Australian Association of the Deaf is grateful for the opportunity to submit to the Human Rights and Equal Opportunity Commission the following comments.

The Australian Association of the Deaf (AAD) is a national consumer group that represents Deaf people who use sign language as their primary means of communication. The AAD has made, and continues to make significant contributions towards improving the quality of life of Deaf people in Australia. The AAD enables Deaf people to seek their entitlements and assert their rights as contributing citizens of the community.

The aims of AAD include the education of the Deaf community about their basic rights and obligations under law; the education of the general community about issues relating to deafness; and lobbying government and other decision making bodies to ensure that the rights of Deaf people are taken into account in policy reform and service provision. Sign language is the main distinguishing feature that defines the Deaf community. As the national peak organisation for Deaf people, AAD is instrumental in promoting and preserving sign language as the official and indigenous language of our community in Australia.

The comments made in this submission by AAD are based on our view to the relevant questions asked by the Commission. Please note that our comments in no way form any firm legal opinion but rather issues of concern by this association.

The issue of captioning on Australian Television has become an important one in the light of the complaint received by the Commission and the preceding captioning inquiry. Furthermore the Department of Communication, Information Technology and the Arts have undertaken two separate inquiries based on the review of captioning standards and the subsequent options paper. It appears that the Australian government has recognising the significance of captioning for Deaf and hearing impaired viewers of television in Australia. Unfortunately legislative measures in place in Australia today only goes a small way in addressing the issue of access to television for all Australians.

For those Deaf and hearing impaired individuals, captioning on television is the only method in which effectively affords access to this group in the community. For a Deaf person access to information through the viewing of television is not forthcoming unless captions are provided.

The Disability Discrimination Act provides that for the elimination of discrimination for people with disabilities. Section 24 of the DDA makes discrimination unlawful in the provision of access to services. A defence to this section is where the discriminatory behaviour would involve unjustifiable hardships on the supplier of goods and services. The definition of services in the DDA includes services relating to entertainment and therefore would qualify television broadcasters as a provider of entertainment.

The Inquiry of captioning of television broadcasts seeks views on

• whether the Broadcasting Services Act standards, when available, should be accepted as providing a more appropriate remedy or dealing adequately with the subject matter of these complaints – either on an interim bases pending further regulatory developments or more generally;
• if other measures which have been or could be proposed should be so accepted; and
• should regulations setting standards under the Broadcasting Services Act be regarded as displacing the legal application of the Disability Discrimination Act in this area

We will attempt to address the first and third issue in the first instance before turning to the second issue.

In regards to the whether the BSA proposed standards could act as an appropriate remedy poses some difficulty to answer due to the fact that proposed BSA standard has yet to be announced by the Minister following from the Department of Communication, Information Technology and the Arts review of the 'options paper'. Four different options were proposed in this 'options paper' as to possible standards that could be implemented.

The development of Standards as proposed by the options paper do not appear to go towards addressing the issues of captioning in prime time television viewing. The BSA standards appear to only set a minimum for broadcasters to comply with. From those standards suggested in the options paper, the exemptions and phase in periods appear to be substantially less than that imposed by the legislation. The standards only relate to a specific time of prime time television and would not cover television viewing outside of this time. This includes children's programs and educational programs available for viewers currently scheduled outside of prime time viewing.

Additional to this issue of whether the BSA standards should be accepted as an appropriate remedy in dealing with the subject matter of these complaints is that at the time of this inquiry AAD is not aware of the nature of the captioning complaint. If this complaint only relates to prime time viewing or extends to viewing outside of this time, makes it somewhat difficult to pre-empt whether the BSA standards could act as an appropriate remedy in dealing with such complaints. Furthermore, the BSA standards only relate to a particular time and if a complaint was lodged outside of this time frame, then the proposed standard would not effectively address the complaint of discrimination.

AAD do however, submit that the proposed standards that have been developed to date by the Department of Communication, Technology Information and the Arts would not be an appropriate remedy to deal with the subject matters of these complaints, either on an interim basis or more generally once the standards have been fully developed and announced due to the shortcomings as outlined above.

The inquiry is interested as to whether regulations settings standards under the BSA be regarded as displacing the legal application of the DDA. Although it appears that later laws supersede earlier laws to the extent of any inconsistency, the BSA and DDA are however, not inconsistent. The DDA sets out the rights of people with disabilities where discrimination occurs. The BSA imposes minimum standards for broadcasters in captioning of digital television. There is nothing in the objects or substantive provisions of the BSA which evidence an intention to replace broadcasters obligations under the DDA.

The BSA standards appear to set a minimum for broadcasters to comply with, in much the same way that Building code of Australia sets a minimum standard for builders. There are many laws which operate in conjunction with the anti discrimination law, for example tenancy laws which impose obligations on landlords and agents.

It is submitted that the standards proposed under the BSA would not meet the full obligation of broadcasters/ service providers under the DDA. To exclude the DDA would therefore effectively limit the rights of Deaf and hearing impaired people which would be contrary to the objects of the DDA which is beneficial legislation. The DDA is designed to eliminate discrimination, promote equality and acceptance of fundamental rights of people with disabilities.

In terms of regulations setting standards under the BSA, it is submitted that making regulations that do not impose the full captioning requirements to the extent possible under the BSA be a breach of the DDA. If regulations only set a minimum, then discrimination arises because broadcasters only then comply with that minimum.

There appears to be no basis for suggesting that standards under the BSA be regarded as displacing the legal application of the DDA.

AAD is of the view that HREOC may have a number of possibilities in dealing with complaints about captioning. Where standards have been developed and announced, the BSA Standards may be prescribed under s.47 of the DDA which means that anything done in direct compliance with the BSA would be exempted from the operation of the DDA. Again because the standard only sets a minimum standard, it does not mandate that no other captioning outside of those hours be provided. Therefore failure of broadcasters to caption other programs may not be considered in direct compliance with the BSA.

HREOC could also decline the complaint as adequately dealt with. Because the BSA only deals with a limited range of captioning obligations, we do not consider that decline of a complaint on the basis that it was complied with the BSA is adequately dealt with. This is due to the limitations of the BSA as being only able to make standards in relation to prime time viewing. The issue of whether complaints fall outside of this time frame is still impending.

HREOC may also allow for an exemption. Such exemptions however have to be decided within the objects of the DDA. If the broadcaster could show that it was attempting to eliminate discrimination, would such an exemption only be granted.

If the broadcasters move current resources into captioning to comply only with the BSA, this may result in a overall reduction of captioned television. This would clearly show that a minimum level of captioning required by legislation is not eliminating the discrimination which exists nor promoting equal access to public services.

In regards to proposed standards being developed under the BSA, such standards at a glimpse only deals with captioning within the prime time viewing hours. This therefore limits the choices of captioned viewers to those hours and discrimination will continue to occur. It would be reasonable to suggest here that the issue of captioning television has canvassed a more broader approach where there is a need to look beyond the current legislative measures and the proposed standards. The issue of eliminating the current restrictions of captioning would appear to be a more plausible method of addressing the discrimination of accessing television for Deaf and hearing impaired people.

On a final note, AAD wish to thank the Commission for the opportunity to submit comments to the inquiry. We do however have a concern regarding the issue that a legal knowledge seems to be required to provide comments to the inquiry, especially where questions are being asked if one law should be seen as displacing the legal application of another law. The inquiry focuses around the legal issues inherent with the DDA and BSA and results in the exclusion of valuable comments from community organisations and individuals that do not have a legal background. We hope that in future inquires the Commission will consider this issues to allow for increased participation by the community.

Australian Association of the Deaf

February 28, 2000