Review of Captioning Standards under the Broadcasting Services Act: Submission of the Acting Disability Discrimination Commissioner
[Note: The paper from the Department of Communications, Information Technology and the Arts to which this submission responds may be found on the Department's internet site .]
The paper issued by the Department of Communications, Information Technology
and the Arts calling for submissions notes that the Acting Disability
Discrimination Commissioner is conducting an inquiry under the Disability
Discrimination Act into captioning of video and television. Initial submissions,
an Issues Paper and submissions in response to that Issues Paper
are available on the Human Rights and Equal Opportunity Commission's
Internet site.
The Commissioner's inquiry is concerned with captioning of video and television
material generally, including responsibilities regarding current
analogue broadcasting and other current transmission, rather than
only in the context of future digital broadcasting. Clearly, however,
there is substantial overlap between the Department's review and
the Commissioner's inquiry. The Commissioner
- considers that the Issues Paper and submissions in the Commissioner's inquiry provide useful material for the Department and other participants in this review to consider, and encourages the Department to draw upon them
- proposes to defer a report in his inquiry until 31 March 1999 to allow consideration of submissions received in the Department's review
- may issue then issue a further paper prior to conclusion of the Department's review
- would welcome further discussion with the Department and other interested parties on the relationship of these processes.
Several submissions in response to the Issues Paper argue that the provision by the Broadcasting Services Act for captioning standards to be set in the context of conversion to digital broadcasting has displaced the application which the Disability Discrimination Act might otherwise have, on the basis of the principle of statutory interpretation that subsequent more specific legislation prevails over prior general legislation.
The Commissioner does not accept that the application of the DDA to captioning of broadcast television has yet been displaced by the captioning regime provided for by the digital conversion legislation. This legislation provides for captioning requirements to be introduced in future by regulation; it does not itself introduce any captioning requirements which could be regarded as displacing the effect of the DDA.
Once captioning standards under the Broadcasting Services Act are developed and are in force it may be more plausibly argued that where these specific standards apply they displace the general provisions of the DDA. However, in the Commissioner's view this would remain subject to uncertainty. It is strongly arguable that Parliament should not be found to have provided for the effect of primary legislation such as the DDA to be displaced by subsequent delegated legislation under another Act unless it clearly states an intention to do this. No such statement is apparent in the digital conversion legislation.
Several submissions to HREOC's inquiry, including the submission of the Federation of Australian Commercial Television Stations, argued that it is not desirable for broadcasters to have different captioning obligations derived from a variety of legislative regimes. However, the digital conversion legislation itself does not displace the application of the DDA. The introduction of captioning standards under that legislation may or may not be found to do so. Broadcasters can best have a single or consistent set of obligations if the present review by the Department leads to issues which would otherwise arise for determination under the DDA being addressed in one of these ways:
- by the Parliament appropriately specifying that the DDA no longer applies to these issues or
- by the Commissioner being satisfied that he should decline complaints under DDA section 71(2)(e) on the basis that that the subject matter had already been adequately dealt with or
- by the Commission giving more definite legal recognition by granting an application for temporary exemption under section 55 of the DDA on the basis of compliance with captioning standards under the Broadcasting Services Act.
The Commissioner has not yet formed a definite view on what timetables for increased levels of captioning and issues of quality of captioning would be adequate. It appears appropriate to await progress in the Department's review in this respect.
It is, however, difficult to see how a complaint could be considered adequately dealt with under the Broadcasting Services Act standards if it were concerned with types of programming not addressed in the digital conversion legislation, that is, programming other than news, current affairs or prime time programming.
If HREOC is to defer to the broadcasting regulation regime (as industry representatives argue in HREOC's inquiry) there must be either an appropriate comprehensive regime applying to the subject matter for HREOC to defer to, beyond the categories presently referred to in the digital conversion legislation, or clear evidence that captioning of particular classes of material is not feasible or would impose unjustifiable hardship.
CHRIS
SIDOTI
Acting Disability Discrimination Commissioner
2 February 1999