A Bill for an Act to amend the Broadcasting Services Act 1992, and for related purposes
The Parliament of Australia enacts:
1 Short title
This Act is the Broadcasting Services Amendment (Audio Description) Act 2019.
2 Commencement
(1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.
| Commencement information |
| Column 1 | Column 2 | Column 3 |
| Provisions | Commencement | Date/Details |
| 1. The whole of this Act | The day after this Act receives the Royal Assent. | |
Note: This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.
(2) Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.
3 Schedules
Legislation that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.
Schedule 1—Amendments
Broadcasting Services Act 1992
1 Section 8A (heading)
Repeal the heading, substitute:
8A Captioning and audio description taken to be part of program
2 After subsection 8A(1)
Insert:
(1A) 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.
3 Subsection 8A(2)
Omit “Subsection (1) is”, substitute “Subsections (1) and (1A) are”.
4 After paragraph 123(2)(i)
Insert:
(ia) audio description of television programs for people who are blind or have low vision; and
5 At the end of subsection 123(3E)
Add “or (2C)”.
6 Part 9D (heading)
Repeal the heading, substitute:
Part 9D—Captioning and audio description
7 At the end of section 130ZJ
Add “and audio description of television programs for people who are blind or have low vision”.
8 Section 130ZK
Insert:
audio description, of a television program, means commentary that describes key visual elements of the program.
Note: For example, an audio description may include commentary provided with the program to:
(a) identify speakers; and
(b) describe gestures, facial expressions and scene changes; and
(c) narrate other visual content.
audio description start time means the first 1 July occurring at least 18 months after Schedule 1 to the Broadcasting Services Amendment (Audio Description) Act 2019 commences.
9 Sections 130ZM and 130ZN
Repeal the sections.
10 Before section 130ZR
Insert:
130ZQA This Division does not apply to certain programs
(1) This Division does not apply to a television program that is wholly in a language other than English.
(2) This Division does not apply to a television program the audio component of which consists only of music that has no human vocal content that is recognisable as being in the English language.
(3) For the purposes of subsections (1) and (2), disregard minor and infrequent uses of the English language.
11 Before section 130ZV
Insert:
130ZUC This Division does not apply to certain programs
(1) This Division does not apply to a television program that is wholly in a language other than English.
(2) This Division does not apply to a television program the audio component of which consists only of music that has no human vocal content that is recognisable as being in the English language.
(3) For the purposes of subsections (1) and (2), disregard minor and infrequent uses of the English language.
12 After Division 3 of Part 9D
Insert:
Division 3A—Audio description obligations
130ZZAC This Division does not apply to certain programs
(1) This Division does not apply to a television program the audio component of which consists only of music that has no human vocal content that is recognisable as being in the English language.
(2) For the purposes of subsection (1), disregard minor and infrequent uses of the English language.
(3) This Division does not apply to live television programs.
130ZZAD Audio description obligations—basic rule
Basic rule
(1) If:
(a) a national broadcaster, commercial television broadcasting licensee or subscription television licensee transmits television programs in a week on one or more channels; and
(b) the week starts at or after the audio description start time;
the broadcaster or licensee must provide, for each channel, audio description of programs for at least the minimum number of hours for the week.
(2) For the purposes of subsection (1), the minimum number of hours for each channel is:
(a) for a week starting in the period of 36 months starting at the audio description start time—14 hours; or
(b) for a week starting in the period of 12 months after the end of the period mentioned in paragraph (a)—21 hours; or
(c) for a week starting after the end of the period mentioned in paragraph (b)—28 hours.
Note 1: For compliance by licensees, see clauses 7, 10 and 11 of Schedule 2.
Note 2: For exemption orders, see section 130ZZAE.
(3) A television program with audio description that has been previously transmitted does not count towards the number of hours set out in subsection (2).
130ZZAE Audio description exemption orders—unjustifiable hardship
Application
(1) A commercial television broadcasting licensee may apply to the ACMA for an order (an exemption order) that exempts from subsection 130ZZAD(1) a specified commercial television broadcasting service provided by the licensee in a specified eligible period.
Note: For eligible period, see subsection (16).
(2) A national broadcaster may apply to the ACMA for an order (an exemption order) that exempts from subsection 130ZZAD(1) a specified national television broadcasting service provided by the broadcaster in a specified eligible period.
Note: For eligible period, see subsection (16).
(3) A subscription television licensee may apply to the ACMA for an order (an exemption order) that exempts from subsection 130ZZAD(1) a specified subscription television service provided by the licensee in a specified eligible period.
Note: For eligible period, see subsection (16).
(4) An application under subsection (1), (2) or (3) must:
(a) be in writing; and
(b) be in a form approved, in writing, by the ACMA; and
(c) be made no later than 6 months before the commencement of the eligible period specified in the application.
Decision on application
(5) If an application under subsection (1), (2) or (3) has been made for an exemption order, the ACMA must, after considering the application:
(a) by writing, make the exemption order; or
(b) refuse to make the exemption order.
