Federal Register of Legislation - Australian Government

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Standards/Other as made
This instrument amends the Broadcasting Services (Television Captioning) Standard 2013 to insert a note to reflect the requirements of subsection 130ZZA(2A) of the Broadcasting Services Act 1992.
Administered by: Communications and the Arts
Registered 29 Feb 2016
Tabling HistoryDate
Tabled HR01-Mar-2016
Tabled Senate01-Mar-2016
Date of repeal 02 Mar 2016
Repealed by Division 1 of Part 5A of the Legislative Instruments Act 2003

Legislative Instruments Act 2003

Section 26 – Explanatory Statement

Broadcasting Services Act 1992

 

Broadcasting Services (Television Captioning) Standard Variation 2016 (No.1)

 

Purpose

 

Pursuant to subsection 130ZZA(1) of the Broadcasting Services Act 1992 (BSA), the ACMA determined the Broadcasting Services (Television Captioning) Standard 2013, which commenced on 6 June 2013 (the Standard). The Standard relates to the quality (which includes readability, comprehensibility and accuracy) of captioning services provided for television programs.

 

Subsections 130ZZA(4), (6) and (7) of the BSA require commercial television broadcasting licensees, subscription television broadcasting licensees and subscription television narrowcasting licensees, respectively, to comply with the Standard. Pursuant to Schedule 2, clauses 7, 10 and 11 of the BSA, each such licensee must comply with the Standard as a condition of its licence.

 

Subsection 130ZZA(5) of the BSA requires national broadcasters to comply with the Standard.

 

The purpose of developing the Standard was to establish minimum requirements relating to the quality of captioning services provided for television programs, to ensure that captioning services are meaningful to deaf and hearing-impaired viewers.

 

On 19 March 2015, Parliament passed the Broadcasting and Other Legislation Amendment (Deregulation) Act 2015 (the Broadcasting Deregulation Act) to amend sections of the BSA. As part of the amendments, section 18 requires the ACMA to review, and vary as appropriate, the Standard by 19 March 2016.

The purpose of the Broadcasting Services (Television Captioning) Standard Variation 2016 (No.1) (the Variation) is to include a note under section 6 of the Standard to reflect the requirements of subsection 130ZZA(2A) of the BSA, introduced into the BSA by the Broadcasting Deregulation Act. The note is in the following terms:

Note: Whilst noting that it is not authorised to determine that a lower quality of captioning service is acceptable for a kind of program or program material (see subsection 130ZZA(2B) of the Act), in determining this Standard, the ACMA has considered the differences (including time constraints for live content) between providing captioning services for live and pre-recorded television programs; and wholly live or wholly pre-recorded television programs and television programs that include both live and pre-recorded program material (see subsection 130ZZA(2A) of the Act).

Legislative Basis

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

 

Section 18 of the Broadcasting Deregulation Act requires the ACMA to review, and vary as appropriate, any standards made under section 130ZZA of the BSA, having regard to subsection 130ZZA(2A). The ACMA must do so within 12 months of the commencement of that subsection.

 

Under subsection 33(3) of the Acts Interpretation Act 1901, where an Act confers a power to make, grant or issue any instrument of a legislative or administrative character (including rules, regulations or by-laws), the power shall be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend, or vary any such instrument.

 

Consultation

 

Before deciding to vary the Standard, consistent with the requirements of the Broadcasting Deregulation Act, the ACMA commenced a review of the Standard (the Review) and took a number of steps by way of consultation.

 

In conducting the Review, the ACMA had regard to:

 

·         subsection 130ZZA(2A) of the BSA, which requires the ACMA to consider the differences (including time constraints for live content) between providing captioning services for:

o   live television programs and pre-recorded television programs; and

o   wholly live or wholly pre-recorded television programs and television programs that include both live and pre-recorded program material; and

 

·         subsection 130ZZA(2B) of the BSA, which provides that the ACMA is not authorised to determine that a lower quality of captioning service is acceptable for a kind of program or program material. 

 

The ACMA took the following steps by way of consultation.

