Current inquiries and consultations affecting media access

The following inquiries and consultations are current:

• Media Access Review
• Free-to-air digital multichannels captioning and program standards review
• Pay TV submission to the Human Rights Commission on captioning requirements
• Cinemas’ submission to the Human Rights Commission on access requirements
• The Human Rights Commission has rejected the cinemas' exemption application

Media Access Review

The Federal Government is currently operating the Media Access Review, an enquiry into access to electronic media for the hearing and vision impaired.  The inquiry covers television, DVDs, cinema and electronic media (including video on demand and the Internet).

Further information about the Media Access Review.

Free-to-air digital multichannels captioning and content standards review

Background

This consultation is part of a review that the Communications Minister was required to conduct by 1 January 2010 (clause 60C of the Broadcasting Services Act 1992).  A public consultation process closed on 31 December 2009. 

Submissions

Submissions have been posted on the Department of Broadband, Communications and the Digital Economy (DBCDE) website, and you can also download Media Access Australia’s submission here.

Download: MAA's submission to free-to-air digital multichannels captioning and program standards review [Adobe Acrobat PDF - 119.67 KB]

MAA's submission in text format [Rich Text - 81.93 KB]

Issues being considered

• Under the Act digital multichannels are exempt from program standards and captioning regulations until analog switch-off is completed in a license area.
• Any programs that are simulcast with the main channel (for example a program being shown on Nine and Go!) must provide captioning on both channels.  Additionally, if a program was previously shown with captions on the “main” channel and is then repeated on the multichannel controlled by that licensee (eg Seven and 7Two) then the repeated program must also be captioned.  If a multichannel shows a program that was previously captioned on a different main channel, then it is not required to provide captions on the multichannel.
• This means that as each license area becomes digital-only, the multichannels must provide captioning on all prime-time (6.00pm - 10.30pm) and all news and current affairs programs, whenever broadcast.
• The multichannels have a specific temporary exemption from additional captioning quota requirements as part of the Australian Human Rights Commission’s current free-to-air television exemption.
• As Australia has adopted a region-by-region approach to analog switch off, the captioning requirements in the Act would legally apply to a multichannel only as it appears in the digital-only area.  So it would be possible for example, for Go! In a digital-only area such as Mildura/Sunraysia (after 30 June 2010) to have to caption all prime time and all news and current affairs, but Go! In all other areas would not have this requirement.  It should be noted that at present the multichannels broadcast the same content in every location and originate from a single, capital-city source.  There are no unique region-only multichannels.
• Similar rules apply to Australian content and children’s content provisions under the Act and they are also part of the review process (but not covered here).

Report

On 3 June, Senator Stephen Conroy, Minister for Broadband, Communications and the Digital Economy, released the ‘'Content and Access: The future of content standards and captioning requirements on digital television and multichannels: Report'.

The report is the culmination of the Multichannel Review which the Commonwealth Government undertook in anticipation of analogue switchoff. The Government has decided to delay the implementation of minimum captioning and Australian content requirements on digital multichannels until the last region has its analogue signal switched off (which must occur before 31 December 2013).

The Government believes that broadcasters would find it difficult to implement the minimum requirements before the national switchoff. The report indicates that a further Review of Multichannels will be conducted before 31 December 2012, so that the Government can assess how minimum captioning and Australian content requirements should be imposed upon digital multichannels in the future..

Pay TV Submission to the Human Rights Commission on Captioning Requirements

The Australian Subscription Television and Radio Association (ASTRA), the industry body representing subscription television stations, submitted an Application for a 5 year exemption under section 55 of the Disability Discrimination Act (DDA) to the Australian Human Rights Commission (‘the Commission’) in February, 2010.

Background

Section 55 of the DDA allows the Commission to grant immunity from the requirements of the DDA so long as, for example, television broadcasters make reasonable steps to reduce discrimination.  In this case, if the Commission decides that ASTRA has set good enough minimum closed captioning targets—and then subscription television providers keep to their targets, then individuals will not be able to complain about disability discrimination on the part of subscription television providers through the Commission.  

ASTRA’s submission

To read ASTRA’s application for exemption, go to the Australian Human Rights Commission website. 

