Please Hold: Australia’s Communication Policy Response to the United Nations Convention on the Rights of Persons with Disabilities

Wayne Hawkins

Department of Media and Communications, Faculty of Arts and Social Sciences

The University of Sydney

2020

A thesis submitted to fulfil the requirements of the degree of Doctor of Arts

ii Authorship attribution statement

This is to certify that, to the best of my knowledge, the content of this thesis is my own work.

This thesis has not been submitted for any degree or other purposes.

I certify that the intellectual content of this thesis is the product of my own work and that all the assistance received in preparing this thesis and sources has been acknowledged.

Proofing and copy-editing services were provided on the final manuscript by Susan Jarvis, in accordance with University of Sydney regulations as stipulated in ‘Thesis and Examination of

Higher Degrees by Research Procedures 2015’.

______

Wayne Hawkins

1 February 2020

iii Abstract

This thesis evaluates current communication policies in Australia from a critical disability theory (CDT) framework and identifies the quality of those policies as they speak to people with disability. It raises four questions that are pertinent to the exclusion of telecommunications consumers living with disability and offers new possibilities advanced through the principles of access and inclusion enshrined in the UN Convention on the Rights of Persons with

Disabilities (CRPD).

The questions are as follows:

1 How are Australian consumers with disability being excluded from full access to

advanced communication services?

2 What role has Australian communications policy post the 2008 ratification of the

UN Convention on the Rights of Persons with Disabilities played in this

exclusion?

3 What are the possible implications of Australia’s ratification of the UN

Convention on the Rights of Persons with Disabilities in influencing future

Australian communications policy?

4 How can the principles of disability access and inclusion transform

communications policy for the twenty-first century?

I analyse and evaluate three communications policy case studies to answer these questions. The case studies are: (1) access to the National Relay Service; (2) access to appropriate telecommunications equipment; and (3) access to online audio-visual media.

iv The thesis is divided into two parts: Part 1 provides a background to the research and outlines the research methods; Part 2 examines the data from three case studies, then presents a comparative discussion of the case study findings.

The study reveals that for many Australians with disability, there has been little in the way of increased access to digital communications since Australia’s 2008 adoption of the

CRPD, with a National Relay Service constrained by a funding allocation that was set in 2013, limited access to appropriate and affordable equipment and little in the way of access features across online catch-up television services.

The research finds that, despite an increasingly affirmative disability public discourse, along with a disability-inclusive political rhetoric, the adoption of the CRPD has done little to change the dominant ableism entrenched in Australia’s neoliberal communication policy framework. The widely held corporate and political ableist assumption that mainstream digital technology will meet the needs of all people with disability fails to acknowledge ongoing disabling barriers of availability, affordability and digital capability. I conclude the thesis by proposing that a critical approach to future communications policy is needed to ameliorate the persistent barriers to functionally equivalent communications access that Australians with disability continue to face every day.

v Contents

Authorship attribution statement ...... iii

Abstract ...... iv

List of tables...... x

Acronyms and abbreviations ...... xi

Acknowledgements ...... xiv

Part 1 Background to the study ...... 1

Chapter 1 Introduction ...... 3 Thesis structure ...... 14

Chapter 2 Theoretical approach ...... 16 Introduction ...... 16

Social construction of disability ...... 17

Charity model ...... 18

Medical model ...... 19

Social model ...... 20

A critical approach ...... 22

Communications and disability ...... 26

Can disability shape technology? ...... 27

Technology, disability and capabilities ...... 32

Nussbaum’s disability capabilities ...... 34

Capabilities approach and communication policy ...... 35

Critical communications policy research ...... 36

Ableism and Disability Oppression ...... 43

Conclusion: Neoliberal influence ...... 44

Chapter 3 Methodological approach ...... 48 Introduction ...... 48

Research approach ...... 48

Why these methods? ...... 49 vi Overview of the Research data collection...... 52

Participant Observer data sources ...... 54

Key events ...... 55

Chapter 4 Human rights discourse...... 64 Introduction ...... 64

Modern-day human rights ...... 66

History of human rights ...... 66

Human rights and access to communications ...... 77

History of Australian human rights and disability ...... 83

Australian Disability Advocacy ...... 85

Conclusion ...... 88

Part 2: Case studies ...... 91

Chapter 5 Australia’s National Relay Service: Reviving the teletypewriter ...... 93 Introduction ...... 93

NRS background...... 95

2006 NRS contract...... 97

Consultation or limitation? ...... 99

Calling for fairness ...... 100

2013 National Relay Service ...... 102

A new political environment? ...... 103

Social policy ...... 104

New government, new policy? ...... 105

Changing technology environment ...... 106

Interpreting the government’s position ...... 109

Public submissions ...... 110

Consumer themes ...... 112

Relay service providers ...... 114

Industry submissions ...... 115

vii Government final report ...... 116

2019 NRS contract...... 118

Communications accessibility: 2016 and beyond ...... 119

Submissions...... 121

Consumer themes ...... 122

Industry submissions ...... 124

Government response ...... 125

Conclusion ...... 129

Chapter 6 Access to equipment: Marketing disablism ...... 132 Introduction ...... 132

History of access to equipment ...... 133

The essentiality of appropriate equipment ...... 136

Inclusive design ...... 138

Inclusion and capability ...... 141

The struggle for equipment ...... 142

Advocacy for change ...... 144

Enabling public policy ...... 146

Feasibility study into an independent disability equipment program ...... 149

Government position ...... 159

Government’s response ...... 159

Disability equipment policy ...... 160

ACMA disability equipment ...... 160

Telecommunications (Equipment for the Disabled) Regulations 1998 ...... 161

Industry self-regulation ...... 162

Benefits of competition ...... 164

Conclusion ...... 164

Chapter 7 Online television and video on demand: Disruption or more of the same? . 166 Introduction ...... 166

Audio-visual access features ...... 168 viii Captioning ...... 168

Audio description ...... 169

On-screen sign language interpretation ...... 169

History of access features on broadcast television ...... 170

Television captioning legislation ...... 175

Audio description ...... 176

Sign language interpretation ...... 179

The move to online ...... 179

Media Convergence Review ...... 180

Catch-up television ...... 182

What’s on offer? ...... 184

Streaming services ...... 185

Policy ...... 188

Audio description ...... 191

Conclusion ...... 193

Chapter 8 Conclusion ...... 196 Disability Oppression - Advocacy or Analysis ...... 198

2 What role has Australian communications policy post the 2008 ratification of the UN Convention on the Rights of Persons with Disabilities played in this exclusion? ...... 204

3 What are the possible implications of Australia’s ratification of the UN Convention on the Rights of Persons with Disabilities in influencing future Australian communications policy? .... 208

4 How can the principles of disability access and inclusion transform communications policy for the twenty-first century? ...... 211

References ...... 213

ix List of tables

4.1 International Bill of Human Rights Treaties...... 66

4.2 Group rights treaties ...... 68

4.3 Additional United Nations instruments ...... 71

5.1 The various NRS relay types and typical users ...... 93

6.1 Disability community submissions ...... 152

6.2 Telecommunication Industry submissions ...... 156

6.3 Government agency submissions ...... 158

6.4 ACMA disability equipment...... 160

7.1 Submissions to inquiry ...... 170

x Acronyms and abbreviations

AAD Australian Association for the Deaf

ABC Australian Broadcasting Corporation

ABS Australian Bureau of Statistics

ACA Australian Communications Authority

ACC Australian Caption Centre

ACCAN Australian Communications Consumer Action Network

ACIF Australian Communications Industry Forum

ACMA Australian Communications and Media Authority

ACE Australian Communications Exchange

AHRC Australian Human Rights Commission

AMTA Australian Mobile Telecommunications Association

CA Communications Alliance

CAUS Communication Rights Australia

CCR critical communications research

CDA Commonwealth Disability Agreement

CDT critical disability theory

CEDAW Convention on the Elimination of All Forms of Discrimination Against Women

COAG Council of Australian Governments

CRC Convention on the Rights of the Child

CRPD Convention on the Rights of Persons with Disabilities

CSP carriage service provider

CTN Consumers Telecommunications Network

DBCDE Department for Broadband, Communications and the Digital Economy

DCITA Department of Communications, Information Technology and the Arts

DDA Disability Discrimination Act 1992

DEP disability equipment program

DTCP Disability Tariff Concession Policy

FACTS Federation of Australian Commercial Television Stations

GFC global financial crisis

xi HCO hearing carry over

HREOC Human Rights and Equal Opportunity Commission

ICCPR International Covenant on Civil and Political Rights

ICERD International Convention on the Elimination of All Forms of Racial Discrimination

ICESCR International Covenant on Economic, Social and Cultural Rights

ICPMW International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families

IR internet relay

MVP most viable product

NWPC National Working Party on Captioning

NDIA National Disability Insurance Agency

NDIS National Disability Insurance Scheme

NDS National Disability Strategy

NRS National Relay Service

OECD Organisation for Economic Cooperation and Development

POTS plain old telephone service

PRS personal relay service

PSTN public switch telephone network

RCC reverse charge calls

RFT request for tender

RP retinitis pigmentosa

SBS Special Broadcasting Service

SMS short messaging service

SOGOC Sydney Olympic Games Organising Committee

SOR Statement of Requirements

SSR speech to speech relay

SST social shaping of technology

STS standard telephone service

TCP Telecommunications Consumer Protection Code

TD technological determinism

TDS Telecommunications Disability Standard xii TEDICORE Telecommunications Disability and Consumer Representation

TIL Telecommunications Industry Levy

TTS text-to-speech

TTY teletypewriter

UD universal design

UDHR Universal Declaration of Human Rights

UPIAS United Physically Impaired Against Segregation

USO universal service obligation

VAST Viewer Access Satellite Television

VCO voice carry over

VOD video on demand

VoIP Voice over IP

VR video relay

xiii Acknowledgements

The completion of this project has only been possible through the support and encouragement of many people.

I would first like to thank my supervisors, Gerard Goggin and Timothy Dwyer, for their guidance, generosity and patience. This project has taken a number of turns along the way and without the encouragement I received from both Gerard and Tim, I would have struggled to find my way through. Thank you both for all your support.

I am also grateful for the ongoing encouragement of a number of friends and colleagues. In particular I would like to thank She McKenzie, who pushed me to take on this project: your encouragement and support made the first step possible. I am also particularly grateful for the support from my colleagues at the Australian Communications Consumer Action Network, in particular Teresa Corbin, who has gone above and beyond to ensure that I have had the time and opportunity to take on such a project while working full time, and my colleague Meredith Lea, who has provided ongoing encouragement as well as some skilful formatting assistance.

Initially the idea for this project was quite different from the way it has evolved. A number of people generously gave their time and insights regarding the telecommunications and disability landscape through the initial interviews I undertook. As the project evolved, I ultimately decided not to use these interviews; however, the insights from these experts in the field have been greatly beneficial.

I am also indebted to my partner Karl for his support and encouragement. His generosity and patience has been limitless over the time it has taken to complete this project.

xiv Part 1 Background to the study

2 Chapter 1 Introduction

This research is motivated by my personal and professional interest in Australian communications policies and their apparent shortcomings, as experienced by people actually living with disability.

In the context of my role as a policy expert (Arnout Fischer et al., 2014) and disability advocate with the Australian Communications Consumer Action Network (ACCAN), this research is particularly valuable because it provides an in-depth investigation of the policy process; an opportunity to interrogate how multi-stakeholder policy development incorporates the differing interests and agendas; and insights into how future communication public policy can further implement the principles of access and inclusion in the UN Convention on the

Rights of Persons with Disabilities (CRPD). Furthermore, in the context of my interest as a blind researcher, this research, with its critical emancipatory approach, provides an opportunity for me to challenge the notions of ‘helplessness’, ‘less than’ and ‘otherness’ that are so often assigned to individuals with disability.

I came to disability advocacy after losing my sight to retinitis pigmentosa (RP) in my late forties, after a lifetime of 20/20 vision and little understanding of the barriers and obstacles that people with disability face in everyday life. Learning to navigate the world without sight introduced me first hand to many of these barriers – barriers of societal attitudes and expectations, as well as physical and environmental barriers. I was suddenly faced with technology that no longer met my needs. I had a mobile phone with multiple features that were only usable with vision, a laptop with a level of usefulness that was dependent on the accessibility of the documents and websites I needed to access, and a television that I was no

3 longer able to operate independently and that broadcast content I could only partially follow.

