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• Captioning standards review

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The Broadcasting Services Act 1992 provides for the captioning of free-to-air television programs. In addition, the Disability Discrimination Act 1992 makes disability discrimination unlawful and aims to promote equal opportunity and access for people with disabilities. The Human Rights and Equal Opportunity Commission may grant temporary exemptions from complaints made under the Disability Discrimination Act.

FREE-TO-AIR TELEVISION

Broadcasting Services Act 1992

Clause 38 of Schedule 4 to the Broadcasting Services Act 1992 (BSA) requires each commercial television broadcasting licensee and each national broadcaster to provide a captioning service for television programs transmitted during prime viewing hours (6pm-10.30pm) and television news or current affairs programs transmitted outside prime viewing hours.

When clause 38 of Schedule 4 to the BSA applies, it is a condition of a commercial television broadcasting licence to comply with this requirement (subclause 7(1)(o) of Schedule 2 to the BSA).

The following types of programming are exempt from this requirement:

• television programs that are not in English or mainly not in English;
  
• non-vocal music-only programs;
  
• incidental or background music;
  
• live sport coverage with unscheduled extended coverage that displaces a news program;
  
• programs broadcast outside the broadcasting services bands by commercial television broadcasters licensed to operate under subsection 40(1) of the BSA (for the first 12 months of service); and
  
• programs broadcast on a standard definition television (SDTV) or high definition television (HDTV) multi-channel during the simulcast period (unless previously broadcast with captions on the broadcaster's core/simulcast channel).

The BSA also provides that there will be a review of content and captioning requirements in relation to multi-channels at least one year prior to digital switchover (clause 60C, Part 8 of Schedule 4).

Industry codes

Section 123 of the BSA provides for sections of the broadcasting industry to develop codes of practice in relation to aspects of broadcasting services. Paragraph 123(2)(i) provides that these codes of practice may relate to captioning of programs for the hearing impaired.

The Australian Communications and Media Authority (ACMA) must register a code developed by a section of the broadcasting industry if it is satisfied that the code provides appropriate community safeguards for the matters covered by the code, the code is endorsed by a majority of the providers of broadcasting services in that section of the industry and members of the public have been given an adequate opportunity to comment on the code.

The Commercial Television Industry Code of Practice, developed by Free TV Australia on behalf of commercial television broadcasting licensees and registered with ACMA, includes provisions that deal with closed captioning. Under this code, commercial television licensees will:

• ensure that closed-captioning is clearly indicated in station program guides, in press advertising, in program promotions and at the start of the program;
  
• exercise due care in broadcasting closed captioning, and ensure that there are adequate procedures for monitoring closed captioning transmissions;
  
• provide adequate advice to hearing-impaired viewers if scheduled closed captioning cannot be transmitted. If technical problems prevent this advice being provided in closed captioned form, it must be open captioned as soon as reasonably practicable;
  
• when broadcasting emergency, disaster or safety announcements, provide the essential information visually, whenever practicable. This should include relevant contact numbers for further information.

The Australian Subscription Television and Radio Association (ASTRA) has developed the Subscription Broadcast Television Code, Subscription Narrowcast Television Code and the Open Narrowcast Television Code on behalf of the respective sections of the industry. These codes have been registered with ACMA.

Each of the ASTRA codes include provisions in relation to closed captioning. Under each of these codes, where closed captioning programming is made available it will be clearly identified with program schedule information provided to the press and in program guides. Further, when closed captioned programming is introduced, or the range of programs captioned is extended, the relevant broadcaster will consult with organisations representing the hearing impaired and organisations specialising in providing closed-captioning. The ASTRA Subscription Broadcast Television Code also notes that ASTRA has an agreed roll-out plan with the Human Rights and Equal Opportunity Commission (HREOC). This agreement is discussed further below.

ACMA complaint handling role

ACMA is able to handle complaints about alleged non-compliance with the conditions of broadcasting licences. As noted above, under clause 38 of Schedule 4 to the BSA, it is a condition of a commercial television broadcasting licence to provide captions for television programs transmitted between 6pm-10.30pm and television news or current affairs programs transmitted at other times.

