ࡱ> qsp%` Bbjbj"x"x .x@@:+84<10000000$2hD5^000!!!p0!0!!3.ho/ erb.0 10<1.58D5 o/5o/8,!i00|!j<1  1 December 2009 鱨վ Picadilly Tower Level 8, 133 Castlereagh Street Sydney NSW 2000 Dear Sir/Madam Re: Application for Temporary Exemption regarding provision of captions in cinemas. The Disability Discrimination Legal Service The Disability Discrimination Legal Service Incorporated (DDLS) is an independent, community organisation that specialises in disability discrimination matters. It is a not for profit incorporated association that provides free legal service to people with disabilities. It also provides community legal education and undertakes law and policy reform projects in the areas of disability and discrimination. A committee of volunteers manages the service. The DDLS Management Committee includes people with disabilities. Many people with disabilities, volunteers and students contribute their efforts to the work of the DDLS. The DDLS works as an active member of the community legal sector and the disability advocacy sector. ___________________________________________________________ Level 2, 247-251 Flinders Lane Melbourne VIC 3000 Ph: 9654-8644 Fax: 963-7422 TTY: 9654-6817 Freecall: 1 300 882 872 The Application The Commission has received an application on behalf of Hoyts Corporation, Greater Union Organisation, Village Cinemas and Reading Cinemas (the applicants) for a Temporary Exemption under section 55 of the Disability Discrimination Act 1992 (DDA) from complaints in relation to the provision of captions and audio description in cinemas operated by the applicants for a period of two and half years. The applicants assert that the period of exemption would allow them to implement a ten phase program: Increase the number of screens in cinemas operated by the applicants capable of delivering captions to 35 over the next 2 years. Provide audio description capability in all those 35 screens, including a retro-fit of the current 12 cinemas offering captioning. Commit to a review of the current program in consultation with representatives from key stakeholders starting 9 months before the end of the Temporary Exemption period. Ensure accessible information on captioned and audio described film schedules. Summary of Submission If granted, the exemption operates as an immunity of the applicants from all suits and claims under the DDA regardless of the applicants compliance with the undertakings they assumed, and on which the grant of the application was made. It also means that the applicants are not subject to any contractual relationship to perform any specific obligations, because the proposals contained in the application are enforceable only by good faith and norms of best endeavour efforts. Moreover, non compliance does not affect the applicants trading licenses nor subject them to any administrative sanction by the relevant regulatory agency of the government. Hence, in exchange for the suspension of the rights, protection and remedies under the DDA and the UN Convention on the Rights of People with Disabilities (UNCRPD), the Charter of Rights and Responsibilities Act 2006 (the Charter), and the International Covenant of Civil & Political Rights (ICCPR), the persons aggrieved by the lack of captions or audio descriptions for at least 20 long years since the technology was made commercially available, are only given a hope - a hope that by the applicants own admission translates to a meagre 35 cinemas being captioned and audio described by 2011. The Commissions exercise of caution as a non adjudicator in response to applications for exemptions under anti-discrimination legislation, was manifested in its submission in the Travel Sisters application for exemption (VCAT Reference No. A189/2009) which