From: elena down Sent: Monday, 7 December 2009 7:08 PM To: disabdis Subject: re application for temporary exemption under DDA section 55 [SEC=UNCLASSIFIED] Security Classification: UNCLASSIFIED Dear Mr Small Re: Cinema captioning and audio description: Submissions in response to application for temporary exemption under DDA section 55 As a profoundly deaf cinema patron, and avid arts enthusiast, I write to provide an outline of issues which I believe that AHRC should take into consideration when deciding whether to grant any exemption under s 55 DDA. Whilst it is commendable that the applicants are apparently seeing to increase access, this should be something to which they aspire as a matter of good corporate responsibility. It should not be something done in exchange for immunity from complaint. The DDA requires all service providers of goods and services to do so in a way that does not discriminate on the basis of disability, unless to do so would cause unjustifiable hardship, taking into consideration all the necessary factors in the particular case, (as outlined in s 11 of the DDA). The applicants have not clearly explained or established why such an exemption is necessary, that is - why they face unjustifiable hardship to provide for non discriminatory access or why providing a level of access beyond that offered in the application for exemption would be unjustifiable. Surely the actions taken by the applicants to increase access could be mentioned by them for consideration in assessing unjustifiable hardship in the event that a complaint was brought. However removing the right to bring a complaint under s 55 may allow some unjustifiable acts of discimination to occur with impunity. It is an important principle that individual rights should not be reduced for overall benefit to a majority, nor to create 'tiers' of rights depending as between different people with disability dependent on place of residence. Individual complainants should retain the right to bring complaints based on their own circumstances and in light of all relevant facts. For example, if the effect of the exemption was to provide for improved access to cinemas in area X but brings no change to area Y that is objectionable in principle to the residents with disability living in area Y who lose a statutory right for no discernable benefit. It is apparent from the large number of submissions made to date that a large number of people who have a hearing or visual impairment are already required to travel excessive distances to see a film that meets their access needs. In effect an exemption would potentially sanction a situation where there were differing rights for people with disability depending on where they live, or rather depending on the decision that has been made by large corporations as to where they wish to provide access and where they find it too inconvenient to do so. This will be so regardless of the impact on particular individuals, families and groups from the failure to provide access, the benefit to be gained from access, as balanced against the costs of providing that access. If this exemption application is accepted, people with disability simply won't have the right to bring a complaint or to conciliate with a local cinema. Instead they will in effect be denied their cultural right to participate in community life and watch a movie, and with the sanction of the AHRC. The applicants seeking the exemption appear to assume: (a) people requiring captions or audio description can travel long distances to a film (b) that they can to arrive at that cinema around work and other obligations to one of the 3 times offered (for an employed person or full time student, this effectively reduces the choice to sunday afternoon only) and (c) the cinema does not unilaterally change the screening time without notice (a situation which has occurred a number of times based on evidence in submissions made to date) and (d) The captioning equipment actually functions when the person arrives (which also has not always been the case). And if screening times change, the captions don't work or other objectionable incidents occur, because the exemption has been granted the person will not have any right to complain nor seek a remedy at the AHRC. Independent cinemas are rising to the challenge to provide access - these cinemas must do so too. If businesses are to enjoy financial benefit from providing services in Australia, they must bear some of the responsibilities. The applicants in my view do not appear to have discharged the onus to justify the issue of a license to discriminate. Exemptions from liability for unlawful acts of discrimination against any disadvantaged group should be decided upon by the AHRC with great caution. As people with disability in Australia face -on a daily basis- barriers and exclusions most Australians would never be prepared to countenance, any exemptions which reduce their right to remedy such discrimination them should be scarce, if approved at all. Additionally, it is a disincentive to film makers to create and provide for captions and audio descriptions if cinemas refuse to show them in sufficiently large scale. Cinemas are but one part of the overall decision to provide for access, and an important one. It is also of concern that the timing of the application appears to preempt outcomes of several government inquiries including that on media access (due January 2010) in which many stakeholders are actively engaged (many of whom do not know about this application under s 55 DDA!) The very fact that the applicants are (to quote their additional submission) "unclear what the introduction of digital technology will have on costs or availability" and that they have not received any communication from the distributors about how this may effect the captioning or audio description films they provide means that granting this application would appear to be premature - it preempts the opportunities Australians with disability may have to seek greater access as technologies both improve access and make the provision of access cheaper. Finally, at a fundamental level, it needs to be challenged that the general community find captions 'a distraction'. A quick poll of many of my hearing friends suggests that this assumption is not necessarily valid, and that community attitudes can change. Certainly my friends are disappointed that we cannot go to see films together for want of captioned versions. When my local cinema showed its first captioned film, many of them attended that session explicitly to express their support and approval. My experience living 2 years in China was that all TV programs were open captioned, and with exposure, this is what the community gets used to. The popularity of foreign films in Australia shows that many people are happy to view films with captions. Universal access means that everyone can watch. Seeing a film is a cultural right most Australians would take for granted. The current level of access falls far short of the level of access these cinemas should provide at present, let alone into the future. There are many films I would like to have seen but have not been able to because they are not captioned, or the cinemas I attend do not provide for captions. Throughout my childhood, I never once attended an accessible (captioned) film with my family, nor on a school excursion. Throughout my teens I had to sit embarrassed as others discussed the finer points of movies they'd seen. Even today my friends are apologetic that they are off to the movies, knowing that I can't follow them, but offer 'perhaps drinks or dinner afterward?' I hope that today's children and teenagers might face a more enabling and socially inclusive environment where they are made to feel their participation in and enjoyment of our magnificent cultural environment is welcomed. I hope that my own access to cinema improves just as my access to cultural institutions like the NGA has improved. It is my hope and wish that all cinemas will continue to grow in their awareness and understanding of the needs of ALL their patrons, will aim for best practice, and that they will strive to show all people with disability * Respect for inherent dignity, individual autonomy including the freedom to make one's own choices, and independence of persons; * Non-discrimination; and * Full and effective participation and inclusion in society. These are values and principles to which the UN Convention on the Rights of Persons with Disabilities calls all people and organisations to observe. Elena Down.