Temporary Exemption: Free to air television captioning (no.3)

HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION

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

By this instrument, the Human Rights and Equal Opportunity Commission (‘the Commission') grants a temporary exemption to ABC TV; SBS Television; Network Ten; Channel Nine;  and the Seven Network pursuant to section 55(1) of the Disability Discrimination Act 1992 (Cth) in relation to captioning of television programs.

DECISION OF THE COMMISSION

The Commission grants an exemption as set out in schedule 1.

CONSIDERATION AND REASONS

In making its decision, the Commission relied upon the following documents available on its website:

  • The application
  • Submissions provided by other persons and organisations.
  • A recommendation provided by its Director of Disability Rights policy (attached as schedule 3).

The Commission adopts the reasoning provided in this recommendation, which sets out the Commission's consideration of this application.

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 13th day of October 2008

Signed by Commissioner Graeme Innes AM, on behalf of the Commission


SCHEDULE 1: EXEMPTION GRANTED

The Commission grants an exemption for the period to 31 December 2011 to:

•  ABC TV;

•  SBS Television;

•  Network Ten;

•  Channel Nine;

•  and the Seven Network

from section 24 of the DDA so far as it relates to the captioning of television programming, on conditions as set out below.

Conditions

1. The exemption is subject to the conditions as proposed by the applicants (and included as schedule 2 to this decision). Without excluding other conditions proposed by the applicants, in particular the exemption is subject to the condition in relation to each broadcaster that, m easured at the end of each calendar year of the exemption, the level of captioning on each broadcaster's primary channel should average at least:

    • 75% of programming over the broadcast day (6am to midnight) for the period ending 31 December 2009;
    • 80 % of programming over the broadcast day (6am to midnight) for the period ending 31 December 2010; and
    • 85% of programming over the broadcast day (6am to midnight) for the period ending 31 December 2011;

    2. The exemption is subject to the further conditions that

      • By 30 June 2009 broadcasters are to report to the Commission on the results of consultation with deafness organisations including Deaf Australia and the Deafness Forum of Australia, on proposals to address issues regarding accuracy of captioning;
        • By 30 June 2010 broadcasters are to report to the Commission on consultation with deafness organisations including Deaf Australia and the Deafness Forum of Australia, on total captioning hours being achieved, that is, including the period between 12 midnight and 6 am, having regard to any publicly available data, including information published through Media Access Australia, and any further information which may be provided by broadcasters. (This requirement to consult does not involve a requirement to achieve any particular level of captioning between midnight and 6am during the exemption period);
          • By 31 December 2010  broadcasters are to report to the Commission on consultation with deafness organisations including Deaf Australia and the Deafness Forum of Australia, on captioning levels  being  achieved on secondary channels, having regard to any publicly available data, including information published through Media Access Australia , and any further information which may be provided by broadcasters. (This requirement to  consult would not impose a requirement to achieve any particular level of captioning  on secondary channels  during the  exemption period);
            • By 31 December 2010  broadcasters are to commence consultation with deafness organisations including Deaf Australia and the Deafness Forum of Australia, and the Commission, in order to review possibilities for further increases in captioning at the expiry of the exemption  period, and are to report to the Commission on the results of that review by  30 June 2011,

            with the exemption ceasing to operate, in relation to a broadcaster failing to comply with a condition of the exemption, from the date of any such failure.


            SCHEDULE 2: PROPOSAL BY APPLICANTS

            PROPOSAL FOR EXEMPTION

            The Applicants seek an exemption until 31 December 2011 in relation to captioning of free to air television programming on all of the Applicants' own services. The exemption is sought on condition that each of the Applicants 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 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.
            • Measured at the end of each calendar year of the exemption, the level of captioning on each broadcaster's primary channel should average at least:
              • 75% of programming over the broadcast day (6am to midnight) for the period ending 31 December 2009;
              • 80% of programming over the broadcast day (6am to midnight) for the period ending 31 December 2010; and
              • 85% of programming over the broadcast day (6am to midnight) for the period ending 31 December 2011.
            • Applicants to report on the level of captioning on primary channels (6am to midnight) to the Human Rights and Equal Opportunity Commission at the end of each calendar quarter. First report to be provided for the period ending 31 December 2008 by the end of January 2009.
            • Applicants to report to the Human Rights and Equal Opportunity Commission by the end of January 2009, 2010, 2011 and 2012 on overall progress in implementing this proposal.
            • 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 clause 38(7) of Schedule 4 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 (currently, approximately 1500 hours of captioned programs annually).
            • Support by broadcasters for actions seeking to improve the quality of captions.

