AUSTRALIAN BROADCASTING AUTHORITY
SUBMISSION
TO THE
HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION (HREOC)
INQUIRY
UNDER THE DISABILITY DISCRIMINATION ACT
INTO CLOSED CAPTIONING
INTRODUCTION
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:
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 ABA does not intend to repeat information already provided by the Department of Communications, the Information Economy and the Arts (DoCITA), previously the Department of Communication and the Arts (DoCA)) in its comprehensive background paper. Rather, it is the ABA’s intention to complement DoCITA’s paper.
A. CURRENT CAPTIONING REQUIREMENTS
1. The ABA’s Role
1.1 - In Developing Codes of Practice
As noted in DoCITA’s paper, the Act established the ABA as a Commonwealth statutory authority, to regulate broadcasting services in accordance with the requirements specified in the 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:
Codes of practice developed for a section of the broadcasting industry may relate to: ...
(i) captioning of programs for the hearing impaired;...(emphasis added)
As s123(2)(i) uses the word ‘may’, not ‘must’ for the inclusion of captioning in codes, the ABA has not had any mandate to insist on their inclusion in commercial television codes.
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.1.2 - In Code Registration
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:
If:
(a) a group representing a particular section of the broadcasting industry develops a code of practice to be observed in the conduct of the broadcasting operations of that section of the industry; and
(b) the ABA is satisfied that:
(i) the code of practice provides appropriate community safeguards for the matters covered by the code; and
(ii) the code is endorsed by a majority of the providers of broadcasting services in that section of the industry; and
(iii) members of the public have been given an adequate opportunity to comment on the code;
the ABA must include that code in the Register of codes of practice.
1.2.1 – Exception for National Services
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.
1.3 In the Complaints Process
1.3.1 Where a Complaint Relates to a Code Of Practice
To date, once a code has been registered, or in the case of ABC and SBS, notified to the ABA, the complaints process becomes a self-regulatory one for all broadcasters operating under that code. Each code requires complaints be directed, in the first instance, to the licensee of the particular television or radio service to which the complaint relates. Complaints about captioning have been subject to this process.
It is only when a licensee is unable to satisfy such complainants, or does not respond to them within 60 days, that the ABA is obliged to investigate complaints about code matters. The complaints process under codes of practice for ABA licensed services is set out under ss148 to 149 of the Act.
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.
The ABA’s jurisdiction in relation to complaints handling for ABC and SBS services is set out under ss150 to 153 of the Act (see below). In particular, ss150 and 151 require the ABA to investigate unresolved complaints forwarded to it by any person who has not received a satisfactory response from a national broadcaster about a code matter.
Division 2--Complaints relating to national broadcasting services
150.
If:(a) a person has made a complaint to the Australian Broadcasting Corporation or the Special Broadcasting Service Corporation on the ground that that national broadcasting service has acted contrary to a code of practice developed by that national broadcasting service and notified to the ABA; and
(b) either:
( i) the person has not received a response within 60 days after making the complaint; or
(ii) the person has received a response within that period but considers that response to be inadequate;
the person may make a complaint to the ABA about the matter.
Investigation of complaints relating to the ABC or SBS by the ABA
151.
(1) Subject to subsection (2), the ABA must investigate the complaint.
(2) The ABA need not investigate the complaint if it is satisfied that:
(a) the complaint is frivolous or vexations or was not made in good faith; or
(b) the complaint is not relevant to a code of practice developed by that national broadcasting service.
1.3.2 – Where a Complaint Relates to a Standard or Licence Condition
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.
1.4 Where Self Regulation Fails – ABA Alternatives
1.4.1 – Services Licensed under the Act
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:
…The Parliament also intends that broadcasting services in Australia be regulated in a manner that, in the opinion of the ABA:
a) enables public interest considerations to be addressed in a way that does not impose unnecessary financial and administrative burdens on providers of broadcasting services;…
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.
1.4.2 – National Services
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:
152.
Action by ABA where complaint justified(1) If, having investigated a complaint, the ABA is satisfied that:
(a) the complaint was justified; and
(b) the ABA should take action under this section to encourage the Australian Broadcasting Corporation or the Special Broadcasting Service Corporation to comply with the relevant code of practice;
the ABA may, by notice in writing given to the Australian Broadcasting Corporation or the Special Broadcasting Service Corporation, recommend that it take action to comply with the relevant code of practice and take such other action in relation to the complaint as is specified in the notice.
(2) That other action may include broadcasting or otherwise publishing an apology or retraction.
(3) The ABA must notify the complainant of the results of such an investigation.
