Australian Broadcasting Corporation
Submission to the
Human Rights and Equal Opportunity Commission
Inquiry into Access to Closed Captioning of Television Broadcast and Cable Program Services in Australia
Comments on Issues Paper
10 December 1998
ABC Submission to the Human Rights and Equal Opportunity Commission Inquiry into Access to Closed Captioning of Television Broadcast and Cable Program Services in Australia - Comments on Issues Paper
In its earlier submission to the Human Rights and Equal Opportunity Commission (HREOC) Captioning Inquiry, the ABC provided details of its commitment to captioning. Sixteen years ago, the ABC was the first Australian television network to provide closed captioning services for people who are deaf and hearing impaired. Since then, the ABC has worked closely with bodies representing the interests of deaf and hearing impaired communities in an effort to provide appropriate captioning services.
Working with the community, the ABC has been successful in gaining additional Federal Government funding to extend closed captioning services. The allocation of funds to provide facilities in each state and the Northern Territory to caption the main 7.00pm weeknight news bulletin was greatly appreciated, as is funding from the Federal Department of Health and Family Services, which contributes 60 percent of the costs for captioning the ABC Late Edition News. Separate funds were also provided by the Open Learning Network to caption Life Long Learning.
The ABC has also had a contractual agreement with the Australian Caption Centre for fifteen years to provide closed captions for a range of ABC produced and acquired programs. The current agreement permits the ABC to broadcast 7 hours 42 minutes of captioned new general programming each week, providing an annual total of 403 hours of new programs.
In total, the ABC provided a total of 2,549 captioned hours in the period July 1997 to June 1998, based on the Sydney schedule.
Despite significant reductions to the ABC’s funding base in recent years, ABC television has maintained its level of funding commitment to caption programs.
While the ABC has concerns about the financial difficulties which will result from the captioning requirements of the Television Broadcasting Services (Digital Conversion) Act (the "DC Act"), the ABC Board has an ongoing commitment to the provision of captioning. This is expressed in the ABC Code of Practice, which states that "The ABC will endeavour to increase the amount of closed-captioning programming, as resources permit".
This further submission is in response to the Issues Paper, and is in two parts:
Part 1: LEGISLATIVE REQUIREMENTS FOR CAPTIONING
This issue is at the core of the Issues Paper and relates to the role the Commission perceives for itself in relation to captioning. It will be apparent from the arguments presented below that the ABC, on further examination of the legislative position, considers that the Commission’s inquiry is misconceived in focussing on the DDA.
Captioning and discrimination under the DDA
The ABC remains of the view that there is no relevant "requirement or condition" beyond what is necessarily inherent in the ABC’s television service, for the purposes of the DDA. Television broadcasting involves electromagnetic transmission capable of reception as visual images and synchronised sound. The position in Scott v Telstra is readily distinguishable, the argument in that case being about equipment.
The ABC now considers that there is a further compelling argument against the application of the DDA in the legislative regime now applying to captioning, as is discussed below.
Television Broadcasting Services (Digital Conversion) Act and the DDA
Contrary to the view of the Commission in the Issues Paper, the ABC considers that the DC Act has displaced the operation of the DDA in respect of the ABC’s television services, assuming for the purposes of the argument that the DDA did apply to those services prior to the proclamation of the DC Act.
Implied repeal by later statute will take place where inconvenience or incongruity would result from both acts continuing in force. Of course, the DDA remains potentially relevant for captioning matters not dealt with by the captioning provisions of the DC Act, in particular for services other than commercial and national broadcast television programs, and advertisements. That has no bearing on the issue of whether there has been implied repeal where the DC Act provisions are operative.
The ABC’s view is informed by the following considerations:
(i) The DC Act provides for a specific and detailed regulatory regime in respect of all captioning on ABC television
Subclause (1) of Section 38 states that the regulations must determine standards "in relation to the captioning of television programs for the deaf and hearing impaired". Subclause (2) states that standards under sub-clause (1) "must require licensees and national broadcasters to meet specified goals or targets in relation to the extent to which television programs, or specified kinds of television programs, are captioned for the deaf and hearing impaired". Subclause (3) states that subclause (2) does not limit subclause (1).
While subclause (4) indicates that standards under subclause (1) must be directed to ensuring particular objectives in relation to prime time programming, news and current affairs, the expression "television programs" clearly is applicable to all television programs broadcast by the ABC, and the captioning of those programs therefore constitutes the subject matter with which Section 38 is concerned.
