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When the Tide Comes In: Towards Accessible Telecommunications for People with Disabilities in Australia

When the Tide Comes In: Towards Accessible Telecommunications for People
with Disabilities in Australia

A discussion paper commissioned by the Human Rights and Equal Opportunity

William Jolley, Chief Consultant

Jolley William & Associates

June 2003

3. Legislative and Regulatory Environment

3.1 Introduction

3.2 Disability Discrimination Act 1992

3.2.1 Introduction

3.2.2 DDA Definitions

3.2.3 DDA Complaints

3.2.4 Intervention in Court Proceedings

3.2.5 DDA Disability Standards

3.2.6 Granting by HREOC of Temporary Exemptions

3.2.7 Action Plans

3.2.8 Conduct of Inquiries by HREOC

3.2.9 Advisory Notes and Guidelines

3.3 Telecommunications Act 1997

3.4 Telecommunications (Consumer Protection and Service
Standards) Act 1999

3.5 Industry Regulation

3.5.1 Australian Communications Authority

3.5.2 Australian Communications Industry Forum

3.5.3 Telecommunications Industry Ombudsman Scheme

3.6 HREOC Advice on Customer Equipment

3.7 Commonwealth Disability Strategy

Back to contents page

3.1 Introduction

The telecommunications industry, predominantly voice telephony, was traditionally
government owned and tightly regulated in Australia. This monopolistic
environment fostered a well-developed national network with comparatively
good service, but some elements of mediocrity became entrenched and tolerated.
On the positive side most Australians were able to connect to the telephone
network and there were cross-subsidies to reduce tariffs in rural and
remote areas. On the other hand new installations, transfers and fault
restoration were sometimes deemed to be slow. During the 1980s, as awareness
dawned of the power of digital techniques, and as analysts around the
world predicted enormous growth in telecommunications, governments moved
towards full or part privatisation of their telecommunications companies
and facilitated competition in their telecommunications industries.

Australia's telecommunications industry was opened up to competition
during the 1990s: firstly, with the introduction of competition in the
mobile telephony market; secondly, with competition among carriers and
carriage services in the landline market segment; and thirdly, with the
development of a regulatory regime for Internet service providers. To
underpin and regulate the new competitive environment the Government has

  • Sold off almost half of Telstra to facilitate competition, as part
    of a substantially broader policy framework for Telstra privatisation;
  • Passed the Telecommunications Act 1997, replacing the Telecommunications
    Act 1991; and
  • Passed the Telecommunications Consumer Protection and Service Standards
    Act 1999.

DCITA (2000a) describes the development of the competitive telecommunications
regulatory framework in Australia, including key issues and the policy
solutions that have been adopted to:

  • facilitate the interconnection of networks and access to network facilities;
  • ensure the fulfillment and equitable funding of universal service
  • provide safeguards against anti-competitive conduct; and
  • protect consumer interests.

Over the past ten years the needs and entitlements of people with disabilities
have gained greater recognition in the telecommunications regulatory and
consumer protection framework. The telecommunications laws both refer
back to the Disability Discrimination Act 1992 as the over-arching legislation
for equitable access by persons with disabilities to telecommunications
products and services. Forms of communication, other than voice telephony,
such as text connectivity for people with disabilities who require it,
are acknowledged in the definition of the Standard Telephone Service.
However, with the rapid development and convergence of communications
technology, new services are becoming available, social interactions are
changing, and customer expectations are increasing; therefore it is imperative
that the underlying legislative framework is non-constricting and flexible.

3.2 Disability Discrimination Act 1992

3.2.1 Introduction

The Disability Discrimination Act (DDA) was passed by the Commonwealth
Parliament in 1992 and enacted in March 1993. The text of the DDA is online

The DDA is administered by the Human Rights and Equal Opportunity Commission
(HREOC). There is a part-time Disability Discrimination Commissioner and
a part-time Deputy Disability Discrimination Commissioner. These people
have responsibility for the DDA's promotion as a tool to fight discrimination
and for its administration. HREOC also has a Disability Rights Unit which
is staffed by three full-time policy analysts. The Disability Rights Unit
maintains an excellent website which is a comprehensive guide to DDA-related
documents (

The DDA requires respect for the basic human rights of people with disabilities.
It accepts that some differential treatment will be unavoidable, and that
not all discriminatory practices can be remedied without imposing unjustifiable
hardship. It uses principles of fairness and reasonableness to balance
rights with responsibilities.

The objects of the DDA are stated in Section 3 as:

(a) to eliminate, as far as possible, discrimination against persons on
the ground of disability in the areas of:

(i) work, accommodation, education, access to premises, clubs and sport;

(ii) the provision of goods, facilities, services and land; and

(iii) existing laws; and

(iv) the administration of Commonwealth laws and programs; and

(b) to ensure, as far as practicable, that persons with disabilities have
the same rights to equality before the law as the rest of the community;

(c) to promote recognition and acceptance within the community of the
principle that persons with disabilities have the same fundamental rights
as the rest of the community.

The DDA contains important definitions set out in Section 3.2.1 below.
It does not give a blanket prohibition on discrimination, Rather, it makes
discrimination unlawful in specific areas which capture most aspects of
community life. This includes: employment; education; access to premises
used by the public (including public transport); provision of goods, services
and facilities; existing laws; and the administration of Commonwealth
Government laws and programs.

Broadly speaking HREOC has implemented seven major strategies as provided
for in the DDA:

  • Handling of complaints;
  • Intervention in court proceedings;
  • Development of Disability Standards under the DDA;
  • Granting by HREOC of temporary exemptions from the DDA;
  • Development of DDA Action Plans by service providers;
  • Conduct of inquiries by HREOC, including when requested by the Federal
    Attorney General; and
  • Awareness-raising activities by HREOC, including publication of Guidelines.

3.2.2 DDA Definitions

The DDA defines 'disability' quite broadly (refer to Section 4).

'Disability', in relation to a person, means:

(a) total or partial loss of the person's bodily or mental functions;

(b) total or partial loss of a part of the body; or

(c) the presence in the body of organisms causing disease or illness;

(d) the presence in the body of organisms capable of causing disease or
illness; or

(e) the malfunction, malformation or disfigurement of a part of the person's
body; or

(f) a disorder or malfunction that results in the person learning differently
from a person without the disorder or malfunction; or

(g) a disorder, illness or disease that affects a person's thought processes,
perception of reality, emotions or judgment or that results in disturbed

and includes a disability that:

(h) presently exists; or

(i) previously existed but no longer exists; or

(j) may exist in the future; or

(k) is imputed to a person.

In addition to covering the traditional physical, sensory, intellectual
and psychiatric disabilities, this definition covers the presence in the
body of disease-carrying organisms and physical disfigurement. It also
extends to imputed disability, whether it be in the past, present or future.

Section 5 of the DDA makes direct discrimination unlawful. If a person
or organisation treats a person or his/her associate less favourably,
for some reason in connection with his/her actual or presumed disability,
it is unlawful.

Section 6 of the DDA defines indirect discrimination and makes it unlawful.
It is deemed to occur if an aggrieved person is required to comply with
a requirement or condition:

(a) with which a substantially higher proportion of persons without the
disability comply or are able to comply; and

(b) which is not reasonable having regard to the circumstances of the
case; and

(c) with which the aggrieved person does not or is not able to comply.

