margr1440

22 February 2000
David Mason
Disability Rights Unit
HREOC
Level 8, 133 Castlereagh Street
Sydney NSW 2000

Dear David,

Please find following this Centre's response to the Inquiry Paper.

The NSW Disability Discrimination Legal Centre is the statewide legal service provider established to assist people with disabilities to utilize the legal protection provided by the Disability Discrimination Act 1992. The Centre provides legal advice and casework support, community legal education and undertakes policy and law reform activities.

Since it was established in 1994 the Centre has assisted thousands of people needing advice about possible discrimination. In that time, the Centre has received ongoing complaints from Deaf and hearing impaired people in relation to the discrimination inherent in the lack of television captioning. Further, the Centre has done considerable work with Deaf advocacy organisations in relation to captioning. Clearly, it remains an enormous systemic discrimination issue.

It is on the basis of our experiences with clients as well as our interpretation of the Disability Discrimination Act 1992, that this submission is made.

I look forward to hearing from you as to the outcome of this Inquiry Paper.

Yours sincerely

Sharon Offenberger

Solicitor

Disability

Discrimination

Legal Centre (Inc)

The NSW Disability Discrimination Legal Centre was established in 1994 to assist people with disabilities and their associates to utilize the protection from discrimination provided by the Disability Discrimination Act 1992 (ÔDDAÕ). The Centre is funded to provide free legal services to people with all types of disabilities and their associates, and to undertake law reform and policy activities to further the objects of disability discrimination law.

In the six years since its establishment, the Centre has provided advice to thousands of people with disabilities about discrimination which they are experiencing. In addition, the Centre has presented legal information workshops for people with disabilities across the state.

Like most legislation, the DDA has stated objects in section 3 which include:

¥ the elimination of discrimination, as far as possible;

¥ ensuring the same rights to equality before the law, as far as practicable; and

¥ the promotion and acceptance of the principle that people with disabilities have the same fundamental rights as the rest of the community.

These objects provide the guiding principles for the application and interpretation of the legislation.

The Act is clearly beneficial legislation. It was introduced by Parliament to "constitute the legal basis for the protection and promotion of the rights of people with disabilities" and "overcome social and economic disadvantage by assisting people with disabilities to participate as equals in Australian society".

Section 15AA of the Acts Interpretation Act (Cth) provides that when interpreting a provision of an Act "a construction that would promote the purpose or object underlying the Act (whether that purpose or object is expressly stated in the Act or nor) shall be preferred".

The rules of statutory interpretation require that sections of the DDA, including the use of Commission's powers, be interpreted in a way that promotes the purposes underlying the DDA.

The Paper seeks comment 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 basis pending further regulatory or other developments or more generally;

¥ if other measures which could have been or could be proposed should be so accepted;

¥ should regulations setting standards under the Broadcasting Services Act be regarded as displacing the legal application of the Disability Discrimination Act in its area.

The primary objectives of the captioning standard under the BSA are:

¥ that, as far as practicable, commercial and national television broadcasters should provide a captioning service for television programs transmitted during prime viewing hours (defined as 6pm to 10.30pm); and

¥ that, as far as practicable, broadcasters should provide captioning service for television news programs and television current affairs programs, transmitted outside prime viewing hours.

An Option Papers was promulgated by the Department of Communications, Information Technology and the Arts to promote discussion as to the best option for progressing with a BSA standard. The Paper presented 4 options for the type of standard that would be the most effective. As yet, none of these options have been selected as the most appropriate standard. Consideration of discriminatory aspects arising from that standard is entirely dependent on which standard is adopted. Without knowing which type of standard would be adopted, it is difficult and pre-emptive to comment on how a potential BSA standard affects the complaint of discrimination received by the Commission. In the context of that complaint, no BSA standard yet exists.

More importantly, the standards proposed under the BSA do not provide a comprehensive strategy to address the discrimination inherent in the lack of television captioning. The proposed standards apply to a particular time and a particular type of broadcasting. Even obligations of broadcasters within these areas are further qualified as being required only "as far as practicable".

The BSA legislation and standard only go a small part of the way to addressing the discrimination inherent in the lack of television captioning. The standard will not prevent, for example, discrimination in accessing educational or other entertainment programs which are outside "prime viewing hours". Discrimination in the provision of educational or entertainment programming is not adequately addressed by the BSA or any of the proposed standards.

The definition of services in the DDA includes "services relating to entertainment".

Television broadcasters provide the service of entertainment. The DDA does not limit the service of entertainment to particular hours or a particular type of entertainment. Nor does it suggest that only news related programming is entertainment. As television broadcasters provide "entertainment" well beyond this, the lack of captioning of all entertainment services provided by television broadcasters is clearly discriminatory.

