Achieving equal access to telecommunications

Achieving equal access to telecommunications

Paper for Consumer Telecommunications Network conference, "Is the future calling: consumers and new telecommunications technologies", Sydney, 24 November 2000

David Mason, Director, Disability Rights policy, HREOC

This time eight years ago, Australia's Disability Discrimination Act was finishing its journey through parliament.

The fact that the Disability Discrimination Act covered telecommunications services from its commencement - instead of this coverage being postponed for several years as proposed in the Bill originally presented to parliament - was a great victory for disability community organisations and a lesson in the importance of particupation by the disability community in decisions about disability rights.

There were plenty of other issues covered by the DDA where I think the government officials and advisers involved are entitled to a fair amount of the credit for drafting strong legislation, and maintaining its integrity through the negotiation processes to get it passed into law. But speaking for myself at least, up to almost the last moment, the temporary exclusion of telecommunications services looked like one argument we would have to accept we had lost, if the rest of the Act was going to get through the Parliament. (I am not giving away any secrets here - all this is there to see in the Hansard records of the committee stage debates on the Bill.)

The decision at the last moment to drop the exclusion of telecommunications was due very largely to the efforts of disability community organisations ( as well as to people inside the system who responded to those efforts).

Of course, the passage of this or any other legislation was not an end in itself: the point is for people with rights under the legislation to use them and people with responsibilities to implement them. Legislation rarely implements itself, and certainly anti-discrimination laws do not always get implemented just because they have been passed: hence the importance of the provision for individual and representative complaints. The Australian model of anti-discrimination law also does not define with much precision what people and organisations with responsibilities need to do to implement them.

The provision in the DDA for disability standards was an important response to a need for definition of what needs to be done and by when. But it was not a comprehensive response, with no provision being made in particular for standards under the DDA regarding telecommunications.

The complaints by Mr Scott and by Disabled Peoples International Australia (later taken up by the Australian Association of the Deaf) had their direct results in Sir Ron Wilson's decision, and Telstra's agreement, for provision of TTYs to deaf customers. A broader result which this case contributed to was a very welcome degree of mainstreaming through the Telecommunications Act including disability access issues in the definition of the standard telephone service.

The implications of the DDA of course are not restricted to those services currently defined as being within the standard telephone service. New applications of telecommunications through the internet are not within the standard telephone service at present but are very definitely within the ambit of the DDA - you may have seen the recent decision in Bruce Maguire's case against SOCOG for example.

This audience would be aware of the current complaints under the DDA regarding accessibility of mobile phones for hearing aid users and the public inquiry process conducted by HREOC to assist in achieving appropriate resolution of those complaints.

Settlement negotiations on the complaints concerned are progressing and I should not say anything to compromise those negotiations. It is fair to say though that all parties involved have seen benefit in the public investigation approach taken by HREOC to this matter as a means of providing for broad participation and exchange of information and views. But even taking into account that this inquiry has been one of the early, "experimental" versions of a public inquiry complaint process for HREOC, it has to be said that this has been a fairly long process. Any complaint process, however speedy and effective, also occurs after the event.

Given the range and depth of regulatory and co-regulatory and self-regulatory mechanisms applying to telecommunications it seems bizarre that a consumer should need to complain to an anti-discrimination authority to secure effective access to any aspect of telecommunications service. Of course, some of these mechanisms have only recently been put in place, so the fact that previous problems have led to discrimination complaints does not mean in itself that these mechanisms are ineffective.

Australia's first Disability Discrimination Commissioner, Elizabeth Hastings, emphasised a number of times the importance of other institutions and other areas of regulation doing their share of the work in creating an equal and accessible world, rather than everything being the direct role of discrimination laws and discrimination agencies.

There has not been nearly as much consideration of self-regulation and other alternatives to direct regulation in relation to discrimination law in Australia as there has in relation to telecommunications law, or in relation to environmental law here or in particular in North America.

A thought I would like to raise today for consideration by consumer, industry and regulatory agency representatives is the possible role of temporary exemptions under the DDA in recognising appropriate remedies and regimes in the telecommunications area.

A temporary exemption can be granted for up to five years at a time. Basic administrative law principles indicate that the power to grant an exemption should be granted where this promotes the purposes of the legislation. The Commission has granted applications for exemption on this basis on a number of occasions. In most cases this has been in relation to transport and to particular practical measures to be taken during the life of the exemption. But there is no reason in principle why an exemption could not be granted in an area such as telecommunications on the basis of less concrete measures such as the implementation of a particular self regulatory and complaint scheme.

An exemption can perform similar work to a disability standard under the DDA. It is also possible to build into an exemption conditions which provide for monitoring mechanisms which are not so readily built into a standard.

This is not to prejudge the question of whether any particular exemption if applied for should be granted. There is also room for debate on a more general level. Rather than base exemptions on the specialised telecommunications regulatory regimes, an alternative view is that the DDA should continue "running in the background" although in most cases a more appropriate remedy will be provided by the telecommunications regime. The approach to be taken to this issue, if an application for exemption were made requiring HREOC to make a decision, would depends on which approach in the circumstances better promoted the objects of the DDA - included which approach would contribute more to continued development and functioning of appropriate telecommunications regime and remedies.

A decision to grant an exemption suspending rights proclaimed by parliament is obviously a substantial one.

One of the issues in the English Civil War was the King's "pretended power of dispensing with the laws" which threatened the supremacy of Parliament as the law making authority. Well, a body in HREOC's position really does have a power of dispensing with at least part of the law, in a way which is not subject to disallowance by the parliament (unlike making of regulations or standards) - although it is subject to review by the Administrative Appeals Tribunal.

The substantial nature of the power to grant exemptions led the Commission to adopt and publish a formal policy providing for interested parties to participate in the process of making these decisions. The process generally followed is to issue a notice of inquiry or draft decision and receive and publish submissions, before publishing a decision with reasons.This allows us to draw on expertise from industry, the communityand other regualtory bodies, while recognising HREOC's own responsibility to make a decision.

We would be happy to discuss further with any interested parties the possibilities for use of the exemption process in relation to telecommunications, or the possibilities for use of other processes provided for by the legislation including the complaint process.