DISABLED PEOPLE'S INTERNATIONAL (AUSTRALIA) LIMITED v TELSTRA
Nos. H95/34, H95/51
Number of pages - 16
COURT HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION
Disability Discrimination Act 1992
Sir Ronald Wilson (Inquiry Commissioner)
HRNG Sydney, 20, 22-24 March 1995 (hearing), 19 July 1995 (decision)
#DATE 19:7:1995 #ADD 24:6:1997 Counsel for complainant: Mr John Basten QC Counsel for respondent: Mr Alan Archibald QC ORDER Complaint upheld. JUDGE1 Sir Ronald Wilson (Inquiry Commissioner)
INTRODUCTION 1. This is a public inquiry by the Human Rights and Equal Opportunity Commission ("the Commission") pursuant to s.79(1) of the Disability Discrimination Act 1992 (Cth) ("the DDA"). Furthermore, in accordance with s.81 of the DDA, it is a single inquiry in relation to two distinct complaints which arise out of substantially the same subject- matter. 2. The complainants in the inquiry are Mr Geoffrey Scott and Disabled People's International (Australia) Limited ("DPI").
3. Mr Scott lodged a complaint with the Commission on 3 May 1993 pursuant to ss. 5 and 24 of the DDA. Mr Scott, who describes himself as being profoundly deaf, alleges that the respondent is acting in a discriminatory manner under the DDA in that it denies him access to the telecommunications system by not providing him with a tele-typewriter ("TTY") in the same way it provides hearing subscribers with a standard telephone handset (known as the T200 - a push button telephone with memory dialling facilities). A 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.
4. On 20 April 1994, Mr Scott's complaint was referred by the Disability Discrimination Commissioner to the Commission for hearing.
5. DPI lodged a representative complaint with the Commission on 23 September 1994 on behalf of a class of persons consisting of all Australians who are deaf and/or have a total hearing loss (Throughout the inquiry, it was accepted that the complaint was on behalf of all Australians who have a "profound hearing loss" rather than a "total hearing loss". The range of hearing loss (as described in the statements of Mr Birtles and Mr Hogan for the complainants) is mild, moderate, severe and profound - there is no such category as "total hearing loss". Profound hearing loss (three frequency average loss 90dB) means that a person cannot hear sound unaided) alleging that the lack of provision by the respondent to the aggrieved class of the means to access the telecommunications system was discriminatory. This complaint was lodged pursuant to ss. 69 and 89 of the DDA which provide for the making of representative complaints under the DDA. On 19 January 1995, this complaint was referred by the Disability Discrimination Commissioner to the Commission for hearing.
6. The respondent argues in relation to the complaints that it is not being discriminatory by not supplying TTYs to the complainants since it does not supply such items to anyone. It is not part of its business or service to do so. The respondent is a general carrier within the meaning of the Telecommunications Act 1992 (Cth) ("the Telecommunications Act") and the holder of a general telecommunications licence.
7. So far as relevant, the general objects of the Telecommunications Act are described in s.3 as including: "(a) ensuring that the standard telephone service: (i) supplied as efficiently and economically as practicable; and (ii) is, in view of the social importance of the service, reasonably accessible to all people in Australia on an equitable basis, wherever they reside or carry on business; and (iii) is supplied at performance standards that reasonably meet the social, industrial and commercial needs of the Australian community; ...
(l) ensuring that all parts of the community benefit from lower prices for telecommunications facilities and services and from the future development of telecommunications networks."
8. Section 5 of the Telecommunications Act defines "standard telephone service" to mean, so far as relevant - "(a) ... a public switched telephone service that: (i) is supplied by a carrier; and (ii) is supplied by means of a telephone handset that does not have switching functions; ..."
9. Reference should also be made to sections 287 and 288 of the Telecommunications Act. So far as relevant, they provide as follows: "287(1) It is the Parliament's intention: (a) that all people in Australia, wherever they reside or carry on business, will continue to have reasonable access, on an equitable basis, to standard telephone services ...; and (b) that the universal service obligations described in s.288 should be fulfilled as efficiently and economically as practicable; ..."
