Bills Digest no. 168 2011–12

PDF version [480 KB]

WARNING: This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments. This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

Dr Rhonda Jolly, Social Policy Section
Leah Ferris, Law and Bills Digest Section
25 June 2012

Contents

Purpose
Background
Issues, provisions and comments
Cost versus equity
Audio description
Future captioning levels
Regulatory certainty
Concluding comments
Appendix A: extract from Deafness Forum draft captioning guidelines
Appendix B: extract from proposed subsection 130ZV(2) of the Bill

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Date introduced:

Date introduced:

 

Date introduced:  30 May 2012
House:  House of Representatives
Portfolio:  Broadband, Communications and the Digital Economy
Commencement:  Sections 1 to 3, the day the Bill receives Royal Assent. Schedule 1 the day after the Bill receives Royal Assent.

Links: The links to the Bill, its Explanatory Memorandum and second reading speech can be found on the Bill's home page or through http://www.aph.gov.au/Parliamentary_Business/Bills_Legislation. When Bills have been passed and have received Royal Assent, they become Acts. These can be found at the ComLaw website at http://www.comlaw.gov.au/

Purpose

The purpose of the Broadcasting Services Amendment (Improved Access to Television Services) Bill 2012 (the Bill) is to amend the Broadcasting Services Act 1992 (the BSA) to improve access to free-to-air and subscription television for the hearing impaired.   

The Bill also proposes to improve televised emergency warnings for people with a hearing or vision impairment.

Background

A 2004 report noted that while, at that time, a significant number of Australians suffered vision impairment, it was projected that by 2024, as one result of an increasingly ageing population, vision impairment would affect over six per cent of the population.[1] Similarly, while in 2006 one in six Australians was affected by hearing loss, this figure was projected to rise to one in four by 2050.[2] Given that Australia has committed to improving the lives of people with disabilities through the passage of legislation, commitment to international agreements and the development of a national disability strategy, it would be inexcusable if these Australians were prevented from enjoying access to leisure activities such as television and film. As the National People with Disabilities and Carer Council has noted:  

[People with disabilities] want their human rights recognised and realised. They want the things that everyone else in the community takes for granted. They want somewhere to live, a job, better health care, a good education, a chance to enjoy the company of friends and family, to go to the footy and to go to the movies.[3]

Captioning is one means by which the experience of film, television and the like can be enhanced for this group of Australians.

Definition of captioning

Captioning involves the display of a transcription of the audio component of audio-visual program content on a television or other screen. Captioning can either be verbatim or in an edited form and can include descriptions of sounds other than speech. There are two types of captioning recognised—closed and open. In relation to television captioning, closed captions are encoded into the television signal as teletext data, which can be decoded and viewed with a teletext decoder or teletext capable television. Open captions are overlayed on the original print recording of a program and do not require a teletext decoder.[4]

Introduction of captioning

Captioning of programs on Australian television to assist those with a hearing impairment began in 1982 when the Australian Caption Centre (ACC), a not-for-profit institution, began providing services to the Australian Broadcasting Corporation (ABC) and the Nine and Ten networks. The Seven Network also introduced an in-house captioning service around the same time.[5]

In its submissions to government on the issue of captioning, the ABC observes that the ABC Charter, which is part of the Act which established the Corporation, tasks it to broadcast programs that contribute to a sense of national identity, inform and entertain and reflect the cultural diversity of the Australian community.[6] So it is more than likely that this was a motivation for the ABC to undertake captioning. As there was no specific legislation, or it appears, mention in Television Standards overseen by the Australian Broadcasting Authority, the motivation for commercial broadcasters to begin captioning services is less obvious.

Television Standards had been in place since 1956, but there appears to be no mention of captioning before new codes of practice were introduced as a result of requirements under section 123 of the BSA.[7] This section of the BSA currently requires that the industry develop codes of practice that ‘may’ relate to the captioning of programs for the hearing impaired. Consequently, the Commercial Television Industry Code of Practice and the various Australian Subscription Television and Radio Association (ASTRA) codes of practice include provisions that deal with closed captioning.[8]

Legislative incentives to increase captioning levels 

Legislative requirements to caption programs were introduced to the BSA in 1998 as part of the transition to digital broadcasting.[9] Changes to the BSA required that from 1 January 2001 stations broadcasting in digital format were to caption all programs televised in prime time (between 6 pm and 10.30 pm) and to caption all news and current affairs programs. The BSA allowed some exceptions to this requirement, including exemptions for programs that were not in English and for live sports coverage.

In addition, in 1992 the Disability Discrimination Act 1992 (DDA) made discrimination on the grounds of disability unlawful. Since 2001 agreements reached between broadcasters, various rights organisations and the Human Rights and Equal Opportunity Commission (now known as the Australian Human Rights Commission—AHRC) have resulted in staged increases in captioning hours on free-to-air television and subscription channels.[10] These agreements have been based on AHRC providing exemptions to requirements in the DDA on the conditions that the broadcasters make incremental improvements to the percentage of programs captioned.[11]

Moreover, Australia ratified the United Nations Convention on the Rights of Persons with Disabilities (CRPD) in 2008. The CRPD is a human rights instrument:

… with an explicit, social development dimension. It adopts a broad categorization of persons with disabilities and reaffirms that all persons with all types of disabilities must enjoy all human rights and fundamental freedoms. It clarifies and qualifies how all categories of rights apply to persons with disabilities and identifies areas where adaptations have to be made for persons with disabilities to effectively exercise their rights and areas where their rights have been violated, and where protection of rights must be reinforced.[12]

All free-to-air and subscription broadcasters maintain that they have met and exceeded captioning requirements imposed under legislation and those agreed to with the AHRC. In 2008, for example the ABC argued that its captioning output was over 80 per cent on ABC 1 and 55 per cent on ABC 2.[13] The free-to-air advocacy body, Free TV, claimed that it spent millions of dollars annually ensuring that targets were met and its subscription television counterpart, ASTRA, maintained that since the introduction of captioning on subscription television in 2004, the average annual growth rate of captioning hours on subscription television had been 31 per cent.[14]

In 2008 the AHRC acknowledged broadcasters’ commitment to captioning. The AHRC noted that from an average of less than 45 percent of broadcast hours providing captions on primary channels between the hours of 6 am and midnight in 2003, the average broadcast hours in which captions were provided was expected to be 80 per cent by the end of 2010, and 85 per cent by the end of 2011. Indeed, some broadcasters were achieving more than 85 per cent captioning already.[15]

The Explanatory Memorandum to this Bill declares that it is compatible with Australia’s human rights obligations under the CRPD.

