Chapter 2
Key issues
2.1
All submitters to the inquiry were supportive of the bill on the basis
it would improve the accessibility of television for people with a hearing
impairment.[1]
The Australian Communications Consumer Action Network's (ACCAN) view was
indicative of these:
ACCAN is of the view that this Bill...provides significant
improvements in access to Australian television services for consumers who are
Deaf, hearing-impaired or who rely on closed-captions.[2]
2.2
Whilst supportive of the changes proposed in the bill, many submitters
raised some concerns and suggested changes to the bill. Concerns included:
- the application of captioning requirements on a strict liability
basis;
- captioning requirements for digital multi-channels; and
- monitoring and reporting, including the complaints process and
the quality of captioning.
2.3
These, and some other issues specifically regarding subscription
television, are discussed in the following sections of this chapter.
Strict liability
2.4
The Australian Broadcasting Corporation (ABC), Special Broadcasting
Service (SBS), Australian Subscription Television and Radio Association (ASTRA)
and Free TV Australia all raised concerns regarding the application of captioning
requirements on a strict liability basis.[3]
2.5
The ABC explained:
Prior to 2007 amendments to the Broadcasting Services Act
1992 (BSA), the captioning requirements therein applied 'as far as
practicable'. However, this wording was removed in 2007 and since this time,
captioning requirements have applied on a strict liability basis.
The requirement for very high captioning quotas (95% and 100%)
raises the prospect of broadcasters being in breach of legislative requirements
for events beyond their control, such as in the event of unavoidable
disruptions to the delivery of captioning services caused by technical
interruptions to the delivery of captions within the chain of supply from
caption service providers. Broadcasters should not be held liable for such
events.[4]
2.6
Similarly, Free TV Australia argued:
Broadcasters should not be penalised for external
difficulties beyond their control when they have otherwise acted reasonably and
honestly in discharging their obligations. These difficulties occasionally
arise, despite ongoing efforts by broadcasters to maintain a very high quality
of service and ensure full compliance with their captioning requirements.[5]
2.7
To address this concern, Free TV Australia proposed that the bill be
amended by the inclusion of a new subsection 130ZUB as follows:
(2) If:
(a) apart from this subsection, a commercial television broadcasting
licensee has breached a provision of this Part; and
(b) in doing so, the commercial television broadcasting licensee acted
honestly and reasonably and, having regard to all the circumstances of the
case, ought fairly to be excused;
then the breach is to be
disregarded in determining whether the licensee has complied with the
provision.[6]
2.8
The ABC and SBS both recommended that the phrase 'as far as practicable'
be re-inserted into the Act.[7]
2.9
ASTRA stated that 'operational circumstances that apply to commercial
television broadcasting licensees equally apply to subscription television
broadcasting and subscription television narrowcasting licensees' and was keen
to ensure that:
...if there is to be provision in the Bill that, for example,
disregard breaches of captioning obligations that are due to the actions of a
third party, this should apply equally to all broadcasting licensees required to
provide captioning services, not just commercial television broadcasting
licensees.[8]
2.10
In response to concerns about the application to broadcasters of strict
liability for meeting captioning quotas, the Department of Broadband,
Communications and the Digital Economy (DBCDE) stated:
It is important to understand that the Bill does not change
how licence conditions operate. A breach of the new licence condition is
subject to the same enforcement regime as a breach of most other licence
conditions listed in the Broadcasting Services Act 1992 (BSA), schedule
2 clauses 7(1) and 10(1).[9]
2.11
The department also advised that the bill already provides that certain
breaches of the captioning obligations by a broadcaster will be disregarded.[10]
DBCDE stated:
...if the breach is attributed to significant difficulties of
a technical or engineering nature and those difficulties could not reasonably
have been foreseen by the broadcaster, then such an inadvertent breach will be
disregarded.[11]
2.12
The DBCDE also noted that:
The delivery of the captioning service is within the
broadcasters' control because in the first instance they decide whether to
produce the captioning service in-house or to outsource that activity. While
outsourcing does carry risks regarding non-performance or under-performance by
the contractor, that is a risk that the broadcaster accepts and manages in
their contractual arrangements.[12]
Committee view
2.13
The committee is sympathetic to the concerns raised by broadcasters
regarding the application of captioning requirements on a strict liability
basis. The committee understands there may be occasions where, despite best
efforts by a broadcaster, an equipment or technical failure means that
captioning requirements are not met.
2.14
The committee welcomes the department's advice that the bill enables
breaches of this nature to be disregarded so that no penalty is imposed on the
broadcaster.
