Exemption: Captioning - Free to air television

Application for Exemption under Section 55 of the Disability Discrimination Act (1992)

DISABILITY DISCRIMINATION ACT 1992 (Cth), Sections 55(1) and 55(1A)

By this instrument, the Human Rights and Equal Opportunity Commission grants a temporary exemption to ABC, SBS, Network Ten, Channel Nine and the Seven Network pursuant to sections 55(1) and 55(1A) of the Disability Discrimination Act 1992 (‘DDA') in relation to captioning of free to air television programming.

THE APPLICATION

By email on 9 May 2008 Free TV Australia, on behalf of its member networks and ABC and SBS TV, applied for exemption from the effect of section 24 of the DDA so far as it requires captioning of television programs, as follows:

The Applicants seek an exemption until 31 November 2008 on condition that each of the Applicants continue to implement the following undertakings in relation to its own services:

  • All broadcasters to caption programs (other than sport) that commence in prime time until their conclusion.
  • Seven, Nine and Ten to continue to caption all new P and C programs.
  • ABC to continue to caption all new schools programs. ABC to continue to caption new Australian pre-school and children's programs with an annual target of 50 hours.
  • ABC to continue to caption new overseas children's programs with an annual target of 50 hours.
  • ABC will caption approximately 1000 hours of pre-school and children's programs broadcast annually.
  • Broadcasters to continue to closed caption a minimum of 70% of programs broadcast to the end of the exemption.
  • The percentage measurement to apply to programs broadcast on the broadcaster's primary channel between 6am and midnight, measured on an annual basis.
  • Programs do not include advertising, sponsorship or promotional material, or community service announcements.
  • Captioned programs include foreign language subtitled programs.
  • Hours of programs broadcast exclude foreign language programs exempted by section 38(4B) of the Broadcasting Services Act 1992 .
  • In addition, in relation to the ABC, the percentages apply to all nationally transmitted programs broadcast. In addition to these nationally transmitted percentage targets, the ABC will continue to caption all state and territory news and current affairs programs (approximately 1500 hours of captioned programs annually).
  • Broadcasters to report to the Human Rights and Equal Opportunity Commission by the end of October 2008 on implementation of these undertakings.
  • Support by broadcasters for actions seeking to improve the quality of captions.

DECISION OF THE COMMISSION

The Commission hereby grants a temporary exemption pursuant to sections 55(1) and 55(1A) of the DDA in the following terms:

The Commission grants an exemption from the DDA so far as it relates to the captioning of television programming by the ABC, SBS, Network Ten, Channel Nine and the Seven Network, for a period of 12 months, subject to conditions as proposed by the applicants, but with the additional conditions in relation to each broadcaster that:

  • measured over the last month of the exemption, the level of captioning should average at least 75 per cent of programming over the broadcast day (6a.m. to midnight);
  • the Commission be notified within 1 month of this decision of the broadcaster's commitment to implement the terms of this exemption; and
  • captioning levels be reported to the Commission each 3 months during the exemption period, and at the conclusion of the exemption period (rather than by October 2008 as proposed by the applicants); and
  • each broadcaster, or Free TV Australia on behalf of one or more broadcasters, to have liberty to apply for an exemption on varied terms at any point during the exemption period.

CONSIDERATION AND REASONS

In making its decision, the Commission had regard to the terms and objects of the DDA and the followin documetns available on its website:

  • the application
  • submissions in response to the application
  • a recommendation from its Director of Disability Rights Policy included as Schedule 1 below.

REVIEW OF DECISION

Subject to the Administrative Appeals Tribunal Act 1975 , application may be made to the Administrative Appeals Tribunal for a review of the decision to which this notice relates by or on behalf of any person or persons whose interests are affected by the decision.

Dated this 27th day of August 2008

Signed by Commissioner Graeme Innes AM, on behalf of HREOC.

SCHEDULE 1: RECOMMENDATION

Recommendation for temporary exemption under section 55 of the Disability Discrimination Act: Free to air television captioning

This is to recommend that the Commission grant an exemption from the DDA so far as it relates to the captioning of television programming by the ABC, SBS, Network Ten, Channel Nine and the Seven Network, for a period of 12 months, subject to a number of conditions as proposed by the applicants (and included as an attachment to this recommendation), but with the additional conditions in relation to each broadcaster that:

  • measured over the last month of the exemption, the level of captioning should average at least 75 per cent of programming over the broadcast day (6a.m. to midnight);
  • the Commission be notified within 1 month of this decision of the broadcaster's commitment to implement the terms of this exemption; and
  • captioning levels be reported to the Commission each 3 months during the exemption period, and at the conclusion of the exemption period; and
  • each broadcaster, or Free TV Australia on behalf of one or more broadcasters, to have liberty to apply for an exemption on varied terms at any point during the exemption period.