Government review of captioning     

A review of a number of issues relating to captioning was begun by the Howard Government prior to its electoral defeat in 2007. The current Government maintained its predecessor’s commitment to consideration of issues relating to captioning. On 30 April 2008 it released a discussion paper which sought comment on key issues relating to access to electronic media by people with a hearing or vision impairment.[16] Submissions were received from the public, television, film and internet industry bodies and organisations representing people with hearing or vision impairment.[17] These raised a number of issues including:

• the adequacy of captioning and audio description services
• future targets for captioning and audio description
• associated costs
• regulatory frameworks
  • application of captioning and audio description to new and emerging communications and media content delivery platforms.[18]

In November 2009 the Minister for Broadband Communications and the Digital Economy, Senator Stephen Conroy, released a further document, Access to electronic media for the hearing and vision impaired: approaches for consideration.[19] This review document outlined possible approaches the Government was considering to increase captioning levels on free-to-air and subscription television, film in cinemas, DVDs and audio visual content on the Internet. This document also raised the prospect of introducing a new concept—audio description.[20] Comments on the Government’s proposals were again sought and received, and in December 2010, a final report containing 22 recommendations was published, as was the Government’s response to the review findings.[21] 

Essentially, this response amounted to a commitment that the Government would introduce legislation to deliver what it argued would amount to meaningful and achievable improvements to levels of media access for people with hearing and vision impairment.  In addition, the Government committed to commissioning the ABC to conduct a technical trial of audio description.[22]  In February 2012 the Minister for Broadband, Communications and the Digital Economy announced that a thirteen week technical trial of audio description would occur sometime in 2012 on ABC1.[23]

Recommendations of the review relevant to this Bill are included in the box below:

Recommendation 1—That the Government includes new captioning targets in the Broadcasting Services Act 1992, mandating 100 per cent captioning between 6.00 am and midnight on the primary television service provided by national broadcasters and commercial television broadcasters by 2014. Recommendation 2—That the Government prescribes the sections of the Broadcasting Services Act 1992 that mandate captioning targets under subsection 47(2) of the Disability Discrimination Act 1992. The legislative amendments would result in anyone acting in direct compliance with the prescribed part of the Broadcasting Services Act 1992 no longer being subject to complaint under the Disability Discrimination Act 1992. Recommendation 3—That the Government strengthens the Australian Communications and Media Authority’s powers to investigate complaints about television captioning matters and to require broadcasters to report annually on captioning levels. Recommendation 4—That the Government includes captioning targets in the Broadcasting Services Act 1992 for subscription broadcasters, provided appropriate targets can be agreed in the first quarter of 2011. Recommendation 5—That the Government commissions a technical trial of audio description on the Australian Broadcasting Corporation in the second half of 2011, subject to funding approval. Recommendation 6—That the Government gives further consideration to the introduction of progressive audio description requirements after the completion of the audio description trial and the receipt of technical advice from the Australian Communications and Media Authority on the results of the trial. Recommendation 7—The Broadcasting Services Act 1992 be amended to include a reference to captions (for subscription and free-to-air television) of an adequate quality’. Recommendation 8—That the Australian Communications and Media Authority hosts captioning quality workshops, via a captioning committee, to develop criteria that the ACMA can use when assessing the quality of captions. Recommendation 11—That the Government mandates the captioning or subtitling of all pre-produced emergency, disaster or safety announcements broadcast on television and introduces a voiceover requirement for essential information such as contact numbers. Recommendation 12—That the Government acknowledges the community need for captioning and audio support for such warnings, and works with industry to develop such a capability so that warnings can be broadcast with these features in a timely and effective manner. Noting that for emergency warning requests that are not pre-produced, the priority remains for the warning to be broadcast without delay. Recommendation 21—That the Government continues to encourage industry to partner with the disability representative groups to improve online accessibility through the Australian Communications Consumer Action Network. Recommendation 22—That the Government commences another review of captioning and audio description on electronic media in Australia by 2014. The review will evaluate the impact of changes introduced in response to all the recommendations outlined in this report and the impact of technological change in the media environment, following the completion of analog television switch off at the end of 2013. The review will consider what further actions are appropriate based on the media environment at that time.

Source: DBCDE[24]

Issues, provisions and comments

Cost versus equity  

While industry submissions to the media access process proclaimed their support for equity principles, they were unanimous in expressing concern about the significant cost of captioning.

Free TV took the opportunity in its submissions to the review of media access to restate a long-held view. For Free TV, captioning would impose yet another statutory burden on free-to-air broadcasters already subject to a range of obligations for which they did not receive government funding:

... captioning is just one of a wide range of public service outcomes that broadcasters are required to comply with and fund without government subsidy.

Broadcasters must also meet a range of statutory obligations including providing adequate and comprehensive coverage, meeting minimum quotas of Australian content including sub-quotas applying to adult drama, children’s programming and documentaries, and meeting local content requirements that apply to regional broadcasters. Broadcasters are also subject to other requirements concerning the content of programming delivered to children, restrictions on the types of programs that can be shown at certain times of the day, and limits on amounts and types of advertising and many others.[25]

While the subscription television sector similarly supports less statutory intervention, it is equally concerned with what it sees as its inferior position in comparison to free-to-air television in Australia. The subscription television advocacy body, ASTRA, therefore maintained that costs associated with providing closed captioning were higher for its members than for free-to-air broadcasters

...due to the volume of channels provided and the time period over which captioning targets are measured...To caption an hour of original or live programming costs the same amount, regardless of the broadcast environment and the number of viewers.[26]

Cost was not only an issue for broadcasters, other media stakeholders were equally concerned; for example the Independent Cinema Association complained that compulsory captioning would constitute ‘unreasonable hardship’ to some operators.[27]   

While captioning costs were an issue for industry, at the same time, there appeared to be acceptance that captioning of all programs would be an inevitable outcome of the Government’s deliberations. Consequently, Free TV urged the Government to increase captioning obligations ‘in a measured and practical way’.[28] The ABC argued that any commitment to full captioning of programs ‘must be balanced against available and likely resources and the need to deliver other services to the community’.[29]

Disability groups rejected the industry’s complaints about the cost burden of captioning. Some specifically disapproved of incremental captioning targets in any instance—for television, cinema, DVDs or the Internet. Others stressed Australia’s commitments under the CRPD, or argued that the lack of services such as captioning entrenched social exclusion. The New South Wales Disability Discrimination Legal Centre in fact saw a critical link between facilitating media access for people with vision and hearing impairments and the Government’s social inclusion agenda.[30]

The Deafness Forum believed the industry’s complaints about cost were unjustified as money spent on captioning was insignificant in the context of industry total annual expenditure.[31] According to the Disability Discrimination Legal Service it was disingenuous for the broadcasting industry to claim financial hardship with regards to captioning services when it is clear it was spending substantial amounts of money on improving access for people without disabilities.[32]

The Australian Federation of Disability Organisations (AFDO) proclaimed that the issue was essentially about human rights and providing accessibility and that

... the long-held and often repeated argument that accessibility is too costly or onerous should be treated the same way we would respond to a company saying that it should not pay taxes, offer fair wages to staff or meet safety regulations.[33]

Provisions

Item 2 of the Bill inserts Part 9D into the BSA, which sets out the provisions relating to the captioning of television programs for the hearing impaired.  

Proposed Division 1 of new Part 9D of the BSA sets out the general provisions in regards to captioning. Proposed section 130ZJ inserts a simplified outline of Part 9D into the BSA, while proposed section 130ZK sets out the definitions which are relevant to captioning.

