There was general support for the proposed changes contained in the bill
from the television industry. However, other submitters raised concerns in
relation to Schedule 6 (captioning) and Schedule 3 (eligible drama program
expenditure audits) of the bill. These issues are discussed below.
Support for the legislation
Submitters voiced support for the Government's deregulation agenda. For
example, Free TV Australia commented that commercial free-to-air television is
the most heavily regulated media platform in Australia and welcomed any moves
to repeal outdated or unnecessary regulations and reduce the red tape on
commercial free-to-air broadcasters.
Free TV Australia, Australian Broadcasting Corporation (ABC) and Special
Broadcasting Service Corporation (SBS) supported the entire suite of amendments
proposed by the bill including the amendments to the captioning provisions.
The Communications Law Centre (CLC), while commenting on captioning
reform and New Eligible Drama Expenditure (NEDE) Scheme audits, expressed
support generally for reforms to streamline regulation:
The CLC agrees with the Minister's view, articulated in his
2nd Reading Speech, that aspects of broadcasting legislation and regulation
need to be reviewed in light of technological convergence and changes in
service delivery. Out-dated and anachronistic regulations that no longer serve
the public interest should be removed. The CLC therefore supports the removal
of regulatory provisions relating to the transition to digital television as
proposed by the Bill. It is also in the public interest to promote regulatory
mechanisms that deliver outcomes more efficiently and effectively. The CLC
therefore supports most of the proposed amendments to ownership and control
regulation as proposed by the Bill.
Issues relating to Schedule 6 – Captioning
The importance of captioning services was recognised by submitters to
the inquiry. They commented that captioning is critical for ensuring people who
are deaf, or hearing impaired, have access to information.
For example, Mr Kyle Miers from Deaf Australia commented that:
...'information is power'...There are various mediums to access
information, but many of those are not accessible to deaf people, because they
are not captioned...we [the deaf and
hearing impaired community] rely heavily on accessible information via the
Submissions from industry voiced commitment to closed captioning 'which
promotes inclusion and accessibility for Australians'.
Free TV Australia also recognised the importance of captioning but stated that
some of the current arrangements are onerous:
Free TV members recognise the importance of captioning
services to the deaf and hearing impaired community and are committed to
providing comprehensive, high quality captioning services, in line with and
beyond their regulatory obligations. However, the current reporting
requirements and administrative arrangements surrounding the provision of these
services are unduly onerous and resource intensive.
The question of whether the proposed amendments would maintain the
availability and quality of captioning while reducing regulatory burden on
industry was one of the key issues in evidence given to the committee.
Deaf Australia commented that the 'deregulation bill appears to have been
drafted solely based on the perspective of the television industry' with 'no
consideration for or attempt to seek out consumers to offer opinions or a
Deafness Forum of Australia also submitted that:
While acknowledging there are regulations in the current
captioning framework that would benefit from refinement, this Bill has an
emphasis on changes which would overwhelmingly benefit broadcasters and strongly
disadvantage consumers by removing protections that safeguard access to quality
The Community and
Public Sector Union (CPSU) added its concerns about the bill's impact on the
availability of captioning:
It is not clear how the Bill will improve captioning services
for deaf or hearing impaired Australians. This should be the primary focus of
any reforms to captioning regulation. Rather, the proposed changes will make it
easier for broadcasters to provide less captioning and water down captioning
quality while still meeting obligations.
However, industry groups, both subscription television and free-to-air
television, commented that the reforms contained in the bill primarily relate
to the removal or amendment of administrative provisions, which will not impact
adversely on the amount of captioning provided on Australian television.
For example, Ms Julie Flynn, Free TV Australia, which represents all of
Australia's commercial free-to-air television broadcasters, stated:
...we are absolutely committed both to meeting our requirements
to provide a certain level of captioning—100 per cent captioning between 6 am
and midnight—and to the quality standards that apply in the act. We do not
believe that any of these changes will have any material impact on either of
Mr Michael Ward from the ABC also supported the amendments regarding
captioning and stated the amendments would assist the ABC in continuing to meet
We support the amendments...The ABC has a long history of
providing broadcast captions...We are committed to delivering to the statutory
requirements and beyond, both in terms of broadcast and online services, and we
see that the amendments that are proposed here will actually assist us in
continuing to do that...We are committed to delivering to the statutory
requirements and beyond, both in terms of broadcast and online services, and we
see that the amendments that are proposed here will actually assist us in
continuing to do that.
The Australian Subscription Television and Radio Association (ASTRA), the
peak body representing subscription television in Australia, submitted that it
was supportive of the proposed changes. Further, subscription television
regularly exceed legislative requirements regarding captioning:
Notwithstanding the legislated limit for [subscription
television] channels being capped at 70 channels in FY14, Foxtel, a member of
ASTRA, provided captioning in excess of this limit. For FY14, Foxtel not only
delivered captioning on a number of additional channels—for example, Foxtel
Movies Disney, Disney XD, Smooth, and Foxtel Store channels 903–914—but it also
exceeded its captioning target for a significant number of its channels.