It was several years before the functionality of a high-end mobile phone was capable of incorporating specialised software that enabled text-to-speech (TTS) functionality. This accessible mobile phone set-up came at a cost of more than $1200. It was also a number of years prior to Apple’s introduction of Voice Over on the iPhone 3GS in 2010, with its out-of- the-box built-in screen reading capability.

Additionally, the software I needed for my laptop to provide the same functionality cost over $1500 and an audio-enabled television was something people with vision impairment could only dream about. While that television functionality now exists, we are still waiting for the Australian broadcast industry to provide the essential audio-described content that will make television a fully accessible medium for people who are blind or vision impaired.

I am routinely refused entry to restaurants and businesses because I have a guide dog and, similarly, I am routinely refused access to taxis. These commonplace barriers continue despite domestic and international legislation barring such overt disability discrimination.

My career had been in hospitality, managing a restaurant in New York for 15 years prior to my vision loss. It was a career that didn’t lend itself to blindness, so I needed to find a way to transition to a career in which my blindness would not be a liability. Having lived in New

York as a gay man through 25 years of the AIDS epidemic, I had developed an interest in public policy and advocacy, two interests that have served me well in ‘reinventing’ a new career. Thus, as the cornerstone to my ‘reinvention’ as someone who is blind I returned to university and completed a Master of Public Policy at Sydney University. This degree was the stepping stone I needed to start a new career as a disability policy advocate, and this has led me to undertake this research as a doctoral candidate.

4 I am interested in the intersection of communications policy and disability access in my capacity as both a researcher with disability and a communication policy expert and advocate.

The epistemological foundation of this research is thus a human rights interpretation of the social model theory of disability exclusion.

Understanding the public discourse around disability in Australia helps to position this research within a broader context. The latest Australian Bureau of Statistics (ABS) report on the incidence of disability in Australia shows that 17.7 per cent of the population in 2018 self- identified as having a disability. This is marginally lower than in the previous report, which showed that 18.3 per cent of the population in 2015 identified as having a disability (ABS,

2019). However, it is widely recognised that as the Australian population ages, the incidence of age-related impairment will mean that more and more of us will experience some type of disability. For example, the same ABS report indicated that 49.5 per cent of Australians over the age of 65 identified as having a disability.

Arguably, the good news is that there is an increased awareness of disability in our society and in the public discourse this has informed a range of policy interventions aimed at promoting greater accessibility and inclusion. Critical for this disability inclusion, as for the rest of the population, is the capability to harness the opportunities and benefits of digital technology. The increasing essentiality of access to digital networks is changing the ways in which we participate in everyday activities, from accessing information, education and employment to engaging with all manner of services, as well as the ways in which we connect, communicate and participate in social and community life (Bricourt et al., 2009; Geisen and

Harder, 2011; Bruyere, 2012; Trevison, 2013). As this networked society expands, people who are unable to access and participate in digital communications will become increasingly disadvantaged and isolated. For many people with disability, the capability to access, connect

5 and engage in this networked society has the potential to be life-changing. For example, the internet has been transformational for many people with disability, creating opportunities for social inclusion, education, employment and all manner of community participation (Wood,

2009). For many people with disability, the internet provides the opportunity to leave their disability at the door – participating on a level playing field without the stigma they often encounter. In the online world, no one knows that I’m blind unless I choose to disclose that about myself. Examples of transformative adoption of digital technologies by people with disability can be found in the Deaf community’s appropriation of text messaging and video chat as alternatives to voice use of the smartphone (Goggin, 2011). So, while full participation in today’s networked society is dependent on access to digital technology, for people with disability this access is often dependent on inclusive public policies.

In the Australian context, the most significant of these policy interventions is the cross- political party support for the National Disability Insurance Agency (NDIA) and its National

Disability Insurance Scheme (NDIS). Introduced under the Labor Government in 2013, the

NDIS is rolling out nationally with a mandate to provide care and support to anyone under the age of 65 who has or acquires a ‘permanent and significant’ disability (Australian Parliament,

2012; National Disability Insurance Scheme Act 2013). As many as 460,000 Australians with disability will have access to a support and care funding package.

An addition to the positive outcomes for many people with disability that the NDIS will provide is the high-level social and public discourse that this brings to the forefront. A growing public awareness, and perhaps growing acceptance, of disability as part of our wider community represents a significant step towards greater inclusion. However, the common perception of people with disability as tragic, pitied outsiders has a long tail. As seen in the policy documents evaluated in the following case studies, the distance between discourse and

6 action can be cavernous. People with disability in Australia still struggle to access the simplest of opportunities. Access to anytime, anywhere, any device communications; access to appropriate equipment, training and ongoing support; and access to the business and employment opportunities offered through digital technologies are routinely out of reach for many people with disability (AHRC, 2016). At the time of writing, a Royal Commission into neglect, abuse, violence and exploitation of people with disability is being conducted in

Australia – a significant acknowledgement that the oppression and discrimination of people with disability continues (Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability, 2020). While it is disturbing that a Royal Commission is needed in a liberal democracy like Australia, it speaks to the significance of disability discourse for policy agenda-setting. As with all societal issues, disability access and inclusion will only be addressed when it reaches the decision-making agenda. The communications policy case studies investigated in this research have effectively reached that level of importance. They are all issues that have been addressed by policy interventions over a number of years.

The purpose of this thesis is to evaluate current communication policies in Australia from a critical disability theory (CDT) framework to identify the quality of those policies as they speak to people with disability. It raises four questions that are pertinent to the exclusion of telecommunications consumers living with disability and offers new conditions of possibility advanced through the principles of access and inclusion enshrined in the United Nations CRPD.

The questions are as follows:

1 How are Australian consumers with disability being excluded from full access to advanced communication services?

2 What role has Australian communications policy post the 2008 ratification of the UN Convention on the Rights of Persons with Disabilities played in this exclusion?

7 3 What are the possible implications of Australia’s ratification of the UN Convention on the Rights of Persons with Disabilities in influencing future Australian communications policy?

4 How can the principles of disability access and inclusion transform communications policy for the twenty-first century?

Australia has long been a nation of early adopters of information and communications technologies, but what has this meant for Australian consumers living with disability?

Communications are increasingly becoming an essential part of our daily lives. No longer is the standard telephone service – the home landline – able to provide the connectivity required to participate in the economic, social or community life of Australia. Anytime, anywhere access to a multiplicity of digital communications devices is a requirement for full participation and inclusion in our always-connected society. Universally available, accessible and usable communications products and services are considered to be essential in a fully networked society (Baym, 2010; Rainie & Wellman, 2012; Turkle, 2013).

Inasmuch as the ability to digitally connect for everyday tasks and community participation is becoming essential, there are significant questions of human rights and citizenship entangled in our growing networked society (Stevenson, 2003; Goggin, 2016).

What does this mean for those ‘citizens’ who are unable to connect, unable to engage, unable to receive and impart information, unable to communicate?

Communication rights have been a cornerstone of our understanding of modern-day human rights. Article 19 of the Universal Declaration on Human Rights (UDHR) states:

Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers. (United Nations, 1948)

8 The CRPD rearticulates this right in Article 21 – Freedom of Expression and Opinion and

Access to Information. With the increasing ubiquity of digital technology and emerging modes of communication, the right to communicate across these communication channels is becoming increasingly significant, with an emphasis on full participation for everyone. Unfettered access to telephone and internet services is an essential aspect of everyday life, yet the inclusion of people with disability in the discourse on communication rights has largely been absent. As

Gerard Goggin (2017) asserts, this is partly due to the lack of effective constitutional and legislative protections.

A key aspect of the ongoing barriers that people with disability continue to face in this evolution of digital technology stems from the dearth of communication rights discourse related to the heterogeneity of impairment. Individuals with disability have individual access needs, so no single accessibility ‘fix’ will make a piece of technology or a digital service usable for all people with disability (Ellis, 2012; Jaeger, 2012). Katie Ellis (2012) argues that an

‘Accessibility 2.0’ approach is needed to sit alongside policy considerations if digital communication rights are to be realised for people with disability.

As communication technology has evolved, with the introduction of smartphones and the myriad mobile applications available for alternative channels of communication, the corporate and political communication rights discourse has focused on assumed market provision of inclusivity of people with disability. Toan Nguyen (2006; Summary iv) illuminate how the complexity of disability access is considered in the context of the mobile phone:

People with a disability do not have equitable access to the modern telecommunication medium. Many experience difficulty typing, handling the phone, dialling or answering calls. For those who are unable to speak, the only option is to type messages using whatever functional control site exists on their body. The provision of accessible mobile phones for people with disabilities can

9 significantly improve their quality of life through an increased range of accessible activities, and mobile phones can improve their independence, safety, security and self-esteem.

As I discuss in detail throughout the case study chapters of this research, this presumption that mainstream digital technology is the answer in the provision of communication rights is a mixed bag. The universality of full access to and participation in our digitally networked society is an ongoing struggle for many people with disability.

Universal access to telecommunications in Australia has been a contested ideal since the earliest days of the telecommunications network. Conceived by successive governments as a nation-building infrastructure, the focus of telecommunications policy has been primarily on providing availability to the network for all Australians. Successive public policies have endeavoured to find the right balance between equity of availability between metropolitan areas and regional and rural communities while paying little attention to access to the network for

Australians with disability. Since the introduction of Australia’s first telephone network in

1880, many Australians with disability have been excluded from the network and thus marginalised in their access to telecommunications and the opportunities that connectivity provides. There is a strong argument that inadequate public policy has played a significant role in this marginalisation (Bourk, 2006; Goggin & Newell, 2003). For example, Deaf and hearing- impaired Australians did not get access to the national telephone network until the Australian

Government implemented the National Relay Service (NRS) in 1995 (Australian Association of the Deaf, 2005). Furthermore, Australians unable to use voice telephony – those who are

Deaf, hearing or speech impaired – continue to be denied reliable and independent access to triple zero emergency services while they are out and about (ACCAN, 2016).

The potential for new and emerging telecommunications technologies to provide previously unimagined access for consumers with disability is profound (Power & Power,

10 2004; Roulstone, 1998; Zimmerman & Vanderheiden, 2007; Annable et al., 2007; Goggin &

Newell, 2007). However, as communications technologies have advanced and digital communication has become ubiquitous many Australians with disability continue to struggle to get and stay connected.

This is in stark contrast to the broad assumption that new communication technologies are a panacea, capable of bridging the digital divide for people with disability. While there are a number of advances in communications technologies that incorporate aspects of universal design – such as devices with off-the-shelf assistive features built in – communications technologies are not inherently accessible for all users, particularly those who live with impairment, people who live outside of what Robert McRuer terms ‘compulsory abled- bodiedness’ (McRuer, 2006: 2). There has been much discussion about the potential benefits that technology can provide for people with disability. Former Australian Human Rights

Disability Discrimination Commissioner Graeme Innes highlighted the potential benefits of new and emerging technologies, when the principles of universal design are part of the development process (Innes, 2011). Conversely, information and communications technologies that are bought to market without fit-for-all usability and functionality can further disenfranchise people with disability from our growing digital environment (Hawkins, 2011).

Goggin and Newell (2007) explore this dichotomy – the potential benefits vs. the inherent exclusion in emerging technologies – foreshadowing this inherent dichotomy of emerging technology with their coining of the phrase ‘digital disability’. The findings of this research indicate that Australia’s penchant for the laissez-faire, self-regulated marketplace has further entrenched this digital disability. Examples of how the market has failed as the inclusive panacea providing inclusive and accessible technologies and services can be measured by the decades-long incremental advancements in Deaf telecommunications; anywhere, anytime access to emergency services for people who are Deaf, hard of hearing or speech-impaired; and

11 television and online closed-captions and audio description. In order for this increasingly pervasive communications technology to be beneficial for people with disability, the entire digital communications eco-system needs to be predicated on the fundamental principles of access and inclusion for all, from network and end-user equipment design through to inclusive public policy safeguards and protections (Goggin & Newell, 2007).

Most important in the context of this research is the Australian Government’s 2008 ratification of the United Nations CRPD and its Optional Protocol. The CRPD is an international Human Rights instrument founded on the principles of equality, access, participation and inclusion in all aspects of economic, social and cultural life. The underpinning principle of the CRPD is its foundation on the ‘social model’ of disability: the interpretation of disability as being a result of the interaction between people with impairment, and the attitudinal and environmental barriers they face in participating equally in society (United

Nations, 2006a: Preamble). While the CRPD provides explicit human rights protections for people with disability in all aspects of life, it also makes specific articulation of access and inclusion through communications technologies, specifically; Articles 9 – Accessibility;

Article 21 – Freedom of Expression and Opinion, and Access to Information; and Article 30 –

Participation in Cultural Life, Recreation, Leisure and Sport. The intent of these articles is to oblige States Parties to ensure access to information and communications technologies in order to enable full and equal participation for their citizens with disability, providing equitable access to the economic, social and community life of the country (United Nations, 2006a).

