Review of Captioning Standards under the Broadcasting Services Act: Submission of the Acting Disability Discrimination Commissioner

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