Chapter 1

Introduction

1.1        On 19 June 2012, the Senate, on the recommendation of the Senate Selection of Bills Committee, referred the Broadcasting Services Amendment (Improved Access to Television Services) Bill 2012 [Provisions] to the Senate Environment and Communications Legislation Committee (the committee) for inquiry and report by 25 June 2012.[1]

1.2        The reasons given for referral of the bill were to examine:

• the commercial and regulatory implications on broadcasters of making the proposed captioning obligations a condition of a broadcasting license;
• the implications for free-to-air commercial networks if the proposed obligations are not met due to factors beyond their control (such as failure by a third party captioning provider to provide services); and
• the implications for the long-term viability of services provided by subscription television such as pass-through channels like BBC World News, CNN and Aljazeera.[2]

1.3        The bill was introduced to the House of Representatives by the Minister for Infrastructure and Transport, the Hon Anthony Albanese, on 30 May 2012 and passed without amendment on 20 June 2012.[3] The bill was introduced to the Senate on 21 June 2012.[4]

1.4        In accordance with usual practice, the committee advertised the inquiry on its website and wrote to relevant organisations inviting submissions. The committee received 12 submissions (see Appendix 1).

1.5        The committee would like to give special thanks to the organisations that made submissions to the inquiry with such short notice.

Purpose of the bill

1.6        The bill seeks to amend the Broadcasting Services Act 1992 to facilitate improved access to free-to-air and subscription television by people with a hearing impairment.

1.7        The bill proposes to introduce new and increase existing legislative requirements for the provision of captioning services by commercial, national and subscription television broadcasters. The bill would also require that emergency warnings broadcast on television must be transmitted in the form of text and speech and captioned wherever reasonably practicable.[5]

1.8        When introducing the bill, the minister noted that:

Access to electronic media is important to all members of our community, including those with a hearing impairment. It is expected that by 2020 hearing loss is likely to affect more than five million Australians.

...

The passing of this bill will improve the accessibility of television, ensuring a more inclusive viewing experience for all Australians.[6]

1.9        The bill seeks to implement the government's response to a number of recommendations made as part of the Department of Broadband, Communications and the Digital Economy's review into media access.

1.10      The bill is also consistent with Australia's international obligations under the United Nations Convention on the Rights of Persons with Disabilities to promote, protect and ensure the rights of people with a disability.[7]

Background

1.11      The Australian Bureau of Statistics estimates that approximately 2.67 million Australians—one in every eight people—have some form of hearing loss.[8] Over the next decade, an ageing population is expected to lead to an increase in the number of Australians who experience hearing impairments.[9] Hearing loss is expected to affect more than five million Australians by 2020.[10]

1.12      For many Australians, visual and hearing impairments make it hard to enjoy a digital world that most people take for granted.

Captioning[11]

1.13      Captioning is the presentation of audio content as text on screen. Captions include descriptions of speech, sounds, laughter and music.

1.14      Captions are usually displayed on the bottom of a television screen (or in some cases on a separate screen, such as in cinema complexes) to show which character is speaking or where the sound is coming from.

1.15      There are two types of captioning: open and closed. Open captioning is overlayed onto the original recording of a television program or movie and appears on screens automatically. Closed captioning is hidden from the normal television picture and requires a teletext decoder to be viewed.

1.16      Teletext is the generic name for the inclusion of text information (such as captions) within a broadcast television signal. The text data is encoded onto a part of the television signal not normally shown by regular television sets called the Vertical Blanking Interval (VBI). Special decoders or television sets with integrated teletext decoders are able to receive and display the data on the screen.

1.17      Television guides list captioned programs with a 'CC' for closed captions or an 'OC' for open captions. Most broadcasters include an in-vision logo at the start of each captioned program.

Image: Logos used to represent open and closed captioning

Closed captions	Open captions

1.18      Captions are produced in two different ways depending on whether they are for programs that are pre-recorded (offline captions) or for a program that is broadcast live (online captions).

1.19      Offline captions are created when sufficient production time enables captioning from a pre-recorded program. A copy of the taped program is transcribed by captioners who are also required to check for spelling and timing issues. Offline captions result in precise transcripts being placed under relevant speakers at the bottom of the screen. After the pre-recorded program is captioned, the caption file is encoded into the VBI of the tape and is ready for broadcast.