We note, as an example, that the BSA proposed standards do not address discrimination in educational programming for children outside prime viewing hours, as children's television usually is. Whilst it is not apparent from the Inquiry Paper the exact nature of the complaint, this example just shows the way in which a BSA standard would be inadequate in dealing with the breadth of discrimination inherent in the lack of captioning.

Anything less than full captioning is discrimination against Deaf and hearing impaired people. Like any hearing person, a Deaf or hearing impaired person is entitled to make their own choice as to which television programs to watch.

The objects of the DDA acknowledge that people with disabilities have the same fundamental rights as the rest of the community. The right to choose is a fundamental right of all members of the community. To provide only a limited choice to Deaf or hearing impaired people is not allowing the same fundamental rights as other members of the community.

Restricting the viewing opportunities of Deaf and hearing impaired people is clearly providing them with a less favourable service. Any assumption that a Deaf adult is only concerned with the captioning of "adult" viewing is discriminatory.

We are concerned that the Inquiry Paper does not seek submission on the importance of captioning to the complainant in accessing information, education and entertainment. It may be assumed from this that it is commonly understood that the lack of full captioning in television broadcasting is undeniably discrimination under the DDA. We acknowledge that submissions on this point may have been received on the previous captioning inquiry.

The words "more appropriate remedy" and "dealing adequately" must be given their ordinary meaning. This means that the remedy must be more appropriate, not partly appropriate. Alternately, it must adequately deal with the subject matter, not partly deal with the subject matter.

It would therefore be a gross overstatement to suggest that any BSA standard would provide a "more appropriate" remedy than the DDA for the subject matter of the complaint. There are many ways in which any BSA Standard would provide no remedy at all for the discrimination inherent in the lack of television captioning.

We assume that the complaint lodged does not merely complain about lack of captioning in "prime viewing hours" and/or lack of captioning of news and current affairs programs. To suggest that the BSA standard, which can address ONLY these areas of broadcasting, is dealing adequately or more appropriately with the subject matter of the complaint is inaccurate and clearly open to legal challenge.

In providing a limited or restricted right to chose for Deaf or hearing impaired people, the BSA standard cannot in any sense be a remedy which is adequate or more appropriate than a remedy under the DDA. As noted above, the DDA acknowledges that Deaf and hearing impaired people have the same fundamental rights as the rest of the community. This includes a right to choose one's entertainment in the same way that a hearing person may make those choices. The BSA does not recognise this right.

We submit that the proposed BSA standard is not an appropriate or adequate remedy, either in the interim or pending further developments. In fact, we submit that until the standards require full captioning, they should be treated as NOT adequately addressing the discrimination in the provision of broadcasting services.

We note the previous Acting Disability Discrimination Commissioner Sidoti, in his submission to Department of Communication, Information Technology and the Arts on the Review of Captioning Standards under the Broadcasting Services Act stated:

"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."

As no BSA standard yet exists, there is no remedy (inadequate or otherwise) under the BSA for the complainant whose complaint is the subject of this public inquiry.

Further, it has not yet been determined whether the provision of an inadequate captioning standard under the BSA may itself be discrimination in the administration of a Commonwealth law or program for a particular broadcaster.

There is no foundation to suggest that the proposed BSA standard could displace the legal application of the DDA. There are a number of mechanisms in the DDA which allow for its displacement by another instrument.

The DDA has mechanisms for setting Standards (section 31) which would operate in place of the complaints mechanism if complied with, even though there is no specific mechanism for setting standards in relation to services. Alternately, the DDA allows for exemptions to be granted (section 55). It further allows for the prescription of laws so that anything done in direct compliance with that law is effectively exempted from complaint under the DDA (section 47).

There is no foundation for the Commission to find that, outside these existing mechanisms, the DDA is displaced by another instrument.

The BSA could only be considered to legally displace the DDA as a later Commonwealth statute if the BSA was inconsistent with the DDA.

The BSA does not evidence an intention to displace or be inconsistent with the DDA in relation to captioning. It is arguable that a secondary legislative statutory instrument such as a standard cannot displace the primary provisions of a statute such as the DDA. The proposed BSA standard can therefore not be said in any legal or logical sense to displace the provisions of the DDA.

The BSA standard deals with a limited area of captioning. In doing so, it restricts the rights of Deaf and hearing impaired people to make choices in relation to entertainment. The DDA deals with much broader areas of discrimination and acknowledges that people with disabilities should have the same fundamental rights. To allow the BSA standard to be a complete set of a television broadcaster's obligations to provide a non-discriminatory service would unfairly and improperly limit the rights of Deaf and hearing impaired people contrary to the intentions and objects of the DDA.