There is no doubt that these are significant obligations underpinning the need for communications policies that provide greater access and inclusion in our digitally networked society for Australians living with disability.

12 In addition to the 2008 ratification of the CRPD, a number of recent Australian

Government social policy initiatives have been adopted to promote and increase the economic, social and community participation of Australians with disability. These policy initiatives also make specific reference to the role that communications technologies can play in ameliorating some of the barriers encountered by people with disability. For example, the National Disability

Strategy (NDS) – a whole-of-government agreement formerly endorsed by the Council of

Australian Governments (COAG) in 2010, includes as its first priority ‘Inclusive and

Accessible Communities’, with specific reference to ‘digital information and communications technology’ (Australian Government, 2012). Furthermore, the NDIS Assistive Technology

Strategy emphasises the important role that new and emerging technologies – including information and communications technologies – can play in increasing economic and community participation for Australians with disability.

Additionally, during the intervening years since Australia’s ratification of the CRPD, the

Commonwealth has undertaken a number of communications policy reviews and consultations with a specific focus on access for people with disability – reviews spanning much of the communications sector, including telephony equipment and services, electronic media, broadcast services and converged media. It is these reviews and the resultant reports and legislation that provide the rich case study data for this research.

As a researcher living with disability and working in the area of communications access for people with disability, I have a keen interest in investigating the impact of the adoption of these international and domestic instruments and policy reviews on providing greater communications inclusion for people with disability. What – if any – influence have these social policy initiatives, with their underpinning principles of access and inclusion, communications policy consultations and reviews, had on the communications policies that

13 have been developed during a period of neoliberal economic primacy and the political influence of economic rationalism and market competition?

As far as I can ascertain, this research is the first multidisciplinary study of these

Australian communications policy case studies from a critical disability theory and critical communication policy research perspective. Additionally, in evaluating the findings in conjunction with the principles of access and inclusion, which are the cornerstone of the CRPD,

I am able to evaluate how well the CRPD has been implemented in Australian communication policy. Linking this into my interest in disability communication access research in the context of the capabilities approach provides a theoretical understanding of the social and cultural conceptions of disability, technology and human rights. My aim is for this research to provide a valuable addition to the considerable volume of critical communications research In the

Australian context. This research follows on from the work of Gerard Goggin, Christopher

Newell, Rob Garrett, Gunela Astbrink and the many others who have advocated for access to telecommunications for consumers with disability.

Thesis structure

I have laid out the format of this thesis following a somewhat standardised approach. Following this introductory chapter, Chapter 2 illuminates both the literature on the topic and my theoretical approach to the study. By including a broad discussion of the socially constructed nature of disability in Australia, this chapter then goes on to discuss how the critical theory approach allows for a thorough investigation of Australian communications research and policy. The chapter concludes with a discussion of the role of the capabilities approach and a human rights framework, shedding light on how Australians with disability figure in the communication policy arenas of the national relay service, access to telecom equipment and access to broadcast content online.

14 Chapter 3 describes the research methodology, explaining why a multi-method approach of case studies, document analysis and participant observation was chosen as the most appropriate methodology for the research and how the interconnected aspects of these models provide a rich and rigorous evaluation of the data.

Chapter 4 examines the human rights discourse that is the background to present-day communications access. It looks at modern day human rights, the history of human rights and

Australian disability advocacy.

Part 2 of the thesis presents the three case studies. Chapter 5 examines the National Relay

Service; Chapter 6 looks at access to telecom equipment; and Chapter 7 explores access to online audio-visual broadcast content. Each of these case studies evaluates the policy arena related to its interest since Australia’s adoption of the CRPD.

The final chapter brings the thesis to a close by evaluating these case studies while attempting to answer the four questions posed at the beginning of the research. It uses this analysis to make recommendations on how future communication policy can be inclusive of people with disability.

In order to interrogate this tension between disability and communications policy, I adopt an emancipatory approach to the research. I employ a multidisciplinary theoretical approach, drawing on both critical disability studies and critical communications research theory.

15 Chapter 2 Theoretical approach

Introduction

This chapter establishes my theoretical approach to the research. I combine both a critical disability theory (CDT) and critical communications research (CCR) approach to establish an understanding of the positioning and exclusion of people with disability in the Australian communications policy paradigm. Specifically, I employ this multidisciplinary approach to evaluate the efficacy of Australia’s communications policies’ inclusion of people with disability post Australia’s 2008 ratification of the CRPD.

First, through a CDT framework, I investigate how the social construction of disability posits beliefs, expectations and responses to people with disability. Drawing on the significant body of Australian and international scholarship in disability studies, I am able to trace the emergence of disability as an issue of contested rights-based humanity. I utilise CDT as an emancipatory and intersectional discourse (Goodley, Liddiard & Runswick-Cole, 2018) to evaluate how people with disability have been considered and positioned in the development of

Australian public policy, with its predominance of neoliberal economic theories and its ‘ableist’ assumptions – assumptions of ‘normalcy’ that have become so entrenched in our social subconscious that the ‘disabled’ has become intertwined with our collective habitus as a

‘negative’ state of being (Campbell, 2009). Under such assumptions, ableism is a place where

Deafness is not considered a cultural and linguistic ideal but rather a medicalised deficiency that is best treated with the technology of the cochlear implant (Goggin & Newell, 2003: Blume,

2012).

16 Second, in order to evaluate the communications policies relevant to the inclusion of people with disability, I establish a critical communications framework. I begin by revisiting

Paul Lazarsfeld’s (1941) paper ‘Remarks on Administrative and Critical Communications

Research’. While the debate on Lazarsfeld’s work has moved on in the field of communication research, an investigation of the nexus between the administrative and the critical policy approaches is useful to anchor my argument that Australian communications policy’s consideration of people with disability has been dominated by an administrative research paradigm.

Finally, by drawing on academic literature across multiple disciplines – for example, education, employment and law – this section illuminates the significant influence of neoliberalism on the Australian policy-making approach to disability and communications. As with most Western liberal democracies, neoliberalism has been Australia’s predominant political economic system over the past several decades. I propose that the neoliberal emphasis on free markets, deregulation and limited social policy interventions, as illuminated in this research, has played a significant role in the way Australians with disability continue to be excluded from digital communication access.

Social construction of disability

It can be argued that disability is a modernist construct resulting from changing cultural and societal mores and values. As cultural and social values and expectations have changed, so has the public and political discourse of disability. Early disability studies theorists have asserted a Marxist historical materialist approach to how we understand and consider disability

(Abberley, 1997; Gleeson, 1997; Goodley, 2013; Meekosha, 2004; Oliver, 1997; Russell,

2001). For example, Vic Finkelstein and other early disability scholars outlined how the social construction of people with disability evolved – or one could perhaps more accurately say

17 ‘devolved’ – over time. In pre-industrial society, individuals with impairment were participants in the agrarian productive community. As industrialisation and urbanisation transformed communities, people with impairment found themselves unable to participate as members of the industrial production system. This led to a disempowerment of people with impairment, ultimately leading to what is understood as the charity/welfare model of disability. People with impairment in these growing industrialised societies were unable to participate actively in the process of production and self-support. This exclusion of people with disability from the workplace and broader community participation created a dependency on charity and welfare, leading to a broad perception of people with disability as burdens on society.

The social construction of disability in Australia, as in much of the developed world, has undergone a number of significant reinterpretations of the way people with disability have been perceived and treated. It is generally understood within disability studies that there have been a number of distinct classifications of disability theory, or socially constructed models (Swain et al., 2000; Marks, 1997), including the charity/welfare model, the medical model and, most recently, the social model. The charity model and the medical model as constructs were underpinned by the perception of disability as individual deficit, determining how people with disability were to be ‘managed’.

Charity model

In an environment where self-sufficiency through employment is the norm, people with disability who, for whatever reason, are not able to participate in the workforce are reliant on charity or social welfare payments to survive. While this has been a fact of life in the treatment of people with disability for centuries, the industrialisation and capitalisation of western nations have developed the charity/welfare model as we know it today. Based on viewing disability as

‘tragedy’, supported through emotive feelings of fear and pity, the charity/welfare model of

18 disability reinforces the hegemonic ableist paradigm (Goodley, 2008, 2014). While disability support has long been associated with the ‘welfare society’, the liberal democracy move towards neoliberal economic policies since the 1980s, with their associated philosophies of

‘mutual obligation’, have reinforced this negative social positioning of disability (Soldatic &

Pini, 2012). Furthermore, while this ‘model’ of disability discourse continues to influence both societal and political domains, the ‘charity’ model is deeply entwined with what has long been the pre-eminent approach to the positioning and social construction of disability: the medical model.

Medical model

As medical advances and new technologies have provided opportunities for possible remediation and ‘cure’, the medical model of disability has taken precedence in economically developed societies. With the rise of medical authority and social expectations of cure, the medical authority over the deviant body has been dominant (Oliver, 1996; Zola, 2005). With its focus on ‘fixing’ disability, the medical model reinforces the ableist mandate that people with impairment emulate the able-bodied ‘norm’. There are two key factors that inform this model. First, it is dependent on certain behaviours or conditions being given medical meaning

– for example, they are defined in relation to concepts of health and illness. Second, medicalised solutions are implemented as the remediation needed for eliminating or controlling problematic experiences that are viewed as deviant, for the purpose of securing adherence to social norms (Ilich, 1977; Barnes & Mercer, 2010; Coleman-Fountain & McLaughlin, 2014;

Conrad, 1992; Davis, 1995; Conrad & Schneider, 1980; Goodley, 2011). The medical model of disability has been influential in the social construction of disability since the early twentieth century. It was this negative social construction of how people with impairment were viewed that ignited the resistance to this oppression from the disability rights movement.

19 In the late 1960s and early 1970s, as part of a wider social movement challenging the status quo, people with disability began contesting the traditional dominant segregation and oppressive policies of the time, arguing for greater recognition and inclusion of people with disability in all aspects of society. The genesis of this disability rights movement can be located in the development of the United Physically Impaired Against Segregation (UPIAS) organisation of people with disability in the United Kingdom in the early 1970s. UPIAS disrupted the contemporary public view and status quo of disability by arguing that it was not an individual’s impairment that was disabling, but rather the barriers created by an environment unable to accommodate people with impairment, barring access and inclusion in everyday aspects of education, employment, social and community participation. As such, the evolution of disability rights and disability studies is strongly associated with progressing our understanding of disability as being the barriers encountered by people with impairment when engaging in an environment – both social and physical – that is predicated on an ideal of

‘normal’ able-bodiedness. When societal attitudes and environments are constructed from an able-bodied, ‘normalist’ paradigm, people with impairment are denied access. It was from this challenge to the status quo outlined in the UPIAS Manifesto, ‘Fundamental Principles of

Disability’, that the social model of disability emerged. It argues that disability is a result of physical and social barriers, negative attitudes, discrimination and oppression. It was named the social model of disability by sociologist Michael Oliver, a wheelchair user, in 1983.

Social model

This ‘emancipatory’ social model clearly disrupted the long-held assumption that people with impairment are inherently disabled by their sensory, physical or cognitive deficiency, and that disability is a ‘condition’ needing to be medically remediated in order to align the individual closer with the predominate ‘normalised’ presumption that able-bodiedness is a prerequisite

20 for personal and societal value. The social model of disability was widely and enthusiastically adopted by disability advocates, empowered by this challenge to the ableist status quo. With its challenge to the power imbalance in disability discourse and policy, the social model moved

‘disability’ out of the body and placed it squarely in ‘society’ (Meekosha & Shuttleworth, 2017;

Soldatic & Meekosha, 2012). No longer were an individual’s impairments the sole reason for a person’s disability; rather, it was the social and physical construction of society that barred people with impairments from full and equal economic, social and cultural participation. It is only when society considers just the needs and abilities of the mainstream that an individual’s impairment becomes disabling. In this context, we can see the sharp contrast of the medical model with the social model. While the medical model focus has been on ‘curing’ or

‘normalizing’ the deviant body, the social model is focused on changing societal norms

(Coleridge, 1993). Over time, this ‘social model’ of disability has been widely adopted within the disability community, culminating in the 2006 adoption of the CRPD.

