Cinema captioning exemption application: Request for responses to issues raised in submissions

Dear Applicants

I write to you concerning your application under section 55 of the Disability Discrimination Act 1992 (DDA) for a Temporary Exemption in relation to the provision of captioning and audio description.

The Commission has received over 450 submissions in response to the application which have been placed on our website at:

I have summarised below a number of issues raised in submissions in order to provide you with an opportunity to respond to them. The summary does not include every issue raised in submissions, but focuses on those the Commission would particularly welcome further information on.

You will see the summary includes a selection of quotes from submissions the Commission has received in order to illustrate the points raised. If there are any other matters that you wish to raise with the Commission arising out of the submissions, you should feel free to do so.

In order to ensure continuing transparency in processing your application I have arranged for the content of this letter to be added to the documentation on our website and will add to it any responses you may wish to make when received.

Summary of issues

  1. Most submissions called on the Commission to reject the application outright arguing that industry has had many years to address its responsibilities under the DDA and had failed to do so to any significant degree:

The cinema industry has had many years to prepare, plan and implement sufficient accessible cinemas for its deaf, hard of hearing and vision -impaired patrons. To begin crying poor and beg for more time is a pure insult to those patrons who have been patiently waiting. We have waited and been denied too long. There is no excuse for not being ready for this now.

(Submission by Marnie Kerridge)

It is vitally important that individuals and families have equal access to enjoy

Australia 's most popular form of arts and cultural engagement. The Uniting Church opposes the application for exemption on the grounds that it shows no serious progress towards equal access.

(Submission from Uniting Church in Australia Synod of Vic and Tas)

Currently, the United States and Canada have more than 830 accessible cinemas, representing 15 per cent of locations; the United Kingdom has more than 300 accessible cinemas. Why are Australian cinemas applying for an exemption against this when other countries are able to provide accessible cinemas? Australian cinemas should be moving forward and embracing the changes as a part of accessibility and equality.

(Submission from Victorian Council of Deaf People)

Could you please provide your response to the views expressed about the pace of improved accessibility.

  1. Many of the submissions objected to the fact that individuals would lose their rights to lodge complaints under the DDA, particularly for what many see as a limited expansion of access with no guarantee of ongoing progress to achieve access throughout all the applicants cinemas:

If accepted, the exemption means that Australians who are deaf, hard of hearing, blind and vision impaired stand to lose their right to complain to the Australian Human Rights Commission about the lack of provision of captioning and audio description at any of the 125 cinemas (1182 screens) owned by these four exhibitors. If the exemption is granted cinemas will provide captioning and audio description for a minimum of three screenings a week in 35 cinemas. That equates to 0.3 % of the estimated 40,000 films they screen each week.

(Submission by Arts Access Darwin )

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.

(Submission by Elena Down)

Could you please provide your response to these views.

  1. Similarly a number of submissions questioned the need for a Temporary Exemption arguing that, while welcoming proposals to increase the number of cinemas providing access, such increases should not be linked to an exemption:

I simply cannot see why there is a need for exemption from the Disability Discrimination Act (DDA)? If there is progress being made, why does this cinema collective need exemption? Certainly, if (there is) a clear move to improve access … there should be no fear of complaints or legal repercussions.

(Submission by Alice Ewing)

The applicants seek to make a link between one proposal to make more cinemas accessible, and another proposal for deaf, hearing impaired (HI) and visually impaired (VI) people to stop making DDA complaints for a few years about access to captioned cinema. These are two discrete issues. Access is not an either/or issue whereby deaf, hearing impaired and visually impaired people should be expected to give up our DDA protections in exchange for other people being given access to captioned cinema. If it was right that we were given access to cinema, and it was, it should follow that these rights are maintained. Quite distinct from this is that deaf, HI and VI Australians, who don't currently have this access, should also be offered it with no strings attached.

(Submission by Karen McQuigg)

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 discrimination to occur with impunity.

(Submission by Elena Down)

Could you please provide your response to these views.

  1. A number of submissions called on the Commission to ask industry to justify financially why it is not possible to move progressively towards 100% compliance with obligations under the DDA rather than a limited commitment as proposed in this application. One submission referred to the investment that is taking place in relation to digital cinema and the introduction of 3D cinema and referred to reports that at least one of the applicants was embarking on a multi-million dollar digital cinema conversion across Australia asking why access cannot be provided as a part of this investment:

We note that in the recent past (within the last 12 months), the applicants have installed new screens and stereoscopic projection systems to screen 3D versions of a limited number of films in at least 71 of their 125 locations (56% of locations), with current plans to increase that number further.

To date, the applicants have already provided 3D capability in double the number of locations which they propose to provide with open captioning three years from now.