(ii) DC Act captioning standards are prescriptive and mandatory
The standards are to be imposed by regulation, and pursuant to subclause (7) of Section 38 the ABC must comply with them.
(iii) DC Act captioning standards potentially will be incompatible with standards assessed pursuant to the DDA
The Commission appears to have recognised this, by implication, in its assessment of the DC Act, in pointing out the emphasis on news, current affairs and prime time programming in the DC Act provisions. If regulated standards do indeed emphasise such categories of programming, then according to the Commission’s reasoning in the Issues Paper a hearing impaired viewer of uncaptioned late night drama could still allege discrimination pursuant to the DDA, even though the obvious reason for the lack of captioning would be the allocation of resources to meet the DC Act standards. It is readily apparent that any finding of discrimination following such a complaint would be quite incompatible with both the express aims of the DC Act and the standards imposed pursuant to this later statute.
(iv) The DC Act deals with the same subject matter
For relevant purposes, the DC Act and the DDA are both concerned with the appropriate level of captioning to be provided on television programs by commercial licensees and national broadcasters. This can be compared with the position in the Mt Isa Mines case, (HREOC v Mt Isa Mines and Ors (1993) 118 ALR 80). In that case, the Federal Court considered there was a clear distinction to be drawn between the occupational health and safety role of the National Occupational Health & Safety Commission ("NOHSC") and HREOC’s concerns in relation to sex discrimination. In the present case, there is at the very least considerable overlap between the captioning concerns specifically addressed by the DC Act, and the Commission’s interest pursuant to the perceived operation of the DDA.
(v) Co-extensive operation of the DDA and the DC Act in relation to captioning could lead to the commission of an offence under the DDA
In the leading judgment in Mt Isa Mines, Lockhart J, at page 107, drew attention to an apparent dilemma between the declaration of appropriate standards and codes in relation to exposure to lead, pursuant to the National Occupational Health & Safety Act 1985, and the requirement not to aid and abet or procure or induce a breach of the Sex Discrimination Act 1984 (the "SD Act"). His Honour decided that the dilemma could be resolved by drawing attention to the community, in particular employers, that the adoption of some standards and codes may involve conflict with the SD Act, unless appropriate exemptions are obtained under the SD Act.
In point (iii) above, we have adverted to the possibility of a conflict between standards imposed under the DC Act and standards that might be sought or imposed pursuant to the DDA. To an extent, the position is analogous to Mt Isa Mines. It might be argued that in order to avoid any potential offence under Section 43 of the DDA, (which prohibits, inter alia, assisting or promoting a relevant act of discrimination), those involved in the DOCITA review and in drafting and promulgating DC Act standards (including the Minister) should ensure that the ABC is warned of possible conflict with the DDA, and should advise the ABC to obtain appropriate exemptions under section 55 of the DDA before implementing the standards.
Two significant differences between the current issue and Mt Isa Mines immediately become apparent when this prospect is considered. Firstly, the DC Act standards are imposed by regulation, whereas the NHSC standards and codes of practice considered in Mt Isa Mines were simply "declared in writing". Moreover, the ABC must comply with the DC Act standards, whereas a national standard or code of practice declared under the NOHSC Act is merely "an instrument of an advisory character" (Section 38 (2) of the NOHSC Act). It follows that in the promulgation of DC Act standards there is no legal capacity for anyone to provide a warning to the effect that observing standards may involve a conflict with the DDA. A warning of this nature can only be made in relation to an instrument of an advisory character, not a mandatory standard. It follows also that the implementation of DC Act standards cannot be made contingent upon the obtaining of DDA exemptions.
(vi) The DC Act captioning provisions displace the DDA from the date of proclamation of the DC Act
The DC Act provides time for the DOCITA review and a lead-in time before captioning standards will apply. It is not correct to say that the issue of implied repeal of the DDA can only be considered from the date the standards under the DC Act apply, namely 1 January 2001.
The ABC submits that the above considerations plainly indicate that the DDA cannot apply to the captioning of ABC television programs. The potential for inconvenience and incongruity is far too great. The Commission’s suggestion that the DC Act only provides for setting minimum standards is unsustainable. If this were to be the case, it would mean that the ABC’s strict observance of standards formulated after a detailed review, imposed by regulations and made mandatory by legislation, would not protect the ABC from a complaint under the DDA. It is inconceivable that Parliament could have intended such a result when Section 38 of the DC Act was enacted.
