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Broadcasting Services Amendment (Improved Access to Television Services) Bill 2012

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2010-2011-2012

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

 

 

BROADCASTING SERVICES AMENDMENT (IMPROVED ACCESS TO TELEVISION SERVICES) BILL 2012

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(Circulated by authority of the Minister for Broadband, Communications

and the Digital Economy, Senator the Honourable Stephen Conroy)



BROADCASTING SERVICES AMENDMENT (IMPROVED ACCESS TO TELEVISION SERVICES) BILL 2012

 

OUTLINE

The Broadcasting Services Amendment (Improved Access to Television Services) Bill 2012 (the Bill) amends the Broadcasting Services Act 1992 (BSA) to facilitate improved access to free-to-air and subscription television by Australia’s hearing impaired community. The Bill introduces new legislative requirements and, where applicable, increases existing requirements, for the provision of captioning services by commercial, national and subscription television broadcasters. Captioning assists people with a hearing impairment by providing a text version of speech and other sounds during television broadcasts.

 

The Bill also provides people with a hearing and/or vision impairment with improved access to televised emergency warnings, by mandating that emergency warnings broadcast on television must be transmitted in the form of text and speech and captioned where reasonably practicable.

 

The Bill will create a new Part 9D in the BSA which deals with captioning. The key components of this new part include:

·                      progressively increasing captioning targets on core or primary commercial television broadcasting services and the core national television broadcasting service;

·                      introducing captioning targets for subscription television broadcasting services and subscription television narrowcasting services which progressively increase;

·                      empowering the Australian Communications and Media Authority (the ACMA) to develop a captioning standard determining the quality of captioning services provided by commercial television broadcasting licensees, national broadcasters, subscription television broadcasting licensees and providers of a subscription television narrowcasting services;

·                      requiring broadcasters to transmit emergency warnings in the form of text and speech, and to caption those warnings where reasonably practicable;

·                      introducing new annual compliance reporting and record keeping requirements to support new captioning obligations;

·                      requiring the ACMA to conduct a statutory review of the new Part 9D in 2015 and to give the Minister a report of the review before 30 June 2016; and

·                      making compliance with the captioning obligations under Part 9D a condition of a commercial television broadcasting licence, a subscription television broadcasting licence and a class licence.

The Bill implements the Australian Government’s response to a number of recommendations in the Access to Electronic Media for the Hearing and Vision-Impaired final report , tabled by Senator the Hon Stephen Conroy, Minister for Broadband, Communications and the Digital Economy, on 3 December 2010. The final report was prepared by the Department of Broadband, Communications and the Digital Economy after a review process, which involved the development and release for comment of a discussion paper and discussion report.

 



FINANCIAL IMPACT STATEMENT

 

The amendments in this Bill will have no direct financial impact on the Australian Government.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 



Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Broadcasting Services Amendment (Improved Access to Television Services) Bill 2012

This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 .

Overview of the Bill

The Bill will create a new part in the Broadcasting Services Act 1992 (BSA) which deals with captioning. The key objectives of the Bill are to:

 

·          promote greater access to media for those with hearing impairment;

·          introduce and increase captioning targets in the BSA;

·          empower the ACMA to develop a captioning standard determining the quality of captioning services;

·          introduce new annual compliance reporting and record keeping requirements to support new captioning obligations; and

·          promote greater access to emergency warning broadcasts for people with a hearing or vision impairment.

 

For many Australians, hearing and vision impairments can impede enjoyment of a digital world that most people take for granted.

 

Access to electronic media such as television is important to all members of the community. The Broadcasting Services Amendment (Improved Access to Television Services) Bill 2012 will promote greater access to free-to-air and subscription television for the hearing impaired by increasing existing legislative requirements, and introducing new requirements, for the captioning of programs on commercial, national and subscription television. Captioning assists people with a hearing impairment by providing the text version of speech and other sounds during television broadcasts.

 

The Bill also amends the BSA to mandate that emergency warnings broadcast on television must be transmitted in the form of text and speech, and captioned where reasonably practicable, assisting people with a hearing and/or vision impairment. The amendments focus on the format of warnings.

 

Human rights implications

Australia is a signatory to the Covenant on the Rights of Persons with Disabilities (the CRPD)  and the International Covenant on Civil and Political Rights (the ICCPR), (two of the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 ). Many of the provision in the CRPD are drawn from other human rights instruments, notably the ICCPR and the International Covenant on Economic, Social and Cultural Rights (ICESCR).

The Bill engages several human rights:

·          Rights of people with a disability (CRPD)

·          Right to freedom of opinion and expression (Article 9 CRPD)

·          Right to Equality and non-discrimination (Article 26 ICCPR)

 

Rights of people with a disability

 

The CRPD recognises the barriers that people with a disability may face in realising their rights. The rights under all human rights treaties apply to everyone, including people with disability. However, the CRPD applies human rights specifically to the context of people with disability.

 

The Bill’s objectives directly promote the rights of people with a disability by promoting increased access to television services for people with a hearing impairment, and to emergency warnings broadcast on television for people with a hearing and/or vision impairment. This is consistent with Australia’s international obligations under the CRPD and domestic policies, such as the government’s social inclusion policy.

 

One of the eight general principles of the CRPD (Article 3) is accessibility, including access to information. Article 9 of the CRPD provides that countries shall also take appropriate measures to ensure that persons with disabilities have access to information and communications. The appropriate measures should include the identification and elimination of obstacles and barriers to accessibility.

 

The Bill’s objectives are consistent with the general obligation under Article 4 (1) of the CRPD which requires State Parties to ensure and promote the full realisation of all human rights and fundamental freedoms for all persons with disabilities without discrimination of any kind on the basis of disability.     

 

The Bill’s objectives are also consistent with Article 21 of the CRPD which sets out a number of obligations on States Parties to the CRPD to ensure that people with disability can exercise the right to freedom of expression and opinion, including the freedom to seek, receive and impart information and ideas, on an equal basis with others. In particular, Article 21 states that States Parties must take all appropriate measures to:

·          ensure that information intended for the general public is provided to people with disability in accessible formats and technologies appropriate to different kinds of disabilities in a timely manner and without additional cost (Article 21(a));

·          urge private entities that provide services to the general public to provide information and services in accessible and usable formats for persons with disabilities (Article 21(c)); and  

·          encourage the mass media to make their services accessible to persons with disabilities (Article 21(d)).

 

The Bill’s objectives are directed at increasing access to television and as such are consistent with Article 30 of the CRPD which states that countries must take all appropriate measures to ensure that persons with disabilities:

·          enjoy access to cultural materials in accessible formats; and

·          enjoy access to television programs, films, theatre and other cultural activities, in accessible formats.

 

Article 26 ICCPR and Article 5 CRPD

 

Article 26 of the ICCPR sets out the right to equality and non-discrimination and provides that the law shall guarantee effective protection against discrimination on the grounds of language.  Article 5 of the CRPD provides for the right to equality and non-discrimination and that State Parties are required to take all appropriate steps to ensure that reasonable accommodation is provided.

 

The purpose of the Bill is to promote the rights of people with a disability by increasing access to television services for people with a hearing impairment, and to emergency warnings broadcast on television for people with a hearing and/or vision impairment.

 

The Bill does not require captioning for non-English language programs and generally a captioning service will be provided in English. This may limit the rights of persons with hearing impairments from non-English speaking backgrounds to access television services, in particular emergency warnings. However, such requirements would create a financial and administrative burden for broadcasters that, in light of the fact that foreign language programs are generally subtitled, would be disproportionate to any benefit for the non English-speaking portion of the hearing impaired community.

 

The benefit of increasing access to television services for persons with hearing impairments from English speaking backgrounds outweighs any potential discrimination to the non-English speaking portion of the hearing impaired community, as this benefit addresses a pressing concern in the community in a reasonable and proportionate way. Failure to implement these measures would mean that a larger percentage of people with a hearing and/or vision impairment would have less access to television services and emergency warnings.

 

Conclusion

 

The Bill is compatible with Australia’s human rights obligations because it will increase access to television services for people with a hearing impairment and increase access to emergency warnings on television for people with a hearing or vision impairment.