Issues raised in the submission

1. Broadly-viewed movies, children’s, and entertainment:  70%
2. Mixed genre, high-reach channels:  50%
3. Mixed genre, specialty channels:  40%
4. New channels:  20%
5. Local sport and news:  10%
6. Music channels:  5%

• ASTRA included a range of channels which they want exempt from closed-captioning requirements altogether:

• Aljazeera
• A-PAC
• Aurora Community Channel
• Australian Christian Channel
• BBC World News
• Bloomberg
• CNBC
• CNN
• Eurosport
• Eurosport News
• Expo Channel (shopping Channel)
• Fashion TV
• Fox Sports News
• Setanta Sports
• Sky Racing
• TVN (thoroughbread racing Channel)
• TVSN (shopping Channel)
• Weather Channel

Human Rights Commission releases submissions to the subscription television exemption application

The Australian Human Rights Commission (AHRC) has released submissions to the Australian Subscription Television and Radio Association’s (ASTRA) application on minimum captioning requirements. The application, if accepted, would make ASTRA exempt from complaints under section 55 of the Disability Discrimination Act (Cth) (DDA) in exchange for undertaking to increase the level of captioning on subscription television.

 

The AHRC has released submissions from Media Access Australia, the Deafness Council of Western Australia (DCWA), Vision Australia, the Deafness Forum of Australia, the Disability Discrimination Legal Service (Victoria) (DDLS), Deaf Australia and Accessible Arts NSW.

 

The DDLS argued that the AHRC should reject the application because ASTRA fails to prove how greater levels of captioning would be financially prohibitive, and that its costs were not particularised. The DDLS states that Justice Bell of the Victorian Civil and Administrative Tribunal has observed that the purpose of the Equal Opportunity Act “did not permit the grant of exemptions in order to achieve convenient, economic and practical outcomes, but that the true purpose was to promote equal opportunity and prevent discrimination”. As such, the DDLS argued that the AHRC should only grant an exemption to further the objects of the DDA—that is, when discrimination is reduced.

 

Deaf Australia and the Deafness Forum of Australia were both wary that ASTRA’s proposed undertakings may actually directly lead to decreased levels of captioning in some instances. They were both also wary that the proposed channel ownership provisions, whereby a channel owner could reduce the level of captioning for one channel which they own by captioning more of another channel, could potentially lead to zero captions on some channels. Deaf Australia also argued that no channel should be automatically exempt, and the Deafness Forum of Australia was not convinced that the particular business models of ASTRA’s member channels prevented them from providing higher levels of captioning. Both organisations referred to the UK model (Ofcom) for captioning requirements, where the minimum requirements are proportionate to revenue, as a potential solution.

 

The DCWA offered a conditional endorsement of ASTRA’s proposed undertakings, but had similar concerns to Deaf Australia and the Deafness Forum of Australia regarding channels for which no minimum targets were set, and channel ownership groups leading to lower levels of captioning. The DCWA also suggested a model of minimum captioning requirements determined via a proportion of revenue.

 

Vision Australia called for an inquiry into promoting audio description (AD) on subscription television, especially given that minimum AD requirements were not included in the scope of this application. Vision Australia is frustrated that AD has not been implemented on subscription television, and believes that it is long overdue.

 

Accessible Arts NSW called for the application to be rejected on the grounds that it is not reflective of the needs of current and future generations of Deaf and hearing-impaired people who use subscription television. It called for a public consultation to inform the ASTRA channels of the needs of the Deaf and hearing impaired, and to require the channels to have easy-to-navigate complaints mechanisms on their websites.

ASTRA response to AHRC letter

On 4 June 2010, the AHRC sent a letter to ASTRA, requesting comment a range of issues, including:

• whether or not an obligation to caption all programming on all channels would be financially prohibitive;
• whether or not channels should be required to spend 1% of its annual turnover on captioning;
• whether or not channels should be required to report quarterly; and
• why certain channels should be exempt from providing captions at all.

ASTRA replied on 8 July 2010.  Some of the points ASTRA makes in its letter are as follows:

·         In its application, ASTRA argues that “an obligation to caption all programming on all channels would be financially prohibitive”. To determine if this is the case, the AHRC asked for details of the applicants’ profit and expenditure on captioning for 2009/2010. ASTRA decline to give details of profits, arguing that these are highly confidential, and notes that the various channels on FOXTEL have different owners and operate under different business models. ASTRA notes that fully captioning a channel across 24 hours would cost at least $1.75M per annum, and even half that figure would be financially prohibitive.

·         ASTRA rejects the proposal put forward in several submissions that it should spend 1% of its annual turnover on captioning.

·         ASTRA has clarified how the various captioning level percentages it has proposed were arrived at for each channel.