Part 2: Response to selected "Issues for Discussion"
As stated in Part 1, the ABC does not believe that decisions under the DDA are relevant to the provision of captioning services by broadcasters.
Unlike the DDA, which provides two forms of defence to commercial organisations ("reasonableness" and "unjustifiable hardship") and only the former defence to public organisations, the DC Act includes a "practicability" clause which applies to both public and commercial free-to-air broadcasters.
As has been argued elsewhere in submissions from the ABC, the requirements of the DC Act will involve additional financial commitments for the Corporation. In the case of the ABC, funds for additional captioning may come only from two sources: from within the ABC, requiring a redirection of funds from program production; or from additional government appropriations. Unlike the SBS or commercial broadcasters, the ABC is not able to fund captioning in part through sponsorship support.
The ABC will seek to retain the Government funds currently allocated for News and other ABC captioned services when these agreements expire. The Corporation will also seek additional federal funds to satisfy the requirements of the legislation to come into force in January 2001.
The suggestion that the additional cost is reasonable given the benefits which flow to the broadcasters through the provision of ‘free’ spectrum is not supported by the ABC. Spectrum has been lent to the ABC to enable it to meet its Charter requirements in the new medium of digital television, just as spectrum is now allocated to the ABC to broadcast radio and analogue television. At the end of the transition period, the ABC will be required to return the spectrum it currently uses for analogue television broadcasting. The ABC is not in a position to derive any financial benefit from the spectrum.
It is not a matter of benefits flowing to the ABC through provision of free spectrum: the ABC makes significant contributions to Australian culture and provides benefits to the Australian community in providing its broadcasting services. Further, unless additional funds are made available to finance the captioning requirements of the DC Act, there will be a reduction in the ABC’s ability to meet its Charter obligations.
In the case of free-to-air broadcasters, the ABC believes that the Commission should regard satisfaction of the captioning requirements of the DC Act as sufficient for the Commission’s policy objectives. In the ABC’s view, there is no provision for complaints under the DDA.
The ABC does not believe there is any legal requirement for the DOCITA review to take account of the DDA, as it does not apply. Similar policy considerations are embodied in the DC Act.
The ABC believes that the closed captioning provisions of the DC Act replace any closed captioning requirements for free-to-air broadcasters that may be contained in the DDA. Provision for a lead-in time in the DC Act recognises the time, expense and practical difficulties involved in expanding provision of closed captioning.
In line with the legal position set out in Part 1, the ABC believes that in the case of free-to-air television the Commission’s focus should be on making recommendations to the DOCITA review associated with the DC Act. In the absence of independent research on the deaf and hearing impaired communities’ priorities for closed captioning, the ABC is not in a position to suggest which program types the Commission should prioritise.
In line with the position outlined in Part 1, the ABC suggests that consideration should be given to the "practicability" condition provided for under the DC Act, rather than "unjustifiable hardship" provided for under the DDA. Details of the ABC’s financial hardship and difficulties with captioning particular classes of program are set out in response to "issues for discussion" in sections 6.
In line with the position outlined in Part 1, the ABC does not believe that any additional requirements beyond the DC Act apply or are needed.
In its earlier submission, the ABC proposed that independent research be undertaken to assess the levels of usage for the captioning services currently provided by the national and commercial broadcasters and to ascertain priority areas for the possible extension of services. While some useful information is available from a 1993 ABS study (below), a survey specifically addressing issues of closed captioning would be beneficial.
For example, this information would be valuable in determining the extent to which a need for captioned pre-school programming exists in this country, the extent to which older people who may be sight as well as hearing impaired are able to watch captioned programs and the extent to which live sport, which frequently includes graphics and other visual information about the state of play, would be enhanced by the addition of captions (indeed, whether viewers are able to follow the action and read captions at the same time).
The ABC is concerned that an important issue of public policy, and one with potential significant cost implications for broadcasters and the community is being considered in the absence of adequate information.
Information of this kind would also provide useful guidance to the ABC and other broadcasters as they determine future priorities for captioning.
According to the Australian Bureau of Statistics’ 1993 Disability, Ageing and Carers Survey (ABS Catalogue Nos. 4435.0 and 4433.0), an estimated 999,800 Australians have a hearing impairment (any hearing loss). It is unclear how this figure relates to the figure of 1.7 million Australians with a hearing loss referred to in various submissions to this Inquiry.