"288(1) The universal service obligation is 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; ..."
10. The complainants allege that the respondent has engaged in both direct discrimination and indirect discrimination. As it is only necessary for the complainants to succeed in establishing either direct or indirect discrimination, I propose, to consider indirect discrimination initially and to only proceed to a consideration of direct discrimination if there is no finding of indirect discrimination.
11. The provisions of the DDA that bear on the complaint of discrimination in the provision of a service include the following: "3. The objects of this Act are: (a) to eliminate, as far as possible, discrimination against persons on the ground of disability in the areas of: (i) work, accommodation, education, access to premises, clubs and sport; and... (b) to ensure, as far as practicable, that persons with disabilities have the same rights to equality before the law as the rest of the community; and (c) to promote recognition and acceptance within the community of the principle that persons with disabilities have the same fundamental rights as the rest of the community."
"4. (1) ... "services" includes: (d) services relating to telecommunications; (2) For the purposes of this Act, refusing or failing to do an act is taken to be the doing of an act and a reference to an act includes a reference to a refusal or failure to do an act."
"5. (1) For the purposes of this Act, a person ("discriminator") discriminates against another person ("aggrieved person") on the ground of a disability of the aggrieved person if, because of the aggrieved person's disability, the discriminator treats or proposes to treat the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person without the disability. (2) For the purposes of subsection (1), circumstances in which a person treats or would treat another person with a disability are not materially different because of the fact that different accommodation or services may be required by the person with a disability."
"6. For the purposes of this Act, a person ("discriminator") discriminates against another person ("aggrieved person") on the ground of a disability of the aggrieved person if the discriminator requires the aggrieved person to comply with a requirement or condition: (a) with which a substantially higher proportion of persons without the disability comply or are able to comply; and (b) which is not reasonable having regard to the circumstances of the case; and (c) with which the aggrieved person does not or is not able to comply."
" 24. (1) It is unlawful for a person who, whether for payment or not, provides goods or services, or makes facilities available, to discriminate against another person on the ground of the other person's disability or a disability of any of that other person's associates: (a) by refusing to provide the other person with those goods or services or to make those facilities available to the other person; or (b) in the terms or conditions on which the first-mentioned person provides the other person with those goods or services or makes those facilities available to the other person; or (c) in the manner in which the first-mentioned person provides the other person with those goods or services or makes those facilities available to the other person.
(2) This section does not render it unlawful to discriminate against a person on the ground of the person's disability if the provision of the goods or services, or making facilities available, would impose unjustifiable hardship on the person who provides the goods or services or makes the facilities available."
"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." 12. By virtue of s.12(1)(2)(4) and (8) of the DDA, all the relevant provisions of the DDA apply to and bind the respondent.
2. THE EVIDENCE 2.1 The Complainants 13. As stated above, the complainants' case is that the respondent is discriminating against them by refusing to supply the complainants with TTYs whereas the respondent provides a means of access to the telecommunications system, by way of the T200, to subscribers without the complainants' profound hearing loss.
14. In his statement provided to the Commission, Mr Scott described how a request to the respondent to provide him with a TTY was refused. Mr Scott stated that without a TTY he cannot arrange appointments or get help when he needs it in an emergency or communicate easily and freely with his family or friends.
15. Mr Scott explained that: "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."
16. DPI presented evidence from three witnesses - Ms Emma Fisher and Mr Colin Allen who described themselves as being profoundly deaf and Mr Philip Harper who has a severe hearing loss. These witnesses gave evidence as to the advantages of a TTY compared with other modes of communication, such as pagers and facsimile machines, that are used if there is no access to a TTY. These advantages can be described generally as the facilitation of two-way interactive communication, the preservation of confidentiality, time saving and the provision of immediate and accurate access to information providers - features that are characteristic of the benefits that persons without a hearing loss receive by using the standard handset in association with the telecommunications system.