If a national broadcaster fails to take the recommended action within 30 days of the ABA making a recommendation, s153 allows the following action:
153.
ABA may report to Minister on results of recommendation(1) If:
(a) the ABA has made a recommendation to the Australian Broadcasting Corporation or the Special Broadcasting Service Corporation under section 152; and
(b) the Australian Broadcasting Corporation or the Special Broadcasting Service Corporation, as the case may be, does not, within 30 days after the recommendation was given, take action that the ABA considers appropriate;
the ABA may give the Minister a written report on the matter.
(2) The Minister must cause a copy of the report to be laid before each House of Parliament within 7 sitting days of that House after the day on which he or she received the report.
2. Closed captioning requirements which currently exist in codes of practice for television services. (Copies of all codes are attached)
The various codes sections which cover requirements for closed captioning for television are set out below. Complaints about these matters may be made to the ABA in the way described above.
2.1 Commercial Television Industry Code of Practice - FACTS
Code Section 1, Closed Captioning for Hearing Impaired and Deaf People
Clause 1.11 Licensees will:
1.11.1 ensure that closed-captioned programs are clearly indicated in program information provided to the press and in program promotions;
1.11.2 exercise due care in broadcasting closed captioning, and provide open captioned advice if technical problems prevent scheduled closed captioning;
1.11.3 endeavour to increase the amount of closed-captioned programming, in consultation with organisations representing hearing-impaired and deaf viewers.
2.2 Television Open Narrowcasting Codes of Practice and
Television Subscription Narrowcasting Codes of Practice - ASTRA
Code 1.8
Where closed captioning programming is made available it will be clearly identified with program schedule information provided to the press.
When a narrowcaster or service provider considers introducing closed captioned programming, or extending the range of programs captioned, it will endeavour to consult with organisations representing deaf and hearing impaired viewers and organisations specialising in providing closed captioning.
2.3 Australian Broadcasting Corporation Code of Practice - ABC
Code 3.5
Closed Captioning for People who are Hearing Impaired or Deaf
Closed caption programs will be clearly marked when program information is provided to the press or when captioned programs are promoted. Where possible, open captioned advice will be provided if technical problems prevent scheduled closed captioning.
Addresses to the nation and events of national significance will be transmitted with closed captioning. The ABC will endeavour to increase the amount of closed-captioning programming as resources permit.
2.4 Special Broadcasting Service Codes of Practice - SBS
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.
3. Closed captioning requirements in draft Codes (not yet registered)
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.
3.1 Commercial Television Industry Draft Code of Practice - FACTS
As noted in FACTS’ submission to HREOC
Draft Code 1.13 Closed Captioning for Hearing Impaired and Deaf People
Clause 1.13 Licensees should:
1.13.1 ensure that closed captioning is clearly indicated in station program guides, in press advertising, in program promotions and at the start of programs;
1.13.2 exercise due care in broadcasting closed captioning, and ensure that there are adequate procedures for monitoring closed captioning transmissions;
1.13.3 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;
1.13.4 when broadcasting emergency, disaster or safety announcements, provide the essential information visually, whenever practicable. This should include relevant contact numbers for further information;
1.13.5 endeavour to increase the amount of closed-captioned programming, in consultation with organisations representing hearing-impaired and deaf viewers and having regard to closed-captioned programming provided by other broadcasters;
1.13.5.1 Subclause 1.13.5 does not apply to a station which is subject to a legislative requirement with respect to the provision of closed-captioning programming.
3.2 Subscription Television Broadcasting (Pay TV) Codes of Practice - ASTRA
Code 2.4 - Closed Captioning
Where closed captioning programming is made available it will be clearly identified with program schedule information provided to the press.
When a Licensee considers introducing closed-captioned programming, or extending the range of programs captioned, it will consult with organisations representing deaf and hearing- impaired viewers and organisations specialising in providing closed-captioning.
3.3 The Commercial Television Industry Code of Practice Review - Discussion
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.
B. CAPTIONING PROVISIONS PROPOSED IN LEGISLATION
1. The Digital Conversion Act
The Digital Act:
…amends certain provisions of the Broadcasting Services Act 1992 and the Radiocommunications Act 1992. The Bill provides for closed captioning standards to be set in regulations, and the Government’s intention is that appropriate prime time services, and non-prime time news and current affairs should be captioned.
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:
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:
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).
2. Implications for the ABA
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.
3. The Australian Democrat’s Bill
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:
3.1 Implications for the ABA
If this Bill becomes legislation, it would have similar implications for the ABA as those described above under the Digital Act.