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Disability Disability Rights


Dr Sev Ozdowski OAM, Acting Disability Discrimination Commissioner
Tuesday 6 September 2005, Sydney

12 NOVEMBER 2005

Sev Ozdowski

Acknowledgments and introduction

  • The Hon Sussan Ley MP (Parliamentary Secretary for Children and Youth Affairs) representing the Minister for Family and Community Services
  • Margaret Robertson, Deafness Forum Chairperson; Brian Rope, Deafness Forum Chief Executive
  • Community representatives
  • Captioning providers
  • Cinema and television industry representatives

Allow me to begin by also acknowledging the traditional owners of the land on which we meet, and pay my respects to their elders both past and present.

Those of you who have heard me speak before will know that I follow this custom wherever I go to speak in public. Recognising Australia 's indigenous peoples and their prior ownership of this land in this way is an important part of recognising our diversity as a nation.

Some of us brought new names and accents and languages to this country in recent decades, and some of us have Australian ancestry reaching back tens of thousands of years. We are free to have different religious beliefs, or none. Some of us are women and some are men. And some of us have one or more disabilities.

Transforming society and transforming the meaning of disability

In recent years we have seen real progress in recognition that disability is also an inherent part of the diversity of our community.

The achievements in captioning we are here to celebrate tonight are a very practical and important part of that recognition.

Before we come to the awards later in the evening, I want to spend a few minutes putting captioning issues into the broader context of work to transform the experience of disability in Australia , and in fact to transform this country we live in into a better and more inclusive place.

That sounds radical, doesn't it? You've read, perhaps, that the Human Rights Commission are a bunch of radical social engineers.

Well, since I am now in my last month as Human Rights Commissioner, and since you are all sitting down, hopefully with a drink in front of you, I might as well come clean and admit it: It's all true.

We are part of a plan for massive social change. And the plan is based on two very radical ideas. Those ideas are freedom, and equality.

Let me say in our defence that this is not a plan hatched in secret by unelected bureaucrats or discontented academics. It is part of the law of Australia , passed by our Parliaments, in recognition of the rights and needs and aspirations of millions of our people.

And, as we are celebrating tonight, it is a plan in which important industry sectors have been ready and willing to join, because they have also recognised the diversity of the community they seek to serve.


Well known Australian Bureau of Statistics figures tell us that around 20% of Australia 's people have some level of disability.

A closer look indicates that the numbers are likely to be larger than this.

You may be aware that we have just released the report of national consultations on mental health and human rights issues. There is evidence that mental health issues affect 20% of our population at some point during life.

More directly related to tonight's awards, a ccording to the 2001 ABS National Health Survey, there are 1,891,541 people in Australia with some significant hearing loss - almost one in 10 Australians.

A few years ago now the South Australian Deaf Society conducted some research indicating that the proportion of the community with a significant hearing impairment could be even higher - as much as 20%.

With the ageing of the population, the amount of people with hearing loss (which of course increases with age) will only increase. The same is true for most other forms of disability. More and more of us can expect some level of impairment of vision, hearing, or mobility among other things as we live longer.

Another eight per cent of the community act as carers for family or friends with disabilities on daily basis.

Disabling environments

When you look at the statistics, it is remarkable to think that for so long people with disabilities were pushed to the margins, or not thought of at all in major social decisions.

That we built systems for public transport, or education, or healthcare, or telecommunications, or information and entertainment, or political participation, which excluded people with disabilities.

That we built disabling environments even in our buildings and streetscapes.

Academic discussion of disability now emphasises that disability is not simply a matter of individual pathology, of injury or deficit, but is a matter of how physical and social environments are constructed: whether they enable or disable participation in different activities.

Sometimes this discussion of a "social model" of disability is presented in a way that can sound a bit trendy, left wing and unrealistic - even to a self-confessed social engineer from the Human Rights Commission. Disabilities like hearing impairment or blindness are not simply social constructs or a matter of attitudes or labelling, after all.

But whether a hearing impairment results only in occasional inconvenience, or constant economic and social exclusion, is very much a matter of how we construct our environment and how we use technologies.

So this social or environmental model of disability really reflects the same understanding as that now entrenched in the law of the land, through the Disability Discrimination Act and equivalent State and Territory laws.

The role of discrimination law

In the early 1980s, States which already had anti-discrimination legislation, covering grounds such as race and sex discrimination, began adding coverage of disability. This was largely in response to community activism around the International Year of Disabled Person in 1981.

At the Federal level in 1992 the Disability Discrimination Act was passed.

Disability is defined very broadly, to include physical, intellectual, sensory, or psychiatric disabilities; disabilities that are permanent, episodic or temporary.

