Universal Service?

Telecommunications Policy In Australia and People with Disabilities

By Michael J Bourk

Edited by Tom Worthington.

Discrimination legislation and Internet Accessibility: Lessons from America Online, Macy’s, and Telstra

Access to public spaces. What images does that phrase conjure up for us? Open air, freedom to enjoy access to common areas, a place to congregate in groups, the right to enjoy common spaces with friends and families. Probably all this and more. But what about access to virtual common spaces. And to what degree do people have the right to access public spaces on the Internet. Ah that’s where it all becomes more complex. As I speak two battles are raging in virtual and real spaces in America. Both concern peoples’right to access real and virtual spaces. The outcomes are about to be decided in the courts and both issues concern people with disabilities and major corporations. I don’t think that it is an overstatement to claim that institutional shareholders, corporations, lawyers and consumers across America are waiting with baited breath for the court’s decision, which will come any day. But what are these monumental battles that curiously we have heard little of, but which have corporate America nervously clutching their gold Amex cards?


The first concerns physical spaces in which we live, move and collect parking tickets. The San Francisco branch of Macy’s, a popular department store in the US with 200 stores nationwide, is the subject of a complaint launched by a group of wheelchair users and disability rights advocates who allege that passage through the store’s narrow aisles is discriminatory and contravenes the American with Disabilities Act 1990. There are major implications for department stores across America if the complaint is upheld. Some commentators are warning that litigation bombs will explode across the nation as a result. The point of controversy surrounds the definition of public accommodation, which I will analyse later.

The second case involves definitions of public accommodation also, and has application closer to home for those in this audience at least.

In November 1999, the National Federation of the Blind (NFB) and nine individuals, all of who are blind, bought a lawsuit against America Online, the nations largest Internet service provider with more than 19 million subscribers (Jenislawski 2000). The NFB allege that the ISP contravenes the ADA, the disability discrimination legislation, by making access to content on their website inaccessible for blind Americans. For people with unimpaired sight, the first question that might immediately come to mind is how can one have a website that allows blind people to access. In some ways, quite easily really. The blind use software that monitors screens and converts text to synthesised speech. All works swimmingly until an image is encountered, whereupon the listener’s concentration is interrupted with the annoying phrase ‘Do it logo’. Before long the repeated command to do it without us having an idea of what is to be done would drive the sanest surfer to distraction. The problem is that America Online’s proprietary software is difficult to adapt. However, at this time it is useful to recall AOL’s slogan, Anytime, anywhere. The company has used its ease of use as a primary selling point. Arguably easy access is its USP, unique selling proposition. There are an estimated 700, 000 legally classified blind Americans and the NFB claims that up to 70 percent of its 50,000 members regularly surf the net (Shepherd 1999). For them, AOL’s USP is a cruel joke, which creates an ethical dilemma for the service provider at least. But is it illegal? Again, the key point of controversy concerns defining the concept public accommodation.

According to the US Department of Justice Guide to Disability Rights Laws public accommodations are:

private entities who own, lease, lease to, or operate facilities such as restaurants, retail stores, hotels, movie theatres, private schools, convention centres, doctors’ offices, homeless shelters, transportation depots, zoos, funeral homes, day care centres, and recreation facilities including sports stadiums and fitness clubs.

[ Furthermore public accommodations] “must comply with basic non-discrimination requirements that prohibit exclusion, segregation, and unequal treatment” (US DOJ 2000, 5).

Most of the definitions of public accommodations that I have identified in the legal literature are descriptive instead of functional. Lists of examples of public accommodations are indicative instead of prescriptive. Consequently there is some confusion in American legal circles surrounding what constitutes a public accommodation.

The Department of Justice, appears to be taking an inclusive and exhaustive approach to the issue and the latest application to web design and the internet activities is a warning that the IT industry in the US does not take lightly (Freza, 2000). Similarly Australian IT professionals should not ignore the warning signs here.

One more brief note before addressing issues closer to home.

You may be wondering about the application of the ADA to the public sector – local, state and federal governments.

Simply, all State and local governments must give people with disabilities an equal opportunity to benefit from all programs, services and activities (DOJ 2000,4). Briefly the ADA is broken into four sections called titles.