Sections 7-9 of the DDA makes it unlawful to treat a person with a disability
less favourably when using a therapeutic aid or assistive device, or when
accompanied by a human assistant or trained animal who or which acts as
an assistant to the person in overcoming the handicapping effects of the

Section 11 of the DDA introduces the concept of Unjustifiable Hardship.
It does not define Unjustifiable Hardship. It simply states that all relevant
circumstances of the particular case are to be taken into account, including:

  • The nature of any benefit/detriment likely to be accrued/suffered
    by any persons/organisations;
  • The effect of a concerned person's disability;
  • The financial circumstances and anticipated cost for the one claiming
    unjustifiable hardship; and
  • The content of a person's/organisation's Action Plan, if one exists.

Section 24 of the DDA makes it unlawful to discriminate in the provision
of goods, services and facilities:

(1) It is unlawful for a person who, whether for payment or not, provides
goods or services, or makes facilities available, to discriminate against
another person on the ground of the other person's disability or a disability
of any of that other person's associates:

(a) by refusing to provide the other person with those goods or services
or to make those facilities available to the other person; or

(b) in the terms or conditions on which the first-mentioned person provides
the other person with those goods or services or makes those facilities
available to the other person; or

(c) in the manner in which the first-mentioned person provides the other
person with those goods or services or makes those facilities available
to the other person.

(2) This section does not render it unlawful to discriminate against a
person on the ground of the person's disability if the provision of the
goods or services, or making facilities available, would impose unjustifiable
hardship on the person who provides the goods or services or makes the
facilities available.

3.2.3 DDA Complaints Overview

The DDA is a complaints-based law. Aggrieved persons may make complaints
to HREOC, or its agents operating at State or Territory level. The DDA
does not contain an in-built mechanism for compliance monitoring, so the
complaints mechanism is often the main means by which breaches of the
DDA are raised and remedied. Since enactment of the DDA in March 1993,
more than 5,500 complaints have been lodged. The number of complaints
under the DDA is higher than for sex or race discrimination.

When HREOC receives complaints, they are sometimes rejected. This may
be because: they are deemed to fall outside HREOC's sphere of responsibility;
they are deemed to be insubstantial; or they are considered to be better
dealt with by another statutory authority. In the latter case this would
sometimes mean that they are better dealt with by anti-discrimination
legislation under the jurisdiction of one of the States; however, in the
context of telecommunications, it might mean that the complaint was better
dealt with by the Telecommunications Industry Ombudsman (refer to Section

HREOC has successfully conciliated most of the complaints which have
been deemed to be relevant and substantial. Those which cannot be conciliated
are referred to Hearing. When the DDA was first introduced it was HREOC
which carried out the hearings and which could make binding determinations
(subject to appeal to the Federal Court). However, the Hearings function
was later removed from HREOC, due to an identified inconsistency with
the Federal Constitution, and now Hearings are carried out by the Federal

HREOC has adopted informal and flexible protocols for the receipt and
handling of DDA complaints. Commission staff can help complainants to
formulate their grievance in writing, and in some cases complainants are
assisted to obtain help from other people such as interpreters or advocates.
HREOC is satisfied that surveys of people who have used the complaints
mechanism indicate that most people find HREOC's service accessible and
valuable. By the same token, many people have found the complaints process
time-consuming and stressful. They have found that the conciliated outcomes
have not met their expectations or requirements. This mixed result shows
the potential for and limitations of the complaints process. It demonstrates
that alternative approaches are required to reduce discrimination and
achieve the other DDA Objects. Telecommunications-Related Complaints

Accessible telecommunications is a prerequisite of increasing importance
for education, employment and social participation by people with disabilities;
so the topic, especially for people who are deaf, received much prominence
during the passage of the DDA through Parliament (HREOC 2003). The Scott
V. Telstra complaint of 1993 was a watershed: putting the DDA on the map,
giving basic real-time telecommunication to people who are deaf or hearing/speech
impaired, and awakening industry to the reality that disability discrimination
had become unlawful in Australia.

Geoffrey Scott, who is deaf, complained that Telstra did not provide
him with a TTY on the same conditions as it provided telephone handsets
to other domestic subscribers. The complaint was upheld, and discrimination
was deemed to have occurred against Mr Scott and against all other telephone
subscribers who required text telephony as an alternative to voice telephony.
This was a landmark judgment which can be downloaded from….
In a related decision on remedies, Commissioner Wilson specified that
Telstra supply to persons who are profoundly deaf (and not eligible for
a TTY under the Government's then Disability Strategy) the following:

  • a voucher for $600 for the acquisition of a TTY or modem;
  • not less than five years later another voucher for a replacement TTY;
  • if within 5 years of the first voucher, the TTY needs replacing, a
    further voucher for a replacement TTY.
  • If a TTY is purchased that is less than $600 the balance may be put
    towards maintenance costs. The vouchers to be supplied by 1 March 1996.

The decision may be downloaded from….
Under its Disability Strategy policy the government had recently established
the NRS Telecommunications Equipment Access program, in association with
the commencement of the National Relay Service, under which eligible people
with disabilities were provided with a TTY subject to a means test. The
provision of TTYs was absorbed into the Disability Equipment Programs
of Telstra and Optus with the introduction of the Telecommunications Act
1997. The Scott case was also important in that it led to text connectivity
when required by persons with disabilities being included in the specification
of the Standard Telephone Service.

Bourk (2001) gives a detailed account of the Scott case, including details
and analysis of Commissioner Wilson's judgment. Starting from 1975, when
the Australian Telecommunications Commission was launched, Bourk describes
the gradual recognition that dawned on both the Government and Telstra
over the next twenty years that text connectivity for Deaf people was
a fundamental element of universal access to the Standard Telephone Service.
Bourk's description is insightful of both: the evolving regulatory environment
for telecommunications, and the growing awareness of the needs and rights
of consumers with disabilities. Bourk (2001), available at
is a major contribution in recording the struggle of people with disabilities
to equitable telecommunications access.

HREOC (2003) describes some typical telecommunications-related complaints.

  • Mobile phone and hearing aids: Interference was caused for hearing
    aid users by GSM telephones. HREOC investigated these complaints via
    public inquiry which led to each of the mobile carrier services adopting
    schemes to improve access and consumer information (refer to Section
  • Mobile phone for disability pensioners: A Disability Support Pension
    (DSP) Recipient complained that he could not enter into a mobile phone
    contract. The company confirmed that DSP recipients were among the categories
    of potential consumers because they were considered high-risk for payment
    default. Following conciliation, the complainant received service.
  • Fee waiver for easy call facility: A man with cerebral palsy complained
    because he was charged a fee for easy-dial facilities, a necessity for
    him that was optional for others. The complaint was settled when the
    company agreed to waiver the fee for the complainant and other people
    who needed the facility to use the phone.
  • Accessible bills: A woman who is blind complained that her mobile
    phone bill was not provided in an accessible format. The complaint was
    settled with an agreement for the provision of bills in Braille.
  • Physical access to payphones: A wheelchair user complained that new
    payphones were too high for him to use. The complaint was settled with
    an assurance from Telstra that payphones would be modified with a bracket
    to lower the height of payphones, and that an Action Plan would be developed
    to address payphone accessibility. Payphones are discussed further in
    Section 4.8.2.