Whether a person's disability is severe, moderate or apparently trivial, discrimination on the basis of that disability is covered by the DDA.

Discrimination as you know is unlawful in a broad range of areas including employment, education, access to premises, and the provision of goods and services.

Defences and exemptions

In recognition of the fact that eliminating disability discrimination can sometimes be more difficult and expensive than eliminating other areas of discrimination, the DDA provides a defence of "unjustifiable hardship".

The DDA also has a power for the Human Rights and Equal Opportunity Commission to grant temporary exemptions, for up to five years at a time, to help in managing the transition to equal and accessible systems and facilities.

But there is a clear expectation of positive change over time, particularly as new technological possibilities develop which make things achievable now which might have been impractical some years back. The possibilities offered by digital technologies in information and communications provide obvious examples of this of course.

The law and our developing sense of who we really are as a community both require that we should change our physical and information and social environments so that they do not have unnecessarily disabling results.


Over the last 13 years areas the DDA has worked pretty well in a number of areas, in moving forward the processes of social transformation needed to transform the experience of disability in Australia .


Access to public transport has been a striking area of success under the Disability Discrimination Act. Standards for accessibility of public transport facilities and services throughout Australia , within 20 years (with a small number of exceptions), entered force during 2002 and I think it can be seen that implementation is in most areas well underway.

Access to premises

Access in the built environment is another important area of achievement, but where much more also remains to be done.

There have now been hundreds of disability discrimination complaints in Australia which have been resolved with an agreement to modify premises to make them accessible.

However, to make a significant impact on access and opportunity, the numbers of buildings made accessible need to be not in the dozens or even hundreds each year, but in the hundreds of thousands.

We are now several years into the process of developing standards on access to premises. The stage has now been reached of hard bargaining about what the building industry can afford to do. I am hopeful however that within a few months national standards will be agreed and that accessibility in new or redeveloped buildings will finally become a matter of routine (other than in the most exceptional cases).


Many more children with disabilities are now included in mainstream schools than was the case ten or twenty years ago, although there are still important problems to be addressed in ensuring that people with disabilities have truly equal access and opportunity in education. These include issues of accommodation of students with particular communication and information needs.

Standards on education under the Disability Discrimination Act entered into force on 18 August this year. These should assist in achieving further change towards more effectively inclusive education systems.

Employment discrimination

Unfortunately, we have seen far less progress in the area of employment, despite it being the area where we receive the most complaints.

In March this year the Human Rights and Equal Opportunity Commission launched a National Inquiry into Employment and Disability.

The time seemed right for such an inquiry:

  • I did not want to finish my term as Human Rights Commissioner and Disability Discrimination Commissioner at the end of this year without doing my best to make a difference to employment outcomes and opportunities for Australians with disabilities.
  • Also, the debate this year about welfare reform and a growing awareness of skills and labour shortages emerging in the Australian economy have highlighted, more than I can ever remember happening before, the need to ensure that people with disabilities can participate and contribute their abilities in the workforce.

I want to thank all those individuals and organisations, including the Deafness Forum, who have provided valuable input to this inquiry.

You may have seen the interim report we released in August. The final report is due to be published by the end of 2005. I hope it will make a real and practical difference in improving opportunities for people with disabilities.


Achievements on a range of captioning issues are among the most pleasing achievements so far under the DDA:

  • because of their importance for people who are deaf or have a hearing impairment, who as I have said will be more and more of us as we get older;
  • because they are good examples of the principle of universal design, where measures to accommodate people with disabilities also benefit the community more generally; and
  • because in each case they have been achieved by industry and community groups working co-operatively and creatively together.

Free to air television

The Broadcasting Services Act requires captioning of prime time programming as well as news and current affairs programming on free to air television - which adds up to somewhere between 35 and 40 per cent of programming.

In 2003, in return for a five year exemption granted by the Human Rights and Equal Opportunity Commission under the DDA, and after negotiations involving Deafness Forum and the Australian Association of the Deaf, broadcasters agreed to increase captioning to 55% by the end of 2005 and to 70% by the end of 2007, with particular attention to captioning of children's programming.

There was also agreement to commence a review of further possibilities in 2006, in consultation with deaf community organisations.

Captioning capacity in TVs

As part of the same process broadcasters also agreed to seek action from Government to require caption decoders in all new television equipment and improve availability of VHS and DVD players which allow recording of close captioned television programs.

My understanding, and I would be glad to be corrected on this, is that developments in technology and the market have in fact led to improved availability of recorders able to record captions, and that new digital receivers including set top boxes also improve things in terms of receiving and displaying captions; but that there remain problems with availability of captioning across the range of types and prices of television available.

