Television Captioning: withdrawal of proposal to terminate complaints as adequately remedied
Summary
After considering submissions in response to my proposed recommendation to terminate complaints regarding broadcast television captioning, I have decided to withdraw this proposal.
I accept the views put by several organisations of deaf and hearing impaired people that the requirements introduced by regulations under the Broadcasting Services Act for captioning of news, current affairs and prime time television, although an important advance, should not be accepted as an adequate remedy for complaints seeking captioning of broadcast television in full, even on the interim basis I proposed, without further agreement or specification of processes to achieve or at least examine further increases in captioning over time.
Accordingly, the Commission will be contacting interested parties shortly to discuss options for resolution of this matter.
Discussion
On 1 December 2000 I issued for comment a proposal to recommend to HREOC's President that she terminate those complaints under the Disability Discrimination Act into which I have been conducting a public inquiry on her behalf.
This proposal was made having regard to the fact that captioning standards have been made under the Broadcasting Services Act. These standards took effect from 1 January 2001 and require licensees and national broadcasters to provide a captioning service for
- all television programs transmitted during prime viewing hours; and
- all television news programs, and television current affairs programs, transmitted at any time
except that for regional television broadcasts requirements regarding unscripted speech on news programs are deferred until 31 December 2003. These provisions also exclude advertising and sponsorship material.
I did not and do not accept that these standards (or the Broadcasting Services Act itself in providing for their making) displace the application of the DDA to captioning of broadcast television as a matter of law. However, it appeared (and still appears) appropriate to take these standards into account, in considering whether the President of HREOC should exercise her discretion to terminate a complaint, whether as adequately remedied or as having a more appropriate remedy reasonably available.
In my proposal I stated that: "A remedy can be, and in my view in this case is, "adequate" for present and interim purposes although it is less than the state of affairs which is desirable and may be required in the longer term."
In response, I have received one submission supporting the proposed termination (from ABC Television) and three opposing it (from the Australian Association of the Deaf, the Deafness Council of Western Australia, and the Deafness Forum of Australia).
The submission from the Australian Association of the Deaf recognises that the captioning standards "are a great improvement on the levels that existed at the time of complaint"; but expresses concern regarding a lack of plans to increase levels of captioning further from current levels.
The Deafness Council of Western Australia states similarly that "the captioning standards that apply from January 1 are a huge achievement and are a credit to the free to air television stations and all involved." It accepts that "satisfactory progress has definitely occurred since the complaints were made in 1999", but states that "the concern is whether there will be further progress in future. The captioning standards do not appear to provide a mechanism for future coverage of daytime television other than current affairs. Children's television, sports broadcasts, daytime movies and other daytime entertainment are generally not captioned. The way forward for full caption coverage of free to air television is not clear."
The Deafness Forum of Australia also states that "There is a need for a commitment by the TV industry to future progress" and that "the current situation must not be seen as the end point."
In my proposal I referred to a previous decision, in the context of a complaint regarding railway station access, that actions and commitments to achieve equal access over a reasonable time should be recognised as adequately remedying a complaint, rather than completion of the process with achievement of full accessibility in practice being required before an adequate remedy can be seen to have been provided.
I am persuaded by submissions, however, that it would be premature to apply this principle in this case, given a lack of commitments or regulatory requirements to increase captioning further over time, or at least to examine the feasibility of further increases.
Accordingly, I have concluded that I could only properly recommend that these complaints be considered adequately remedied if processes to expand and increase captioning further as far as possible were put in place, whether by agreement or by further regulatory action.
This conclusion does not depend on any particular view of what level and rate of further increases in captioning may be possible and required in the circumstances of the various Australian broadcasters. It may be helpful, however, to set out here some possible positions in this respect.
The Australian Association of the Deaf's submission indicates a target of 95% captioning by 2003 and 100% by 2005. It also refers to "world's best practice" in this area.
I note below some overseas requirements previously noted in the course of this inquiry and HREOC's prior more general inquiry on captioning.
The United States Federal Communications Commission ordered as follows in 1997:
- For new programming captioning is required for 95 % of non-exempt programming, measured per channel over each calendar quarter (the remaining 5% exemption being provided for unavoidable or unforeseen difficulties)
- For programming pre-dating August 1997 75 % of non exempt programming is required to be captioned by the end of the transition period.
- Transition periods are provided of eight years for new programming and ten years for programming pre-dating the new rule.
- There are interim benchmarks for new programming during the transition period.
- For older programming there are no interim benchmarks but a review by the FCC of progress is required at the four year point.
- Exemptions are provided for non-English language programming; primarily textual programming; programming distributed between 2 am and 6 pm; interstitial announcements; promotional programming and public service announcements; advertising; certain locally-produced and distributed programming; non-vocal musical programming; and programming on new networks.
In the United Kingdom, there are Independent Television Commission requirements for 50% captioning initially, 80% captioning by 2004, with a review in 2001 to decide whether movement beyond 80% is feasible.
In Canada, licence conditions imposed by the Canadian Radio and Television Commission require achievement of 90% captioning by the end of current licence terms (generally 2001-around 2002). It is also important to note however a recent decision of the Canadian Human Rights Tribunal, in November 2000, that compliance with these conditions did not automatically satisfy the requirements of the Canadian Human Rights Act (which is in similar terms to Australia's Disability Discrimination Act in relevant respects), and that full captioning was required in the case concerned "at the first reasonable opportunity".
The Federation of Australian Commercial Television Stations has previously noted that these overseas requirements cannot be automatically be regarded as applicable in Australia and has pointed to the much smaller size of the Australian television market, in particular in regional areas. My point in referring to these overseas requirements is not to present any of them as automatically applicable but to set out some markers for discussion of possible results.
If this matter cannot be resolved by agreement, it would be open to current or future complainants to pursue the matter in the Federal Court. Possible results in the Court could include:
- A decision that (contrary to my own view) the operation of the DDA in this area is in fact displaced by the regulations under the Broadcasting Services Act so that broadcasters have no obligations to go beyond the requirements of those regulations;
- A decision, similar to that of the Canadian Human Rights Tribunal, that whatever may be provided by the broadcasting regulatory regime, discrimination law requires full captioning without further delay;
- A decision that increased captioning must be achieved over a period of years up to the point possible without unjustifiable hardship (which might be similar in the result to the United States requirements subject to further evidence regarding the impact of Australian market conditions).
Having regard to the costs and uncertain results of litigation I consider that it would be preferable for this matter to be resolved if possible by agreement on a process, or processes, for achievement or examination of further increases in captioning over time. Accordingly, the Commission will be contacting interested parties shortly to invite them to discuss options for resolution of this matter.
Pending this, the complaints which are the subject of this inquiry remain open.
Graeme Innes AM
Deputy Disability Discrimination Commissioner
29 January 2001