3.2.4 Intervention in Court Proceedings

HREOC may intervene in court proceedings dealing with disability discrimination
issues, provided that the court gives it leave to do so. HREOC plays an
impartial and informative role to assist the court to interpret the DDA
and its application in particular situations. This allows HREOC to bring
accumulated knowledge and experience to the court's attention. This opportunity
has been little-used to date, but HREOC remains available to intervene
in this way when appropriate cases arise.

3.2.5 DDA Disability Standards

Section 31 of the DDA provides that the Federal Attorney General may
introduce into the Parliament, Regulations under the DDA known as Disability
Standards. Disability Standards may cover Employment, Education, Accommodation,
Public Transport Services and Facilities, Accessible Premises, and the
Administration of Commonwealth Government Laws and Programs. Specifically,
in the present context, there is no provision for a DDA Standard on accessible
telecommunications. The DDA was amended in 1999 to include accessible
premises amongst the areas for which DDA Standards might be made. This
creates the precedent, should it be deemed appropriate in the future,
for a DDA amendment to provide for a Disability Standard on accessible
telecommunications. HREOC released a background paper on Disability Standards
in 1993, which is available at

A DDA Disability Standard becomes the law. Therefore, it is unlawful
to contravene a DDA Disability Standard, whilst compliance with a Disability
Standard is an absolute defence against a complaint. The purpose of a
Standard is to confirm rights and clarify responsibilities. A Standard
aims to provide certainty, whereas the DDA leaves much to be interpreted
in the resolution of a DDA complaint.

The development of a Standard under the DDA is akin to a collective bargaining
process. A Standard is supposed to accurately reflect and elaborate on
the DDA, not ordinarily writing it up by increasing its powers or writing
it down by using narrow definitions. Still it is necessary for aggrieved
persons to seek redress by lodging complaints. However, the existence
of a well-known and well-written Standard should help in resolving complaints.
It is intended that compliance with a Standard be a complete defence for
a respondent, even though the action being complained about may be discriminatory.
Therefore, with a Standard, in practice, some theoretical rights under
the DDA are almost certainly negotiated away.

Progress with the development of DDA Standards has been slow. After seven
years of concerted effort an Accessible Transport Standard was approved
late in 2002. Work is proceeding well with the development of standards
for inclusive education and accessible premises, but progress has stalled
on the development of an employment standard, and work has not seriously
started on standards for accommodation or the administration of Commonwealth
government laws and programs.

3.2.6 Granting by HREOC of Temporary Exemptions

Section 55 of the DDA gives power to HREOC to grant a temporary exemption
to a person or organisation from specific provisions of the DDA, for a
period not exceeding five years and on specific terms and conditions that
HREOC may decide. HREOC is required to publish the details of the Temporary
Exemption, together with the reasons for its decision and a summary of
the evidence on which the decision was based.

The DDA is silent on the function of Temporary Exemptions, and it has
been left to HREOC to develop a protocol for their application, consideration
and determination. HREOC has published Guidelines on Application for Temporary
Exemption under the DDA, available at….

HREOC's power to grant temporary exemptions has been unwelcomed by some
in the disability community. Advocates have been concerned that service
providers would seek to use the provision in an attempt to avoid their
responsibilities under the ACT, and that HREOC might allow them to prevail.
However, HREOC has been rigorous in its handling of Temporary Exemption
applications. HREOC advises that when the DDA was introduced into Parliament,
the purpose indicated for temporary exemptions was to allow time, where
necessary, to make adjustments to comply with the DDA. General administrative
law principles require that the power of the Commission under the DDA
to grant exemptions should be exercised consistently with the objects
of the DDA. HREOC has regarded temporary exemptions as a means to promote
equality, where organisations seek complaint immunity whilst they work
towards routine compliance with the DDA. In HREOC (2003) it is stated
that HREOC has not been prepared to grant an exemption to organisations
which simply want to avoid taking remedial action to comply with the DDA.

Some organisations have been hesitant to ask for temporary exemptions,
in the belief that it would reflect poorly on them, even though they may
have envisaged a phased compliance with the DDA. A significant number
of temporary exemptions have been granted in the transport industry, as
operators embarked on a progressive implementation of accessible services,
conveyances and facilities.

3.2.7 Action Plans

Part 3 of the DDA provides for Action Plans. In determining whether compliance
with the DDA's requirements would impose Unjustifiable Hardship on a respondent,
the Court must consider an Action Plan given to HREOC, among other factors.
The development and implementation of DDA Action Plans has been an important
community-wide approach to raising awareness of the DDA and operating
in a manner which is more inclusive of people with disabilities. An Action
Plan is a strategy for changing those practices which might result in
discrimination against people with disabilities. It helps to identify
such practices and offers a program for change. The DDA provides that
organisations may develop Action Plans to eliminate discriminatory practices
and that they may be lodged with HREOC.

An Action Plan can help an organisation to:

  • show commitment and eliminate discrimination;
  • promote principles of access and equity;
  • achieve service goals;
  • benefit customers or clients who are not disabled; and
  • assist in compliance with the DDA and eliminate the need for complaints.

A range of organisations in Australia have developed Action Plans. These
include banks, members of the telecommunications industry, government
agencies, community organisations and tertiary institutions. Despite HREOC's
best endeavours to promote the benefits of Action Plans and its publication
of documents to guide their development, only 250 Action Plans have been
lodged over the past ten years, of which 12% belong to business enterprises.

An organisation which provides goods or services or which makes facilities
available is deemed to be a service provider and may prepare and implement
an Action Plan. An Action Plan must include the following provisions as
a minimum. Any additional provisions must not be inconsistent with the
minimum provisions.

(a) the devising of policies and programs to achieve the objects of this
Act; and

(b) the communication of these policies and programs to persons within
the service provider; and

(c) the review of practices within the service provider with a view to
the identification of any discriminatory practices; and

(d) the setting of goals and targets, where these may reasonably be determined,
against which the success of the plan in achieving the objects of the
Act may be assessed; and

(e) the means, other than those referred to in paragraph (d), of evaluating
the policies and programs referred to in paragraph (a); and

(f) the appointment of persons within the service provider to implement
the provision referred to in paragraphs (a) to (e) (inclusive).

HREOC, at,
states that an Action Plan is a way for an organisation to plan the elimination,
as far as possible, of disability discrimination from the provision of
its goods, services and facilities. HREOC advises that Action Plans should
also include policies and practices concerning employees with disabilities.
For organisations the development and implementation of Action Plans:
enhances corporate image, delivers services more efficiently and accesses
a wider market. The very process of developing the Action Plan is beneficial.
Most Action Plans result from consultation with people with disabilities
and their representative organisations, a review of policies and practices,
and identification of barriers for people with disabilities in accessing
services and facilities. They generally contain planned strategies to
eliminate these barriers.

HREOC gives guidance on the development of Action Plans through documents
available on its website. As well as giving general information HREOC
gives specific advice to Commonwealth departments and agencies, State
and Territory government organisations, businesses, tertiary education
institutions and non-government organisations.

In the event of a complaint, HREOC is required by the DDA to consider
the organisation's Action Plan. The success of an Action Plan, in terms
of eliminating disability discrimination and in being used as a defence
against complaints, will largely depend on the effectiveness of the actions
taken. Section 11 of the DDA requires that in determining what constitutes
Unjustifiable Hardship an organisation's DDA Action Plan shall be taken
into account.