We ask the Commission to request from the applicants information on:

•  number of locations which have been upgraded to screen 3D movies

•  percentage of current release movies released in 3D format

•  average cost per cinema for the 3D upgrades

It would appear to us that the applicants' proposed open caption rollout (quite limited when compared to the 3D rollout) is based purely on commercial decisions, and does not advance the objects of the DDA.

(Submission by Cairns Community Legal Centre)

This basically means our deaf community are unable to attend and enjoy the cinema experience purely because they have an inability to hear. This means they are clearly discriminating against the deaf community through their lack of provision of accessible cinema captions. Clearly the cost can't be raised as an issue, when each group has spent $200,000 for the technology of 3D cinema's.

Both cinemas have recently advertised their installation of $200,000 of technology at Reading and Birch Carroll and Coyle in the opening of a 3D cinema in each location (Via the Townsville Bulletin).

(Submission by Belinda Sanderson)

Could you please provide submissions on this issue and, in particular, further information on the scope and costs associated with the digital and 3D expansion referred to in submissions.

  1. A number of submissions proposed that negotiations between industry and stakeholders should begin as soon as possible in order to start the process of mapping out future roll-out of accessibility and addressing other issues raised in submissions:

Similarly WWDA does not agree with the cinemas' undertaking to review future provisions for captioning and audio description of the eventual 35 cinemas at some projected future date (i.e. as outlined to be ‘within 9 months of the end of the 2 ½ year Temporary Exemption period'). Rather, the cinema chains should continue, in good faith, to engage in discussion with the AHRC and key stakeholders in early 2010, to develop a long term schedule to increase the total number of accessible cinemas.

(Submission by Women with Disabilities Australia )

the applicants are to immediately enter into meaningful negotiations with representative bodies (such as DAI and DFA), to develop a program for further upgrades with a target of 56% coverage by 30 June 2013, and 75% by 30 June 2014.

(Submission by Cairns Community Legal Centre)

Could you please provide your views on this issue particularly in the context of the current and ongoing Government investigation into media access.

  1. A number of submissions referred to the need for industry to be more active in the marketing and promotion of film access including better accessible web information; community service announcements; in cinema displays and local promotions.

Submissions suggested that a primary reason for reported lower than expected patrons related to a lack of commitment in this area:

The application states that the cinemas will work with representatives of disability organisations to ensure the availability of accessible information on captioned and audio described films within 6 months of the granting of the Temporary Exemption.

The cinemas have for 8.5 years looked to the community and its representative organisations such as Deaf Australia to provide information to Deaf and hard of hearing movie patrons. While Deaf Australia is happy to assist by including information in our newsletters from time to time, the cinemas need to stop relying on community organisations to do their marketing for them. Cinemas need to accept responsibility for promoting their films and making accessible information available themselves.

The recent accessible cinema program run by independently owned cinemas has demonstrated that the use of localised, targeted marketing can play a key role in cinemas taking ownership of their accessible program and in making a connection with their local audiences.

As well as a coordinated national approach from cinema head offices, each location manager should seek out local groups (seniors, disability, education, language) to promote their movies to them. A personal approach from the local cinema manager will assist in establishing a link and increase the possibility of attendances from these groups, as opposed to online or standard newspaper advertisements of accessible sessions. Early establishment of such links will assist the cinema in ironing out any information availability issues by way of feedback from the users.

(Submission by Deaf Australia )

… cinema organisations should take full responsibility for promoting accessible sessions across the community and recognise that if requested, any promotional activity undertaken by disability organisations amongst their own client groups is augmentative rather than alternative. The Association for the Blind of WA would be pleased to participate in such promotion.

(Submission by Association for the Blind WA)

Could you please provide your submissions on this issue.

  1. A number of submissions raised the issue of captions only being available at three sessions each week and the difficulty that caused individuals and families trying to visit their accessible cinema. Some submissions suggested that one of the reasons attendances might be lower than expected was because of this limitation:

The three times a week (one movie a week) allocation is not sufficient as many people are unable to arrange their lives around going to a movie.. this is unfair as hearing people get a chance to see a movie over a longer period and we only have one week with only a few weeks notice (sometimes under a week).

The same movies are shown at all different locations - the numbers, time, choice and number of weekly sessions is insufficient. The times are always 'off peak' and therefore people are unable to access discount offers from cinemas nor enjoy movies during peak times

(Submission by Cathy Clark)

The current schedule of three captioned sessions per week was established in 2001 when captioned films first commenced. It has not been improved upon for 8.5 years despite ongoing complaints over the years. Three screenings per week is no longer acceptable and needs to be significantly improved.