 

 

 

 

 

 

 



ABBREVIATIONS

 

The following abbreviations are used in this explanatory memorandum:

 

 

AAT:

Administrative Appeals Tribunal

 

ACMA:

 

Australian Communications and Media Authority

Bill:    

 

 

Broadcasting Services Amendment (Improved Access to Television Services) Bill 2012

BSA:

 

Broadcasting Services Act 1992 (Cth)

DDA:

 

Disability Discrimination Act 1992 (Cth)

LIA:

 

Legislative Instruments Act 2003 (Cth)

Minister:

Minister for Broadband, Communications and the Digital Economy

 

 

 

 

 

 

 

                                   

 

                                   

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 



NOTES ON CLAUSES

 

Clause 1 - Short title

 

1.            Clause 1 is a formal provision specifying the short title for the Act. When enacted, the Act is to be cited as the Broadcasting Services Amendment (Improved Access to Television Services) Act 2012 .

 

Clause 2 - Commencement

 

2.            Clause 2 specifies when the various provisions of the Act commence. The provisions specified in column 1 of the table in clause 2 will commence, or will be taken to have commenced on the day or at the time specified in column 2 of the table.

 

Clause 3 - Schedule(s)

 

3.            Clause 3 provides that each Act specified in a Schedule to the Bill is amended or repealed as set out in the Schedule concerned and any other item in a Schedule has effect according to its terms. There is one Schedule to the Bill which contains amendments to the BSA.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 



Schedule 1--Amendments

 

Part 1 - Amendments

 

4.            Part 1 of Schedule 1 to the Bill contains amendments to the BSA relating to the captioning of television programs for the hearing impaired. The amendments will increase existing obligations and introduce new obligations on commercial television broadcasting licensees, national broadcasters, subscription television broadcasting licensees and persons who provide a subscription television narrowcasting service under a class licence.

 

Broadcasting Services Act 1992

 

Item 1 - After subsection 123(3D)

 

5.            Section 123 of the BSA deals with the development of codes of practice by representative broadcasting industry groups. These industry groups represent, relevantly, commercial broadcasting licensees, providers of subscription broadcasting services and providers of subscription narrowcasting services.

 

6.            This item would amend subsection 123 of the BSA to clarify that if a code of practice which deals with the captioning of programs for the hearing impaired is inconsistent with a standard determined by the ACMA under new subsection 130ZZA(1), the code ceases to have effect to the extent of that inconsistency.

 

Item 2 - After Part 9C

 

7.            This item inserts new Part 9D into the BSA which deals with the captioning of particular television programs and broadcasting services.

 

Part 9D - Captioning

Division 1 - Introduction

 

Section 130ZJ - Simplified outline

 

8.            Section 130ZJ provides a simplified outline of proposed Part 9D to assist the reader.

 

Section 130ZK - Definitions

 

9.            Section 130ZK inserts various definitions that are used in Part 9D, including a number of ‘sign post’ definitions that refer the reader to other provisions in the BSA that contain substantive definitions relating to the captioning of commercial television broadcasting services, national television broadcasting services, subscription television services, and emergency warnings.

 

10.        The ‘sign post’ definitions that relate to the captioning of commercial television broadcasting services include:

 

·          primary commercial television broadcasting service, SDTV multi-channelled commercial television broadcasting service, HDTV multi-channelled commercial television broadcasting service, simulcast period and simulcast-equivalent period which are defined in Schedule 4 to the BSA;

·          designated viewing hours which is defined in proposed section 130ZL (see paragraph 31).  

 

11.        The ‘sign post’ definitions that relate to the captioning of national television broadcasting services include:

·          primary national television broadcasting service , primary satellite national television broadcasting service, SDTV multi-channelled national television broadcasting service , HDTV multi-channelled national television broadcasting service , simulcast period , simulcast-equivalent period, coverage area , and satellite delivery area which are defined in Schedule 4 to the BSA;

·          designated viewing hours which is defined in proposed section 130ZL (see paragraph 31).  

 

12.        The ‘sign post’ definitions that relate to the captioning of subscription television services include:

·          Category A subscription television movie service , Category B subscription television movie service and Category C subscription television movie service which are defined in proposed section 130ZVA (see paragraph 110);

·          Category A subscription television general entertainment service , Category B subscription television general entertainment service and Category C subscription television general entertainment service which are defined in proposed section 130ZW (see paragraph 118).

 

13.        Otherwise, only key definitions contained in section 130ZK are explained below. The definitions appear in alphabetical order in the Bill, and are explained here in alphabetical order except where the defined term includes another defined term in the definition.

 

14.        The defined term community service announcement is used in the definition program . A community service announcement means community information or community promotional material which is broadcast by commercial television broadcasting licensees, subscription television licensees or national broadcasters without receiving any consideration in cash or in kind. An example of community service announcements could include advertisements from charity organisations such as the Cancer Council or the Red Cross.

 

15.        The defined term emergency service agency is used in Division 5 of Part 9D. This Division sets out captioning obligations for broadcasters in respect of the broadcast of emergency warnings. An emergency warning must be broadcast in the form of text and speech where an emergency service agency requests the broadcaster to transmit an emergency warning. An emergency service agency is defined as a police force or service, a fire service, a State Emergency Service of a State or Territory, the Commonwealth Bureau of Meteorology, or a body that runs an emergency service specified in the regulations. The regulation making power could be used to enable other authorities that provide an emergency service to request the transmittal of emergency warnings which meet obligations under section 130ZZB. 

 

16.        The defined term general entertainment program includes any television program which is not a movie program ; a news or current affairs program ; a sports program or a music program (as defined and explained below). The term general entertainment program is used for the purposes of sections 130ZV, 130ZW and 130ZX.

 

17.        The defined term movie program means a television program that is a feature film; a short film; or a telemovie. The term is used for the purposes of sections 130ZV, 130ZVA and 130ZX.

 

18.        The defined term music program means a television program where the sole or dominant purpose is to provide music with video clips, video footage of musical performances, or both. The term is used for the purposes of sections 130ZV and 130ZX.

 

19.        The defined term national broadcasting service is defined as excluding a broadcasting service provided under the Parliamentary Proceedings Broadcasting Act 1946 . This defined term re-enacts the defined term that has previously applied to clause 38 of Schedule 4 to the BSA, which is to be repealed by item 10 of this schedule. This defined term creates a contrary intention in respect of the definition of national broadcasting service contained in section 6 of the BSA. This means that for the purposes of Part 9D, captioning obligations imposed on national broadcasting services apply only to a broadcasting service provided by the Australian Broadcasting Corporation in accordance with section 6 of the Australian Broadcasting Corporation Act 1983 , or a broadcasting service provided by the Special Broadcasting Service Corporation in accordance with section 6 of the Special Broadcasting Service Act 1991 .

 

20.        The defined term national television broadcasting service means a national broadcasting service that transmits television programs.

 

21.        The defined term news or current affairs program re-enacts the defined term that has previously applied to clause 38 of Schedule 4 to the BSA, which is to be repealed by item 10 of this schedule with some minor amendments. For the purposes of Part 9D, a news or current affairs program means a news bulletin, or a program (whether presenter-based or not) whose sole or dominant purpose is to provide analysis, commentary or discussion principally designed to inform the general community about social, economic or political issues of current relevance to the general community. It is intended that a news or current affairs program would include news bulletins which may include some sports news content. The captioning obligations that apply to commercial television broadcasting services and national broadcasting services (see proposed Division 2 of Part 9D) require news or current affairs programs to be captioned whenever broadcasting on the primary television service or repeated on a secondary television service.

 

22.        The defined term program means any broadcast matter except advertising or sponsorship matter, (regardless of whether it is of a commercial kind), a community announcement, or an emergency warning. The term program is extensively used in proposed Part 9D. This means that if a broadcaster provides a service that primarily broadcasts advertisements, then for the purposes of this new Part, the advertisements will not be considered a program and the broadcaster will not be required to provide a captioning service.  

 

23.        The defined term sports program means a sports news bulletin; or a program the sole or dominant purpose is to provide coverage of one or more sporting events; or analysis, commentary or discussion in relation to one or more sporting events; or both. This term is used for the purposes of sections 130ZV and 130ZX.

 

24.        The defined term subscription television general entertainment service means a subscription television service where the program content consists wholly or primarily of general entertainment programs. The types of programs that would be regarded as general entertainment include children, lifestyle, national geographic, historical, comedy or drama content.

 

25.        The defined term subscription television licensee includes a subscription television broadcasting licensee or a subscription television narrowcasting licensee. A subscription television broadcasting licensee refers to a person who holds a subscription television broadcasting licence, while a subscription television narrowcasting licensee is defined in this section as a person who provides a subscription television narrowcasting service under a class licence. A licensee will only be a subscription television licensee to the extent that they deliver a broadcasting service as defined in section 6 of the BSA, which includes the characteristics defined in sections 16 and 17 of the BSA. 

