2016-2017-2018-2019

 

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

 

SENATE

 

 

 

 

 

BROADCASTING AMENDMENT (AUDIO DESCRIPTION) BILL 2019

 

 

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

(Circulated by authority of Senator Jordon Steele-John)

BROADCASTING AMENDMENT (AUDIO DESCRIPTION) BILL 2019

 

General Outline

 

The Broadcasting Amendment (Audio Description) Bill 2019 will amend the Broadcasting Services Act 1992 (Broadcasting Services Act) to provide for a minimum number of hours of audio description to be provided per week on television by national broadcasters, commercial television broadcasting licensees and subscription television licensees. The proposed amendments will ensure enforcement of these requirements is under the ambit of the Australian Communications and Media Authority (ACMA). This will occur via the insertion of a proposed new Part 9D - Division 3A and consequential amendments.

 

The Bill aims to introduce a requirement for broadcasters to provide a minimum number of hours of audio description per week into Part 9D of the Broadcasting Services Act. This would assist people who are blind or have low vision to access television services, and provide clear legislative guidance to broadcasters as to their obligations to provide audio description.

 

Standards in relation to captioning were first introduced in Australia with the Television Broadcasting Services (Digital Conversion) Act 1998 and were further strengthened through the introduction of Part 9D into the Broadcasting Services Act , via the Broadcasting Services Amendment (Improved Access to Television Services) Act 2012 . The Bill will draw on the existing legislative and regulatory framework as it applies to captioning and provide differently for audio description where appropriate.

 

 

Financial Impact Statement

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

 

 

NOTES ON CLAUSES

 

Clause 1 - Short Title

 

1.       Clause 1 provides for the Bill, when enacted, to be cited as the Broadcasting Services Amendment (Audio Description) Act 2019 .

 

Clause 2 - Commencement

 

2.       This clause provides that the whole of the Act commences on the after day the Act receives the Royal Assent.

 

3.       While the Bill is to commence after the Royal Assent, the basic rule in new section 130ZZAC will only apply 18 months after commencement. This is important in order to provide broadcasters with advance notice of the basic rule and their audio description obligations in Division 3A (see description of item 12 below).

 

 

Clause 3 - Schedules

 

4.       Clause 3 is an application provision specifying that each Act specified in a Schedule to the Act is amended or repealed as is set out in the applicable items in the Schedule, and that any other item in a Schedule has effect according to its terms.

 

 

Schedule 1 - Amendments

5.       Schedule 1 to the Bill contains amendments to the Broadcasting Services Act relating to adding audio description to television programs for blind and low vision people.

 

Items 1-3

6.       Items 1-3 propose to include audio description as a part of a television program for people who are blind or have low vision by repealing the heading in section 8A of the  Broadcasting Services Act and substituting “captioning and audio description taken to be part of the program”.

 

7.       Item 2 proposes to insert a new subsection 8A(1A) into the Act, which provides: “For the purposes of this Act, if there is an audio description of a television program for people who are blind or have low vision, the audio description is taken to be part of the program.”

 

Items 4 and 5

8.       Items 4 and 5 propose to amend section 123 of the Act to provide that codes of practice developed for a section of the broadcasting industry may relate audio description of television programs for people who are blind and have low vision.

 

Items 6 and 7

9.       Items 6 and 7 propose to amend the heading and simplified outline of Part 9D provide that the Part relates to both captioning and audio descriptions.

 

Item 8

10.   Item 8 inserts a definition of audio description in to section 130ZK of the Act, and provides examples of how it can assist blind and low vision people. This item defines ‘audio description start time’ as meaning the first July occurring at least 18 months after the commencement of the Bill.

 

Items 9 to 11

11.   Items 9 to 11 set out exceptions to provide that audio description does not apply to a program that is wholly in a language other than English, or consists of music that has no vocal content that is recognisable as being in the human language. For the purposes of these exceptions, minor and infrequent usage of the English language is the be disregarded. The items provide this by repealing sections 130ZM and 130ZN, and inserting new section 130ZQA before section 130ZV; and new section 130ZUC before section 130ZV of the Act.

 

Item 12

12.   Item 12 inserts new Division 3A—Audio description obligations. The first section in this division, new section 130ZZAC outlines an exemption for audio description obligations for programs consisting of music that has no vocal content that is recognisable as being in the human language, disregarding minor and infrequent usage of the English language.

 

New section 130ZZAD

13.   New section 130ZZAD outlines the basic rules for audio description and audio description obligations. This is the core policy component of the Bill. The Bill provides that each commercial television broadcasting licensee, national broadcaster, and subscription television licensee, must provide an audio description service for a minimum total volume of program hours per week as required by the basic rule.