  1. Title 1 Employment
  2. Title 2 State and local government activities
  3. Title 3 Public accommodation
  4. Title 4 Telecommunications relay services


It is unlikely that the AOL outcome will have a significant direct impact on the Australian IT industry. This is not just because the law has no jurisdiction here, which is obvious. Unlike the ADA the Australian Disability Discrimination Act 1992 makes no distinction between State or private institutions that offer services and facilities to the public. The DDA is applicable to all. One could say that it has never been discriminatory in application. The American culture of having lucrative litigation trials is another major difference between the two nations’ discrimination laws and application. However the reluctance of Australians to engage in court battles is no cause for complacency among IT managers and web designers. It is my firm belief that a decision that goes against AOL will feed the frustration that is growing among people with disabilities that have trouble accessing the Internet. Consequently, the AOL decision and the surrounding publicity may mobilise peak disability consumer groups on a public course of confrontation with web designers and service providers that ignore their warnings.

If tested in the courts it is unlikely that government or large corporate bodies would champion a positive outcome against militant groups of people with disabilities who know their rights. In the case of discrimination law it really is a case that the bigger you are, the more likely you will fall. To illustrate the point, let’s look briefly at the fall suffered by one of the biggest kids on the corporate block, Telstra.


Scott and DPI (A) v Telstra

Few know that in 1995 a member of the West Australian Deaf community, and a peak disability group launched a successful case against Telstra in an inquiry overseen by the Human Rights and Equal Opportunities Commission. Geoff Scott alleged that Telstra unfairly discriminated against him by refusing to supply a teletypewriter on the same basis that the corporation supplied a standard telephone to able-bodied persons. A teletypewriter (TTY) is a device that converts keystrokes on a keyboard into tone signals, which are transmitted by electromagnetic energy along standard telephone lines and converted into text by the receiving TTY. For a non-hearing consumer it performs a communicative function similar to a telephone handset.

During the three day inquiry Telstra defended its position by claiming that its position was not discriminating against anyone because people had a right to use its services or not. Primarily the carrier claimed that it was not in the business of supplying equipment but a service that gave access to the telecommunications network. Furthermore Telstra revealed that it had supplied millions of dollars of free and heavily subsidised services to Australians with a disability. The complainants argued that the carrier was discriminating because it placed unreasonable expectations on deaf consumers attempting to access the carrier’s network. Furthermore, they argued that Telstra’s corporate generosity was irrelevant to the issue before the commission. It is significant to note that discrimination legislation does not mandate that service providers make new services available to minority groups. Instead the emphasis is placed on facilitating alternative access to existing services. However it is a fine line between providing new services and creating alternative access routes to existing services.

The Commissioner accepted Telstra’s claim that it had no obligation to provide a new service as stated in s.24 of the Disability Discrimination Act. 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 Telstra'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 primarily as a social phenomenon and not a technological or even a market commodity. 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 for a customer to a shop. Consequently, the disputed service is not a new or changed service but another mode of access to the existing service. It is the reference of access to an existing service that has particular relevance to the IT industry.

At this stage it is useful to clarify two aspects of discrimination. Direct discrimination occurs when a person with disability is treated less favourably, on the basis of that particular disability, than someone without disability. Intent is immaterial, consequently ignorance is no excuse. As implied in 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 organizations whose policies and institutional practices exclude people with disability from accessing goods, services and activities. Consequently, a representative on behalf of a class of people may make claims of indirect discrimination.

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).

Rayner positions indirect discrimination as being in conflict with established traditions and commonsense approaches to policy. In addition Rayner indicates that addressing indirect discrimination involves revisiting notions of social responsibility. Consequently the implications of a successful allegation of indirect discrimination has broad implications for service providers. Judgement went against Telstra in a decision that upheld Scott’s claim of direct discrimination against him, and indirect discrimination against the class of people in Australia, about 17000, who have severe speech and/or hearing impairments. According to sources close to both parties, Telstra abandoned plans to appeal the finding when the corporation considered the possible negative publicity. This is one reason why large corporations have more to lose following an allegation of discrimination.

Of itself, a successful complaint does not carry culpability. One more line of defence exists for the respondent, in this case Telstra. If the service provider is able to prove that it would cause unfair financial strain to modify existing structures for people with disabilities to gains access then the discrimination would not seen to be unlawful. The legal instrument is called unjustifiable hardship. Unjustifiable hardship is similar to what American discrimination law describes as unreasonable. It is not based on appealing to legal technicality but determined instead by evaluating the effects that supplying access may have on both parties. The costs and benefits, including social, to both parties must be weighed. Of course, any decisions are arbitrary but there is an emerging path of precedence created by cases such as Scott v Telstra and more recently Hills Grammar School v HREOC. The precedent decisions are mapping the territory. Any corporation ignoring the outcomes does so at its peril. HREOC no longer has public inquiries. Instead the commission acts as a conciliatory body between the applicants and respondents.

