Monday, 2 March 2015
Broadcasting and Other Legislation Amendment (Deregulation) Bill 2015; Second Reading
I rise tonight to speak about the Broadcasting and Other Legislation Amendment (Deregulation) Bill 2015. This bill is just another item on the government's deregulation agenda. It is clear from the concerns that were raised on this bill during the Senate inquiry that it was introduced with insufficient consultation and without consideration of its impact on viewers, particularly those who are deaf and hearing impaired. The committee inquiry process generated a number of submissions, particularly from the deaf community, which highlighted how little regard this government had paid to those with a hearing impairment and those who are deaf. Given the range of concerns identified, the Australian Greens were not intending to support this bill without substantial amendments in the areas that deal with captioning. I note that amendments were agreed to in the Lower House which largely resolve the concerns that were identified during the committee inquiry. However, it is not good enough for the government to continue to bring forward bills that are so heavily biased towards industry—in this case, the commercial TV stations and, in other cases, it has been big mining, big banks and coal exporters.
The government has a critical role in ensuring services are made available on an equal basis to all members of our community. This bill, unamended, would have meant that those services were not being delivered equally. This government seems to have forgotten that it has a commitment and a responsibility to those with hearing impairment, those with disability and those who are least able to afford the impact of these types of decisions. One in six Australians have a hearing impairment and, as our population ages, this will increase to one in four, meaning that there is likely to be increased reliance on television captioning into the future. It is clear from the submissions to this inquiry that TV broadcasters and caption suppliers are keen to respond to the increasing demand for captioning. Captioning frequency and quality has improved significantly over the past decade. Commitments to 100 per cent captioning during 6 am to 12 pm on free-to-air broadcasts are welcome.
However, the deregulation agenda of the current government is, again, adversely impacting on those who can least afford it, do not deserve it and are least able to bear the costs. In this case, it would have been the deaf community. Furthermore, the lack of consultation, which is very clear from the inquiry, has meant that this legislation was produced without appropriate consideration of the impact that it would have had on consumers, broadcasters and the suppliers of captions. I will touch on a range of the issues that highlight the problem with the original bill so that it is clear why the Australian Greens do not support the rapid deregulation process. It sometimes has intended consequences and sometimes has unintended consequences. There are also issues in this bill that, despite the amendments, we will need to keep a careful eye on to make sure that they do not have adverse impacts.
The bill proposed shifting from an annual reporting compliance scheme, in which broadcasters are required to demonstrate that they meet their captioning obligation, to a consumer complaints mechanism. However, in doing this, the bill did not provide sufficient guarantees that the ACMA will continue to consistently monitor compliance with the captioning quantity and quality requirements or that broadcasters will continue to review and address systemic failures, unless a consumer makes a specific complaint. Effectively, the burden of reporting is shifted from the broadcasters to the individual consumer. A number of consumer representative bodies have argued that this is unacceptable as it makes consumers responsible for policing the broadcasters rather than making broadcasters responsible for demonstrating that they have met their obligations.
The Australian Greens share the perspective of Media Access Australia that reporting is a 'fundamental feature of compliance, consumer protection and efficient market operation, and should be maintained'. An effective consumer complaints mechanism can complement this statutory reporting requirement but should not replace it. Some submissions to the inquiry noted that the current annual reporting process means that there are delays of up to a year in identifying captioning breaches and that in many cases the issues have been resolved by the time the report is submitted. However, they did not demonstrate that a viewer complaints mechanism would result in more timely resolution of systemic failures.
The Australian Greens firmly believe that the responsibility for reporting non-compliance with captioning quality requirements should remain with the broadcaster because, as Media Access Australia noted in their submission, the broadcasters and caption suppliers have the complete records of the programs they have captioned and the technical issues that have occurred. Nevertheless, I do acknowledge that the current reporting regime is overly complex, as demonstrated by Ai-Media in their submission. To ensure that there are still reporting obligations while reducing the regulatory burdens on broadcasters, Ai-Media proposed amending the reporting framework to focus on easier-to-generate yet still verifiable reports, such as 'percentage of captioning target achieved'. This could make reporting simpler for broadcasters and timely and transparent for consumers, without losing the regulatory oversight. Simplified reporting is desirable. A compromise that continues to protect consumers while streamlining the process of reporting could be developed further. Regardless, the burden of reporting should remain on broadcasters, rather than expecting consumers to police the system.
