NOTICE OF INQUIRY UNDER THE DISABILITY DISCRIMINATION ACT 1992: MOBILE PHONES AND PEOPLE WITH HEARING IMPAIRMENT (1999)

NOTICE OF INQUIRY UNDER THE DISABILITY DISCRIMINATION ACT 1992

MOBILE PHONES AND PEOPLE WITH HEARING IMPAIRMENT

The Human Rights and Equal Opportunity Commission has received a representative complaint under the Disability Discrimination Act lodged by the Deafness Council of NSW on behalf of people who use hearing aids or cochlear implants.

Digital mobile telephones are known to produce electromagnetic fields that can interfere with hearing aids and cochlear implants. It is said that this interference can be so severe that some people who use hearing aids find it difficult or impossible to use mobile telephones and are therefore denied access to mobile phone services. The complaint deals with both telephone services and telephone equipment. It is necessary to also take into account the wide variety of hearing aids and the degree to which they are tailored for the needs of particular users.

The Disability Discrimination Act (DDA) makes discrimination unlawful regarding access to goods, services and facilities (section 24), except where providing non-discriminatory access would involve unjustifiable hardship. The DDA covers telecommunications.

The Disability Discrimination Commissioner is seeking submissions for the purpose of inquiring into this complaint. Many issues concerning compatibility of hearing aids and mobile telephones have been discussed in Australia and overseas. The questions involved are of wide interest to consumers and industry.

The Commissioner believes that contributions from consumers, industry and regulators can contribute to a general approach for meeting the objects of the DDA in this area. The inquiry will help the Commissioner decide how to finalise the particular complaint and may provide a basis to resolve some access questions without future complaints.

In particular submissions are requested about the following issues.

1. What accessories are currently available that reduce or eliminate interference between digital mobile phones and hearing aids? Is their supply at extra cost to people with disabilities discriminatory?
2. What design features are desirable in digital mobile phones to reduce or eliminate interference with hearing aids and cochlear implants? If these features are only available in more expensive mobile phones is that discriminatory?
3. Does Code Division Multiple Access (CDMA) technology offer either a temporary or long-term means of increasing accessibility?
4. What design features exist now or may be developed in hearing aids to reduce or eliminate interference by digital mobile phones? Do similar prospects exist for cochlear implant technology?
5. What is the effect of the hearing aid immunity standards known as C1 and C2? Does compliance with these standards promote increased accessibility of mobile phone services?
6. Would product labelling and improved information about mobile phones and hearing aids assist people with hearing impairment to choose services, phones and hearing aids that meet their needs?
7. Should the Commissioner on public interest grounds refer the matter to the Commission for hearing and determination?
8. Should the Commissioner form the view that access for people with hearing impairment to mobile phone services is at present sufficient to be not discriminatory? In consequence, should the Commissioner decline to deal further with the matter?

Submissions should not be limited by the issues specified in this notice. These are intended for guidance only.

Under the DDA it is not unlawful to discriminate if it can be shown that removing discrimination would cause unjustifiable hardship. Decisions on issues of unjustifiable hardship require reference to the costs involved, financial resources available to the respondent, benefit or detriment to any persons concerned and any other relevant factors. An action plan provided by a respondent to the Commission is also required to be taken into account.

The context of the inquiry includes the following factors:

1. the number of people with hearing impairment and the projected number as the proportion of older people in the Australian population increases in coming decades
2. the significance of mobile phones in relation to fixed telephone services and any other current or projected communications systems
3. the extent to which the availability in Australia of technology for either mobile phones or hearing aids is independent of global technological developments
4. the extent to which consumers have choices available to them when purchasing mobile telephone services and equipment
5. the Telecommunications Act 1997 and the Telecommunications (Consumer Protection and Service Standards) Act 1999, the main legislative framework for regulating telecommunications in Australia, whose objects include accessibility of telephone services to all people in Australia on an equitable basis wherever they reside or carry on business and efficiency, performance standards, innovation, technical development and market participation
6. the regulatory policy established by section 4 of the Telecommunications Act that promotes self-regulation and aims to avoid undue burdens on industry participants while not compromising the objects of the Act.

Submissions may also:

• assist people who are within the class covered by this representative complaint to decide whether they wish to withdraw themselves from the class so as to preserve an independent right to complain regarding this matter
• inform consideration by the Commission and interested parties of any application for temporary exemption which might be made on this or related matters in future.

Submissions are requested by close of business 29 October 1999, preferably by e-mail to disability@humanrights.gov.au or by mail to Disability Rights Unit, Human Rights and Equal Opportunity Commission, GPO Box 5218 Sydney 1042. The Commissioner will make submissions publicly available except where specifically requested otherwise. The further course of this inquiry will be decided on the basis of submissions received but may include a public forum to discuss issues which arise.