Part Two - Regulatory Framework
The Broadcasting Services Act 1992 provides for the captioning of free-to-air television programs. In addition under the Disability Discrimination Act 1992, disability discrimination is unlawful and the Act aims to promote equal opportunity and access for people with disabilities. The relevant aspects of each are considered below.
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).
A number of types of program are exempt from this requirement, including the following:
- 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 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 broadcasters core/simulcast channel). Currently, commercial broadcasters may provide one HDTV multi-channel. From 1 January 2009 they can also deliver one SDTV multi-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 and
- 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. Furthermore, 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 HREOC. This agreement is discussed further below.
The Deafness Forum of Australia, in consultation with a number of organisations, has developed draft Captioning Quality Guidelines which set out quality standards for captions. Industry representatives, including representatives of the cinema, free-to-air television and subscription television industry, are understood to support the guidelines in principle. The Captioning Quality Guidelines have not been registered with ACMA.
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 licensees 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 are generally a matter for individual broadcasters, although ACMA may consider whether the quality of a captioning service, when viewed across an entire program, would be a comprehensible service to a deaf or hearing impaired audience.
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 first be submitted to the relevant broadcaster within 30 working days of the broadcast at issue. If the complaint is not answered within 30 working days of being received or to the complainants satisfaction, it may then be referred to ACMA. ACMA will assess the complaint and determine whether or not there has been a breach of the relevant code. If there has been a breach of the code, ACMA may direct the relevant broadcaster to comply with the code. Failure to comply with such a direction may result in a financial penalty.
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 a disability. 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:
- to eliminate, as far as possible, discrimination against persons on the ground of disability in the areas of:
- 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; and
- 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
- 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 temporary exemptions for up to five years from complaints in relation to issues specified in an exemption. Temporary exemptions are generally only granted for periods during which actions are being taken to eliminate discrimination. The effect of an exemption is that actions or circumstances covered by the exemption are not unlawful under the DDA while the exemption remains in force.
HREOC exemptioncaptioning of free-to-air television broadcasters
On 12 May 2003, HREOC granted the ABC, SBS, Channels Seven, Nine and Ten a five year conditional exemption from complaint under the DDA. Under the temporary exemption the broadcasters were required to provide 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 programmingby end 2007, more than 1400 hours of pre-school, childrens and schools programs will be captioned each year
- Review of further possibilities to commence in 2006 and
- Support for actions seeking the Australian 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 free-to-air broadcasters are all on track to comply with the conditions of this exemption.
The temporary exemption was granted by HREOC after receiving an application by the ABC, SBS, and Channels Seven, Nine and Ten which was negotiated with and publicly supported by the Deafness Council of Western Australia, the Australian Association of the Deaf (now Deaf Australia) and the Deafness Forum of Australia. It also followed a public inquiry by HREOC on the issue.
When the temporary exemption expires in May 2008, the free-to-air television broadcasters may again be subject to complaints under the DDA. The broadcasters would also be able to apply to HREOC for a further exemption.
The handling of such complaints and applications for exemption under the DDA would be a matter for HREOC.
HREOC exemptioncaptioning of subscription television services
In June 2004, HREOC granted ASTRA members 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.
- Present to HREOC a proposal for a further plan for captioning to commence by the time of the expiry of the exemption.
It is understood that ASTRA members report they are on track to meet these obligations.
When the exemption for ASTRA members expires in mid-2009, ASTRA members may again be subject to complaints under the DDA.
HREOC agreementcaptioned films in cinemas
In 2001, HREOC negotiated an agreement with some members of the cinema industry and representatives of people with a hearing impairment for the captioning of films in cinemas.
Under the agreement, Village, Hoyts and Greater Union each identified a CBD location at which open captioned films are to be shown. Where an open captioned film is available it will screen in each location for a two week season at 10am Wednesday, 6.30pm Friday and 3pm Sunday. Slight variations to this schedule are allowed to accommodate local programming and scheduling. After the two week period, open captioned films will be made available to any other exhibitor, on request. In 2005, the agreement was extended from the eight capital cities to include Newcastle and Maroochydore.
The agreement was negotiated as part of a HREOC inquiry into a complaint from a deaf man about access to captioned films in cinemas. As part of the inquiry, HREOC convened a forum involving representatives from the then Australian Association of the Deaf, the Deafness Forum, the Deafness Council of WA, the National Working Party on Captioning, major film distributors and exhibitors, the Australian Caption Centre (now Media Access Australia) and the complainant. The industry proposal was agreed by all forum members.
This agreement is a voluntary agreement among the parties and does not offer protection against individual complaints in relation to cinema access.
The agreement also included the setting up of a Cinema Captioning Committee convened by HREOC with responsibility for overseeing the setting up of the program and looking at future ways of promoting and possibly expanding the program.
Captioning on free-to-air televisionconsultation
Television captioning was raised in the discussion paper on media reforms, Meeting the Digital Challenge: Reforming Australias media in the digital age, released in March 2006 by the former Department of Communications, Information Technology and the Arts. In its submission to that paper, Media Access Australia (MAA) supported captioning on all multi-channels. In its submission, the Deafness Forum of Australia recommended that all television programs be captioned except where the availability of qualified captioners prevented this, that all television sets sold should have mandatory caption capability and that all matters of national importance, including emergency broadcasts, should be captioned.
The bill to enact the Broadcasting Legislation Amendment (Digital Television) Act 2006, which amended the captioning rules, was considered by the Senate Environment, Communications, Information Technology and the Arts Committee in October 2006.
MAAs submission was the only submission to raise captioning as an issue. Among other things, MAAs submission argued that captioning multi-channels in the first 12 months would not be expensive as costs had fallen significantly due to competition and greater market awareness, and that there are no technical impediments to providing captions from the start of the multi-channels.
The Senate Committees report is available at 
www.aph.gov.au/senate/committee/ecita_ctte/cross_media/report/index.htm.