If conciliation fails, the matter is referred immediately to the Federal courts. Consequently, a matter taken to the Federal judicial system for resolution has court cost implications. However, the complainant is likely to receive the full expertise and counsel of HREOC. Furthermore the results of cases to date indicate that the Federal court system is serious about factoring in the social benefits that access to a service may offer. As a point to consider how do you argue that the cost to build a text route around an image to allow a visually impaired person to access the information is greater than the benefit that they will receive? If you are a small business you may have a case, but what if you are a large corporation or a government body? As Telstra discovered, the larger you are the more likely you will fall. Apart from the minimal cost to Telstra to provide TTYs to the Deaf community, which amounted to .0156 percent of annual domestic billings, Scott would be able to engage in 2-way interactive communication, arrange appointments, and access important information. The benefits mentioned are similar to those currently offered by websites.

As a consequence of the Scott v Telstra decision, seventeen thousand members of the Deaf community no longer had to pay approximately seven hundred dollars to access a telephone service. Furthermore Telstra actively engaged in understanding disability issues and changing its corporate culture by instituting a Disability Plan of Action, which I will refer to later. Finally the Minister for Communications specifically wrote TTY provisions into the Telecommunications Act 1997.

The events leading to the case, including significant discussion surrounding disability and telecommunication policy outcomes are the main areas of research that informed my Masters thesis. For those interested in pursuing the full story of what came to be known as the Scott decision, you are invited to peruse the full story online at http://www.tomw.net.au/uso


Australia’s population is ageing. The so-called baby-boomers are getting older. According to health sociologist John McCallum, Australian baby-are those aged 15 to 44 in 1991(McCallum and Geiselhart 1996, 7). McCallum prefers to call the cohort a plateau instead of boom because other nations with narrower age spans had lower levels of immigration.

As a result of higher immigration levels our period of ageing will be longer and less severe than other nations such as Canada and Sweden. For example in Sweden one in every five people in 1995 were older than sixty. At the same time in Australia it was one in eight. Similarly, the pace of ageing is less than our Western neighbours. Notwithstanding the above, within the next few years Australia’s demographics will shift in sobering ways:

Australians over 65



% population


1.3 million



2.3 million



3.6 million



5.7 million


Source: HREOC 1999

Sociologists predict that around 2011 the ageing population peak years begin. Significant numbers of the baby-boomer cohort will be retiring and exerting social and political pressure on available services and resources. A natural corollary of ageing is physical and intellectual impairment.

Australians with a disability – age distribution

Source: HREOC 1999

The most recent survey by the Bureau of Statistics, of physical and intellectual disabilities dates back to 1993. Out of a total population of approximately 3.2 million people with a disability, the main disability categories were:

Categories of Disability



Physical impairment

2.25 million

Hearing impairment or degrees of deafness


Intellectual or other mental impairment


Vision impairment


Psychiatric impairment


Source: HREOC 1999

In many ways people with disabilities represent different cultural groups. It is important to develop an understanding of different world views in attempting to negotiate policies that accommodate their requirements as citizens and consumers. The discrimination legislation is written from a rights perspective that considers the differences between impairment, disability and handicap. Confusion over the three terms and their application abounds among policy makers and service providers. Impairment refers to a temporary or permanent physical or intellectual condition. Disability is the restrictive effect on personal task performance that the surrounding environment places on people with impairments as a result of unaccommodating design or restricting structures. Handicaps are the negative social implications that occur from disabling environments. Instead of focusing on the limitations of physical or intellectual impairments, a rights model of disability places the emphasis on the disabling effects of an unaccommodating environment that may reduce social status. People may never lose their impairments but their disabilities and handicaps may be reduced with more accommodating environments designed with and for them.

The terms impairment and disability are often used interchangeably in discussion and policy debates. However, to avoid a rights dispute it is important to understand the difference. The courts and HREOC and large numbers of people with disabilities and impairments do.

