Temporary exemption: Regional television captioning

 

HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION

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

By this instrument, the Human Rights and Equal Opportunity Commission (‘the Commission') grants a temporary exemption to the Prime Media Group of companies, the WIN Corporation group of companies and the Macquarie Southern Cross Media group of companies (‘the Broadcasters') pursuant to section 55(1) of the Disability Discrimination Act 1992 (Cth) in relation to captioning of television programs.

DECISION OF THE COMMISSION

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

CONSIDERATION AND REASONS

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

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

The Commission has decided to grant the exemption for the reasons set out in the recommendation attached as schedule 3.

REVIEW OF DECISION

Subject to the Administrative Appeals Tribunal Act 1975 , application may be made to the Administrative Appeals Tribunal for a review of the decision to which this notice relates by or on behalf of any person or persons whose interests are affected by the decision.

Dated this 12th day of May 2009

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

SCHEDULE 1: EXEMPTION GRANTED

The Commission grants an exemption for the period to 31 December 2011 to the Broadcasters as described in Schedule 2 of this decision from section 24 of the DDA so far as it relates to the captioning of television programming, on conditions as set out below.

Conditions

1. Average captioning levels : The exemption is subject to the condition in relation to each Broadcaster that, measured at the end of each calendar year of the exemption, the level of captioning on each broadcaster's primary channel should average at least:

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

2. Reporting and consultation : The exemption is subject to the conditions that:

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

If a Broadcaster fails to comply with a condition of the exemption, the exemption will cease to operate in relation to that Broadcaster from the date of such failure.

3. Further conditions :

• All Broadcasters are to caption programs (other than sport) that commence in prime time until their conclusion.
• Broadcasters are to caption all new P and C (preschool and children's) programs.
• Programs do not include advertising, sponsorship or promotional material, or community service announcements.
• Captioned programs include foreign language subtitled programs.
• Hours of programs broadcast exclude foreign language programs exempted by clause 38(7) of Schedule 4 of the Broadcasting Services Act 1992 .

Schedule 2: Television broadcasters covered by this exemption

Prime Media Group of companies : This exemption applies to broadcasters which are members of the Prime Media Group of companies, as listed on its website at http://www.primemedia.com.au/ and including Prime Television channels and GWN channels

WIN Corporation group : This exemption applies to broadcasters which are members of the WIN Corporation group as listed on its website at http://www.wintv.com.au/about.php and including WIN Television channels, , NBN channels, Channel 9 Perth and Channel 9 Adelaide

Macquarie Southern Cross Media : This exemption applies to broadcasters which are members of the Macquarie Southern Cross Media group as listed on its website at http://www.southerncrossbroadcasting.com.au/ including Southern Cross Ten and Southern Cross Television broadcasters.

Schedule 3: Reasons

The Commission has received an application on behalf of the Prime Media Group group of companies, the WIN Corporation group of companies and the Macquarie Southern Cross Media group of companies, pursuant to section 55(1) of the Disability Discrimination Act 1992 (Cth) for an exemption in relation to captioning of television programs.

The applications seek an exemption on the same terms as the exemption granted by the Commission on 13 October 2008 to ABC TV; SBS Television; Network Ten; Channel Nine; and the Seven Network

That exemption ("network TV exemption no.3") followed earlier exemptions granted by the Commission, which had provided for staged increases in levels of captioning provided.

Network TV exemption no.3 was granted subject to a number of conditions proposed by the applicants for a further process of staged increases in captioning levels.

In particular, Network TV exemption no.3 is subject to the condition in relation to each broadcaster that, measured at the end of each calendar year of the exemption, the level of captioning on each broadcaster's primary channel should average at least:

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

Network TV exemption no.3 is also subject to the conditions that

• By 30 June 2009 broadcasters are to report to the Commission on the results of consultation with deafness organisations including Deaf Australia and the Deafness Forum of Australia, on proposals to address issues regarding accuracy of captioning;
• By 30 June 2010 broadcasters are to report to the Commission on consultation with deafness organisations on captioning hours being achieved measured over the whole day, that is, including the period between 12 midnight and 6 am;
• By 31 December 2010 broadcasters are to report to the Commission on consultation with deafness organisations on captioning levels being achieved on secondary channels;
• By 31 December 2010 broadcasters are to commence consultation with deafness organisations and the Commission, in order to review possibilities for further increases in captioning at the expiry of the exemption period, and are to report to the Commission on the results of that review by 30 June 2011.

