The Australian Broadcasting Authority (the ABA) is pleased to take the opportunity, provided by the Human Rights and Equal Opportunity Commission (HREOC), to make a submission to its inquiry into closed captioning.

The ABA’s submission is in the form of an information paper, which describes the following:

• the ABA’s role in broadcasting regulation;
• the parameters of its powers under the Broadcasting Services Act 1992 (the Act); and
• its role in complaints handling.

In the information set out below, the ABA’s current role, where captioning of television programs is included in codes of practice, is contrasted with its likely role, emanating from the requirements for captioning in the Television Broadcasting Services (Digital Conversion) Act 1998 (the Digital Act).

The Act sets out, at section 123(2), those matters which the Parliament considers may be included in an industry code of practice. Therefore, in overseeing the development of codes of practice, the ABA must consider to what extent inclusion of certain matters are required by the Act. Currently, the only direct reference to captioning is under Part 9, s123(2)(i), where it states that:

Nevertheless, the ABA has taken a proactive interest in the inclusion of captioning on television. It attends the meetings of the National Working Party on Captioning (NWPC). Representatives also attend from Federation of Australian Commercial Television Services (FACTS) and the Australian Broadcasting Corporation (ABC). The ABA has found this to be a valuable way of becoming informed on these issues, as well as participating in the debate. In this forum, the ABA contributes its expertise and support to help achieve the objectives of the NWPC within the framework of the current regulatory regime.

Once an industry group has developed its code, the ABA has certain obligations it must undertake before it can register a code. These are set out under s123(4) of the Act, which requires that:

The exception to this is that the Act does not provide a role for the ABA in the development of codes for national services of the Australian Broadcasting Corporation (ABC), nor Special Broadcasting Service (SBS). Both are covered by their own legislation. Unlike the sectors of the broadcasting industry which are licensed under the Act, the ABC and SBS have only to notify the ABA of their code.

Under s148, if a person has made a complaint direct to a licensee about a matter that is covered by a code of practice and if that person has not received a response within 60 days, or if they are not satisfied with the response they have received, then that person is entitled to refer their complaint to the ABA.

S149 of the Act requires the ABA to investigate complaints referred to it in these ways, unless it is satisfied that the complaint is frivolous, vexatious or not made in good faith.

S147 of the Act allows complaints about licence conditions or regulations, such as standards, to be made directly to the ABA. Providing the complaint is relevant to the Act, regulations or licence conditions and is not frivolous, vexatious or not made in good faith, the ABA must investigate the matter.

However, as the ABA has previously not had the power to impose standards or conditions on national services, s147 complaints have only related to broadcasting services as defined under the Act.

As noted above, the ABA’s jurisdiction in terms of complaints about national services is currently restricted to ss150 to 153.

The Act provides, at s125, that the ABA may determine program standards where codes of practice fail, or where no code of practice has been developed. Before imposing such a standard, the ABA is to be satisfied that that there is ‘convincing evidence’ that a code is not providing appropriate community safeguards, or that no code has been developed to address a particular need. Compliance with a program standard is a condition of licence.

The ABA also may make compliance with a code of practice a condition of licence for an individual broadcaster, if it is satisfied that this is required.

In drafting the current Act, the Parliament clearly intended that the issue of closed captioning was best addressed by way of an industry code of practice. However, the Act provides avenues of redress where there is proven failure of a code of practice, both at the individual licensee level and the industry-wide level. To date, the ABA has not been required to address whether such a failure has occurred, in respect of the provision of closed-captioned programming. Indeed, as can be seen from the draft revised code for commercial television, provided below, the section for the captioning of programs has been expanded.

In administering the requirements of codes of practice, such as those relating to captioning, the ABA must also have regard to the Parliament’s intention for regulatory policy under the Act.
At s4(2) the Act states:

Given the policy set out in the Act, the intention for self-regulation by broadcasters and voluntary nature of the various codes’ requirements for captioning, the ABA’s role has, of necessity, been one of encouragement for broadcasters’ increased use of captioning.

Nevertheless, if the ABA were to discern resistance to the increased use of captioning, as required in a broadcasting industry code, it would be obliged to consider whether stronger measures should be implemented, including the imposition of standards.

Prior to the Digital Act, the ABA did not have jurisdiction to determine standards for ABC or SBS services. Should the ABA uphold a complaint against a national broadcaster, action currently available to the ABA is set out under ss152 and 153:

If a national broadcaster fails to take the recommended action within 30 days of the ABA making a recommendation, s153 allows the following action:

2. Closed captioning requirements which currently exist in codes of practice for television services. (Copies of all codes are attached)

While the SBS Code does not include captioning undertakings, it should be noted that many of SBS’s language programs are subtitled. The ABA also understands that SBS World News at 6.30 pm is close captioned.

As noted in the submission to the inquiry by FACTS, the Commercial Television Industry Code of Practice, is currently being reviewed.

As well as the revised code for commercial television, the new code of practice for subscription broadcasting television (usually referred to as pay TV) is still in draft form and is yet to be registered by the ABA. The captioning content of these draft codes is set out below. However, it should be noted that, as they are not registered, their content is not certain and may change in discussion with the ABA, prior to registration.