sought to provide a female only travel service. In that case, the Commission opposed the grant of the exemption and observed as follows: In considering an exemption application the Tribunal must do so in the light of the Charter. In particular, the Commission referred to the observations of Justice Bell in Lifestyle Communities (No. 3) [2009] VCAT 1869 at paragraph 96 that the purpose of the Equal Opportunity Act did not permit the grant of exemptions in order to achieve convenient, economic and practical outcomes, but that the true purpose was to promote equal opportunity and prevent discrimination. DDLS is of the view that the grant of exemption under the DDA shares the same denominator that is quoted above and that the current application has not discharged the onus to justify the issue of a license to discriminate. The DDLS believes that exemptions from illegal acts against any disadvantaged group should be decided upon by the Commission with great caution. As people with disabilities are one of the most vulnerable groups in Australia, any exemptions involving them should be scarce, it such exemptions should be approved at all. The Commission to decline the application The DDLS does not support the application for temporary exemption from the DDA for the following specific reasons: The right to recognition and equality before the law is central to the spirit and objectives of the DDA and its importance should not be underestimated. The factors and extent of outcome projected which the applicants have put forward in support are not of the same weight or seriousness as the need to protect this right. The granting of the Application cannot be justified under the UNCRPD, the Charter, and the ICCPR. The 2.5 year period of exemption requested is too long for the improvements promised, or conversely, the extent of target outcomes is not significant for the period contemplated for the Australia wide roll out of the ten phases of accessible cinemas The applicants have not provided evidence of, or at least a clear indication of, evidence of unjustifiable hardship if they were to provide a more timely provision of services that are accessible to the vision or hearing impaired The applicants have been aware and informed of the systemic fault in their manner of provision of services for more than two decades. They have had the technology to remedy this, but have failed to use it to make the substantial gains required to improve access for vision and hearing impaired people Recognition and equality before the law People who are have a vision or hearing loss are entitled to enjoy and participate in the arts; in particular they have a right to have accessible Cinemas. These patrons have the right to reasonable accommodation to eliminate discrimination (UNCRPD article 5.3), and a right to enjoy access to films in accessible formats (UNCRPD article 30.1). They have the right to freedom of expression which includes the freedom to seek and receive information and ideas of all kinds orally, by way of writing or through any medium (ICCPR article19.2 and the Charter s15(2)). This clearly includes the freedom to receive information and ideas via the medium of film. Article 9 of the UNCRPD upholds the right of deaf people to take part in all aspects of life, and have access to services that are open to the public Deaf or vision impaired people and individuals should be consulted and actively involved in the decision making processes concerning them (see UNCRPD article 4.3). They are entitled to recognition and support of deaf culture (UNCRPD article 30.4). We note that peak bodies (such as Deaf Australian and the Deaf Forum Association) can be one way of consulting or representing the common interest of the deaf