Universal Service?

Telecommunications Policy In Australia and People with Disabilities

By Michael J Bourk

Edited by Tom Worthington.

Complaint Against Telecom

Beginning on 20 March 1995, Sir Ron Wilson, President of the HREOC, presided over a four day hearing that involved a joint-inquiry by Geoff Scott and DPI(A) taken against Telecom. Scott issued a single complaint against Telecom while DPI(A) made a representative complaint on behalf of all Australians who are members of the Deaf community and/or have a profound hearing loss. An adverse finding against Telstra could mean the corporation would be responsible for the immediate provision of TTY equipment for the Deaf community. For people with disabilities, Telecom and HREOC the hearing represented a significant test of the discrimination legislation.

The Complainants

Geoff Scott claimed that Telecom was discriminating against him directly and indirectly by refusing to supply a TTY on the same basis that it provides a standard telephone to hearing subscribers. DPI placed the same complaint on behalf of a class of persons who are, ``deaf and /or have a total hearing loss''. The term deaf and the phrase total hearing loss used by DPI in their complaint are both significant departures from the Deaf community's cultural identifiers. The DPI(A) strategically used medical terms to position the case in a medical discourse given that the DDA defines disability using medical categories. Despite the rights discourse which explores political emancipation of people with disabilities, it appears that disability remains a word that societal structures, including legal institutions, use to describe a medical category (Bourke, 1996, 334).

The complainants alleged direct and indirect discrimination which form the basis of the legislation (See Rayner, 1992, 31-40).

Direct discrimination occurs when a person with a disability is treated less favourably than someone on the basis of past, present or future impairment without a disability. Intent is immaterial, consequently ignorance is no excuse. As implied in the the term, direct discrimination usually occurs in a specific event and context in which an individual or group of individuals allege they have been discriminated against. (Rayner, 1992; DDA, 1992).

Indirect discrimination is broader in scope and usually applies to organisations whose policies and institutional practices exclude people with disbilities from accessing goods, services and activites. Consequently indirect discrimination can be claimed by a representative on behalf of a class of people which constitutes a class action. Moira Rayner observes the subtleties of indirect discrimination:

Indirect discrimination usually arises from an apparently neutral rule, more often embedded within an organisational culture, sometimes to the point of being an unwritten rule or informal practice at odds with written rules or formal requirements...often seen to be fair because they apply to ‘everyone... a new area where conflicts between ordinary people and new concepts of social responsibility arise all the time (Rayner, 1992, 34).

In his summary Wilson stated that the complainants would be successful if either direct or indirect discrimination were established. Consequently, the Commissioner considered the complaint of indirect discrimination first as it carried the broadest implications. Further, Wilson stated that the complaint of direct discrimination would only be considered should the former claim fail to be upheld.

The Complainants' Allegation:

The counsel for the complainants alleged that Telecom acted in a discriminatory manner against Scott under the DDA because the corporation denied him access to the telecommunications network when it refused to supply him with a TTY on the same basis that it provided hearing subscribers a standard telephone handset known as the T200

The Respondents' Defence:

The counsel for the respondents claimed that Telecom had not acted in a discriminatory manner because:

The Complainants' Evidence

The Detrimental effects of not having a TTY

The counsel for the complainants presented evidence of alleged indirect discrimination on the premise that access to a service that most of the community enjoyed had been denied to profoundly deaf or speech impaired people. The basis of denial resulted from Telecom's refusal to supply the complainants with a means of access. Scott's testimony intended to prove that people in the community, including many people with disabilities, could use telecommunications services to enhance the quality of their lives. In contrast, Telecom's policy of refusing to supply him (and by extension all profoundly deaf and speech impaired people) with a TTY also denied him access to a service that a substantial larger part of the community enjoys. In addition, by stating what he could not do, Scott reinforced the complainants' argument that unjustifiable hardship did not apply to the respondent. The claim was based on the premise that the potential benefit gained from accessing the telecommunications service was substantial and must be weighed against the relative minimal costs to the respondent.

Through his counsel, Scott presented a statement that without a TTY he couldn't participate equitably in society and was restricted in:

Scott explained that the facilities that Telecom would provide him with alerted him to a telephone call, but would not assist him to answer. Consequently the communication process was incomplete and discriminatory:

Telecom were prepared to install a light which flashes when my telephone rings so I know it needs to be answered, but they refuse to give me a means of answering the phone, like a hearing person. This is unfair. All I want is equality in the service I use. I know that people with vision impairments can have phones with large numbers, people with partial hearing can have flashing lights and volume controls, but people who are totally deaf are discriminated against (Scott in HREOC, 5, 1995).

Scott revealed that Telecom's current policy provisions for profoundly deaf people were irrelevant to their needs. In addition Scott's reference to service and means removed the emphasis on equipment provision as the basis of the complainants' argument. The issue was not about obtaining a TTY, but accessing the telecommunications service. Further, Scott acknowledged Telecom's willingness to supply other people with impairments appropriate equipment to meet their needs. Consequently he directed attention to the discriminatory effect of Telecom's policy operating among groups of people with disability and not only the larger community. Finally, instead of emphasising Telecom's discriminating policies, Scott used the more powerful trope of pleaing for equality. Scott's statement introduced the basis for a claim of indirect discrimination and also challenged the grounds of hardship that were anticipated from the respondents. The complainants continued their case using witnesses to discredit the anticipated claim of unjustifiable hardship.

