BY EMAIL: DDAReview@ag.gov.au
Attorney-General’s Department
Robert Garran Offices
3-5 National Circuit
BARTON ACT 2600
Dear Panel
Submissions in relation to the review of the Disability Discrimination Act 1992 (Cth)
1. Introduction
The Qantas Group welcomes the opportunity to provide comment on the review and modernisation of the Disability Discrimination Act 1992 (Cth) (DD Act) as set out in the Disability Discrimination Act Review Issues Paper (Issues Paper). Thank you for the opportunity to contribute to the review process.
The Qantas Group is a large employer and operates Australia’s most extensive network of domestic, regional, and international services in every state and territory through two complementary airline brands, Qantas and Jetstar. These brands connect a range of customers to destinations across Australia, the Asia-Pacific region, and globally.
The Qantas Group takes the accessibility, safety and comfort of customers with disability and who require specific assistance seriously and carries many customers with disability and other specific needs each year. The Qantas Group is proud of the specific assistance it provides through its policies and practices and remains committed to supporting customers with disability and other specific needs. The Qantas Group also takes its obligations as an employer seriously and is a proud employer of many employees with disability and remains committed to supporting employees with disability.
The Qantas Group is committed to working with people with disability, Government, safety regulators, airports, staff and partners to explore safe and viable solutions for our valued customers and staff with disability to reduce barriers and make their travel and work experiences better.
Our airlines are subject to numerous safety, regulatory and jurisdictional requirements (both nationally and internationally) that are unique to airlines. The Qantas Group operates in a complex and safety critical aviation environment. In some circumstances, complying with some specific regulatory obligations can present challenges for our teams in delivering services to people with disability.
The Qantas Group has not responded to all the questions in the Issues Paper – instead, it has set out below a few key issues of particular interest to the Qantas Group in response to the matters raised in the Issues Paper. The Qantas Group would welcome a further opportunity to participate in the next stages of the DD Act review, including to participate in any relevant forums as an employer and provider of goods and services, and to comment on the exposure draft in due course.
2. Response to Consultation Questions
2.1 Part 1: Updating understandings of disability and disability discrimination
(a) Response to Consultation Questions 1 and 2 – Definition of Disability
Qantas Airways Limited, ABN 16 009 661 901, 10 Bourke Road Mascot NSW 2020 Australia
Telephone +61 2 9691 3636, qantas.com
The Qantas Group agrees that the definition of disability should be modernised including considering the importance of having clarity about when and how a person identifies with disability.
(b) Response to Consultation Questions 5 and 6 – Direct Discrimination
If the definition of direct discrimination and burden of proof is updated/amended, the Qantas Group prefers the Disability Royal Commission’s recommendation to adopt the UK model of direct discrimination as set out in the Issues Paper. The Qantas Group supports a definition that is clear and workable for the person with a disability and for businesses.
(c) Response to Consultation Questions 7, 8 and 9 – Indirect Discrimination
The Qantas Group agrees that the definition of indirect discrimination should be updated/amended – but this requires careful drafting because reasonableness is an important element in the current definition. The Qantas Group supports a definition that is clear and workable for the person with a disability and for businesses. The Qantas Group would like to give this further thought but options (b) retention of reasonableness and supplemented with a list of factors to consider or (c) replacement by a legitimate and proportionate test are preferred at this time.
Further clarity should be given on factors to be taken into account – for example, express reference should be added safety considerations (eg, safety of the person with a disability and others etc) and other relevant legal obligations (eg, civil aviation and safety considerations).
2.2 Part 2: Positive duty to eliminate discrimination
(a) Response to Consultation Questions 12 to 15
The positive duty should also be carefully drafted and should reflect the provisions in the Sex Discrimination Act 1984 (Cth).