Of the 999,800 with a hearing impairment:
While the survey does not deal specifically with ability to hear television, figures on severity of handicaps of those with a hearing impairment are provided (though interpretation of the figures is complicated by the fact that handicaps may relate to other disabilities). Of all persons with a hearing impairment:
The study asked about five kinds of handicap:
While a communication handicap clearly does not equate to requirement for television captioning, the figures may be of some use in providing an indication of the extent of potential use of captioning.
Of the 999,800 with a hearing impairment, 312,400 (31%) had a communication handicap.
Of those 312,400 with a communication handicap:
The report states that of all persons with hearing impairment "97.1 per cent (971,000) reported that they had no difficulty understanding someone they knew, and 94.1 per cent (940,400) had no difficulty in understanding someone they did not know."
The survey results indicate that there is a relationship between age and hearing impairment. In 1993:
To look at the extremes:
The increase in hearing disabilities with age is similar to the rate of increase in all disabilities with age.
The increase in hearing and other disabilities with age raises the question of how many individuals with a hearing disability have other disabilities which may prevent them from making use of television captions. Anecdotal evidence suggests that some older Australians with a hearing disability are unable to read closed captions. The survey found that 89,300 (9%) of those with a hearing impairment also had a sight disability.
The ABC believes that further research is needed to inform policy and setting of priorities in the area of closed captioning.
The ABC believes that the DC Act covers the field. Children’s programming and the Convention on the Rights of the Child can be considered in the context of the DOCITA Review.
The ABC believes that the "practicability" clause in the DC Act over-rides the concepts of unjustifiable hardship and reasonableness.
Over the past two years the ABC has absorbed a $66 million cut to its annual budget. Significant efforts have and are being made to maximise the available funds for production. Attention has been paid to the levels of administrative and management support, to work practices and to the overall mix of programs commissioned to ensure that the maximum available funds are directed to program production. However, the cuts have still had a significant impact on the funds available for the acquisition and production of television programs.
Maintaining a comprehensive, innovative range of programming and achieving Australian content levels consistent with ABC Board targets are priorities for television. This task has been made more challenging in the face of such a substantial budget reduction.
Australian content levels have been sustained by an increase in the ratio of repeat to first-run programming. Since 1992/93 there has been a progressive increase in the ratio of repeat hours to first run hours. In 1992/93 the ratio was 0.42, and this has increased to 0.64 in 1996/97, and further increased to 0.73 for the current financial year.
As was outlined in our earlier submission, unless further funding is made available, the added captioning requirements included within the DC Act will have an impact on the level of program acquisitions and commissions for ABC television in the coming years.
Given the long lead times for some productions, it will be necessary to incorporate the increased captioning costs in the budgets of some programs strands from the 1999/2000 financial year.
The cost of meeting the additional requirements of the legislation has been estimated at $3 million per annum. This will involve the redirection of production funds. Translated into programs on air, it will mean our audiences will lose (say) ten to twelve documentaries, or (say) five hours of Australian drama or (say) thirty episodes of a weekly magazine program. This reduction in program commissioning will lead to staff reductions within the ABC and a loss of work provided by the Corporation to the independent production community.
These are significant reductions, and when considered alongside the impact of the budget cuts imposed by the Federal Government, impose greater burdens on the ABC’s ability to sustain the comprehensive, diverse and innovative program schedule it is required to provide.
The ABC does not believe it is reasonable to impose requirements to further extend the levels of captioned programs beyond those outlined in the DC Act. Any increase would have further impact on the number of programs commissioned or acquired, resulting in a reduction in the comprehensiveness of the service offered to all Australians.
Beyond meeting the requirements of the DCA, it is properly a matter for the ABC Board, in setting future priorities, to determine how it balances its ongoing commitment to closed captioning with other priorities such as the maintenance of Australian content levels and the provision of a comprehensive, innovative range of programming. The ABC’s record is a good one, as a perusal of the Supertext Guide will consistently attest.
As stated above, the ABC believes that the "practicability" clause of the DC Act displaces the concepts of unjustifiable hardship and reasonableness.
The Commission should be aware that should it choose to recommend to the DOCITA Review adoption of a percentage level of revenues as determining practicability, such a measure could not be applied to the ABC. While commercial broadcasters are funded by revenues, the ABC is funded primarily by parliamentary appropriation. If a percentage level of revenues were recommended as an indicator of practicability, an alternative measure would be required for the ABC. However, the point made above, that this is properly a matter for the ABC Board, is equally relevant here.
The ABC believes that it is not possible to answer these questions, given their contingency upon technological and other developments, and differences between the Australian and other contexts. While forward planning benefits from consideration of technological developments, the ABC believes that the captioning regulations should be based upon current realities, rather than future possibilities.