While this understanding of disability as being the tension between inaccessible environments and impairment has progressed disability rights for many people, particularly those living in developed nations, a strong critique of the social model as a holistic disability theory has developed from people with disability and disability studies academics

(Shakespeare, 2010; Shakespeare & Watson, 2001; Thomas, 2004). Scholars such as Tom

Shakespeare (2010; see also Shakespeare & Watson, 2001) have questioned the primacy of the social model as the definitive explanation of disablement. While detractors of the social model do not argue that these social and environmental barriers are disabling for many people with disability, they assert that the social model does little to recognise some of the impairment- specific factors that compound the difficulties of living with impairment for many people.

These arguments do not go so far as to dismiss the social model; instead, they build upon it as a foundation from which to develop a greater understanding of disability. For example, Carol

21 Thomas’s (2004) work on the social-relationship model of disability blends the consideration of an individual’s impairment along with the disabling environmental and societal barriers. So while the social model has been politically successful in advancing concepts of greater access and inclusion for people with disability, it has simultaneously created tensions in disability studies (Owens, 2015).

By redefining how disability is understood and positioned within society, the social model has provided people with disability with a framework from which to challenge the traditional disabling conceptions of ableist oppression. No longer willing to uncritically accept the status quo, the social model has enabled emancipatory possibilities for people with disability. Typical of the emancipatory opportunities for similar oppressed groups, such as women, people of colour and the LGBQTI community, this disability emancipatory challenge to the status quo has its roots in the philosophical approach of critical theory.

A critical approach

Critical theory stems from the challenge to what Max Horkheimer coined ‘traditional’ theory in his 1937 essay, ‘Traditional and Critical Theory’. Horkheimer, a member of the Frankfurt

School of philosophers and social theorists working in the 1930s, defined critical theory as having three distinct characteristics, which differentiate it from traditional theory: it needs to be practical, explanatory and normative. The Frankfurt School theorists were influenced by

Marx’s critique of the political economy of liberal capitalism, and built on this to critique the dominant nature of late capitalism and challenge its oppressive characteristics. Critical theory founded on a Marxist framework therefore involves investigating the intersection between normalised social relations and the prevailing capitalist democracy (Brookfield, 2005).

Furthermore, critical theory challenges the insipid power of these hegemonic narratives,

22 asserting that they not only influence our social discourse but also underpin our institutions of education, law, justice and policy.

Critical theory has been adopted across a number of fields, with its application to disability as somewhat of a latecomer. Critical theory has been a foundational approach to feminist studies, race studies and more recently queer studies. These forebears to critical disability studies are also finding common ground and areas of intersectionality. There is a rich academic literature of feminist disability studies, a growing literature on the intersection of race and disability (Annamma, Connor & Ferri, 2018) and an increasing literature focusing on the intersection of disability and queer culture (McRuer, 2003, 2006). These interpretations of critical theory, along with this burgeoning intersectional research investigating the power relationship with oppression and disadvantage, are core to understanding critical disability theory.

A critical disability approach thus provides me with a valuable framework to explore the tensions between constructs of disability and equality (Cameron, 2000; Goodley, 2013; Pothier

& Devlin, 2006; Rioux & Valentine, 2006). It assumes the position that, through an understanding of the interplay between theories of human rights and equality, it is possible to provide the necessary foundation for understanding the connections between the economic and social inclusion of people with disability. Moreover, CDT has emerged as a twenty-first century multidisciplinary approach to understanding disability (Meekosha & Shuttleworth, 2017;

Goodley, 2013). I employ CDT as a ‘methodology’, following Julie Avril Minich’s (2016) argument that CDT ‘must be a methodology that proceeds not from narrowly defined notions of what “counts” as a disability but one that seeks to radically disrupt the multiple sociopolitical ideologies that assign more value to some bodies and minds than to others’. Finally, it must be a methodology enacted in and through a commitment to accessibility.

23 CDT’s origins are situated in the discipline of disability studies, which developed over the latter decades of the twentieth century, in line with and building on the developing disability rights movements that began in the early 1970s. So while CDT, also referred to as critical disability studies, has its genesis in disability studies, it has outgrown its roots. As Meekosha and Shuttleworth assert, ‘the terms of engagement in disability studies have changed; that the struggle for social justice and diversity continues but on another plane of development – one that is not simply social, economic and political, but also psychological, cultural, discursive and carnal’ (Meekosha & Shuttleworth, 2017).

Applying a critical examination of societal determinations of how people with impairment are socially constructed is the foundation underpinning CDT’s challenge to the status quo. It is this interrogation of normalised discourse – beliefs and practices – that allows

CDT to challenge the attitudinal and societal barriers encountered by people with disability in their everyday lives: barriers of inclusion in education, employment, political participation and full access to community participation as a result of societal expectations and limitations.

Interested in understanding through interrogating the underpinning assumptions of disability,

CDT challenges the disability status quo in ways similar to how the ‘social model’ challenged the predominant medical model of disability. Christopher Newell poses the question, ‘Did not we as members of Australian society ‘deal’ with disability back in 1981, the International Year of Disabled Persons, the year when we supposedly broke down the barriers?’ (Newell, 2005).

This was more than a decade after Australia’s adoption of the Commonwealth Disability

Discrimination Act 1992, and only a few years before Australia ratified the CRPD. Newell’s answer to his own question was that not much had changed in Australia in the intervening years. While there had been a grass roots movement in disability rights in Australia (Newell,

2005; Soldatic & Meekosha, 2012), as in much of the developed world, and Australia had

24 adopted the social model of disability discourse, much of the academic literature argues that social policy was still being developed from the medical model framework, where the emphasis is placed on an individual’s impairment or ‘deficit’ and ignores the barriers that society creates for people living with impairment. Newell (2005) asserts in this same lecture that people with disability in Australia ‘are defined in accordance with medical and charitable discourse. We are the deficit-ridden bodies who rely upon handouts as pathetic, tragic entities that are a burden on society’. Newell goes on to dismantle any suggestion that Australia views disability from the social model framework, instead arguing that disability in Australia is akin to social apartheid. This assertion is elaborated upon in Goggin and Newell’s (2005) book Disability in

Australia: Exposing a Social Apartheid? Supporting Goggin and Newell’s explication of disability in Australia, Rachel Carling-Jenkins (2010) argues that people with disability in

Australia continue to fight against the entrenched hegemonic modernist portrayal of disability, rejecting what she identifies as the ‘modernity’ view of disability. This is a view typified by a traditional charity/welfare model of disability, portraying people with disability as ‘other’, as people dominated by the hegemonic power of an ableist society. Whereas disability studies has adopted the ‘social model’ as fundamental to the way we understand disability discourse, CDT takes a more multidisciplinary approach to understanding disability, interrogating assumptions and epistemologies to illuminate alternative interpretations of society and disability. Early CDT theorists argued against this assumed disability epistemology, specifically the social construction of disablism, where the dichotomy of binary notions of disabled and non-disabled values the latter over the former (Corker & French, 1999). It is thus the objective of CDT theorists to critically interrogate this dichotomy, questioning its authority and intention as a socially constructed distinction. Dan Goodley (2016), for example, argues that this socially constructed dichotomy reinforces a power imbalance and reinforces the socially constructed preference for a predominant able-bodiedness. CDT therefore provides a mechanism to study

25 the relationships of class and power, providing opportunities to reimagine the dominant discourse of hegemony and oppression. Moreover, CDT challenges the social construction of disability in the same ways that interpretations of critical theory have challenged and reinterpreted gender, race and sexual orientation (Brookfield, 2015; Pothier & Devlin, 2006).

It is within this emancipatory framework enabled by the social model that this research investigates how the barriers of inaccessible communications services, equipment and information disable Australians with impairment.

Communications and disability

It is not possible to contextualise access to communications for Australians with disability without examining how disability discourse has evolved across our public and political conception. The prevalence of disability in Australia contradicts how disability has been viewed and addressed in Australia. Since the earliest days of colonisation, people with disability in Australia have been situated outside of the ablest political and social consciousness. This positioning of disability is remarkable in view of the relatively high number of Australians who identify as having a disability.

The Australian Bureau of Statistics (ABS, 2019) reports that almost one in five

Australians identifies as having a disability. This proportion of the population identifying as having a disability has been constant for many years, as reported in multiple ABS surveys in

2003, 2009, 2012 and 2018 (ABS, 2019). Given this high incidence of disability, it is of particular interest that the stigma of ‘otherness’ has been the entrenched perception of and social attitude towards people with disability for most of the recent past. With almost 20 per cent of Australians identifying as having a disability, it is unlikely that anyone in Australia does not have close personal experience of disability – be that a family member, friend or colleague.

26 In addition to this current incidence of disability, the projected increased incidence of disability as the Australian population ages has significance for this research. The ABS reported in 2019 that the increase in the ageing population in Australia had risen to 15.9 per cent of the population (ABS, 2019). Demographic statistics foreshadow an increasing incidence of age-related impairments such as hearing loss, vision loss and increased loss of fine motor skills. With a population of ageing baby boomers developing age-related impairments, accessible and usable communications products and services will be critical for the continuity of their economic, social and cultural participation. Continued use and access to communications products and services will be determined less by these age-related impairments than by the usability and functionality of digital equipment and the communications policies underpinning functional equivalence.

So, while there are tensions among academics and disability scholars regarding the ongoing usefulness of the social model of disability, in this research I argue that it is the inherent design of telecommunications products and services along with the ableist public policy framework in which telecommunications in Australia is situated that creates barriers to access for people with a range of impairments. This ableist construct, of the ‘normal’ body untouched by the stigma of loss, has determined how both public policy and industry have excluded, and continue to exclude, people with disability from equal access to telecommunications in Australia.

Can disability shape technology?

Given that this research investigates the role of communication policies and the impact of these policies on the capability and capacity of people with disability to access and utilise communication technologies, it is useful to understand the interdependency and contested nature of disability and technology – how has the socialisation of disability theory impacted

27 technology development and its enabling or disabling role in telecommunications for people with disability? The social construction of the nexus of disability and technology is made possible through the changing nature of both disability theory and technology theory

(Roulstone, 1998). In the same ways that disability has been socially framed and constructed over time, technology has also been influenced and transformed by social development.

Alan Roulstone (1998) provides a comprehensive review of the changing nature of this nexus between disability and technology over time, explicating the social construction of technology in his book Disability and Technology: An Interdisciplinary and International

Approach. While Roulstone critically reviews the normalised ‘models’ of disability discourse

– the ‘medical’ and the ‘social’ model specifically – he makes a strong argument that while not definitive, the social model theory of disability has significantly influenced the discussion of technology’s role in disability. It is this evolving social construction of disability, away from the medicalised, body-deficit approach towards an understanding of ‘disabling’ as the result of environmental and societal barriers, that is being advocated by people with impairment.

As discussed earlier, the critical disability theory on which this research is founded assumes the social model of disability as it is interpreted through the framework of human rights. The intersection of disability and technology and the public policies underpinning

Australia’s communications sector all play a critical role on the level of access and inclusion experienced by Australians with disability in our networked society.

In examining the intersection of disability and technology as it has changed over time, it is possible to see similarities in how the social construction of both disability and technology has provided the dichotomy of opportunities and barriers for many people with disability

(Roulstone, 1998). This paradoxical intersection is further confounded by the complex ways in which people with disability adopt technologies. For example, the teletypewriter, a technology

28 that has provided profound access for people who are Deaf, hearing impaired or speech impaired, was made possible in 1964 by the unconventional conversion by a Deaf engineer. of outdated telegraph equipment to a device that could transmit text over the telephone network

(Peltz Strauss, 2006).

Roulstone’s (1998) explication of technology and society begins with an in-depth account of technological determinism theory, in which it is technology that informs and creates new social and economic outcomes, before moving on to a broader discussion of the theory of social shaping of technology. Technological determinism (TD) theorises that technology develops autonomously, independently of social and cultural influences. It is this development and evolution of technology as a result of scientific advances that in turn influences society

(MacKenzie & Wajcman, 1999). TD was long the dominant theory of the relationship between technology and society, with its theorists asserting that technological innovation is the underpinning catalyst of social change (Brey, 2003). Inherent in this theory is the absence of society’s influence or input into the evolution and innovation of technology. This is a particular point of contention for the social model of disability, with its embedded preference for

‘professionals’ determining which technology is most suitable for ‘remediation’ of the body.

TD has by no means been without its critics, questioning the prevalence of much of the social science research focus on technology and its influence on society while giving little credence to alternative theories and their interest in how society and community influence the development of technologies. MacKenzie and Wajcman (1999), while not wholly dismissing

TD, propose the social shaping of technology as a more useful and informed theory of technology. Certainly, much technology advancement is dependent on knowledge – both scientific and technological; however, the argument is that these are not the sole catalysts for innovation and new technology, but rather part of the suite of inputs of technological progress.