            SCHEDULE 3: RECOMMENDATION AND REASONS

            1. Recommendation

            This is to recommend that the Commission grant an exemption from section 24 of 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. This exemption would replace the exemption granted by the Commission on 27 August 2008 regarding the same parties

            The recommended exemption is for the period to 31 December 2011.

            The exemption is recommended subject to a number of conditions as proposed by the applicants (and included as an attachment to this recommendation), including in particular the condition in relation to each broadcaster that, m easured at the end of each calendar year of the exemption, the level of captioning on each broadcaster's primary channel should average at least:

              • 75% of programming over the broadcast day (6am to midnight) for the period ending 31 December 2009;
              • 80 % of programming over the broadcast day (6am to midnight) for the period ending 31 December 2010; and
              • 85% of programming over the broadcast day (6am to midnight) for the period ending 31 December 2011;

              and with the additional conditions that

              1. By 30 June 2009 broadcasters are to report to the Commission on the results of consultation with deafness organisations including Deaf Australia and the Deafness Forum of Australia, on proposals to address issues regarding accuracy of captioning;
              2. By 30 June 2010 broadcasters are to report to the Commission on consultation with deafness organisations including Deaf Australia and the Deafness Forum of Australia, on total captioning hours being achieved, that is, including the period between 12 midnight and 6 am, having regard to any publicly available data, including information published through Media Access Australia, and any further information which may be provided by broadcasters. (This requirement to consult does not involve a requirement to achieve any particular level of captioning between midnight and 6am during the exemption period);
              3. By 31 December 2010  broadcasters are to report to the Commission on consultation with deafness organisations including Deaf Australia and the Deafness Forum of Australia , on captioning levels  being  achieved on secondary channels, having regard to any publicly available data, including information published through Media Access Australia , and any further information which may be provided by broadcasters. (This requirement to  consult would not impose a requirement to achieve any particular level of captioning  on secondary channels  during the  exemption period);
              4. By 31 December 2010  broadcasters are to commence consultation with deafness organisations including Deaf Australia and the Deafness Forum of Australia, and the Commission, in order to review possibilities for further increases in captioning at the expiry of the exemption  period, and are to report to the Commission on the results of that review by  30 June 2011,

              with the exemption ceasing to operate, in relation to a broadcaster failing to comply with a condition of the exemption, from the date of any such failure.

              2. Application and background

              On 27 August 2008 the Commission decided to grant an exemption to Free TV Australia, on behalf of its member networks together with ABC TV and SBS TV. The exemption granted followed an exemption granted by the Commission in 2003, pursuant to which captioning levels had been required to rise to an average of 70 per cent of a broadcast day.

              In its most recent decision the Commission granted an exemption for a period of 12 months, on a number of conditions as proposed by the applicants but with additional conditions including that broadcasters achieve 75 per cent captioning levels measured over the last month of the exemption period. The decision required the applicants to notify the Commission of their acceptance of the terms of the exemption and in the alternative noted that they had liberty to apply for exemption on varied terms.

              The applicants elected to apply for an exemption on varied terms rather than accepting the terms of the exemption granted on 27 August.

              The present applicants seek an exemption on similar terms to the Commission's recent decision but with these important differences:

              • the exemption, while providing for increased captioning at a similar rate to that provided by the exemption granted on 27 August, should be for the period to 31 December 2011 rather than 27 August 2009, and
              • at the milestone points of 31 December 2009, 2010 and 2011 captioning levels should reach an average of 75%, 80% and 85% respectively rather than a single requirement of 75% measured over the month of August 2009.