 

14.   The minimum number of hours will increase gradually after the initial period of operation of the regime; the basic rule sets out the minimum number of broadcast program hours that are required to be audio described as follows:

·          First three years - a minimum of 14 hours per week;

·          Fourth year - a minimum of 21 hours per week;

·          Fifth year - a minimum of 28 hours per week.

 

15.   New subsection 130ZZAD(3) provides that a television program with audio description that has been previously transmitted does not count towards the number of hours set out in subsection (2).

 

16.   The basic rule will come into effect 18 months from commencement.

 

New section 130ZZAE

17.   New section 130ZZAE provides for a process by which exemption orders can be granted by ACMA to the licensee in circumstances of unjustifiable hardship. In doing this, it provides for criteria under which an exemption order may be considered, granted, or denied and it clarifies the scope of such exemption orders. The new section 130ZZAE only provides for exemption orders, and not target reduction orders. The intention is that no broadcasters will be able to apply for target reduction orders in relation to audio description obligations under new Division 3A. Subsection (14) merely clarifies that an exemption is not a legislative instrument (i.e. it does not provide a new exemption from the Legislation Act 2003 ). Section 130ZZAE covers national broadcasters, commercial television broadcasting licensees and subscription television licensees.    

 

New section 130ZZAF

18.   Section 130ZZAF sets out circumstances under which breaches by licensees of their audio description obligations can be disregarded. Certain breaches of a technical nature can be disregarded for commercial television broadcasting licensees, national broadcasters and subscription television licensees.

 

Items 13 to 15

19.   Items 13 to 15 amend the headings to Division 4 of Part 9D and section 130ZZA and add a new heading to subsection 130ZZA(1), to provide that the Division and section 130ZZA relate to both captioning and audio description standards.

 

 

 

Item 16

20.   Item 16 insets new subsections 130ZZA(2C) and (2D) to provide that ACMA may determine standards that relate to the quality of audio description produced by all licensees that come under the Bill. New subsection (2D) provides the clarification that: “for the purposes of subsection (2C), quality includes but is not limited to: audibility; and comprehensibility; and accuracy”.

 

Items 17 and 18

21.   Items 17 and 18 insert new subsections 130ZZA(3A), (3B) and (3C). These new subsections provide that in the determination of standards under subsections 130ZZA(1) (2C), and in any review of these standards, the ACMA must consult with persons appearing to them to represent the interests of persons who are deaf or hearing impaired, and persons who are blind or have low vision, as well as persons providing captioning or audio description services.

 

Items 19 to 26

22.   Items 19 to 26 relate to compliance by licensees with standards made by the ACMA. In doing this, they clarify the ACMA’s role in the creation of legislative instruments to determine the quality of audio description across relevant platforms. In doing so, these items seek to obligate ACMA to take all reasonable steps to ensure that standards are in force under new subsection 130ZZA(2C).

 

Items 27 to 29

23.   Items 27 to 29 seek to ensure accountability by broadcasters, by requiring broadcasters to prepare and give to ACMA reports relating to compliance with Division 3A. In order to facilitate the participation of the disability sector in reviewing reports published by the ACMA, item 29 seeks to insert new subsection 130ZZC(8) which requires reports to be published in accessible formats.

 

Items 30 and 31

24.   Items 30 and 31 clarify that the record keeping obligations of broadcasters, including subscription television licensees that are body corporates, including keeping records that enable compliance with audio description requirements to be readily ascertained.

 

Item 32

25.   Item 32 inserts new sections 130ZZF and 130ZZG.

 

26.   New section 130ZZF requires ACMA to conduct a review within two years of the commencement of the Bill. New subsection 130ZZF(1) details matters which must be examined in the review. The review will allow the ACMA to assess whether the provisions inserted by the Bill are working effectively, and to consult with users on their experience of using audio descriptions, including any problems in the quality of provision of services and the application of the standards. The review must be provided to the Minister within 6 months of completion, and be tabled in Parliament.

 

27.   New section 130ZZG requires ACMA to conduct ongoing reviews of the matters set out in new subsection 130ZZF(1) within 5 years after the completion of the review under section 130ZZF and 5 years after the completion of a review under this section. In the ongoing reviews, the ACMA must make provision for public consultation and must give the Minister a report of the review within 6 months. After receiving the report, the Minister must cause copies the report to be tabled in each House of the Parliament within 15 sitting days of that House after receiving the report.