Importantly, multiple inputs – including economic, political and cultural – all have a role to

29 play in the development of technology. Thus this theory, of the social shaping of technology

(SST) is founded in an acknowledgement of the interconnectivity of technology and society

(MacKenzie & Wajcman, 1999).

Moving away from the medicalised understanding and positioning of disability, it is possible to see a parallel progression in the social shaping of technology. The medicalised model of disability was strongly influenced and managed by the technology of rehabilitation.

Focusing on the deficit of the individual, the role of technology was to rehabilitate or fix the

‘deviant’ body (Roulstone, 1998).

Goggin and Newell (2003) explore this ‘medicalisation’ of technology. With the example of the cochlear as a means to rehabilitate the Deaf – this tradition of technology as saviour is also reflected in Wajcman’s (2010) work in the area of feminism and technology. What was commonly overlooked in this approach to disability was the individual. With its professionalised assumption of knowing what the individual with disability needs, people with disability have been deprived of agency. The Cochlear implant, as the solution to hearing impairment, has and arguably continues to have a contested role with its disregard for the cultural and linguistic value of the Deaf community.

The social shaping of technology is founded on the intersection of social knowledge, social practices and products, with the outcomes dependent on the distribution of power and resources between different groups in society (Wajcman, 2010). Thus, it is in the interest of people with disability to assert influence in the social shaping of technologies. While often the technology available is not the appropriate technology, as can be seen in the case studies of this research, people with disability can have a role in socially shaping how new technology is developed to meet their needs. In the same ways in which women have overthrown the hegemonic patriarchy of technology, people with disability, in socially shaping technology can

30 challenge technology’s inherent ableism. Assuming the social shaping of technology allows for reimagining what technology can be. However, while this move away from TD provides a theory of possible emancipation from oppressive technologies and their inherent ableism, the realities of the power imbalance for people with disability in mandating change creates challenges (Lyon, 1986). Returning to Couldry’s (2010) assertion that voice matters, there is a claim that our current political milieu with its neoliberal predominance silences the concept of

‘voice’ as agency, particularly in reference to those groups outside the ableist norm.

So, while the question of how technology enables disability continues to elicit a variety of responses, from the overly confident assertions that new and emerging technologies ameliorate the inherent deficiencies in disability functionality to the view that technology further disenfranchises the agency of people with disability, there are many examples where new and emerging technologies can help to alleviate some of the environmental barriers encountered by people with disability every day. The introduction of desktop computing, while not designed for people with disability per se, has provided affordances for greater economic, social and community participation for many people with disability (Harvey, 1989; Roulstone,

2016). Conversely, there are significant barriers to this technology if adaptive functionality is not available. The introduction of the internet and the World Wide Web further enabled greater participation for people with disability; again, though, for many people with disability there continue to be barriers to access. Issues of inaccessible websites, content inaccessible for people with cognitive impairments and audio-visual content without captions or audio descriptive features all contribute to the disability digital divide (Dobransky & Hargittai, 2016;

Ellcessor, 2016; Jaeger, 2012). While this is a field of research that is in need of greater investigation and focus (Goggin, 2017), a small cadre of academics and researchers are highlighting how, while having the capacity to enable greater participation in digital communication networks, there are fundamental areas of neglect that continue to create barriers

31 and exclude many people with disability from full participation. Disability digital inequality has been raised in the Australian context since the introduction of the internet and World Wide

Web. Gerard Goggin and Christopher Newell’s (2003) early work in this field has been influential both domestically and internationally, contributing to discussions of the ‘disability digital divide’. Other Australian researchers, such as Katie Ellis and Mike Kent (2016), are expanding our knowledge in this field, particularly in the context of access to audio-visual media online. Similarly, internationally there are a number of influential academics and researchers working in this space. In the United States, for example, Paul Jaeger (2012) and

Elizabeth Ellcessor (2016) have written extensively on the disability digital divide, interrogating the economic, social and cultural dimensions of exclusion. Focusing on digital technology and its intersection with disability is specifically relevant in the context of this research. The case studies discussed in this thesis apply a critical lens to this nexus of disability access and communication policy.

So, while there is a strong assumption in much of the public policy discourse that new and emerging digital technologies will be the panacea for people with disability in the everyday, both affordances and barriers exist with much new and emerging mainstream technology (Goggin & Newell, 2007). Consequently, it is in this context that the role of public policy in communication is critical to enable unfettered access to the affordances of technology by people with disability.

Technology, disability and capabilities

After discussing the ‘affordances’ that inclusive technology can provide, as highlighted by

Roulstone and others when researching the social shaping of technology, we see a clear transition to how technology affordances are able to be interpreted in a capabilities approach to disability. Amartya Sen’s economic theory underpinning the capabilities approach provides

32 an opportunity to include this in the disability discourse. The theoretical framework of the capabilities approach is its understanding of humanity as diverse. Not all humans are the same, with respect to all facets of humanity. Certainly people with disability – as with all communities

– are not a homogeneous cohort. Types of impairments span a broad spectrum, both within the same condition and across all of the different impairments or conditions that are considered

‘disability’ – for example, when does the spectrum of vision change from ‘normal’ to

‘disabled’? Is it when someone needs glasses with corrective lenses, and is there a distinction between reading glasses and distance glasses? Or is it when glasses change from being an aesthetically designed ‘fashion’ statement to a less visually appealing ‘assistive’ technology?

What about the difference between needing glasses and needing an orientation and mobility device such as a white cane? These are the differences in just one area of sensory impairment that determine a person’s different ‘functionalities’ and ‘capabilities’.

Amartya Sen’s capabilities approach is founded in an egalitarian understanding of society. Sen argues that neither the theory of utilitarian equality or Rawls’ theory of justice adequately addresses the multifaceted differences between human beings and how these differences need to be considered in the context of distributive justice. He argues that fulfilling standard ‘basic’ needs will not provide the ‘equality’ of utility for all people (Garnham, 1997).

In other words Sen’s capabilities approach asserts that society needs to provide all people with the appropriate resources or utility to enable both real and substantive opportunities at each individual’s relevant level to meet the same opportunities (Harnacke, 2013). Sen’s question

‘Equality of what?’ thus relates to entitlement. When we apply Sen’s capabilities approach to resources, it is an evaluation of each individual’s ‘functions’ – inherent values that a person attaches to acts of doing or being, which needs to be the objective determinant of resource provision. It is the possible alternative opportunities available through these functions that Sen calls ‘capabilities’ (Couldry, 2019). Sen argues that, when comparing different people’s

33 functions and capabilities, it is important to put oneself in their position, as this is the only way to determine whether that is a position of disadvantage or exclusion.

Sen’s capabilities approach has been adopted across a multitude of areas, particularly in the areas of development and education (Saito, 2003), and specifically in the discipline of disability studies by Martha Nussbaum.

Nussbaum’s disability capabilities

Nussbaum’s application of Sen’s capabilities approach to disability has its foundation in an inclusive human rights approach, and thus provides an appropriate theoretical basis for this research. In adopting an inclusive understanding of the diversity of humanity, arguing that what matters is what people are able to do and be with resources, rather than the resources themselves, Nussbaum’s theory proposes the best way to include the diversity of people with impairment and their diversity of abilities. Nussbaum also makes a distinction between capabilities and function, arguing that capabilities are what people are able to do and be, while functioning is how people are able to achieve these capabilities. Nussbaum’s focus on capabilities comes from her position that certain functions are central in human life, and there is truly a human way to exercise these functions (Harnacke, 2013). However, it is the capabilities that are important to Nussbaum’s theory; the functioning is necessary to provide the opportunity for the capability. Nussbaum has developed a list of capabilities that are fundamental to enable all human beings a minimum standard of justice. This list of capabilities that Nussbaum has grouped together under 10 ‘central human capabilities’ comprises: life; bodily health; bodily integrity; senses, imagination and thought; emotions; practical reason; affiliation; other species; play; and control over one’s environment. The list has changed over time; however, all are necessary for a person to have a life of dignity – or, as Nussbaum has called it, a life with a ‘truly human functioning’ (cited in Harnacke, 2013).

34 In order to achieve these capabilities, it is inherently understood in the capabilities approach that not all people are able to achieve the same outcomes from the same level of resources. Thus, for some people with disability, the necessary resource to meet a capabilities threshold may be greater than for someone without disability. In contrast to those social contract theories in which the distribution of resources is equal among individuals, the capabilities approach focuses on the outcomes and not the inputs. It is in this distinction in which the capabilities approach becomes particularly relevant to disability. In much the same way that the social model considers disability, the capabilities approach considers a variety of factors in determining an individual’s capacity to realised capabilities. It is this realisation of different requirements to attain the same outcomes that a person with disability may need that makes the capabilities approach a valuable theory of distributive justice. It is through this interpretation of disability through Nussbaum’s capabilities approach theory that I am able to evaluate how well these communication policies provide people with disability with the opportunity to realise their full capabilities.

Capabilities approach and communication policy

In the context of communication, the question therefore becomes one of universal access. It is a question that historically has been answered by the Universal Service Obligation (USO).

However, this assumption that geographical access to the network is all that is necessary for full communications participation has failed many Australians with disability.

Employing Nussbaum’s capabilities approach in evaluation of communications provides an opportunity to understand the varying functions and capabilities of people with disability, and consequently the varying outcomes achieved by different people from the same resource.

As Garnham (1997) asserts, access is not enough. In applying the capabilities approach to communications, we need to understand the various ways in which telephony functions in

35 Australian society – the essential nature of connectivity, mobility and broadband. In addition to the capacity to connect – to have access – these also bring the benefits secured through anytime, anyplace, any device connectivity and usability in our economic, social, political and community lives. This growing essentiality means that full connectivity is now an entitlement for all Australians, including those with disability. Applying the capabilities approach as analogous to Sen’s ‘bundle of goods’, many people with disability are unable to reap the same outcomes from universal access to communications as others. The analysis of policy in this research, questions how, from a capabilities approach, these policy areas provide the necessary resources, or entitlements, to meet the threshold of the functioning that enables the achievement of capabilities.

Nicholas Garnham (1997) asserts that telecommunications access needs to be assessed not just in terms of mere access to connectivity, but ‘a range of functionings’. It is in the absence or exclusion of the normalised functionings of telecommunications that broader capabilities are denied. Without the functioning of telecommunications, access to capabilities of employment and social participation, along with other capabilities associated with a valued life, are unattainable. So in this research the denial of these normalised functionings such as

‘contactability’, ‘mobility’ and ‘knowing’ all contribute to the exclusion of people with disability from full participation. Ameliorating this exclusion is at the heart of the CRPD, which focuses on equity of access, inclusion and participation.

Critical communications policy research

Given that the underpinning theoretical approach for this research is that of an ‘emancipatory’ critical interrogation of communications policy, I am interested in knowing how these policies pertain to the inclusion of people with disability. What has worked well for Australian communication consumers with disability and what has failed them in their quest for

36 functionally equivalent access to communication services and equipment? How have the economic and social affordances of technology been incorporated in the communication policies of the last decade?

In this research, I understand ‘communications policy research’ to be distinct from

‘communications policy analysis’. While these terms are often used interchangeably, I have adopted an interpretation of communications policy research as being the evaluation of existing communications policies: I am interested in what goals, defining assumptions, influences and pressures were/are fundamental in the policy development process, rather than policy analysis being the formulation and development of policy solutions to an acknowledged problem. In other words, this research is interested in what Roland defines as an evaluation of the reasons and ways that policy-makers and governments make decisions about communications markets

(Roland, 1986).

In order to explicate my research position, it is necessary to understand how I position critical communications policy as being distinct from administrative communications policy.

While there has been a long debate over the dichotomy between ‘administrative’ and ‘critical’ communication policy research, beginning with Paul Lazarsfeld’s (1941) work, critical communications policy has a firm foundation in contemporary communication research and literature. For example, Robin Mansell (2017) illuminates the opportunities afforded through a critical research approach in his examination of the ‘relationships between economic and social inequality and digitally mediated communication’.

Critical theory has its foundation in challenging power imbalances and oppression. As

Mansell explicates, there is an embedded imbalance of power inherent in technology (Castells,

2009; Mansell, 2017; Winner, 1999). Moreover, it is in this context that critical communication research illuminates these power imbalances and inequalities, providing opportunities for more

37 inclusive and democratic future communication policy. Investigating the fundamental principles supporting these distinct approaches to communications research is therefore valuable for setting a benchmark for my evaluation of communications policies more broadly.