 

·         On 15 September 2015, the ACMA hosted a Citizen Conversation event, Live captioning: let’s talk. This forum was attended by television industry participants, television captioning service providers and community representatives to primarily discuss the challenges of live captioning.

 

·         In addition, the ACMA contacted key stakeholders from the broadcasting industry, the captioning service industry, community and advocacy groups and consumers, seeking their initial feedback on options for determining the quality of captioning services under the Review. 

 

·         On 17 November 2015, the ACMA released a discussion paper which set out two options for determining the quality of captioning services:

o   continuing to use the ‘meaningful access test’ in the Standard, which uses a broad range of factors that take into account the differences between providing captioning services for live and pre-recorded television programs and television programs which include both live and pre-recorded program material; or

o   using a metrics approach which would require the introduction of specific measurements for the quality of captioning services (readability, accuracy and comprehensibility).

 

·         The discussion paper also invited public comment on alternative option(s) for the ACMA to consider in taking into account the differences between providing captioning services for all programming, without lowering the quality of captioning services for different types of television programs or program material.

 

·         The discussion paper invited public comment by 18 December 2015.

 

·         The ACMA carefully considered the 11 submissions it received. Overall, the submissions supported the ACMA continuing to use the ‘meaningful access test’ in the Standard when assessing the quality of captioning services, regardless of whether the captioning services were provided for live or pre-recorded television programs or programs which included both live and pre-recorded program material.

 

·         The majority of stakeholders also supported the addition of the note under section 6 of the Standard to reflect the requirements of subsection 130ZZA(2A) of the BSA.

 

Operation

 

The Standard does not expressly state how it applies to captioning services for different kinds of television programs; that is, live television programs and pre-recorded television programs, and wholly live or wholly pre-recorded television programs and television programs that include both live and pre-recorded program material.

 

The note to section 6 has been included to reflect that the ACMA has, without determining that a lower quality of captioning service is acceptable for a kind of program or program material, taken into account the differences between captioning services provided for different kinds of television programs

 

Regulatory impact

 

The Office of Best Practice Regulation (the OBPR) has advised the ACMA (reference ID 1984) that as the change effected by the Variation is machinery in nature, no further analysis of it (in the form of a Regulation Impact Statement) is required. 

As required under the Human Rights (Parliamentary Scrutiny) Act 2011, a human rights compatibility statement has been prepared by the ACMA and is attached.

Documents incorporated by reference

Nil.

 

 

 

 

 

 

 

 

 

 

 

 

Notes on the Legislative Instrument

 

Section 1   Name of Instrument

Section 1 provides that the name of the instrument is the Broadcasting Services (Television Captioning) Standard Variation 2016 (No. 1).

 

Section 2   Commencement

Section 2 provides that the instrument commences on the day after it is registered.

 

Section 3   Variation of the Broadcasting Services (Television Captioning) Standard 2013

Section 3 provides that the Broadcasting Services (Television Captioning) Standard 2013 is varied in accordance with Schedule 1.

 

Schedule 1         Variation

Schedule 1 provides for the insertion of a note under Section 6.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Statement of Compatibility with Human Rights

 

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

Broadcasting Services (Television Captioning) Standard Variation 2016 (No. 1)

 

This Legislative Instrument 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 Legislative Instrument

 

This Legislative Instrument amends the Broadcasting Services (Television Captioning) Standard 2013 (the Standard).

 

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

 

This Legislative Instrument is consistent with the objective of the Standard, which is to ensure that captioning services are meaningful to deaf and hearing-impaired viewers.

 

The Legislative Instrument inserts a note in the Standard but otherwise makes no substantive change to the Standard, which continues to provide minimum requirements relating to the quality of captioning services provided for television programs.

 

Human rights implications

 

In developing this Legislative Instrument and the Standard, the relevant human rights implications have been considered in the context of the International Covenant on Civil and Political Rights and the Convention on the Rights of Persons with Disabilities. This Legislative Instrument and the Standard do not limit any of the applicable rights or freedoms set out in those instruments. 

Conclusion

This Legislative Instrument and the Standard are compatible with human rights as the Standard continues to facilitate access to television services by people who are deaf or have a hearing impairment.