 

26.        The defined term subscription television movie service means a subscription television service where the program content consists wholly or primarily of movie programs.

 

27.        The defined term subscription television music service means a subscription television service where the program content consists wholly or primarily of music programs.

 

28.        The defined term subscription television news service means a subscription television service where the program content consists wholly or primarily of news or current affairs programs.

 

29.        The defined term subscription television service includes a subscription television broadcasting service (defined in section 6 of the BSA), or a subscription television narrowcasting service (defined in section 6 of the BSA). The term subscription television service is designed to encompass all subscription television services provided by a person, regardless of whether each individual service is characterised as a broadcasting service or a narrowcasting service (see new section 130ZP, noted below). As used in Part 9D, this umbrella concept recognises the fact that subscription television services are generally provided to subscribers in ‘bundles’ with no distinction drawn between broadcasting or narrowcasting. Conversely, the BSA regulates each stream of television programs separately as either a subscription television broadcasting service (which must be individually licensed), or a subscription television narrowcasting service (which operates pursuant to a class licence).

 

30.        The defined term subscription television sports service means a subscription television service where the program content consists wholly or primarily of sports programs.

 

Section 130ZL - Designated viewing hours

 

31.        The basic captioning rule currently in clause 38 of Schedule 4 to the BSA obliges each commercial television broadcasting licensee and each national broadcaster to provide a captioning service for television programs transmitted during prime viewing hours and for news or current affairs programs (only) transmitted on television outside prime viewing hours. Subclause 38(11) of Schedule 4 to the BSA defines prime viewing hours from 6 pm till 10.30 pm (unless otherwise prescribed).

 

32.        Proposed Part 9D will replace the captioning provisions contained in Schedule 4 to the BSA. The concept of prime viewing hours will be replaced with the concept of designated viewing hours . Section 130ZL defines designated viewing hours in two ways. The first definition, contained in subsection 130ZL(1) will apply until 1 July 2014. This definition is the same as prime viewing hours. Programs transmitted during designated viewing hours , and news or current affairs programs transmitted outside designated viewing hours will need to be captioned in accordance with section 130ZR.

 

33.        Subsection 130ZL(2) sets out the second definition which will apply on or after 1 July 2014. On or after 1 July 2014, designated viewing hours will extend from 6 am till midnight on the same day (unless otherwise prescribed). Extending the definition of designated viewing hours would facilitate greater access to television programs for people with hearing impairments.

 

Section 130ZM - This Part does not apply to foreign language programs

 

34.        Section 130ZM provides that Part 9D does not require the captioning of a television program that is wholly in a language other than English. This exception is substantially the same as that contained in subclause 38(7) of Schedule 4 to the BSA, which is to be repealed by item 10.

 

35.        It is intended that broadcasters will provide an English captioning service for television programs which are in the English language, but not those that are in a foreign language. Foreign language programs are generally subtitled and the imposition of additional captioning requirements, with associated financial and administrative expense, would be overly burdensome on broadcasters.

 

36.        For the purposes of this section minor and infrequent use of the English language is to be disregarded. ‘Minor and infrequent’ use of the English language could include several minutes of archival footage with English commentary within an hour long French language documentary. In this situation, the broadcaster would be exempt from providing a captioning service in respect of the English language portion of the program because the spoken English is minor and infrequent.

 

Section 130ZN - This Part does not apply to programs that consist wholly of music

 

37.        Section 130ZN provides that Part 9D does not apply to a television program where the audio component consists only of music that has no human vocal content that is recognisable as being in the English language. This exception is substantially the same as that contained in subclause 38(7) of Schedule 4 to the BSA, which is to be repealed by item 10.

 

38.        For the purposes of this section minor and infrequent use of the English language is to be disregarded. For example, a television program comprising an opera sung in Italian would not need to be captioned, even if the performance included minor and infrequent use of English.

 

Section 130ZO - Captioning service provided for part of program

 

39.        If the audio component of a television program consists partly of English vocal content, and partly of other content, the captioning of the English vocal content portion will be sufficient for the commercial television broadcasting licensee, subscription television licensee, or national broadcaster to be taken to have provided a captioning service for the entire program.

 

40.        For example, if a broadcaster transmitted a documentary on classical music, consisting partly of English language commentary and partly of instrumental musical performances, the licensee or broadcaster will be taken to have provided a captioning service for that program if the commentary is captioned.

 

Section 130ZP - Multiple subscription television services provided by licensee

 

41.        The current subscription television licensing regime under the BSA provides for the ACMA to allocate subscription television broadcasting licences on a one licence per service basis (section 96 of the BSA refers). The ACMA also has the power to determine a class licence for the provision of certain broadcasting and narrowcasting services, including subscription television narrowcasting services (section 117 of the BSA refers).

 

42.        Based on the above licensing arrangements, a subscription television service provider could therefore provide a package or bundle of services to subscribers under multiple subscription television broadcasting licences, as well as use a class licence to offer one or more subscription television narrowcasting services.

43.        Proposed section 130ZP clarifies that, for the purpose of new Part 9D, the subscription television services provided by a subscription television licensee are to be determined by reference to:

 

·          all of the subscription television broadcasting licences (if any) under which the licensee provides services; and

·          the class licence (if any) under which the licensee provides services.

 

44.        This means if a subscription television licensee provides multiple services pursuant to subscription television broadcasting licences or a class licence, then for the purpose of the captioning regime under proposed Division 3, all of these services will be taken into account - a subscription television service can be either a broadcasting service or a narrowcasting service noting that, for the purpose of section 130ZV, captioning targets apply only to particular categories of subscription television services.

 

Section 130ZQ - Television service provided in a period

 

45.        Proposed section 130ZQ clarifies that for new Part 9D a commercial television broadcasting service, a national television broadcasting service or a subscription television service is provided in a period, for example a financial year, then the service is provided during the whole or the part of that period.

 

 

Division 2

Captioning obligations of commercial television broadcasting licensees and national broadcasters

 

Section 130ZR - Captioning obligations - basic rule

 

46.        Subsection 130ZR(1) sets out the basic captioning rule for a commercial television broadcasting licensee and each national broadcaster. The basic rule requires broadcasters to caption 100 percent of television programs during designated viewing hours andnews or current affairs programs broadcast outside designated viewing hours. For the period before 1 July 2014, the designated viewing hours are from 6 pm till 10.30 pm each day (unless otherwise prescribed). From 1 July 2014, designated viewing hours will extend from 6 am to midnight.

 

47.        The basic rule is subject to several exceptions. These exceptions correspond to the exceptions set out in clause 38 of Schedule 4 to the BSA (which is to be repealed by item 10, noted below).

 

48.        The exceptions in section 130ZR have the effect that in general broadcasters are required to comply with the basic rule in relation to the core or primary commercial television broadcasting service , or a national television broadcasting service (which is not a SDTV multi-channelled national television broadcasting service or a HDTV multi-channelled national television broadcasting service).

49.        Captioning is not required on the following programs or services:

·          a television program covered by paragraphs 6(8)(d) and 19(8)(d) of Schedule 4 to the BSA (subsections 130ZR(2) and (3)).

-         Subclauses 6(8) and 19(8) of Schedule 4 to the BSA establishes an exception to the digital simulcast rule where a ‘designated event’ (a sporting event or other event determined by the ACMA) which is broadcast live, extends beyond its scheduled finishing time for reasons outside the broadcaster’s or their program supplier’s control.

-         In this circumstance the broadcaster may multichannel the live broadcast and a regularly scheduled news program, provided that the sole purpose for using the multi-channeling transmission capacity is to allow viewers to choose between watching the regularly scheduled news program on the analog service or the designated viewing event on the SDTV service.

·          any multi-channelled commercial television broadcasting service (other than the core or primary service), with the exception of television programs that have previously been broadcast on the core or primary service (subsection 130ZR(4)). This means that television programs that premiere with captions on the core or primary service and are repeated on a multi-channelled service must be captioned on the multi-channelled service as well;

·          a commercial television broadcasting service (other than the primary service) that is licensed under section 38C of the BSA, with the exception of television programs that have previously been broadcast on the primary service (subsection 130ZR(5)). This means that television programs that premiere with captions on the primary service and are repeated on another of the licensed services must be captioned on the second service as well;

·          any SDTV multi-channelled national television broadcasting service or a HDTV multi-channelled national television broadcasting service, with the exception of television programs that have previously been broadcast on the core or primary service (subsections 130ZR(6) and (7)). This means that television programs that premiere with captions on a national broadcaster’s core or primary television service and are repeated on one of their other services must be captioned on the second service as well;

·          a commercial television broadcasting service that is licensed under section 40 of the BSA during the first year of operation or such longer period notified in writing by the ACMA (subsection 130ZT(8)).