Invitation for public comment and submissions received

In accordance with the Commission's policy on exemption applications, a Notice of Inquiry and request for comments was published on 9 March 2009 on the Commission's website (after consultation with the Directors of Complaint Handling Services and Legal Services).

Submissions were requested by 6 April 2009. As provided for in the Commission's policy on exemption applications, the period for comments in this instance was reduced from the six weeks generally provided by the Commission to a four week period, in view of previous consideration of these issues by the Commission including consultation with interested parties.

Submissions were received from the Deafness Forum of Australia; the Deafness Council of Western Australia; and the Australian Federation of Deaf Societies.

The Deafness Forum of Australia and the Deafness Council of Australia both note that, although they had raised a number of concerns prior to the Commission's decision to grant Network TV exemption no.3, the Commission having decided that matter as it did it would now be only logical to grant the same exemption to the parties to the present application, subject to the Commission's decision providing a clear statement of which organisations are covered by the exemption.

The Australian Federation of Deaf Societies submit that the application is not supported by adequate reasons; and in particular that the Commission should not conclude that unjustifiable hardship would be involved in providing non-discriminatory access through provision of adequate captioning. They submit that granting the exemption would be inconsistent with the Convention on the Rights of Persons with Disabilities, ratified by Australia . They argue that an exemption could only be motivated by maintaining social exclusion of people with disability in Australia .

Discussion

The objection by the Australian Federation of Deaf Societies (provided in PDF format) does not refer to or discuss the reasons accepted by the Commission for granting Network TV exemption no.3, and it may be useful accordingly to restate here relevant portions of those reasons.

In my recommendation accepted by the Commission, I said:

In my view it would be consistent with the objects of the DDA for the Commission to grant an exemption - not in terms which preserve or reinstate the status quo as at 28 May 2008 in full, but which maintain the same rate of progress towards equality of access as provided by the previous exemption.

The principal condition on the previous decision of the Commission, which granted an exemption with broad disability community support, required annual increases in captioning levels of approximately 5%.

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

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

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

I agree with the Australian Federation of Deaf Societies that the Convention on the Rights of Persons with Disabilities ought to be considered by the Commission in the exercise of its powers under the DDA but not that the Convention requires refusal of the present application (or of temporary exemptions more generally).

Relevant obligations of parties of the Convention in relation to elimination of discrimination by non-State actors, under article 4, include

(a) To adopt all appropriate legislative, administrative and other measures for the implementation of the rights recognized in the present Convention;

(b) To take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices that constitute discrimination against persons with disabilities;

(e) To take all appropriate measures to eliminate discrimination on the basis of disability by any person, organization or private enterprise.

It will be seen that in each instance a judgment is required as to what measures will be appropriate.

This is so whether the rights in question are characterised as civil and political rights, or as economic social and cultural rights in relation to which the Convention provides (in article 4.2 and in common with the International Covenant on Economic Social and Cultural Rights) that rights are to be fulfilled by progressive implementation and to the maximum of available resources.

In my view the approach adopted by the Commission in Network TV exemption no.3 is consistent with the requirements of the Convention on the Rights of Persons with Disabilities.

I also note (as I did in recommending Network TV exemption no.3) that a decision to grant an exemption in this matter would not constrain the ability of the Australian Government to impose more demanding captioning requirements if it saw fit, including in response to the current review of captioning and other media access issues, in response to the Government's responsibilities arising from Australia's obligations under the Convention.

Recommendation

Having regard to

• the Commission's decision regarding Network TV exemption no.3 and its reasons for that decision
• the process of public consultation conducted by the Commission prior to that decision
• submissions in response to the present application
• the objects of the Disabiltity Discrimination Act and
• the terms of the Convention on the Rights of Persons with Disabilities

I recommend that the present applicants be granted an exemption on the same terms, as they request.

David Mason

Director Disability Rights policy