              Submissions

              In accordance with the Commission's policy on exemption applications, a notice of inquiry and call for submissions was published on 10 September 2008. A joint submission was received from Deaf Australia and the Deafness Forum of Australia, which was also endorsed by the Deafness Council of Western Australia); and from Media Access Australia .

              The joint submission proposes that the Commission grant an exemption but only on different conditions such that

              1. The exemption be granted for the period up to 30 September 2011 and not 31 December 2011 – as a compromise between the 31 December 2011 date and the 1 June 2008 date on which the joint submission argues 85 per cent would have been achieved had an agreement for further increases in captioning at a 5 per cent annual rate been achieved within the life of the Commission's 2003 exemption.
              2. Broadcasters commit to a series of negotiations during 2009 to address outstanding captioning issues identified in the submission, including further movement towards 100 per cent captioning and the adoption of targets based on 24 hour captioning rather than a 6 a.m. to midnight broadcast day
              3. Broadasters commit to completing captioning Quality Guidelines in negotiation with the community sector by the end of 2008 and work with the Austrlaian Communications and Media Authority to have them registered as a Code .

              Media Access Australia , noting that it is not a representative body, refrains in its submission from putting a view on the appropriateness of the captioning levels proposed in the exemption application, but

              1. Notes concerns regarding current and potential decline in captioning levels
              2. Notes that the application does not address all free to air broadcasters
              3. Notes that the Government review might result in higher captioning levels being required under the Broadcasting Services Act during the life of the exemption
              4. Compares Australian experience to higher levels of captioning required overseas.

              Discussion

              In relation to the most recent previous application, submissions opposing the application argued that

              • 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 of media access issues; and
              • the outcomes of the current Government review could not be assumed.

              The Commission's most recent decision responded to those concerns, by granting an exemption for a period extending beyond the expected date of conclusion of the Government review on conditions which included an increase in required captioning to a level of 75 per cent.

              In my recommendation on the previous application, which the Commission accepted, I endorsed the view that an exemption should seek to achieve further increases in captioning levels into the future, rather than awaiting the results of the review currently being conducted by the Department of Broadband, Communications and the Digital Economy. I said, and the Commission accepted, that

              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.

              It remains relevant to note, as I did in my previous recommendation, that a decision by the Commission on this application does not of course constrain 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).

              In that recommendation I also said (as accepted by the decision of the Commission) that:

              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 application now before the Commission in my view responds to the same issues, by seeking an exemption for a period of slightly over 3 years in return for three further 5 per cent increases in captioning levels.

              Date for achievement of 85 per cent captioning: September or December 2011?

              It is understandable that there should be disappointment at any delay in having closer to having equal access to services and facilities taken for granted by all other Australians.

              I note, however, that if this exemption is granted and its conditions implemented, decisions by the Commission to grant temporary exemptions on conditions will have seen captioning levels on free to air television rise from figures of between 38 and 40 per cent (as was and remains the requirement of the legislation specific to the area, the Broadcasting Services Act) to reach 85 per cent. In my view, to achieve this result would clearly be consistent with and promote the objects of the DDA.

              While it would clearly promote the objects of the DDA still more to achieve this result sooner, even if only by three months, the applicants have indicated that the December date is critical to their ability to commit to the 85 per cent level which they have put forward. Rather than refuse the exemption, or grant it on terms which the applicants have already indicated they will not accept, I consider in this instance it would be appropriate to grant the exemption on the terms I recommend.

              Movement beyond captioning of 85 per cent of programming on primary channels over a limited broadcast day

              It is clearly true, as pointed out in the joint submission by disability representative organisations, that captioning of 85 per cent of programming based on an 18 hour broadcast day rather than a 24 hour day, does not amount to fully equal access.

              Further, the exemptions granted by the Commission to date in this area, as well as the exemption now recommended, require captioning only of the primary channel of each network.

              While not all channels broadcast for 24 hours, all primary channels broadcast for longer than the 18 hour broadcast day, even if most viewing occurs within a substantially shorter window. Secondary channels, which did not exist in 2003 when the Commission, broadcasters and the disability community commenced working together to move towards equality of access in this area through the temporary exemption process, are now in operation and may assume increasing importance in future.