On March 21 of this year the Federal Government specifically stated that all Commonwealth websites had to meet Worldwide web consortium standards for accessibility by 1st May. The W3C standards will be addressed in more detail later in this paper. In addition all newly contracted site work have to meet the guidelines. Other levels of Government and also the private sector do not escape attention either. Recently Graeme Innes (May 2000), the Deputy Disability HREOC Commissioner stated:

…Cabinet adopted specific accessibility requirements for Commonwealth sites as part of its policy for use of the internet, and the Commission welcomes this. All sites must be audited against W3C accessibility guidelines by 1 May 2000, all new contracted site work must include accessibility benchmarks from this date, and all must meet these guidelines by 31 December 2000

State governments are also setting out similar policies, but access to such sites is at least as patchy as Commonwealth sites. Specific targets here need to be adopted.

Similar access problems exist on private sector sites. Again we have not published details. However, business needs to focus on these issues. The Commission's advisory notes, largely adopting W3C guidelines, provide assistance in this area.

The proactive position by governments on specific areas of Internet access such as Commonwealth sites should not give others room for complacency. The legislation is clear that both public and private sectors that provide a service are required to ensure reasonable access provisions are made for consumers with disabilities also.


There are three practical initiatives that web designers and others in the IT industry can take to avoid legal disputes and, more importantly build harmonious relationships with citizens and consumers with a disability. First, the accessibility of web sites to people with various impairments may be evaluated using a free software program that is rapidly becoming an international benchmarking tool. Second, service providers can set up a consumer consultative council that includes representatives from peak disability groups.

Finally, as a result of negotiations from the consultative council and advice from HREOC staff, an organization may download a disability action plan template from the HREOC website, fill it in and register it with the commission.

W3 Consortium Guidelines

In May 1999 the W3 consortium launched the Web Access Initiative, which is a set of content guidelines for web authors. The suggestions are designed to ensure universal access to the Internet for diverse audiences. Significantly, the recent HREOC issues paper on e-commerce and accessibility to new service delivery technologies for older Australians and people with disabilities used the WAI guidelines as its ‘main reference point’ for its survey of web accessibility. The final report from HREOC is currently before the Minister who will table it before Parliament before its public release within the next few weeks.

Bobby 3.1 was scheduled for release also at the same time as the Web Access Initiative guidelines.


Bobby is a public software program designed to evaluate website accessibility to people with a range of disabilities. Named after the affable constable found in Dickson of Dock Green or the Bill, Bobby was developed by the Massachusett’s based Center for Applied Special Technology (CAST) in 1996. Primarily Bobby operates at three levels of error identification: errors, warnings and suggestions. Errors are the most important to address because they make a webpage inaccessible to many. Warnings should be considered but to rectify the problem may substantially reduce design options (eg. not using HTML tables). At the lowest levels are suggestions that . . may assist in facilitating maximum access for people with disabilities Features that facilitate accessibility are audited and identified as well as restrictive elements.

Several examples that are considered for Bobby approval include:

Bobby is free and may be downloaded from http://www.cast.org/bobby/

The second practical initiative that may be considered is developing a consultative process between the organization and consumers, including those with a disability. One of the most progressive models is the Telstra Consumer Consultative Council. The NRMA adopted the TCCC model also. Briefly the council, which meets quarterly has a joint-chair represented by a manager from the organization and a consumer peak body representative. If the organization is national, as in the case of Telstra, regional councils may also be set up to provide regular feedback to the main body. The councils are forums for discussion, policy initiatives, analysing research opportunities and lobbying by specific groups. In addition, they are useful centers for qualitative research and sometimes operate as focus groups for the organization. Since the Scott decision the TCCC has been useful to assist Telstra management to come to terms with some of the diverse cultures of disability. As Public Relations theorist James Grunig observes, for an organization to build continuing goodwill in the community there is no substitution to sustained, regular consultation with affected publics (Baskin, Aronoff and Lattimore, 1997, 65).

The third initiative that the IT industry should consider is to develop a disability plan of action. A Disability Discrimination Action Plan is a detailed plan that schedules short, medium and long-term goals to address activities and conditions that may be construed as discriminatory to people with disability.

It facilitates a change in attitude and work practices toward people with disability who are employees or customers. Furthermore the plan is useful as a reference should an allegation of discrimination arise. To date Telstra and Optus are the only telecommunication carriage service providers to have undertaken a Disability Action Plan. No other ISPs have registered a plan with HREOC. Developing an action plan will assist a business over some of the complexities of discrimination legislation briefly outlined in this paper. In addition it will minimise the risk of legal action taken against an organisation. According to HREOC ( DDA Action Plans 2000):

The implementation of an Action Plan will make it far less likely that a business will commit discriminatory acts in the first place. A successful Action Plan can, in a sense, act as an insurance policy against DDA complaints.