Despite an unfavourable ruling of discrimination against Telecom, the organisation would not be found guilty of unlawful discrimination had the counsel for the respondents been able to prove conditions of unjustiable hardship were imposed by supplying TTYs to Scott and DPI. The counsel for the complainants intended to prove that no grounds existed for a claim of unjustifiable hardship, by a) emphasising the benefit that TTYs offered, and b) minimising the costs faced by Telecom to supply the equipment.

The Beneficial effects of having a TTY

Counsel for the complainants used three witnesses to challenge the claim for unjustifiable hardship. Two described themselves as being profoundly deaf and one who has a severe hearing loss gave evidence as witnesses for DPI. Together they expressed the substantial advantages of TTYs in contrast to other modes of communication such as facsimiles and pagers. Wilson summarised the comparative benefits of TTYs in his findings:

The counsel for the complainant defined the benefits in a social context in contrast to the counsel for the respondent who defined the costs that the corporation faced in a financial context. In addition, an AAD Policy Adviser described the introduction of TTYs to Australia as:

… heaven-sent… the TTY has become to deaf people what the standard telephone is to hearing people - an essential of daily living (HREOC, 1995, 6).

Many believe that the requirements of the USO are sufficient to require TTY access as a right for the Deaf community and people with severe hearing impairments without the added legislative force of the DDA (pers. comms. CTNPA; AADPA; CTNPA2, 1997). Having argued the benefits of TTYs, the Counsel for the complainants used the evidence from two other witnesses, who presented calculations of costs that Telecom would incur should they be required to provide TTYs to the people represented by DPI.

The two witnesses presented calculations based on figures from Telecom's Red Book (1991) as evidence to support the complainants claim that provision of TTYs to people who were profoundly deaf would not be grounds for unjustiable hardship for the respondent. Their calculations made allowances for current material conditions. The main findings are listed:

The evidence summarised above introduced another strategic element in the case for the complainant. In addition to a rights model of disability on which the DDA is predicated, the evidence introduced a consumer discourse. People who are profoundly deaf were positioned as consumers who would willingly pay for their use of the telecommunications network. Research from California detailed in the Red Book supported the witnesses claims that there would be a five year gradual take-up of the TTYs. The complainants also exercised a sales and marketing strategy by breaking down the cost to a few cents paid by every subscriber per annum. The total liability was reduced further by subtracting the the Commonwealth allowance of 8, 000 TTYs for means-tested consumers from the orignial 21, 000 to leave a final accountable figure of 13, 000.

Finally, the counsel for the complainants used the evidence presented by a CTN Policy Adviser to demonstrate the that the legislative intent of the DDA supported the complainants position that TTY provisions were part of Telecom's responsibility as defined in the Act. The CTN Policy Adviser presented the Senate discussions between Senators Lees and Tate which were analysed in detail. In addition they discussed the wider social meanings of access and equity implied in Telecommunications legislation since 1901. Counsel for the respondent subjected the CTN Policy Adviser to intense cross-examination and concluded that his evidence was irrelevant. Consequently, it is argued that counsel for the respondent may have attempted to divorce the debate from current and historical legislative intent.

The Respondents' Evidence

Telecom claimed that it was not discriminating against Scott or the class of people represented by DPI because their claim related to the provision of a new service which was not part of the corporation's existing activities. TTYs and related equipment were not associated with the existing telecommunications service. In addition, providing TTY equipment and services were non-profitable enterprises that were peripheral to the standard telephone service which was voice-operated. As part of business activities, Telecom elected to provide a standard handset that allowed connection to the telecommunications network. However, the counsel for the respondents denied that provision of the telephone handset constituted part of the service. The Commissioner stated the respondents position in his findings:

… Counsel for the respondent contends that the services provided by the respondent do not include the provision of a TTY. The respondent supplies services that consist of the network, constituted by the telephone line, and in addition to that service it supplies a T200 [voice-grade telephone] (HREOC, 1995, 8).

The counsel for the complainants maintained that Telecom's service consisted of the provision of products to the general community. The products were a national network, a line to a house or business and a standard voice-grade telephone. Telecom's Disability Services Manager, stated the corporation's position:

Telstra [as printed-the court summary was released after 1 July, 1995] does not as part of its business supply the products or services which have been requested by Mr Scott or DPI. Telstra is under no obligation to supply (customer or premises equipment) [information parenworked in the summary] on an unprofitable basis. (HREOC, 1995, 1).

The manager stated Telecom's position that it had no obligation to supply equipment or service to Scott or DPI on an unprofitable basis. Telecom voluntarily assisted people with disability in some circumstances by providing modified standard voice-based telephones to access the telecommuications network. However voluntary assistance did not constitute obligation.

Telecom's policy, reflected a consistent attitude towards people with disability. A voluntary motivation based on good-will has always been the basis of Telecoms' provision of disability products assisting telecommunications (pers. comms. TMPP; CTNPA; AADPA, 1997). As stated earlier, PMG and Telecom engineers used to design products in their spare-time in the Telecom laboratories to assist people with disabilities. However, the generosity of spirit exercised by many formed a charity discourse that resisted more contemporary rights and consumer models of disability.

