Disability Discrimination Amendment Regulations 2009 (No. 1)

Administered by Attorney-General's Department

Legislation au F2009L03401 Regulations Not in force Legislative Instrument

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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. 

 

 

Overview

The Disability Discrimination Amendment Regulations 2009 (No. 1) were enacted to address a specific issue arising from the intersection of aviation safety requirements and disability discrimination law. These regulations were introduced to ensure that airlines and aviation operators are not subjected to claims of unlawful discrimination under the Disability Discrimination Act 1992 when complying with safety regulations that incidentally discriminate on the basis of disability. The Civil Aviation Order (CAO) 20.16.3, which restricts people with disabilities from occupying emergency exit row seating for safety reasons, was identified as potentially conflicting with anti-discrimination laws. To resolve this, the regulations prescribe CAO 20.16.3 as a law under section 47 of the Disability Discrimination Act, thereby exempting compliance with this safety regulation from the Act's prohibition on disability discrimination. This legislative instrument was developed following recommendations from the Aviation Access Working Group, which includes representatives from disability organisations, industry stakeholders, and government departments, to ensure a balanced approach to safety and accessibility in air travel.

Scope and Application

The Disability Discrimination Amendment Regulations 2009 (No. 1) pertain to the Disability Discrimination Act 1992 and provide for the prescription of specific laws, ensuring that certain acts are not considered unlawful discrimination under the Act. The Act itself prohibits discrimination on the basis of a person's disability, but exemptions are provided, such as when an act is done in direct compliance with a prescribed law. The primary focus of these Regulations is to amend the Disability Discrimination Regulations 1996 by adding Civil Aviation Order (CAO) 20.16.3 to Schedule 1. This particular Order restricts people with disabilities from occupying emergency exit row seating in aeroplanes for safety reasons, and by prescribing it, the Regulations aim to provide certainty for airlines and aviation operators that they would not be held liable for unlawful discrimination when adhering to this aviation safety requirement. The Regulations apply nationally, as they are a legislative instrument under the Commonwealth of Australia, and they extend the application of the Act through subordinate instruments by incorporating CAO 20.16.3 as a prescribed law.

Key Provisions

The main operative sections of these Regulations are set out in Schedule 1, where Civil Aviation Order (CAO) 20.16.3 is listed as a prescribed law under the Disability Discrimination Act 1992 (the Act). This addition to Schedule 1 ensures that compliance with CAO 20.16.3, which restricts people with disability from occupying emergency exit row seating in aeroplanes for safety reasons, is not considered unlawful discrimination under the Act (section 47(2)). This amendment aims to provide certainty to airlines and aviation operators that they will not be subject to claims of discrimination when adhering to this safety requirement. The Disability Discrimination Amendment Regulations 2009 (No. 1) impose obligations on airlines and aviation operators to comply with CAO 20.16.3. This includes ensuring that individuals with disabilities are not seated in emergency exit rows to maintain safety standards. By prescribing CAO 20.16.3 as a law under the Act, the Regulations mandate that adherence to this civil aviation order is not considered discriminatory, provided the order is being directly complied with. This places the responsibility on airlines and operators to implement these safety measures appropriately. The Act itself does not prescribe specific offences or penalties for breaching the Regulations. However, any failure to comply with CAO 20.16.3 could potentially lead to consequences under other relevant aviation safety legislation or regulations administered by the Civil Aviation Safety Authority (CASA). In such cases, penalties could include fines, enforcement actions, or other regulatory sanctions as outlined by CASA. The primary focus of the Regulations is to ensure compliance with safety requirements rather than imposing direct penalties for breaches of the Act. In summary, the Disability Discrimination Amendment Regulations 2009 (No. 1) clarify that compliance with CAO 20.16.3 is not considered unlawful discrimination under the Disability Discrimination Act 1992. These Regulations impose obligations on airlines and aviation operators to adhere to the safety requirements outlined in CAO 20.16.3. While the Regulations themselves do not specify penalties for non-compliance, any breaches of related aviation safety regulations could result in consequences under other aviation laws.

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Aviation Law
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Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.