Of particular importance is the definition of ‘designated viewing hours’.[34] For programs transmitted before 1 July 2014, designated viewing hours are defined as the hours between 6pm and 10:30pm. However, for programs transmitted on or after 1 July 2014, designated viewing hours are the hours between 6am and midnight.[35]

Proposed Division 1 of new Part 9D of the BSA also sets out a number of situations where captioning is not required, including foreign language programs,[36] programs that consist wholly of music[37] and when a captioning service is only required to be provided for part of a program.[38]

Proposed Division 2 of new Part 9D of the BSA sets out the caption obligations of commercial television broadcasting licensees (commercial licensees) and national broadcasters, while proposed Division 3 deals with the captioning obligations imposed on subscription television licensees (subscription licensees).[39] 

Proposed subsection 130ZR(1) requires commercial licensees and national broadcasters to caption 100 per cent of television programs broadcast during designated viewing hours, as well as news or current affairs programs broadcast outside designated viewing hours. This obligation does not apply to subscription licensees.[40]

Proposed section 130ZR also sets out some exceptions to this rule. Proposed subsections 130ZR(2) and (3) of the BSA provide that captioning is not required on a television program covered by paragraphs 6(8)(d) or 19(8)(d) of Schedule 4 to the BSA.[41] This refers to a situation where a ‘designated event’ (a sporting event or other event determined by the ACMA) which is broadcast live, extends beyond its scheduled finishing time for reasons outside the broadcaster’s or their program supplier’s control. If this occurs, the licensee or broadcaster ‘may multichannel the live broadcast and a regularly scheduled news program’.[42]

Captioning is also not required on:

• any multi-channelled commercial television broadcasting service (other than the core or primary service)[43]
• a commercial television broadcasting service (other than the primary service) that is licensed under section 38C of the BSA[44]
• any SDTV multi-channelled national television broadcasting service or a HDTV multi-channelled national television broadcasting service[45] and
• a commercial television broadcasting service that is licensed under section 40 of the BSA during the first year of operation or such longer period notified in writing by the ACMA.[46]

However, under proposed section 130ZS, where a licensee or broadcaster airs a program with captions on its main television service, and rebroadcasts the program on one of its multi-channelled services, the reshown program must also include captions.[47]

Proposed Division 2 of new Part 9D of the BSA also imposes additional captioning requirements on commercial licensees and national broadcasters. Proposed sections 130ZT and 130ZU require a licensee or broadcaster, respectively, to meet a captioning target in regards to programs broadcast on the licensee or broadcaster’s core television service during targeted viewing hours. Targeted viewing hours are prescribed as being between 6am and midnight each day, unless otherwise prescribed.[48] The captioning target is set at 90 per cent in the financial year beginning on the 1 July 2012, with the target to increase 5 per cent each year until the goal of 100 per cent is achieved.[49] While programs broadcast during the designated viewing hours are obviously taken into account when measuring compliance, broadcast time committed to advertising or sponsorship material, community service announcements and emergency warnings is not included.[50]

Proposed section 130ZV, within Division 3 of the Bill, provides for captioning obligations for subscription licensees. Under this section, subscription licensees are required to meet annual captioning targets, which will increase over time, in regards to particular categories of subscription services.[51] There will be nine categories of subscription services, divided according to the dominant genre or type of programming and it will be the responsibility of the licensee to allocate which category each of its services fall under.[52] There will also be a minimum number of services within each of the categories which are required to be captioned.[53] In the event the number of services provided by the licensee exceeds the number of services required to be captioned in a particular category, the licensee can apply to the ACMA for an exemption for the additional services.[54]

The nine categories of subscription services are:

• Category A subscription television movie service, where subscription television movie service is defined in proposed section 130ZK, and the category determined in accordance with proposed section 130ZVA
• Category B subscription television movie service, where subscription television movie service is defined in proposed section 130ZK, and the category determined in accordance with proposed section 130ZVA
• Category C subscription television movie service, where subscription television movie service is defined in proposed section 130ZK, and the category determined in accordance with proposed section 130ZVA
• Category A subscription television general entertainment service, where subscription television general entertainment service is defined in proposed section 130ZK, and the category determined in accordance with proposed section 130ZW
• Category B subscription television general entertainment service, where subscription television general entertainment service is defined in proposed section 130ZK, and the category determined in accordance with proposed section 130ZW
• Category C subscription television general entertainment service, where subscription television general entertainment service is defined in proposed section 130ZK, and the category determined in accordance with proposed section 130ZW
• Subscription television news service (defined in proposed section 130ZK)
• Subscription television sports service (defined in proposed section 130ZK) and
• Subscription television music service (defined in proposed section 130ZK).[55]

In allocating services, the subscription licensee must refer to proposed section 130ZVA for subscription television movies services and proposed section 130ZW for general entertainment services. The number of services offered by the subscription licensee will determine which category of television service applies.[56]

In determining its percentage of programs captioned within each category, the subscription licensee is to use the following formula:

 

The percentage worked out using the above formula must not be less than the annual captioning target for each category of subscription service.[57] The annual captioning targets that must be met for each category of subscription services are set out in the table at Appendix B.[58] Provision is made for each financial year up until the financial year beginning on 1 July 2014, after which the annual captioning targets will be the lesser of either 100 per cent, or 1.05 times the annual captioning target for the subscription television service for the previous financial year.[59] Time shifting services and high definition services, which stream programs that have already been shown on one channel onto another channel, are excluded in the calculation of the annual targets.[60] This is to ensure that repeat or simulcast programs do not count towards the minimum number of services that need to be captioned and that those with hearing impairments will therefore be able to accessed a wider variety of services.[61]

Comment

This Bill seeks to balance both the cost and rights issues associated with captioning. Designated viewing hours for captioning will be extended from 1 July 2014 to provide greater access to television programs for people with hearing impairment. There is a substantial increase in the time allocated as designated viewing hours, from 4.5 hours per day to 18 hours per day, and this could be considered an excellent result for people with hearing impairment. But at the same time, exemptions to captioning requirements may be granted for periods of up to five consecutive financial years for, as the Explanatory Memorandum states, it is not the Government’s intention that captioning obligations should impose unjustifiable hardships on broadcasters, as this could result in a decrease in the number of services broadcast. As stated in the Explanatory Memorandum:

The priority for government is for television services to be broadcast, and where possible for those services to be broadcast with captions. It is not the intention of the government that services not be shown because captioning obligations result in an unjustifiable hardship on broadcasters.[62]  

It is perhaps worth noting the AFDO comment that in its opinion attempts to gain better access to broadcasting services for people with hearing impairment has been marked by an ‘inequitable power balance’—appeals by individuals with disability and small advocacy agencies versus well resourced industry bodies. The question could be asked: Despite best intentions, will the insertion of possible hardship clauses simply extend the inequities under the guise of a greater access regime? At the same time, it is difficult to see how such access legislation could be workable without provision for mitigating circumstances.  