The disability service manager supported Telecom's defence further with what might be described as a charity discourse by detailing at length the products and services freely provided for people with a disability as part of the Telecom Disability Concession Policy. From the TDCP Telecom provides modified telephones with alert lights, volume controls, large dials and a range of other products at a 100% concession although it costs the telecommunications carrier millions of dollars annually. In addition Telecom projected 1994/95 figures to rise dramatically from increased demand. Precise figures were not recorded due to commercial in confidence restrictions. Other provisions by Telecom for people with disability that cited by the Telecom manager included:

Counsel for Telecom also submitted as evidence of unjustifiable hardship the liability the corporation potentially faced by other discrimination claims should the present complaint succeed. The carrier's Performance Manager of the Customer Premises Equipment Portfolio and Commercial and Consumer Business Unit, presented detailed liability estimates that the corporation potentially could incur by people demanding other services and equipment such as tele-braillers and PC/modems. Significantly, counsel for the responendent did not include the Commonwealth TTY contributions in any of their calculations - a point that did not go unnoticed by the Commissioner.

With specific reference to s6.(a) regarding the claim of indirect discrimination, Telecom denied that it imposed any reqirement or condition for using their services as people were free to use their products or not to. People who are profoundly deaf were not forced to use Telecom services.

The Commonwealth's Role

Both counsels referred to the Commonwealth's role during the course of the inquiry. But undoubtedly the body of evidence submitted favoured the complainants position. Counsel for the complainants detailed plans of the the $26.1 million investment by the Commonwealth for the NRS and in particular the means-tested assistance funds to provide 13, 000 profoundly deaf or speech impaired people with specialised equipment to access the NRS. The inquiry understood equipment referred to TTYs mainly. The Commissioner received a letter, dated 23 March 1995 was received by the Commission from the Department of Human Services and Health. The letter stated that the NRS is:

… an integral part of the long standing commitment to ensuring that people with a disability have the same access to mainstream community services as other Australians, including access to the national and international telecommunications systems... (The NRS) is not intended to be the ordinary source of teletypewriter equipment or services for individual hearing or speech impaired people… These initiatives are not intended to reduce in any way the community service obligations of public services to ensure that they are accessible to people with a disability (DHSH letter in HREOC, 1995, 9).

Similarly to the complainants, the DHSH used what might be described as a rights discourse of access and equity to telecommuications services which alienated Telecom's charity model further. The responsbility for Telecom to include TTY provision as part of its CSO is alluded to although not explicit in the letter. At the time, continuing responsibility for the NRS and TTY was also subject of discussion between the DHSH and DOCA (pers. comms. ASRPB, 1997).

Telecom used the Commonwealth TTY progam to substantiate their position that TTY equipment and network were social welfare issues and not a Telecom responsibility.

The Commissioner's Findings

The Commissioner, Sir Ron Wilson handed down his findings on 19 June, 1995. Wilson concluded that the inquiry revolved around the definition of service and what constituted unjustifiable hardship. He argued that both counsels approached the two issues differently (HREOC, 1995, 12). At the risk of simplifying the complex concepts debated in the inquiry it appears that three key areas constituted the Commissioner's findings:

The three categories are not mutually exclusive but do assist an understanding of the Commissioner's findings.

Social context of the disputed service

The Commissioner accepted the counsel for the respondents claim that Telecom had no obligation to provide a new service as stated in s.24 of the DDA. However, Wilson also accepted the counsel for the complainants argument that they were not seeking a new service but access to the existing service that formed Telecom's USO:

In my opinion, the services provided by the respondent are the provision of access to a telecommunications service. It is unreal for the respondent to say that the services are the provision of products (that is the network, telephone line and T200) it supplies, rather than the purpose for which the products are supplied, that is, communication over the network. The emphasis in the objects of the Telecommunications Act (s.3(a)(ii)) on the telephone service being ``reasonably accessible to all people in Australia" must be taken to include people with a profound hearing disability (HREOC, 1995, 12).

Wilson's statement identifies the telephone service as a social phenomenon and not just technological. Once a social context is used as the defining environment in which the standard telephone service operates, it is difficult to dispute the claim that all does not include people with a disability. In addition part of the service includes the point of access in the same way that a retail shop front door is a point of access to the customer to the business. Consequently, the disputed service is not a new or changed service but another mode of access to the existing service.

Legislative Intent

Once Wilson established that Telecom had no claim to TTY provision as a new service, he applied legislative intent to the DDA reference to telecommunications services (s.4(1)) and concluded that it included the provision of TTYs to profoundly deaf or speech impaired people. In contrast to the counsel for the respondents claim that the CTN Policy Adviser's evidence was ``worthless", Wilson found it ``helpful". The inquiry summary included an extract from the Senate debates concerning the discrimination legislation. The senate intended to explicity include the telecommunications services requirements of the complainants in legislation. In addition, the extract from Senator Tate's address foreshadowed the current inquiry:

It is the only proper response we can require as an Australian community of those who are vested with the enormous privilege, commercially, but also socially, of providing telecommunications services for all Australians … It will mean that a person who considers that he or she has been discriminated against on the grounds of disability, in this case severe deafness or a speech impairment which prevents them from ordinary and normal use of the telephone, would be able to approach the Human Rights ad Equal Opportunity Commission and lodge a complaint if a facility had not been provided to enable that communication to take place across the telephone wires (HOS, 15 October, 1992, 1900 in HREOC, 1995, 13).

In addition to an explicit reference to providing telecommunications services for people who are profoundly deaf or have a speech impairment, Senator Tate implies Telecom as one of those vested with the privilege commercially but also socially. Again, the telecommunications service obligations of Telecom are placed within a social context. Consequently, access to the standard telephone service informs legislative intent of s.24 of the DDA. However, the legislators failed to link explicitly Telecom's CSOs in the TCA (1991) to the legislation (DDA). The omission left an ambiguous loop-hole in the DDA and subsequently constituted the basis for the inquiry.