The Government's response a few years ago now to calls for televisions above a minimum size to have caption decoding capacity was not favourable.

I wonder, though, whether broadcasters and community organisations alike should not be raising the issue again. Given that we now have a free trade agreement in place with the United States , and that the United States does require captioning capacity on all TVs above 13 inches in size, arguments against regulating to the same effect in Australia may now be weaker.

HMAA code

Meanwhile, in July this year an industry body took the lead itself in this area of ensuring access to TVs with captioning capacity.

After negotiations with Deafness Forum the Hotel and Motel Accommodation Association adopted a Code of Practice for provision access facilities to guest with hearing impairments at hotels, motels, and serviced apartments including providing at least one television capable of accessing free to air captioning, and providing captioning capacity in all televisions over time through new purchases and replacements.

Subscription television

The free to air TV captioning exemption process provided a good example of the capacity of temporary exemptions under the DDA to be used to encourage positive measures by industry bodies in return for certainty about their obligations.

Another example followed in 2004 when subscription television providers agreed to commence captioning, on 5% of programs across a minimum of 20 digital channels from October 2004; with the quota increasing by 5% each year during the exemption period and expanding to 40 channels within two years.

They also agreed to a review of implementation and further possibilities, to be conducted within 3 years and in consultation with deafness organisations and captioning providers; and to present further plans for captioning within four years.


These exemptions and agreements only apply to program content, not to advertising.

However, The Australian Association of National Advertisers and the Advertising Federation of Australia have both released policies advising their respective members about the importance of captioning their TV commercials.

As has been recognised in previous captioning awards, major advertisers such as banks, car makers and supermarkets are increasingly committing themselves to captioning to reach the widest possible market.

Similar considerations may explain the generally positive response I received to a letter I sent to all political parties prior to the last Federal election, reminding them of the importance of measures including captioning to ensure accessibility of their message.

Government material

Federal, State and Territory Governments all have policies in place requiring their government departments and agencies to caption all television commercials.

I understand that the most comprehensive government captioning policies are those adopted by Queensland in 2002 and Tasmania the following year.

In these States all TV programs, television commercials, videos, DVDs and CD-ROMs produced by Government departments must have captions.

As well as material intended for television, this has obvious importance for accessibility in areas such as health care and education.

Some important advances in this area are being made partly in response to individual complaints under the DDA. I hope that the Human Rights and Equal Opportunity Commission may be in a position to take up issues of captioning in these areas more broadly in the coming year.

TTY numbers

One area of concern to me is that I have heard reports of some government advertisers only providing voice telephone numbers for contact purposes, rather than also giving a TTY or SMS number.

While of course it is possible for a TTY user to use the National Relay Service to reach a voice number, providing information on direct TTY access clearly provides more convenient access for the public and also leaves the relay service free for its intended purpose of reaching people where there is no TTY available, such as private calls or smaller businesses.

Open captioning

Another issue for governments to consider is that of applying open rather than closed captions to their advertising.

This could be important in ensuring that people have access to emergency or security announcements, for example, in public settings where closed captions may not always be turned on on the TV set.

Cinema captioning

Speaking of open captions, one area of important development at the moment is cinema captioning.

As you know a program of new release open captioned films has been operating since 2003, supported by a committee including the Deafness Forum, Australian Association of the Deaf, the Australian Caption Centre, the Commission and representatives from distributors and exhibitors.

Recent changes to the technology used to project open captions onto the screen have opened up an opportunity to significantly extend the availability of the program and the choice of films to be shown.

Whereas before we were reliant on special, and costly, prints of films with captions burnt onto them the new technology projects captions onto a standard print. Cinemas are required to purchase a special projector in order to do this, but the captions themselves are on a CD that can be cheaply duplicated.

This means that any number of cinemas who have a projector to join the program. It also means that there is the potential to greatly reduce the time between the release of the film and the availability of the captions and the costs of distribution.

These changes provide an opportunity to develop new strategies to extend the program and make it more attractive to more potential filmgoers and I am confident the next 12 months will show welcomed improvements in the program.

One area that needs to be addressed over the next few months is that of securing agreement on a set of criteria for the captioning of Australian produced and financed films. I have raised this issue with the Film Finance Corporation and the Minister for Communications, Information Technology and the Arts and am hopeful that progress will be made in this area soon.


I am not here to announce the awards.

I have not seen inside the envelopes and so I am not in a position to spill any secrets.

Except, of course, the disclosure that the Human Rights Commission is part of a large scale plot in favour of those radical ideas, freedom, and equality for people with disabilities.

Fellow conspirators, may we all continue plotting together into the future.

Thank you.