 

Section 130ZS - Captioning obligations - special rules for multi-channelled services

 

50.        Proposed section 130ZS sets out the captioning requirements for digital television multi-channelled services. These rules are substantially the same as the rules in clause 38 of Schedule 4 to the BSA, which is to be repealed by item 10. The main difference is that the special rule is no longer limited to broadcasts that occur before the final digital switchover day.

 

51.        Section 130ZS provides that if a broadcaster chooses to caption a television program that is premiered with captions on any commercial television broadcasting service or national television broadcasting service, then if that program is repeated on another of the broadcaster’s digital television multi-channelled services then the repeated program must be captioned as well.

 

52.        For example, Network TEN premieres Neighbours with captions on its digital television multi-channel, Eleven. If Network TEN were to repeat that program on  its HDTV service, ONE, it would need to be repeated with a captioning service.

 

Section 130ZT - Annual captioning targets for 2012-13 and 2013-14 - commercial television broadcasting licensees

Section 130ZU - Annual captioning targets for 2012-13 and 2013-14 - national broadcasters

 

53.        Section 130ZT imposes captioning obligations on commercial television broadcasting licensees in addition to the basic rule set out in section 130ZR. Section 130ZU contains a corresponding captioning target for national broadcasters (whether during or after the end of the simulcast period, or simulcast-equivalent period, courtesy of subsection 130ZU(6)).

 

54.        Section 130ZT would require a commercial television broadcasting licensee to caption a minimum amount of television programs broadcast on the licensee’s core or primary commercial television broadcasting service during targeted viewing hours . Subsection 130ZT(5) provides that targeted viewing hours are between 6.00 am and midnight each day (unless otherwise prescribed).

 

55.        The over-arching policy is for a commercial television broadcasting licensee to gradually achieve the objective of providing a captioning service for 100 per cent of television programs broadcast on the core or primary commercial television broadcasting service during targeted viewing hours from 1 July 2014.

 

56.        In order to achieve this objective, captioning targets will increase incrementally for commercial television broadcasting licensees by five per cent each financial year, starting at 90 per cent in the financial year beginning on 1 July 2012. The proposed captioning targets will apply on a financial year basis to align with general broadcaster financial year reporting requirements.

 

57.        Subsection 130ZT(1) provides that a commercial television broadcasting licensee must ensure that the total hours of transmitted programs that are captioned during 2012-13 on the licensee’s core or primary commercial television broadcasting service is not less than 90 per cent of the total hours of programs transmitted during the targeted viewing hours . Subsections 130ZU(1) and (3) provide the same target for national broadcasting services.

 

58.        Subsection 130ZT(2) provides that a commercial television broadcasting licensee must ensure that the total hours of transmitted programs that are captioned during 2013-14 on the licensee’s core or primary commercial television broadcasting service is not less than 95 per cent of the total hours of programs transmitted during the targeted viewing hours. Subsections 130ZU(2) and (4) provide the same target for national broadcasting services.

 

59.        Television programs broadcast during the designated viewing hours that are subject to the captioning rule in section 130ZR are counted for the purpose of measuring compliance with the captioning obligation that applies to targeted viewing hours in new sections 130ZT and 130ZU. 

 

60.        It is important to note that in both instances, the calculation of the number of hours of programs will exclude the broadcast time committed to advertising or sponsorship material, community service announcements, and emergency warnings (the definition of program refers).

 

61.        The additional captioning requirements set out in section 130ZT do not apply to a television program that is transmitted under a commercial television broadcasting licence allocated under section 40 of the BSA during its first year of operation, or a longer period notified in writing by the ACMA (see subsection 130ZT(3)).

 

62.        Subsection 130ZT(4) also exempts television programs covered by paragraph 6(8)(d) of Schedule 4 to the BSA. Subsection 130ZU(5) provides a similar exception in respect of programs broadcast by a national broadcaster pursuant to paragraph 19(8)(d) of Schedule 4 to the BSA (discussed above at paragraph 49).

 

Section 130ZUA - Exemption orders and target reduction orders - unjustifiable hardship

Section 130ZY - Exemption orders and target reduction orders - unjustifiable hardship

 

63.        The priority for government is for television services to be broadcast, and where possible for those services to be broadcast with captions. It is not the intention of the government that services not be shown because captioning obligations result in an unjustifiable hardship on broadcasters. Consequently, commercial television broadcasting licensees and national broadcasters under section 130ZUA; and subscription television licensees under section 130ZY may make an application to the ACMA for an exemption order or target reduction order.

 

64.        Subsections 130ZUA(1) and (2) allow a commercial television broadcasting licensee and a national broadcaster to apply to the ACMA for:

 

·          an order that exempts ( exemption order ) a specified commercial television broadcasting service or a national television broadcasting service (the applicant) from captioning obligations set out under proposed section 130ZR(1) in a specified eligible period, or

·          an order ( target reduction order ) that relates to a specified commercial television broadcasting service or a national television broadcasting service provided by the licensee or broadcaster during a specified eligible period. The target reduction order must include a new specified percentage which becomes the reduced annual captioning target for each financial year included in the eligible period. The target reduction order may specify different percentages for different financial years (proposed subsection 130ZUA(13) refers).

 

65.        Section 130ZY contains a corresponding provision where a subscription television licensee (the applicant) may apply to the ACMA for an exemption order for a specified subscription television service from captioning obligations under subsection 130ZV(1) in a specified eligible period or a target reduction order that relates to a specified subscription television service.

 

66.        Proposed subsections 130ZUA(15) and 130ZY(13) would provide a definition for the term ‘ eligible period’ which means:

 

·          a financial year; or

·          2 consecutive financial years; or

·          3 consecutive financial years; or

·          4 consecutive financial years; or

·          5 consecutive financial years .

 

67.        The application process is the same under sections 130ZUA and 130ZY.

 

68.        An application to the ACMA must be in writing; be in a form approved by the ACMA in writing; and be made in the financial year preceding the eligible period specified in the application or in the 180-day period beginning at the start of the eligible period specified in the application (proposed subsections 130ZUA(3) and 130ZY(2)). This will ensure that applications are made in a timely manner.

 

69.        If an application is made for an exemption order or target reduction order under subsections 130ZUA(1) and (2) the ACMA must, after considering the application, either make the exemption order or target reduction order in writing or refuse to make the exemption order or target reduction order (proposed subsection 130ZUA(4)). A similar provision applies to the ACMA under subsection 130ZY(3).

 

70.        If the ACMA decides to make an exemption order in relation to a specified commercial television broadcasting service or a national television broadcasting service under subsection 130ZUA(4), the licensee or broadcaster no longer has to comply with the captioning obligations under subsection 130ZR(1) during the period the exemption order is in force. Similarly, if the ACMA decides to make an exemption order in relation to a specified subscription television service under subsection 130ZY(3) then the licensee no longer has to comply with the captioning requirements under subsection 130ZV(1).

 

71.        The ACMA must only make an exemption order or target reduction order if the ACMA is satisfied that a refusal to make the exemption order or target reduction order would impose an unjustifiable hardship on the applicant (proposed subsections 130ZUA(5) and 130ZY(4) refer).

 

72.        Subsections 130ZUA(6) and 130ZY(5) state that when the ACMA determines whether a failure to make the exemption order or target reduction order would impose an unjustifiable hardship on the applicant, it must have regard to the following matters:

 

·          the nature of the detriment likely to be suffered by the applicant;

·          the impact of making the exemption order or target reduction order on deaf or hearing impaired viewers, or potential viewers, of the commercial television broadcasting service, national television broadcasting service or subscription television service concerned;

·          the financial circumstances of the applicant;

·          the estimated amount of expenditure that the applicant would be required to make if there was a failure to make the exemption order or target reduction order;

·          the extent to which captioning services are provided by the applicant for television programs transmitted on commercial television broadcasting services, national television broadcasting services or subscription television service provided by the applicant;

·          the likely impact of a failure to make the exemption order or target reduction order on the quantity and quality of television programs transmitted on commercial television broadcasting services, national television broadcasting services or subscription television service provided by the applicant;

·          whether the applicant has applied, or has proposed to apply, for exemption orders or target reduction orders under this section in relation to any other commercial television broadcasting services, national television broadcasting services or subscription television service provided by the applicant;

·          such other matters (if any) as the ACMA considers relevant.