The Commisioner rejected the respondent's claim that it did not impose any requirement or condition on the complainants. According to Wilson, Telecom's limited definition of service consituted the basis of Telecom's denial:

This submission is only intelligible in the context of the respondent's fundamental proposition that the only services it provides consists of products, namely a telephone network and a T200 handset. It was not in the business of supplying services described as access to a telecommunications service. Once that fundamental proposition is not accepted and it is found that the service is appropriately defined as access to a telecommunications service, it follows that the service is provided subject to a requirement that the subscribers access that service through the medium of a T200 handset, because that handset is the only means of access provided (HREOC, 1995, 15).

Wilson's observations reveal the significance of discourse in policy interpretation. Telecom applied a technocratic definition to service that dictated its strategy in the inquiry.The corporation failed to recognise the rights discourse that constructed the DDA. Consequently the counsel for the respondent attempted to impose a foreign model of interpretation to the legislation. Services were presented in technological and market-oriented terms that were not only irrelevant but unintelligible in the DDA legislation. The Commissioners findings reflect that in rights legislation, rights discourses, which emphasise broad social justice principles, challenge technocratic discourses.

Wilson concluded that the three charactersitics of indirect discrimination as listed in s.6 were fulfilled to justify the claim:

  1. A larger proportion of people can use the T200.
  2. It is not reasonable to expect the agrieved people to use a T200.
  3. The aggrieved people cannot use a T200 handset.

Wilson states that the legislative intent of the s.24 and specifically s.4.(d) addressed the three characteristics listed. In addition Wilson expressed surprise at Telecom's apparent ignorance of the legislation content and legislative history:

The stand taken by the respondent reflects a grave misunderstanding of its respondents under both the DDA(1992) and the Telecommunications Act (1991). I cannot think it would deliberately disregard the plainly expressed intentions of the legislature. Senator Tate could not have spoken more plainly. Yet apparently no officer of the respondent thought to draw the attention of the new Manager of the Disability Services Unit, appointed in July 1993, just three or four months after the DDA came into operation to the significance of the legislative history. (HREOC, 1995, 16).

Opinion is divided concerning Telecom's knowledge of the legislative intent and the extent of its obligations (annon.pers. comms., 1997). According to one ex-Telecom employee, senior managers feared liability under the legislation and people in the disability unit discussed the potential discriminatory implications among themselves (anon.pers. comms. 1997). However, Telecom appeared to be influenced strongly by a charity model of disability demonstrated by their past policies. The counsel for the respondent made constant reference to Telecom's significant concessions for people with disabilities. The financial liability of Telecom's concession programme formed a significant aspect of Telecom's defence against the claim of discrimination.The emphasis on general concessions by the counsel for the respondent appeared misplaced. Similarly to technocratic discourses, charity models of disability are challenged by rights discourses of disability in the DDA.

Once the Commissioner found that the respondent had indirectly discriminated against Scott and by implication DPI, he investigated the issue of unjustifiable hardship.If Telecom could prove that to provide the TTYs to Scott and DPI would impose unjustifiable hardship, the corporation would be excused liability.

Impact On Both Parties

The Commissioner found that unjustifiable hardship did not apply to the respondent and consequently Telecom was guilty of unlawful indirect discrimination. According to the Commissioner, the counsel for the respondent did not address the issues that constituted grounds for unjustifiable hardship as listed in s.11.

The counsel for the respondent argued that any benefit to the complainants from having a TTY was, ``irrelevant and must be discarded" in reference to the issue of denying unjustifiable hardship.(HREOC, 1995, 17). The Commissioner did not agree and claimed that the counsel for the respondent did not recognise that the legislation required the impact on both parties to be examined:

In my respectful opinion, the argument for the respondent is plainly untenable. It is ludicrous to suggest that the extent of the benefit is not to be weighed in the scales against the cost to the supplier… I would have thought that the provisions of s.11 of the DDA placed beyond doubt the matters that were relevant to a consideration of the question of unjustifiable hardship… All relevant circumstances are to be taken into account, including the nature of the benefit or detriment, the effect of the disability, and the financial circumstances of and cost to the respondent in eliminating the discrimination (HREOC, 1995, 17).

It is difficult to understand how the counsel for the respondent failed to acknowledge the significance of the impact for both parties had in determining unjustifiable hardship. As Wilson observes the legislation is explicit. The Commissioner accepted the counsel for the complainants' position that access to a TTY represented significant benefit to his clients which outweighed the cost to the respondents.

The Commissioner also challenged the basis of the claim made by the counsel for the respondents. The respondent did not dispute that the outlay for the TTYs was unreasonable. Instead the respondent based its claim for unreasonable hardship on:

The Commissioner agreed with the counsel for the complainants that both issues were irrelevant to the inquiry and specifically to the claim of unjustifiable hardship:

The respondent has also provided figures on a best and worse case basis of its potential liability if it had to provide other products as well as TTYs. I do not consider these figures relevant. The only relevant factors that have to be considered are those referable to the supply of TTYs and the resultant revenue to the respondent. It is quite wrong to confuse the issue of unjustifiable hardship arising from the supply of persons with a profound hearing loss with possible hardship arising from other potential and unproved liabilities. It follows that the reliance by the respondent on the cost of providing products other than the TTY to persons other than persons with a profound hearing loss to show unjustifiable hardship is an erroneous application of s.11 of the DDA

The counsel for the respondent introduced the potential liabilities as an element of unjustifiable hardship for the respondents. He attempted to justify Telecom's current policy of non-action in relation to TTYs as well as shift the chronological context of the legislation into the future. However, Wilson observed that future potentialities were irrelevant to the case.

