Update on Inquiry on television captioning complaints under Disability Discrimination Act
Latest document in this matter: March 2001 forum
On 19 November 1999 the Human Rights and Equal Opportunity Commission (HREOC)'s Acting Disability Discrimination Commissioner, Susan Halliday, issued a Notice of Inquiry regarding complaints under the Disability Discrimination Act 1992 alleging discrimination by a number of television stations regarding captioning of television programming. She requested submissions by 22 February 2000 for the purposes of inquiring into these complaints, including to:
- assist her and the parties to the complaints to identify options for resolution;
- assist her to determine whether the power under section 71 of the Act to decline the complaints should be exercised (whether on the basis that another more appropriate remedy is reasonably available or on other grounds); and
- assist her to decide whether the subject matter is such that it should be referred to the Commission for determination.
The Notice of Inquiry indicated that the Commissioner would take into account
- relevant information provided to HREOC during its 1998 general inquiry on captioning;
- materials and submissions in the Review undertaken by the Department of Communications, Information Technology and the Arts pursuant to Part 4, Schedule 4 of the Broadcasting Services Act, available on the Department's Internet site;
- standards under the Broadcasting Services Act, resulting from the Department's review, when available.
Captioning standards under the Broadcasting Services Act were expected to be available in December 1999. They have not yet been issued but remain expected imminently.
This paper provides comment, for the information of interested parties, on issues highlighted in submissions:
- Whether lack of captioning is unlawful discrimination under the DDA
- Whether the effect of the DDA has been displaced by the Broadcasting Services Act or will be displaced when captioning standards under that Act are made.
- Approaches to assessment of the adequacy of remedy which might be provided by captioning standards.
This paper sets out views rather than decisions. These views are set out by me for the purposes of discussion, and do not commit the Acting Disability Discrimination Commissioner to particular subsequent decisions.
Because of the potential importance of such standards to the subject matter of the complaints covered by this inquiry, the Acting Disability Discrimination Commissioner proposes to defer a decision on further actions in this matter pending possible developments with captioning standards. Further comments from interested parties during this period will also be taken into account. Any comments should be provided by 20 April.
If possible, submission of comments by email, to disabdis@hreoc.gov.au , is strongly preferred. Comments can also be submitted by mail to GPO Box 5218 Sydney 1042 - on disc rather than paper is preferred if possible.
Graeme Innes
Deputy Disability Discrimination Commissioner
16 March 2000
Is lack of captioning unlawful discrimination under the DDA
A number of submissions on the HREOC Notice of Inquiry raised the issue of whether lack of captioning is covered as unlawful discrimination under the DDA.
- The submission from ABC television in response to the Notice of Inquiry maintains the position taken by the ABC in its earlier submissions that non-provision of closed captioning does not constitute disability discrimination under the DDA.
- The submission from FACTS assumes for the purposes of discussion that failure to provide captioning is discriminatory but specifically does not concede the point.
- The submission from the NSW Disability Discrimination Legal Centre expresses concern that the Notice of Inquiry did not specifically seek submissions on the importance of captioning, while acknowledging that "submissions on this point may have been received on the previous captioning inquiry".
The Notice of Inquiry did not specifically seek comment on whether lack of captioning constitutes discrimination under the DDA, or on the importance of captioning to people with hearing impairments, since these issues were discussed at some length in the papers issued in the Commission's general inquiry on captioning and in a number of submissions to that inquiry, all of which are available (and have at all relevant times been available) on the Commission's web site.
The Issues Paper released by then Acting Disability Discrimination Commissioner Chris Sidoti in 1998 states the position on coverage of these issues by the DDA as follows:
- direct discrimination (treating persons less favourably because of disability) and
- indirect discrimination (imposing an unreasonable condition or requirement which a person with a disability cannot comply with and with which a substantially smaller proportion of persons with that disability are able to comply with than persons without the disability).