The current screening times have also not changed in 8.5 years despite ongoing complaints that they are not suitable for a large number of people. A larger number and range of screening times needs to be offered.

(Submission by Deaf Australia )

Could you please provide your views on this issue.

  1. A number of submissions referred to the need for the applicants to specify the number of headsets that would be available at each accessible screen for those requiring audio description. The consensus among those making submissions on this issue was that there should be a minimum of 10 headsets:

The applicants do not mention the number of head sets they intend to provide for each cinema. In order for the cinemas and people who are blind or vision impaired to optimise access to movie screenings, Blind citizens Australia asserts, along with Media Access Australia, that each cinema should make available no less than 10 head set receivers.

(Submission by Blind Citizens Australia )

Could you please provide your submissions on this proposal.

  1. A number of submissions raised the issue of the need to research and test a range of technological solutions to the delivery of audio description:

The applicants will establish a working party, including representatives from Vision Australia , to explore more effective technological solutions to the provision of audio description tracks. In previous submissions, Vision Australia has argued that some current technologies used in delivering audio description result in a very poor user experience, and impose unreasonable restrictions on cinema patrons (for example, that they must sit in designated spots in the cinema). We have argued that a solution should be developed that allows consumers to use FM receivers (possibly their own) and which also makes it possible to mix the audio description track and the movie sound track through the headphones. We regard the development of an optimal technological solution that results in a convenient and rewarding cinematic experience to be a crucial factor in the long-term viability of audio description in Australian cinemas, and the period covered by the Temporary Exemption would seem to be the most appropriate time to develop such a solution.

(Submission by Vision Australia )

The applicants should explore the ‘best' technology for AD distribution. For instance, mostly the current systems use infra-red whereas FM distribution would probably deliver a better cinema experience.

(Submission by Australian Blindness Forum)

Could you please provide your views on this proposal.

  1. A number of submissions raised the issue of availability of audio description at all sessions in accessible screens:

The applicants have indicated audio description and captioning will only be shown 3 times per any given week. However, we note audio description is a personal service only heard by the individual, making it non obtrusive to other patrons. Therefore when ever an accessible film is being shown on the accessible screen, the audio description features should, and can be, available in every session to maximise the use of the equipment.

This will ensure that patrons who are blind or vision impaired have full access an enjoyment of films just like everyone else.

(Submission by Blind Citizens Australia )

Audio description will be available (“always on”) at all screenings of movies where audio description is included. It is totally unacceptable that audio description be shown at only 3 weekly screenings, as this will severely restrict the ability of people who are blind or have low vision to attend such screenings. It also implies that people with disability should all be funnelled to the same sessions, which we do not believe is consistent with the principles of social inclusion and equal access.

It is our understanding that once the equipment has been installed in the cinema, there is minimal cost involved in using it. Vision Australia notes that there is also extreme dissatisfaction among the Deaf community about the proposal to show only 3 captioned screenings per week. Moreover, there may be movies that are audio-described but not captioned (and vice versa), and linking audio description with captioning in the manner proposed in the application will preclude these movies from being shown with audio description.

(Submission by Vision Australia )

Could you please provide your submissions on this issue.

  1. A number of submissions referred to the need to explore alternative forms of delivery of captioning in order to facilitate the expansion of captioning availability in all sessions at accessible screens:

Arts Accessible Arts submits that (if an exemption were granted it should include a requirement that the applicants): …

Commence testing of existing, new and emerging technologies such as Rear Window Captioning.

(Submission by Accessible Arts)

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.

(Submission by Deafness Council of WA)

In addition, as a previous member of the negotiating committee, I recall that a commitment was made to explore the option of closed captions on movies using Rear Window technology or the newer Digital technology to allow participants to attend 'any' cinema they desire and see any movie at any time , any place without restrictions - the open caption cinema promotes segregation of hearing impaired people.

(Submission by Cathy Clark )

Could you please provide your views on this issue.

  1. A number of submissions raised concerns about the sourcing and showing of G and PG rated films in accessible screens. These submissions focused on concerns that children are not getting the same access to films as provided to adults under the current program:

WWDA is also concerned that there is nothing in the commitment from the cinema chains to ensure that children who are vision or hearing impaired have any access to audio described and captioned cinema. There urgently needs to be discussion about the scheduling of accessible screenings of G- and PG-rated films, at all times and particularly increased accessible screenings during school holidays periods, taking into account the different holiday periods in each State/Territory.

(Submission from Women with Disabilities Australia )

The cinemas' previous performance in this area has not been particularly good. There have been numerous complaints about the lack of variety in the type of captioned films screened and little regard shown for audience demographics, for example a lack of G rated captioned films being shown during school holidays. This needs to be improved.