1.20      Online captions are produced by highly trained stenographers who use shorthand machines to type captions as the words are spoken. Phonetic spelling and minor contractions may be used where required. Online captions are typically presented as a scrolling two-line block of text in a fixed location of the screen. It is not possible for the online captions to be moved to avoid graphics or images.

1.21      Captioning of programs on Australian television to assist those with a hearing impairment began in 1982 when the Australian Caption Centre, a not-for-profit institution, began providing services to the ABC and the Nine and Ten networks. The Seven Network also introduced an in-house captioning service around the same time.[12]

Regulatory framework

1.22      The Broadcasting Services Act 1992 provides for the captioning of free-to-air television programs. In addition, the Disability Discrimination Act 1992 seeks to promote equal opportunity and access for people with a disability across all electronic media.[13]

1.23      Schedule 4, clause 38 of the Broadcasting Services Act deals with captioning. The current captioning requirements oblige each commercial television broadcasting licensee and each national broadcaster to provide a captioning service for television programs transmitted during prime viewing hours (currently defined as 6.00 pm to 10.30 pm) and for news or current affairs programs transmitted outside prime viewing hours.

1.24      It is a condition of a commercial broadcasting license for broadcasters to comply with these captioning requirements. The Australian Communications and Media Authority (AMCA) has responsibility for enforcing compliance with licence conditions and is empowered to deal with breaches of conditions. The ACMA is however limited to considering whether or not a licensee is providing captioning services and cannot investigate concerns about the quality of captioning.[14]

Industry codes

1.25      In addition to the provisions in the Broadcasting Services Act, the broadcasting industry is to develop codes of practice and register these with the ACMA.[15] The 2010 Commercial Television Industry Code of Practice developed by Free TV Australia on behalf of commercial television licensees is the current industry code.[16]

1.26      Under the code the commercial television industry is required to:

• ensure that closed captioning is clearly indicated in program guides, press advertising, program promotions and at the start of the program;
• exercise due care in broadcasting closed captioning and ensure that adequate procedures are in place to monitor the quality of captioning;
• provide adequate advice to hearing-impaired viewers if scheduled closed captioning is not transmitted; and
• provide the information contained in emergency or safety announcements visually wherever practicable.[17]

1.27      The Australian Subscription Television and Radio Association (ASTRA) has similarly developed industry codes for the subscription television industry. The Subscription Broadcast Television Code (2007), Subscription Narrowcast Television Code (2007) and the Open Narrowcast Television Code (2009) contain guidelines for providing captions.[18]

1.28      The subscription television industry codes ensure that where closed captioning is made available it will be clearly identified in program guides and when extending the range of programs captioned, the broadcaster will consult with organisations representing the hearing impaired.[19]

Complaints process

1.29      If a viewer believes that a broadcaster has failed to comply with an industry code they may write to the relevant broadcaster within 30 working days of the broadcast at issue. If a commercial broadcaster does not answer the complaint within 30 working days, or 60 working days for a subscription broadcaster, the complainant may refer the issue to the ACMA for consideration.

1.30      In assessing the complaint, the ACMA must determine whether or not a breach of the relevant code has occurred. If a breach has occurred, the ACMA may direct the broadcaster to comply with the code. Failure to comply with such a direction may result in a financial penalty.[20]

Disability Discrimination Act

1.31      The Disability Discrimination Act makes disability discrimination unlawful and aims to promote equal opportunity and access for people with a disability. Under the Act, individuals can lodge complaints of discrimination and harassment with the Australian Human Rights Commission (AHRC).

1.32      The AHRC is responsible for receiving complaints of discrimination under the Act and attempting to conciliate agreements between the parties. The AHRC may also, on application, grant temporary exemptions from complaints in relation to specific issues for up to five years.[21] The effect of an exemption is that actions or circumstances covered by the exemption are not unlawful under the Disability Discrimination Act while the exemption remains in force.

1.33      In 2009 the AHRC negotiated an agreement with the free-to-air television industry to reduce discrimination in accessing media by setting captioning targets for television broadcasts.[22] In exchange for their commitments, the agreement provided broadcasters with a temporary exemption from complaints relating to captioning.[23] The agreement covered the period 2009 to 2011.

1.34      Under the agreement, free-to-air broadcasters were required to increase captioning targets by five per cent each year on programs broadcast between the hours of 6.00 am and midnight the same day.[24]  The captioning targets for each year are set out in the table below.