Inasmuch as the areas of communications policies on which I focus in this research concern access to digital communications networks, access to communications equipment and access to digital online content by people with disability, they are all policies that have been developed from an ‘administrative’ approach under the auspices of Australia’s neoliberal political framework. My interest is in employing the ‘administrative vs. critical’ evaluation as a means by which to provide an opportunity to investigate Australian communications policies post the ratification of the CRPD and to explore the impact of these policies on people with disability.

My position assumes that an administrative approach is bounded by economic rationalism and the bureaucratic agency predilection for maintaining the status quo (Lazarsfeld, 1941;

McQuail, 1994). A strong criticism of the administrative approach is its inherent lack of inquiry into significant broader issues of social and democratic importance (Roland, 1986). Thus a more ‘holistic’ approach to communications policy research – research that includes the investigation of broader social and political issues – is the domain of critical communications policy research (Martin, 1976; Melody & Mansell, 1983). In other words, a critical communications approach provides an opportunity to incorporate a broader critical disability studies lens in the interrogation of these policies in order to establish what influence the social and political positioning of people with disability has had on the development of these communications policies.

Communications policy research has a long history of multidisciplinary approaches and scope (Just & Puppis, 2012). Often intersections of economics, law, sociology and cultural studies research provide insights into communications policy decisions. Furthermore, communications policy research provides an understanding of the predominant issues and how

38 these issues influenced the decisions of policy-makers (Rowland, 1984). This insight has significant relevance in the context of this research, as it is this investigation and evaluation that provide transparency regarding the impact of communications policy decisions across multiple dimensions. The economic and social implications are felt on both a macro and micro level, determining the capacity of people with disability to participate fully in society, economically, socially and politically (Napoli, 1999).

Historically, Australia’s public policy consideration of communications has been influenced primarily by theories of nation-building and economic development rather than by those of public utility and social inclusion, creating significant consequences of exclusion for many Australians with disability in accessing the telecommunications network.

The existing research and literature in the area of Australian telecommunications policy indicates that there has been a predominant ‘administrative’ approach to policy development prior to and post the 1997 deregulation of the telecommunications sector (Goggin & Newell,

2003, 2004; Bourk, 2000; Jolley, 2003).

For example, Goggin and Newell (2000b, 2003, 2004, 2007) have provided an extensive body of critical communications research in the Australian context. Their collaborative works interrogate Australian telecommunication’s treatment of people with disability up to the late

2000s. In addition to Goggin and Newell’s (2000, 2003) work, a number of other academics and researchers have critically investigated areas of telecommunications access for people with disability in Australia, including Bourk (2000), Jolley (2003), Morsillo (2011), Astbrink (2002) and Hawkins (2011). While most of this research is focused on communication policies prior to Australia’s 2008 ratification of the CRPD, there is a strong argument that public policy has played a significant role in the marginalisation of people with disability when it comes to

39 accessing communications (Bourk, 2000; Fried & Hawkins, 2012; Goggin & Newell, 2000a,

2000b, 2003).

The use of a critical lens to investigate and expose how the development of these communications policies, developed from an ‘administrative’ theoretical approach, is inherently predisposed to entrenching the status quo. As Napoli and Freedland (2016) argue, communications policy decisions are informed and influenced through a public bureaucratic process founded on a tradition of continuity. This dominance of the administrative approach in communications policy development, along with the dominance of ‘incumbency’ in Australia’s telecommunications market, has perpetuated what Bar and Sanding (2008) refer to as ‘inertia and incrementalism’. In other words, policy decisions resulting from an ‘administrative’ approach are likely to continue promoting the status quo. The ‘administrative’ approach relies on a strong empirical data influence from fields such as economics rather than incorporating less tangible qualitative (and more difficult) issues, such as social inclusion and human rights.

Moreover, those communications policies developed from the ‘administrative’ end of the spectrum are unlikely to challenge the power dynamics of existing institutions. It is the emancipatory nature of ‘critical’ policy that challenges institutionalised inequality.

Much of Australia’s recent communications and disability discourse can be found in the public submissions to government reviews and inquiries and the resulting government reports. For example, the Australian Government’s 2009 inquiry into the feasibility of an independent disability equipment program (DBCDE, 2009) and the government’s 2012 review of the National Relay

Service – Review of Access to Telecommunications by People with Disability, Older Australians and People Experiencing Illness (DBCDE, 2012) provide insights into the divergent agendas of policy-makers, industry and disability groups. By critically reviewing and analysing these and other recent Australian communications and disability policies, it is possible to identify a number of

40 common emancipatory narratives and themes, which illuminate the slow and hard-fought advocacy carried out by people with disability, their advocacy organisations and researchers to get disability communications onto the political agenda (Bourk, 2000; Goggin & Newell, 2004, 2003; Hawkins,

2011; Morsillo, 2011).

In the Australian context, a significant body of research exists that interrogates the role of recent neoliberal assumptions in both the positioning of people with disability and the ways in which this neoliberal economic focus has hindered economic, social and community participation for Australians with disability (Ellis, 2008; Soldatic & Meekosha, 2012). This emphasis on neoliberalism, combined with the ‘ableist’ positioning of disability, has influenced much of

Australia’s past communications policy (Bourk, 2000; Goggin & Newell, 2003, 2004; Hawkins,

2011). It has been almost two decades since Goggin and Newell (2000a) called for a new paradigm in Australian telecommunications policy’s consideration of disability.

This research questions whether this ‘new paradigm’ has yet to be realised, investigating and analysing recent Australian communications policy to understand whether it has simply been policy as usual in the intervening years. In their early work, Goggin and Newell (2000) asserted that the telecommunications access needs of Australians with disability had long been overlooked. Adopting a framework of critical disability discourse to evaluate Australian telecommunications policy between the years 1975 and 2000, they illuminated how the government’s economic priorities had subjugated universal access, and asserted that the 1997 neoliberal move from a single, incumbent government-owned telecommunications provider to a market-driven, self-regulatory model of competition had only compounded this lack of access. Assuming that the market will address all needs in telecommunications has been the promise of industry and successive federal governments since telecommunications deregulation in 1997. While industry self-regulation policy proponents argue that public

41 interest is best served by a robust and competitive marketplace. This critical research assumes the position that there is much evidence to suggest that the competitive communications market has failed to deliver for many Australians living with disability (Fried & Hawkins, 2011;

Goggin & Newell, 2000a, 2003, 2007; Hawkins, 2011; Jolley, 2003; Morsillo, 2009, 2011).

In contrast to the incremental changes in Australian communication policy, there have been a number of important social policy initiatives introduced over the last decade that focus on the inclusion of and support for people with disability. The most significant of these are the

2008 ratification of the CRPD, the 2010 whole-of-government adoption of the National

Disability Strategy and the 2013 adoption of the National Disability Insurance Scheme (NDIS).

In each of these policies, there is specific reference to the importance of greater access to information and communication technologies for people living with disability. With a focus on using these technologies as tools to narrow the digital divide, these social policies signpost a new direction for communication policy objectives of greater access and inclusion of people with disability.

Good public policy involves balancing a number of important interests. For telecommunications and disability, these issues include policy and regulation that encourage a robust and competitive industry, address issues of inclusive access and underpin broader social policy goals and objectives (Bourk, 2000; Jaeger, 2012). In order to implement the principles of greater access and inclusion of people with disability foreshadowed in these broader social policies, our communications policy needs to move away from its traditional neoliberal ableist focus – a focus encompassing the traits of Lazarsfeld’s (1941) ‘administrative’ approach – towards a more ‘critical’ approach, challenging the status quo. However, challenging the institutionalised status quo and exposing the shortcomings of an ‘administrative’ policy approach will not in itself ameliorate the barriers faced by many Australians with disability in

42 accessing our digital economy; alternative approaches to communications policy-making are necessary if these persistent barriers are to be dismantled and the principles of access and inclusion are to be realised. Policies that incorporate the ‘emancipatory’ nature of critical theory are necessary to ensure that our digital information and communications society benefits all Australians.

While Goggin and Newell’s (2000) research predated the CRPD by several years, their prescient evaluation of how human rights-centric public policy can ameliorate previously entrenched barriers to telecommunications access highlights the opportunity for this research project to reimagine telecommunications policy inclusive of the principles of access and inclusion enshrined in the CRPD.

Ableism and Disability Oppression

Disability Social oppression stems from a range of inherent societal factors – economic, cultural and political. These factors all play a strong role in the exclusion of people with disability. It is the amelioration of this exclusion that CDT is focused. CDT interrogates the constructs of disability discrimination and social oppression faced by people with disability

(Brown, 2011; Devlin & Pothier, 2006; Goodley, 2007; Kumari-Campbell, 2008; Rocco,

2005). Moreover, CDT illuminates the socio-political concepts of power and privilege inherent in the neoliberal and ableist structures of liberal democracies - questioning the marginalisation of people with disability (Devlin & Pothier, 2006; Rocco, 2005). Thus, oppression of people with disability stems from this control, practice and protection of economic, political and social resources underpinning the neoliberal ableist paradigm. Whether intentional, or so entrenched to be invisible, it is ableism which is the cause of disability oppression in the context of this research: interrogating the ableist communications policies and their impact on Australians with disability.

43 Fiona Kumari-Campbell (2008) asserts “Ableism refers to a network of beliefs, processes, and practices that produces a particular kind of self and body (the corporeal standard) that is projected as the perfect, species-typical and therefore essential and fully human. Disability then is cast as a diminished state of being human”. It is in this ‘corporeal standard’ in which neoliberal ideals oppress those who fail to meet this standard – attitudes, environments and cultural norms which are founded on this standard are inherently oppressive for people with disability. These social structures, designed with little thought of people with disability, create barriers and restrictions for people with disability resulting in the need for accommodations or environmental adaptions. It is when these accommodations are not readily considered or available that the discriminatory nature of ableism becomes oppressive.

It is in this context that the social model of disability becomes a repudiation of the oppressive nature of the medical model. The interrogation of socio-political dimensions of disability found in the social model dispute these socio-political assumptions about people with disability – their capabilities, their needs and ultimately their value as citizens (Charlton, 1998).

The social model, with strong ties to the human rights paradigm, changes the dynamic of disability to that being the result of social attitudes and environmental barriers. Inherent in these disabling attitudes and environmental barriers is a strong ableist presumption.

Conclusion: Neoliberal influence

With its emphasis on a free market, privatisation and deregulation, neoliberalism has underpinned Australian public policy for more than 50 years. The neoliberal economic ideology was well entrenched in Australia by the time of the adoption of the CRPD, gaining influence and acceptance in public policy within both of Australia’s major political parties – the Australian Labor Party (ALP) and the Liberal Party of Australia (LP), beginning in the late

1970s. While the Labor governments of the 1980s and 1990s tried to hold on to their social

44 democracy ideals, the neoliberal economic influence on their public policies – privatisation of the Commonwealth Bank in 1991–96 and Qantas in 1995 – foreshadowed the neoliberal propensity for privatisation of public institutions, deregulation and social program reform, which was to be the underpinning ideology of the later Liberal–National Coalition government of John Howard.

Australia has not embraced the doctrine of neoliberalism alone: the global adoption of neoliberalism has been in full bloom since the late 1970s. This was perhaps seen most prominently during the Reagan presidency in the United States (1981–89) and during the

Thatcher years in the United Kingdom (1979–90). While broadly understood as an economic policy, the hegemony of neoliberalism relates to its social and cultural context. It blends its ideal of market supremacy with conservative touchstones of self-sufficiency, property rights and small government while eschewing liberal tenets of minority rights, social welfare programs and social collectivism (Davis, 2014).

By 2008, this hegemony of neoliberal policy had been normalised in Australia’s telecommunications policy framework. With the deregulation of the telecommunications market in 1997 and the adoption of a competitive pro-market approach, with a strong reliance on the industry self-regulatory approach, the power of the market has been in ascendency within the Australian public policy framework. This neoliberal ascendency and prominence in

Australia’s telecommunications market has operated with little concern for broader social policies focused on promoting communication rights (Pickard, 2007). As Victor Pickard (2007:

118) asserts, ‘These rights include equal access to and participation in communications infrastructure, which requires redistributed resources and other remedies inconsistent with fundamental market imperatives.’