A service provider may, at any time, amend its Action Plan. It may give
a copy of its Action Plan, or amendments thereto, to the Disability Discrimination
Commissioner. The Commissioner is to make Action Plans publicly available,
and may sell them for a prescribed fee. In particular, many Action Plans
are freely downloadable from the HREOC website,

As well as being a tool for raising awareness, an Action Plan has the
added benefit of counting positively rather than negatively for a service
provider in its defence of a complaint lodged against it. However, compliance
with an Action Plan, or an intent to do something under an Action Plan,
is not a complete defence.

The DDA is not explicit about the content of an Action Plan, only its
framework. Therefore, it is often the process of developing and reviewing
an Action Plan, which is more important than the details of its content.
Nonetheless, some Action Plans have been very good; they have forged a
new standard for access and equity for people with disabilities.

More than 180 of the DDA Action Plans which have been given to the Disability
Discrimination Commissioner may be downloaded by following links from….

Telstra and Optus have developed DDA Action Plans which are available
for download. They are discussed in Section 2.5. The TIO Action Plan is
discussed in Section 3.5.3.

3.2.8 Conduct of Inquiries by HREOC

HREOC has held public inquiries as one of its important ways to promote
DDA awareness and compliance. Inquiries have been held: at HREOC's own
initiative; in response to specific complaints that raised systemic issues;
to deal with exemption applications; and as requested by the Attorney
General. The public inquiry process gives focus to important issues and
facilitates their systematic analysis enhanced by broad community participation.
Public inquiries have covered a variety of matters and have included:

3.2.9 Advisory Notes and Guidelines

Section 67 of the DDA confers certain functions on HREOC, including:

(k) to prepare, and to publish in such manner as the Commission considers
appropriate, guidelines for the avoidance of discrimination on the ground
of disability.

Apart from Guidelines for Providers of Insurance and Superannuation HREOC
has chosen not to issue Guidelines as such. Instead, HREOC has issued
Advisory Notes and FAQ files, but they amount to the same thing. These
documents have provided advice to service providers to increase their
understanding of what is appropriate in the provision of goods, services
and facilities under the DDA, and what might be unlawful. They have also
enabled people with disabilities to have a clearer understanding of the
extent of their rights in specific situations under the DDA.

HREOC's advisory note on telecommunications equipment and the DDA, discussed
in Section 3.6, is at

3.3 Telecommunications Act 1997

The Telecommunications Act 1997 sets up a system for regulating telecommunications
in Australia in a competitive environment. It replaced the Telecommunications
Act 1991. It should be read in conjunction with the Telecommunications
Consumer Protection and Service Standards Act 1999, which is discussed
in Section 3.4.

  • The Act regulates Carriers and Service Providers.
  • Carriers are the owners of network infrastructure (transmission not
    switching) which is used for carriage services, and they must be licensed.
  • Service providers are the organisations which provide carriage or
    content services. They must follow certain rules, and the Act is more
    concerned with carriage services rather than content services.
  • The Australian Communications Authority (ACA) is to monitor, and report
    each year to the Minister on, significant matters relating to the performance
    of carriers and carriage service providers, with particular attention
    to: consumer satisfaction, consumer benefits and quality of service.
  • Organisations which represent sections of the industry may develop
    industry codes, which they may register with the ACA. Compliance with
    such codes is voluntary, unless compliance is directed by the ACA. The
    ACA retains a reserve power to make standards, where codes are deficient
    or do not exist, and compliance with standards is mandatory.
  • Provision is made for the technical regulation of customer equipment,
    customer cabling and cabling work.

Schedule 1 to the Act sets out standard carrier licensing conditions,
by delegation of Section 61. They include the requirement for industry
development plans. A carrier must have an industry development plan for
the development in Australia of: industries involved in the manufacture,
development or supply of facilities; and research and development activities
relating to such industries. An industry development plan must be given
to the Industry Minister, and a summary must be made available to the
public. A carrier must comply with the part of its plan that relates to
research and development. Clause 6 details the contents of an industry
development plan.

(2) The plan must include any relevant particulars of the carrier's strategic
commercial relationships, including (but not limited to):


(e) the carrier's relationships in connection with the production and
supply of equipment for use by people with disabilities.

(3) The plan must include any relevant particulars of the carrier's activities
in relation to research and development, including (but not limited to)
matters in connection with:


(e) research and development to address the needs of people with disabilities.

(4) The plan must include any relevant particulars of the carrier's export
development plans, including (but not limited to) export development plans
relating to equipment for use by people with disabilities.

DCITA (2003) lists summaries of almost 50 Telecommunications Carrier
Industry Development Plans at,,0_1-2_1-3_143-4_112329,00.html.
TEDICORE (2001) provides information and advice concerning people with
disabilities for Carriers developing Plans, but the number of enquiries
from Carriers has been very low. Apart from Telstra and Optus, most of
the Carriers appear to have very little interaction with the representatives
of people with disabilities. The apparent lack of interest and awareness
concerning disability-related issues in the Carrier Plans suggests that
either these provisions are ineffectual or that there is unrealised potential
for more attention to be paid to services and equipment for people with
disabilities. Telstra's IDP is exceptional, since it gives detailed coverage
of disability issues: Disability Equipment Program, DDA Action Plan, public
payphone (including TTY payphone) initiatives, Centre for Accessibility,
consultative forums and disability research. It also outlines planned
initiatives concerning customers with disabilities.

The telecommunications regulatory trend has been moving towards streamlining
the requirements for Industry Development Plans. In particular, amendments
to the Telecommunications Competition Act 2002 allow for such streamlining
of IDPs. They allow the ACA to grant exemptions to carriers and carrier
applicants from providing IDPs. The exemptions apply to small carriers
(annual turnover below $5 million and capital expenditure below $20 million),
and to carriers primarily engaged in direct provision of services to tertiary,
research or educational institutions.

The following recommendation is not intended to increase the requirements
of IDPs; rather, its purpose is to review the efficacy of the current
disability-related provisions and propose appropriate adjustments if deemed
beneficial. Such adjustments might raise disability awareness with the
telecommunications industry, might lessen the administrative burden on
carriers and carrier licence applicants, or might do both.

Recommendation 3: Telecommunications carrier industry development plans

That HREOC should consider holding discussions with DCITA to review the
purposes and effectiveness of the disability-related provisions in Schedule
1 of the Telecommunications Act 1997 which cover Telecommunications Carrier
Industry Development Plans.

Section 112 of the Act makes a statement of regulatory policy concerning
the industry codes and standards described in Part 6:

(1) The Parliament intends that bodies or associations that the ACA is
satisfied represent sections of the telecommunications industry should
develop codes (industry codes) that are to apply to participants in the
respective sections of the industry in relation to the telecommunications
activities of the participants.

(2) The Parliament intends that the ACA, …, will act in a manner
that, in the opinion of the ACA, enables public interest considerations
to be addressed in a way that does not impose undue financial and administrative
burdens on participants in sections of the telecommunications industry.