 

73.        Proposed subsection 130ZY(5) requires the ACMA to take into account one additional criterion when determining whether a failure to make the exemption order or target reduction order would impose an unjustifiable hardship on a subscription television licensee. The additional criterion is:

 

·          the number of people who subscribe to the subscription television service concerned.

 

74.        The purpose for including this additional criterion is to ensure the ACMA takes into account whether captioning obligations may create an administrative burden that is disproportionate to the public benefit for some subscription television niche services which have a small number of subscribers.

 

75.        Subsection 130ZUA(7) would provide that before making an exemption order or target reduction order under subsection 130ZUA(4) the ACMA must within 50 days (after receiving the application for the exemption order or target reduction order) publish on its website a notice which sets out the draft exemption order or draft target reduction order and invites persons to make submissions to the ACMA about the draft orders within 30 days after the notice is published. A similar provision applies to the ACMA under subsection 130ZY(6).

 

76.        This would ensure the ACMA has a minimum of 10 days to:

·          consider any submissions received during the 30-day consultation period; and

·          decide whether to make or refuse the exemption order or target reduction order.

 

77.        If the ACMA decides to make an exemption order or a target reduction order under subsection 130ZUA(4) or 130ZY(3), the order would come into force at the start of the eligible period to which the order applies (proposed subsections 130ZUA(8) and 130ZY(7) refer). Once the ACMA makes an exemption order or target reduction order, the ACMA is obligated to publish a copy of the order on the ACMA’s website as soon as practicable under subsections 130ZUA(11) and 130ZY(10).

 

78.        If the ACMA fails to make a decision on the application within a 90-day period starting on the day the ACMA receives the application this would mean that the ACMA is taken to have refused to make the exemption order or target reduction order (proposed subsections 130ZUA(9) and 130ZY (8)). The 90-day period will give the ACMA sufficient time to consider the application and consult with the public.

 

79.        Proposed subsection 130ZUA(10) would provide that where the ACMA has made a decision to refuse to make an exemption order, including failing to make a decision by the end of the 90-day period under subsection 130ZUA(9), the ACMA must give written notice of this decision to the applicant. A similar provision applies to the ACMA under proposed subsection 130ZY(9).

 

80.        Proposed subsections 130ZUA(12) and 130ZY(11) were included to assist the reader by declaring the law as it currently stands. The purpose of the proposed provision is to clarify that an exemption order or a target reduction order, made under subsection 130ZUA(4) or 130ZY(3), is not a legislative instrument within the meaning of section 5 of the Legislative Instruments Act 2003 .

 

81.        For the purposes of this new section a national television broadcasting service may be specified by reference to whether or not the service is provided with the use of satellite; and the coverage area, or satellite delivery area, in which the service is provided (proposed subsection 130ZUA(14)).

 

82.        Subsection 130ZUA(15) would include definitions which apply to this section for the following terms: commercial television broadcasting services , eligible period and national television broadcasting service . Subsection 130ZY(13) would include definitions which apply to this section for the following terms: eligible period and subscription television service .



Section 130ZUAA - Effect of target reduction order

Section 130ZYA - Effect of target reduction order

 

83.        If the ACMA makes a target reduction order for a commercial television broadcasting service or national television broadcasting service under subsection 130ZUA(4), then this section would apply to the commercial television broadcasting service or a national television broadcasting service for a financial year. Section 130ZYA contains a substantially similar provision which would apply if a target reduction order were made for a subscription television service under section 130ZY.

 

84.        Section 130ZUAA is intended to operate in the following way. If the ACMA makes a target reduction order, the licensee or broadcaster who provides the service must ensure that the percentage worked out using the following formula is not less than the reduced annual captioning target (the specified percentage in the target reduction order) that applies to the service for a financial year in the eligible period.

 

Total hours of captioned programs transmitted on the

service during the financial year                           

                                                                                                       x   100

Total hours of programs transmitted on the service

during the financial year        

 

85.        Once a target reduction order has been made the standard captioning rules and targets under sections 130ZR(1), 130ZT and 130ZU do not apply to the commercial television broadcasting service or the national television broadcasting service (subsections 130ZUAA(4), (5) and (6)).  For the purposes of subsection 130ZYA(3), the standard captioning target under subsection 130ZV(1) ceases to apply to the subscription television service.

 

86.        A commercial television broadcasting licensee or a national broadcaster must ensure that the percentage of total hours of transmitted programs that are captioned on the service is not less than the reduced annual captioning target during targeted viewing hours . Targeted viewing hours are between 6.00 am and midnight each day (unless otherwise prescribed). Subsection 130ZYA(2) places a similar obligation of subscription television licensees.

 

87.        For example, if a target reduction order is granted to a commercial television broadcasting service for the financial year starting 1 July 2012 and the reduced annual captioning target is 85 per cent. Then for the purposes of section 130ZUAA, the commercial television broadcasting service will be exempt from the basic captioning rule under subsection 130ZR(1) and the annual captioning target provisions under section 130ZT for this financial year. This would mean that the licensee would have to caption 5584.5 hours of television programs over the financial year.

 

 

 

5584.5 (15.3 hours x 365 days)         

                                                                X 100  =   85%

6570 (18 hours x 365 days)                                                                       

 

 

88.        If a target reduction order is granted to a commercial television broadcasting service for the financial year starting 1 July 2014 and the reduced annual captioning target is 85 per cent. Then for the purposes of section 130ZUAA, the commercial television broadcasting service will be exempt from the basic captioning rule under subsection 130ZR(1) only as the annual captioning target provisions under section 130ZT no longer applies for this financial year.

 

89.        For example, if a target reduction order is granted to a Category C subscription television general entertainment service for two consecutive financial years starting 1 July 2015 and the reduced annual captioning target is 25 percent for both financial years. Then for the purposes of section 130ZYA, the Category C subscription television general entertainment service will be exempt from the captioning requirements under subsection 130ZV(1) during the eligible period. This would mean that the licensee would have to caption 2190 hours of television each financial year.

 

 2190 (6 hours x 365 days)        

                                                               X  100  =   25%

 8760   (24 hours x 365 days)                                                                       

 

Section 130ZUB - Certain breaches to be disregarded

Section 130ZZAB - Certain breaches to be disregarded

 

90.        Section 130ZUB would set out particular circumstances in which a breach of a provision under Division 2 committed by a commercial television broadcasting licensee or a national broadcaster would be disregarded if:

 

·          the breach is attributable to significant difficulties of a technical or engineering nature; and

·          those difficulties could not reasonably have been foreseen by the licensee or broadcaster.

91.        This exception is intended to safeguard against the possibility of significant and unforeseen technical difficulties. An example of when the exception in sections 130ZUB and 130ZZAB might apply is if there were technical outages due to local weather conditions that resulted in a television program being broadcast without captions, then the licensee would be exempt from the provisions in the Bill due to such unforeseen technical issues.

 

92.        Similar amendments are contained in section 130ZZAB  which sets out particular circumstances in which a breach by a subscription television licensee of a provision under Division 3 would be disregarded.



Division 3

 Captioning obligations of subscription television licensees

 

Section 130ZV - Annual captioning targets - subscription television licensees

 

93.        The over-arching policy is for a subscription television licensee to meet annual captioning targets, that will increase over time, in respect of particular categories of subscription television services that are required to be captioned. Incremental improvements in the accessibility of television services are consistent with the objectives of the DDA.

 

94.        Subsection 130ZV(1) would oblige a subscription television licensee who broadcasts a subscription television service in the financial year beginning on 1 July 2012 or a later financial year to meet annual captioning targets that apply to particular categories of services.

 

95.        It is intended that all subscription television services would be captioned to the required level, as set out in the relevant annual captioning target, unless the service is exempt in accordance with proposed section 130ZX or 130ZY.

 

96.        If a subscription television licensee provides multiple services pursuant to subscription television broadcasting licences or a class licence, then for the purpose of the captioning regime under proposed Part 9D, all of these services will be taken into account (section 130ZP - discussed at 41).

 

97.        There are nine categories divided according to the dominant genre or type of programming. Different annual captioning targets would apply to each category. The allocation of subscription television services to categories is a matter for subscription television licensees, however licensees will need to ensure that the allocated services comply with the description of each category.

 

98.        Subscription television licensees are required to caption a minimum number of subscription television services within each of the nine categories. Where the number of services provided by the licensee exceeds the minimum number required to be captioned, the licensee may nominate the additional services within a category and seek from the ACMA an exemption with the effect that subsection 130ZV(1) would not apply to the additional nominated services (proposed section 130ZX refers).

