 per
cent of discrimination complaints are resolved this way, but unfortunately this one was not. So Sheila exercised
her right to take the complaint to the Federal Court.
There was bitter disappointment among many Australians with
disability, and their family and friends, when the decision went against Sheila. I share that disappointment. There
is an appeal planned from the decision.
While Jetstar's "two wheelchair" policy is also practised by
Virgin Blue, and by Tiger, Jetstar's parent airline Qantas, do not have this policy. Nor do Virgin internationally.
I know of no other airline in the world flying big jets which does.
It's very important to note that questions of
customer safety in emergencies were not the issue in this
decision. Nor was the luggage capacity of the aircraft concerned.
These, though, are issues which need to be discussed.
The aviation industry was not as specifically regulated by
the DDA Standards for accessible public
transport when they were developed almost a decade ago. At that
time, the view was that we didn't need to set out in as much detail for aviation what needs to happen. Well, it's
clear now that we did.
The DDA transport Standards do not provide for any
maximum, or minimum, number of people with disability who should
receive assistance to get on and off aircraft. Compare this to the provisions of the Standards which specify a
required number of accessible spaces per bus or train carriage. Two spaces, as it happens. Those requirements are
different from aviation of course.
since for obvious safety reasons no-one gets to travel in a plane in their own wheelchair. There is therefore no
need to remove seats to provide wheelchair spaces.
Second, for the same reason, there is a need to work out how a passenger gets to transfer from
wheelchair to airline seat, including who has to provide any necessary assistance.
the numbers of seats on buses in particular is much less.
Now, it's very important to note that the Transport Standards
don't specify any of this for aviation, in the way they do for buses
and trains. Australians are takers, not makers, of big
passenger jets, so there was no point in specifying dimensions of what these planes should look
Particularly in the 1990s, progress in aviation
access seemed mainly a matter of what services and assistance
could, and should, be provided. There seems to have been a decision to leave that sort of issue to the
"open skies" general discrimination provisions of the
So Sheila King's
complaint had to be considered under the general provisions of the DDA itself, rather than under the
The Federal Court found that Sheila had been discriminated against by Jetstar. However, the Court also found that to completely remove limits on numbers of passengers
using wheelchairs on narrow-bodied aircraft would cause Jetstar
unjustifiable hardship. Sheila's complaint was therefore dismissed.
As is the usual rule in the courts, costs were awarded against the
Sheila King has said that she will appeal this decision to the
full Federal Court.
What issues should be considered from this
Recognition of people with disability as
equal citizens, and equal participants in society.
The unfairness of putting the whole
burden of redressing current and entrenched
discrimination on the people most
disadvantaged by it, instead of governments living up to
commitments to social inclusion and equality by doing their share of the work.
The minimal business impact of providing increased access,
which on my reading of the evidence was demonstrated in this case. Evidence in the case indicated that
the average of customers using wheelchairs on Jetstar flights was around 0.5
%, and that to have more than two customers using wheelchairs seek to
travel on the same flight was unusual.
A critical factor in the poor outcome of this case - I mean a
poor outcome for access as well as for certainty of airline obligations - was that the question of
unjustifiable hardship was
decided on the hypothesis that there would be no
limit on the number of customers using wheelchairs to be carried
on each flight.
The Disability Standards for Accessible Public
Transport, while designed to promote equality, do not require 100%
accessible spaces in any transport vehicle. Equally, they do not leave it to the transport provider concerned to
set their own limit unilaterally.
Lengthy processes of negotiation - and sometimes painful
compromise on all sides - were needed to set the rules for other transport modes.
So what should happen about
We should go back to the
table. Not the gambling table where each side spins the wheel and
hopes for a winner take all outcome, but to finish the negotiations, which for aviation at least were not really
finished in the 1990s.
We do not have to start with a blank slate and spend years
re-inventing the wing and the wheel. A number of people commenting on line about the Jetstar case have already
pointed out that more comprehensive rules on aviation access already
In particular, most airlines operating into Australia are
already accustomed to dealing with European Community access
standards, or the requirements of the
US Air Carrier Access Act, or both. That's where the planes come from, after all.
In some respects these international standards are more favourable to
airlines than the maximum "blue skies" interpretation of the general provisions of
Australia's Disability Discrimination Act. In other respects, of course, they are more demanding than what some airlines might argue
for by reference to those same general provisions.
As Disability Discrimination Commissioner I don't get
to decide what the rules should be. But I do get to provide my view
on what should happen to achieve the objectives of the Disability Discrimination Act.
I'm seeking your feedback on what advice I should be providing,
and providing urgently, to government in this area. Because I'm convinced that we need something better than where
we are now - with passengers with disability feeling very second class, and airlines (if I can't say this, who
can?) flying blind.
Graeme Innes is Australia's Disability Discrimination
Commission. Follow him on Twitter @graemeinnes
Posted by John Bedwell Sydney Consultant for Obvuis
Access 22nd December 2012