Universal Service?

Telecommunications Policy In Australia and People with Disabilities

By Michael J Bourk

Edited by Tom Worthington.


Legislative Overview

This chapter is a brief review of relevant Commonwealth legislation. In addition, the relevance of key terminology and its framing effect on policy is discussed. The unintended consequences for people with disabilities of single word amendments to telecommunications legislation is explored. Amendments to the Acts arising from Senate and Representative House debates are in the main ignored as few implications for universal service and people with disabilities were identified. Later chapters thirteen detail the relevant sections of The Disability Discrimination Act (DDA, 1992) and the Telecommunications Act (1997). They also explain significant amendments and Senate debates.

Although the term universal service was not used, the Post and Telegraph Acts which governed the Post Master General Department (PMG), the geographic dimension of universal service appeared implicit in the spread of telecommunications facilities to the country's rural and remote areas. A complex system of cross-subsidisation was used to develop and maintain a network of high technical standard which traversed the continent (Barr, 1983; Reinecke and Schultz, 1983; Wilson and Goggin, 1993, 6).

The omission of the term universal service from the legislative framework until 1991 is a significant factor that explains in part the problem of deciding how inclusive the extent of provisions should be. In the absence of a clear definition of a public service for various groups in society, the focus remained on overcoming the tyranny of distance barriers. As Senator Alston and international experiences have indicated, the measuring stick of universal service goals has been telephone penetration which was deemed by Alston to have been basically fulfilled when it reached 94 percent in 1990 (Alston, 1990, 373).

Telecommunications Legislation

1975 Telecommunications Act

In 1975 Telecom Australia was formed. It was a statutory authority and therefore removed from direct government control and placed under the jurisdiction of a legislative charter which required ``the commission to perform its functions in such a manner as will best meet the social, industrial and commercial needs of the Australian people for telecommunications services'' (Reinecke &Schultz, 1983, 44). There is an inherent ambiguity in the charter as the best social needs may not (and often don't) correspond with the best business needs. This vague mandate places Telecom on a tightrope between commerce and community. Some policy analysts have observed that this is a tension that state institutions attempting to serve the dual function in capitalist societies frequently experience:

Rather than acting as purposefully rational organisation, state organisations, particularly in the non-CSA(capitalist state activities) sector, are characterised by reactive avoidance of responsible rational planning in the face of competing and contradictory roles of both successfully maintaining accumulation and simultaneously retaining legitimacy, without producing a crisis of practical reason, appears almost impossible. (Clegg and Dunkerley in Ham & Hill, 1983, 182)


Consequently, having to meet commercial objectives while retaining public interest priorities is extremely problematic for state institutions in capitalist societies. By increasing Telecom's business status the institution was given a mandate with internal contradictions which would confuse its identity and function. The tensions are exacerbated in a deregulated industrial environment.

The notion of universal service illustrates the internal conflict described by Clegg. Telecom's legitimacy as a state institution with public interest responsibilities is challenged by demands for economic efficiency and profit maximisation.

So significant is July 1, 1975 to Telstra staff that it has come to be known as Vesting day or V-day. V-day signified the end of the amalgamation of postal and telecommunication services being administered by the PMG Department and the formation of the Australian Post Office and Telecom Australia (Reinecke & Schultz, 1983, 20). Arguably it began the modern era of Telecommunications management in Australia and invested the institution with enormous self-governing power with the right to determine its own infrastructure, operation and provision of services (Cunliffe, 1990, 237).

Lindsay observed that the Act (1975) repeated the provisions of the old Post and Telegraph Act 1901 (Lindsay, 1990, 35). Most significantly it restated the national carrier's monopoly status as the only supplier of telecommunication equipment and services although it had the power of dispensation which was a new provision for the newly formed commission (35).

Telecom's charter in the Telecommunications 1975 Act implied a universal service obligation as it was to provide a service that would:

...best meet the social, industrial, and commercial needs of the Australian people for telecommunications services and shall, so far as it is, in its opinion, reasonably practicable to do so, make its telecommunications services available throughout Australia for all people who reasonably require those services (section 6 (1)).

Later in the Act another clause added that Telecom must consider:

the special needs for telecommunications services of Australian people who reside or carry on business outside the cities (section 6 (2) (b) iii)).

As Wilson and Goggin observe, the provision for an implied universal service in the above clauses defined it within the parameters of a geographical area and a technological standard (1993, 7). However the phrase, ‘...throughout Australia for all people who reasonably require those services'(italics added), implied that the notion of universal service may have been significantly expanded in terms of access and equity and not contradict the legislation (Wilson and Goggin, 1993, 7).