17. To give an indication of the sentiments expressed by these witnesses, I set out the following selected quotes from the witnesses' evidence: (a) Mr Harper, the Co-ordinator of the Victorian Council for the Deaf, described the introduction of TTYs to Australia as "heaven sent" and that "the TTY has become to deaf people what the standard telephone is to hearing people - an essential of daily living". (b) Ms Fisher, a student, stated that "I could contact people myself without having to find somebody to make a call for me and explain to them what I want to say if I had a TTY".
Ms Fisher also made the following comments: "With a TTY I would have easier and quicker access to information, for example I could call libraries to find out whether they have the information that I require for my University course rather than having to visit each library to find if the information is there. Often the resources containing the information required are limited so it is important to be able to locate them quickly before they are all borrowed by others. Studying communications requires prompt access to up to date information which I find difficult to obtain without access to the telecommunications system ...
I am a competitive surfer and I find it very frustrating not being able to call my contacts along the coast and around Australia to find out what the surf conditions are. I waste a lot of time travelling up and down the coast looking for ideal surf to practise on. If I had a TTY I would be able to find out by a telephone call where the best surf is and go directly there and spend more of my time practising rather than travelling and looking for good surf."
(c) Mr Allen, who until recently was working in the United States as Director of the International Deaf Theatre Conference, stated that: "When I do not have access to a TTY it is not only more time consuming to carry out ordinary activities like meeting friends but my life is also a lot less spontaneous and flexible. I have to make my social arrangements a long time in advance. I have to make arrangements to see my friends again when I am in their company. This might require making plans weeks in advance in case I do not see them in the meantime. I cannot simply call them to make the arrangements a couple of days beforehand. If I want to cancel the meeting it is very difficult. Often I have had to go to meet people to tell them that I could not continue with our plans at that time because I was ill or had other commitments."
18. I would prefer for the sake of convenience to discuss the evidence given by two of DPI's other witnesses, Mr Edward Hogan and Mr Ian Wilson, below in paragraph 2.4. In respect of the evidence of Mr Gerard Goggin, it will be dealt with in the context of my findings below.
19. In the course of submissions, Counsel for the complainants produced a calculation of the cost to the respondent of supplying 21,000 TTYs (See 2.4 below) to the class of the people represented by DPI. The result of this calculation was that taking into account that there would be a gradual "take up" rate for the TTY of five years (the complainants produced in evidence a publication of the respondent, "Telecommunications for People with Disabilities, November 1991" which indicates at page 30 that the Californian experience in respect of TTYs was that only a fraction of the TTYs available were taken up by eligible subscribers. In assessing TTY costs, the report used a 5 year phasing in period and this same period was applied by Counsel for the complainants), the respondent would purchase the TTYs for $700 (see 2.4 below), rent the TTYs to the subscriber at the same rental payable by other subscribers for the T200, charge for the maintenance of the TTY and receive revenue from the use of the TTY, the respondent would suffer a loss that would be equivalent to 0.04% of its annual domestic billings. Counsel for the complainants submitted that this loss could be recouped by imposing an additional thirty cent charge per annum on all subscribers. If the calculation is performed on the basis of the Commonwealth government providing 13,000 TTYs (see 2.3 below), the loss would be equivalent to 0.0156% of annual domestic billings.
2.2 The Respondents 20. The respondents provided evidence from two witnesses, Ms Elizabeth Atkinson and Ms Leanne Young.
21. In respect of the service provided by the respondent, Ms Atkinson, the Manager of the Disability Services Unit of the respondent, stated that the respondent "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 premises equipment) on an unprofitable basis".
22. Ms Atkinson provided evidence as to the products and services that the respondent does supply to persons with disabilities. These included goods available pursuant to the Telstra Disability Tariff Concession Policy ("DTCP") whereby the respondent provides various goods to assist people with disabilities at a 100% concession. Ms Atkinson gave evidence of the direct cost to the respondent in providing goods and services under the DTCP and said this cost was estimated to rise substantially in 1994/1995. Evidence was also given as to the services that the respondent supplies to persons with disabilities such as TTY Payphones, a TTY Directory, Aged and Disability Centres, Disability Enquiry Hotline Centres and specific programmes developed by the Disability Services Unit.