The Department of Communications (the Department) reiterated that the
amendments proposed in the bill are consistent with the Government's
deregulation agenda and are aimed at reducing compliance costs, increasing
flexibility for broadcasters in the way they meet their captioning obligations,
and achieving greater administrative simplicity.
The Department's submission and witnesses at the public hearing confirmed that
the amendments are not intended, or expected, to reduce the amount of captioned
content available to hearing-impaired viewers, or the quality of captioning
services provided. Dr Simon Pelling, Department of Communications, stated:
There is no erosion of the amounts of captioning that are
required under the act, in anything we are doing. We are looking at...fairly
straightforward measures to try to make simpler compliance by the industry in
terms of those objectives, responding to concerns they have raised about some
of the practical things about making captioning happen. A general principle
behind that would be that, if you can release industry of some of its
relatively unnecessary regulatory burdens, they are better able to do things
that matter for consumers.
In addition, the Department considered that the proposed amendments to
be compatible with human rights and concluded that 'the amendments will better
support the ability of television licensees to provide captioning services that
benefit Australians with a disability, the absence of which would restrict
their ability to access television services'.
While the committee notes that the proposed changes will not reduce the
amount of captioning on television, the following discussion addresses the
major issues raised by submitters in relation to the captioning provisions
contained in the bill:
the removal of annual reporting by free-to-air broadcasters in
relation to captioning obligations and ensuring compliance with captioning obligations
through a complaints based system rather than through reporting and monitoring;
allowing captioning to be averaged across subscription sports
channels in a group;
the exemption to captioning quality breaches in the case of
technical or engineering failures;
the automatic exemption of new subscription channels from
captioning requirements for a period of one to almost two years;
removal of the requirement for independent auditing of eligible
drama program expenditure; and
the lack of adequate consultation processes in relation to the
proposed changes to captioning and eligible drama program expenditure.
Annual reporting requirements and
complaints based compliance framework
Currently, broadcasters are required to report to the ACMA within 90
days of the end of the financial year on their compliance with their captioning
obligations. The bill proposes to remove annual reporting by free-to-air
broadcasters. The compliance arrangements will instead be based on existing
mechanisms within the BSA which enable viewer complaints to the ACMA about
alleged breaches of the captioning provisions and the ACMA's discretionary
powers to investigate broadcasters' compliance with licence conditions along
with broadcast matters more generally.
Removal of reporting requirements
relating to captioning compliance for free-to-air broadcasters
The Department commented that captioning obligations for the free-to-air
television sector have gradually increased such that it is now required to
provide 100 per cent captioning from 6 am to midnight on primary channels
and for news or current affairs programs transmitted on primary channels at any
time. The Department concluded that:
This means it is now clear to consumers when services do not
meet captioning requirements on the primary channel enabling compliance to be
assess on the basis of complaints and other existing measures provided for in
the BSA, rather than through annual reporting arrangements.
The Department went on to note that the ACMA has reported a high level
of compliance with the annual captioning target requirement for the 2012–13
reporting period and that there are significant compliance incentives for
broadcasters to meet their captioning obligations. The Department concluded:
These compliance incentives, increased consumer transparency
and high industry compliance rate strongly indicate that the removal of annual
reporting requirements for the free-to-air broadcasters will not reduce the
effectiveness of captioning requirements.
The ACMA was also of the view that the proposed amendments would not
impact adversely on the amount of captioning provided. Ms Jonquil Ritter, ACMA,
I think it is fair to say that most of the issues, if not
all, have come up through the complaints process and that, with 100 per cent
during those key hours, we would think it would be unnecessary to report
because we have complied with 100 per cent. Having got to the stage of 100 per
cent, it seems sensible to have the minimum amount of regulation to achieve the
outcome and that there will not be a problem caused by the removing of that
Free-to-air broadcasters strongly supported the proposal to remove the
annual reporting obligations in relation to captioning.
For example, the ABC stated that bill would remove 'onerous' reporting
obligations while having no impact on the quality of captioning:
The Corporation supports these captioning amendments as they
remove onerous reporting obligations...The amendments contained in the Bill
will allow the Corporation to redirect resources away from reporting, but will
have no impact on the way audiences experience captioning on its television
Similarly, SBS argued that existing reporting obligations are burdensome
and are not timely:
While SBS understands the importance of regulatory oversight
by an independent regulator, SBS submits that this reporting does no more than
indicate to the regulator, in some cases more than a year after the fact, that
a problem has occurred and what steps were taken to rectify the problem.
The committee also heard evidence about the onerous nature of the
current reporting system. The ABC outlined its reporting requirements which
include eight annual compliance reports on output and technical difficulties
experienced in each state and territory.
Mr Tony Abrahams from Access Innovation Media, which provides captioning
services, explained further:
The reporting requirements at the moment are incredibly
onerous. We put a couple of screenshots...[in our submission of] the form that
you have to download from the ACMA to fill that in for every single breach.