community. On this particular subject we are aware that deaf people in Victoria have different views on the Application than those expressed by the said peak bodies, and those views should be taken into account. The DDLS has assisted a deaf Victorian who instituted court proceedings in relation to this very subject in 2009. In addition, we are aware that a number of deaf Victorians who have recently been made aware of the Application for exemption are in disagreement with it or its endorsement by peak bodies We note on the Commissions website that at least 20 deaf persons have taken a view different from those espoused by deaf organisations and have strongly opposed the granting of the exemption. Therefore we believe that the Application does not have broad support, at least in the Victorian deaf community. Access can be incorporated inexpensively. At the time of writing, the costs of providing audio description or captioning is about $15,000.00 to $20,000.00 per screen. There are no upkeep costs save for an (inexpensive) annual service. The applicants (invariably) have 6 to 12 screens per their respective cinema complexes. Hoyts, for instance, operates one hundred and ten cinema screens located in ten cinema complexes in metropolitan Victoria. If Hoyts were to commit to making at least one accessible screen per complex, or region, the costs involved would not be prohibitive given that the expense is strategic and a one off investment. Making the cinema accessible does not render it unusable by audience who dont have hearing or vision impairments. An exemption may be warranted if the applicants have a convincing case of unjustifiable hardship as a defence to a claim of disability discrimination, such that the effective solution to the problem is to authorise a complaint free timetable to enable the respondents to map out a strategic plan and pooling of resources, thereby avoiding engaging a multitude of or succession complainants who share the same cause of action. However, the exemption appears to have been sought solely as a convenient response to complaints that have been made or those that may be made because there appears to be no material detriment to the applicants in making non-discriminatory services, particularly when they regard each other as industry partners and actually act collectively. Historically, the applicants were content to forego competition and referred deaf patrons to the accessible cinema operated by their rival movie exhibitor, i.e. Hoyts referred Melbourne customers to the Jam Factory Cinema operated by Village Entertainment, or Sydney customers were directed to the cinema run by Greater Union in Georges Road, Sydney. Arguably, this reflected a culture when deaf persons were not valued as their hearing counterparts and hence for whom a modest investment, albeit a tax recoverable expense, to improve services was continuously withheld. It is quite embarrassing that there are currently only 12 accessible cinema screens in a country as large, and as advanced, as Australia. The effect of the exemption When the Commission grants an exemption, there seems to be no mechanism to deal with the consequences of the applicants breach. The lack of policing measures or identified consequences in case of non-compliance virtually requires people with disabilities to rely on the good will of the applicants who to date are lagging behind their overseas counterparts in providing an equitable manner of delivering goods and services. The applicants are all incorporated persons whose priorities are often linked with finance rather than equity, and the exemption would simply allow them to further delay enacting measures, at the expense of people with disabilities, which could be done much more