- lack of captioning is reasonable in the circumstances or
- in the case of non-Commonwealth providers, it can be shown that provision of non-discriminatory service would involve unjustifiable hardship or
- an exemption under section 55 of the DDA has been applied for by or on behalf of the provider concerned and has been granted by HREOC. "
"The Disability Discrimination Act (section 24) makes discrimination unlawful in the provision of services. It specifically includes services related to entertainment and services of a kind provided by government. Section 24 of the DDA clearly applies to discrimination affecting television services, including programs and advertising.
In addition, the television services of the Australian Broadcasting Corporation and the Special Broadcasting Service, as well as Commonwealth Government television advertising, are covered by section 29 of the DDA, which makes discrimination unlawful in the administration of Commonwealth programs.
Discrimination for this purpose includes
Captioning can be included in television material. In fact television services do include some captioned material.
The transmission of programs without captioning therefore appears highly likely to involve imposing a condition or requirement, rather than being an inherent part of the nature of the service concerned. The condition is that a person be able to hear for the person to be able to have access to the service on an equal basis.
Clearly, people who are deaf or have a hearing impairment are substantially less able to comply with such a condition compared to people who do not have a hearing impairment.
Such a condition or requirement would be discriminatory and thus liable to be found unlawful under the DDA except where
This remains an accurate statement of the position in my view - except that it does not refer to the possibility of the DDA being displaced by standards under the Broadcasting Services Act, because when this paper was issued no provision for such standards had yet been made.
Captioning standards under the Broadcasting Services Act
The Broadcasting Services Act provides that captioning standards, to be made by regulation, will apply to commercial and national broadcasting services from the date at which their respective services commence broadcasting in the digital mode. In metropolitan areas this is scheduled for 1 January 2001 and in regional areas during the period 1 January 2001 to 31 December 2003. The standards will apply to both digital and analog transmissions.
The legislation sets out two primary objectives in relation to the determination of standards for captioning:
- 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 6:00 PM to 10:30 PM); and
- that, as far as practicable, broadcasters should provide a captioning service for television news programs, and television current affairs programs, transmitted outside prime viewing hours.
The Notice of Inquiry asked for 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 basis pending further regulatory or other 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.
When the Notice of Inquiry was issued the Minister was expected to table a report in Parliament by the end of 1999 and to make an announcement on the proposed captioning standard.
However, to date no standard has yet been made or details of a proposed standard released.
Has the Broadcasting Services Act displaced the application of the DDA to broadcast television captioning ?
Commissioner Sidoti's submission to the Broadcasting Services Act review (again, as Acting Disability Discrimination Commissioner at the time) stated:
- 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. "
"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:
In its submission responding to the current Notice of Inquiry, the ABC maintains its position that
"the Television Broadcasting Services (Digital Conversion) Act has displaced any operation of the DDA in respect of captioning of the ABC's television programs, from the date of proclamation of the legislation. The ABC submitted that the DDA does not apply to the captioning of ABC television programs in the lead-in time before the standards under the BSA apply. As a consequence of the legal displacement, the ABC believes that these standards, when available, should be accepted as providing a more appropriate remedy for dealing with the subject matter of the complaints. "
The Federation of Australian Commercial Television Stations addresses this issue in some detail. They summarise their position as follows:
"FACTS believes it is clear that the detailed and specific provisions of the Television Broadcasting (Digital Conversion) Act 1998 ("DCA") have overridden the application of the Disability Discrimination Act 1992 ("DDA") in relation to a complaint about a failure to caption programming on commercial television."
This position is based on the well accepted legal principles that
- a later act of the same parliament may repeal an earlier act either by express words or, where the provisions of the later act are inconsistent with those of the former, by necessary implication and
- where a later and more detailed act comes into conflict with an earlier more general act the later more elaborate and detailed act will repeal the former act to the extent of the inconsistency.
In FACTS view the BSA digital conversion provisions are inconsistent with the DDA or, if they stand together, operate in an absurd fashion.