In considering a licensee's compliance with the captioning provisions of the BSA, ACMA can have regard only to the matters set out in clause 38. ACMA is therefore limited to considering whether or not a licensee is providing a captioning service. Concerns about the quality of captioning cannot be considered by ACMA and are to be directed to individual broadcasters.

ACMA may also consider complaints about a matter covered by a registered industry code. As noted above, captioning is a matter that is dealt with in the Commercial Television Industry Code of Practice and the ASTRA codes of practice mentioned above.

Under these industry codes, written complaints must be submitted to the relevant broadcaster in the first instance. If the complaint is not answered within 60 days or not answered to the complainant's satisfaction, it may then be referred to ACMA for investigation. ACMA will assess the complaint and determine whether or not there has been a breach of the relevant code.

Disability Discrimination Act 1992

The Disability Discrimination Act 1992 (DDA) makes disability discrimination unlawful and aims to promote equal opportunity and access for people with disabilities. Under the DDA, individuals can lodge complaints of discrimination and harassment with HREOC.

Section 3 of the DDA states that the objects of the Act are:

1. to eliminate, as far as possible, discrimination against persons on the ground of disability in the areas of:

1. • work, accommodation, education, access to premises, clubs and sport; and
   • the provision of goods, facilities, services and land; and
   • existing laws; and
   • the administration of Commonwealth laws and programs.
2. to ensure, as far as practicable, that persons with disabilities have the same rights to equality before the law as the rest of the community; and
3. to promote recognition and acceptance within the community of the principle that persons with disabilities have the same fundamental rights as the rest of the community.

Section 24 of the DDA makes discrimination unlawful in relation to access to goods and services, except where providing non-discriminatory access would involve unjustifiable hardship. Section 29 makes discrimination unlawful in the administration of Commonwealth laws and programs.

HREOC is responsible for receiving complaints of discrimination and attempting to conciliate agreements between parties to a complaint. If conciliation is not possible, HREOC will terminate the complaint and advise the complainant of their right to take their complaint to the Federal Court for determination. It is only this court that can determine if discrimination has occurred and whether a defence of unjustifiable hardship exists.

Under section 55 of the DDA, HREOC may, on application, grant exemptions for up to five years from complaints in relation to issues specified in an exemption. The effect of such an exemption is that an act done in accordance with the provisions of an exemption will not be deemed unlawful for the purposes of the DDA.

HREOC temporary exemption – free-to-air television

On 12 May 2003, HREOC granted the ABC, SBS, Seven, Nine and Ten a five year conditional exemption from complaints made under the DDA. Under the temporary exemption, broadcasters must use their ‘best endeavours' for:

• Captioning of all programs which commence in prime-time until their conclusion (other than sports programs).
  
• Staged increase in captioning on programming between 6am and midnight on the broadcasters' primary channels to reach minimum goals – 55 per cent by end 2005 and 70 per cent by end 2007.
  
• Priority to be given to captioning of pre-school and children's programming - by end 2007, over 1400 hours of pre-school, children's and schools' programs will be captioned each year.
  
• Review of further possibilities to commence in 2006; and
  
• Support for actions seeking the Government to require caption decoders in all new television equipment and improved availability of VHS and DVD players which allow recording of close captioned television programs.

The exemption expires in May 2008.

SUBSCRIPTION TELEVISION

HREOC temporary exemption – subscription television

In June 2004, HREOC granted ASTRA a five year exemption from complaint under the DDA, subject to various conditions. The key conditions of the temporary exemption require each of the subscription broadcasters covered by the ASTRA application to:

• implement captioning rollout for a minimum of twenty channels.
  
• enable a further twenty channels within 24 months of the captioning launch and apply the captioning rollout to those channels enabled.
  
• ensure availability of information on program captioning.
  
• report annually to HREOC on compliance, including on measures taken to ensure quality and accuracy of captioning.
  
• commence a review of the implementation of the ASTRA proposal within three years of granting of the exemption.
  
• resent to HREOC a proposal for a further plan for captioning to commence by the time of expiry of the exemption.

The exemption expires in June 2009.

• Document ID: 8445 |
• Last modified: 10 March 2008, 7:24pm