quickly than is proposed. By comparison, the Disability Standards for Accessible Public Transport 2002 allowed a graduated plan for providers of public transport to meet certain targets regarding a range of access objectives to ensure public transport was accessible within a 20year period. In Victoria, Yarra Trams and the Department of Transport did not meet the targets over a range of requirements. Their task is far greater than the applicants but their non compliance has so far not been addressed, and the end result is simply worse outcomes for people with disabilities who have been unable to access public transport. We anticipate that on account of the applicants history of service provision, the exemption will simply encourage them to provide a piece meal delivery of accessible services, notwithstanding their real capabilities to comply with the requirements of the DDA within a more expedient time frame. The applicants proposal will not even result in at least one accessible cinema screen in every cinema complex. In our view, considering the limited aim and the maximum benefit of the applicants plan of action, the Commission, if it allows an exemption, should rule out a period that is more than 12 months. In our view, 12 months should suffice because the applicants have ready access to the DTS technology required; and the time and effort required in the installation of the system support a successful roll out within a one year period. We also note that after the original period of exemption (as it happened with the TV captioning cases), the applicants are not precluded from making another application for exemption; hence, there is really no material detriment to them if the current application is met with a tempered period of exemption. Moreover, a 12 month time frame will serve to test not only the logistics involved, but the applicants sincerity in rectifying the wrong that they have subjected vision and hearing impaired Australians to within the last 2 decades. Conclusion All persons are equal before the law and are entitled without any discrimination to the equal protection of the law (ICCPR article 26). Deaf people have the right to enjoy their human rights without discrimination (the Charter s8). Therefore in our view, an exemption from the Disability Discrimination Act 1992 is at odds with other human rights legislation. The issue of captioning is one that is not new. There is already an exemption in place in relation to television captioning. This currently restricts the Deaf Communitys access to that medium. There are a number of problems in relation to the quality of the small amount of captioning that exist; in particular the effect digital television has on captioning. Unlike many other countries, there is virtually no Auslan interpreting on television. Therefore, what we see to date is that deaf peoples access to television is already considerably limited, and now it is proposed that the continued discrimination against them in accessing cinema be legitimised. In summary, the DDLS believes that the restrictions for deaf people attempting to access television and/or cinema are already onerous and discriminatory. In addition, they constitute breaches of domestic and international human rights legislation. There is no reason to formalise the already very poor access to cinema by an exemption. Rather, pressure should be brought to bear on cinemas to ensure their services are accessible as soon as possible. Yours sincerely Julie Phillips Placido Belardo Manager Principal      PAGE \* MERGEFORMAT 6  "#FvöíÉ{m{cVH=Hh95^JmH sH h"?h(z5^JmH sH h"?h9^JmH sH ht^JmH sH h"?h63E>*^JmH sH h"?h$>*^JmH sH h4h$^JmH sH h4ht5^JmH sH h4h"?^Jh4h$^Jh4h9^JmH sH h4ht^JmH sH h4h"?^JmH sH h"?^JmH sH hM @^JmH sH h4h ^J h9^J!"