FACTS point to the following as indications of inconsistency of the two laws:
"(a)the DDA provides the framework for the progressive and increased provision of captioning via a s64 action plan, but the DCA provides a far more detailed regulatory scheme for the achievement of the same end;
(b)the DDA provides a limited form of redress for breaches of s24, whereas the DCA provides for large fines (in excess of that likely to be received in damages under the DDA) and the suspension or cancellation of commercial television broadcasting licences;
(c)it would be an absurd situation to require television stations to comply with the goals and targets set under the clause 38 regulations and still be liable to additional proceedings under the DDA, as this would give the goals and targets under the DCA little or no meaning;
(d) the requirements of reasonableness and unjustifiable hardship under s24 of the DDA are all but impossible to reconcile with a detailed legislative regime such as that in the DCA (see discussion below); and
(e) if the two acts existed side by side, this would mean that a television station which had breached a regulation under clause 38, would be liable to not just the sanctions provisions of the BSA, but also proceedings under the DDA (a 'double jeopardy' argument)".
In FACTS's view
"The DCA provisions legislatively determine what is constituted by reasonableness or unjustifiable hardship. In the case of a complaint under the DDA within the scope of the DCA captioning provision, this makes the application of the DDA a nonsense."
FACTS does not argue, however, that the BSA displaces the DDA from application to all captioning issues:
"Clearly the DDA will continue to operate vis-a-vis the hearing impaired in the area of television broadcasting outside that covered by the BSA. This would include the provision of captioning for videos, pay TV and community TV."
The NSW Disability Discrimination Legal Centre's submission refers to Commissioner Sidoti's views quoted above, and states:
"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."
Analysis
The argument of the Disability Discrimination Legal Centre, that for the Broadcasting Services Act to displace the DDA would be contrary to the objects of the DDA, may be relevant for purposes of debate over what legislative and regulatory measures ought or ought not to be taken. In this context it would be necessary to look at the content of the displacing legislation, rather than simply assuming that the DDA itself provides the best or only permissible means for achieving the objects which it sets out. But this argument is not relevant for the purposes of legal decisions under these Acts on whether the DDA has in fact been displaced.
HREOC and the courts must, of course, interpret the DDA in the light of its own objects, and having regard to the legislative scheme of the DDA including the provisions for standards, action plans and exemptions. But the Broadcasting Services Act must be interpreted in the light of its own objects, and the effect of other legislation on the DDA must be determined in accordance with the Acts Interpretation Act. Despite the importance of the provisions and objects of the DDA, the DDA has no superior or controlling constitutional status relative to other laws of the Commonwealth.
In some situations, of course, the operation of the DDA may overlap with the operation of another earlier or later law without either being displaced. To give an analogy, no-one could argue seriously that the civil law regarding negligent driving, or criminal provisions regarding driving in a manner dangerous to the public, are displaced by the enactment of a more specific regime of speed limits for particular areas carrying with it its own scheme of penalties in license points and fines - although clearly the set speed limit will be an important factor in considering the application of more general laws.
In another area of the operation of the DDA, regarding access to premises, HREOC, industry and community organisations and local government and other regulatory bodies are all proceeding on the basis that the DDA operates concurrently with State laws incorporating the Building Code of Australia, rather than those laws having been impliedly repealed by the DDA. This is in spite of the fact that all parties recognise that this position of having two legal regimes applying independently imposes considerable difficulties and uncertainty and that the law in that area should be harmonised or consolidated as soon as possible consistent with the rights of all concerned.
The double jeopardy argument for inconsistency faces the objection that the DDA itself provides a number of mechanisms for avoiding this: in particular the provision for complaints to be declined which have already been adequately remedied or for which another more appropriate remedy is reasonably available.
Despite this, there is some force in the arguments advanced by FACTS for the view that if the Broadcasting Services Act had already set standards for captioning, the application of the DDA would be displaced by the operation of the BSA as a later, more specific and inconsistent law.
In particular, FACTS' argument in their point (c) above, that
"it would be an absurd situation to require television stations to comply with the goals and targets set under the clause 38 regulations and still be liable to additional proceedings under the DDA, as this would give the goals and targets under the DCA little or no meaning"
has some support from authority. As pointed out in their submission,
"The decision of the High Court in Blackley v Devondale Cream Pty Ltd (1968) 117 CLR 253 is relevant to the issue of inconsistency. In that case where a Commonwealth law said that an employee should be paid $x and a state law said that the same employee should be paid $x+y then the two laws were held by Barwick CJ (at 258) to be inconsistent even though it was possible to pay the larger amount and conform with both laws. The case is analogous to the situation here because the latter Act (the DCA) requires that the broadcaster meet certain standards. Yet if the DDA is to operate concurrently, then the broadcaster may also have to meet certain additional standards to comply with the earlier Act. On Barwick CJ's assessment the two are inconsistent."