Captioning on digital multi-channels
2.15
As noted in Chapter 1, the 'basic rule' captioning obligations proposed
in the bill would not apply to:
...any multi-channelled commercial television broadcasting
service (other than the core or primary service), with the exception of
television programs that have previously been broadcast on the core or primary
service (subsection 130ZR(4)). This means that television programs that
premiere with captions on the core or primary service and are repeated on a
multi-channelled service must be captioned on the multi-channelled service as
well...any SDTV multi-channelled national television broadcasting service or a
HDTV multi-channelled national television broadcasting service, with the
exception of television programs that have previously been broadcast o the core
or primary service (subsections 130ZR(6) and (7)). This means that television
programs that premiere with captions on a national broadcaster's core or
primary television service and are repeated on one of their other services must
be captioned on the second service as well...[13]
2.16
The Communications Law Centre, SBS and ASTRA discussed the exemption of
free-to-air multi-channels from the captioning requirements. The Communications
Law Centre opined:
Viewership of digital commercial multi-channels is
increasing, as commercial networks introduce unique content. Whilst some
broadcasters have voluntarily introduced captions on some programs, caption
levels are well below those on the primary channels. We submit that captioning
obligations should extend to commercial digital multi-channels in 2014
(after the cessation of analogue television transmissions). There will be no
distinction between the core or primary channel and digital multi-channels in
the all digital broadcasting environment.[14]
2.17
SBS sought clarification of the exemption for national broadcasters. SBS
suggested:
The exemption for multi-channelled services could be stated
better. The exemption (subsections 130ZR(6) and (7) for the national
broadcasters) provides that captioning is not required on multichannelled
services with the exception of programs that have premiered on the core or
primary service with captions and are repeated on a multi-channel
service (as set out in Explanatory Memorandum). The current draft does not
directly state this. It only refers to programs "previously transmitted by
the national broadcaster" on the core or primary service. Adding the words
"with captions" after the words "previously transmitted"
where they appear in subsections 130ZR(6)(e), (f) and (7) would clarify the
exemption.[15]
2.18
ASTRA appeared to be concerned about the apparent discrepancy between the
captioning requirements of free-to-air television broadcasters, by way of exemptions
for multi-channels, in comparison with the captioning requirements for
subscription television broadcasters. ASTRA argued:
We note that, from 1 July 2014, the effect of the legislation
for FTA [free-to-air] broadcasters would be for a total minimum captioning
obligation of no more than 75% of content broadcast on the primary channel.
More importantly, the legislation would also continue indefinitely the current
exception from captioning for FTA multichannels (except where that program was
previously captioned on the primary channel), even though the audience reach on
those FTA multichannels is far greater than most channels on STV [subscription
television]. This means an indefinite total minimum captioning requirement for
FTA commercial broadcasters of just 25% of all content broadcast across the
three channels of each network from 1 July 2014 onwards, compared with an
ultimate long-term target of 100% captioning of all content broadcast on all
STV channels provided by an STV licensee.6 Given such low captioning
expectations for commercial FTA broadcasters in the legislation as drafted,
ASTRA cannot see any public policy justification for commercial FTA
broadcasters to have recourse to apply for exemption orders or target reduction
orders for unjustifiable hardship.[16]
Committee view
2.19
It is the committee's view that the exemptions from the captioning
requirements granted to multi-channels find an appropriate balance between improving
the accessibility of television for people who are hearing impaired and not
placing an onerous burden on broadcasters. It is appropriate that programs
which have been premiered with captions and are subsequently repeated on a
multichannel must also be captioned.
2.20
The committee sees merit in the SBS's suggestion for clarification of
the exemption where a program that was premiered with captions is repeated on a
multichannel. The committee therefore recommends that the government consider
amending the bill to include the words 'with captions' following the words
'previously transmitted' in subsections 130ZR(4)(f), (5)(e), (6)(e) and (f),
and (7).
Recommendation 1
2.21
The committee recommends that the government consider amending the bill
to include the words 'with captions' following the words 'previously
transmitted' in subsections 130ZR(4)(f), (5)(e), (6)(e) and (f), and (7).