2.3 Part 3: Encouraging inclusion of people with disability in employment, education and other areas of public life
(a) Response to Consultation Question 19 – Unjustifiable Hardship
The Qantas Group agrees that the definition of unjustifiable hardship should be updated/amended. The Qantas Group prefers option 1, the Disability Royal Commission recommendation as proposed, over the alternative definition proposed.
The Qantas Group submits that two additional factors should be added to the definition of unjustifiable hardship:
- safety eg, safety for the person with a disability and safety of others (eg, workers, public, other customers etc; and
- other legal obligations (eg, civil aviation and safety obligations, public health obligations and other obligations such as licensing etc).
(b) Response to Consultation Questions 20 to 22 – Inherent Requirements and interactions with other legislation
The Qantas Group submits that two additional factors should be added to the inherent requirement provision:
- safety eg, safety for the person with a disability and safety of others (eg, workers, public, other customers etc; and
- other legal obligations (eg, civil aviation and safety obligations, public health obligations and other obligations such as licensing etc).
2.4 Part 5: Exemptions
(a) Response to Consultation Questions 33 to 35 – Exemptions
The Qantas Group considers that the following permanent exemptions could be updated/amended:
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Special measures, section 45 of the DD Act: this could be broadened to make it easier for duty holders to act positively towards people with disability etc (eg, to permit targeted recruitment of people with disability etc). For example, to support substantive equality for persons with a disability, differential treatment is sometimes required.
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Acts done under statutory authority, section 47: this provision should be updated/amended because it is outdated and has not been working as intended. Section 47 is not sufficiently broad enough to capture relevant acts done under statutory authority or compliance with laws.
Section 47(2) of the DD Act currently provides that Part 2 of the DD Act does not render unlawful anything done by a person in direct compliance with a prescribed law. While ‘law’ is defined as ‘a law of the Commonwealth or of a State or Territory’ or ‘regulations or any other instrument made under such a law’, the prescribed laws are listed in regulation 6 of the Disability Discrimination Regulations 2019 (DD Regulations). The DD Regulations are required to be reviewed and updated but regular review and update has not always taken place – the most recent amendment to the list was in 2021.
The current list of prescribed laws could be retained in the DD Regulations – but there would need to be regular review and an updated process for adding items to the list in the DD Regulations.
A general provision could also be added about acts done under statutory authority or compliance with other laws that are not prescribed in the DD Regulations – in addition to the prescribed list in the DD Regulations if that is retained.
For example, duty holders should be able to rely on other legal obligations in certain situations without the need for prescription in the DD Regulations – eg, emergency exit rows which is an existing exemption in the DD Regulations.
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Assistance animals, section 54A: see detailed response below in relation to assistance animals. This provision could also benefit from update/amendment.
2.5 Part 6: Modernising the Disability Discrimination Act – Assistance Animals
Assistance animals is a complex issue, and the Qantas Group agrees that persons with a disability and duty holders would benefit from clarity in relation to assistance animals in the DD Act.
The Qantas Group has been participating in consultations related to this issue for many years and is calling for regulatory change.
This issue requires careful consideration – eg, it may be beneficial for relevant training organisations to be prescribed under the DD Regulations. However, there does need to be clarity on the important difference between trainers and accreditors, and a proper process for assessment, accreditation and supervision/monitoring of the list of trainers or training organisations etc.
The Qantas Group considers that there is benefit in having updated/amended provisions including:
- an additional factor included dealing with the nature of the assistance animal and the nature of the proposed access – eg, it is for work purposes, to a café/restaurant or a more complex environment such as an aircraft; and
- an additional factor included about safety obligations (eg, safety of the person with a disability, safety of the dog, safety of others including co-workers, staff, public, other customers etc) and other legal obligations (eg, civil aviation and safety obligations and hygiene etc related matters).
3. Final comments
Thank you for this opportunity to comment on the Issues Paper. The Qantas Group would welcome a further opportunity to participate in the next stages of the DD Act review, including to participate in any relevant forums as an employer and provider of goods and services, and to comment on the exposure draft in due course.