However, it is necessary to recall that where one Act does not expressly modify another, the starting point is to presume that both pieces of legislation are intended to operate in their own terms. I note the following statement of the principle by Justice Gaudron in Saraswati v The Queen (1991) 172 CLR 1 :
"It is a basic rule of construction that, in the absence of express words, an earlier statutory provision is not repealed, altered or derogated from by a later provision unless an intention to that effect is necessarily to be implied. There must be very strong grounds to support that implication, for there is a general presumption that the legislature intended that both provisions should operate and that, to the extent that they would otherwise overlap, one should be read as subject to the other."
On balance, my view is (and unless modified by further argument my advice will be) that HREOC ought to proceed on the basis that the captioning provisions of the Broadcasting Services Act do not displace the operation of the DDA in this area and that HREOC ought to apply the DDA in its own terms (which of course includes the ability to take the BSA regime into account in deciding whether complaints are more appropriately dealt with under that regime).
It must be noted however that this position is not free from doubt.
Of course, any decision within HREOC on whether or not a complaint should be declined or terminated, on the basis that no unlawful act was involved because the DDA had been displaced by the operation of the BSA, would be able to be reviewed for correctness by the Federal Court.
More certainty for all parties in this respect might have been provided by a statement of specific legislative intention, although inconsistency of laws can be established without such a statement of intention, by looking as FACTS does at the effect of the two laws.
Despite FACTS' arguments, in my view it can be much more confidently stated that whether or not the BSA regime displaces the DDA once regulations are made, this displacement has not yet occurred. As pointed out by Commissioner Sidoti in the submission quoted above, the Broadcasting Services Act
"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 are made by regulation, compliance with these standards will be required by force of the Broadcasting Services Act. But until captioning standards are made under the Broadcasting Services Act, it is hard to see that the inconsistent legal regimes pointed to by FACTS yet exist.
I cannot accept that Parliament intended, or has achieved, a result whereby the DDA is displaced merely by provision for regulations to be made in future. The Broadcasting Services Act provisions do not and cannot in themselves guarantee that the regulations envisaged will in fact be made and enter into force on any particular date.
Commissioner Sidoti's submission went on to note that
"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."
This submission, and the response of the NSW Disability Discrimination Legal Centre to the current Notice of Inquiry, noted a possible argument that delegated legislation such as the captioning standards might not be interpreted as overriding primary legislation such as the DDA in the absence of clear legislative intent.
However, once captioning standards are made, the following provision of the Broadcasting Services Act itself (schedule 4.38) will have effect:
(7) A national broadcaster must comply with a standard under subclause (1).
It is this provision of the Broadcasting Services Act as primary legislation (notwithstanding that it will operate by reference to delegated legislation) which is argued to displace the operation of the DDA.
In summary:
- although the legal position is not free from doubt, I do not think that at this point the Commission should accept that the Broadcasting Services Act should be regarded as displacing the application of the DDA to broadcast television captioning once captioning standards under the BSA are made
- in any event this displacement has not yet occurred, since such standards have not yet been made.
Adequacy of remedy
Clearly, no decision can be made that captioning standards under the Broadcasting Services Act and associated machinery provide a more appropriate remedy or have adequately dealt with the subject matter of the complaints concerned in this inquiry when such standards have not been made or publicly released.
There may nonetheless be some benefit at this point in discussing and providing an opportunity for public comment on possible approaches to a decision on whether BSA captioning standards should be regarded as providing a more appropriate remedy for or adequately dealing with complaints under the DDA regarding broadcast captioning.