 

99.        The nine categories are:

 

·          Category A subscription television movie service , where subscription television movie service is defined in section 130ZK, and the category determined in accordance with section 130ZVA;

·          Category B subscription television movie service , where subscription television movie service is defined in section 130ZK, and the category determined in accordance with section 130ZVA;

·          Category C subscription television movie service , where subscription television movie service is defined in section 130ZK, and the category determined in accordance with section 130ZVA;

·          Category A subscription television general entertainment service , where subscription television general entertainment service is defined in section 130ZK, and the category determined in accordance with section 130ZW;

·          Category B subscription television general entertainment service , where subscription television general entertainment service is defined in section 130ZK, and the category determined in accordance with section 130ZW;

·          Category C subscription television general entertainment service , where subscription television general entertainment service is defined in section 130ZK, and the category determined in accordance with section 130ZW;

·          Subscription television news service (defined in section 130ZK);

·          Subscription television sports service (defined in section 130ZK); and

·          Subscription television music service (defined in section 130ZK).

 

100.    Subsection 130ZV(1) provides that the licensee must ensure that the percentage worked out using the following formula is not less than the annual captioning target for the service for the financial year.

 

Total hours of captioned programs transmitted on the

service during the financial year                           

                                                                                                       x   100

Total hours of programs transmitted on the service

during the financial year        

 

101.    For example, if a subscription television licensee provides one subscription television movie service in the financial year beginning on 1 July 2012, the annual captioning targets for the Category A subscription television movie service is 60%. An example of a Category A subscription television movie service could be the service ‘Showtime’. For a licensee to comply with their captioning obligations for the financial year beginning on 1 July 2012, in relation to that service, the total hours of captioned programs required to be transmitted would be 5256 hours.

 

                          5256 (14.4 hours per day x 365)

    X   100  =   60%

                                             8760

 

102.    If a subscription television licensee provides two Category A subscription television movie services in the financial year beginning on 1 July 2012, the licensee will be required to caption 5256 hours of television programs on each subscription television movie service . It is intended that a licensee would evenly apportion the amount of captioning across the financial year, so that people with hearing impairments could enjoy access to television throughout the year.

 

103.    Captioning targets can be worked out on a pro rata basis if a subscription television licensee commences a new subscription television services during a financial year.  For example, if a Category C subscription television movie services was launched on 1 January 2013, the licensee’s captioning obligations for the financial year beginning on 1 July 2012 would be worked out as follows.

 

                        1303.2 (7.2 hours x 181 days)  

                                                                                  x   100   =   30%

                        4344 (24 hours x 181 days)

 

104.    Subsection 130ZV(2) provides the annual captioning targets for a subscription television service for the financial year beginning on 1 July 2012, 1 July 2013 and 1 July 2014 are set out in the table. The annual captioning targets increase each financial year. For subsequent financial years, the annual captioning target for a subscription television service is the lesser of: the percentage worked out using the formula in subsection 130ZV(3) or 100 per cent.

       

105.    Subsection 130ZV(3) sets out the formula used to work out annual captioning targets after 1 July 2014. It is intended that from 1 July 2015 the annual captioning targets will increase incrementally, through the application of a formula multiplying the previous financial year’s annual captioning target by 1.05 until each annual captioning target reaches 100 per cent. 

 

106.    If a percentage worked out using the formula in subsection 130ZV(3) is not a multiple of five per cent, the percentage is to be rounded up to the nearest multiple of five per cent (subsection 130ZV(4)).

 

107.    For example, if the annual captioning target for a subscription television music service for the financial beginning 1 July 2014 is 5 per cent, the formula would be applied as follows:

 

5% ( annual captioning target for 2014/15 ) x 1.05  =  5.25% ( annual captioning target for 2015/16 )

 

108.    As the increased annual captioning target for a subscription television music service for the financial year 2015/2016 (5.25%) would not be not a multiple of 5%, the percentage would need to be rounded up to the nearest multiple of 5%, which is 10%. The new annual captioning target for the financial year beginning 1 July 2015 for a subscription television music service would therefore be 10 per cent, and this new target would then be used for the application of subsection 130ZV(3) to the following financial year (i.e. 2016/2017).

 

109.    Subsection 130ZV(5) provides that this section does not apply to a subscription television service provided by a subscription television licensee which transmits the same stream of programs that has previously been transmitted on another subscription television service provided by the licensee (for example a time-shifting service) or simultaneously transmits in high definition format, the same stream of  programs that are transmitted in standard definition format on another subscription television service provided by the licensee (for example a high definition simulcast service). The purpose of this provision is to ensure that repeat or simulcast services do not count towards the minimum number of services required to be captioned. This will ensure that the hearing impairment community will be able to access a variety of services with differing content.

 

Section 130ZVA - Categories for subscription television movie services

 

110.    Section 130ZVA provides for the identification of the different categories of subscription television movie services .

 

111.    Subsection 130ZVA(1) provides that if a subscription television licensee provides at least one, but fewer than 7 subscription television movie services in a financial year, those services are considered Category A subscription television movie services for the financial year.

 

112.    Subsection 130ZVA(2) provides that if a subscription television licensee provides more than 6, but fewer than 8 subscription television movie services in a financial year, then the subscription television licensee can nominate no more than 6 of those services to be Category A subscription television movie services under subsection 130ZVA(2). The subscription television licensee can give written notice to the ACMA before the end of the financial year nominating 6 of those services to be Category A subscription television movie services for the financial year, with the remainder of the subscription television movie services being Category B subscription television movie services for the financial year (proposed paragraph 130ZVA(2)(a) refers).

 

113.    Subsection 130ZVA(3) provides that if a subscription television licensee provides more than 7 subscription television movie services in a financial year, the subscription television licensee can choose to nominate 6 of those services to be Category A subscription television movie services for the financial year, and one additional services to be Category B subscription television movie services for the financial year. The remainder of those services would fall within Category C subscription television movie services .

 

114.    The different categories of subscription television movies services are subject to different annual captioning targets. The annual captioning target for Category A is 60 per cent for the 2012-13 financial year, 70 per cent for the 2013-14 financial year and 75 per cent for the 2014-15 financial year. The annual captioning target for Category B is 40 per cent for the 2012-13 financial year, 50 per cent for the 2013-14 financial year and 55 per cent for the 2014-15 financial year. The annual captioning target for Category C is 30 per cent for the 2012-13 financial year, 40 per cent for the 2013-14 financial year and 45 per cent for the 2014-15 financial year.

 

115.    If the subscription television licensee decides not to nominate any service then each of  the subscription television movie services provided by the subscription television licensee will be Category A subscription television movie services (proposed paragraphs 130ZVA(2)(b) and 130ZVA(3)(b) refer).

 

116.    For example, if a subscription television licensee provides 11 subscription television movie services, the licensee can nominate 6 of those services to be Category A subscription television movie services , one service to be Category B subscription television movie services and the remaining services will be Category C subscription television movies services.

 

117.    Proposed subsection 130ZVA(4) provides that this section does not apply to a subscription television service provided by a subscription television licensee which is no more than a time-shifting service or a high definition simulcast service.

 

Section 130ZW - Categories for subscription television general entertainment services

 

118.    Section 130ZW provides for the identification of the different categories of subscription television general entertainment services.

 

119.    Subsection 130ZW(1) provides that if a subscription television licensee provides at least one, but fewer than 19 subscription television general entertainment services in a financial year, those services are Category A subscription television general entertainment services for the financial year.

 

120.    Subsection 130ZW(2) provides that if a subscription television licensee provides more than 18, but fewer than 35 subscription television general entertainment services in a financial year, then the subscription television licensee can give written notice to the ACMA before of the end of the financial year nominating 18 of those services to be Category A subscription television general entertainment services for the financial year, with the remainder of subscription television general entertainment services being Category B subscription television general entertainment services for the financial year.

 

121.    Subsection 130ZW(3) provides that if a subscription television licensee provides more than 34 subscription television general entertainment services in a financial year the subscription television licensee can choose to nominate 18 of those services to be Category A subscription television general entertainment services for the financial year, and 16 additional services to be Category B subscription television general entertainment services for the financial year. The remainder of those services would fall within Category C subscription television general entertainment services .