In some cases, scripts could be made available in advance for news programs. However, the ABC envisages two problems concerning use of the ENR method for captioning news programs:
Given the importance of live unscripted interviews, the ENR method would generally not be suitable for current affairs programming.
It has already been noted that the ABC is unable to fund captioning through advertising or sponsorship, unlike commercial broadcasters and the SBS. The ABC’s Editorial Policies and approval processes for external funding of co-productions and pre-purchased programs would apply to purchase of programs which have closed captioning which carries sponsorship information.
The ABC contends that the DDA does not apply. Thus the issue is practicability, not unjustifiable hardship, although the concepts overlap to some extent.
The ABC shares the concerns expressed by FACTS about the particular difficulties associated with captioning live, fast moving variety style programming. For the ABC, programs such as Roy and HG, Good News Week, Good News Weekend and Recovery would pose particular challenges. In each case guests speak quickly and sometimes at the same time. In some cases the meaning is dependent on the tone of voice of the presenter. The nuances and the interplay which are crucial to the success of this style of programming would be lost when captioned.
The ABC believes that these factors should be considered by the DOCITA review in setting "practicable" requirements.
The ABC notes the suggestion that programs such as Play School be captioned to enable hearing impaired parents to share the experience of watching the program with their children.
It would cost approximately $120,000 to caption the current inventory of Play School. The half hour programs are scheduled twice daily, on a rotating basis. The entire inventory would need to be scheduled in order to provide a consistent captioned service. A further $24,000 annually would be required to caption new episodes.
In order for the ABC to make an informed decision about the appropriateness of an investment in captioning Play School, it would be useful to know the number of hearing impaired parents who may seek to take advantage of the opportunity to view this pre-school programming with their children. There is currently no information on possible use of Play School in this way.
The ABC believes that issues of captioning quality are matters for the DOCITA Review, so that, if anything, HREOC should make recommendations to that Review, rather than take any other action.
The ABC is not aware of concerns about the quality of captions on programs it broadcasts and does not foresee this becoming an issue. Similarly, there have been very few occasions on which a captioned program has been broadcast without captions, and on these occasions the difficulty has been with the transmitter, not the broadcaster. Thus, the ABC sees no reason for these matters to become the subject of regulation.
As outlined in our earlier submission, the ABC has sought to encourage the inclusion of captioning costs in program budgets at the time programs are commissioned. The ABC commitment to captioning is outlined in the Commissioning Guide, and included in Commissioning documentation.
In some program strands, the ABC may not always be the majority investor. In the case of documentary and drama, the ABC contribution may be less than half the total production budget. The ABC is of the view that the cost of captioning should be included as an element in the production budget, and not a cost added when the program is complete and delivered to the broadcaster.
To this end the ABC sought the assistance of the Film Finance Corporation to secure the funds for captioning as a component of the production budget. The FFC has responded that it is not in a position at this time to support the inclusion of captioning costs in projects it part-funds.
While the ABC is subject to the DC Act rather than the DDA in respect of captioning, it is arguable that the DDA could apply to producers.
The ABC agrees with the Issues Paper assessment of the disadvantages of separate production of open captioned videotape. The Commission should be aware that, were an alternative ‘Line 21’ style solution adopted, the costs of captioning would be passed on to all consumers. In addition, those wishing to access captioning on videos would have to pay for decoders. The ABC believes that this is another area in which independent research would assist in assessing demand for video captioning.
In the first instance, the ABC believes that the closed captioning requirements in the DC Act replace the possible requirements of the DDA and that the Commission should focus on seeking to have input into the DOCITA review of closed captioning regulations.
In addition, it should be noted that the ABC’s Code of Practice is properly a matter for decision by the ABC Board, which, under the ABC Act, has a duty to maintain the independence and integrity of the Corporation. It should be noted that the ABC’s relatively high rates of captioning have come about as a result of independent decision by the Board, rather than regulation. ABC independence is reflected in the Broadcasting Services Act’s requirement that commercial and community broadcasting licensees and providers of subscription and narrowcasting services, but not the ABC or SBS, prepare their codes of practice in consultation with the ABA. Similarly, commercial and community broadcasting licensees, but not the national broadcasters, must observe program standards for children’s programs and Australian content.
The ABC does not support market-based approaches to closed captioning, which it believes would be inappropriate for a public broadcaster. Nor does it support expansion of the power to make Disability Standards to cover closed captioning.