If the arguments made in several submissions are correct that the making of Broadcasting Services Act captioning standards, whatever their content, will involve the Broadcasting Services Act displacing the DDA in this area, the issue of whether these standards are adequate or more appropriate from a DDA perspective will not properly arise in dealing with DDA complaints which concern events occurring after these standards are made: any such complaint would have to be declined as not involving unlawful discrimination, whether or not the standards should be regarded as adequately or more appropriately dealing with the matter.
As I have indicated, views for and against this position are arguable, but in my view HREOC ought to proceed on the basis that captioning standards under the BSA do not displace the operation of the DDA.
In any event, the complaints which are the subject of the present inquiry concern events occurring in the period before BSA captioning standards have been made. In deciding whether a complaint involves unlawful discrimination HREOC (and if necessary the Federal Court) necessarily looks at the law as it existed at the date of the act complained of.
So, if captioning standards are made under the Broadcasting Services Act while the complaints covered by this inquiry or complaints covering the same or similar current circumstances remain open, the issue of whether from that point on the BSA displaces the DDA would not be directly relevant (although this would be likely to be taken into account by HREOC and the Court in deciding what remedies would be appropriate).
The issue of whether a BSA standards regime provides a more appropriate remedy or has dealt adequately with the subject matter, however, would require decision. The same point would apply to future complaints if I am right that BSA captioning standards do not displace the DDA.
This is not because HREOC for any ulterior reason looks for grounds to decline complaints or that HREOC needs any reminding of the objects of the DDA and the importance of the legislation for people with a disability.
Existence of the power to decline complaints where satisfied of relevant grounds (such as that the matter does not involve unlawful discrimination, or that a more appropriate alternative remedy is reasonably available) carries with it as a matter of administrative law a statutory duty to exercise that power where the decision maker is, or ought to be, satisfied of those grounds.
HREOC also has duties under section 10 of the Human Rights and Equal Opportunity Commission Act to ensure that its functions (including functions under the Disability Discrimination Act) are conducted "with regard to the principle that every person is free and equal in dignity and rights", and "efficiently and with the greatest possible benefit to the people of Australia".
These duties necessarily require HREOC to give attention to issues of avoiding unproductive duplication of other remedies and concentrating attention and resources on matters within its jurisdiction where remedies or approaches available under the DDA have a distinctive contribution to make.
Recognition of effective alternative remedies where they exist should be seen not only as a matter of efficient application of the resources of HREOC and of parties to complaints - although efficient management of public resources ought not to be overlooked as an important goal in its own right - but as a means of increasing the effectiveness and breadth of achievement of the objects of DDA. The late Elizabeth Hastings observed as Disability Discrimination Commissioner, in her reflections on the first five years of the DDA, that "an anti-discrimination agency does not need to be directing everything, and in fact will generally be more effective when it is informing and catalysing activity by other agencies in government and organisations in society".
FACTS submit that their arguments above in support of the contention that the DDA is overridden in this area, are also arguments in favour of any discretion being exercised to decline the complaint:
"The subject matter of the complaints is dealt with under later and more specific Commonwealth legislation which is administered by the ABA. That legislation provides remedies and sanctions for the failure to comply with relevant standards.
The incongruity and unfairness of a respondent being subject to both a complaint under the DDA and an obligation to comply with standards under the DCA would suggest that HREOC should decline to consider such matters."
The NSW Disability Discrimination Legal Centre submission includes the following comments:
"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 choose 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."
The Deafness Council of Western Australia commented as follows:
"Full captioning of all television and mandatory inclusion of decoders in all new sets sold must be the objective unless undue hardship is shown in particular cases.
As an analogy, it would not be acceptable if public transport was provided on the basis that only peak hour buses and trains will be accessible to people in wheel chairs. Equally there would be community outrage if only half the public buildings in a city were accessible, and none of the sporting venues or child care centres. It would not be acceptable to the community if community centres were not accessible to people in wheelchairs, and it must not be accepted that community television is not accessible to deaf and hearing impaired people. The HREOC must not accept less than full captioning of television and inclusion of decoders in all new television sets and all sets that are provided for public or customer viewing unless the industry establishes undue hardship. The HREOC should encourage the industry to prepare and implement plans to provide full caption coverage and should allow reasonable time for this."