Table: Proposed captioning targets for free-to-air television broadcasters under the Australian Human Rights Council agreement 2009–2011[25]

Year	2009	2010	2011	2012
Captioning target	75%	80%	85%	90%

1.35      An extension of this five per cent per annum increase would have required the free to air networks to provide 100 per cent captioning by 2014. This accords with the captioning targets outlined in the bill.

1.36      In May 2012 the AHRC negotiated a five-year agreement with the Australian Subscription Television and Radio Association (ASTRA) to ensure that captioning levels on subscription television increase over the next three years.[26] The new targets across a 24-hour period are to:

• increase captioning for some subscription movie channels from 55 per cent to 75 per cent;
• increase captioning for some subscription general entertainment channels from 35 per cent to 55 per cent; and
• increase captioning for some subscription sports channels from 5 per cent to 15 per cent.[27]

Media access review

1.37      Between 2008 and 2010 the Department of Broadband, Communications and the Digital Economy conducted a review into media access for the hearing and vision impaired.[28]

1.38      The department commenced the review by releasing a discussion paper that examined, amongst other issues, the availability of captioning and audio description for free-to-air television, subscription television and film. The discussion paper received 168 submissions from representatives of the television and film industries and disability organisations.[29]

1.39      The subsequent discussion report outlined possible approaches the government could adopt to improve audio description and caption levels on free-to-air and subscription television and other electronic media. Consultation on the report included 54 submissions from stakeholder groups.[30]

1.40      The final report of the review was released in 2010 and contained 22 recommendations to improve audio description and captioning levels in Australia.[31] In commenting on the report, the Minister for Broadband, Communications and the Digital Economy, Senator the Hon Stephen Conroy, outlined the government's intention to:

...move to immediately implement the Report's recommendations, and call on industry and disability group stakeholders to similarly take action to implement recommendations that affect them.[32]

1.41      The government committed to introduce legislation to:

• provide regulatory certainty by consolidating captioning requirements for both free-to-air and subscription television broadcasters into the Broadcasting Services Act;
• raise captioning targets to provide a better outcome for people with a disability; and
• introduce requirements for caption quality.[33]

1.42      The government also committed to conducting a further review of captioning in 2013 to consider the effectiveness of the changes and the impact of transformations in the communications industry, such as the National Broadband Network and the switchover to digital television.[34]

Outline of the bill

1.43      The bill seeks to insert a new Part 9D into the Broadcasting Services Act which would set out the captioning requirements for broadcasters in relation to particular television programs and broadcasting services.

Captioning obligations

1.44      The proposed captioning provisions would replace the concept of prime viewing hours with the concept of designated viewing hours. The new designated viewing hours would be implemented in two phases:

• from the commencement of the provisions until 1 July 2014, designated viewing hours would be the same as the current prime viewing hours—from 6.00 pm to 10.30 pm; and
• from 1 July 2014 onwards designated viewing hours would be from 6.00 am to midnight on the same day.

1.45      The proposed captioning requirements would still require commercial television broadcasting licensees and national broadcasters to caption 100 per cent of television programs during the designated viewing hours and to caption news or current affairs programs broadcast outside these hours.

1.46      Certain programs aired during designated viewing hours would not be required to be captioned, such as television programs that are wholly in a language other than English or programs that consist wholly of music.

Multi-channel services

1.47      If a commercial television broadcasting licensee or national broadcaster provides a multi-channel service, captioning would not be required on programs shown on the multi-channels unless the program has been previously broadcast on the primary channel.

Annual captioning targets for 2012–14

1.48      In order for commercial television and national broadcasters to gradually achieve the objective of providing a captioning service for 100 per cent of television programs broadcast between 6.00 am and midnight each day, annual captioning targets have been included in the bill.

1.49      Captioning targets would increase incrementally for commercial and national broadcasters by five per cent each financial year, starting at 90 per cent in the financial year beginning 1 July 2012 and increasing to 95 per cent the next financial year.

1.50      In calculating the percentage of programs captioned during the targeted hours, advertising, sponsorship and community service announcements would be excluded.

1.51      If a broadcaster believed they cannot meet their captioning targets they would be able to apply in writing to the ACMA for an exemption or target reduction. The ACMA would be able to allow for an exemption or target reduction if it is satisfied that a refusal would impose an unjustifiable hardship on the applicant. In considering the application the ACMA would be required to have regard to issues such as:

• the nature of the detriment likely to be suffered by the applicant;
• the financial circumstances of the applicant;
• the estimated amount of money required to be paid by the applicant if an exemption or reduction were refused;
• the extent to which captioning services are provided by the applicant; and
• the impact of making an exemption or target reduction on deaf or hearing impaired viewers.

