Request for comment by ASTRA on issues raised

4  June 2010

Ms Petra Buchanan
Chief Executive Officer
Australian Subscription Television & Radio Association
55 Pyrmont Bridge Road

Dear Ms Buchanan

I refer to the application received from the Australian Subscription Television and Radio Association (ASTRA) dated February 2010 seeking an exemption under section 55 of the Disability Discrimination Act 1992 Cth (DDA)in relation to the provision of captioning for people who are Deaf or have a hearing impairment on subscription television.

After receiving ASTRA’s application, the Commission invited interested parties to make submissions on the application. The Commission received 7 submissions on Astra’s application. These submissions are available on the Commission’s website at

Before finalising the application the Commission would like to provide the Applicants with an opportunity to clarify a number of proposals in the application and respond to a number of questions raised in submissions.

In order to ensure continuing transparency in assessing ASTRA’s application, this letter will be placed on the Commission’s website. I will also place any response that Astra makes to this letter on the Commission’s website.

So that the Commission may continue its consideration of this matter, please respond to the following questions.

  1. The application states that ‘an obligation to caption all programming on all channels would be financially prohibitive.’

In assessing the exemption application the Commission must consider the reasonableness of the exemption sought by weighing up the nature and extent of the discriminatory effect against the reasons advanced in favour of an exemption. Part of that assessment includes looking at whether, on balance; the proposal represents sufficient and timely progress towards meeting the objects of the DDA.
While the Applicants assert the proposal is reasonable and that captioning levels above those proposed would be financially prohibitive the application does not provide the Commission with any information to assist in assessing such a claim.
In order to assist the Commission in it’s consideration of the application, with respect to each Applicant, please provide details of:

    1. the Applicant’s profit for the financial year 2009/2010; and
    2. the amount that the Applicant spent on captioning in the 2009/2010 financial year.
    1. Please comment on the proposal put forward by a number of submissions that service providers, such as the Applicants, should spend 1% of their annual turnover on the provision of captioning.


    1. Schedule 1 of the application outlines in relation to each channel operated by the Applicants the percentage of the service proposed to be captioned under the exemption. Please provide information on how these percentages were determined including any documents used or created in determining the proposed percentages of captioning.
    1. Please comment on the claim made in a number of submissions that under the proposed exemption:


      1. many channels, including: Arena, Nickelodeon, Discovery, Fox News, Animal Planet, Disney, Nick Jnr, the Comedy Channel and E! may be captioned at a lower level in the first year of the exemption than are captioned today; and
      1. some channels including: Animal Plant, Disney, Turbo Max and all Showtime Movies channels except Showtime Comedy and Showtime Drama may be captioned at lower levels at the conclusion of the exemption period in 2015 than are captioned today (Media Access Alliance (MAA) submission, p 4-10).


    1. A number of submissions propose that any exemption granted to the Applicants should be conditional on an undertaking that the Applicants will not reduce captioning levels on any channel below the level at which captioning is currently provided. Please advise whether the Applicants would be prepared to provide such an undertaking.
    1. Several of the submissions express concern about the proposal that Applicants be allowed to aggregate (or pool) captioning percentages. These submissions suggest that under this proposal an Applicant could caption one channel at a very high level and not caption the rest of its services. Please advise what, if any, measures ASTRA members will put in place to ensure that Applicants will provide captions on each channel at the percentage proposed by the exemption.


    1. A number of submissions claim that the Applicants have not provided sufficient reasons to support their proposal that 26 channels should be exempt from the obligation to provide captions for the period of the exemption. MAA, for example, argues that it is not difficult or expensive to caption many of the types of programs described, including live captioning, and that captioning has been provided on some of these types of services overseas (such as BBC World News and  MTV UK). If the Applicants are of the view that no captioning can be provided on any of the exempt channels, please provide detailed reasons to support this submission.
    1. Please outline what plans, if any, are proposed to provide captions on Foxtel’s download service. If downloaded programs are to be captioned, please advise what percentage of programs will be captioned and when this service will commence.


    1. Please comment on the proposal in a number of submissions that reporting to the Commission about compliance with the exemption should be conducted by an independent entity and should occur quarterly rather than annually..
    1. Please comment on the proposal that any new channel launched during the exemption period should have to make a separate application for an exemption rather than be deemed to be included in any existing exemption.


    1. Please comment on the proposal that the exemption may be granted for a shorter period than the proposed five years (such as two years or three years) to coincide with possible Government action arising out of the investigation into Media Access
    1. If you wish to make any comments on the submissions received by the Commission or provide further submissions in support of the application, please do so.


    If in responding to these questions the Applicants wish to submit revised proposals for the provision of captioning, please provide a schedule of these revised proposals.

    In addition, while not an issue covered by the application, the Commission would also welcome information on what plans, if any, ASTRA members have to introduce audio description.

    I appreciate the need to finalise the application as soon as possible and would welcome ASTRA’s response by 30 June 2010.

    If you have any questions about this matter, please contact me by email at

    Yours sincerely

    Michael Small
    Acting Director
    Disability Rights Unit