Application

By email on 9 May 2008 Free TV Australia, on behalf of its member networks and ABC and SBS TV, applied for exemption from the effect of section 24 of the DDA so far as it requires captioning of television programs, as follows:

The Applicants seek an exemption until 31 November 2008 on condition that each of the Applicants continue to implement the following undertakings in relation to its own services:

  • All broadcasters to caption programs (other than sport) that commence in prime time until their conclusion.
  • Seven, Nine and Ten to continue to caption all new P and C programs.
  • ABC to continue to caption all new schools programs. ABC to continue to caption new Australian pre-school and children's programs with an annual target of 50 hours.
  • ABC to continue to caption new overseas children's programs with an annual target of 50 hours.
  • ABC will caption approximately 1000 hours of pre-school and children's programs broadcast annually.
  • Broadcasters to continue to closed caption a minimum of 70% of programs broadcast to the end of the exemption.
  • The percentage measurement to apply to programs broadcast on the broadcaster's primary channel between 6am and midnight, measured on an annual basis.
  • Programs do not include advertising, sponsorship or promotional material, or community service announcements.
  • Captioned programs include foreign language subtitled programs.
  • Hours of programs broadcast exclude foreign language programs exempted by section 38(4B) of the Broadcasting Services Act 1992 .
  • In addition, in relation to the ABC, the percentages apply to all nationally transmitted programs broadcast. In addition to these nationally transmitted percentage targets, the ABC will continue to caption all state and territory news and current affairs programs (approximately 1500 hours of captioned programs annually).
  • Broadcasters to report to the Human Rights and Equal Opportunity Commission by the end of October 2008 on implementation of these undertakings.
  • Support by broadcasters for actions seeking to improve the quality of captions.

Background

On 28 May 2003, the Commission decided to grant the same applicants an exemption for a period of 5 years, that is to 28 May 2008, subject to a number of conditions, including:

  • Implementation of staged increases in captioning to reach minimum levels of 55% by the end of 2005 and 70% by the end of 2007 (based on a broadcast day of 6am to midnight);
  • Continued captioning of all programs which commence in prime-time until their conclusion (other than sporting programs);
  • Priority to captioning of pre-school and children's programming
  • Support by the applicants for actions by government to improve availability of caption decoding and recording capability in television and related equipment;
  • Reporting by the applicants during the exemption period on progress in implementing the conditions of the exemption; and
  • Commencement by broadcasters by the end of 2006 of a review in consultation with deafness representative organisations of possibilities for further increases in captioning at the expiry of the exemption.

The most recent reporting on behalf of the applicants indicates that the targets set in the 2003 exemption are being met. The application refers to figures averaged for the year 2007 indicating captioning levels as follows:

  • Seven Network: 70.5%
  • Nine Network: 72%
  • Network Ten: 71.3%
  • ABC: 74%
  • SBS: over 70%.

The application also refers to significant gains in particular in the captioning of children's programs, with over 1400 hours of pre-school, children's and schools' programs captioned.

The applicants note that they are also subject to captioning requirements under the Broadcasting Services Act. They refer to the review of captioning and other media access issues announced on 12 September 2007 by the then Minister for Communications, Information Technology and the Arts, which as announced was scheduled to be completed by 30 April 2008. The applicants state they had anticipated the completion of this review within the term of the exemption granted by the Commission would provide certainty as to captioning requirements. They note that the timetable for this review has been revised, with the Minister for Broadband, Communications and the Digital Economy having released a formal consultation paper on 30 April 2008 and that consequently it became clear that the Government's review process would not be completed by the date of expiry of the initial exemption on 28 May 2008.

The applicants in applying for a further short term exemption state:

Broadcasters are mindful of the objects of the DDA and the need for any exemption to be consistent with those objects. Broadcasters are supportive of the Government's review into access to electronic media as the best means to build on the significant achievements made to date in terms of television captioning. In this way, the full commitment of broadcasters to the Government's review, which would be more certain in the absence of a formal complaints process, is consistent with the objects of the DDA.

The history of captioning on free to air television has been one of cooperation and negotiation. The Government review offers all stakeholders an opportunity to have their positions heard and considered as part of a single, cohesive consideration of the way forward on television captioning.

It would be counterproductive if broadcasters were also bound to the formal complaints process under the DDA whilst the review was proceeding. To have television captioning simultaneously considered through two separate and differing processes would be inefficient for both broadcasters and the deaf and hearing impaired community. It would affect the ability of all parties to commit fully to either process, and to any consequent outcomes or agreements. To have key stakeholders involved in the formal complaints process under the DDA at the same time a milestone Government review was taking place would not benefit the review or any of those stakeholders.