23. Aspects of Ms Atkinson's evidence that went to the cost of the respondent having to provide TTYs to subscribers were elaborated upon by Ms Young, Performance Manager of the Customer Premises Equipment Portfolio and Commercial and Consumer Business Unit. I am somewhat constrained in discussing in detail the evidence relating to this issue because the respondent sought and was granted an order pursuant to s.87(1) of the DDA suppressing, on the grounds of commercial confidentiality, any publication of all costings, including costs, profit, revenue or percentages (together with any estimate of the number of subscribers) disclosed by Ms Young.
24. It suffices to say that Ms Young provided evidence as to the cost to the respondent of supplying TTYs to 21,000 subscribers and maintaining those TTYs. At the request of Counsel for the complainant, Ms Young also estimated the amount of revenue that TTYs would generate for the respondent and by deducting those figures the result, on the basis of the evidence led for the respondent, was that the respondent would suffer a significant financial loss if it was required to provide TTYs to those subscribers.
25. Evidence was also provided by the respondent, subject to objection from the Counsel for the complainants on the grounds of relevance, as to the possible liability in terms of cost that it would be exposed to if it had to provide to subscribers with disabilities other products - such as tele-braillers and PC/modems - as well as TTYs as part of its service.
2.3 The Commonwealth's Role 26. The Commonwealth Minister for Human Services and Health issued a media release dated 10 May 1994 announcing the commitment of the Commonwealth Government ("the Commonwealth") over the next 4 years to establish a national $26.1 million, 24 hour access Telephone Typewriter Relay Service ("National Relay Service") to assist more than 21,000 people.
27. A relay service operates by a TTY user, who wishes to contact someone who does not have a TTY, sending a message via the TTY to a central service centre. The operator who receives the message telephones the intended recipient of the message and relays the message to them. The operator then sends any response from the recipient back to the caller by way of the TTY. Such relay services are currently conducted on a State basis and usually do not provide a 24 hour service.
28. In a fact sheet for the 1994-1995 Budget from the Department of Human Services and Health, it was stated that the Commonwealth would "assist with the cost of purchasing specialised equipment for an estimated 13,000 profoundly deaf or speech impaired people who are financially disadvantaged. This assistance will be means tested." It is understood that this equipment would include TTYs and related equipment.
29. A letter dated 23 March 1995 was received by the Commission during the course of the inquiry from the Department of Human Services and Health and was accepted into evidence. The letter stated that the National Relay Service 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 letter went on to say: "(The National Relay Service) is not intended to be the ordinary source of teletypewriter equipment or services for individual hearing 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."
30. I have been informed by the solicitor for the respondent that the Department of Communications and the Arts has confirmed that the contract for the provision of the National Relay Service was entered into on 11 April 1995 and that it will be operational by 30 May 1995 in accordance with the terms of the contract.
2.4 Cost and Usage of TTYs 31. A witness for DPI, Mr Edward Hogan, an expert in Acquired Hearing Loss, quoted an Australian Bureau of Statistics figure that there are 35,900 people in Australia with a "total hearing impairment or loss". This is consistent with the figure of 34,000 reached by applying averages from other Western nations to Australia. Mr Hogan stated that he believed that there may actually be double this number of those persons with a profound hearing loss in Australia though this figure is yet to be substantiated. He added, however, that he did not believe that all these people would seek to use a TTY as it may depend upon whether such people identify themselves with the deaf community and use equipment available to the deaf community.
32. The respondent's evidence was that the number of potential TTY users was 21,000. This was supported in evidence by Mr Harper. Given Mr Hogan's belief that if the figure is actually higher, all potential users may not actually avail themselves of the opportunity to use a TTY, I will proceed, as the parties did and the Commonwealth has in its statements, on the assumption that the potential number of TTY users is 21,000.