45 However, while neoliberalism is unarguably the dominant Global North economic ideology, defined by its emphasis on the privatisation, deregulation, liberalisation and globalisation of markets, neoliberalism has not been without its critics (Harvey, 2005). One of the key criticisms of this neoliberal ascendency is its subjugation of public interest policies and regulation (Pickard,

2007; Stiglitz, 1989). Furthermore, the recent global economic market failures have exposed the shortcomings of neoliberalism, providing for a more critical interrogation of the acceptance of this hegemonic neoliberal ideology. With its foundational premise of market supremacy exposed during the global financial crisis (GFC), the social and cultural reach of neoliberalism is now being challenged (Couldry, 2010). This narrow focus of the neoliberal economic model highlights one of its great shortcomings: the primacy of the free market over democratic and social outcomes. A telecommunications market founded on this neoliberal ideology has struggled to fulfil broader imperatives of universal access and inclusion.

This shortcoming of neoliberalism in the Australian telecommunications context can be seen through its exclusion of people with disability from the marketplace – with its single- minded focus on the profitable centre of the bell curve of the market at the expense of universal inclusion. It is in this ‘market failure’ that the market – in this context, the telecommunications industry – fails to operate in hard-to-commodify market segments (Pickard, Friedland & Lloyd,

2016). This normalising of the neoliberal approach reinforces the ableist dominance of self- sufficiency. It is in this ableist market that people with disability have been and continue to be excluded from communication participation. In social democracy theory, it is in the context of this scenario of ‘market failure’ that public policy is called upon as the safety net to provide public goods.

Much of the contested ‘economic success’ of a neoliberal market is derived through limited regulation and limited social protections, founded on the belief that a free market will

46 create better outcomes. For Australians with disability, relying on the telecommunications market to meet their needs has been fraught with disappointment and exclusion. The market has often implemented new service equipment, networks and services that have excluded people with disability: incompatible network upgrades and mobile handsets unusable for people with hearing aids; mobile phones with features and functionality inaccessible for people with vision impairment; services that discriminate against Auslan users by bundling the cost of voice, text and data into singular monthly plans.

In this neoliberal policy paradigm, with its power imbalance prioritising free markets and profits over equal access and participation, Australians with disability continue to be excluded.

However, Australia’s adoption of the CRPD, with its explicit calls for equity of access and inclusion for people with disability, creates tensions and threats to the ongoing business-as- usual normalisation of hegemonic neoliberal assumptions. The CRPD’s obligations on nation states to ensure that policies do not exclude people with disability from all aspects of economic, social and community participation challenge the limitations of neoliberalism.

This foundation of critical theory, incorporating the dimensions of both the capabilities approach consideration of social justice and the emancipatory principles enshrined in the human rights promoted in the CRPD, offers a theoretical framework for this research to question and challenge the predominant ableist neoliberal hegemony. It is in this context of possibility provided through the Articles of the CRPD that I employ Nicholas Garnham’s

(1998) maxim: ‘We always need to ask the question why this policy in this form now and in whose interest is it designed.’

47 Chapter 3 Methodological approach

Introduction

As foreshadowed in the introductory section, functionally equivalent access to modern-day communications products and services for many Australians with disability creates tensions at the intersection of multiple policy arenas – economic, social and communications. Australia has recently implemented a number of progressive and wide-reaching social policy initiatives aimed at increasing the economic, social and community participation of people with disability.

The over-arching instrument defining much of the direction and aspirations of this move toward greater inclusion is Australia’s 2008 adoption of the CRPD. However, despite the principles of access and inclusion enshrined in the CRPD, many Australians with disability continue to struggle to get and stay connected to communications networks.

The purpose of this research is to understand how recent Australian communications policy has been influenced by Australia’s 2008 adoption of the CRPD, and how people with disability are being included in the increasingly digitally connected Australian society.

Adopting a multidisciplinary critical approach, I evaluate and analyse three distinct communications policy case studies post Australia’s adoption of the CRPD. This research aims to investigate the extent to which, and how, the principles of access and inclusion enshrined in the CRPD have been applied in these communications policies.

Research approach

I purposefully chose a qualitative approach for this research, employing multiple qualitative research methods: case studies, document analysis and participant observation. Utilising the

48 inductive process of qualitative research enabled my interrogation of the socio-political context of disability communications policy development (Glesne, 2006).

The analysis and evaluation of these three distinct policy issues provides a formal case study research framework, allowing for an in-depth observation of the complexity of multi- stakeholder policy development. By selecting three case studies, I was able to undertake a descriptive and interpretative analysis without being constrained by the more deductive need to test a null hypothesis or infer conclusions from statistical data collection. These case studies provided a wealth of documentary data: government inquiry and review discussion papers; government reports; parliamentary Hansard; public submissions and public commentary including media reports. I use document analysis to interrogate and analyse this broad data-set.

Furthermore, my participation as a policy expert over the period of the policy process investigated provides additional insight to these case studies. I have participated in all three of these case study policy areas in my role as Disability Policy Adviser with the Australian

Communications Consumer Action network (ACCAN). ACCAN is Australia’s leading consumer representative organisation in the telecommunications sector. The organisation is contracted by the government under section 593 of the Telecommunications Act 1997 to represent the interests of telecommunication consumers – both individuals and small business.

The funding for the operation of ACCAN is collected by the government from the

Telecommunications Industry Levy (TIL).

Why these methods?

Case study research has a long and distinguished history in the social sciences, having been a key research method in the cultural anthropology studies of the late nineteenth and early twentieth centuries (Atkinson & Hammersley, 1994; Simons, 2009). It has been increasingly used as a research method in both quantitative and qualitative studies over the past several

49 decades, and as a result has undergone significant methodological development. This has created a methodological approach that is flexible and pragmatic, suitable for studying complex issues across any number of disciplines (Harrison et al., 2017). The case study research method provides an opportunity to study a phenomenon thoroughly in a specific context that is particularly connected to that phenomenon (Yin, 1994). In other words, the use of a case study method in research allows for the investigation of data within a bounded framework. This can be through a single case study or by investigating multiple case studies concurrently. The use of a multi-case study approach enables the interrogation and evaluation of a broader data-set.

Thus this research, while focusing on communications policy, is able to investigate a wealth of relevant data. Robert Yin (1994) suggests that case studies are particularly well suited to investigation of how and why events and decisions happen as they do. Investigating all aspects of a policy case study provides insights into the purpose, intent and the factors that influence the final policy decisions. Therefore, given that this research qualitatively analyses multiple distinct policy areas using document and participant data, the case study method provides a sound approach for this type of exploratory research (Gagnon, 2009).

Exploratory research is one of two qualitative research approaches that are particularly well suited to the case study approach, the other being what Gagnon (2009) calls ‘raw empirical’ research. Exploratory research in this context involves the study of a subject that is important, but has not previously been researched. It can thus be said that this research falls into the ‘exploratory’ category, in that the subject of study has significance in both terms of emancipatory possibilities and public policy that has not yet been fully examined or interrogated using a CDT framework.

While case studies are widely adopted in both qualitative and quantitative research, a somewhat problematic aspect exists regarding the terminology used. As Harrison and

50 colleagues (2017) point out, it can be unclear whether case study is a ‘method’ or a

‘methodology’. In order to clarify this both for myself as researcher, and for readers of this thesis, I have intentionally adopted Jane Mills’ definition of ‘method’ and ‘methodology’

(Harrison et al., 2017), where methods are the procedures and techniques employed in the study, while methodology is the lens through which the researcher views and makes decisions about the study. As detailed in this chapter, the methods I employ in this cross-case study research are qualitative: descriptive narrative, thematic document analysis and participant observation. The methodology, or lens, through which I investigate the data is critical disability theory and critical communication policy research. This methodological lens is informed by

human rights discourse and the capabilities approach.

The policy area had been addressed both prior to and post Australia’s adoption of the

CRPD; it included distinct areas of communications disability access. In utilising this minimum criterion, the selection process was typical of criterion sampling, which provides an opportunity to select cases that uniquely provide information about a phenomenon that we would otherwise not be able to obtain (Merriam, 1998). Additionally, although this criterion did not determine my selection, I was interested in those case studies that offered valuable data resources, were familiar to me and shared a common point of interest – specifically, the illumination of potential pathways to greater access and inclusion of people with disability. As a disabled researcher and advocate, I take a keen interest in how other jurisdictions have addressed, and continue to address, these same communication policy issues. While this research is solely focused on the

Australian policy landscape, through my international participation on alternative policy options, I have acquired a good understanding of which policies provide people with disability with greater access to communications products and services. My familiarity with the communication policy arena was therefore helpful in the selection process. While a number of policy issues met the criteria – for example, the USO and digital inclusion – it was these three

51 that met all criteria while also being policy issues with which I was familiar and that provided a wealth of potential research data. Thus I chose to limit the number of case studies to these three.

While it is possible that including more case studies could have provided a broader view of the way disability is positioned and included in Australian communication policy, there is a strong argument for limiting the number of case studies in a multi-case study approach, as it requires the researcher to drill down into the data, focusing on the context and history of the phenomenon in order to make sense of the comparisons across each of the selected case studies

(Tilly, 1984). While the three case studies selected for this research are independently informative on a specific communication policy area, their cross-policy findings exemplify the value of a cross-case study approach.

Additionally, while each of these case studies is limited to the evaluation of a specific communications policy area, the study allows for an extrapolation, or transferability, of the study’s findings to other communications policy areas. Each of the selected case studies investigates current Australian communications public policy across areas of network access, equipment access and information access by people with disability. The findings common across all three case studies with regard to the adoption and implementation of the principles of anti-discrimination, access and inclusion are likely to be common to other communications public policy related to disability access.

Overview of the Research data collection.

As indicated earlier, this is a multi-method study utilising document analysis, thematic coding and participant observation. The primary areas of investigation in this research are the three communication policy case studies, with the primary source of data consisting of both documents and my own participant observations in these policy arenas.

52 Thus, it is important to identify the type of documents used and how these documents were selected and accessed. O’Leary states that there are three primary types of documents which are used in research; public records, personal documents and physical evidence

(O’Leary, 2014). For this project the data sources were documents from what O’Leary would classify as Public records.

The selection process involved a systematic review of various policies interrogated in each of the three case-studies. For example, with the NRS case study, there were three specific policy processes that I evaluated, the 2006 NRS contract, the 2013 NRS contract and the 2019

NRS contract. For each of these policy processes I mapped the timeframe for each discrete process and identified the documents associated with each. This procedure of policy process mapping was undertaken for each of the three case-studies. With this map I was then able to identify the various stakeholders as a way to identify what documents were produced from each.

The process of gathering the documents was undertaken firstly through online research which allowed me to assemble those documents that were publicly available. This included searching government websites, parliamentary website, consumer and disability organisations websites and industry websites. After the initial review of this first round of documents I was then able to identify documents that had been referenced in these documents which were not in this initial collection. Further online investigation was then undertaken, reviewing archives, the National Library of Australia holdings and also searching archived resources on Wayback.

This second round of collection proved to be beneficial in gathering documents from the earlier

Government’s agencies. The final process for collecting the documents used for this research was tapping into my connections through my role as Disability Policy Adviser with ACCAN.

53 This proved to be fruitful in gaining access to a small number of documents which had not been in the public domain.

The number of utilised documents for each of the case studies was considerable, including multiple Government documents – discussion papers, research reports, media releases and consultation outcome reports. Similarly, the number of public submission documents associated with the various consultations was considerable, for example there were more than 60 submissions to the Governments review of ‘Access to Telecommunications

Services by People with Disability, Older Australians and People Experiencing Illness; Further research documents included policy positions and Parliamentary Hansard documents.

In the process of selecting and collating these documents I employed O’Leary’s 8-step process to collect, collate and verify the value of the documents:

1. Gather relevant texts.

2. Develop an organization and management scheme.

3. Make copies of the originals for annotation.

4. Assess authenticity of documents.

5. Explore document’s agenda, biases.

6. Explore background information (e.g., tone, style, purpose).

7. Ask questions about document e.g., who produced it? Why? When? Type of data?

8. Explore content.(O’Leary, 2014)

Participant Observer data sources

In addition to the document analysis I also utilised my data collection as a participant in much of the policy areas in each of the three case studies. For example, in my role as Disability Policy

54 Adviser with ACCAN, I was involved in community consultations, discussions and meetings with multiple stakeholders and also in drafting the submissions that ACCAN made to various public consultations.

As a researcher in this policy area I was cognizant of the potential bias this might have in my evaluation of the case studies. As such the data related to my participant observation was confined to factual recordings from meetings and discussions with stakeholders. These meetings and discussions that I was involved in covered the range of different stakeholders including meetings with Government Ministers and their staff, meetings with public servants and bureaucrats, meetings with consumer and disability organisations as well as meetings with individuals.

