Australian Greens Dissenting Report
Broadcasting and Other Legislation Amendment (Deregulation) Bill 2014
The Broadcasting and Other Legislation Amendment
(Deregulation) Bill 2014 is another piece of the Government’s deregulation
agenda that has been introduced with insufficient consultation and without
consideration of its impacts on viewers.
The Australian Greens thank all of the submitters to the
inquiry, and acknowledge their efforts given the relatively short submission
period. The submissions, particularly those from the hearing impaired and deaf
community, have identified a range of problems with the Bill that are outlined
below.
Given the range of concerns identified, the Australian
Greens do not support passing this Bill without substantial amendments.
Section 1: Captioning
One in six Australians are hearing impaired and as our
population ages this will increase to one in four, meaning that there is likely
to be an increased reliance on television captioning in the future. It is clear
from the submissions to this inquiry that TV broadcasters and caption suppliers
are keen to respond to the increasing demand. Captioning frequency and quality
has improved significantly over the past decade and the commitments to 100%
captioning during 6am and 12pm on free-to-air broadcasts are welcome ones.
However, the deregulation agenda of the current Liberal
Government is again impacting on those who least deserve and are least able to
bear the costs of it; in this case, the deaf community.
Furthermore, the lack of consultation has meant that this
legislation has been produced without appropriate consideration of the impact
that it will have on consumers, broadcasters or the suppliers of captions. The
Australian Greens have identified a number of concerns that must be addressed
before the Bill is passed.
Monitoring and reporting
The Bill proposes shifting from an annual reporting
compliance scheme, in which broadcasters are required to demonstrate that they
meet their captioning obligation, to a consumer complaints mechanism. In doing
this, the Bill does not provide sufficient guarantees that the ACMA will
continue to consistently monitor compliance with the captioning quantity and
quality requirements or that broadcasters will continue to review and address
systemic failures, unless a consumer makes a specific complaint.
Effectively, the burden of reporting is shifted from the
broadcasters and onto the individual consumer. A number of consumer
representative bodies have argued that this is unacceptable, as it makes
consumers responsible for policing the broadcasters rather than making
broadcasters responsible for demonstrating that they have met their
obligations.
The Australian Greens share the perspective of Media Access Australia,
that reporting is a 'fundamental feature of compliance, consumer protection and
efficient market operation, and should be maintained.'[1]
An effective consumer complaints mechanism can complement
this statutory reporting requirement, but should not replace it.
Some submissions noted the current annual reporting process
means that there are delays of up to a year in identifying captioning breaches
and that in many cases the issues have been resolved by the time the report is
submitted.[2]
However, they did not demonstrate that a viewer complaints mechanism would
result in more timely resolution of systemic failures.
On the weight of the evidence provided to the committee, the
Australian Greens believe that the responsibility for reporting non-compliance
with captioning quality requirements should remain with the broadcaster
because, as Media Access Australia noted in their submission, the broadcasters
and caption suppliers have the complete records of the programs they have
captioned and the technical issues that have occurred.[3]
Nevertheless, the Australian Greens recognise that the
current reporting regime is overly complex – as demonstrated by AI Media in
their submission.[4]
To ensure that there are still reporting obligations while
reducing the regulatory burdens on broadcasters, AI Media proposes amending the
reporting framework to focus on easier to generate yet still verifiable reports
such as 'percentage of captioning target' achieved.[5]
This could make reporting simpler for broadcasters, and timely and transparent
for consumers, without losing the regulatory oversight.
Simplified reporting is preferable to removing reporting
requirements altogether and should be considered further.
For these reason, the Australian Greens recommend not
passing schedule 6 (section 130ZZD) in its current form. The burden of
reporting should remain on broadcasters, rather than consumers, but simpler
reporting frameworks should be considered.
Live captioning standards
A number of submitters, including ASTRA and the Australian
Communications Consumer Action Network, expressed concern that that proposed
subsections 130ZZA(2A) and (2B) are contradictory.[6]
Some submitters, such as Free TV Australia suggested the
removal or clarification of proposed subsection 130ZZA(2B) 'because it seems at
odds with the recognition that live captioning has particular constraints and
challenges'.[7]
However, the Australian Communications Consumer Action have
expressed concern that the effect of 130ZZA(2A) is to allow ACMA to distinguish
between the quality of captioning based on the method used (live versus
pre-prepared) without regard to whether the lower quality, live method was the
most appropriate method to use.[8]
The Australian Greens support the move to clearly articulate
different quality expectations for live versus pre-recorded captioning; and
recognise that the quality of live captioning will always be lower than
pre-recorded captioning.
However, the legislation does not yet effectively address
the concerns of consumers that the most appropriate captioning method will be
used by broadcasters. The Australian Greens recommend that section 130ZZA(2B)
be amended to better reflect these concerns, without undermining the ability of
the ACMA to distinguish between live and pre-prepared caption quality, as
outlined in section 130ZZA(2A).
Averaging of captioning targets
across subscription sports channels
The lack of clarity among submitters about the operation,
and impact, of the proposed quote averaging amendment highlights the inadequacy
of the consultation undertaken prior to introducing this legislation.