33. Mr Ian Wilson, Liaison Officer with the Consumer Telecommunications Network, stated that the cost of a TTY ranges from $500 to $900. Ms Atkinson for the respondent gave evidence that the cost would be $300 to $800 for the production cost of a unit and $700 to $1200 for the retail cost. It was generally accepted by the parties that I would proceed on the basis of the cost of a TTY to the respondent being $700. I bear in mind the observation of Counsel for the respondent that this figure may be on the conservative side.
3. FINDINGS 34. Counsel for the respondent, in support of its denial of any liability in respect of these complaints under the DDA, focussed his submissions substantially on two issues. The first of these issues involved the definition of the services provided by the respondent within the meaning of s.24 of the DDA. His submission was that while the DDA might affect the manner in which or conditions on which a provider of services made those services available, it could not require the provider to provide a new service. It suffices to say that, on the basis of the wording of s.24(1), I accept this submission. The real issue is to identify the services which it is the business or practice of the respondent to provide. If I accept the respondent's definition of those services, then these complaints will fail to be substantiated and must be dismissed.
35. The second substantial issue presented by the submissions advanced for the respondent is the issue of unjustifiable hardship. Before I deal with this issue, however, assuming that the complainants succeed in their submission in relation to the character of the services provided by the respondent, I must be persuaded that the complainants have satisfied the onus resting upon them to establish that the respondent has discriminated against them in relation to the supply of those services (Briginshaw v Briginshaw (1938) 60 CLR 336).
36. I should also mention at this stage that it was suggested by Counsel for the respondent that if I were to find that the complaints of unlawful discrimination were substantiated, I should then give the parties an opportunity to make further submissions on the question of appropriate relief. Whilst initially considering this an attractive option, I subsequently decided that the parties should provide submissions in writing on the relief that should be granted in the event of a finding adverse to the respondent on liability in order to reduce the delays that might be caused by a splitting of the case. The parties kindly provided these submissions after the conclusion of the evidence. The submissions of the respondent indicated a wish to call further evidence on the question of relief. I shall consider further the course that should be taken with respect to appropriate relief at the conclusion of these reasons if it is necessary to do so.
3.1 What are the Services provided by the Respondent? 37. The identification of the services is a question of fact: Waters -v- Public Transport Corporation (1991) 173 CLR 349 at p. 361 . Counsel for the complainants submitted that the appropriate designation is "the provision of access to the telecommunications network system whereby people can communicate through the transfer of messages by means of guided electromagnetic energy." Reliance was placed on the "universal service obligation" described in s.288 of the Telecommunications Act to which reference has been made. That obligation refers expressly to the provision of a handset in order to access the telephone service: see the definition of "standard telephone service" in s.4. Counsel argued, in the alternative, that it is sufficient to accept the evidence led for the respondent that it is in the business of supplying customer premises equipment to its subscribers, including the provision of a T200 handset.
38. On the other hand, 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. As I have said, Counsel for the respondent submitted that whilst the DDA may oblige a party to change the manner in which it provides a service or business, the DDA cannot require it to provide new or different services; in this case services that include the provision of a TTY. The fact that a significant number of "all people in Australia" (cf. ss.3, 288, Telecommunications Act) cannot take advantage of the services presently provided by the respondent is immaterial.
39. 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 the 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 services are that which enables communication over the network to take place. 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. I think there is merit in the argument advanced for the complainants that by adopting a limited artificial definition of the services it provides, the respondent has defined the services so as to exclude the alleged discriminatory conduct.
40. I am confirmed in my conclusion by the material provisions of the DDA. It is significant that the interpretation of the word "services" in s.4(1) of the DDA includes "(d) services relating to telecommunications". In my opinion, this clearly indicates a legislative intention that the services provided by the respondent should be within the reach of s.24 of the DDA.