 

Item 33

28.   Item 33 amends paragraph 150(2)(a) of the Act (complaints relating to national broadcasting services or datacasting services provided by the ABC or SBS) to clarify that Part 9D relates to both audio description and captioning by inserting, after ‘captioning’, ‘and audio description’.

 

Item 34

29.   Item 34 seeks to amend the table in subsection 204(1) of the Act, which provides for applications to may be made to the Administrative Appeals Tribunal for review of decisions made under the Act. Column 1 of the table lists decisions which may be reviewed; column 2 lists provisions in the Act under which reviewable decisions are made; column 3 lists persons who may make the application for review. Provisions in Part 9D that are currently listed in the table are sections 130ZUA and 130ZY, which deal with the making or refusal of exemption orders. Decisions made under new section 130ZZAE regarding exemption orders in relation to audio description are added into this table, allowing a person whose interests are affected by the decision to make the exemption order to apply for review of a decision to make the exemption order, and an applicant for an exemption order to apply for review of a decision to refuse to make an exemption order.

 

Item 35

30.   Item 35 inserts ‘audio description problems for people who are blind or have low vision’ in paragraphs 7(1)(o), 10(1)(eb) and 11(1)(bc) of Schedule 2 of the Act. This amendment clarifies, in relation to licence conditions requiring licensees to comply with applicable provisions the Act, that Part 9D of the Act deals with both captioning and audio descriptions.

 

Item 36

31.   Item 36 is an application provision. It provides that:

·          new subsection 130ZZA(3A) of the Broadcasting Services Act 1992 applies in relation to standards determined under subsection 130ZZA(1) of that Act after the commencement of the item; and

·          the amendments to section 130ZZC of the Broadcasting Services Act 1992 made by Schedule 1 to the bill apply in relation to financial years ending after the audio description start time (as defined in new section 130ZK).

 

Statement of Compatibility with Human Rights

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

 

Broadcasting Amendment (Audio Description) Bill 2019

 

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 proposes to introduce audio description requirements that apply equally across national broadcasters, commercial television broadcasting licensees and subscription television licensees. It aims to reduce complexity of existing legislation by requiring the same standard without distinction between national broadcasters, commercial television broadcasting licensees and subscription television licensees. This is consistent with the position in the United Kingdom. [1]

 

The Bill proposes to amend the Broadcasting Services Act  to deal with audio description. The key objectives of the Bill are to:

·          Promote greater access to media for those who are blind or have low vision;

·          Enable the provision of audio description in Australian legislation;

·          Introduce audio description requirements through designated viewing hours;

·          Empower the Australian Communications and Media Authority (ACMA) to ensure enforcement of the above requirements; and

·          Introduce new annual compliance reporting and record keeping requirements to support audio description obligations.

Audio description is delivered through narration to describe what is happening in a television program, movie, DVD or live performance, during the natural pauses in the dialogue. It describes actions and non-verbal cues occurring in a performance, so that people who are blind or have low vision can fully enjoy the show. Without this service, the blind and low vision audience misses critical content like action sequences conveyed in silence, sudden scene changes, and facial expressions. Currently, there is no provision for audio description in Australian legislation. This differs from the approach in many nations including the United Kingdom, the United States, Canada and New Zealand. 

 

Human rights implications

Australia is a signatory to the Covenant on the Rights of Persons with Disabilities (the CRPD) and the International Covenant on the Civil and Political Rights (the ICCPR), two of the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011) .

The Bill engages several human rights treaties and instruments:

·          Rights of people with a disability (CRPD)

·          International Covenant on Economic Social and Cultural Rights (ICESCR)

·          International Covenant on Civil and Political Rights.

Rights of people with a disability

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. This covenant recognises the barriers that people with a disability face in realising their rights. The Bill’s objectives directly promote the rights of people with a disability by promoting increased access to television services for blind and low vision people. This is consistent with Australia’s international obligations under the CRPD and domestic policies, such as the government’s social inclusion policy and anti-discrimination initiatives.

Article 15 of ICESCR

Article 15 1(a) of ICESCR states that “The state Parties to the present Covenant recognize the right to everyone to (a) Take part in cultural life.” This Bill directly addresses the difficulties that people with disabilities face in realising this right by providing a mechanism for blind and low vision people to access and enjoy television and digital services of which most Australians take for granted.

Article 26 ICCPR

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. The purpose of the Bill is to promote the rights blind and low vision people by increasing access to television services and addressing a form of discrimination that prevents them from enjoying such services as most Australians do.

Conclusively, the Bill is compatible with Australia’s international human rights obligations as it will increase access to television services for blind and low vision people and it does not raise any issues with the humans rights recognised in the international instruments referred to in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

 

 

Senator Jordon Steele-John