(Submission by Deaf Australia )

The exclusive nature of this exemption and other exemptions is harmful and damaging to children who already feel isolated by deafness. Limited screens, screenings and limited product exacerbates social isolation which is hard enough for deaf and hearing impaired children, resulting in periods of depression and negativity about self.

In our family's personal experience when a film of suitable rating and appeal eventually appears on the screen and our daughter wants to see it with a friend, they have invariably seen it and so the experience and pleasure is not to be had.

(Submission by Joanne Beckwith)

Could you please provide your views on this issue.

  1. One submission raised the issue of access to films funded by Screen Australia . In recent years Screen Australia has had a policy of requiring captioning of Australian produced feature films made with Screen Australia funds. Concern has been expressed that few of these films get exhibited in the accessible screens operated by the applicants:

The cinemas need to work with Screen Australia to ensure that all Australian films made accessible via Screen Australia 's captioning policy are included in their accessible programs.

(Submission by Deaf Australia )

Could you please provide your views on this issue.

  1. A number of submissions called for a commitment to include accessibility in all new cinemas and existing cinemas that undergo refurbishment as a matter of course:

There has been no commitment to providing access in new and refurbished cinemas. By using universal design principles, cinemas should realise that the inclusion of accessible equipment from the start is a more cost effective and efficient method than installing it retrospectively. Cinemas should be required to develop a Disability Action Plan that ensures that future new builds and refurbishments include caption (and audio) accessibility.

(Submission by Deaf Australia )

Apart from further entrenching systemic discrimination and exclusion, the application in itself does not contain sufficient detail with regards to … detailing plans for inclusion of any captioning in any new or significantly refurbished cinema, which clearly should be upgraded to include captioning during an exemption period.

(Submission by Deafness Forum)

In addition to the cinemas listed on the Schedule to the application, all cinemas that are built or undergo substantial refurbishment during the period of the Temporary Exemption are to be fitted with audio-description capabilities. We do not think it is reasonable or consistent with the principles of social inclusion and equal access that new or refurbished cinemas should be excluded from the terms of the application. The investment needed to install the equipment for showing captioned and audio-described movies is a very small percentage of the overall cost of the cinema fit-out.

(Submission by Vision Australia )

Could you please provide your views on this issue.

  1. A number of submissions proposed industry commit to undertaking customer research to test the suggestion that open captions are a distraction to cinema goers and would affect cinema attendances if shown at more sessions:

We are particularly concerned with the suggestion that inaccessible screenings will continue to be shown at screens that have been retro-fitted with the technology for captioning and audio description. What is the basis for denying consumers the right to attend accessible screenings at these screens? If it is an assumption that access technology has a negative impact on attendance rates, what is the independent evidence basis for this assumption? In our view, this further compounds the experience of discrimination that is reported by consumers with a disability.

(Submission by Arts Access Victoria )

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.

(Submission by Elena Down )

Could you please provide your views on this issue.

  1. One submission proposed that the roll-out of retrofit of audio description to the current 12 cinemas that offer captioning should occur during the early stage of the program:

Blind Citizens Australia notes the retro fitting of the existing cinemas has been scheduled periodically throughout the time table. Blind Citizens Australia strongly asserts that these cinemas have been functioning with captioning for a number of years, so the cinema audio description fit out should be completed during the beginning of the roll out program, not throughout the program. This would bring the availability of audio description in line with the current captioning program.

(Submission by Blind Citizens Australia )

Could you please provide your views on this issue.

  1. A number of submissions sought further clarification on whether or not the proposed exemption was to cover only the cinemas wholly owned and operated by the applicants or if it would include other cinemas where the applicants are part owners or affiliates.

Could you please provide clarification on this question including a list of any cinemas operated by the applicant under a different company name to be covered by this application.

  1. A number of submissions referred to the quality of audio description and proposed a commitment be made to developing quality control guidelines:

It is imperative that increased access to AD in the electronic media is accompanied by national guidelines for quality control. AD is a kind of literary art form – a few well-chosen words conjure vivid images. Quality audio description requires quality trained audio describers. Poorly or inadequately audio-described media can fail in its goal of improving understanding of the material or program. Avenues for complaints about poor audio description should be covered by national guidelines.

(Submission from Australian Blindness Forum)

Could you please provide your views on this proposal.

I appreciate that we are now entering the holiday period and that the summary of issues below will require careful consideration, but I would appreciate a response as soon as possible to allow the Commission to proceed to determine the application. If you are able to indicate when a response might be provided that would be helpful.

Yours sincerely

Michael Small
Acting Director, Disability Rights Unit
Australian Human Rights Commission
22 December 2009