The protection and certainty of an exemption under the DDA will provide broadcasters with the best opportunity to focus on and participate productively in the Government's review. This provides the best opportunity for a mutually supported and productive outcome on the way forward for television captioning, which would be of benefit to both broadcasters and the deaf and hearing impaired.

Submissions

In accordance with the Commission's policy on exemption applications, a notice of inquiry and call for submissions was published on 13 May 2008. Submissions were received from 3 organisations (Deaf Australia, Deafness Council of Australia and the Deafness Council of Western Australia) and two individuals. Each submission opposed granting an exemption. Submissions indicated the following reasons in summary against granting an exemption:

  • although the substantive requirements of the previous exemption in providing increased captioning had been met (for which the applicants were commended), it was argued that the condition requiring a review in consultation with deafness sector organisations of options for further increases in captioning had not been adequately met
  • the applicants had not indicated commitment to further increases in captioning into the future but only to the results and processes of the current Government review
  • the outcomes of the current Government review could not be assumed
  • the Commission should not conclude that it would be consistent with the objects of the DDA to grant a further exemption in the terms applied for.

Discussion

As the applicants state in their application, and as is acknowledged in submissions in response, the increased levels of captioning now available to viewers of free to air television in Australia represent a notable instance of achievement of the objects of the DDA through a co-operative approach between industry and people with disability, and through the framework provided by the processes of the DDA including the provision for granting of temporary exemptions.

As also noted in the application this has been achieved in and perhaps despite a complex and in some respects uncertain regulatory environment, which is currently under examination by the review being conducted by the Department of Broadband, Communications and the Digital Economy.

One possible approach, taking into account the importance of the review being conducted by the Department and the existence of overlapping regulatory regimes and legal responsibilities in this area, would be for the Commission to defer a decision in this matter pending further progress in that review.

Another approach would be to accede to the request of the applicants to grant an exemption which in effect preserves, or restores so far as possible, the status quo as obtaining as at 28 May 2008 immediately prior to the expiry of the exemption granted by the Commission on 28 May 2003.

In my view however, while the relevance of the Departmental review should be acknowledged, it would be inappropriate for the Commission, as the body with responsibility for considering the exemption application before it, either to in effect decline to consider that application pending the (as yet undetermined) outcome of consideration of the same issues by another process, or to in effect delegate its decision on the current application to that other process.

The applicants, taking into account the existence and importance of the Departmental review, sought a short term exemption under the DDA pending the conclusion of that review.

In my view it would be consistent with the objects of the DDA for the Commission to grant an exemption - not in terms which preserve or reinstate the status quo as at 28 May 2008 in full, but which maintain the same rate of progress towards equality of access as provided by the previous exemption.

The principal condition on the previous decision of the Commission, which granted an exemption with broad disability community support, required annual increases in captioning levels of approximately 5%.

The initial application sought an exemption up to 31 November 2008 (with no requirement for further increases in captioning during that period).

To grant an exemption for the three months remaining to 31 November 2008 with an annual rate of increase of 5% would involve setting a required captioning level of 71.25%.

It is my view however that it would be more appropriate to grant an exemption for a longer period of 12 months, and thus, while maintaining the same rate of increase, provide for the higher required level of 75% captioning.

The Directors of Legal Services and Complaint Handling are in agreement with my view that, once the Commission's jurisdiction has been enlivened by an application, it is open to the Commission to grant an exemption for a longer period than has been applied for (just as it is possible to grant an exemption for a shorter period than applied for), in instances where this would promote the objects of the Act.

Most broadcasters already appear to be achieving captioning at or near the 71.25% level, and granting an exemption in these terms might thus be seen as not significantly promoting the objects of the Act.

Conversely, in the case of any broadcaster not already achieving this level of captioning, it is not clear whether a three month period would allow sufficient time to make arrangements for new captioning and thus whether the exemption would achieve its intended effect in practice.

An exemption to November 2008 requiring 71.25% captioning would also involve no provision being made for achieving further increases beyond that time and that level (at least in the event that the Departmental review is not completed and its results implemented by then).

The exemption which I recommend does make such provision, in a manner consistent with the level of progress required by the Commission's previous decision and successfully implemented by broadcasters and supported by disability community representative bodies - without, of course, constraining decisions which might be made by Government and Parliament, following the conclusion of the Departmental review (including possible further provision in relation to captioning under the Broadcasting Services Act).

David Mason
Director Disability Rights Policy HREOC