The Act defined Telecom's charter and it was used as the benchmark for later legislation. Telecom's independent status and seemingly unrestricted trading power led to claims by the private sector that it contravened the Trade Practices Act (1974) (Bureau Transport Communications Economics (BTCE), No 87, 36).

The Government avoided the risk of Telecommunications policy being decided by the courts and moved to legislate a deregulation process of Australian telecommunications (Davies, 1990, 53). This led to the the Australian Telecommunications Act (1989).

1989 Australian Telecommunications Act

This Act established AUSTEL, a body corporate, as the newly appointed regulatory body over Telecom and the telecommunication industry. Austel represented a down-sizing of Telecom's authority and autonomy. It also represented the introduction of full competition for the monopoly public carrier in relation to value added services (VAS)[2] (Cunliffe, 1990, 239). Cunliffe argues that the unbundling of the telecommunications domain into competition and non-competition zones introduced by the legislation allowed the head of AUSTEL to pursue his own pro-competitive inclinations which as observed by Cunliffe were in line government policy (Cunliffe, 1990, 240). The deregulation process is discussed further in the following two chapters.

In relation to universal service provisions there were several interesting developments. Firstly, a potential narrowing of the terms of reference from the Act 1975 occurred with the replacement of the former telecommunications with telephone. This had implications for people with disabilities and their community groups who argued that the function of a standard telephone service, known as plain old telephone service or POTS, may have been accomplished using technology that did not qualify under the strict reading of ‘``standard telephone service''. (Wilson and Goggin, 1993, 12-13). It is argued that a single word amendment to the earlier Telecommunications Act (1975) marginalised people with disabilities significantly in legislation.

The second point of note is the introduction of the term Community Service Obligation (CSO). CSOs were linked directly to the reformation of the Government Business Enterprises (GBEs) as discussed in the following two chapters and precedes the legislative use of universal service obligation (USO) (Wilson and Goggin, 1993, 13).

The standard telephone service was also defined as the ``public switched telephone service'' (PSTS), and referred to a handset that did not have switching functions. Again the special technical needs of groups such as people who are deaf and blind were not considered. The Act 1989 legislated that:

(a) in view of the social importance of the standard telephone service, the service is reasonably accessible to all persons in Australia, on an equitable basis, wherever they reside or carry on business; and

(b) that the performance standards for the service reasonably meet the social, industrial and commercial needs of the Australian community (S 27 ATC, 1989).

Community groups queried the use of standard in the legislation as there was some concern over how such a concept could keep up with technology as well as provide for groups with special needs such as people with disability (Wilson and Goggin, 1993, 13). Current debates in the segregation of society into information rich and poor sectors are also relevant to discourse over the use of words such as standard. (See Wilson and Goggin, 1993; Connecting you.., Senate Economics Review Committee (SERC), 1995). Unless ‘standard' retains a dynamic element to its meaning that encompasses technological change it is argued that large sectors in society will be alienated from the benefits of the ‘information age'.

1989 Australian Telecommunications Corporation Act

This Act legislated for Telecom to become a corporation which qualified it to have a carrier license as would be required in the Telecommunications Act (1991). This requirement provided for further deregulation of the industry which was to follow.

1991 Australian and Overseas Telecommunications Act

This Act legislated the amalgamation of Telecom and OTC into one corporation. OTC was previously separated from the domestic national service in 1946. The new corporation was known as AOTC- the Australian and Overseas Telecommunications Corporation. AOTC was renamed Telstra in 1992 and traded internationally as such. However the corporation traded domestically as AOTC until 1995 (BTCE, No.7, 1995, 24).

1991 Telecommunications Act

A further move toward deregulation of the industry and opening up to competition made up the main general objectives of this Act. Three public mobile telecommunications service operator licenses were issued to Telstra, Optus and Arena GSM (Global System Mobile) (later identified as as Vodafone). In addition Telstra and Optus were issued with a general carrier license that created a legislated national duopoly. Under this provision both carriers are:

recognised as the primary providers of Australia's public telecommunications infrastructure and networks and the primary suppliers of telecommunications services (BTCE, No.87, 1995, 27).

The Government legislated for the duopoly to prepare a viable competitor for unrestricted market environment in 1997 when the telecommunications industry would be opened up to full competition. It was felt that competition with Telstra may not have been sustainable given the former monopoly carrier's strategic market penetration and strength (BTCE, No.87, 1995, 27).