 

122.    The different categories of subscription television general entertainment services are subject to different annual captioning targets. The annual captioning target for Category A is 40 per cent for the 2012-13 financial year, 50 per cent for the 2013-14 financial year and 55 per cent for the 2014-15 financial year. The annual captioning target for Category B is 30 per cent for the 2012-13 financial year, 40 per cent for the 2013-14 financial year and 45 per cent for the 2014-15 financial year. The annual captioning target for Category C is 15 per cent for the 2012-13 financial year, 20 per cent for the 2013-14 financial year and 25 per cent for the 2014-15 financial year.

 

123.    If the subscription television licensee decides not to nominate any service, then each of the subscription television general entertainment services provided by the subscription television licensee will be Category A subscription television general entertainment services (paragraphs 130ZW(2)(b) and 130ZW(3)(b) refer).

 

124.    For example, if a subscription television licensee provides 43 subscription television general entertainment services , the licensee can nominate 18 services to be Category A subscription television general entertainment services , 16 services to be Category B subscription television general entertainment services and the remaining services will be Category C subscription television general entertainment services .

 

125.    Proposed subsection 130ZW(4) operates in a similar way to subsection 130ZVA(4) in relation to excluding time-shifting services or a high definition simulcast services.

 

Section 130ZX - Exemptions - certain subscription television services provided before 1 July 2022

 

126.    This provision allows subscription television licensees that provide more than the minimum number of subscription television services in a particular genre category to be exempt from the captioning requirements for a certain number of those subscription television services. The number of services that are exempt will decrease over time, until the exemption ceases to apply on 1 July 2022. This provision is intended to be a transitional measure to assist subscription television licensees to implement captioning on all services.

 

Subscription television movie services

 

127.    Where a subscription television licensee has captioned 11 subscription television services which specialise in movies in accordance with proposed subsection 130ZV(1) for the financial year, the licensee can give written notice to the ACMA, no later than 30 days after the end of the financial year, nominating for one or more of the additional subscription television services to be exempt from the captioning requirements. The number of additional subscription television movie services that are exempt is calculated using the formula in subsection 130ZX(2). The exemption percentage is set out under proposed subsection 130ZX(11). 

 

128.    For example, if a licensee has 14 subscription television movie services in 2013-14, then 3 additional services are exempt (14-11= 3 additional services @ 100% exemption percentage = 3 exempt services).

 

129.    For example, if a licensee has 15 subscription television movie services in 2015-16, then 4 additional services are exempt (15-11= 4 additional services @ 80% exemption percentage = 3.2 exempt services which rounds up to 4). Proposed subsection 130ZX(12) requires numbers to be rounded up to the nearest whole number.

 

130.    Paragraph 130ZX(1)(c) is intended to ensure that a licensee can nominate a service after the point at which the annual captioning target has been achieved for the 11 subscription television services. If a licensee can demonstrate that they have satisfied the captioning requirements for the whole of the financial year as of 1 February, for example, the licensee may nominate services for exemption at that point. Alternatively, if the captioning targets are not satisfied until the final day of the financial year, the licensee has 30 days after the end of the financial year to nominate services for exemption.

 

Subscription television general entertainment services

 

131.    Proposed subsections 130ZX(3) and (4) apply where a subscription television licensee has captioned 43 subscription television general entertainment services . The application of this provision is similar to proposed subsections 130ZX(1) and (2) and discussed in detail above.

 

Subscription television news services

 

132.    Proposed subsections 130ZX(5) and (6) apply where a subscription television licensee has captioned 3 subscription television news services . The application of this provision is similar to proposed subsections 130ZX(1) and (2) and discussed in detail above.

 

Subscription television sports services

 

133.    Proposed subsections 130ZX(7) and (8) apply where a subscription television licensee has captioned 7 subscription television sports services . The application of this provision is similarly to proposed subsections 130ZX(1) and (2) and discussed in detail above.

 

Subscription television music services

 

134.    Proposed subsections 130ZX(9) and (10) apply where a subscription television licensee has captioned 6 subscription television music services . The application of this provision is similar to proposed subsections 130ZX(1) and (2) and discussed in detail above.

       

135.    Proposed subsection 130ZX(11) sets out the exemption percentage for a financial year before 1 July 2022.

 

136.    Proposed subsection 130ZX(12) provides that if a number worked out using the formula in subsection 130ZX(2), (4), (6), (8) or (10) is not a whole number, the number is to be rounded up to the nearest whole number.

 

137.    Subsection 130ZX(13) excludes time-shifting subscription television services and high definition simulcast subscription television services from counting as captioned services under proposed paragraphs 130ZX(1)(b), (3)(b), (5)(b), (7)(b) and (9)(b). This provision is intended to maximize the amount of content made available to hearing impaired persons by ensuring that different subscription television services which essentially transmit the same stream of programming are not counted twice for the purposes of paragraphs 130ZX(1)(b), (3)(b), (5)(b), (7)(b) and (9)(b).

 

Section 130ZZ - Captioning services for repeats of television programs

 

138.    Proposed section 130ZZ obliges a subscription television licensee to provide captioning services for television programs transmitted on a subscription television service in circumstances where the program has previously been transmitted with captions on the same service, or on another subscription television service provided by the licensee.

 

139.    If a subscription television licensee has captioned a television program on a subscription television service and the television program was later transmitted on a time-shifting service or another subscription television service, the later program must also be captioned.  For example, if a program is broadcast on Sci Fi Channel with captions, and the re-broadcast on affiliated time-shifted service Sci Fi+2, the time-shifted program would be required to contain the same captions.

 

140.    In circumstances where a subscription television licensee has previously captioned a television program and the television program is transmitted on another subscription television service with captioning (excluding time-shifting subscription television services or high definition simulcast subscription television services), the captioning could count towards the licensee meeting their annual captioning targets under section 130ZV for both service.

 

141.    Compliance with section 130ZZ is a licence condition for subscription television broadcasting licensees and subscription television narrowcasting licensees.

 

Section 130ZZAA - Captioning services for simultaneously transmitted television programs

 

142.    Proposed section 130ZZAA obliges a subscription television licensee who transmits a television program on two subscription television services, simultaneously, to caption the second service if it has captioned the first service. For example, if a program is broadcast on LifeStyleYou with captions, and then simultaneously broadcast on affiliated High Definition (HD) service, LifeStyleHD, the program on the HD will be required to also contain captions.

 

143.    Compliance with section 130ZZAA is a licence condition for subscription television broadcasting licensees and subscription television narrowcasting licensees.

 



Division 4

Captioning standards

 

Section 130ZZA - Captioning Standards

 

144.    Subsection 130ZZA(1) would empower the ACMA, by legislative instrument, to determine standards that relate to the quality of captioning services for television programs provided by commercial television broadcasting licensees, national broadcasters, subscription television broadcasting licensees and subscription television narrowcasting licensees.

 

145.    Subsection 130ZZA(2) defines quality as including the readability, comprehensibility and accuracy of the captioning service.

 

146.    Subsection 130ZZA(8) would require the ACMA to take all reasonable steps to ensure that a standard is in force, at all times, after the end of the 12-month period that begins at the commencement of this provision . The purpose for developing a captioning standard is to address concerns raised by broadcasters, disability groups and the ACMA regarding the uncertainty surrounding the quality of captioning provided by broadcasters. Captioning standards will obligate broadcasters to provide a consistent quality of captioning services across services and will ensure captioning services are meaningful to the viewer.

 

147.    Subsection 130ZZA(3) extends the application of section 589 of the Telecommunications Act 1997 to the standards determined under subsection 130ZZA(1), to allow the ACMA to incorporate by reference into the captioning standard any other written document that exists from time to time (including a document that does not exist until after the standard is made).

 

148.    S ubsections 130ZZA(4), (6) and (7) make compliance with captioning standards a licence condition for commercial television broadcasting licensees, subscription television broadcasting licensees and subscription television narrowcasting licensees.

 

149.    Subsection 130ZZA(5) requires a national broadcaster to comply with a standard determined by the ACMA under proposed subsection 130ZZA(1).

 

Division 5

Emergency warnings

 

Section 130ZZB - Emergency warnings

 

150.    Proposed section 130ZZB places an obligation on commercial television broadcasting licensees, national broadcasters and subscription television licensees, when requested by an emergency service agency, to transmit emergency warnings in the form of text and speech, and to also caption those warnings where reasonably practicable to do so.

 

151.    The purpose of this provision is to ensure that emergency warnings are transmitted in a visual and verbal format so that vision or hearing impaired persons have access to emergency information. Examples of a visual format include a textual overlay (such as crawlers/tickers or flippers), while a voice over would be appropriate as a verbal format. However, this provision is intended to be technologically neutral.  