Audio description

Audio description refers to the synchronised delivery of additional verbal commentary which complements the underlying soundtrack of a program.  In its submissions on media access the broadcasting industry was convinced that a number of issues needed to be resolved before the introduction of audio description could be contemplated by the Australian broadcasting industry. According to the ABC and SBS for example, these included technical issues relating to the establishment of such a service, analysis of demand, interest in programming and the training of describers.[63]

In addition, Free TV argued that there was a clear difference between captioning and audio description; the former is an alternate means of presenting program content, while the latter necessitates the creation of new content. It cited a judgment on the United States Federal Communications Commission rules which declared audio descriptions:

... require a writer to amend a script to fill in audio pauses that were not originally intended to be filled. Not only will producers and script writers be required to decide on what to describe, how to characterise it, and the style and pace of video descriptions, but script writers will have to describe subtleties in movements and mood that may not translate easily. And many movements in a scene admit of several interpretations, or their meaning is purposely left vague to enhance the program content.[64]

Overwhelmingly the industry supported a measured approach and a trial of audio description on the ABC. AHRC was also in favour of an audio description trial and suggested that as part of that trial quality guidelines should be developed later to be adopted as a Code of Practice.[65]

On the other hand, disability organisations were in favour of a more immediate response. Blind Citizens Australia was convinced that the lack of audio description service on Australian free-to-air or subscription television was a serious disadvantage for persons with vision impairment in terms of having full access to news, education, cultural and entertainment programming.

The broadcast industry’s argument to support this inequity of service has been based around cost and the fact that our current analog television broadcast system does not have the capability to carry closed audio description. With the introduction of digital multi-channels and the proposed switch-over to an all digital broadcast system, it is time that the television broadcast industry be required to meet their obligation under the DDA and the UNCRPD [United Nations Convention on the Rights of Persons with Disabilities].

Blind Citizens Australia, believing that open audio description should be provided if no other model is available, strongly urges the Australian Government to immediately fund and implement an open audio description on the publicly funded ABC broadcast system, beginning in the 2010-2011 financial year. Such a trial would be the first step in ameliorating the long-time discrimination that television broadcasters have been perpetrating, as they have continued to disregard the rights of viewers who are blind or vision impaired.[66]

New South Wales Disability Discrimination Legal Centre’s position was that industry claims about technical difficulties were exaggerated.[67] Media Access Australia also questioned claims of technical difficulties claiming captioning using voice recognition has been used on Australian television since 2005, with it being regularly used for news and sports programs on many channels.[68] AHRC added that examples cited in the Government’s discussion paper of countries where audio description was employed showed that some level of audio description was clearly feasible. These examples indicated also that audio description did not impose an onerous financial burden. AHRC and some other organisations, however, were more accepting of the industry argument that some technical issues needed to be resolved before audio description could become a reality. AHRC saw these being addressed through a trial which it considered should take place ‘as soon as possible’.[69]

Comment

The issue of audio description is not dealt with in this Bill. As announced previously, the Government will direct the ABC to undertake a trial intended ‘to generate a greater understanding of the technical and consumer issues associated with establishing and delivering audio description services’. The trial will run for 13 weeks and is expected to commence in August 2012. It will involve the broadcast of drama, documentary and other content with audio description on ABC1 for 14 hours per week during prime time.

The Government has agreed to consider the implications of introducing minimum levels of audio description on broadcasters after it receives a report on the trial from the ABC.[70]

Future captioning levels

Both free-to-air and subscription television submitted claims for special consideration when future captioning requirements were put in place. ASTRA claimed that the varying audiences for channels across subscription channel genres justified different captioning requirements.[71]

Free TV rejected this claim, arguing that subscription television was no longer a new service which deserved special treatment; it had established its profitability and so must share the burden of providing captioning services into the future. In contrast, it saw free-to-air multi channels as new services and urged the Government to take a ‘light-touch’ in regulating captioning on these channels. [72]

The Government’s response to a separate review of captioning on multi channels noted that it was not convinced that multi channels should remain free of Australian content standards and captioning requirements beyond the final digital switchover, but it was not clear to the Government ‘how the channels will evolve and what will be the right balance of requirements as these channels develop further’.[73]

The view of the New South Wales Council on the Ageing, however, was that there should not be any exemptions from captioning requirements afforded to multi channels.[74]

Free TV warned that unless there was careful planning for realistic and achievable captioning targets trade-offs between quantity and quality may occur in the future; these would inevitably be to the detriment of deaf and hearing impaired audiences.[75]

The industry sought some recognition of operational and technical hurdles which it may encounter as captioning requirements increased:

There are an increasing number of programs which broadcasters receive very close to the time of broadcast, limiting greatly the capacity to provide off-line captions. A program cannot always be sent directly to a caption service provider once it is received by broadcasters. There are a number of intervening steps which must be undertaken before it is ready for captioning.

For example, a program may need to be edited to fit a particular timeslot or to provide for program breaks. Some programs may also need to be edited to comply with classification or other Code of Practice requirements prior to broadcast. To ensure the captions match the program which goes to air, all these steps must be completed before a copy can be sent to a caption service provider. This process can take some hours. Whilst an advance copy may be able to be provided in some circumstances to allow for some preparation, this will only provide a limited time saving.

Hence, whilst a program may be received in the morning for broadcast in the evening, the program may not be ready for captioning until later in the day. With offline captioning requiring up to 6 hours for every hour of programming, there is often simply not enough time to provide offline captions.[76]

Broadcasters were keen that existing exemptions in Schedule 4 of the BSA should continue to apply to any future captioning targets and Free TV called for consideration to be given to excluding breaking news items that interrupt normal programming.[77]

Provisions

As discussed above, commercial licensees, national broadcasters and subscription licensees will all have annual captioning targets which they will be required to meet. However, there is provision in the Bill for commercial licensees and national broadcasters, under proposed section 130ZUA of the BSA, and subscription licensees, under proposed section 130ZY, to apply to the ACMA for an exemption order or target reduction order.[78] If granted an exemption order, a commercial licensee or national broadcaster will be exempt from complying with its captioning obligations set out under proposed section 130ZR(1) in a specified eligible period.[79] However, if granted a target reduction order, a commercial licensee or national broadcaster will need to comply with a new specified percentage set out in the order.[80] Corresponding provisions exist for commercial licensees.[81]

If the ACMA makes a target reduction order, the licensee or broadcaster who provides the service must ensure that the percentage worked out using the following formula is not less than the reduced annual captioning target (the specified percentage in the target reduction order) that applies to the service for a financial year in the eligible period:[82]

 

The ACMA can only grant an exemption order or target reduction orders where it is satisfied that refusal to make such an order would impose an unjustifiable hardship on the applicant.[83] In making this determination, the ACMA will consider:

• the nature of the detriment likely to be suffered by the applicant
• the impact of making the exemption order or target reduction order on deaf or hearing impaired viewers, or potential viewers, of the commercial television broadcasting service, national television broadcasting service or subscription television service concerned
• the financial circumstances of the applicant
• the estimated amount of expenditure that the applicant would be required to make if there was a failure to make the exemption order or target reduction order
• the extent to which captioning services are provided by the applicant for television programs transmitted on commercial television broadcasting services, national television broadcasting services or subscription television service provided by the applicant
• the likely impact of a failure to make the exemption order or target reduction order on the quantity and quality of television programs transmitted on commercial television broadcasting services, national television broadcasting services or subscription television service provided by the applicant
• whether the applicant has applied, or has proposed to apply, for exemption orders or target reduction orders under this section in relation to any other commercial television broadcasting services, national television broadcasting services or subscription television service provided by the applicant and
• such other matters (if any) as the ACMA considers relevant.[84]

In respect of subscription licensees, the ACMA will also consider the number of people who subscribe to the television subscription service.[85] Upon receiving an application for an order the ACMA must, within 50 days, publish a notice on its website setting out the order and inviting people to make submissions.[86] After considering the application and any submissions provided, the ACMA must, within a 90-day period from when the application was received, either make the exemption order or target reduction order in writing or refuse to make the exemption order or target reduction order.[87] If the ACMA fails to make an order within that period, the ACMA is taken to having refused to make the order.[88]

Proposed sections 130ZUB and 130ZZAB of the BSA set out the circumstances in which a breach of a provision under proposed Division 2 or under proposed Division 3 will be disregarded. A breach will only be disregarded when it is attributable to significant difficulties of a technical or engineering nature, which could not reasonably have been foreseen by the licensee or broadcaster.

Comment

The Australian Captioning Centre noted in 1999 that it had turned around hour-long programs in less than five hours, by maintaining a sizeable staff pool, amongst which many small sections of the program may be distributed for captioning. It added that the United States, Canada and the United Kingdom have comprehensive requirements for captioning, so it was highly likely that a caption file already exists for programs imported from those countries. It conceded that depending on the format of a file, varying amounts of additional work may be required to make the file suitable for the Australian environment. Nevertheless, the additional work is less effort than captioning a program ‘from scratch’.[89] 

Access Innovation Media recently noted that the access services industry has matured from a single provider, the Australian Caption Centre, to a competitive industry, and that this situation has resulted in greater efficiencies and better quality services. It has argued: ‘Competition will continue to force efficiency improvements and, together with increased volumes, will deliver lower prices over time’.[90] So the issue of cost of captioning and difficulties in providing captions in a timely manner appears less convincing than broadcasters maintain.

The case for free-to-air multi channels to be treated as a new service with special rules appears to have diminished, and programs shown with captions on primary channels will continue to need to be captioned on a broadcaster’s multi channels. While it would be unusual at present for programs to debut on multi channels, this may not be the case in the future and this is an issue that may need to be addressed at a later time.

Subscription television’s argument that varying audiences on subscription channels should result in different captioning requirements has led to a compromise—subscription television will now be captioned, as disability organisations wanted, but there will be limits on captioning to reflect the size of audiences for different subscription genres, as ASTRA wanted. However, it may be that there will be some disquiet expressed that sports channels will only be required to meet a ten per cent annual captioning target (rising to 15 per cent in 2014). There would be some merit in criticism from this perspective, given that sports channels usually dominate subscription televisions ratings. For example, three out of the top five subscription channels for ratings week 10–16 June 2012 were sports channels and half of the top ratings channels in the previous month were sport channels.[91]

Regulatory certainty

Submissions by Free TV and other industry members welcomed the Government’s intention to prescribe relevant parts of the BSA under the DDA, on the assumption that this will provide for the primacy of the BSA to the exclusion of the DDA with regards to television captioning. Free TV was adamant that the potential for Government decisions regarding captioning to be overridden by the DDA complaints process should be removed.[92]

ASTRA supported consolidation of regulation for subscription television under the BSA. The subscription sector saw ACMA as best placed to understand the subscription television model and to regulate in a manner which ‘enables public interest considerations to be addressed while not imposing unnecessary financial and administrative burdens on providers of broadcasting services’.[93]

In general, disability organisations agreed that the regulatory situation was unsatisfactory and that there was justification for the harmonisation of rules. Not all these groups agreed with the Free TV assumption that the BSA would, or should, take primacy over DDA processes.  One legal opinion was that the DDA contained sufficient defences and there was no need for it to be supported by any other agreements outside of the Act.[94]

The ABC was ambivalent—if it were intended that the BSA override the provisions of the DDA in relation to captioning, the BSA should be amended accordingly. Alternatively, if the intention is that the BSA is to be subordinate to the DDA, it should be amended to include a guidance note to that effect.[95]

Comment

Section 24 of the DDA, which makes discrimination against a person on the ground of the person’s disability unlawful in the provision of goods and services, is very general, but it is the primary piece of legislation which deals with the prevention of discrimination. As such, it sets ambitious compliance targets. The BSA, on the other hand, has set modest captioning targets and broadcasters have needed to seek temporary exemptions from the DDA under agreements with AHRC. It may be that these will need to continue as changes to captioning provisions will still not require 100 per cent of all programs to be captioned.

The following broadcasters have recently obtained exemptions from compliance with the DDA until 31 December 2012:

• Seven Network Limited group of companies
• Nine Entertainment Co group of companies
• Network Ten Limited group of companies
• Prime Media group of companies
• Win Corporation group of companies
• Southern Cross Australia group of companies
• Imparja Television Pty Ltd
• Special Broadcasting Services Corporation and
• Australian Broadcasting Corporation.[96]

In granting the exemption the AHRC took into account the high level of captioning required to be provided by the broadcasters, as well as the amendments proposed in the Bill.[97]

Captioning on other platforms

With regards to this important issue, Google maintained that online services were working towards making Internet material universally accessible, but imposing legal requirements to add captions and/or audio descriptions to Internet material would hamper these efforts. In addition, online providers would often be unable to comply with the law because of technical requirements ‘and the sheer volume of material that is uploaded to websites—for example every minute approximately ten hours of content is uploaded to YouTube’.[98]

Google’s later submission noted that its 2009 preliminary roll-out of automatic captioning (auto caps) for video content on YouTube was an indication of its commitment to providing captioning for online video. It believed this was best achieved by government promoting an environment in which industry research, development and innovation continued without regulatory pressures.[99]

The ABC argued for a consultative forum involving all stakeholders to discuss the technical and resource issues that need to be addressed in order to caption content on other platforms.

The prospect of extending the parameters of the ABC’s captioning service onto platforms beyond television broadcasting raises a number of complex technical, rights management and funding issues.