When you consider a 100 per cent captioning obligation and potentially every
five seconds that you have missed should be a line item in one of those, you
are talking about 17 boxes to fill in for one each individual one. That data
has then got to be manually shifted from the broadcaster systems to that ACMA
system and there is scope for error within that.
However, Media Access Australia argued that it is not onerous for
broadcasters to compile annual compliance reports and noted that:
Both [broadcasters] and their caption suppliers have records
of all programs that have been captioned, while the suppliers submit reports
about any program which has not been captioned, or only partially captioned,
due to technical or other issues...
Reporting is a fundamental feature of compliance, consumer
protection and efficient market operation, and should be maintained. It also
provides the opportunity to highlight additional captioning outside of quotas,
showing that parts of the industry are interested in pursuing more access,
which is an excellent social (and business) outcome.
In addition, a number of individuals and organisations, including those
representing persons with disabilities, expressed concern that the removal of
reporting requirements of free-to-air broadcasters in relation to captioning could
undermine the availability of and quality of captions.
For example, one individual submitter argued that:
The proposed Bill will remove the annual reporting
requirements for free to air broadcasters that have worked so well in improving
captioning provision and quality. In effect they send a signal to broadcasters
that they no longer need to take captioning provision seriously because they
are no longer considered accountable.
Reverting to a complaints based
system compliance framework
The committee received submissions raising concerns about the proposed
move to a complaints based compliance framework in respect of breaches of captioning
obligations for free-to-air broadcasters.
For example, the CLC did not support this amendment, citing the potential risk
of under reporting by users of captioning services in relation to potential
breaches of regulatory requirements.
The Deafness Forum of Australia argued that the proposed amendment would
shift the burden onto the individual with a disability:
Of significant concern is the proposal to move to a
complaints based mechanism – to require individual consumers to lodge their own
complaints of inadequate or poor captioning in place of refinements and the
removal of genuine 'red tape' in the current regulatory framework. People with
disability have firsthand knowledge that a complaints approach is ineffective,
places the burden of cost on the individual and does not drive systemic reform.
Ms Lauren Henley from the Australian Human Rights Commission gave
evidence to the committee that a complaints based system may be less effective
in ensuring compliance because it:
...relies on people having an understanding of their rights
under that legislation and where to go to lodge a complaint and how to lodge a
complaint, and not everyone necessarily has access to that information.
While accepting that simplifying the compliance system for captioning should
be a priority, Mr Alex Varley from Media Access Australia argued that there are
a range of challenges in a complaints based system.
He stated that ultimately consumers of captioning:
...just want to go home and watch TV; they do not want to be
spending half their time sitting there worrying about whether something is
complying with regulations. Once they do that, they have to get involved in
this quite legalistic, drawn-out process, which in some cases can take up to a
year to have a resolution, and sometimes that resolution just says, 'Yes, it
wasn't captioned.'...it is putting an onus on people who are pretty
unsophisticated about these issues, as most people are about any legalistic
issues. Fundamentally they just want a service. So that is my objection to
that. Consumers are generally not interested in making complaints that then
lead to a detailed, legalistic investigation and reporting system that can take
up to 9 months to resolve. Generally they want the problem acknowledged, logged
and hopefully fixed. If the regulator took a more pro-active, monitoring and
spot-checking approach to compliance, then these sorts of issues could be dealt
with in a more effective way, including exploring how particular problems arise.
Similarly, an individual submitter described the practical difficulties
of relying on a complaints based approach:
This change is of particular concern because captions describe
things "in the moment"...Viewers may be upset, even enraged, but in
the time it takes to contact the broadcaster through the National Relay
Service, or write, the moment is lost and, with it, the motivation to complain.
I have tried to complain to broadcasters once or twice myself
when something really interesting is on and captions have broken down, but it
is virtually impossible to get through to a real person at the stations after
business hours. I have been grateful that, although I have never complained, there
is an agency working behind the scenes to ensure a good level of access. In
this proposed new system, I would be on my own.
The free-to-air broadcasters supported the change to a complaints based
system. Free TV Australia commented that:
A complaints based compliance regime is a more efficient,
sensible and responsive mechanism for measuring compliance with captioning
obligations, particularly as commercial free-to-air broadcasters are now
required to caption 100% of the programming on their primary service between 6
am and midnight.
It was noted that consumers can make a complaint to the ACMA or provide
feedback to the broadcaster concerned. It was argued that this enables those
who are best placed to determine whether a relevant captioning fault or
interruption has materially impacted on viewing experience. In addition, the
complaints based system will ensure the rectification of issues in a more
timely manner and 'a reporting system that identifies errors which occurred
more than a year ago is not a practical way of addressing captioning faults'.
ACMA, provided the committee with details of the steps taken by ACMA to
ensure that its complaints process was accessible:
...a webpage dedicated to making complaints about captioning and
forms for captioning...[the ACMA] have also produced a series of videos for the
deaf and hearing-impaired, which are on our [the ACMA] website, and the
captioning complaints page appears second in a Google search response. ...We have
taken steps to try and make it as easy as we can.