(3) In determining whether public interest considerations are being addressed
in a way that does not impose undue financial and administrative burdens
on participants in sections of the telecommunications industry, the ACA
must have regard to:

(a) the number of customers who would be likely to benefit from the code
or standard concerned; and

(b) the extent to which those customers are residential or small business
customers; and

(c) the legitimate business interests of participants in sections of the
telecommunications industry; and

(d) the public interest, including the public interest in the efficient,
equitable and ecologically sustainable supply of:

(i) carriage services; and

(ii) goods for use in connection with carriage services; and

(iii) services for use in connection with carriage services;

in a manner that reflects the legitimate expectations of the Australian

Section 113 gives examples of the areas where codes and standards might
be made. They include: consumer information; prices, terms and conditions;
credit management; billing; and service quality. This provision for codes
and standards does not extend to the making of technical standards referred
to in Part 21. The Australian communications Industry Forum, discussed
in Section 3.5.2, has accreditation with Standards Australia and has been
the principal telecommunications body to develop industry codes.

Part 21 of the Act specifies a regime for technical regulation. The ACA
may make the following types of standards:

(a) technical standards about customer equipment and customer cabling

(b) standards relating to the features of customer equipment that are
designed to cater for the special needs of persons with disabilities (s.380);

(c) technical standards about the interconnection of facilities (S.384),

and the ACA may require customer equipment and customer cabling to be
labelled so as to indicate compliance with standards (S.407).

Section 380 of the Act allows the ACA to make a standard relating to
specified customer equipment if:

(a) the customer equipment is for use in connection with the standard
telephone service; and

(b) the customer equipment is for use primarily by persons who do not
have a disability; and

(c) the standard relates to the features of the equipment that are designed
to cater for any or all of the special needs of persons with disabilities.

Section 380 gives two examples of disability access features:

(a) an induction loop that is designed to assist in the operation of a
hearing aid;

(b) a raised dot on the button labelled "5" on a telephone.

Section 383 specifies that in determining whether a person has infringed
section 24 of the DDA in relation to the supply or provision of customer
equipment, it must be taken into account as to whether the customer equipment
complies with a standard in force under section 380, but other matters
can be taken into account as well. Apart from this reference to the DDA,
there is no reference to compliance with disability standards under the
Telecommunications Act.

Disability standards are discussed in Section 4.6.

Section 593 of the Act provides for funding of consumer representation
and research. It states:

(1) The Minister may, on behalf of the Commonwealth, make a grant of financial
assistance to a consumer body for purposes in connection with the representation
of the interests of consumers in relation to telecommunications issues.

(2) The Minister may, on behalf of the Commonwealth, make a grant of financial
assistance to a person or body for purposes in connection with research
into the social, economic, environmental or technological implications
of developments relating to telecommunications.

For the year 2003-2004 up to $700,000 has been allocated for consumer
representation and up to $100,000 has been allocated for research.

The Consumers' Telecommunications Network (CTN) is funded under Section
593 of the Act, as are TEDICORE (Telecommunications and Disability Consumer
Representation) and DTAN (Deaf Telecommunications Access and Networking).
TEDICORE and DTAN are projects auspiced by Blind Citizens Australia and
the Australian Association of the Deaf. Their work is discussed in Section
4.2. Other peak disability organisations also received small funding grants
in 2002-03, mostly to cover sitting fees for consumer representatives
on consultative forums.

The Telecommunications (Equipment for the Disabled) Regulations 1998
confirmed that provision of a Standard Telephone Service under the Universal
Service Obligation includes the supply of equipment, goods or services
for people with a disability as may be specified in the Regulations. The
Regulations specify types of customer equipment for connection by persons
with disabilities with the National Relay Service (text telephones), and
for connection by persons with disabilities with persons without disabilities,
provided that provision of the equipment does not constitute an unjustifiable
hardship. The Regulations list the equipment with examples of both generic
equipment types and particular models or brand names.

The specified text telephone equipment is:

(a) Equipment which facilitates text to text communication through the
telephone network;

(b) Equipment which facilitates data transmission over the telecommunications
network; and

(c) Equipment which facilitates the transmission of data over the telecommunications
network and its transfer into Braille.

The specified equipment, that enables a person with a disability using
the Standard Telephone Service to communicate effectively with a person
without a disability, is:

(a) A standard rental telephone handset which includes one touch dial
memory, a lightweight handset and a built-in hearing aid coupler;

(b) A telephone which amplifies the incoming caller's voice to suit the

(c) A telephone which amplifies the speaker's voice, allowing the speaker
to adjust the speech level to suit the listener;

(d) A hands-free telephone for a person who cannot hold a telephone handset;

(e) An ancillary telecommunications product which has adjustable volume,
tone and pitch controls to assist the user to hear the telephone ringing;

(f) An ancillary telecommunications product which is a visual alert that
there is an incoming call;

(g) An ancillary telecommunications product which allows the connection
of a second piece of equipment;

(h) An ancillary telecommunications product in which the telephone handset
is cradled, providing hands-free operation; and

(i) A telephone adapting device which allows a person with a cochlear
implant to have access to the standard telephone service.

3.4 Telecommunications (Consumer Protection and
Service Standards) Act 1999

The Telecommunications (Consumer Protection and Service Standards) (TCPSS)
Act 1999 harmonises the previous consumer-related provisions of the Telecommunications
Act 1997 and the Trade Practices Act 1974. It is an important starting
point for consumer protection and service guarantees for all telecommunications
customers, including people with disabilities. Section 4 of the Act states
that the following is a simplified outline:

  • A universal service regime is established. The main object of the
    universal service regime is to ensure that all people in Australia,
    wherever they reside or carry on business, should have reasonable access,
    on an equitable basis, to:

    (a) standard telephone services; and

    (b) payphones; and

    (c) prescribed carriage services; and

    (d) digital data services.
  • Provision is made for the National Relay Service (NRS). The NRS provides
    persons who are deaf or who have a hearing and/or speech impairment
    with access to a standard telephone service on terms, and in circumstances,
    that are comparable to the access other Australians have to a standard
    telephone service.
  • Local calls are to be charged for on an untimed basis.
  • The ACA may make performance standards to be complied with by carriage
    service providers in relation to customer service.
  • Certain carriers and carriage service providers must enter into the
    Telecommunications Industry Ombudsman scheme.
  • The ACA may impose requirements on carriers, carriage service providers
    and certain other persons in relation to emergency call services.…

Section 6 of the Act defines a standard telephone service as:

… a carriage service for each of the following purposes:

(a) the purpose of voice telephony;

(b) if:

(i) voice telephony is not practical for a particular end user with a
disability (for example, because the user has a hearing impairment); and

(ii) another form of communication that is equivalent to voice telephony
(for example, communication by means of a teletypewriter) would be required
to be supplied to the end user in order to comply with the Disability
Discrimination Act 1992;

the purpose of that form of communication;

(c) a purpose declared by the regulations to be a designated purpose for
the purposes of that provision;


This definition refers to text connectivity for people who are deaf or
speech/hearing impaired as a substitute for voice telephony. Videocommunication
for Deaf people using Auslan might be deemed to be an appropriate substitute
for voice telephony, if: it was technically feasible, terminal equipment
was readily available, and unjustifiable hardship was not deemed to apply.
However, the definition of the Standard Telephone Service (STS) does not
specify whether reference is to fixed or mobile services. This has been
a cause of much confusion throughout the community of interest. Whilst
DCITA confirms that the STS is technologically neutral, and is without
restriction to fixed line services; some disability advocates have formed
the impression that the STS is restricted to fixed line services. This
confusion probably results from the linkage between the STS and the Universal
Service Obligation (USO).