Reporting
2.22
A number of submitters raised concerns about the quality monitoring and
reporting requirements outlined in the bill.[17]
2.23
Under the proposed changes, broadcasters would be required to prepare
and provide a report on compliance with the captioning requirements to the Australian
Communications and Media Authority (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.[18]
2.24
Submitters were concerned that the reporting requirements set out in the
bill are too broad and ill defined. According to the ABC:
...as there are few indications as to the nature or scope of
the required reporting, there is the potential for very onerous reporting
requirements to arise.[19]
2.25
Free TV Australia was similarly concerned that 'the requirement is
stated very broadly and there is no visibility around what the scope of the
reporting requirement will be'.[20]
Free TV further submitted that:
Conceivably, this provision could result in a broadcaster
having to keep a running audit of captioned programs. This would require a
broadcaster to review every single captioned program (over 6500 hours per year
for each broadcaster) and make subjective assessments about matters such as
comprehensibility. This would have significant resourcing implications.[21]
2.26
Broadcasters also questioned the effectiveness of requiring reporting on
quality standards.[22]
Both the ABC and SBS were concerned that there are currently no recognised
industry standards on captioning quality.[23]
For example, SBS stated that it:
...considers that it would be a particularly onerous burden
to require broadcasters to report on their compliance with captioning standards
when there are currently no standard industry measures.[24]
2.27
The ABC pointed out that it would be difficult for the ACMA to create
quality standards on captioning:
The issue of captioning quality is extremely complex and
involves a range of limiting factors, including human input, the performance of
technical systems and the performance of user equipment. The setting of caption
quality standards which do not allow consideration of these limiting factors
could potentially result in unreasonable and unachievable standards and could
result in a high rate of unavoidable or inadvertent breaches of the standards.[25]
2.28
DBCDE informed the committee that broadcasters are currently required report
annually, and sometimes quarterly, on captioning to the Australian Human Rights
Commission.[26]
The department also indicated that the ACMA proposes to use this as a starting
point when considering the appropriate levels of reporting on compliance with
captioning requirements.[27]
2.29
The department continued:
The proposed amendments also require the ACMA to develop
quality standards for captioning. In this context, the Department understands
the ACMA may ask broadcasters to report on the number of captioning complaints
received (and their nature) and ask broadcasters to provide information about
the processes and procedures they have in place to ensure they comply with the
quality caption standards.[28]
2.30
The DBCDE also advised the committee that the ACMA proposes to consult
with broadcasters in the development of requirements for record keeping and
reporting on compliance.[29]
Committee view
2.31
The committee believes the annual reporting requirements will bring
transparency and accountability to the captioning requirements. The committee also
notes that there is a precedent for such reporting provisions as broadcasters
are currently required to report to the Australian Human Rights Commission.
Specific concerns regarding subscription television
2.32
The subscription television industry, through its peak body ASTRA, was
supportive of the bill.[30]
However, ASTRA raised concerns relating to pass-through television services and
the use of quotas in the subscription television business model.[31]
2.33
ASTRA was concerned that requiring pass-through television channels such
as BBC World News and CNN to be subject to the captioning quotas would be:
...an expensive process and will significantly add to the
cost of delivering these services into Australia. This is then likely to mean
that it will become unviable to offer those services in Australia, resulting in
a loss of differentiation.[32]
2.34
ASTRA therefore recommended that a general exclusion for these
pass-through channels 'would avoid the costly and time-consuming process of
making an exemption application for each service'.[33]
2.35
Also of concern for the subscription television industry was the situation
where the same channel was provided by different subscription providers and, in
accordance with the proposed changes, some broadcasters would be required to
provide captions whilst others would not.[34]
2.36
To illustrate this point, ASTRA gave the example of Transact (a
subscription television broadcaster providing services in the ACT and regional
Victoria) which has less than 18 general entertainment services.[35]
Under the bill, all of the general entertainment services provided by Transact
would be Category A services and require captioning. However many of the same
channels provided by larger broadcasters such as FOXTEL would be Category B or
Category C general entertainment services and be subject to different
captioning requirements.[36]
2.37
For example, the Australian Christian Channel is currently shown by
Transact and FOXTEL. Under the bill, the channel would become one of Transact's
18 Category A general entertainment services and would require captioning.
FOXTEL, which broadcasts more than 18 general entertainment services, could
nominate the channel to be one of its Category B or Category C services and not
have to provide captioning.
2.38
ASTRA recommended that the bill be amended to ensure that the least
onerous captioning requirements apply, as a minimum standard, to channels that
are broadcast by multiple subscription broadcasters.[37]
2.39
In responding to these claims by the subscription television industry,
DBCDE informed the committee that:
The Bill has been drafted to have broad application and
promote full access to free-to-air and subscription television by Australia's
hearing impaired community...The Bill therefore does not permanently exempt
types or categories of services, such as services sourced from international
pass-through providers.[38]
2.40
The DBCDE stated that the bill does, however, provide all broadcasters
with access to an exemption order or target reduction order for unjustifiable
hardship. The DBCDE further noted that:
...it is technically possible to caption international
program feeds in order to provide captioning on broadcast services. While
provision of such captioning under current circumstances may result in a new
financial burden for a licensee, future developments in technology could allow
provision of captioning at significantly reduced costs.[39]
Committee view
2.41
The committee acknowledges the concerns raised by the subscription
television industry. The committee notes that the intention of the provisions
relating to subscription television are broadly consistent with the obligations
that arise under the Disability Discrimination Act 1992 as well as
Australia's international obligations, including the United Nations Convention
on the Rights of Persons with Disabilities. Therefore the committee does not
believe that the subscription television industry should be granted special
exemption from providing captioning services.
2.42
The committee recommends, subject to the previous recommendation, that
the bill be passed.
Recommendation 2
2.43
The committee recommends, subject to the previous recommendation, that
the bill be passed.
Senator Doug Cameron
Chair
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