Any consideration of captioning for non-television services must take account of the considerable technical complexity and differences between alternative platforms and applications. The use of the terms “online” and “over the internet” are sometimes used as “catch alls” for a great number of quite different services. The ABC believes research is required into the technical, capital and operational cost and legal issues associated with making online content.[100]

Telstra supported the government intention to continue to monitor international developments and to encourage industry partnerships with disability representative groups to improve online accessibility.[101]

This issue elicited strong responses from disability organisations. Blind Citizens Australia asserted:

...  there needs to be an accessibility standard which all commercial downloadable audio-visual content is required to meet. As Australian broadcasters and media organisations are increasingly offering content via the internet, we believe it is necessary that this content be fully accessible to the same extent as when offered via another medium. All films or television broadcasts which have audio description when screened in cinemas or broadcast on television must be available with the same level of accessibility when offered commercially via the internet.[102]

Indeed there was disappointment that the Government appeared reluctant to lead by example to ensure better compliance with obligations under the CRPD.[103]

AHRC, in contrast to the Telstra view, was concerned that simply monitoring industry developments and encouraging partnerships between industry and community will not provide sufficient incentives to address access requirements on the Internet or fulfil government responsibilities to take all appropriate measures to achieve compliance with the CRPD.[104]

The Deafness Council of Western Australia also asked why captioning on community television had not been addressed by the Government. It suggested that a minimum five per cent captioning requirement could be imposed on community television and that this could increase annually.[105] AHRC also raised the issue of community television and proposed that consideration should be given to identifying actions that might be taken by community broadcasters to improve access. AHRC also proposed that the issue of access to community television broadcasts was specifically identified as one of the items for consideration in a proposed 2013 review.[106]

Comment

This Bill does not deal with the issue of captioning online services. This is not surprising, given that the one recommendation relating to access to online services in the final report of the media access review was simply that government continue to monitor developments in this area. As disability groups had previously expressed their disappointment that little was being done to improve online access, it is not likely they will initially be pleased with this outcome.

While the Government promised in the final media access report that it would take advice from the Convergence Review on reform to existing media legislative frameworks in light of the ongoing technological changes occurring within the media environment, this review also provided no specific recommendations regarding improving access for people with disabilities.[107]   

Captioning quality

The ABC observed in its 2008 submission to the media access discussion paper that quality is a key issue in the delivery of captioning. The national broadcaster noted that it had been involved with other broadcasters in discussions about quality guidelines to ensure accuracy, delivery of meaning and intent of the audio component, consistency in style and approach and clear and concise captions.[108]

While Free TV had been involved in these discussions on guidelines, it was opposed to the introduction of a captioning code of practice. It submitted:

Broadcasters take very seriously the need to ensure the quality and accuracy of television captions is adequate to meet the needs of deaf and hearing impaired viewers. Broadcasters have no desire to see poor quality captions delivered to their audiences; their incentive is to make programming as accessible as possible to the widest possible audience. For broadcasters, the expectation is that caption service providers will deliver on their contractual obligations, which have been carefully negotiated and which represent a substantial financial commitment by broadcasters.[109]

However, another submission to the 2008 paper remarked:

There are occasions when I find it impossible to follow captions on free to air television. Mistakes occur too frequently, captioning synchronization with the new items on-line is completely lost and so difficult to follow. So in addition to more captioning, more captioning quality is required. [110]

Indeed, the Australian Federation of Disability Organisations (AFDO) had grave concerns about self-regulation of quality by the broadcasters. In AFDO’s view, the priority for business was to minimise cost, which in the instance of captioning can be achieved by lowering or removing editorial standards, or hiring and training less skilled staff.

For people with disability, however, it is too high a price to pay: a lack of quality captioning or audio description could mean that the information conveyed is unintelligible, invisible or inaudible. This is the equivalent of providing a wheelchair ramp with ‘just a little step’ in the middle of it, and is equally unacceptable.[111]

Deaf Australia considered captioning quality standards need to be endorsed and enforced by a standards body as voluntary guidelines and codes of practice for television were useless if they are not complied with; there needs to be a monitoring and enforcement mechanism. It added that appropriate caption quality guidelines had been formulated by the Deafness Forum and endorsed by various groups including several caption suppliers.[112] However, discussions between Free TV and organisations representing deafness groups ‘have seen an attempt from the industry to water these guidelines down’.[113]

This view was typical of the mistrust of the industry apparent in a number of advocacy group submissions. A number saw the solution as providing ACMA with greater powers to impose and monitor captioning standards. The Disability Discrimination Legal Centre for example considered that there should be provision for ACMA to be directed to impose a quality of captioning (and audio description) licence condition under section 43 of the BSA.[114]

A specific captioning code of practice has yet to be released, but this Bill proposes that ACMA will develop and impose captioning standards.   It is hope that these standards will be based on those already developed by the Deafness Forum and endorsed by various groups including several caption suppliers.

Provisions

Division 4 of new Part 9D of the BSA deals with captioning standards. Proposed subsection 130ZZA of the BSA allows for the ACMA to determine, by legislative instrument, standards that relate to the quality of captioning services provided by broadcasters.[115]  Under proposed subsection 130ZZA(2), these standards can refer to the readability, comprehensibility and accuracy of captioning services. Proposed subsection 130ZZA(3) of the BSA empowers the ACMA to incorporate by reference into the captioning standard any other written document that exists from time to time.[116] Proposed subsections 130ZZA(4), (6) and (7) make compliance with these standards a license condition for commercial licensees and subscription licensees.[117] National broadcasters are required to comply by proposed subsection 130ZZA(5).

Item 1 of the Bill also provides that where a code of practice, which deals with the captioning of programs for the hearing impaired, is inconsistent with a standard determined by the ACMA, the code ceases to have effect to the extent to which it is inconsistent.[118]

Comment

In terms of the definition of quality of captioning standards in this Bill, it is likely that broadcasters will have at least some influence in defining what this will actually mean. The Bill says that the terms will include readability, comprehensibility and accuracy, but these may mean different things to broadcasters and people with hearing impairment. One deaf commentator has argued:

Australians expect that their digital televisions will always display a good quality picture and will always have good quality sound.

Likewise, viewers who rely on closed captioning, now have a realistic expectation that the closed captions that are provided by commercial broadcasters in accordance with the foreshadowed Broadcasting Services Act amendments will actually enable them to access and understand the content.[119]

The best method to achieve quality captioning, according to this commentator is through the use of pre-prepared ‘block’ captions, with live captions used only as exemptions on a case by case basis. This Bill is silent on these types of issues, however, appearing to allow ACMA not only to decide on broadcaster compliance with the rules, but also on what constitutes quality standards. It is hoped that quality standards will be higher than those shown in the example below:

 

Source: Deafness Forum of Australia [120]

Role for ACMA and the AHRC

A number of disability organisations were in favour of ACMA being given more power to monitor and enforce television accessibility for the hearing and vision impaired.  One submission noted that there was a widespread perception in the disability sector that ACMA does not have sufficient legislative authority to protect existing access in areas that fall within its scope, nor to ensure that access is taken into consideration as part of emerging broadcasting and communications.^[121] 

Media Access Australia (MAA) argued, for example, for a similar regulatory regime as that in place in the United Kingdom to be imposed.[122] Under the British regime a channel that fails to meet a quota for a particular access service, such as captioning, audio description and signing, is usually fined by the regulator Ofcom. Further, an additional quota is added to the broadcaster’s quota for the following year. In MAA’s view this provided a meaningful penalty as well as regulatory certainty. MAA noted that by comparison, ACMA does not impose financial penalties on broadcasters that fail to provide access services, and accepts enforceable undertakings that do not compensate for any missed quotas.^[123]

MAA also pointed out that ACMA’s legalistic approach was not suited to dealing with complaints of a technical and quality nature, as these need to be addressed immediately. The regulator needed to be more proactive about issues such as identifying and investigating systematic access issues and improving communication with consumers who have lodged complaints.[124]

At the same time as there was support for an expanded role for ACMA, some disability organisations were keen that the role of AHRC was not diminished as it had done much to assist in increasing caption access and its work was valued by the deaf and hearing impaired community.