A number of free-to-air television broadcasters stated that they have
also sought to put in place mechanisms to make complaints easy and accessible.
For example, Ms Flynn from Free TV Australia explained:
In 2010 we established an online complaints system, through
Free TV, which is state of the art. We did a lot of work modelling other
systems...we are very confident that we have an easy-to-use system, as evidenced
by the fact that, as soon as we moved to that system more broadly, the number
of complaints jumped up. But the level of complaints has subsequently gone
down. We advertise how to complain at least once a day across all the time
zones, every broadcaster and every channel. So there is a very high level of
recognition of our complaints processes.
Free-to-air broadcasters also noted that internal monitoring of
captioning ensures that 'captioning faults are picked up either before
transmission or as each program is going to air, and the error rectified to
ensure that it will not recur'.
The ABC, which also provided evidence on its consumer complaints
processes, concluded that it believed that this is 'an effective and less
resource-intensive way to monitor the provisions of captions on television in
Averaging of captioning targets
across subscription sports channels
A further matter raised is the proposed change to allow captioning targets
to be averaged across subscription sports channels in a group. While these
changes are aimed at introducing flexibility for subscription television
licensees in meeting their obligations without changing the total number of
hours of captioning, the CPSU and Media Access Australia commented that this
change makes calculating quota requirements more complicated.
The CPSU also argued that the change 'would let broadcasters use large events
where extensive captioning is commercially attractive to cut back on formal
In addition, it was argued that the proposed change would confuse
consumers and make it difficult for deaf or hearing impaired consumers to know
what they were actually going to receive in terms of captioned content when
subscribing to sports channels. For example, Media Access Australia commented:
Under present arrangements, a subscriber to sports channels
would receive all of the covered channels, but different subscribers like
different sports and there is potential for their chosen sport to be the one
that is "under captioned".
We understand that the amendment is based around ensuring
that particular types of sport are captioned when they switch to other channels
to ensure consistency of captioned product, but this needs more explanation and
investigation to ensure that it is clear to consumers what they are being
offered and what they will receive match closely.
Mr Varley from Media Access Australia provided further comments at the
committee's public hearing. Mr Varley stated that discussions with ASTRA had
taken place and that 'the industry was looking for some flexibility about when
it shifts sports to different channels to ensure it continues to be captioned'.
He went on to comment that if a consumer subscribes to a sports package on
subscription TV they will receive all the sports channels, and access the
captioning. However, Mr Varley stated that the information about the change
needed to be adequately explained 'so people see what the purpose is behind it...In
this case, if that is all they are trying to do then I do not see why people
would not support that, but that needs to be made more clear'.
The Age and Disability Discrimination Commissioner also commented that
the aim of increasing flexibility for broadcasters may be a reasonable
intention, but it could reduce choices for deaf people who have an interest in
some of the minority sports or less nationally popular sports. Further,
consumers were not consulted about the proposed changes.
ASTRA and Fox Sports were generally supportive of the provisions to
allow the averaging of annual captioning targets across a group of subscription
Fox Sport stated that the amendments would assist it to 'direct captioning to
programming which is of the greatest interest to audiences and would have no
impact on the amount of content captioned across [subscription television]
ASTRA explained the effect of the proposed amendments:
The effect of the amendments would be that a proportion of a
channel's captioning target could be 'moved' to another sports channel within
the same group. This may be done if, for example, the first day of a golf
tournament is shown on FOX SPORTS 1, but the second day is shown on FOX SPORTS
2. There could be a scenario where the captioning target for FOX SPORTS 2 had
already been met, whilst the target for FOX SPORTS 1 had not yet been met.
Given that FOX SPORTS is likely to choose to apply its captioning investment in
order to meet the regulated targets, it may be that (in the absence of amendment)
the captioning would not 'follow' the tournament to FOX SPORTS 2 as FOX SPORTS
would choose to caption other programming on FOX SPORTS 1 in order to meet the
Mr Andrew Maiden, CEO of ASTRA, in evidence to the committee explained
that customers would not be disadvantaged by the proposed averaging of
captioning targets across sports channels:
Every sports customer gets every sports channel offered by
Fox Sports...they would not be at a disadvantage if this [amendment] were to
occur. All that would happen is that the captions would in a sense follow the
program rather than having to be attached to a particular channel.
Mr Maiden went on to comment that consumer groups may have misunderstood
the implications of the proposed change and that consumers who purchased a
subscription television sports package accessed all sports channels.
However, ASTRA advocated for the minimum captioning level per channel
to be reduced from two-thirds of the annual captioning target to one-half,
noting that this would not reduce the total amount of content captioned across
the sports channels.
The Department responded to ASTRA's suggestion and commented:
We were working with the industry to find an arrangement
which reflected their concerns about how groups of channels, particularly
sports channels, dealt with captions across the suite of channels. Then the
question became: how far do you go? In the discussion process and in our
thinking on that, we started from the proposition that we would go for a third,
because we thought that was a reasonable quantity to look at and it gave the
industry some flexibility. We do not want to go too far. As you have heard
today, there are interests on both sides of this. We thought that the mechanism
that we came up with represented a reasonable balance of interests with regard
to that issue.