I recognise the generosity of the voluntary concessional programe implemented by the respondent - a programme that incurs a substantial annual cost… Laudable as this may be, however, it does not in my opinion affect the issue of unjustifiable hardship unless it serves to show the capacity of the respondent to undertake the comparatively small additional cost of meeting the liability found to exist in these proceedings (Wilson, HREOC, 1995, 18-19).

The Commissioner disputed that Telecom's generous concession programme was relevant to the inquiry. The counsel for the respondent attempted to link the additional expenses incurred from an obligation to supply the TTYs to existing costs arising from the concession programme. The tactic demonstrated an attempt to impose a charity discourse upon the DDA.

According to the Commissioner, in addition to introducing erroneous figures into the enquiry the respondent failed to acknowledge relevant data which it possessed. Wilson criticised the respondent for failing to incorporate the 8, 000 TTYs provided under the Commonwealth NRS means-tested programme into calculations of their TTY liability. The oversight occurred despite Telecom's use of material from the DHSH in their evidence. In addition Wilson was disappointed that despite the projected figures, provided by Telecom's Red Book, the respondents volunteered no revenue figures of TTY use until the complainants requested the information. When first questioned, the manager denied all knowledge of the research. The manager's position is plausible given their recent promotion to Manager of the Disability Services Unit (pers. comms. CTNPA, AADPA, 1997).

The introduction of TTY revenue also introduced a strategic philosophical argument against the respondent's claim to unjustifiable hardship. In addition to a rights discourse the complainants constructed people with disabilities as consumers who offered potential revenue to the respondent. Consequently, the complainants used the respondents' own consumer discourse against them and challenged the claim that TTY users were an unprofitable market segment. The strategy of using two discourses concurrently constructs a consumer-citizen model of disability (pers. comms. CTNPA, 1997). Both models are antagonistic towards traditional charity models of disability. However, in the inquiry, the notion of citizens which had equal rights of access as other subscribers was the dominant discourse.

Other factors in the inquiry also problematised Telecom's claim of unjustifiable hardship. Approximately one month prior to the inquiry, the telecommunications corporation posted more than a $1 billion profit which was widely publicised in the media (pers. comms. ASRPB, CTNPA, 1997). In addition, DOCA believed that Telecom maintained an unreasonable position by refusing to provide TTYs to profoundly deaf or hearing impaired people. According to the Assistant Secretary of the Regulatory Policy Branch, Telecommunications Industry Division:

Our view was generally that Telstra [then Telecom] was taking too hard a line and that their claims about uncertainty and unintended consequences had some validity but they didn't seem to understand fully their responsibility and obligation under DDA (pers. comms. ASRPB, 1997).

This position was echoed by the Commissioner who referred to Telecom's misunderstanding of the issue in his findings. Reference to uncertainty and unintended consequences related to the costs of providing TTYs and concerns of an immediate high demand for the equipment. As stated above unintended consequences related to the potential for future claims once a successful precedent was set.

According to many interviewees, Telecom witnesses were embarrassed when counsel for the complainants released details of the Red Book, a Telecom document ( pers. comms. CTNPA; CTNPA2; AADPA; CTNPA2, 1997). Apparently, Telecom claimed that it had undertaken very little research of costings of TTY provision or possible revenue because TTYs were not likely to be part of its business activities. Telecom's claim was consistent with its policy that TTYs were a social welfare issue and not its concern. However, the Red Book contradicted Telecom's position in the inquiry and revealed that the organisation had undertaken substantial research of TTY costings, take-up rate and projected revenue. According to the AAD Policy Adviser, the Red Book was, ``one of the key things that turned things our way" (pers. comms. AADPA, 1997).

In conclusion, the Commissioner found that the complaints of discrimination were substantiated and that specifically:

In addition the Commissioner did not uphold the respondent's claim that unjustifiable hardship was imposed.

Finally the Commissioner concluded with the illuminating observation that:

… the contest has revolved around the two issues of the nature of the service provided and the question of unjustiable hardship. I have found against the respondent on each of these issues (Wilson, HREOC, 1995, 20).

Either consiously or unconsiously the counsel for the respondent attempted to change the rules of the game. Consequently, unless the Commissioner agreed to accept the respondent's rules Telecom would lose the case. The Commissioner's findings reflected his commitment to the rights discourse from which the legislative intent, subsequent Senate debates and consequent legislation came. Wilson rejected the rules offered by alternative models of disability and Telecom lost the case. When Telecom entered the HREOC they engaged a discourse and an environment where people with a disability were the subjects of policy and not the objects.

A Political Game

Technocratic and charity discourses dominated the policy arena where the TACCs operated. People with disability were the objects of policy. Technocratic discourses used unproved statistics and potential costs as tropes to justify the corporation's refusal to supply TTYs to people who are profoundly deaf. The same discourse also defined service in a social vacuum where only profitable markets and products were relevant. In addition charity models of disability kept Telecom as the benevolent subject who by reason of generosity distributed concessions to disabled objects. In this arena people with disabilites are the contentious agents who introduce a ‘foreign' rights discourse. Consequently, they are the foreigners who play the game by different rules. Being forced to play by different rules meant that they generally lost - until the DDA legislation was tested by Scott and DPI.