Provisions

As discussed above, proposed subsection 130ZZA of the BSA empowers the ACMA to determine the captioning standards that apply to broadcasters. Under proposed Division 6 of proposed Part 9A of the BSA, the ACMA is given new powers in respect of reporting and record keeping. Proposed subsections 130ZZC(1) and (3) of the BSA provide that a commercial licensee or national broadcaster must, within 90 days after the end of each financial year, provide to the ACMA a report relating to its compliance with its obligations under proposed new Divisions 2, 4 and 5 of Part 9A of the BSA during that financial year. Proposed subsection 130ZZC(5) of the BSA imposes the same obligation on a subscription licensee (if it is also a body corporate), only it must report on its compliance with its obligations under Divisions 3, 4 and 5 of Part 9A of the BSA.  All reports must be in a form approved in writing by the ACMA and set out the relevant information required.[125]

Proposed subsection 130ZZD of the BSA requires a commercial licensee, national broadcaster or subscription licensee (that is a body corporate) to make and retain compliance records for each financial year, for a period of up to 90 days from when then report has been provided to the ACMA.[126] As with the reports, the records must be made in a form approved in writing by the ACMA.[127] The licensee or broadcaster must also, if requested by the ACMA, make available without charge, any compliance records the licensee or broadcaster has retained.[128]

Compliance with these reporting and record keeping provisions is a license condition for commercial licensees and subscription licensees.[129]

Comment

This Bill does not specifically deal with the issue of the enhancing of roles for ACMA or the AHRC. However, ACMA’s responsibilities are increased under proposed provisions as the regulator is required to determine captioning standards, monitor compliance with captioning requirements and to post copies of compliance reports from broadcasters on its website.

As noted above, however, ACMA already has a range of powers available to it to deal with breaches of licence conditions and program standards. These powers vary according to the seriousness of an offence and can include enforceable undertakings and the imposition of additional licence conditions.

Emergency broadcasts

AHRC noted its support for any action to provide audio information and captioning for emergency announcements and stressed that the CRPD specifically refers to government’s responsibility to eliminate obstacles and barriers to accessibility in the areas of information, communications and other services, including electronic services and emergency services.[130]  

Free TV argued that it took very seriously the need to ensure that essential information is accessible to as many people as possible. It noted that the commercial television code of practice requires that when broadcasting emergency, disaster or safety announcements, broadcasters must provide essential information visually, whenever practicable.[131]

The ABC observed that it had developed guidelines to make its television services more accessible for people who are deaf with hearing impairment or are blind or have a visual impairment. Its editorial policies state:

... closed caption content will be clearly marked when program information is provided to the media or when captioned programming is promoted. Where possible, open caption advice will be provided if technical problems prevent scheduled closed caption…Addresses to the nation and events of national significance will be transmitted with closed captioning”.[132]

The Deafness Forum made the important point that the captioning of emergency information would not just benefit the deaf:

 Important information should be open captioned. This would assist not only those people who are Deaf or have a hearing impairment (and those whose English is their second language) but also many people who may be watching in noisy places such as TVs in hotels, airport terminals, gyms, schools, universities, pubs, shopping centre food courts, retirement homes, Qantas club lounges etc where captions are probably not showing.[133]

Provisions

Proposed Division 5 of new Part 9D of the BSA sets out the provisions in regards to emergency warnings. Proposed section 130ZZB of the BSA provides that when a commercial licensee, national broadcaster or subscription licensee is requested by an emergency service agency to transmit an emergency warning, they must transmit the warning in the form of text and speech, and provide captioning where it is reasonably practicable. Again, compliance with proposed section 130ZZB is a license condition for commercial licensees and subscription licensees.

Comment

It is interesting that under the proposed provisions in this Bill television broadcasters are not required to broadcast emergency warnings. [134] The Bill requires only that if broadcasters choose to broadcast warnings at the request of emergency service agencies as defined in the BSA that those warnings should be captioned ‘if it is reasonable practicable to do so’. The Explanatory Memorandum cites the example of an emergency warning which needs to be broadcast immediately due to a high danger risk; this circumstance may not allow time for captioning.[135] The issue of what constitutes high risk and which organisation defines it is not clarified. As such, there may be scope for this requirement to be ignored, particularly given that the warning will already be broadcast in the form of text and speech.

Review

A review of the new Part 9A of the BSA to be inserted by this Bill is required before 31 December 2015. The Government noted in its media access review report that such a review would provide ‘an opportunity to assess the operation of various digital platforms and the accessibility of content in light of the development of the National Broadband Network and the proximity to the completion of digital television switchover’. The idea of further review of captioning on the various media platforms was well accepted by all stakeholders. 

Provisions

Division 7 of new Part 9D of the BSA relates to the review of that Part of the BSA. Proposed section 130ZZE requires the ACMA to conduct a review of the Bill before 31 December 2015 and to give consideration to the following matters:

• the operation of proposed Part 9D of the Bill and whether it needs to be amended and
• the operation of paragraphs 7(1)(o) ,10(1)(eb) and 11(1)(bc) of Schedule 2 of the BSA (these provisions make compliance with proposed Part 9D a license condition for commercial licensees, national broadcasters and subscription licensees).[136]

In conducting the review, the ACMA must make provision for public consultation and must provide the Minister with a report of the review before 30 June 2016.[137]

Comment

The media access review final report noted that media access would be re-examined in light of the findings of the Convergence Review, the independent inquiry established by the Australian Government to examine the policy and regulatory frameworks that apply to a converged media and communications landscape in Australia.

 While the issue of media access for persons with a disability is not directly discussed in the report of the Convergence Review, the distinct impression is that the review supports a more accessible media environment and that one of the tasks of its proposed new media regulator would be to ensure that media services meet the expectations of all Australians. The Government has yet to respond to the Convergence Review recommendations.

Initially, the Government suggested that a second media access review could be held in 2014 —a significant date given that the transition to digital television should be complete by that time. However, it appears that the date proposed in this Bill, the end of 2015, is a more appropriate time for review of the new provisions, as the requirement for 100 per cent compliance during designated viewing hours will not commence until 1 July 2014. 

Committee consideration

The Broadcasting Services Amendment (Improved Access to Television) Bill 2012 was referred to the Senate Environment and Communications Legislation Committee on 19 June for inquiry and report by 25 June 2012.  

The inquiry was to examine:

• The commercial and regulatory implications on broadcasters of making compliance with these captioning obligations a condition of a commercial television broadcasting license, a subscription television broadcasting licence, and a class licence.
• Implications for free-to-air commercial networks in breach of the new licence condition if they are unable to provide a captioning service for reasons beyond their control, such as failure by a third party captioning provider to provide the service for reasons beyond the broadcasters control.
• Implications for the long-term viability of services provided by subscription television, primarily international pass-through channels such as BBC World News, CNN and Aljazeera.