1.52      The ACMA would only be able to make an exemption following a public consultation period. If the ACMA were to make a target reduction for a broadcaster, this reduction would apply for a financial year. A broadcaster would have to ensure that it meets the new caption targets.

1.53      Any exemptions or target reductions approved by the ACMA would have to be published on its website.

Subscription television broadcasters

1.54      The annual captioning targets for subscription television broadcasters are divided into nine categories based on genres and types of programming. The categories and captioning targets for subscription broadcasters are included in the table below.

Table: Annual captioning targets for subscription television broadcasters

Category	Percentage for financial year commencing 1 July 2012	Percentage for financial year commencing 1 July 2013	Percentage for financial year commencing 1 July 2014
Category A subscription television movie service	60%	70%	75%
Category B subscription television movie service	40%	50%	55%
Category C subscription television movie service	30%	40%	45%
Category A subscription television general entertainment service	40%	50%	55%
Category B subscription television general entertainment service	30%	40%	45%
Category C subscription television general entertainment service	15%	20%	25%
Subscription television news service	10%	12.5%	15%
Subscription television sports service	10%	12.5%	15%
Subscription television music service	5%	5%	5%

1.55      The classification of Category A, B and C movie and general entertainment services would be applied according to the number of movie and entertainment services provided by the subscription broadcaster in a financial year.

1.56      If a subscription broadcaster provided between one and six television movie services, those services would be Category A services. If more than six movie services were provided, the subscription broadcaster would have to nominate with the ACMA for six of those services to be Category A services, one to be a Category B service and the remaining services would be classified as Category C services.

1.57      Similarly if a subscription broadcaster provided between one and 18 general entertainment services in a financial year, those services would be Category A services. If more than 18 general entertainment services were provided, the subscription broadcaster would have to nominate 18 services to be Category A services, 16 services as Category B services and the remaining services would be classified as Category C services.

1.58      The bill would also place a cap on the number of programs that are required to be captioned. If more than 11 subscription movie services, 43 general entertainment services, seven sport services or six music services were shown by a broadcaster in a financial year prior to 1 July 2022, the services shown above this limit would not be required to be captioned. The number of services that are exempt from captioning would decrease over time until the exemption ceases on 1 July 2022.

1.59      The subscription television broadcaster would have to make an application with the ACMA on which services over the cap would not be captioned. The ACMA would be required to hold a public consultation on the proposals.

1.60      From 1 July 2015 the annual captioning targets would increase incrementally by multiplying the previous year's annual captioning target by 1.05 until each annual captioning target reaches 100 per cent. If a percentage worked out using this formula were not a multiple of five per cent, the percentage would be rounded up to the nearest multiple of five per cent.

1.61      For example, if the annual captioning target for a subscription television music service for the financial year beginning 1 July 2015 is five per cent, the formula would be: 5% (annual captioning target) x 1.05 = 5.25%.

1.62      As the increased annual target would not be a multiple of five per cent, the annual captioning target for the financial year beginning 1 July 2016 would be rounded up to 10 per cent.

1.63      Subscription television broadcasters would also be required to caption program repeats.

Certain breaches to be disregarded

1.64      Certain breaches of the proposed broadcasting changes would be disregarded if:

• the breach were attributable to significant difficulties of a technical or engineering nature; and
• those difficulties could not reasonably have been foreseen by the licensee or broadcaster.

1.65      An example of a breach that may be disregarded, as proposed in the Explanatory Memorandum, is if there were technical outages due to local weather conditions that resulted in a television program being broadcast without captions.[35]

Captioning standards

1.66      The bill would allow the ACMA to determine, by legislative instrument, standards that relate to the quality of captioning services. 'Quality' is to include the readability, comprehensibility and accuracy of the captioning.

1.67      The ACMA would have to take all reasonable steps to ensure that the quality standards are in force at all times one year after the commencement of the proposed legislation.

Emergency warnings

1.68      The bill would require broadcasters, when requested by an emergency services agency, to transmit any emergency warning in the form of text, speech and, if it were reasonably practicable to do so, provide a captioning service for the emergency warning.

Reporting

1.69      Broadcasters would be required to prepare and provide a report on compliance with the captioning requirements to the ACMA within 90 days of the end of each financial year. The report would have to include information on the broadcaster's compliance with the annual captioning targets and the ACMA-imposed quality standards as well as the provision of emergency service warnings.

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