The evidence provided to the committee demonstrated that if
a consumer subscribes to a sports package on subscription TV they will receive
all the sports channels, and therefore access the same amount of captioning if
the averaging of quota requirements is passed.
As stated by Fox Sport, the amendments would assist it to 'direct
captioning to programming which is of the greatest interest to audiences and
would have no impact on the amount of content captioned across [subscription
television] sports channels.'[9]
However, Alex Varley, from Access Media acknowledged that
this change 'needs more explanation and investigation to ensure that it is
clear to consumers what they are being offered and what they will receive match
closely.'[10]
On balance, the Australian Greens believe that allowing
captioning targets to be averaged will not be detrimental to consumers,
provided there is a commitment from subscription TV providers to produce
information that accurately informs consumers about these changes.
Exemption for quality breaches due
to technical or engineering failures
The Bill proposes to create an exemption to captioning
quality standard breaches where the breach is due to technical or engineering
difficulties which could not reasonably have been foreseen.
This would have the effect of addressing situations such as
the one described by Free TV Australia:
There have been instances where the ACMA has accepted
that a broadcaster has experienced unforseen technical difficulties and excused
the breach, but has still gone on to find a breach of the licensee's
requirement to comply with the Quality Standard (section 130ZZA).[11]
However, Deaf Australia argue that the proposed amendment
130ZZA(7) will give too much scope to broadcasters to shift the responsibility
for breaches of captioning standards on to the captioning service provider and
avoid penalties even if the technical and engineering failures are clearly
systemic.[12]
The Australian Greens recommend addressing the concerns of
Deaf Australia by amending the legislation so that the ACMA may rather than is
to disregard these failures when considering whether a licensee or broadcaster
has failed to comply with the captioning standards.
Statutory Review of legislation
The Australian Greens strongly disagree with the Government
position, as outlined in the Explanatory Memorandum that, from December 2013, a
review has been conducted by the Department and the ACMA resulting in it no
longer being necessary or appropriate to conduct a comprehensive statutory
review of the captioning arrangements set out under section 9D of the
Broadcasting Services Act.[13]
The consultation around this Bill, and the broader reform,
was inadequate and there is still a need to review captioning on Australian
television against best practise, including the UN Convention on the Rights of
Persons with Disabilities.
The Australian Greens recommend that Division 7 of Part
9D not be repealed.
Section 2: Local Content
The Australian Greens note and applaud the high level of
compliance by the television industry with the New Eligible Drama Expenditure
scheme, which requires a number of subscription television licensees, channel
providers and part-channel providers to spend at least 10 percent of their
total programming expenditure on new Australian or New Zealand drama
productions or co-productions.
However, insufficient evidence has been presented that would
indicate that the removal of auditing requirements for the scheme would not
result in a degradation of compliance with the scheme.
The Australian Greens believe that the Government and the
television sector must continue to strongly support the development of original
Australian content. The industry has long enjoyed a favourable regulatory
environment which has driven strong profitability by a number of companies. In
this context, it is entirely fit that, in turn, it supports the broader
Australian community by generating content that will highlight Australian
culture.
The Australian Greens note comments by the Communications
Law Centre at the University of Technology, Sydney, that argue that if auditing
requirements around the New Eligible Drama Expenditure Scheme were removed,
that the ACMA should undertake regularly compliant monitoring and that the
provision of Australian content on a range of platforms is in the public
interest.
The CLC states: 'Although there has been a high level of
compliance with these regulatory requirements to date, this does not
necessarily mean that these levels of compliance will be attained in the future
in the absence of robust regulation.'[14]
The Australian Greens further note comments from Screen
Producers Australia, which state that further analysis is needed to ascertain
the impact of the removal of auditing requirements. The SPA states: 'The
relative costs and benefits have not been clearly communicated and importantly,
the degree to which the high-level of compliance has been achieved as a result
of the auditing requirement remains unclear.'[15]
The Australian Greens recommend that the auditing
requirements for the New Eligible Drama Expenditure scheme remain in place.
Conclusion
This Bill has a number of significant problems which will
have a detrimental effect on deaf and hearing impaired consumers of free-to-air
and subscription TV services.
The Australian Greens are not opposed to updating and
simplifying the regulatory framework that governs TV captioning in Australia,
provided this leads to better outcomes for consumers, rather than just
broadcasters. The lack of consultation, and the proposed repeal of the
statutory review, both point to an unwillingness to consider how the Bill will
impact those who are reliant on captions to access the news and entertainment
that other Australians take for granted.
Without significant amendment, this Bill will erode the
quality of Australian TV captioning and contribute to the discrimination that
deaf people face in accessing basic services.
Similarly, insufficient evidence has been presented that
would indicate that the removal of auditing requirements for the New Eligible
Drama Expenditure scheme would not result in a degradation of compliance, which
in turn has a detrimental effect on Australian actors, Australian production
companies and Australian viewers.
The Australian Greens recommend that the Bill not be
passed until it has been amended to address the concerns raised in this
dissenting report.
Senator Rachel
Siewert Senator Scott Ludlam
Senator for
Western Australia Senator for Western Australia
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