#FVv  gd9$a$gd"?gd"?gd$gdtBB       U ^ { = ̵̵̢ri_Rh"?h:^JmH sH h"?h:5^Jh"?h9^Jh$h9^JmH sH h9CJaJhhh9CJaJh9 h9^J h:^Jh"?h$^JhECJ^JaJh"?h"?CJ^JaJh9CJ^JaJh"?h$CJ^JaJh"?h(z^JmH sH h"?h(z5^JmH sH h95^JmH sH  < \ r fNztu 2( Px 4 #\'*.25@9gd"? & Fgd"? dd[$\$gd"?gd"?gd9gd9 - 4 9 ` a o p LMxyhi櫥{rirc h?^Jh"?h4^Jh"?h9^Jh"?ht5^JmH sH h"?h45^JmH sH h"?h(z5^JmH sH  hE^Jh"?h:^Jh"?h(z^JmH sH hEh:6^JmH sH h"?h"?^JmH sH hE^JmH sH h"?h:^JmH sH h"?h4^JmH sH $,8DEZ[y}!"4!P`bjJSUhrhE^JmH sH h"?h4^JmH sH h"?h'<^JmH sH h"?h46^JmH sH h"?h96^JmH sH h"?h9^JmH sH h"?h/LW^J h?^Jh"?h4^Jh"?h9^Jh"?h"?^Jh"?h?^J2^_`n GS`a #yz{89;̵̨zjzjzh!h456^JmH sH h!h956^JmH sH h!h95]^JmH sH h!h95^JmH sH h"?h (^JmH sH h"?h"?^JmH sH h9^JmH sH h"?h9^JmH sH  hE^Jh"?h4^J h?^Jh"?h"?^Jh"?h9^J'`a<=^_` gd"?^gd? & Fgd"?gd"?77$8$H$]^7gd!77$8$H$]^7gd"? 2( Px 4 #\'*.25@9gd"?;<=clqr"01AG^_`dּzqcUh?h 5^JmH sH h"?h5^JmH sH h"?h ^J hE^Jh"?h?^J h?^Jh"?h^Jh"?h^JmH sH hE^JmH sH h"?h#=^JmH sH h"?h (^JmH sH h"?h4^JmH sH h"?h'<^JmH sH h"?h9^JmH sH h!h/LW56^JmH sH  dnryjlwȻzm```VHh"?h 6^JmH sH hE^JmH sH h"?h"?^JmH sH h"?h'<^JmH sH h"?h:^JmH sH h"?ht^JmH sH h"?h(z^JmH sH h"?h:^JmH sH h"?h$^JmH sH h"?h#=^JmH sH h"?h ^JmH sH h?h5^JmH sH h?h 5^JmH sH h?h"?5^JmH sH Yq"CFS\ ߸v`K(h?h%{CJOJQJ^JaJmH sH +h"?ht5CJOJQJ^JaJmH sH +h"?h:5CJOJQJ^JaJmH sH +h"?h"?5CJOJQJ^JaJmH sH h"?h(z^JmH sH h"?h(z^Jh"?ho^Jh"?^JmH sH hE^JmH sH h7^JmH sH h"?h"?^JmH sH h?^JmH sH h ^JmH sH  ?"@"w#x#$$ % %''p(q(((())+.  xgd?gd?gd"?  & F0`0gd"?gd"?gd"? !!6!?!D!m!!!!!=">"x# $$$$-$.$>$$$$$$%ŵ雒xk^^Qh7ht^JmH sH h"?h$^JmH sH h"?h:^JmH sH h"?hq^JmH sH h"?ht^JmH sH h"?h%{^Jh"?h%{^JmH sH h"?h"?^JmH sH h"?h"?5PJ^JmH sH h7h?^JmH sH h7h%{^JmH sH h7^JmH sH hE^JmH sH h?h%{^JmH sH %%%% % % %%,%1%;%<%[%x%%% & &&& &M&&&& 'S'U'V'̲̲̿̑w̄m`SIh?^JmH sH h"?h63E^JmH sH h"?h'T^JmH sH hE^JmH sH h7h:^JmH sH h7h63E^JmH sH h7^JmH sH hEB*^Jphh7h?B*^Jphh7h?^JmH sH h7h-1^JmH sH h7h'T^JmH sH h7ho^JmH sH h7ht^JmH sH h7h$^JmH sH V'o'''''''''''''''$(((0(@(H(Z(](o(((((())D)µ¨µ¨¨¨ž攇qgZh"?h70OJQJ^Jh"?OJQJ^J+h"?h^5CJOJQJ^JaJmH sH h"?hE^JmH sH h-1^JmH sH hE^JmH sH h"?h"?^JmH sH h"?h-1^JmH sH h"?h:^JmH sH h"?h?^JmH sH h?^JmH sH h"?h'T^JmH sH h"?h63E^JmH sH D)R)g)o)q)r)s)t)u)v)}))))))))))**$*&*)*<*F*G*[*b*ϱϠhQQ,h"?hq0JCJOJQJ^JaJmH sH ,h"?h"?B*OJQJ]^JmH phsH ,h"?hqB*OJQJ]^JmH phsH h7OJQJ^J h"?hlT5OJQJ^JmH sH !h"?h?B*OJQJ^Jphh"?h"?OJQJ^Jh?OJQJ^Jh"?hqOJQJ^Jh"?h70OJQJ^Jh"?h?OJQJ^Jb*q*************+++)+*+/+9+C+D+M+++++++++++++ijҠ}}}}}}}m}m}}Z$h"?h700JCJOJQJ^JaJh?0JCJOJQJ^JaJ$h"?h"?0JCJOJQJ^JaJh8 S0JCJOJQJ^JaJ$h"?h%{0JCJOJQJ^JaJ h"?hqOJQJ^JmH sH h8 SOJQJ^JmH sH ,h"?hq0JCJOJQJ^JaJmH sH ,h"?h"?0JCJOJQJ^JaJmH sH #+++>,N,P,X,,,,,,,,,, ---/-0----------%.-.0.3.5.?.H.Z.......// /%/-/3/:/B/M////////////ٸϸٮh"?h?OJQJ^Jh?OJQJ^Jh"?h7OJQJ^Jh7OJQJ^Jh8 SOJQJ^Jh"?h"?OJQJ^Jh"?h OJQJ^Jh"?h-1OJQJ^J?/////////// 000"0B0C0111I1Q1V1X1s1x111111111111 2!2ҸҮܡ~uluch"?hb3^Jh"?h?^Jh"?h'^Jh"?h4@^J hY05^Jh"?h'5^Jh"?ho^Jh"?h-1OJQJ^Jh8 SOJQJ^Jh"?hY0OJQJ^Jh"?h"?OJQJ^JhY0OJQJ^Jh"?h?OJQJ^Jh"?h OJQJ^Jh?OJQJ^J&.11114488A:B:`<a<l<m<==??s@t@nAoA=B>B?B 0^`0gd"? & F0`0gd"?gd"?xgd?!24252>2?2@2A2I2j2u222/303\3`3u3333333 4424_4d4g4n4s4444444555556!6$666@6O6]6i6m6n6w6|66666777778888߷ߨh"?h4@^J h8^Jh"?h'6^Jh"?h?^J h8 S^Jh"?h ^J h?^Jh"?h'^J hY0^Jh"?hb3^Jh"?h"?^JB8 8)8*8+8:8I8J8O8V8Y8Z8e8k8l8r8s8u8v8w8|8888888888888888888889999959=9K9Q9U9V9W9Z9a9d9j9k9q9z99999999999999::&:,:/:7:B:::Y;`;;;;; hY0^J h8^Jh"?h"?^J h8 S^Jh"?hb3^JW;;<B<E<_<`<a<k<m<U=====r>v>{>>>>>>>>??? ?3?7?m?z??????O@\@r@s@AAߝߝߝߝߝߝߝ~uuh"?h63E^Jh"?h E^Jh"?h ^Jh"?ho^JmH sH h"?ho^Jh"?h4@6^JmH sH h"?h4@^JmH sH h"?hO]^JmH sH h"?hO]5^J h?5^Jh"?hO]^Jh"?hb3^J h8 S^Jh"?h"?^J+A,A3A5AoAAB?BBBBBBBBBBBBBBBBBBhEimHnHuhEjhEUho[jho[Uh"?h63E^Jh"?hO]^Jh"?h4@^J?BOBPBtBBBBBBBBBBBBBBB$a$gd"?,1h. 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