The Commercial Television Code of Practice (the Code) was developed by FACTS and has been in place since 1993. Amongst other things, the code provides, at clause 1.11.3, (see above at 2.1) that licensees will ‘endeavour to increase the amount of closed-captioned programming, in consultation with organisations representing hearing-impaired and deaf viewers’.

The industry’s revised code (currently with the ABA for assessment and registration) restates this commitment, noting that regard will be had to ‘closed-captioned programming provided by other broadcasters’.

The draft revised FACTS Code went out for public comment in December 1996 and the NWPC and the Australian Caption Centre (ACC) made submissions to FACTS.

In its submission to FACTS, the NWPC noted that over the three years of the original code the amount of closed captioned programming on commercial television had almost doubled, with clear increases occurring during prime viewing times. While advocating that licensees aim to ensure that all free-to-air television is closed-captioned, the NWPC did not recommend the imposition of a specific increase in the amount of closed-captioned programming. The Federal budget allocation of funds to the ABC and the SBS to caption early evening news bulletins was acknowledged, with the NWPC undertaking to work with the commercial television industry in relation to their news services.

The ACC also made a submission to FACTS in which it stated that it did not consider that a quota system was necessary to continue the increase of captioning on commercial networks. Instead, suggestions focused on the advertising of closed-captioned programs, and the complaints process. The ACC also suggested that FACTS consider adopting an Advisory Note in relation to closed-captioning.

The ABA anticipates that it will finalise its assessment of the revised code shortly.

The Digital Act:

The content of the Digital Act, as it relates to captioning, is set out in DoCITA’s paper. It includes the provision for the ABA to set standards relating to HDTV and captioning for the deaf and hearing impaired. The resulting amendments, which add Schedule 4 to the Act, set in place mechanisms for the determination of standards. They do not, however, establish the actual content of the standards. Issues such as these, that are to be determined by regulation, have been placed in a review. The operation of these provisions is suspended until a day to be fixed by proclamation, with a requirement that a proclamation not be made until:

1. the Minister has tabled a report of a statutory review into the scope of the amendments to the Broadcasting Services Act, 1992 in relation to the suspended matters; and
2. a resolution has been passed by each House of Parliament proclaiming that the suspension be lifted.

The statutory review, which the Minister has to table in Parliament is to be completed in the next 18 months.

The setting of standards will therefore be subject to the completion of a review into the scope of s.38 of the Digital Act and will determine whether any amendments should be made to Part 4 of Schedule 4 of the Act.

It should be noted that the Part 4 review is not intended to review decisions to require HDTV, or closed captioning. Rather, it will address factors such as:

• whether legislative changes are needed to implement the Government’s policy decision; and
• whether there are any additional factors which should be covered by legislation.

DoCITA has proposed that this part of the Part 4 review be initiated by an issues paper calling for submissions from stakeholders, including industry consultation. It is expected that the timeframe and issues for the review will be announced shortly.

The ABA is represented on the two committees that have a role in consulting on these matters. These are the Government’s Technical Planning Committee (TPG) and the Digital Television Consultative Group (DTCG).

A consequence of the transfer of captioning requirements from codes of practice to legislation, is that broadcasters will lose the self regulatory role they currently have, in terms of codes implementation and complaints handling. Once determined, the standards for captioning will become licence conditions under the Act. The role of determination, implementation and complaint handling will therefore revert to the ABA.

Unlike the ABA’s above mentioned role in code complaint handling, if a complainant’s concern is about a licence condition, or an offence against the Act or regulations, including standards, they may direct their complaint to the ABA in the first instance, rather than the broadcaster in question. The Act requires the ABA to investigate such complaints.

Prior to the Digital Act’s amendments, the ABA has not had this power in relation to ABC or SBS. Until the addition of Schedule 4 requirements for captioning standards, the only role the Act provided for the ABA, in terms of national services, was the requirement to investigate unresolved complaints about a national broadcasters’ compliance with their codes of practice (ss150 to 153). All other obligations for national services (including the requirement to formulate codes of practice for notification to the ABA) have previously resided in the specific ABC and SBS Acts.

The fact that the Digital Act’s requirements for captioning standards will apply to the national services ABC and SBS, as well as to commercial services, will require the establishment of new powers for the ABA, different from those currently set out in ss150 to 153. Further legislative amendments will be needed, to allow the ABA to administer captioning requirements for national broadcasters when they are no longer code matters, but regulation.

It is assumed that the need for such legislative changes will be addressed during the period of review.

There is a separate Bill, the draft private Senator’s Bill (the Bill) still to be tabled by the Australian Democrats (Senator Natasha Stott Despoja). Its ambit is wider than the Digital Act. It seeks stronger requirements for captioning, where it proposes the following for commercial television licensees and also for the national broadcasters:

• mandatory captioning of television programs broadcast between 6pm and 10:30pm by July 2000;
• mandatory captioning of all news and current affairs programs (irrespective of the time of broadcast) by July 2000; and
• mandatory captioning of all television programs by July 2010.

If this Bill becomes legislation, it would have similar implications for the ABA as those described above under the Digital Act.