In addition, the Age and Disability Discrimination Commissioner
recommended that a strict reporting mechanism be established to monitor
compliance with the proposed requirement to meet two-thirds of the 15 per cent
quota on each separate sports channel. The Commissioner stated that 'this is
necessary to ensure that consumers are not disadvantaged as a result of these
Exemption for quality breaches due
to technical or engineering failures
The bill proposes to create an exemption to captioning quality standard
breaches where the breach is due to technical or engineering difficulties which
could not reasonably have been foreseen (proposed subsection 130ZZA(7A)). Television
industry submitters were generally supportive of the amendment.
Free TV Australia argued that this provision would correct an anomaly in the
current provisions of the BSA dealing with technical difficulties which affect
The current exception at subsection 130ZUB(1) is intended to
accommodate situations where unforseen technical or engineering difficulties
interfere with the provision of captions. However, the section currently only
operates to excuse licensees from breaching the captioning quota provisions. It
does not apply to excuse licensees in relation to captioning quality...
There have been instances where the ACMA has accepted that a
broadcaster has experienced unforseen technical difficulties and excused the
breach, but has still gone on to find a breach of the licensee's requirement to
comply with the Quality Standard (section 130ZZA).
Free TV Australia stated that 'unforseen technical and engineering
difficulties are not something that a broadcaster can anticipate, and must be
accommodated as part of any compliance regime'. While supporting the proposed
change, Free TV Australia also put forward the argument that further changes
were required to reflect the fact that a captioning service may be disrupted
due to an unforseen event that is not of a technical or engineering nature, and
is beyond the control of the licensee or broadcaster, for example, the
evacuation of the building in which live captioning is being undertaken.
Mr Abrahams from Access Innovation Media argued exceptions were required
...there are inevitably going to be issues where minutes are
lost for one reason or another. It may be engineering or technical; it can be
human as well...Sometimes you do not even know that the thing is going to come
on air until you see it...once in a while you miss one of those things and that
is a strict breach.
However, several submitters were opposed to this exemption for breaches
due to technical or engineering failures.
For example, Deaf Australia expressed concern that this amendment would
...problems with captioning as broadcasters will simply point
to [a] 'third party', or through Service Legal Agreements, to caption
suppliers, thereby absolving themselves from their responsibility to monitor
Automatic exemption for new
The BSA is to be amended to automatically exempt new subscription channels
from captioning obligations for a period of one to almost two years (proposed
subsection 130ZV(6)). The Department noted that to qualify for this exemption,
the subscription television service must predominantly consist of programs not
previously transmitted in Australia prior to the commencement of the service.
The Department went on to comment:
The proposed automatic exemption is designed to encourage
subscription television licensees to bring new content and channels to
Australian audiences and would only apply to channels that mainly consist of
content not previously transmitted in Australia. This requirement will also
avoid creating an incentive for licensees or channel providers to do little
more than 'rebrand' existing content to avoid captioning requirements.
In addition, the Department pointed to existing mechanisms for
subscription television licensees to apply to the ACMA to exempt channels from
captioning obligations on the grounds that providing captioned services would
result in unjustifiable hardship. The Department concluded that 'an automatic
exemption process would save both the licensees and the ACMA resources in
completing and considering applications'.
Some submitters raised concerns in relation to this provision arguing
that captioning obligations are well established and that there are already
mechanisms for exclusions contained in the BSA making the proposed change
For example, the Age and Disability Discrimination Commissioner commented:
We do not think that is justified. Captioning, as witnesses
have commented this morning, has been around for 30 years. It is not new or
unknown technology. A new licensee seeking to come into this sector should be
well aware of captioning requirements and how it works and we do not see that
there is a case for that exemption.
Media Access Australia provided the following comments on the existing
The present channel quota system allows licensees to
designate new channels as being excluded and not subject to captioning
requirements. This takes it a step further and makes it so a new channel is
automatically exempt for at least a year. Furthermore, the drafting of the
clause is very loose in defining a new channel and would be subject to dispute.
The current arrangements already give the licensees freedom
to choose which channels they want to caption. If they feel a new channel
needed to be exempt from caption requirements for whatever reasons, they can do
this. We believe this amendment is unnecessary and should be removed.
Similarly, the CPSU submitted that it is unclear why the proposed change
is necessary given the arrangements already in place. The CPSU went on to state
that it was concerned that the change:
...will only reinforce the treatment of captioning as an
afterthought. Rather than making it easier to get an exemption, broadcasters
should be encouraged to include captioning from the establishment of a new
channel and to build-in systems and procedures that can be scaled up to make
sure that captioning is part of the production process from the beginning.
Mr Miers, from Deaf Australia, also questioned why the exemption had
been included in the bill and stated that:
Access...should be a forethought for all people. If they are
exempt then consumers miss out on information, and in our view that is
discrimination in terms of access to information and not in line with the
Convention on the Rights of Persons with Disabilities.