I note that the bill has now been amended to ensure that the statutory review of the legislation is retained. The Australian Greens strongly disagreed with the government's decision to remove this review. The argument—as outlined in the EM—that from December 2013, because a review has been conducted by the department, it is no longer necessary or appropriate to conduct a comprehensive statutory review, is insufficient. Consultation around this bill and the broader reform was inadequate, so there is still clearly a need to review captioning on Australian television against best practise, including the UN Convention on the Rights of Persons with Disabilities. This is particularly important because this bill introduces three amendments that should be monitored and their impact on service quality should be considered during the review phase.
The first of these is the averaging of captioning targets across subscription sports channels. The lack of clarity among submitters to the inquiry about the operation and impact of averaging captioning quotas across subscription sports channels is further evidence of the inadequacy of the consultation undertaken prior to introducing this legislation. The evidence provided to the committee demonstrated that a consumer who subscribes to a sports package on subscription TV will receive all the sports channels and therefore access the same amount of captioning if the averaging of quota requirements is passed. As stated by Fox Sports in the inquiry, the amendments would assist it 'to direct captioning to programming which is of the greatest interest to audiences' and 'would have no impact on the amount of content captioned across subscription television sports channels'.
On balance, the Australian Greens believe that allowing captioning targets to be averaged will not be detrimental to consumers provided there is a commitment from subscription TV providers to produce information that accurately informs consumers about these changes. However, judging from the anxiety of consumers and consumer groups, this change was not widely understood and could have been better explained. It is our expectation that subscription providers, such as Fox Sports, will take note of these confusions and ensure that it is clear to consumers what they are being offered. This should be considered as part of the review process next year.
The second change to the standards that this bill introduces is an exemption due to technical failures. The bill also creates an exemption to captioning quality standard breaches where the breach is due to technical or engineering difficulties which could not reasonably have been foreseen. This would have the effect of addressing situations such as the one described by Free TV Australia. They said:
There have been instances where the ACMA has accepted that a broadcaster has experienced unforseen technical difficulties and excused the breach, but has still gone on to find a breach of the licensee's requirement to comply with the Quality Standard (section 130ZZA).
However, I must also acknowledge the concerns of Deaf Australia, who fear that this amendment will give too much scope to broadcasters to shift the responsibility for breaches of captioning standards onto the captioning service provider and avoid penalties even if the technical and engineering failures are clearly systemic. The Australian Greens have not sought to amend the bill at this stage because of this, however the way in which ACMA henceforth treats failures when considering whether a licensee or broadcaster has failed to comply with the captioning standards should form part of the statutory review that is now scheduled to take place next year.
Finally, the application of the live-captioning standards contained in this bill should also be monitored as part of the review process. The Australian Greens support the move to clearly articulate different standard expectations for live versus prerecorded captioning and recognise that the quality of live captioning will always be lower than prerecorded captioning. Regardless of this distinction, the most appropriate captioning method should still be used by broadcasters and in particular higher quality prerecorded captioning for shows that are not broadcast live. We need to ensure with this amendment that standards do not slip.
Clearly this bill had a number of significant problems which may have had a detrimental effect on deaf and hearing impaired consumers of free-to-air and subscription TV services. The Australian Greens are not opposed to updating and simplifying the regulatory framework that governs TV captioning in Australia provided this leads to better outcomes for consumers rather than just broadcasters. The lack of consultation and the original intention to repeal the statutory review both point to an unwillingness to consider how the bill will impact those who are reliant on captions.
In 2015, with our rapidly improving technology, people with a hearing impairment should have no technical barriers to accessing the news and entertainment that other Australians take for granted. Yet without amendment this bill would have primarily served to erode the quality of Australia's TV captioning and contributed to the discrimination that deaf people and those with a hearing impairment face in accessing basic everyday services.
This government should take a hard look at its rush to deregulation in light of the problems with this bill. It should not be up to the hearing impaired community to lobby the parliament at the last minute when they see these issues come up. It should not have got that far. The Greens commend the work of broadcasters who work in this space and particularly the hearing impaired community for pointing out the significant problems that were originally contained in this bill.