The Communications Minister for the Labor Government in 1991, Kim Beazley introduced the term universal service into legislation for the first time in the Act 1991. Its introduction was defined as part of the CSO which an interdepartmental committee (IDC) divided into three non-profitable areas:

Wilson and Goggin believe that the acceptance by Government and the community of the IDC's guidelines led to a missed opportunity to comprehensively define universal as an opportunity for access and equity to a telecommunication services for all Australians. Instead universal service was narrowly defined in geographical terms and ignored the wider social implications.

The significance of linking social equity to universal service is based on the contingent link to cross-subsidy funding. Cross-subsidisation came from the infrastructural fiscal provision of Telstra. The alternative is continued funding from concessions and other allowances which are directly linked to ministerial discretion and budgets.

The Act (1991) legislated a bifurcation of USO and CSO. CSOs were conceived as welfare issues and funded from government consolidated revenue and USOs were defined in geographical access terms and dispersed among the industry general carriers. However, at this time, Telstra was the only general carrier and the legislative mechanisms were placed for future application. (Wilson and Goggin, 1995, 15). In June 1992 the Communications Minister declared Telstra as the national carrier for Australia under section 290 (1) of the Act.

The Universal Service Obligation (USO) is defined in the Act 1991 as follows:

PART 13 - SUBSECTION 288(1) OF THE ACT DEFINES THE UNIVERSAL SERVICE OBLIGATION AS BEING:

"...the obligation...:

(a) to ensure that the standard telephone service is reasonably accessible to all people in Australia on an equitable basis, wherever they reside or carry on business; and

(b) to supply the standard telephone service to people in Australia; and

(c) to ensure that payphones are reasonably accessible to all people in Australia on an equitable basis, wherever they reside or carry on business; and

(d) to supply, install and maintain payphones in Australia

Earlier in the Act the standard telephone service was defined:

UNDER SECTION 5 OF THE ACT, A "STANDARD TELEPHONE SERVICE MEANS:

"(a) unless paragraph (b) applies - a public switched telephone service that:

(i) is supplied by a carrier; and

(ii) is supplied by means of a telephone handset does not have switching functions; or

(b) if the regulations prescribe a telecommunications service, or telecommunications services for the purpose of this definition- that telecommunications service or any of those telecommunications services

The Communications Minister, Michael Lee in August 1995 indicated that the standard telephone service would be changed to standard telecommunications service and thereby include facsimile and data services (as well as voice telephony) (Connecting you..., SERC, Nov, 1995, 90). The amendment had positive implications for people with disabilities as it no longer precluded them from their rights of accessing the function of the standard telephone service which could be supplied by technology such as TTY, and Tele- Brailler machines. These machines now qualified as devices which could provide telecommunications services and implicitly became part of the standard telephone service provisions. However, despite heavy lobbying by consumer and community groups neither the Government or Telstra acted on the legislative implications (pers. comms. CTNPA, 1997).

1991 Telecom (Universal Service Levy) Act

This ACT detailed the funding mechanism by which general carriers have to contribute to the cost of for providing USOs. The Act required each general carrier to pay a levy to Austel which reimbursed Telstra partially for providing universal service (Wilson and Goggin, 1995, 16).

1996 Telstra (Dilution of Public Ownership) Act

This Act enabled the sale of up to one third of the Commonwealth equity in Telstra Corporation limited (Telstra). The policy estimated that partial privatisation would generate around $8 billion. The act retains the CSOs as well as the requirement of telecommunications carriers to pay a Universal Service Levy to fund the universal service aspects of CSO costs.

In a move remiscent of the proverbial see-saw, the new Communications Minister, rejected his predecessor's decision to replace telecommunications with telephone (Bills Digest, No 72, 1995-96, 2).

Consequently, the Minister's decision retained a legislative ambiguity introduced in 1989 (when telecommunications was first replaced bytelephone) in relation to TTYs and other non-standard telecommunications equipment used by people with disabilities to access the network.

It appears that the imperatives of a deregulated telecommunications environment made policy makers reluctant to extend the definition of the USO (Wilson & Goggin, 1993, 22). Arguably, it wasn't the intent of legislators to deny access to the telecommunications network to TTY users and others who were unable to use conventional telephones. However, policy makers were hesitant to extend the guaranteed obligations of the USO for which industry was liable. It was hoped that a deregulated environment would create conditions that fostered competition. Further conditions on new entrants to the industry threatened the long term projections for healthy competition (Wilson & Goggin, 1993, 22).

1997 Telecommunications Act

The main provision in this legislation was to enable full and unrestricted competition within telecommunications in Australia. In addition, the Act places an emphasis on technological convergence and the rights and responsibilities of carriers in changing environments. The legislation represented a significant recognition of the HREOC inquiry decision and the impact that it had on policy. The legislation, amendments and relevant Senate debates for people with disabilities are analysed later.