On the other hand, ASTRA submitted that:
...it is reasonable for a new [subscription television] channel
to have a short period of grace to build up its captioning infrastructure and
processes as well as invest in the acquisition and/or production of captioning
for its programming.
Ms Sophie Jackson from Foxtel explained in evidence to the committee
that the exemption was needed to allow new channels to launch subscription
television that do not have captioning capability:
There are approximately 93 discrete channels on the Foxtel
platform. Of those channels, Foxtel actually controls only 20 or so, and the
other channels provided on our platform are represented by a wide, diverse
group of channel providers...there are also smaller, niche channels that do not
have the same resources as a group such as Discovery or Disney. We have
community channels—the Australian Christian Channel, Aurora, and a number of
other channels—that do not have that capability. What we are suggesting is: you
allow the new channel exemption. It will remove a barrier to entry to some of
those diverse, niche channels that wish to launch channels on subscription
In addition, Mr Maiden from ASTRA noted that the proposed amendments 'would
effectively formalise an arrangement that is already in place. In 2013–14, for
instance, the ACMA was asked to consider 41 applications for exemptions and
granted all of them'.
Quality of live captioning – live
and pre-recorded broadcasts
Proposed subsections 130ZZA(2A) and (2B) would allow the Captioning
Quality Standard to differentiate between live and pre-recorded broadcasts. The
Captioning Quality Standard sets rules about the quality of captions for
television services requiring them to be readable, accurate and comprehensible.
The Department noted that the proposed new subsections:
...make it clear that free-to-air broadcasters and subscription
television licensees must aim to achieve the same captioning quality regardless
of whether the program, or program material, was live or pre-recorded. The
amendment recognises that while captioning for live programs should aim to meet
the same high standard as pre-recorded programs, the added challenges
necessitated by live captioning make this more difficult to achieve in
practice. These constraints should be taken into account in determining whether
a breach has occurred.
Some submitters opposed the proposed changes. For example, the CPSU,
while acknowledging the differences between live and pre-recorded broadcasts,
stated that its members were concerned that live broadcasts by networks may be
used as an excuse for poor quality captioning.
The Australian Communications Consumer Action Network expressed concern
that that proposed subsections 130ZZA(2A) and (2B) are contradictory:
...this amendment is so unclear it is in fact meaningless
because it is contradictory. In subsection 2(a), the amendment allows the ACMA
to determine a standard with consideration to different programming (live and
pre-recorded), while in subsection 2(b) the amendment stipulates that there is
to be no different level of closed caption quality.
The Australian Communications Consumer Action Network went on to state
that the amendments may create different levels of quality for different
programming, specifically for programming which is closed captioned using live
captioning techniques. It commented further:
It is clear from discussion with industry that live closed
caption techniques will be used increasingly for non-live programming. If the
ACMA is to consider closed caption quality based on the delivery method of the
captions, it is reasonable to expect that caption quality, particularly
comprehensibility, will deteriorate proportional to the extent of usage of live
captioning, which is generally of lesser quality. In order for closed captions
to be meaningful, closed captions must be readable, accurate and
comprehensible. Comprehensibility, as defined in the Broadcasting Services
(Television Captioning) Standard 2013, includes the "extent to which
the appearance of the caption coincides with the onset of speech of the
corresponding speaker, sound effect or music".
The ABC and SBS both supported the proposed changes with SBS stating
that the amendment:
...represents a valid and reasonable recognition that applying
the same standards to pre-prepared and live captioning services is unworkable.
For example, some elements of the current Standards have limited application to
live captioning services, including colour, positioning, identification of
individual speakers and sound effects.
ASTRA supported proposed subsection 130ZZA(2A) but opposed the inclusion
of proposed subsection 130ZZA(2B) and argued:
It is illogical to insert subsection 130ZZA(2A), which
provides that the ACMA must consider the differences between live and
pre-recorded programs when determining a standard, and at the same time propose
to insert subsection 130ZZA(2B), which provides that the ACMA is not permitted
to determine a lower quality of captioning is acceptable for such program
Free TV Australia also sought the removal or clarification of proposed
subsection 130ZZA(2B) 'because it seems at odds with the recognition that live
captioning has particular constraints and challenges'.
Issues relating to Schedule 3 – New Eligible Drama Expenditure auditing
Under the New Eligible Drama Expenditure (NEDE) scheme, certain
subscription television licensees, channel providers and partchannel providers
are required to spend at least 10 per cent of their total programming
expenditure on new Australian or New Zealand drama productions or
co-productions. The bill proposes a number of amendments to the existing
regulatory framework including the removal of audit requirements. The
Department noted that the bill does not propose any changes to NEDE
requirements in terms of the obligation and to whom the scheme applies.
