EXPLANATORY STATEMENT
Select Legislative Instrument 2012 No. 178
Issued by the authority of the Attorney-General
Disability Discrimination Act 1992
Disability Discrimination Amendment Regulation 2012 (No. 1)
Section 132 of the Disability Discrimination Act 1992 (the DDA) provides, in part, that the Governor‑General may make regulations prescribing all matters required or permitted by the DDA to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to the DDA.
Part 2 of the DDA prohibits discrimination on the basis of a person’s disability. Exemptions to this prohibition are provided in Division 5 of Part 2. Subsection 47(2) of the DDA provides that Part 2 does not make unlawful anything done by a person in direct compliance with a prescribed law. Prescribed laws are listed in Schedule 1 of the Disability Discrimination Regulations 1996 (the Principal Regulations).
The purpose of the Regulation is to amend the Principal Regulations, by incorporating Part 9D of the Broadcasting Services Act 1992 (the BSA) as a prescribed law for the purposes of subsection 47(2) of the DDA.
The Broadcasting Services Amendment (Improved Access to Television Services) Act 2012 came into effect on 29 June 2012 and inserted a new Part 9D into the BSA. Part 9D of the BSA introduces new captioning obligations on television broadcasters to improve access to television programs and emergency warnings for people with hearing impairments.
Prescribing Part 9D of the BSA under Schedule 1 of the Principal Regulations ensures that television broadcasters acting in direct compliance with their captioning obligations under the BSA cannot otherwise be liable for unlawful discrimination under Part 2 of the DDA.
Before making any regulations for the purposes of subsection 47(2) of the DDA, subsection 132(2) of that Act requires the Governor-General to take into consideration any comments made to the Minister by a Minister of a State or Territory who is responsible for matters relating to disability discrimination. No such comments have been raised.
The DDA specifies no other conditions that need to be satisfied before the power to make the Regulation may be exercised.
The Regulation commences on the day after it is registered on the Federal Register of Legislative Instruments.
The Regulation is a legislative instrument for the purposes of the Legislative Instruments Act 2003.
Details of the Regulation are as follows:
Section 1 – Name of Regulation
This regulation provides that the title of the Regulation is the Disability Discrimination Amendment Regulation 2012 (No. 1).
Section 2 – Commencement
This regulation provides that the Regulation commences on the day after it is registered on the Federal Register of Legislative Instruments.
Section 3 – Amendment of Disability Discrimination Regulations 1996
This regulation provides that the Disability Discrimination Regulations 1996 (the Principal Regulations) are amended as set out in Schedule 1.
Schedule 1 – Amendments
Item [1] – Schedule 1, Part 1A
This item inserts Part 9D of the Broadcasting Services Act 1992 into Part 1A of Schedule 1 to the Principal Regulations as a prescribed law.
This means that anything done by a person in direct compliance with Part 9D is not unlawful discrimination under Part 2 of the Disability Discrimination Act 1992.
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Disability Discrimination Amendment Regulation 2012 (No. 1)
This Legislative Instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the Legislative Instrument
The Disability Discrimination Amendment Regulation 2012 (No. 1) will prescribe Part 9D of the Broadcasting Services Act 1992 (the BSA) under Schedule 1 of the Disability Discrimination Regulations 1996. This will have the effect of exempting television broadcasters from claims of unlawful discrimination under Part 2 of the Disability Discrimination Act 1992 (the DDA) when they are acting in compliance with Part 9D of the BSA.
Human rights implications
Australia is a party to the International Covenant on Civil and Political Rights (the ICCPR) and the Convention on the Rights of Persons with Disabilities (the CRPD). Many of the provisions in the CRPD are drawn from other human rights instruments, notably the ICCPR and the International Covenant on Economic, Social and Cultural Rights.
The Regulation engages the following human rights:
- the right to equality and non-discrimination (Article 26 ICCPR and Article 5 of the CRPD)
- the right to an effective remedy (Article 2 ICCPR)
Right to equality and non-discrimination
Article 26 of the ICCPR sets out the right to equality and non-discrimination and provides that laws must guarantee equal and effective protection against discrimination on prohibited grounds, including on the basis of language. Article 5 of the CRPD provides for the right to equality and non-discrimination and that State Parties are required to take all appropriate steps to ensure that reasonable accommodation is provided.
Prescribing Part 9D of the BSA has the effect of limiting the circumstances where a person can bring an action under the DDA to seek redress for a potential breach of the DDA in relation to captioning. As set out in the Statement of Compatibility with Human Rights for the Broadcasting Services Amendment (Improved Access to Television Services) Act 2012, the relevant provisions in Part 9D of the BSA promote the rights of people with hearing impairments, and the accessibility of television broadcasts generally, by legislating explicit captioning requirements that increase access to television services. This provides the basis for ensuring non-discrimination and reasonable accommodation in the enjoyment of rights for people with a hearing impairment. Exempting the application of the DDA to acts in direct compliance with Part 9D of the BSA is intended to provide clarity: that the Australian Communications and Media Authority (ACMA) is the body responsible for ensuring broadcasters meet their captioning obligations. As a result of the amendments, complaints concerning broadcasters’ captioning obligations may still be made. It will be the ACMA rather than the Australian Human Rights Commission who will consider such complaints, and take appropriate action to ensure that broadcasters meet their captioning obligations.
These changes are consistent with the right to equality and non-discrimination.
Right to an effective remedy
Article 2 of the ICCPR provides for the right to an effective remedy where a right or freedom has been violated and for a competent authority to determine and enforce that remedy.
The Regulation removes the ability for a person to take action under the DDA where they feel they have been discriminated against on the basis of inadequate captioning by television broadcasters. This may affect a person’s right to effective protection against discrimination because it removes an avenue of complaint.
This change is intended to ensure that broadcasters are subject to a single set of regulatory requirements. It will also establish a unified and cost-effective compliance and complaints mechanism for both individuals with a hearing impairment and broadcasters.
Instead of individuals having to take individual broadcasters to conciliation or to court alleging breach of the DDA if they consider captioning to be insufficient, they will be able to make complaints directly to broadcasters and then, if not satisfied ultimately to the ACMA. The ACMA can take appropriate action, including enforcing new television captioning requirements which are now a condition of certain licences.
The protection of the right to equality and non-discrimination will instead be achieved through requirements for broadcasters to provide a certain level and quality of captions. Compliance with captioning requirements in Part 9D of the BSA will be a licence condition of commercial television broadcasting licensees, subscription television broadcasting licensees and providers of a subscription television narrowcasting service under a class licence. As licensees have a commercial imperative to maintain these licences, the right of people with a hearing impairment to have improved access to television programs remains protected. Furthermore, the ACMA is empowered to enforce this licence condition.
The Regulation does not affect the operation of other anti-discrimination legislation or the operation of the DDA in relation to non-captioning matters. Individuals may still make complaints to the Australian Human Rights Commission, or take other action under the DDA if they consider their human rights have been breached.
While the Regulation removes one avenue of complaint, affected people are afforded a new and equally effective avenue for complaints. The new avenue for complaints also simplifies the regulatory environment for both television broadcasters and affected individuals. This change is consistent with the right to an effective remedy.
Conclusion
The Regulation is therefore compatible with human rights.