Analysis
I do not think that it could be open to HREOC to regard a captioning standard under the Broadcasting Services Act as automatically constituting a more appropriate remedy or as adequately dealing with the subject matter of complaints, without considering the content of that standard. Equally, it would not be correct for HREOC to fail to have due regard to the existence and authority of such a standard.
The NSW Disability Discrimination Legal Service argue that
"In providing a limited or restricted right to choose 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."
This submission also noted the question raised by 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:
"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."
Some comments can be made on these points.
As a matter of ordinary language, "adequate" does not have the same meaning as perfect, complete or final. In my view there is no legal error inherent in accepting a remedy as "adequate" for present and interim purposes which is less than the desirable state of affairs in the longer term.
The comparison drawn by the Disability Council of Western Australia with accessible transport only being available in peak hour is a useful one, but for completeness in this context it needs to be counterposed with the comments by the current Acting Disability Discrimination Commissioner Susan Halliday in her published decision regarding a complaint concerning access to Summer Hill railway station in Sydney:
"I regard a complaint about a particular station as adequately remedied by an acceptable overall rate of achievement of accessibility of stations, whether or not the particular station is first on the list of stations to be made accessible.
The Commission is not best placed to judge issues of priority of one station over another within an overall program where acceptable progress is being made. If it is accepted that not every station can be made accessible immediately, in my view the DDA has very little bearing on which stations should be upgraded first. These are more appropriately seen as issues for decision through political processes and for determination by transport operators.
The relevant issue for the purposes of the DDA is less whether political commitments for priority for one place or another have been met than whether commitments to adequate progress overall have been made and are being fulfilled."
The choice of particular programming times or subject matters could be seen in similar terms to this, if it were accepted that for the relevant period the standard provided for adequate progress in captioning levels overall. (It is of course not possible to comment further on this point of adequate progress overall without seeing the standards.)
In this case, whether the particular program desired by a complainant to be made accessible was among the first to be dealt with could be seen as no more a matter for decision under the DDA than the choice of which railway station occupies which position in a priority list.
This position would be clearer if the full timetable ending in achievement of equal access, or as near to it as may be attained without unjustifiable hardship, were available from the outset (as in the case of the draft Disability Standards for accessible public transport), or at any rate if points where partial equality is to be achieved were definitely identified as interim rather than ultimate destinations, and a timetable for further review of standards with a view to further progress were provided at the outset.
It should also be emphasised that a decision at any point that captioning standards provided an adequate or more appropriate remedy for a complaint at a particular point would not necessarily mean that the same decision would have to be made regarding a later complaint, if and to the extent that the DDA remains applicable.
Unlawful to make limited captioning standard?
In my view the question raised by the NSW Disability Discrimination Legal Service whether the provision of an inadequate captioning standard under the BSA may itself be discrimination in the administration of a Commonwealth law or program can be shortly answered: no.
The DDA makes discrimination unlawful in the administration of Commonwealth laws and programs: it does not make discrimination unlawful in the content of those laws or in the act of making of laws, which is what is involved in regulation making including setting of captioning standards under the BSA. Attempts to complain about the content or making of Commonwealth laws have been declined several times by HREOC, as noted in summaries of decline decisions available on HREOC's web site.
Conclusion
In my view lack of captioning is likely to constitute unlawful discrimination under the DDA.
Further, it is my view that the effect of the DDA is not displaced by the BSA as it now exists without standards.
Once standards are enacted, there is a stronger argument that the effect of the DDA is displaced, but on balance my view is that the DDA will still apply.
Finally, whilst the complaints which are the subject of this inquiry predate any proposed standards, the enactment of such standards (again dependent on content) may, in my view, prompt the declination of the complaint as being adequately or otherwise appropriately remedied. Following any further action on proposed standards, and the receipt of any comments on the views I have expressed, I will recommend to Disability Discrimination Commissioner Halliday that she make her decision.
See also:
- Telstra/Channel 7 press release on Olympic TV captioning
- Canadian Human Rights Tribunal decision requiring full captioning (!5 November 2000)