Disability Legislation

1986 Disability Services Act

The central feature of this Act was the adoption of basic principles and objectives for the provision of disability services on a national level. Governments policies that pursued deinstitutionalisation of people with disabilities increased the need for funding and organising community care at regional and local levels (Lindsay, 1996). The legislation also incorporated the basis of a rights discourse of disability as discussed later.

State Governments later criticised policy makers for a perceived failure to include planning and funding arrangements between the States and the Federal Government in the legislation. (Yeatman, 1996, 17-18). The States complained that there was very little consultation or interaction with policy makers in the Federal Government

1991 Commonwealth State Disability Agreement (CSDA)

This was the first cross-government approach to disability which extended the application of 1986 Act to all Government jurisdictions. It was recognised as being far more successful in terms of integration of services and interaction with the states than previous polcies. The CSDA signified a substantial shift in the roles of service providers. Governments (both Federal and State) streamlined their operations and increased their reliance on community organisations to provide services, many state-funded, for people with disabilities:

As well as the rationalisation of responsibility for disability support services between the Commonwealth and the States, the Agreement specified a number of goals relating to positive outcomes for people with disabilities. These included the provision of a range of innovative services, a shift to community provided services, simplification of access arrangements, the promotion of access to generic services, the reduction of administrative overheads and more streamlined and cost efficient administration (Yeatman, 1996, 19).

The agreement was also politically significant as it was the first new inter-Government accord in the context of the new federalism and Yeatman observes that the mutual political good will generated facilitated later micro-economic reform involving interstate commerce (Yeatman, 1996, 19). This is significant in that it illustrates how larger political agendas can be informed by minor ones.

1992 Commonwealth. Disability Discrimination Act (DDA)

This legislation made it unlawful to discriminate against a person on the basis of a disability. The Act was also significant because it defined disability in the broadest sense to include any type of physical, emotional and/or intellectual impairment. The Act also classified actions based on perceptions of impairment as discriminatory.

The specific inclusion of telecommunications services in the discrimination legislation was significant. The DDA explicitly made it unlawful to discriminate against a person on the grounds of disability in the provision of goods, services or facilities, including telecommunications services:

4. (1)... ``services'' includes:

(d) services relating to telecommunications (DDA, 1992. s. 4, services (d), 6).

The only exception related to the provision of payphones and public payphones. However exemption for payphones only applied for the first three years following the Act's introduction (DDA, 1992, s.50). The evolution of the legislation and relevant senate debates analysed later.

The Act also detailed the conditions of ‘unjustifiable hardship'. Unjustifiable hardship excused service providers for discriminatory practices and formed the basis of defence in an inquiry. Although unjustifiable hardship was not specifically defined in the legislation (HREOC, 1995, 17), factors were given that could constitute a claim by a defendant:

Unjustifiable hardship

11. For the purposes of this Act, in determining what constitutes unjustifiable hardship, all relevant circumstances of the particular case are to be taken into account including:

(a) the nature of the benefit or detriment likely to accrue or be suffered by any persons concerned; and

(b) the effect of the disability of a person concerned; and

(c) the financial circumstances and the estimated amount of expenditure required to be made by the person claiming unjustifiable hardship; and

(d) in the case of the provision of services, or the making available of facilities, an action plan given to the Commission under section 64

(DDA, 1992, s.11, 9-10).

Two important observations can be drawn from the above factors that could constitute unjustifiable hardship: a) the potential benefit or detriment to both parties must be considered; and b) the economic hardship suffered by the defendant from supplying a service is an important consideration. Both issues were major factors that influenced the outcome of the HREOC inquiry as discussed later. Disability Action Plans (DAPs) are written short, medium and long term goals that institutions may undertake to implement programmes that remove discriminatory barriers to people with disabilities from using services and facilities.

This chapter has described and analysed the legislative history of Acts and other legislation between 1975 and 1997 which has affected telecommunications policies for people with disabilities. While much of the legislation had no direct reference to telecommunications disability policy, arguably it had the effect of excluding or including people with disabilities - in some cases by the change of a single word (eg. telephone or telecommunications). In addition, the disability legislation introduced a new rights discourse into policy that would be used later to challenge traditional social constructions of disability.

Finally, this chapter introduced two important policy streams, telecommunications and disability. Both streams of policy had major implications for future telecommunications service provisions for people with disabilities. Consequently, it is argued that the material conditions of legislation and the symbolic environments of contending discourses mutually constituted a change to telecommunications policy and service provisions for people with disabilities.

Further Information

Draft of 13 November 1999. Comments and Corrections Welcome
Copyright © Michael J Bourk & Tom Worthington 2000.