When the Commissioner concluded his findings, he requested that both parties submit appropriate suggestions for relief for the complainants. Wilson requested the suggestions be received within 21 days.

The Relief

Matters were complicated slightly when the Commission received notification from a solicitor for DPI that the organisation had passed into receivership and were unable to continue with the proceedings. However, pursuant to s.84 of the DDA, AAD was eligible to replace DPI as a representative for the class of people referred to as profoundly deaf and/or have severe speech impairments. The Commissioner delayed proceedings until the appropriate legal matters were settled.

On September, 6, 1995, the Commissioner made the following ruling in the question of relief for the complainants:

At first Telstra did not accept the game's result and challenged the umpire's decision. The telecommunications carrier exercised its right of appeal to challenge HREOC's decision and prepared to take the case to a Federal court. A few weeks later, Telstra dropped the appeal and accepted the Commissioner's ruling. Reasons for Telstra's reversal are not clear, but several factors appeared to influence senior management's decison to accept the HREOC decision.

According to the President of the NFBCA, the decision not to challenge the HREOC decision was an example where liberal management prevailed against economic rationalists:

Attitudes gradually changed (within Telstra) towards people with disabilities particularly in the TCCs (Telstra Consumer Councils)... but were (still) seen as the soft-end backwater... Another shift came after the Scott v Telstra case where the wets won out over the drys... (they said) appealing Scott will do us more harm... Frank Blount was also sensitive in that area... he had personal experience and was possibly more sensitive (pers.comm. PNFBCA, 1997).

These comments indicate that the TCC process created a cultural climate that facilitated acceptance of change. In addition, the reference to, the Telstra CEO, introduced support for people with disability from an unexpected direction. He was once the Chairman of the National Technical Institute for the Deaf, in America (Telstra, POD, 1997, 23) According to rumour, Blount was contacted by a Deaf friend in the United States who encouraged him not to allow the appeal to proceed (pers. comms. PNFBCA, 1997).

Apparently, as a result of internal unrest concerning the issue, Telstra management decided to accept the HREOC Commissioner's findings and consequently cancelled its appeal. In addition the corporation launched a national campaign to turn the decision into a win-win outcome for all parties concerned and in the process earn the respect of people with a disability (pers. comms. PNFBCA, CTNPA, AADPA, 1997).

Telstra Initiatives

Telstra engaged in what became a two-stage strategy to manage the TTY issue. The first stage, the sponsorship of a national disability publication began during the HREOC inquiry. The sponsoring initiative facilitated the dissemination of information related to the second initiative, a Disability Action Plan (DAP) launched in December, 1996.

In March, 1995 Telecom became the principal sponsor for Link, the major generalist disability magazine in Australia. Using a text book crisis management approach to protect the corporations image, Telecom flooded the bi-monthly periodical with corporate image logos and articles related to Telecom's products and services for people with disabilities. The editor's grateful acknowledgement of the new sponsor appeared in the March/ April, edition underneath a corporate logo splashed across the top of the page:

``In an exciting development'', said Jeff Heath, ``Telecom has accepted our invitation to to become a major sponsor of Link, ''

``This sponsorship will provide a much needed boost to Link through the support of the National News pages. The sponsorship will also enable Telecom to reach individuals and organisations so that they are better informed about the variety of products and services Telecom offers to customers with various disabilities (Link, March/April, v4/1, 1995).

Without disputing Heath's claim that Link first approached Telecom for sponsorship, the latter's decision to accept the invitation in March appears strategic to the HREOC hearing. It is argued that through Link, Telecom reinforced its image as a benefactor to people with disabilities and strategically minimised the impact of Scott and DPI vs Telstra. Through coming months the magazine published articles and had stories/ letters written about Telstra in Link .

Link headlines featuring telecom (telstra) related issues in 1995:
Principal Sponsor (March/April, v.4/1,1995,1)
New Disability Service from Telecom[2 pages] (May/June, v.4/2,1995,44-45)
Telstra- Sponsoring Link [letter of gratitude](July/August, v.4/3, 1995,2)
Telstra Sponsors NFBCA Conference[1 page](Sept./ Oct. v.4/4,1995,34)
Telstra under fire [bott. l.h.s. ](Sept./Oct. v.4/4,1995,12)
New Service [bott.r.h.s ](Sept./Oct. v.4/4,1995,13)
Telstra considers TTY law [1 col.](Sept./ Oct. v.4/4,1995,35)
Telstra Nominated for Prime Minister's Employer of the Year(Nov./ Dec. v. 4/5, 1995,34)
Telstra to aid deaf community [t.o.p.](Nov./ Dec. v. 4/5, 1995, 35)
Telstra Extends Services to the Deaf [b.o.p.](Nov. / Dec. v. 4/5, 1995,35

The HREOC inquiry story broke in the Sept. /Oct. edition of Link. The story carried the head-line, Telstra under fire, which was curious given the readership of the magazine. In addition to no reference to the Deaf community in the head-line, the story had few details. The story's brevity is surprising due to the significance of the case to people in the Deaf community and the implications that the precedent set for future complaints of discrimination by people with disabilities. Several pages further in the same issue of Link, Telstra announced its intent to appeal the HREOC findings. In addition, the corporation explained its policy toward the funding of products and services for people with disabilities:

Telstra considers TTY law

... Telstra has appealed this finding in the Federal Court of Australia in order to clarify the obligations of a carrier under the Telecommunications Act and the Disability Discrimination Act... Telstra has always understood that the Federal Government had assumed responsibility for providing TTY services through programs such as the Australian Communication Exchange (which provides TTYs to people with low incomes) and the National TTY Relay Service set up earlier this year. Telstra itself provides voluntary concessions on certain disability products as well as providing some funding to a number of disability groups (Oct./Nov. v.4 / 4, 1995, 35).