41. The legislative history attending the enactment of its provisions as described in evidence by Mr Goggin, Policy Adviser to Consumer Telecommunications Network, is also supportive of my conclusion. Notwithstanding intense cross-examination of him for several hours by Counsel for the respondent who then dismissed his evidence as worthless, I found Mr Goggin's practical experience impressive and his evidence helpful, particularly in drawing my attention to the legislative history, and in light of the fact that other parts of his evidence found support in Exhibit 11, a report commissioned by the respondent titled "Telecommunications for People with Disabilities, November 1991".
42. Mr Goggin recalled that initially the respondent was exempted from the provisions of the DDA in relation to all its activities. However, in the course of the passage of the Human Rights and Equal Opportunity Legislation Amendment Bill 1992 ("the Bill") (which amended the DDA) through Parliament, the exemption was limited to the respondent's public pay phone services. Referring to this limitation, Senator Tate, addressing the Senate on 15 October 1992 in his capacity as Minister in charge of the Bill, said of it: "... it is an absolutely vital breakthrough on the part of those suffering from these disabilities ... 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 impediment which prevents them from ordinary and normal use of the telephone, would be able to approach the Human Rights and 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." (Hansard of Senate on 15 October 1992 at p.1900).
43. I find the respondent is in the business of providing access to a telecommunications service and, therefore, the respondent fits Senator Tate's description as one of those "who are vested with the enormous privilege, commercially, but also socially, of providing telecommunications services for all Australians".
44. Senator Tate went on to say that "it is not simply a matter of sentiment; it is a matter of ensuring that those who would otherwise be in a most isolated situation within the Australian community are able to take advantage of that which so many of us take for granted as a matter of course - that is communication through the telephone system." (ibid., at p.1901).
45. Senator Lees commented on the same day that "these amendments will at least enable people who do not now have access to telecommunications to have that access in their own home" (Hansard of Senate on 15 October 1992 at p.1898). This amounts to a very clear expression of legislative intent consistent with the submission of Counsel for the complainants that the services provided by the respondent are to enable communication to occur over the telecommunications network.
3.2 Is there Discriminatory Conduct by the Respondent within the meaning of s.24(1) of the DDA? 46. Although the evidence distinguishes between the persons represented by DPI and Mr Scott in that the latter actually requested the respondent to provide him with a TTY - a request which was refused by the respondent - while the former may not have done so, it is common ground that the respondent was not prepared to provide to persons with a profound hearing loss the services which I have found it was in the business of supplying, namely, access to a telecommunications service, unless they were able to gain that access through a T200 handset.
47. It is on this premise that I propose to consider first whether the evidence establishes indirect discrimination within the meaning of s.6 of the DDA. If I find in favour of the complainants on this question, it will be unnecessary for me to consider any question of direct discrimination within s.5 of the DDA.
48. Before discussing the terms of s.6, I should first make it clear that the evidence satisfies me that, in the event of discrimination being established, the question of the lawfulness of the conduct in question will fall to be considered in the light of s.24(1)(b) of the DDA. In effect, there is a single question to be determined, namely, whether or not the respondent has discriminated against the complainants in the terms or conditions on which it provides access to a telecommunications service.
49. Section 6 is set out earlier in these reasons. The essence of indirect discrimination within the meaning of that section is the requiring of the aggrieved person to comply with a requirement or condition which has three characteristics, as follows: (a) a substantially higher proportion of persons without the disability comply or are able to comply with the requirement or condition; (b) it is not reasonable having regard to the circumstances of the case; and (c) the aggrieved person does not or is not able to comply with it.
50. It was argued for the respondent that there could be no indirect discrimination because it did not impose any requirement or condition. This submission is only intelligible in the context of the respondent's fundamental proposition that the only services it provides consist 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.
51. I find, therefore, that the respondent required the complainants to meet that requirement in order to avail themselves of the services provided by it.
52. Now, with respect to that requirement, I find that it clearly has the characteristics listed in paragraphs (a) and (c) above. Clearly, the aggrieved persons cannot access the system through a T200 handset and clearly a substantially higher proportion of persons without a profound hearing loss can do so. The third element is whether the requirement is or is not reasonable having regard to the circumstances of the case.