              The exemption granted by the Commission in 2003 did recognise that the 70 per cent captioning requirement set in that exemption was not the last word in achieving equality of access. The Commission's 2003 decision required broadcasters, during the exemption period, to develop a proposal for further increases in captioning beyond the exemption period. The joint submission by deafness organisations expresses disappointment with processes and outcomes in this respect, and asks that the Commission set conditions which require negotiation on this issue during 2009.

              The exemption I recommend continues to accept measurement of captioning only over a broadcast day from 6 a.m. to midnight. However, I agree with the view indicated by the joint submission by deafness organisations that captioning of broadcasting outside these hours ought to be placed on the agenda for the future.

              In my view it is clear that, while the Commission's decision in 2003 has assisted in achieving substantial and beneficial increases in captioning, there is room for further refinement in the detail of use of the temporary exemption power in this area.

              The 2003 decision required that “by the end of 2006 broadcasters commence a review in consultation with deafness representative organisations of possibilities for further increases in captioning at the expiry of the exemption”. It did not specify at what point or points during the required review consultation on a proposal ought to occur, or at what point a proposal for action beyond the exemption period ought to be communicated to the Commission.

              The joint submission by deafness organisations suggests that in the context of the present application, these limitations of the Commission's previous decision should be addressed by requiring negotiations between the broadcasters and disability community representative organisations during 2009.

              It is however relevant in my view to note

              1. The Government review which will not necessarily be finalised until well into 2009 is likely to be critically important in determining what actions would be reasonable or necessary beyond the period of the exemption I recommend. Action by government, including through the framework of the Broadcasting Services Act, might well displace any need for substantial further consideration of action within the mechanisms provided by the Disability Discrimination Act, if the Government review established its own requirements or processes for movement towards full equality of access in this area. Alternatively, if the Government review does not result in a framework or mechanisms for substantial further progress, this would itself be an important factor for the Commission in considering whether and on what terms to grant any further exemptions in future.
              2. Information on the current extent of captioning in areas not covered by the recommended exemption – that is, captioning of programs outside the broadcast day, on secondary channels, and by broadcasters who are not party to the current application – would appear highly relevant to the investigation being conducted by the Department of Broadband, Communications and the Digital Economy. I am not convinced, however that it would be a proper use of the Commission's exemption power to set conditions solely for the purpose of gathering information to be used by another body in another process, which in any event has its own facilities for gathering information.
              3. In my view, the principal purpose for which the Commission should consider requiring information on captioning - in areas where the recommended exemption does not set any substantive requirements for delivery of captions – is to inform decisions which the Commission might take in future, and promote informed discussion between the broadcasters, disability representative organisations and other interested and expert parties with a view to further actions which might be undertaken beyond the exemption period and which might be included within the conditions of a future exemption if required. The timetable set out in the additional conditions which I have recommended, and to which the applicants have indicated their agreement, is framed with this in mind.
              4. While allowing longer for consultation to commence than requested by the deafness organisations' joint submission, the timetable contained in my recommended conditions does set a more rigorous timetable than the Commission's 2003 decision in requiring that the Commission receive a report of the results of consultations six months before the end of the exemption period.

              Consultation on captioning code

              The joint submission by deafness organisations recommends that an exemption should be contingent not only on broadcasters working in consultation with the disability community to address captioning quality issues (as was required under the Commission's 2003 decision), but on consultations resulting in a code and this code being registered as a code by the Australian Communications and Media Authority.

              In my view it would be appropriate for the Commission to again include conditions in an exemption which promote consultation on issues in this area, and I have included a recommendation accordingly. I do not think, however, it would be appropriate for the Commission to make the existence of an exemption contingent on the results of negotiations yet to occur or on the endorsement of those results by another regulatory body, at least where that body has not been involved in the consideration of this application.

              Consultations might also be expected to shed further light on whether a code registered with ACMA is the most appropriate mechanism for giving effect to any measures identified as necessary, amongst other options, in a range from adoption of guidelines without regulatory effect, to more formal regulatory action arising from the current Departmental review.

              David Mason
              Director Disability Rights policy
              9 October 2008