·         In response to the suggestion made in some submissions that its proposals could lead to less captioning on some channels, ASTRA notes many channels currently exceed their minimum levels, and no channels have decreased captioning since the first exemption was granted.

·         ASTRA has reiterated why it believes 26 channels should be exempt from captioning requirements.

·         In response to submissions asking if there are any plans to provide captions on the FOXTEL download service, ASTRA says that it is not technically possible to do this at the moment.

·         ASTRA submits that the system of reporting caption levels annually should be maintained, as reporting quarterly is unnecessary and would be an unreasonable burden.

·         Responding to the proposal that new channels which begin broadcasting during an exemption period should not have to apply for a separate exemption, ASTRA notes the extra time and work this would involve

Cinemas’ submission to the Human Rights Commission on access requirements

Hoyts, Greater Union (including Event and Birch Carroll & Coyle), Village and Reading cinemas (‘the cinemas’) submitted an application to the Australian Human Rights Commission (AHRC) for a temporary exemption of 2½ years from the Disability Discrimination Act 1992 (Cth) (DDA) under section 55 of the Act in late 2009. If an exemption is granted, then the AHRC will not receive complaints about the exempted organisation under the DDA. The AHRC will grant exemptions when an applicant organisation specifically undertakes to reduce discrimination on the basis of disability.

The cinemas have proposed to do the following in their application:

• Increase the number of screens in cinemas operated by the applicants capable of delivering captions to 35 over the next 2½ years.
• Provide audio description capability in all those 35 screens, including a retro-fit of the current 12 cinemas offering captioning.
• Commit to a review of the current program in consultation with representatives from key stakeholders starting 9 months before the end of the Temporary Exemption period.
• Ensure accessible information on captioned and audio described film schedules.

The cinemas would implement the changes in a series of three-month phases, retro-fitting about three cinemas in each phase.

At the end of the 2½ years, the following cinemas would be capable of providing audio description and open captions (15 Greater Union, 10 Hoyts, 6 Village, and 3 Reading cinemas):

Bankstown	NSW	Hoyts
Belconnen	NSW	Hoyts
Chatswood	NSW	Hoyts
Coffs Harbour	NSW	Greater Union / Birch Carroll & Coyle
Erina	NSW	Hoyts
George St	NSW	Greater Union
Glendale	NSW	Greater Union
Lismore	NSW	Greater Union / Birch Carroll & Coyle
Parramatta	NSW	Greater Union
Penrith	NSW	Hoyts
Wollongong (Warrawong)	NSW	Hoyts
Darwin	NT	Greater Union / Birch Carroll & Coyle
Cairns	QLD	Greater Union / Birch Carroll & Coyle
Harbour Town	QLD	Reading
Mackay	QLD	Greater Union / Birch Carroll & Coyle
Maroochydoore	QLD	Greater Union / Birch Carroll & Coyle
Mt. Gravatt	QLD	Greater Union / Birch Carroll & Coyle
Myre Centre	QLD	Greater Union / Birch Carroll & Coyle
Rockhampton	QLD	Greater Union / Birch Carroll & Coyle
Toowoomba	QLD	Greater Union / Birch Carroll & Coyle
Marion	SA	Greater Union / Birch Carroll & Coyle
Tea Tree	SA	Hoyts
Hobart	TAS	Village
Launceston	TAS	Village
Eastland	VIC	Hoyts
Epping	VIC	Reading
Geelong	VIC	Reading
Jam Factory	VIC	Village
Shepparton	VIC	Village
Southland	VIC	Village
Sunshine	VIC	Village
Carousel	WA	Hoyts
Fremantle – Queensgate	WA	Hoyts
Innaloo	WA	Greater Union

Having proposed these undertakings, the AHRC asked the cinemas to provide more detail regarding their application. You can read the AHRC's request for further information here.

The cinemas have recently responded to the AHRC, and you can read the cinemas' response here [Word Doc - 266 KB]. The AHRC is now considering its decision.

The Human Rights Commission has rejected the cinemas' exemption application

The Australian Human Rights Commission (AHRC) has announced that it decided not to grant the cinemas' exemption application.  The AHRC stated that it made the decision in light of the provisions of the Disability Discrimination Act (Cth), and that 'on balance the Commission did not consider the application to represent sufficient progress to be considered reasonable'.  The AHRC stated that it will make available its full decision soon.

For more information, visit the AHRC website.