Not all discrimination is unlawful. The DDA states that discrimination will not be unlawful where the elimination of all discriminatory practices would impose 'unjustifiable hardship' on a person or business. Development of an Action Plan will ensure that, in the event that a complaint is made, the business concerned will have already considered complex issues like 'unjustifiable hardship'.

Guides to developing a Disability Discrimination Act action plan may be downloaded from:


Other websites that include useful tips and elements to consider when designing a webpage include:


The URL for the Web Accessbility Initiative. It has links to other useful websites that address accessibility issues.

Do it. World Wide Access:Accessible Web Design


This site contains useful design tips based on the guidelines developed by the W3C and which are known collectively as the Web Accessibility Initiative (WAI).

HREOC is using WAI as a guide in developing accessibility benchmarks for Australian websites.


"The power of the Web is in its universality. Access by everyone regardless of disability is an essential aspect."
-- Tim Berners-Lee, W3C Director and inventor of the World Wide Web

Who are we to argue???


Baskin, O Aronoff, C and D. Lattimore 1997 Public Relations: The Profession and the Practice 4th Edition, Brown & Benchmark: Chicago

Bourk,M 1998, Universal Service and People with Disabilities: An Analysis of Telecommunications Policy Making from 1975 – 1997. University of Canberra.


Exploit Interactive Issue 3: Bobby 3.1 http://www.exploit-lib.org/issue3/bobby Accessed 30 May 2000

Freza, B 2000 The ADA Stalks the Internet: Is Your Web Page Illegal? Http://www.internetwk.com/columns00/frezz022800.htm Accessed 30 May 2000

HREOC (2000) Disability Discrimination Act Action Plans: A Guide for Business http://www.hreoc.gov.au/disability_rights/action_plans/Business_Guide/business_guide.html Accessed 6 June 2000

HREOC Issues Paper:Access to electronic commerce and new service and information technologies for older Australians and people with a disability http://www.hreoc.gov.au/disability_rights/current_inquiries/ecom/ecom.html Accessed 6 June 2000

Innes, G 2000 Access to Electronic Commerce For Older Australians And People With A Disability Address By Deputy Disability Discrimination Commissioner to the Conference Of The Roundtable For People With A Print Disability: 22 May 2000 http://www.hreoc.gov.au/disability_rights/speeches/round/round.html

Jenislawski, S 2000 ADA Court Cases Could Have Huge Impact, Policy.com: The Policy news and information service, 11 May, http://policy.com/news/dbrief/dbriefarc407.asp Accessed 16 May 2000

McCallum,J & Geiselhart, K 1996 Australia’s New Aged: Issues for young and old, Allen and Unwin: NSW

Olson, W 2000 ADA &the web:sounding the alarm http://overlawyered.com/archives/00may3.html#00524d Accessed 30 May 2000

Rayner,M 1992, Disability and Discrimination in Australian Disability Review, No 2, pp 31- 40, DACA: Canberra.

Shepherd,R Net Rights for the Disabled? http://www.lawnewsnetwork.com/stories/A9537-1999Nove12.html Accessed 30 May 2000

U.S. Department of Justice 2000 A Guide to Disability Rights Laws , May

http://www.usdoj.gov/crt/ada/cguide.htm Accessed 30 May 2000

Further Reading

Fulcher, J 1989, Disabling Policies: A comparative approach to education policy and disability, Falmer Press, Philadelphia.

Goggin,G 1998, Citizens and Beyond’ in All Connected? ed, B Langtry, Melbourne University Press, Melbourne.

Human Rights and Equal Opportunity Commission 1995, No: H94/34, Hearing Sydney NSW, 20,22,23 & 24 March, HREOC, Sydney.

Newell,C 1998, ‘Disability, Disadvantage and Telecommunications’ in All Connected?, ed B Langtry, Melbourne University Press, Melbourne, 151-168.

Wilson, I. & G. Goggin 1993, Reforming Universal Service: The Future of Consumer Access and Equity in Australian Telecommunications, Consumers’ Telecommunications Network, Sydney.

Presented at Internet World 2000, 8 June 2000, Sydney.

Further Information

Draft of 11 November 1999. Comments and Corrections Welcome
Copyright © Michael J Bourk & Tom Worthington 2000.
(Also RTF version and slides.)