Criteria for making exemption order
(6) The ACMA must not make the exemption order unless the ACMA is satisfied that a refusal to make the exemption order would impose an unjustifiable hardship on the applicant.
(7) In determining whether a failure to make the exemption order would impose an unjustifiable hardship on the applicant, the ACMA must have regard to the following matters:
(a) the nature of the detriment likely to be suffered by the applicant;
(b) the impact of making the exemption order on persons who are blind or have low vision and who are users, or potential users, of the commercial television broadcasting service, national television broadcasting service or subscription television service concerned;
(c) if the applicant is a subscription television licensee—the number of people who subscribe to the subscription television service concerned;
(d) the financial circumstances of the applicant;
(e) the estimated amount of expenditure that the applicant would be required to make if there was a failure to make the exemption order;
(f) the extent to which the applicant provides audio description of television programs transmitted on commercial television broadcasting services, national television broadcasting services or subscription television services provided by the applicant;
(g) the likely impact of a failure to make the exemption order on the quantity and quality of television programs transmitted on commercial television broadcasting services, national television broadcasting services or subscription television services provided by the applicant;
(h) whether the applicant has applied, or has proposed to apply, for exemption orders under this section in relation to any other commercial television broadcasting services, national television broadcasting services or subscription television services provided by the applicant;
(i) such other matters (if any) as the ACMA considers relevant.
Consultation
(8) Before making an exemption order under subsection (5), the ACMA must:
(a) within 50 days after receiving the application for the exemption order publish on the ACMA’s website a notice:
(i) setting out the draft exemption order; and
(ii) inviting persons to make submissions to the ACMA about the draft exemption order within 30 days after the notice is published; and
(b) consider any submissions received within the 30‑day period mentioned in subparagraph (a)(ii).
Commencement of exemption order
(9) An exemption order under subsection (5) comes into force at the start of the eligible period to which the exemption order relates.
Refusal to make exemption order
(10) If:
(a) an application under subsection (1), (2) or (3) has been made for an exemption order; and
(b) the ACMA does not make a decision on the application within the period of 90 days beginning at the start of the day on which the ACMA received the application;
the ACMA is taken, at the end of that 90‑day period, to have decided to refuse to make the exemption order.
(11) If:
(a) an application under subsection (1), (2) or (3) has been made for an exemption order; and
(b) the ACMA decides to refuse to make the exemption order, as the case may be;
the ACMA must give written notice of the decision to the applicant.
Publication requirement
(12) If the ACMA makes an exemption order under subsection (5), the ACMA must publish a copy of the order on the ACMA’s website.
(13) The ACMA must provide on its website a copy of the order in a format accessible to persons who are blind or have low vision.
Order is not a legislative instrument
(14) An exemption order under subsection (5) is not a legislative instrument.
Specification of national television broadcasting services
(15) For the purposes of this section, a national television broadcasting service may be specified by reference to:
(a) whether or not the service is provided with the use of a satellite; and
(b) the coverage area, or the satellite delivery area, in which the service is provided.
Definitions
(16) In this section:
commercial television broadcasting service includes a proposed commercial television broadcasting service.
eligible period means a period of 12 months starting on:
(a) the day that is 18 months after Schedule 1 to the Broadcasting Services Amendment (Audio Description) Act 2019 commences; or
(b) a later anniversary of the day mentioned in paragraph (a).
national television broadcasting service includes a proposed national television broadcasting service.
subscription television service includes a proposed subscription television service.
130ZZAF Certain breaches to be disregarded
(1) If:
(a) apart from this subsection, a commercial television broadcasting licensee has breached a provision of this Division; and
(b) the breach is attributable to significant difficulties of a technical or engineering nature for the licensee; and
(c) those difficulties could not reasonably have been foreseen by the licensee;
then the breach is to be disregarded in determining whether the licensee has complied with the provision.
(2) If:
(a) apart from this subsection, a national broadcaster has breached a provision of this Division; and
(b) the breach is attributable to significant difficulties of a technical or engineering nature for the broadcaster; and
(c) those difficulties could not reasonably have been foreseen by the broadcaster;
then the breach is to be disregarded in determining whether the broadcaster has complied with the provision.
(3) If:
(a) apart from this section, a subscription television licensee has breached a provision of this Division; and
(b) the breach is attributable to significant difficulties of a technical or engineering nature for the licensee; and
(c) those difficulties could not reasonably have been foreseen by the licensee;
then the breach is to be disregarded in determining whether the licensee has complied with the provision.
13 Division 4 of Part 9D (heading)
Repeal the heading, substitute:
Division 4—Captioning and audio description standards
14 Section 130ZZA (heading)
Repeal the heading, substitute:
130ZZA Captioning and audio description standards
15 Before subsection 130ZZA(1)
Insert:
Captioning standards
16 After subsection 130ZZA(2B)
Insert:
Audio description standards
(2C) The ACMA may, by legislative instrument, determine standards that relate to:
(a) the quality of audio description of television programs provided by commercial television broadcasting licensees; and
(b) the quality of audio description of television programs provided by national broadcasters; and
(c) the quality of audio description of television programs provided by subscription television broadcasting licensees; and
(d) the quality of audio description of television programs provided by subscription television narrowcasting licensees.