 

152.    If it is reasonably practicable for a licensee or a broadcaster to also provide a captioning service, the captioning can be provided through either open or closed captioning. When determining whether it is reasonably practicable to provide a captioning service, the licensee or broadcaster must first consider what is possible in the circumstances and whether it is reasonable in the circumstances. For example, if an emergency service agency requests that an emergency warning be broadcast immediately due to the high risk, then it may not be reasonably practicable for a licensee or broadcaster to also provide a captioning service. However, if the licensee or broadcaster has sufficient time to include captioning then it may be reasonably practicable to provide a captioning service.

 

153.    Compliance with section 130ZZB is a licence condition for commercial television broadcasting licensees, subscription television broadcasting licensees and subscription television narrowcasting licensees.  

 

Division 6

Reports and record-keeping

 

Section 130ZZC - Annual compliance reports

 

154.    Commercial television broadcasting licensees and national broadcasters are required to prepare and give a report to the ACMA, within 90 days after the end of each financial year,  regarding their compliance with their obligations under proposed new Divisions 2, 4 and 5 of Part 9D during that financial year (proposed subsections 130ZZC(1) and (3) refer).

 

155.    Subscription television licensees that are a body corporate, are required to prepare and give a report to the ACMA, within 90 days after the end of each financial year, regarding their compliance with their obligations under proposed Divisions 3, 4 and 5 of the new Part 9D during that financial year (proposed subsection 130ZZC(5)).

 

156.    The requirement to provide annual compliance reports is a licence condition for commercial television broadcasting licensees, subscription television broadcasting licensees and subscription television narrowcasting licensees.

 

157.    Proposed subsections 130ZZC(2), (4) and (6) provide that the annual compliance reports to be provided must be in a form approved in writing by the ACMA and set out the relevant information required. 

 

158.    The ACMA must publish a copy of the reports received from commercial television broadcasting licensees, national broadcasters and subscription television licensees on its website as soon as practicable. This would allow the general public to access information about a licensee or broadcaster’s compliance in meeting their captioning obligations under proposed Divisions 2, 3, 4 and 5 of Part 9D (proposed subsection 130ZZC(7)).

 

Section 130ZZD - Record-keeping

 

159.    A commercial television broadcasting licensee, a national broadcaster and a subscription television licensee that is a body corporate must make and retain compliance records for each financial year, in a form approved by the ACMA in writing, for a period of up to 90 days from when the annual compliance report is given to the ACMA under proposed section 130ZZC. If requested by the ACMA, the licensee or broadcaster must make available to the ACMA, without charge, any compliance records made by the licensee or broadcaster which have been retained (proposed subsections 130ZZD(1), (2) and (3) refer).

 

160.    Proposed subsection 130ZZD(4) provides that compliance records are records that contain information which will enable:

 

·          a commercial television broadcasting licensee or a national broadcaster to assert their compliance with their obligations under proposed Divisions 2, 4 and 5 of Part 9D for a financial year; and

·           a subscription television licensee to assert their compliance with their obligations under proposed Divisions 3, 4 and 5 of Part 9D for a financial year

 

161.    The type of compliance records the ACMA could request include weekly reports on the amount and length of television programs captioned or requiring broadcasters to retain a copy of captioned television programs to demonstrate the quality of captioning.

 

162.    Compliance with section 130ZZD is a licence condition for commercial television broadcasting licensees, subscription television broadcasting licensees and subscription television narrowcasting licensees.

 

Division 7

 Review of this Part etc.

 

Section 130ZZE - Review of this Part etc.

 

163.    Subsection 130ZZE(1) requires the ACMA to conduct a review of the following matters before 31 December 2015:

 

·          the operation of Part 9D and whether it should be amended;

·          the operation of paragraph 7(1)(o) of Schedule 2 and whether it should be amended;

·          the operation of paragraph 10(1)(eb) of Schedule 2 and whether it should be amended; and

·          the operation of paragraph 11(1)(bc) of Schedule 2 and whether it should be amended.

 

164.    The specified paragraphs in Schedule 2 impose licence conditions requiring compliance with Part 9D.

 

165.    In conducting the review, the ACMA must engage in public consultation (proposed subsection 130ZZE(2) refers).

 

166.    The ACMA must give the Minister a report of the review before 30 June 2016 (proposed subsection 130ZZE(3) refers). The Minister must table copies of this report in each House of the Parliament within 15 sitting days of that House after receiving the report.

 

Item 3 - Section 150

 

167.    Item 3 makes a technical amendment to section 150 of the BSA that is consequential to the amendment made by Item 4.

 

Item 4 - At the end of section 150

 

168.    Item 4 amends section 150 of the BSA to broaden the circumstances in which a person can make a complaint to the ACMA to include complaints on the grounds that the Australian Broadcasting Corporation (ABC) or the Special Broadcasting Service Corporation (SBS) have breached Part 9D. It is intended that the ABC and SBS will respond to complaints within 30 days after receiving a complaint from a person. However, if the ABC or the SBS does not respond within the required timeframe or the response received is not considered by the complainant to be adequate, the complainant may make a complaint to the ACMA regarding the breach.  The 30-day period will ensure that complaints are dealt with in a timely manner.

 

Item 5 - Subsection 204(1) (after table item dealing with subsection 123(4))

 

169.    Item 5 is a consequential amendment to proposed sections 130ZUA and 130ZY and amends subsection 204(1) of the BSA to confer on the Administrative Appeals Tribunal (AAT) the power to review decisions made by the ACMA under proposed sections 130ZUA and 130ZY, being the decision to make or refuse to make an exemption order or target reduction order. Where the ACMA makes an exemption order or target reduction order, any person whose interests are affected by the decision can seek merits review. In the case of a decision to refuse to make an exemption order or target reduction order, only the applicant can seek review from the AAT.

 

Item 6 - Paragraph 7(1)(o) of Schedule 2

 

170.    This item would repeal paragraph 7(1)(o) of Schedule 2 to the BSA and substitute a new provision which makes compliance with the captioning obligations in new Part 9D a condition of a commercial television broadcasting licence.

Item 7 - After paragraph 10(1)(ea) of Schedule 2

 

171.    This item introduces a new licence condition on subscription television broadcasting licensees. The condition requires compliance with new Part 9D of the BSA to the extent that it applies to a subscription television broadcasting service.

 

Item 8 - After paragraph 11(1)(bb) of Schedule 2

 

172.    This item introduces a new licence condition on services provided under a class licence. The condition requires compliance with new Part 9D of the BSA to the extent that it applies to the licensee. In practice, this licence condition applies only to persons who provide subscription television narrowcasting services.

 

Item 9 - Clause 1 of Schedule 4

 

173.    This item makes a technical amendment to the outline in clause 1 of Schedule 4 to the BSA which is consequential to the amendment made by Item 2.

 

Item 10 - Division 3 of Part 4 of Schedule 4

                                                        

174.    This item is consequential to Item 2 and repeals Division 3 of Part 4 of Schedule 4 to the BSA.

 

Item 11 - Clauses 60B and 60C of Schedule 4

 

175.    This item would repeal clauses 60B and 60C of Schedule 4 to the BSA, as these provisions are now spent.

 

Item 12  - Paragraphs 60D(1)(a) and (b) of Schedule 4

Item 13  - Paragraphs 60D(1)(c) and (d) of Schedule 4

 

176.    These items make technical amendments that would omit the reference to clause 38 of Schedule 4 to the BSA and substitute it with a reference to sections 130ZR and 130ZS. This is because the special captioning rule in clause 38 is being repealed and replaced by the special captioning rules in sections 130ZR and 130ZS (which apply to digital television multi-channels). Any future statutory review will be required to consider the operation of the new sections.

 

Part 2 - Application and transitional provisions

 

177.    This Part contains application and transitional provisions.

 

Item 14  - Application - emergency warnings

 

178.    This item relates to new section 130ZZB in Schedule 1 to this Bill.

 

179.    This item will ensure that the obligations outlined under new subsection 130ZZB do not apply to the transmission of an emergency warning for a period of 7 days beginning at the commencement of this item.

 

Item 15 - Application - annual compliance reports

 

180.    This item relates to new section 130ZZC in Schedule 1 to this Bill.

 

181.    This item provides that new section 130ZZC applies to a report pertaining to the financial year beginning on 1 July 2012 or a later financial year. 

 

 

Item 16 - Application - record-keeping

 

182.    This item relates to new section 130ZZD in Schedule 1 to this Bill.

 

183.    This item provides that new section 130ZZD applies to a record pertaining to the financial year beginning on 1 July 2012 or a later financial year.