Participants will still be required to submit annual returns in the approved
The Department noted there has been a high level of compliance with the
NEDE obligations. In the five most recent reporting periods, where minimum
obligations have not been met, 'expenditure short falls have been minor in
nature and were generally met in the next reporting period'. In addition, the
ACMA had advised that the existing auditing obligations are financially
burdensome, costing an estimated $15,000 per licensee and channel provider per
year, against little compliance benefit. The ACMA also has other mechanisms
available to retain a high level of confidence in industry compliance including
use of its power to make inquiries into the correctness of reports. Further, the
BSA makes it an offence for any licensee, channel provider or part-channel
provider to intentionally contravene its reporting requirements.
The Department concluded that:
In light of the industry's high compliance with the NEDE
scheme and existing compliance incentives in the BSA, the need for additional
auditor checks cannot be justified against the expense borne by NEDE scheme
participants. In this context the repeal of the audit requirement is consistent
with the Government's deregulation agenda to remove unnecessary or inefficient
ASTRA supported removing the requirement for independent auditing of
reports on annual eligible drama expenditure arguing the administrative burden
imposed by this requirement is not warranted in light of the high levels of
compliance in this area:
Importantly, relevant [subscription television] channel
providers and licensees will continue to be required to submit annual reports
to the ACMA at the end of each financial year. These annual reports will include
data on the total drama expenditure incurred by relevant channels/licensees,
and detailed reporting on their eligible drama expenditure.
The submission of these annual reports must not be false or
misleading. Licensees and channel providers take their legal obligations in
this regard very seriously. Indeed, the industry regards the telling of
Australian stories as crucial to its appeal to subscribers.
However, Screen Producers Australia questioned whether sufficient
information was available to demonstrate that removal of auditing requirements
was the best approach:
All regulation requires some administrative processes and a
high-level of compliance is not reason enough to remove the auditing
requirement. The relative costs and benefits have not been clearly communicated
and importantly, the degree to which the high-level of compliance has been
achieved as a result of the auditing requirement remains unclear.
The CPSU also questioned whether a 'spot check' approach was sufficient
to ensure compliance.
The CLC suggested that if mandatory auditing requirements are to be removed, the
ACMA should undertake regular compliance monitoring regarding the subscription
television industry's commitment to Australian and New Zealand drama
productions and co-productions. The CLC argued that 'although there has been a
high level of compliance with these regulatory requirements to date, this does
not necessarily mean that these levels of compliance will be attained in the
future in the absence of robust regulation'.
Screen Producers Australia also supported compliance auditing by the
ACMA if the amendments are passed. Mr Matthew Deaner commented:
I think you would want to have a requirement on the ACMA to
be auditing frequently, or at least the motivation for participants in the
scheme to be concerned that the ACMA might audit it frequently, and that would
need to be demonstrated in terms of a regularity of audits and maybe a degree
of uncertainty in the participants.
A significant number of the submitters to the inquiry expressed concern
that there had been a lack of adequate consultation in relation to the proposed
amendments to captioning obligations and NEDE scheme audits. For example, Mr Miers
from Deaf Australia stated that while he had participated in a teleconference
with the Department after the release of the bill:
...we did not have an opportunity to provide any detailed
feedback. They [the Department] just told us what the proposed changes were
going to be. I do not believe that there has been any adequate or appropriate
consultation with consumers or broadcasters.
A number of submitters stated that there should be ongoing consultation in
relation to the proposed measures in the bill and captioning requirements.
Mr Miers from Deaf Australia argued that the legislation should be deferred to
allow for full consultation with the deaf community:
We recommend that this legislative amendment be deferred in
order to have fully inclusive consultation with the consumer community. We are
the users of the captions, and there has been no consultation with deaf people.
They have a lot to say.
The Age and Disability Discrimination Commissioner agreed that the
captioning amendments in the bill should be delayed pending further
It is an area where there is a lot of specialist interest
that a person who does not have deafness cannot readily grasp without that
consultation. I know that I myself have been very well informed by discussions
with the consumers of this, and I would not have had that knowledge beforehand
and I think we are all in that boat. So I would strongly endorse consultation
around the issue of the reporting and what should go into it.
Mr Varley from Media Access Australia noted that the bill proposes to repeal
the provisions requiring the ACMA to undertake a captioning review by 31
December 2015. As a consequence, Mr Varley argued, while the bill is useful in
that it raised the need for reform:
...we think that the best approach for dealing with this whole issue
is to allow the statutory review to be undertaken by the ACMA this year. But I
think this committee has a very valuable role in helping to guide the key
issues that the ACMA should really focus on...
I think there needs to be more consultation to tease out what
the real issues are, and I think that probably also goes across to both the
television stations and their suppliers, because there is some subtlety in the
way that these things actually work in practical terms which is quite difficult
to capture in a legalistic framework for a piece of legislation, and I think
that needs to be consulted further.
Mr Deaner from Screen Producers Australia argued that there had also
been a lack of adequate consultation in relation to the proposed to removal of
the audit requirements for the NEDE Scheme:
Overall, it would seem that the bill calls for an
all-or-nothing approach, and greater consultation would have allowed us to
discuss how to alter the requirements so that they are less onerous, for
example—if they are considered onerous through that discussion—or how audits or
other types of inquiries may or may not occur. But here we are left with an
amendment in which we have no further information.