Arguably, the corporation attempted to justify its challenge to the HREOC decision by using what appears to be a charity model of disability. The context of the reference to voluntary concessions indicates that Telstra's policy toward people with disabilities was similar to its position argued in the inquiry. It might be argued that the story uses elements of a charity discourse to excuse Telstra from its responsibility, to provide TTYs for the Deaf community as perceived by the HREOC commissioner.

By the following edition of Link, Telstra had reversed its position concerning TTYs and announced its intent to supply TTYs to the Deaf community. Two articles carried large headlines identifying the audience:

Becoming the principal sponsor of Link enabled the telecommunications corporation to project a favourable image to people with disability. In addition, apparently the sponsorship established indirect influence within the specialist media to facilitate its management of a potentially disastrous public relations issue. Arguably, Telstra's access to Link proved to be a valuable promotions vehicle when the telecommunications carrier undertook what became the second stage of its strategy to manage the TTY issue and incorporate into its policy the broader implications of the DDA.

Arguably, Telstra's decision to accept the HREOC inquiry decision resulted in the carrier undergoing a Damascan-like conversion in its policy towards people with disabilities. All interviewees currently involved with Telstra as employees, consumer group representatives or Government department officers remarked on the impact that the HREOC inquiry had in shaping Telstra's current disability policy (pers. comms. CTNPA, AADPA, PNFBCA, DDPUSO, ASRPB). Disability policy became an integrated aspect of Telstra's policy process affecting all levels of management and future planning processes.

The decision to incorporate disability policy into the corporate culture and overall policy framework represented a significant difference between the new approach and previous efforts. Previously, according to a CTN Policy Adviser and the AAD Policy Adviser, Telstra regarded disability as a specialist area avoided by senior management (pers. comms. CTNPA; AADPA, 1997). Apart from disability being perceived as a loss area and irrelevant to the key market concerns of senior executives, the CTN Policy Adviser believes management felt uncomfortable being around people with disabilities (pers. comms. CTNPA, 1997). He recalled one incident where a Telstra senior manager met a person from the Deaf community. The person spoke through an interpreter using Auslan. As the manager conversed with the Deaf person, he looked at the interpreter. The Deaf person demonstratively requested through her interpreter for the manager to look at her during the conversation. He observed that the senior manager was embarrassed by his faux-pas and ignorance of Deaf conversation ettiquette (pers. comms. CTNPA, 1997). The event also illustrates Fulcher's observation that disability is perceived as a ‘feared status' (Fulcher, 1989, 25). However after the encounter with HREOC, senior management engaged with the cultural sensitivities of people with a disability as well as their material expectations:

After the DDA...(HREOC inquiry) they did what they should have done in the first place. They put their best senior consumer... He took an interest... He went and met people with disabilities... He learnt about the issues. They got on who was a terrific Project Manager to formulate the Action Plan under the DDA... All this happened after the case. It's like wow! [excited] ... We're going to use the terminology... We're not going to talk about the handicapped... It's going to be people with disabilities... We're going to get serious (pers. comms. CTNPA, 1997).

These comments and others (pers. comms. AADPA; PNFBCA) indicate a genuine shift occurred within senior management toward adopting attitudes and practices which reflected an integrated corporate commitment which, arguably, previous disability policy lacked. The TCC process was a useful resource. The TCCs provided access to community and consumer groups to participate in the new corporate policy process. Representatives from the Disasbility Services Consultative Committee (DSCC) and HREOC were consulted and became a vital part of the policy process (Link, Nov./ Dec. v. 5/5, 1996).

The Disability Action Plan (DAP) is an initiative by HREOC to assist Government and private corporations prepare short, medium and long-term policy objectives that comply with the DDA (pers.comm. DDPUSO, 1997; Disability Discrimination Act Action Plans, 1997). According to a HREOC Disability Discrimination Officer, Action Plans have primarily two functions:

Consequently, DAPs are blue-prints of action whereby costs of addressing disability discrimination issues are planned into reasonable time-frames. In addition DAPs can be introduced as evidence by a respondent in a hearing to claim that the organisation is making a reasonable effort to rectify discrimination in employment or business practices. HREOC presents one-day seminars to assist organisations prepare DAPs. Upon completion, the DAP is registered with HREOC who analyse the document and accept it on the basis that it meets the content criteria (pers.comm. DDPUSO, 1997). However, the quality of a DAP is not judged by the HREOC prior to an inquiry, should one occur. If the quality of a DAP was a judgement criteria of acceptance, then a decision of the outcome of an inquiry would be pre-empted (pers. comms. DDPUSO, 1995).

It is evident that Telstra's enthusiastic DAP intiative enabled the organisation to address human rights discourses of disability as well as insure against future legal disputes with HREOC and the DDA. However, the effectiveness of a DAP as ‘fire-insurance' is unknown due to its untested status. As Telstra staff worked towards completing the DAP by the second half of 1996, the corporation continued planning the TTY equipment programme.