53. I have no hesitation in finding that the third element is satisfied. The requirement is clearly not reasonable in the circumstances of the case. Indeed, it is ridiculous to expect a person with a profound hearing loss to access the telecommunications network through an ordinary handset. It is quite impossible. The stand taken by the respondent reflects a grave misunderstanding of its responsibilities under both the DDA and the Telecommunications Act. 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.
54. It might be thought that in considering the question of the reasonableness of the requirement, I should place in the scales the evidence adduced for the respondent relating to its defence to a complaint of unlawful conduct contrary to s.24(1) of the DDA of unjustifiable hardship. I do not agree. Nor did I understand Counsel for the respondent to contend otherwise. The careful elaboration in the DDA of the defence of unjustifiable hardship would be a nonsense if all such matters were relevant to establish the reasonableness of the requirement. Furthermore, there would be a reversal of the onus of proof.
55. This is not to say that the financial circumstances of the respondent are necessarily irrelevant. It all depends on the precise character of the requirement. I find the requirement in the present case to be unreasonable because of its terms in the circumstances of the case. It does not reflect a sufficient regard for the circumstances of those who are unable to access the telecommunications service, nor for its statutory responsibilities.
56. The respondent does not claim that the imposition of the requirement was reasonable because it was dictated by the cost of providing a TTY. I find that the requirement was imposed simply because the respondent decided that under no circumstances was it going to provide a potential subscriber who had a profound hearing loss with the means of accessing the telecommunication service it was willing to provide to users who did not have that disability. It was the blanket refusal to supply a TTY under any circumstances which, given its statutory responsibility, was unreasonable. The respondent did not attempt to explain its action by reference to financial considerations. It took the straightforward line of saying that it was not legally obliged to provide the services to persons with a profound hearing loss and did not propose to do so. This is regardless of the cost of doing so. If there were significant costs involved in arranging for such provision and the respondent was conscious of its responsibilities, it could have proposed the supply of a TTY at a higher rental than that applicable to a person able to use a T200 handset. If this had been made the condition on which the TTY was provided then it would have been a question as to whether that supplementary condition was or was not unreasonable.
3.3 Unjustifiable Hardship 57. Having concluded that the terms of s.24(1) of the DDA have been satisfied, ss. 24(2) and 11 come into play. These sections in effect excuse liability under s.24(1) for discrimination on the ground of disability in the provision of services where a respondent who can show that to provide those services would impose unjustifiable hardship.
58. It is for the respondent to persuade me that the provision of access, through a TTY, to persons with a profound hearing loss on the same basis as access is provided to persons who have no such disability would impose unjustifiable hardship on it.
59. The term "unjustifiable hardship" is not defined in the DDA. Section 11 provides a list of some of the factors that may be considered in determining unjustifiable hardship but the DDA does not specifically define the term itself.
60. The parties were in dispute over the matters that should be taken into account in considering the question. Counsel for the respondent argued that benefit to persons with a profound hearing loss from accessing the service was irrelevant and must be disregarded. On the other hand Counsel for the complainants argued for the contrary proposition.
61. 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. If, in any particular case, the benefit was shown to be minimal then obviously substantial costs to the supplier would not be justified. The converse would also, as a practical measure, be true. Of course, benefit is only one of the circumstances to be considered.
62. In any event, 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. That section is set out earlier in these reasons. 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.
63. In my opinion, the content of the term "unjustifiable hardship" will depend upon the circumstances of each case. In the present case, the meaning of the term will emerge from: (1) identifying what magnitude of difficulty would confront the respondent (from the point of view of both the respondent and the objective bystander) if there were to be a finding of unlawfulness; and (2) establishing whether or not imposing the relevant obligation is justified by reference to the benefits or fairness, if any, that would come from imposing it.