Dr Pelling, Department of Communications, acknowledged in evidence to
the committee that consultation in relation to the proposed measures in the
bill could have been improved:
This is a deregulation bill, and we had a range of
discussions with industry and with the Australian Communications and Media
Authority in the lead-up to preparation of the bill. Subsequent to the bill
being introduced, we had a number of discussions with various access
stakeholders on the issues in the bill. I think it is true to say that in an
ideal world we would have preferred to have an exposure draft; but, given the
timing of the process and the way the bill was developed, an exposure was not
able to be released. This committee provides another opportunity for us to hear
the views of the various stakeholders, and we will certainly consider what
people say very seriously and we have looked at these submissions as well.
In response to a question on notice, the Department provided the
following information about its consultation process
The Department of Communications met with the Australian Communications
Consumer Action Network on 15 May 2014, and Media Access Australia on 4 June
2014, on proposed amendments to captioning legislation.
Following the introduction of the Bill the Department met
with the Australian Human Rights Commission on 31 October and with Media Access
Australia, Australian Communications Consumer Action Network, Deafness Forum of
Australia, Deaf Australia, and the Australian Federation of Disability
Organisations on 21 November 2014. People with a Disability Australia Incorporated
were also invited but did not participate.
The Australian Communications and Media Authority met with
Media Access Australia on 9 April 2014, and also participated in the
Department’s 4 June 2014 meeting with that organisation, on proposed amendments
to captioning legislation.
The committee also notes that the Explanatory Memorandum states that,
from December 2013, a review has been conducted by the Department and the ACMA
resulting in it no longer being necessary or appropriate to conduct a
comprehensive statutory review that considers the operation of Part 9D.
The committee considers that the measures in the bill will contribute to
easing regulatory burden on the broadcasting industry while maintaining
important protections for consumers and accessibility to television services for
persons with disabilities.
The committee acknowledges that access to captioning is of fundamental
importance to the deaf and hearing impaired communities. The committee notes
that a number of submitters expressed concern that captioning availability and
quality would decline due to the proposed removal of annual reporting by
free-to-air broadcasters in respect of captioning. However, the committee notes
that the proposed legislation does not reduce the captioning requirements under
the BSA and consumers will be able to make complaints in relation to any
The committee considers that convincing evidence was not received that
the move to a complaints based system will reduce compliance and lead to a
reduction in the quantity or quality of captioning per se. By contrast
there is persuasive evidence from the free-to-air broadcasters that the
proposed amendments to reporting requirements will significantly reduce the
regulatory burden associated with onerous and unnecessary reporting. In
addition, the committee notes that complaints systems maintained by
broadcasters will allow for the timely receipt of complaints and thus allow
systemic issues to be quickly identified and rectified.
Some submitters expressed concern regarding proposed subsections
130ZZA(2A) and (2B) which would allow the Captioning Quality Standard to
differentiate between live and pre-recorded broadcasts. However, the committee
considers that the new subsections will provide a process for determining
captioning standards that takes into account differing standards that may apply
to live and pre-recorded programs while aiming to achieve the same captioning
The committee similarly notes concerns raised by some submitters in
relation to the proposed averaging of captioning requirements across subscription
sports channels, exemptions for new channels and the exemption for quality
breaches due to technical or engineering failures. The committee also
acknowledges that some broadcasters would have liked to have seen broader or
more comprehensive amendments. However, the committee considers, based on
current information, that the bill represents the right balance between
providing access to captioning and providing sufficient flexibility to the
broadcasting industry. The committee acknowledges that in many cases both
free-to-air and subscription broadcasters are going above and beyond their
mandated captioning requirements. Such efforts are to be applauded.
A number of submitters raised concerns regarding the removal of the
audit requirements for the New Eligible Drama Expenditure Scheme. However, the
committee considers that there is no compelling evidence to suggest that
removal of the auditing requirement will lead to a reduction in compliance and
notes that there are other mechanisms available within the BSA to address
The committee notes that a large number of submitters indicated that that
the consultation processes in relation to the bill had been inadequate. The
committee agrees that the breadth of consultation in relation to this bill has
been insufficient. As a consequence, the effect of some proposed amendments
appear to have been misunderstood and inadequate attention was given to a range
of serious concerns and interests.
This lack of comprehensive consultation was acknowledged by the
Department of Communications in its evidence to the committee. The committee is
of the view that if there had been a greater degree of consultation this would
have led to increased understanding of the scope and potential impact of the
Finally, the committee notes that there are a number of other proposed
measures in the bill that were not the focus of submissions but nevertheless
received support through submissions and evidence.
The committee recommends, noting the concerns regarding the adequacy of
consultation, that the bill be amended to require the Australian Communications
and Media Authority to undertake a review of the operation of the captioning
requirements under the Broadcasting Services Act 1992 by 31 December
The committee recommends that, subject to the proposed amendment, the
Broadcasting and Other Legislation Amendment (Deregulation) Bill 2014 be
Navigation: Previous Page | Contents | Next Page