Part 2 of the Act describes the universal service regime. Its purpose
is to give effect to the following policy principles:

(a) all people in Australia, wherever they reside or carry on business,
should have reasonable access, on an equitable basis, to:

(i) standard telephone services; and

(ii) payphones; and

(iii) prescribed carriage services; and

(iv) digital data services;

(b) the universal service obligation described in section 9 and the digital
data service obligation described in section 10 should be fulfilled:

(i) effectively, efficiently and economically; and

(ii) in ways that are consistent with Australia's open and competitive
telecommunications regime; and

(iii) in ways that are, as far as practicable, responsive to the needs
of consumers;

(c) the fulfilment of the universal service obligation described in section
9, and the digital data service obligation described in section 10, should
generally be open to competition among carriers and carriage service providers;

(d) specific and predictable funding arrangements to advance the fulfilment
of the universal service obligation, particularly in high cost areas,
should be available;

(e) providers of telecommunications services should contribute, in a way
that is equitable and reasonable, to the funding of the universal service
obligation and digital data service obligation;

(f) information on the basis on which decisions are made for the purposes
of the universal service regime should generally be open to public scrutiny;

(g) the universal service regime should be flexible and able to deal with
rapid changes in both the telecommunications industry and the needs of

Telstra is the current default Universal Service Provider. Telstra, by
contract with the Commonwealth Government, provides services to meet the
universal service and digital data obligations specified in the universal
service regime.

Section 9 of the Act defines the universal service obligation as the

(a) to ensure that standard telephone services are reasonably accessible
to all people in Australia on an equitable basis, wherever they reside
or carry on business - and includes the supply of such services on request;

(b) to ensure that payphones are reasonably accessible to all people in
Australia on an equitable basis, wherever they reside or carry on business
and includes the supply, installation and maintenance of payphones; and

(c) to ensure that prescribed carriage services are reasonably accessible
to all people in Australia on an equitable basis, wherever they reside
or carry on business - and includes the supply of such services on request.

Section 10 of the Act defines the digital data obligation as provision
of a 64kbit/s digital connection, equivalent to a basic rate ISDN channel.
This is not to be confused with the commitment for universal dialup access
to the Internet at a minimum of 19.2kbit/s introduced following the Besley

Under the Universal Service Regime the Universal Service Provider is
required to take all reasonable steps to ensure that Standard Telephone
Services are reasonably accessible to all people in Australia on an equitable
basis, wherever they reside or carry on business. Although a variety of
carriage services are potentially included in the definition of the Standard
Telephone Service, the Universal Service Obligation does not require the
Universal Service Provider to provide every possible type of Standard
Telephone Service. The obligation is to ensure reasonable access to a
'first phone' for all Australians. ,

Part 3 of the Act establishes the National Relay Service (NRS), which
provides persons who are Deaf or who have a hearing or speech impairment
with access to a standard telephone service on terms, and in circumstances,
that are comparable to the access other Australians have to a standard
telephone service. The NRS contract is managed by DCITA on behalf of the
Commonwealth, and NRS performance is monitored by the ACA. Costs of the
NRS are funded by a levy on the telecommunications industry. The NRS is
discussed in detail in Section 4.4.

Part 6 of the Act specifies the Telecommunications Ombudsman Scheme (TIO).
Each carrier and each eligible carriage service provider must enter into
the TIO scheme, where eligible service providers are those companies whose
customers are residential and small business consumers who purchase: standard
telephone services, public mobile telephone services or Internet connectivity.
The TIO scheme provides for the ombudsman to investigate, make determinations
relating to or give directions relating to: complaints made by customers
about carriage services. The TIO scheme is funded by the telecommunications
industry. It is discussed in more detail in Section 3.5.3.

Part 8 of the Act deals with the provision of emergency services. The
ACA must make a written determination on the provision of emergency services.
Such determination is to be made having regard to twelve objectives, which

(a) the objective that a carriage service provider who supplies a standard
telephone service should provide each end user of that standard telephone
service with access, free of charge, to an emergency call service, unless
the ACA considers that it would be unreasonable for such access to be

(g) the objective that, from the perspective of an ordinary end user of
a standard telephone service, there appears to be a single national emergency
call system;

(h) the objective that reasonable community expectations for the handling
of calls to emergency service numbers are met;

(i) the objective that carriage services used to make calls to an emergency
service number should, as far as practicable, provide the emergency call
person concerned with automatic information about:

(i) the location of the caller; and

(ii) the identity of the customer of the service being used by the caller;

The National Relay Service provides 106 access to emergency services
for Deaf people and people with hearing/speech disabilities using text

3.5 Industry Regulation

3.5.1 Australian Communications Authority

The Australian Communications Authority (ACA) is responsible for regulating
telecommunications and radiocommunications, including promoting industry
self-regulation. The ACA also has important consumer protection responsibilities.
The ACA was established under the Australian Communications Authority
Act 1997, and exercises powers under relevant laws including the Telecommunications
Act 1997 and the TCPSS Act 1999.

The ACA licenses telecommunications carriers, ensures compliance with
carrier licence conditions and service provider rules, and monitors service
performance and quality. The ACA also administers legislative provisions
relating to protection of consumers through safeguards and service guarantees.
The Universal Service Regime is administered by the ACA to ensure reasonable
and equitable access across Australia to standard telecommunications services.
The ACA also manages the NRS contract.

Industry self-regulation is encouraged through the development of voluntary
industry codes of practice and technical standards, and the Australian
Communications Industry Forum (ACIF) was established by the communications
industry to support this process. The ACA has the power to request that
codes of practice be developed, and to determine and enforce mandatory
standards (including technical standards) where necessary.

Part 6 of the ACA Act 1997 provides for the establishment of advisory
committees, to assist the ACA in performing any of its functions. In particular,
it mandates that the ACA must establish a Consumer Consultative Forum,
to assist the ACA to perform its functions in relation to matters affecting
consumers. ACA's Consumer Consultative Forum meets regularly, and includes
representation of consumers with disabilities.

3.5.2 Australian Communications Industry Forum

The Australian Communications Industry Forum (ACIF) was established in
1997 to implement and manage communication self-regulation. It is owned
and funded by the telecommunications industry. Its role is to develop
and administer technical and operating arrangements that promote both
the long-term interests of end-users and the efficiency and international
competitiveness of the Australian communications industry. This involves:

  • Developing Standards and Codes to support competition and protect
    consumers; and
  • Fostering the co-operative resolution of strategic and operational
    industry issues

The main work of ACIF in the development of industry codes and standards
is carried out by Reference Panels and Working Committees. Two important
reference panels are the Customer Equipment and Cabling Reference Panel
(CECRP) and the Consumer Codes Reference Panel (CCRP). Working groups
may also be formed to address specific issues. An example of one such
initiative is the ACIF working group on any-to-any text connectivity for
people who are deaf or hearing/speech impaired (refer to Section 4.5).
The ACIF has been very mindful of the telecommunications needs of people
with disabilities, and has taken several initiatives to explore important

The ACIF Disability Advisory Body (DAB) provides professional advice
to ACIF regarding the implications for telecommunications consumers with
disabilities of ACIF's proposed Codes and Standards. The advice is provided
at the project proposal stage of each new Code and Standard. The DAB advises
on the extent of the disability implications according to the following:

  • High - widespread implications for disabled consumers over and above
    those experienced by other consumers, warranting specific provisions
    in the Code/Standard
  • Medium - moderate implications for disabled consumers over above those
    experienced by other consumers, warranting consideration of disability
    needs in the Code/Standard
  • Low - negligible implications for disabled consumers over and above
    those experienced by other consumers, and not warranting specific consideration
    in drafting of the Code/Standard

The DAB also provides professional advice as to appropriate methods of
consultation/involvement in the development of an ACIF Code/Standard

The ACIF G586 guidelines give guidance to ACIF Reference Panels and Working
Groups on how to meet the needs of customers with disabilities when drafting
Industry Codes and Industry Standards. The guidelines help to raise awareness
of accessible telecommunications issues among industry representatives
who participate in standards development.

