ࡱ> fhe%` 1bjbj"x"x 9!!!9RR:&&&!Rl9&!9&&6|,o8 pGƚwl"s79,:<h:7,?#|,?$o8,?o8d:&e99&^h:!!!!$""RRRRRR  Deafness Council Western Australia Incorporated Submission to the 鱨վ Application for exemption under DDA section 55: Cinema Captioning and Audio Description December 2009 Contents Introduction 2 Audio Description 2 History of Cinema Captioning in Australia 3 Discussion of Exemption Application 5 Recommendation 6 Authorisation of Submission 6 Introduction The Deafness Council Western Australia Incorporated welcomes the opportunity to provide a submission to the 鱨վ in relation to the application for exemption under DDA section 55: Cinema Captioning and Audio Description. The Deafness Council was incorporated in Western Australia in 1984 and had previously been active as an unincorporated organisation since the 1970s. The Deafness Council is an endorsed charity and is a non-profit organisation. A major objective of the Deafness Council is advocacy for people who are deaf or have a hearing impairment. The submission from the Cinema industry in which the exemption is requested notes that in 2001 an agreement was brokered by the 鱨վ. The Deafness Council was one of the organizations involved in 2001 and one of its members was a signatory to the agreement. Audio Description The Deafness Council notes that the exemption includes provisions to make audio description available to people with a vision impairment. The Deafness Council supports provision of access to all people with a disability, including provision of audio description in cinemas for people with a vision impairment. However our expertise relates to people who are Deaf or have a hearing impairment. We are not able to comment further on the audio description aspect of the application for an exemption. History of Cinema Captioning in Australia The Deafness Council was involved in the negotiation of the agreement in 2001 that led to the introduction of captions of English language films in cinemas in Australia. The agreement was the result of a complaint lodged in 1999 under the Disability Discrimination Act 1992 (DDA). The complaint was lodged by a member of the Deafness Council WA. The agreement resulted in captioned cinema in each capital city, and provided for a committee of industry and consumer representatives and representatives from the 鱨վ that had a charter to expand cinema captioning. Captioned cinema was expanded in 2005 to two additional locations at Newcastle and Maroochydore and later by a further two locations to bring the total 12. The Deafness Council considers that the outcome of the expansion process between 2001 and 2009 was extremely disappointing. The Deafness Council considers there are a number of reasons for the unacceptable level of expansion of the cinema captioning program including: a failure on the part of industry to act on its existing responsibilities under the DDA to take action to remove discrimination a failure on the part of this and previous governments to take action to require the cinema industry to fulfill its responsibilities the legal framework under which disability discrimination is addressed in Australia under the DDA. Achieving rights under the DDA essentially requires individuals to lodge complaints. The 鱨վ then conciliates or attempts to conciliate the complaint. If conciliation is not possible, the only course of action open to the individual complainant is to take their complaint to the Federal court. The 鱨վ has performed exceptionally well in conciliating complaints about captioning. The captioned cinema agreement in 2001 is an example. Other examples are the agreements for captioning of free to air and subscription television and captioning of Australia films financed by the Film Finance Corporation. While over the past few years a number of complaints have been made about cinema captioning the cinema industry has essentially refused to respond, thereby forcing individual complainants to proceed to the Federal Court to achieve any further progress. It is noticeable that no complaint relating to captioning has been taken to a conclusion in the Federal Court. A primary reason is that the Federal Court is a cost jurisdiction and this can place considerable personal pressure on the individual complainant. No matter how valid a complaint might be there is always a chance that the individual complainant might find themselves involved in a long legal case which could be costly both financially and personally. A characteristic of captioning is that many people in the population benefit from captioning, but the benefit to any one individual often does not justify the expense of a Federal court action by that individual. It should be noted that the 2001 agreement relating to cinema captioning did not provide any Temporary Exemption to the industry (as is currently being sought) for further complaints under the DDA. Despite that no conclusive Federal Court action has been taken in relation to cinema captioning. Representatives of the hearing impaired community have advocated that the DDA be changed to allow the Disability Discrimination Commissioner to pursue test cases in his/her own right. The Productivity Commission in its 2004 review of the DDA recommended the extension of powers to enable the Commissioner to be a complainant in matters of public interest. The DDA has not been amended to allow the Commissioner to pursue test cases, and there has been no announcement by the Federal Government of an intention to amend the Act. It is also relevant to note that there is currently no other legislation other than Federal and State/Territory discrimination law that can be used to require captioning of films in cinemas. In April 2008 the Federal Minister for Broadband Communications and the Digital Economy released a discussion paper as a part of an investigation into access to electronic media by people with a hearing or vision impairment. Following on from this, the Department of Broadband Communications and the Digital Economy released a Discussion Report in November 2009. Chapter four of the Discussion Report relates to DVDs and films. While the Discussion Report is welcome, it does not propose action in relation to cinema access until 2013. Even then the proposed action is limited to reviewing the situation. This is extremely disappointing and the Deafness Council will be advocating strongly for more meaningful action on the part of government. In the meantime, however, Deaf people and people with a hearing impairment are left with limited options for achieving progress. These include: lodging more complaints which, based on previous experience, are unlikely to be conciliated and which could take years to get to Federal Court, or negotiate opportunities that offer some progress while not loosing sight of the longer term goal of equitable access for all in the future. Discussion of Exemption Application The exemption application from the cinema industry offers to increase the number of screens in cinemas operated by the applicants capable of delivering captions from 12 to 35 over the next two and a half years. In exchange the industry is seeking a Temporary Exemption for this period. The total number of screens operated by the applicants is in excess of 1,000. Consumer choice of times, films and locations for sessions that are not captioned are much greater than for those that are captioned. Clearly people with a hearing impairment will continue to be subject to discrimination in their access to cinema The Deafness Council notes that this application only covers the cinemas directly operated by the four applicants. This means that any independent cinema or chain of cinemas not party to the application will continue to be vulnerable to complaints under the DDA even if the Temporary Exemption is approved. Although it is clearly not equitable that hearing impaired people should have access to only 35 of the screens of the cinemas of the applicants, from a pragmatic perspective, given the reluctance in the past of industry to accept the need for any progress and the lack of commitment from government to take action, it is necessary to note that if the exemption is not approved it is unlikely that any progress will occur in the next two and a half years. As previously noted no case has been taken to a conclusion in the Federal Court in regard to captioned cinema, although the option to do so has been available to Deaf and hearing impaired people for many years. There is no guarantee that the DDA will be amended in the next two and a half years to allow the Disability Discrimination Commissioner to take test cases to court. There is no guarantee that the Federal government will take any more substantial action on this matter before the proposed 2013 review which will not occur until after a two and a half year exemption has expired. The frustrations and anger expressed by caption users over this application are understandable, however, from a pragmatic point of view, the alternatives available to consumers, and to the 鱨վ, are: to support the exemption and expand cinema captioning to 35 screens over the next two and a half years, or reject the application and continue with the current 12 cinemas in the hope, perhaps unrealistic, that some action will occur in the next two and a half years to better expand cinema captioning. Recommendation The temporary exemption application by the cinema industry should be approved with the following additional requirements: In addition to the identified expansion of captioning and audio description access be required for any new cinema that opens or existing cinema that undergoes significant renovation. That the applicants, in addition to the identified expansion of captioning initiate a trial in an additional cinema of an alternative technology that allows private viewing of captions such as rear window captioning or seat back screens.. Authorisation of submission The preparation of this submission was approved at a General Meeting of the Deafness Council on 18 November 2009. The submission was circulated by email and endorsed by members. 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