In March 1996, Peter Shore, Commercial and Consumer Managing Director launched Telstra' $5 million TTY Voucher program in Sydney (Link, March/April, v.5/1, 1996, 40). Telstra contracted the Australian Communication Exchange (ACE) to run the program. ACE oversees the distribution of vouchers and TTYs for 17, 000 Deaf or speech impaired persons ineligible to apply for the Commonwealth Government's means-tested Telecommunications Equipment Access Program (TEA). TEA and the NRS are also overseen by ACE. At the launch, Shore outlined the latest Telstra initiatives for people with disabilities since the DDA:

The Telstra manager described the TTY program as Telstra's ``biggest single biggest initiative for the deaf community''. At the end of his address, Shore made a passing reference to the HREOC inquiry:

There's no doubt that the TTY program had a difficult beginning. While Telstra has a strong disability services program, our commitment was tested in the HREOC in Sydney last year, which found that we should also provide TTYs (Shore, AAD Outlook, v.5/ 1, 1996, 18).

The manager's reference to the testing of Telstra's commitment carried no admission of guilt. Arguably, the phrase also is slightly ambiguous. It might be argued that the statement does not indicate full agreement of the HREOC decision, but resigned acceptance by Telstra.

Caroline lee Aquiline, The Executive Director of AAD, in response acknowledged the Telstra initiative but also signalled that more would be done once the Telstra DAP was esatablished:

I am sure that this Action Plan will go a long way in broadening Telstra's services and access, and that some day we will be able to say that this TTY program is only a small part of what Telstra provides for people with disabilities, rather than a ``biggest single initiative'' (Aquiline, AAD Outlook v.5/ 1, 1996, 19).

The AAD director's response indicates a common element of continual dissatisfaction in community and consumer rights advocates as observed by some analysts and policy makers (pers.comm. ASRPB, 1997; Throgmorton, 1996). Once ground is strategically won, it serves as a stronghold until the next battle. The cause for human rights is seen as continuous. The AAD director made a reference to the HREOC inquiry also:

I believe it is also important to give some credit to other people who helped pave the road to this launch - most specifically, Mr Geoff Scott of Perth and DPI (A), who were major players in the case with the HREOC. AAD would also like to express a very special thanks to Phil Harper, the convenor of our Telecommunications Access Working Access Party, without whose dedication and perseverence many of our telecommunications wins would have taken longer to come to fruition (AAD Outlook v.5/ 1, 1996, 19).

Several times in her speech, the community organsation director likened the lobbying process for TTYs as a journey on a road. In addtion, she used gaming metaphors which indicated strategy and identified people with disabilities as players and winners. However, to end her speech on a conciliatory note, Aquiline referred to the outcome as a ``win/win situation''. According to Aquiline, ``Telstra enhanced its good corporate citizen image and Deaf and speech impaired people received a key access point to telecommunications services'' (AAD Outlook v.5/ 1, 1996, 19).

On December 3, 1996, on the symbolic day of the International Day of Disabled Persons Telstra launched its Disability Action Plan (DAP) at Darling Harbour in Sydney. Graeme Ward, Group Director and External Affairs for Telstra presented the DAP to Elizabeth Hastings, the HREOC Disability Discrimination Commissioner (Link, Nov./Dec. v.5/5, 1996, 40). The DAP outlines 9 Key strategies with time-frames:

  1. Develop a Telstra Corporate Disability Policy and DDA compliance program.
  2. Develop a Disability Awareness Program for all staff.
  3. Ensure ongoing community consultation and consideration of developments external to Telstra.
  4. Improve Accessibility to Telstra's buildings and facilities.
  5. Improve Accessibility to information for people with a disability.
  6. Improve Accessibility to Telstra's new products and services.
  7. Improve Accessibility to Telstra's existing products and services including:
    • standard telephone service;
    • payphone services;
    • operator assisted services;
    • mobilie communication services; and
    • other products and services.
  8. Maintain Telstra's commitment to the elimination of discrimination in the workplace in accordance with the Equal Employment Opportunity (EEO) policy.
  9. Incorporate DDA requirements into existing Telstra policies and programs (Telstra, DAP, 1996, 9)

On 28 November, 1996 Telstra issued Policy 005 071 Disability Services for inclusion in the Corporate Policy Manual (CPM) which demonstrated the new integrated approach that senior management gave to disability policy. The policy defined direct and indirect discrimination for staff. In addition the policy made provisions for a senior officer from each Business Unit to be responsible for overseeing the implementation of DDA compliance (Telstra, Policy 005 071, 2, 1996). At the time Telstra launched its DAP, a Government committee was about to present its final report which recommended that the telecommunications carrier be required to expand its commitment to TTY services and equipment programmes further.

This chapter has argued that the HREOC inquiry represented a watershed development in telecommunications policy for people with disabilities. Arguably, it signified a clash of discourses and different perceptions of disability. In addition it argued that both parties were informed by differing institutional worldviews and used various discourses to frame the issue of determining responsibility for TTY provision to people who are deaf and/or have severe speech impairments. Furthermore, the chapter argues that Telstra had an extensive review of internal and external policies toward people with disabilities as a result of the HREOC inquiry. Anyone who has severe hearing or speech impairments may now qualify for a TTY on the same basis as any other person accessing the telecommunications network using a standard telephone handset. The new policy direction appeared to be framed by a rights discourse of disability in contrast to the earlier charity discourses. Consequently, it appears that policy changes occurred in the material and symbolic environments for people with disabilities - in particular, for those who have profound hearing loss.

Further Information

Draft of 25 November 1999. Comments and Corrections Welcome
Copyright © Michael J Bourk & Tom Worthington 2000.