3.5.3 Telecommunications Industry Ombudsman Scheme

The Telecommunications Industry Ombudsman Scheme (TIO) was established
by the Commonwealth Government in 1993. It provides a free alternative
dispute resolution service to residential and small business consumers
who have been unable to resolve a complaint directly with their telephone
company or Internet service provider.

Telecommunications companies in Australia must be members of the TIO
scheme if they:

  • Hold a carrier's licence;
  • Supply a standard telephone service;
  • Supply a mobile telecommunications service;
  • Provide Internet access; or
  • Act as intermediaries by reselling any of the above services.

These companies bear the cost of the TIO scheme based on the number and
complexity of the complaints about them which are received and processed
by the TIO. In June 2002 there were 963 members of the TIO Scheme, a decrease
of 12% from the previous year. More than 80% of members are Internet Service

The TIO is an independent, non-profit, consumer/industry neutral organisation.
It is referred to as an 'office of last resort', in that it does not investigate
a complaint until the service provider has been given a reasonable opportunity
to resolve the complaint without TIO involvement. As an Alternative Dispute
Resolution (ADR) scheme, the TIO is different from traditional court processes
and tries to resolve disputes quickly and without undue bureaucracy. It
emphasises good industry practice and what is fair and reasonable, rather
than seeking a resolution based on strictly legal grounds. People may
lodge complaints with the TIO: in person, in writing (including email)
or by telephone (including TTY access). The TIO is a free service to complainants,
so personal assistants such as Auslan interpreters are paid for by the

The boundaries of the TIO's jurisdiction and extent of its authority
are specified in the TCPSS Act 1999, which provides that binding determinations
up to $10,000 may be made. The service provider, but not the complainant,
must comply with the decision of the TIO. The TIO may investigate complaints

  • Billing;
  • Mobile telephone services;
  • Internet access offered by Internet service providers;
  • Delays in telephone connections;
  • Fault repairs;
  • Privacy; and
  • Breaches of the Customer Service Guarantee (CSG) and industry Codes
    of Practice.

There are some complaints that the TIO cannot deal with, which fall under
the direct jurisdiction of the Australian Communications Authority (ACA)
or the Australian Competition and Consumer Commission (ACCC).

During 2001-2002 there were 62,275 complaints to the TIO dealing with
70,234 complaint issues. It is estimated that 15% to 20% of complaints
cover more than one issue. The breakdown for service types among complaint
issues was 40,303 for fixed line services, 20,434 for mobile services,
and 9,497 for Internet services. This is a description of how complaints
are processed.

  • A level zero complaint is one which a consumer makes to a telephone
    company which is resolved satisfactorily or not pursued any further
    by the consumer. The TIO does not see these complaints, since the TIO
    provides an alternative dispute resolution service. CSP's generally
    keep records of complaints, but there is no mechanism for consistency
    between different organisations.
  • A level 1 complaint is one which a consumer brings to the TIO. If
    the TIO believes that the complaint has substance and that an attempt
    had been made to solve it directly with the CSP, it is registered with
    the TIO. The consumer is referred to the CSP's escalated complaints
    section, and the consumer is advised that the matter can be brought
    back to the TIO if still not resolved in 14 days. In 2001-02 91% of
    complaints settled at this stage.
  • Level 2 and 3 complaints are the same from the point of view of a
    consumer. These are complaints that are settled between the consumer
    and the CSP, with the TIO as conciliator. The difference between level
    2 and 3 simply has to do with the amount of work required by the TIO
    to achieve the settlement. Either the CSP makes a satisfactory offer
    to the consumer, or the TIO advises the consumer that the complaint
    cannot be pursued for lack of evidence. In 2001-02 6.7% of complaints
    were settled at level 2, and 2.2% were settled at level 3.
  • A level 4 complaint is one in which the TIO makes a determination.
    A TIO determination is binding on the CSP, but not on the consumer.
    The TIO can make a binding determination of up to $10,000, and a non-binding
    recommendation of up to $50,000. In making a determination the TIO will
    have regard to the law, to industry codes, and to what is considered
    fair and reasonable in the circumstances. In 2001-02 0.1% of complaints
    ended in a TIO determination.

The number of complaints that relate to a consumer's disability appears
to be very low, below 0.5%. The TIO has recently reviewed its complaint
records system in order to obtain better data on disability-related consumer
complaints in the future. Undoubtedly there are negative interactions
for consumers with disabilities which do not end up in formal complaints,
either with the TIO or HREOC. On the one hand, some complaints are outside
the jurisdiction of the TIO; and, on the other hand, the perception persists
that the HREOC complaint process is drawn out and not likely to result
in a satisfactory resolution. Examples of negative consumer interactions
that may not result in formal complaints are: matters concerned with the
provision of disability equipment, and unsatisfactory service from retail
or call centre staff. It may be observed that the TIO has particular expertise
in the resolution of telecommunications complaints, and that HREOC has
particular expertise in the resolution of disability complaints. There
may be some benefit derived from communication between the two agencies,
leading to initiatives that may help to: reduce the level of complaints
in the future, increase the rate of satisfactory complaint resolution,
and provide information to consumers with disabilities and their advocates.

Recommendation 4: HREOC and TIO disability-related complaints

That HREOC should consider meeting with the TIO to compare trends in
complaints that involve people with disabilities and telecommunications,
in order that the two agencies can provide advice to disability advocates
and consumers generally about HREOC or DDA complaints.

In February 2003 the TIO launched its DDA Action Plan. It has five main
objectives and implementation is in three stages: June 2003, January 2004
and July 2005.

1. Corporate culture: to develop and maintain a responsive and anti-discriminatory
corporate culture.

2. Accessible information: to improve accessibility to information about
TIO services.

3. Accessible complaint resolution services: to provide equal access to
the TIO's complaint resolution services.

4. Physical environment: to ensure that the TIO's physical environment
is accessible to all.

5. Review and evaluation: to ensure that the DAP is regularly reviewed
and evaluated.

3.6 HREOC Advice on Customer Equipment

In August 2001 HREOC issued an Advisory Note on the DDA and Customer
Equipment, responding to a request from ACIF for clarification of rights
and responsibilities under the Disability Discrimination Act regarding
the provision of equipment which is accessible to and usable by people
with disabilities. The document is available at….

The HREOC advice is summarised below. There are three cases.