(2D) For the purposes of subsection (2C), quality includes:
(a) audibility; and
(b) comprehensibility; and
(c) accuracy.
Making standards
17 Subsection 130ZZA(3)
After “subsection (1)”, insert “or (2C)”.
18 After subsection 130ZZA(3)
Insert:
(3A) Before the ACMA determines standards under subsection (1), the ACMA must consult:
(a) persons who, in the opinion of the ACMA, represent the interests of persons who are deaf or hearing impaired; and
(b) persons who provide captioning services.
(3B) Before the ACMA determines standards under subsection (2C), the ACMA must consult:
(a) persons who, in the opinion of the ACMA, represent the interests of persons who are blind or have low vision; and
(b) persons who provide audio description of television programs.
(3C) A failure by the ACMA to comply with subsection (3A) or (3B) does not affect the validity of a standard.
19 Subsection 130ZZA(4)
After “standard determined under subsection (1)”, insert “or (2C)”.
20 Subsection 130ZZA(4) (note 2)
Omit “subsection (1) of”.
21 Subsections 130ZZA(5) and (6)
After “standard determined under subsection (1)”, insert “or (2C)”.
22 Subsection 130ZZA(6) (note 2)
Omit “subsection (1) of”.
23 Subsection 130ZZA(7)
After “standard determined under subsection (1)”, insert “or (2C)”.
24 Subsection 130ZZA(7) (note 2)
Omit “subsection (1) of”.
25 Subsection 130ZZA(7A)
After “subsection (1)”, insert “or (2C)”.
26 At the end of section 130ZZA
Add:
(9) The ACMA must take all reasonable steps to ensure that standards are in force under subsection (2C) at all times after the audio description start time.
27 Subsections 130ZZC(1) and (3)
After “Divisions 2,”, insert “3A,”.
28 Subsection 130ZZC(5)
After “Divisions 3,”, insert “3A,”.
29 At the end of section 130ZZC
Add:
(8) The ACMA must provide on its website a copy of the report in a format accessible to persons who are blind or have low vision.
30 Paragraph 130ZZD(2)(a)
Omit “or 3”, substitute “, 3 or 3A”.
31 Paragraph 130ZZD(4)(b)
After “captioning”, insert “or audio description”.
32 At the end of Division 7 of Part 9D
Add:
130ZZF Review after period of operation of audio description requirements
(1) Within 2 years after the audio description start time, the ACMA must conduct a review of the following matters:
(a) the operation of this Part;
(b) whether this Part should be amended;
(c) the operation of paragraph 7(1)(o) of Schedule 2;
(d) whether paragraph 7(1)(o) of Schedule 2 should be amended;
(e) the operation of paragraph 10(1)(eb) of Schedule 2;
(f) whether paragraph 10(1)(eb) of Schedule 2 should be amended;
(g) the operation of paragraph 11(1)(bc) of Schedule 2;
(h) whether paragraph 11(1)(bc) of Schedule 2 should be amended;
(i) any standards determined under subsection 130ZZA(1) or (2C);
(j) content and scheduling of programs for which audio description is provided.
Consultation
(2) In conducting the review, the ACMA must make provision for public consultation.
Report
(3) The ACMA must give the Minister a report of the review within 6 months after completing the review.
(4) The Minister must cause copies of a report under subsection (3) to be tabled in each House of the Parliament within 15 sitting days of that House after receiving the report.
130ZZG Ongoing reviews
(1) Within:
(a) 5 years after the completion of the review under section 130ZZF; and
(b) 5 years after the completion of a review under this section;
the ACMA must conduct a review of the matters mentioned in subsection 130ZZF(1).
Consultation
(2) In conducting the review, the ACMA must make provision for public consultation.
Report
(3) The ACMA must give the Minister a report of the review within 6 months after completing the review.
(4) The Minister must cause copies of a report under subsection (3) to be tabled in each House of the Parliament within 15 sitting days of that House after receiving the report.
33 Paragraph 150(2)(a)
After “captioning”, insert “and audio description”.
34 Subsection 204(1) (before table item dealing with suspension or cancellation of licence)
Insert:
| To make an exemption order | Section 130ZZAE | A person whose interests are affected by the decision to make the exemption order |
| Refusal to make an exemption order | Section 130ZZAE | The applicant |
35 Paragraphs 7(1)(o), 10(1)(eb) and 11(1)(bc) of Schedule 2
Omit “captioning of television programs for the deaf and hearing impaired”, substitute “captioning and audio description of television programs”.
36 Application
(1) 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 this item.
(2) The amendments to section 130ZZC of the Broadcasting Services Act 1992 made by this Schedule apply in relation to financial years ending after the audio description start time (as defined in section 130ZK of that Act).