Amendments

The Opposition moved a number of amendments to the Bill during debate in the House of Representatives.[138]  These were:

• section 130ZL: that for captioned programs transmitted on or after 1 July 2014, which begin before midnight and end on the next day, the part of the program broadcast after midnight is taken to have been broadcast during designated viewing hours.
• a subscription television service that consists wholly or primarily of programming provided by an international pass-through provider is exempt. An international pass-through provider in relation to a subscription television service is to be defined as person who makes available a channel or service to a subscription television licensee where that channel or service has been compiled and played out at a location outside of Australia.
• In relation to proposed section 130ZUB and 130ZZAB breaches: that if such a breach does exist and broadcasters are found to have acted honestly and reasonably in the circumstances that the breach should be disregarded.

Financial implications

It appears there will be no direct financial impact on the Australian Government resulting from the amendments to the BSA proposed in this Bill.[139]

Concluding comments

This Bill addresses a number of issues raised in the Government’s consultation with industry, disability advocacy groups and the public in relation to the adequacy of captioning across the various media in Australia.

A number of provisions in the Bill represent a compromise approach to improving access for people with hearing impairment. Not all the desires of the deaf community have been addressed, but the outcome of the legislation will be that captioning will be required for an extended viewing period and captioning will be required on subscription television and on multi channel programs previously shown with captions on prime channels. In addition, the need for captioning standards has been recognised. Similarly, the wishes of broadcasters have not been wholly accommodated, although there is considerable flexibility in provisions which may work in favour of at least some broadcasters, who may be able to claim detriment suffered as the result of captioning obligations.

Appendix A: extract from Deafness Forum draft captioning guidelines

The Guidelines

Caption service providers should endeavour to ensure the captioning complies with the following best practice guidelines, to the extent practicable in the circumstances.

3.1 General Grammar and Presentation

• Punctuation should make captions as easy as possible for viewers to read.
• Punctuation should follow normal style and conventions (such as the Commonwealth Government style manual).
• Punctuation should convey, as much as possible, the way speech is delivered.
• Sentence case should be used.
• Spelling should be accurate.
• It is not necessary to repeat, in caption form, any information that is already on the screen (such as the name of a presenter or temperatures read out in a weather report).
• Captions should not overlap or impede any text based information already on the screen

3.2 Timing and Editing

• Captions should coincide with the relevant soundtrack, so that the relation between sound and visuals is preserved for the caption viewer.
• A caption should stay as close as possible to the original wording while allowing the viewer enough time to absorb the caption’s contents and still watch the action of the program.
• Programs should be captioned at an appropriate reading speed for the intended audience. For adults this is 180 words per minute (i.e. 3 words per second).
• Where time allows, a caption should be verbatim (word for word).
• The essence of reduction is remaining faithful to the script. Vocabulary and sentence structure should be preserved as much as possible.
•  Line breaks and caption breaks should reflect the natural flow of the sentence and its punctuation.
• Captions should never be more than three lines in length. The preference is for one-line or two-line captions to be used.

3.3 Colour and font

• Different colours should be used to help identify different speakers.
• White captions should be used as much as possible as they are the easiest to read.
• Sound effects should be identified using a different (but consistent) colour.
•  A black background box should be used to aid readability.
• Preferred font for captions is Arial or other Sans Serif font)

3.4 Positioning

• Positioning should be used to identify who is speaking, especially when there are several speakers in the scene.
• Positioning of captions should, where possible, avoid obscuring important information on the screen, e.g. supers, graphics text descriptors or activities, or the speaker’s lips. For example, it is clearly important that captions not obscure scores in sports broadcasts.

3.5 Sound Effects

• Any noise or music that enhances the visuals, contributes to characterisation or adds atmosphere must be captioned.
• A caption viewer should not receive any more information than a hearing viewer would get.

3.6 Children’s Programs

• Children’s programs should be captioned at around 150 - 120 words per minute.
• Programs aimed at pre-school children should be captioned at around 180 words per minute. This is in recognition that the main benefit of a pre-school show being captioned is so that the Deaf or hearing impaired parent of a hearing child can understand what their child is watching, in which case it should be captioned verbatim and at adult-equivalent speeds. [However, there may be occasions, such as where a story is being read or a song being sung, where captioning at a faster rate will be necessary to provide a better learning experience for the child.]
• In a children’s program, if captioning is not verbatim, it is important to ensure substitute words or phrases are not more complicated than the original wording.

4. Open and closed captions

• Matters of public importance, national importance, and emergencies must be open captioned.
• Government advertising including election material must always be closed captioned.

5 Live Captioning

• The standard of captioning that is deliverable varies considerably, depending on whether programs are pre-recorded, live or near live. Programs should only be captioned live if it is impossible to pre-caption them.
• Live captioning must be at a required minimum level of accuracy of 98% or 2% error rate.

6. Complaints

• Complaints about captioning can be made direct to TV stations, or directly to ACMA.
• Deafness sector organisations will encourage complainants to complain to TV first.
• TV stations will ensure that their staff who take calls from the public are aware of captions and their impact on viewers who are Deaf or hearing impaired and have sufficient training and information to respond appropriately to these callers.
• any one of phone call, fax, email, letter, online if the station has an online feedback mechanism.
• 45 calendar days of receipt of the complaint in whatever format it is received. This response must address the substantive issues in the complaint, not merely be an acknowledgement of complaint. This response should also include an action plan of how the station will address the issue and endeavour to ensure it does not occur again.
• In some cases providing a DVD copy of the program, with appropriate captions, will be an adequate response to the complaint. This means that the viewer can enjoy the program after all.
• Free TV will undertake to respond to complaints on behalf of all free to air broadcasters. If no acknowledgement is provided within 14 working days and no adequate response within 45 days of the complaint, the consumer can complain to ACMA. ACMA will take into account these quality guidelines in responding.

Source: Deafness Forum[140] 

Appendix B: extract from proposed subsection 130ZV(2) of the Bill

Annual captioning targets
Item	Service	Percentage for the financial year beginning on 1 July 2012	Percentage for the financial year beginning on 1 July 2013	Percentage for the financial year beginning on 1 July 2014
1	Category A subscription television movie service	60%	70%	75%
2	Category B subscription television movie service	40%	50%	55%
3	Category C subscription television movie service	30%	40%	45%
4	Category A subscription television general entertainment service	40%	50%	55%
5	Category B subscription television general entertainment service	30%	40%	45%
6	Category C subscription television general entertainment service	15%	20%	25%
7	Subscription television news service	10%	12.5%	15%
8	Subscription television sports service	10%	12.5%	15%
9	Subscription television music service	5%	5%	5%

 Members, Senators and Parliamentary staff can obtain further information from the Parliamentary Library on (02) 6277 2429.

For copyright reasons some linked items are only available to members of Parliament. 

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