A) Provision of equipment as part of or in association with telecommunications
service: CSPs are obliged to make accessibility equipment available. This
obligation is subject to unjustifiable hardship for the supplier, but
goes beyond the standard telephone service and universal service obligation
to include mobile phones.

B) Equipment not provided as part of a service: This situation is not
so clear. On the face of it, suppliers do not have to supply accessible
equipment if it is outside their normal product range.

C) Service providers which do not provide any customer equipment: Such
organisations do not have a liability under the DDA to provide accessible
customer equipment.

Carriage service providers which provide customer equipment as part of
or in association with their service (whether directly or through agents,
partners, franchisees, etc) are obliged to provide equipment which is
accessible to and usable by people with disabilities - unless it can be
shown that this would involve unjustifiable hardship. This was established
in the Scott case, available at

The DDA generally favours accessibility of mainstream services, rather
than the provision of special services. As stated in HREOC (2001b): "The
Disability Discrimination Act requires accessibility of the services a
service provider is in the business of providing, rather than requiring
provision of new or different services which might better suit the needs
of a customer with a disability." In the Scott case Telstra was required
to provide a TTY in place of a standard handset, to enable access to the
mainstream carriage service. This requirement to provide an accessible
interface to the carriage service is not restricted to the Standard Telephone
Service or the Universal Service Obligation specified in the TCPSS Act
1999. In particular the DDA accessible interface requirement covers both
fixed line and mobile telephone services. It requires that customer equipment
be accessible and usable, where this does not constitute an unjustifiable
hardship, and that it does not conflict with assistive devices such as
hearing aids. Accessibility may be achieved by ensuring: that mainstream
equipment is usable, or that specialist equipment is available, or some
combination of these alternatives.

Where specialised equipment is required, service providers are cautioned
that it may be construed as discriminatory if this limits consumer choice
of carriage services at comparable prices, and if consumers with disabilities
are not provided with information about the availability of specialist
customer equipment.

The inherent difficulties of a specialist equipment program suggest that
the adoption of universal design principles is beneficial. Sometimes there
are technical difficulties to implement universal design, but a universal
design approach would always be favourably viewed.

In determining accessibility requirements and assessing discrimination,
any disability standards under the Telecommunications Act would be taken
into account. In addition, any published access guidelines and overseas
standards would also be taken into account as an indication of good practice,
community expectations and technical feasibility.

The DDA outlaws discrimination in the provision of goods, as well as
services. It is clear about the accessibility of customer equipment when
bundled with a carriage service, but it is not so clear when the customer
equipment is sold separately. The DDA does not require provision of different
goods from those a provider is in the business of supplying, simply because
the goods currently provided are not useful to people with a particular
disability, just as it does not require a provider to supply a service
which is a different service from that which it normally provides.

Some barriers to access which might be thought to be part of the goods
or equipment may be found instead to be incidental conditions or requirements
for access or use of the equipment, and might be found to involve unlawful
discrimination. the distinction between features of the goods or items
of equipment themselves (not covered by the DDA) and conditions or requirements
for their use or access (covered by the DDA) would need to be determined
on the facts of each case. With digital technology enabling input and
output in a variety of formats, fewer barriers to access might be accepted
as essential features of the equipment or facilities concerned than was
previously the case with analogue technologies.

Some uncertainty here, including the possibility of different interpretations
based on who supplies telecommunications equipment, suggests that the
development of consistent standards might be beneficial in providing certainty
for both industry and consumers, rather than waiting for guidance through
the results of DDA complaints.

Where carriage service providers do not supply equipment in association
with their service, such suppliers do not have an obligation under the
DDA to supply accessible equipment.

One approach to the avoidance of discrimination is for telecommunications
consumer impact statements to be lodged with the ACA prior to the introduction
of new carriage services. The DDA does not impose any procedural requirements
on providers making new services or equipment available to ensure in advance
the accessibility of that equipment. Prior consultation may give companies
useful information that could avert discrimination complaints later on.
If complaints do arise, expert advice received during prior consultation
on access issues in relation to a product or service could help to determine
whether an adjustment to the service or product would impose unjustifiable

3.7 Commonwealth Disability Strategy

The Commonwealth Disability Strategy at
is the Government's strategic framework for inclusion and participation
by people with disabilities in Government policies, programs and services.
The Strategy recognises that the Commonwealth has an impact on the lives
of people with disabilities through its many programs, services and facilities,
and seeks to ensure their full community participation. Commonwealth organisations
are obligated to remove barriers to access and participation, thus ensuring
that people with disabilities have the same access to buildings, services,
information, employment, education, sport and recreational activities
as everyone else in the community.

The Strategy complements other government initiatives, and is based on
the principles of: equity, inclusion, participation, access and accountability.
It encourages organisations to:

  • Provide information in accessible formats;
  • Employ people with disabilities;
  • Purchase accessible services;
  • Recognise people with disabilities as consumers of services; and
  • Consult with people with disabilities to find out what they need.

The central elements of the Strategy are:

  • The identification of the core roles of government (policy adviser,
    regulator, purchaser, provider and employer);
  • For each role, the specification of the outcomes to be achieved for
    people with disabilities;
  • The specification of performance indicators which address the barriers
    that have been identified by people with disabilities; and
  • Where possible, the integration of performance reporting into already
    established reporting mechanisms.

Governments are large purchasers of goods and services, both directly
and through grants to non-government organisations of all sorts. Thus
governments can exert significant market influence. Astbrink (2001) points
out that the Department of finance and Administration revised the Commonwealth
Procurement guidelines in 2001. Disability issues in relation to the Commonwealth
Disability Strategy are mentioned outside the guidelines themselves, in
an advisory context on implementation of the guidelines. Such a tentative
first step towards an inclusive procurement policy has been frustrating
for consumer advocates.

A good model for inclusive public procurement is embodied in the so-called
Section 508 amendment of the Rehabilitation Act in the United States.
Section 508 requires that when Federal agencies develop, procure, maintain,
or use electronic and information technology, they shall ensure that the
electronic and information technology allows Federal employees with disabilities
to have access to and use of information and data that is comparable to
the access to and use of information and data by Federal employees who
are not individuals with disabilities, unless an undue burden would be
imposed on the agency. Section 508 also requires that individuals with
disabilities, who are members of the public seeking information or services
from a Federal agency, have access to and use of information and data
that is comparable to that provided to the public who are not individuals
with disabilities, unless an undue burden would be imposed on the agency.
More details are given in Section 5.2.3.

One reason that consumer advocates are calling for an inclusive public
procurement policy stems from their fear that, as the Section 508 amendment
starts to have its desired effect in the United States, without such a
policy Australia will become a dumping ground for inaccessible technology.
Whilst it is difficult to provide evidence of endemic practices that justify
this fear, the prolific use of inaccessible PDF files on government websites
shows a widespread absence of disability awareness and lack of inclusive
practices. Such a policy would have widespread beneficial effects for
people with disabilities - both employees of government agencies and staff
of non-government organisations receiving commonwealth funds, and service

Recommendation 5: Inclusive public procurement policy

That HREOC should initiate discussions with the Department of Finance
and Administration, and with other relevant organisations, towards an
inclusive Federal Government public procurement policy, modelled on Section
508 of the Rehabilitation Act in the United States.

Next part: Part 4