64. As I have stated above, I am constrained in discussing many of the financial details provided by the respondent in the course of the hearing because of the suppression order granted for reasons of commercial confidentiality. Nevertheless, after careful consideration of the figures provided by the parties, I accept the calculations advanced by Counsel for the complainants as a sufficiently accurate indication of the financial impact on the respondent of a finding of liability. In my opinion, these calculations reasonably take into account that there would be a gradual take up of TTYs (a matter overlooked by the respondent even though it is raised in its own publication - see footnote 2) and that the respondent's liability would be significantly reduced to 8,000 TTYs if the Commonwealth, pursuant to its undertaking, provides 13,000 TTYs to persons with a profound hearing loss on a means test basis (another matter not provided for in the respondent's calculations even though evidence of the Commonwealth's undertaking was included in Exhibits EA-44 and EA-45 of Ms Atkinson's statement). It should also be noted that it was only upon the request of the Counsel for the complainants that the respondent provided evidence of the revenue that would be received from the use of the TTYs - a figure that significantly reduces the loss suffered by the respondent especially when it is considered that a person with a profound hearing loss will probably make more calls than a person without the disability and may make longer calls (which would be significant in respect of STD calls).
65. The respondent has also provided figures on a best and worst case basis of its potential liability if it has 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 TTYs to 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.
66. It was suggested by Counsel for the complainants, that the loss to the respondent might be met by a simple addition of thirty cents per annum to the bills of all subscribers. Such a levy would be so modest as to be inconsequential to such subscribers. Furthermore, any loss which might be suffered by the respondent should be seen in the light of the enormous benefits that a TTY can bring to subscribers with a profound hearing loss. The evidence presented by Mr Scott and the witnesses for DPI emphasise the importance of access to the telecommunications service by way of a TTY in providing the same spontaneous, interactive and confidential access to social relationships that hearing persons have when they use a standard handset.
I find, therefore, that the defence of unjustifiable hardship has not been made out. The evidence leads me to conclude that the respondent has failed to take seriously the impact that the enactment of the DDA could have upon its operations. If it had done so, I would have expected to receive evidence of relevant research, taking in overseas experience, the revenue to be expected from increased billings, the feasibility of a small levy on all subscribers, and any reasonable adjustment to its present voluntary concessional programme. Even the making of the complaint in this matter failed to stir the respondent from its lethargy or intransigence.
67. I recognise the generosity of the voluntary concessional programme implemented by the respondent - a program that incurs a substantial annual cost. Under this program, various goods and services are supplied free of charge to persons with disabilities. 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. Alternatively, it might be appropriate for the respondent to diminish any hardship that it perceives to arise from my finding of its liability by considering an adjustment to the concessional policy.
4. CONCLUSION 68. I now sum up to this point. I find that the complaints of discrimination have been substantiated. I find specifically- (a) the respondent imposed a requirement on the complainants, namely, that in order to access its telecommunications service they should be able to use a T200 handset; (b) this is a requirement with which a substantially higher proportion of persons without the disability are able to comply; (c) the requirement is not reasonable having regard to the circumstances of the case; and (d) the complainants by reason of their disability are not able to comply with it.
69. I should add that, save for the imposition of a requirement, the respondent did not seriously challenge any of these propositions. As I have said, the contest has revolved around the two issues of the nature of the service provided by the respondent and the question of unjustifiable hardship. I have found against the respondent on each of these issues.
Future Course of the Inquiry 70. It now remains to consider the future course of the inquiry.
71. I acknowledge the wish of the respondent that I reconvene the inquiry to receive any evidence bearing on the exercise of my discretion with respect to the grant of any relief. I am willing to provide that opportunity. At the same time, I am alarmed by the suggestion that such evidence would require a lengthy hearing. In order to assist me in making a determination under s.103(1) of the DDA, I request that the respondent makes a definitive response in writing to the specific claims for relief advanced by the Counsel for the complainants (in submissions dated 29 March 1995) together with a concise summary of relevant evidence pertaining to that claim for relief which it proposes to adduce.
72. It would be convenient if this information could be provided within 21 days of delivery of these reasons. I will then arrange for a preliminary conference to discuss any further proceedings.