Key events

As this research is focused on how Australia’s implementation of the CRPD has influenced communications policy, the data sources used have been collected from a number of key events in communications policy over the intervening years since Australia’s 2008 adoption of the

CRPD. In the context of the NRS case study these events have been the public consultation leading up to both the 2013 and 2019 NRS contract requests for tender. This case study also utilised data sources from the policy process leading up to the 2006 NRS contract, as a way to in effect create a starting point from which to evaluate policy change. In the access to equipment case study the key event was the Government’s 2009 public consultation into the

‘Feasibility of an Independent Disability Equipment Program’. Supplementing the data sources evaluated from this consultation was a background of existing communications policy related to disability telecommunications equipment in Australia. The key event in the context of the access to online content case study was the various public consultations related to broadcast services and assistive services.

55 • Australian Government 2008 Access to Electronic Media for the Hearing and Vision Impaired,

• Australian Senate Inquiry into the Broadcasting and Other Legislation Amendment (Deregulation) Bill 2014,

• ACMA 2015 Review of the Television Captioning Standard,

• ACMA Broadcasting Services Act Captioning Regulations review 2016,

• Department of Communications and the Arts 2016 Captioning regulatory framework review.

In each of these public consultations I participated in stakeholder discussion and engagement in my role as Disability Policy Adviser with ACCAN and also researched and developed

ACCANs submissions to these public consultations.

The research is separated into three sections: the three case studies. I evaluate and analyse the documents for each of these case studies, creating a descriptive case study narrative for each of them. The data analysis from this first stage is then used to undertake the thematic coding. In turn, this is used to compare and contrast each of the three case studies to determine which themes are common to all three case studies. The process of data analysis involved multiple and discrete steps within each of the three case studies. First, after the initial collection of the data-set, the documents were grouped by stakeholder type: government, industry, disability advocacy organisations and consumers. During the descriptive document narrative, an initial set of codes was identified. This initial group of codes was found primarily in the high-level concepts within the structure of the content found in the documents. A code can be a phrase or word that exemplifies the meaning of the data and is used to refine the data without losing any of the meaning. These codes were human rights, inclusion, participation, accessibility, affordability, mainstream and equity.

56 In the second stage of the research process, the thematic document analysis, the data were categorised within these codes through an iterative process of review and evaluation. My participant observation notes and reflections were also incorporated into this process to substantiate the thematic analysis. This process identified the significant themes that were explicated throughout the case study narrative and these were used to establish the findings of each case study. It was at this stage, with the case study findings clearly articulated, that the comparison of the findings from each of the three case studies was then reviewed and evaluated.

The findings from each of the case studies and this comparative evaluation provided the rich empirical foundation for the study’s concluding discussion.

Document analysis as a qualitative research method is the thorough and systematic procedure of reviewing, evaluating and interpreting documents in order to elicit meaning, gain understanding, and develop empirical knowledge (Corbin & Strauss, 2008; Rapley, 2007). Adri

Labuschagne (2003) describes the research method as follows: ‘Document analysis yields data

– excerpts, quotations, or entire passages – that are then organised into major themes, categories, and case examples specifically through content analysis.’ I use document analysis as the primary research method in this study, locating, examining and evaluating a wide range of documents from the three case studies. Documents and artefacts are related to the recent public review and development of these communications policies as they pertain to access and participation for people with disability in our increasingly connected digital society. In this research, the meaning of documents – as data – is limited to print material; institutional reports, parliamentary Hansard, public submissions and print media, including hard-copy material and electronic documents.

While the use of documents as data has a long history in qualitative research methodology

(Bowen, 2009), including communications policy research, there are concerns within the media

57 and communications discipline that the use of documents as data is not well articulated (Scott,

1990). Questions and uncertainty about what constitutes ‘documents’ in media and communications research have created distinctions between what constitutes ‘primary’ as opposed to ‘secondary’ document data (Scott, 1990). These distinctions between documents have created much discussion and different interpretations of what documents actually are, in fact redefining research practices for the use of ‘research literature’ and ‘documents’ (Altheide,

1996; Bryman, 2001; Scott, 1990; Syvertsen, 2004).

This document as data distinction assumes that primary sources such as policy documents are used without influence or bias from the researcher, whereas research literature – studies and interpretations of policy documents – are less factual, having been interpreted and influenced by the authoring researcher. A second concern related to the use of documents as data is the way in which the documents are used in research: documents used as ‘source’ data, in which the researcher focuses on the policy statements to determine how the policy process evolves, or documents as ‘data’, in which the researcher analyses and interprets the meaning within the text itself. Thus, it is critical that the use of documents as data in media and communications policy research is defined and articulated clearly in order for the research to be considered ‘rigorous’.

In this research project, I do not make such a clear distinction between the source and

‘value’ of the documents that I utilise. I use documents as both a ‘source’ to provide information about the policy development process and as ‘data’ in an interpretive discourse within the meaning and intent of policy development. The documents thus provide insights in understanding the policy process while also shedding light on the meanings and social constructions attributed to the policy process by different stakeholders attribute. In effect, there is an element of narrative research included in this, illuminating different narratives through

58 the interrogation of different stakeholder interpretations of the policy process. By using documents in this way, I am able to determine and explain the policy process and then identify various determinants behind the policy outcomes, using documents as source material to establish theory (Scott, 1990). In my utilisation of both document as ‘source’ and document as

‘text’, I have been able to evaluate how the social construction and textual discourse impact the development of individual instruments within a broader context of communications and disability policy.

To claim or assert that my use of policy documents as social artefacts untouched by my research aims would be disingenuous. The critical position that this research assumes with its underpinning ‘emancipatory’ foundation inherently determines that there needs to be reflexive

‘interpretation’ of these documents, both policy and research. While the overarching method of this research is document analysis, the method by which the data is viewed, reviewed, classified and ultimately interpreted is thematic analysis. Thematic analysis is the interpretation of common occurrences within the data that can be organised into categories or themes (Braun

& Clarke, 2006). This method of theme identification – the way in which the interpretation of data can be organised and understood (Attride-Stirling, 2001; Boyatzis, 1998; Braun & Clarke,

2006; Holloway & Todres, 2003) – is common to many qualitative research methods. However, using thematic analysis also raises the issue of researcher influence – of which themes inherently appear in the data without the researcher’s involvement, something that is potentially at odds with the premise of qualitative research.

While quantitative research is a calculus of empirical data, quantifying and reporting on facts and statistics, qualitative research is by its definition interpretive. Thus it is necessary for the qualitative researcher to understand how their decisions impact on the interpretation of the data. Furthermore, the theoretical framework and methods that qualitative researchers employ

59 need to be capable of answering the researcher’s questions. They should therefore be understood as the researcher’s decision and acknowledged as such in the research report

(Attride-Stirling, 2001; Braun & Clarke, 2006). In order to answer Jennifer Mason’s question for qualitative researchers, ‘What is the nature of the phenomena or entities, or social “reality” that I wish to investigate?’ (Mason, 2018), my thematic analysis of documents in this research is not encompassed by a specific theory, but is rather mobilised as a constructivist method, observing and interpreting the positioning of disability and communications from multiple stakeholders within the public policy discourse.

My process of thematic analysis began with the review, sorting, evaluation and iterative categorising of the documents. This process was a manual step-by-step procedure for each of the three case studies. Whilst this was a somewhat laborious process, I felt that I had a more controlled engagement with the data. Another reason for this manual process was my reluctance to spend time investigating the accessibility of research software options and learning how to use a software package that may have been compatible with my screen reading software.

The first step after the selection of the available and appropriate documents was to organise the documents by stakeholder group. This allowed me to create distinct stakeholder maps for the development of categories and themes. This also allowed me to familiarise myself with the data within the context of each stakeholder group (Braun & Clarke, 2006). This was important in order for me to interpret the various position and narrative of each of the stakeholder groups.

The subsequent analysis of these categories allowed for the appearance of significant and relevant themes within each of the three case studies. I created an Excel template for each of the stakeholder groups, which was used to record the important data points – phrases, words,

60 references – related to the various themes that were present in each of the stakeholder group documents. As these themes were identified within a case study, they were reviewed and evaluated alongside the themes within the other case studies. It was from this evaluation and identification of themes that each case study section of the thesis was then mapped. Using further evaluation and analysis of the themes across all three case studies provided an opportunity to critically evaluate how the principles of greater access and inclusion enshrined within the Articles of the CRPD had been implemented into recent communications policy.

While participant observation as a research method is traditionally been one of

‘ethnography’ and anthropological study, it is increasingly becoming more broadly adopted in social science research. As a policy expert in the area of disability communication, through my role as Disability Policy Adviser with Australia’s peak communications consumer representative body, ACCAN, I have had opportunities to gain insights into and access to the communications policy process. Such access to the policy process would be difficult for an outside researcher. This involvement as an active stakeholder with an interest as a policy professional and also as a researcher creates both tensions and opportunities.

One tension of participant observation is the inevitable subjectivity of the data collection.

However, as a senior policy expert, my knowledge of both the policy process and the disability communications landscape more broadly provided an objective lens for the data analysis.

Another tension common in participant observer research is the positioning of the researcher as an embedded participant within the group or process being observed. While my activity within the communications policy process has been one of full participation, my role as researcher has not always been apparent. I have discussed my research with a number of stakeholders within this community; my candidature is often mentioned in my bio for any

61 speaking engagement and is also publicly acknowledged within the organisation that I represent as a Disability Policy Adviser.

The opportunity to be included in much of the policy discussion, stakeholder meetings and access to other significant stakeholder groups provided a wealth of ‘insider’ information to help understand the process of policy development. As a participant, I was able to gain a clearer understanding of which stakeholders were ‘policy actors’ and what the varying agendas of the different stakeholders and stakeholder groups were. Importantly, my participation in the policy process increased my awareness of whether I had evaluated all the relevant documents in my document analysis process. This ‘triangulation’ was particularly relevant for maintaining both the integrity of the research and the appearance of researcher objectivity (Eisner, 1991;

Yin, 1994).

Thus, while my own lived experience as a researcher with disability inherently amplifies my sensitivity to disability exclusion and oppression, the deductive process embedded in this research method with its iterative reading and analysis of the data combined with my researcher reflexivity, acted as a counter-balance to any unseen researcher bias or subconscious subjectivity.

Researcher reflexivity is a well employed and acknowledged method of qualitative research. This reflexivity was of critical importance in the analysis of the data collected as a participant observation researcher. Understanding the need to ‘protect’ the data analysis from my own researcher subjectivity I routinely reflected on the interpretation and findings that the data analysis was producing. There exists a growing body of scholarly literature highlighting benefits from researcher reflexivity (Cunliffe, 2003; Johnson & Duberley, 2003; Hibbert,

Sillince, Diefenbach & Cunliffe, 2014). For example, Cunliffe (2011) argues that researcher

62 reflexivity provides a richer and more nuanced interpretation of the data while also interrogating one’s own beliefs (Cunliffe, 2003; Weick, 2002).

Additionally, my extensive experience as a policy expert founded on evidence based policy analysis provided an additional assurance that the data collection and analysis was methodological and rigorous. This research, a CDT analysis of how Australia’s ratification of the CRPD has influenced three distinct disability communication policies, provides an original approach to evaluating disability communications policy. As such I was aware of the criticality of robust data collection and evaluation. The unique position of researcher with disability and disability policy adviser involved in public consultation in these policy areas underpinned my objectivity throughout the data collection and analysis process.

While this research is ‘emancipatory’ in that it investigates the social construction of

Australia’s positioning of people with disability in the communications policy paradigm, it does not involve any participant research with people with disability. My approach to the issues and questions posed by this emancipatory research approach is that, as a researcher with disability, I have a legitimate perspective without being entirely detached from the realities of oppression in the everyday for people with disability.

63 Chapter 4 Human rights discourse

Introduction

This chapter provides a discussion of the human rights approach to disability and communications policy in Australia. It discusses the intersection of the right to communicate and the right to economic, social and community participation.

The right to communicate has been a fundamental aspect of human rights since its inclusion in Article 19 of the Universal Declaration of Human Rights (UDHR) in 1948. This right to communicate has more recently been reaffirmed for people with disability specifically in Article 21 of the CRPD. While the right to communicate is significant in its own right, the roll-on effects of enabling this human right provides opportunities for the realisation of other human rights (Lundy, 2007). However, for many people with disability the right to communicate remains an aspiration. As illuminated through this research, for many people the full realisation of this human right is enabled through accessible digital channels.

Disability rights have recently taken on a new priority, both domestically and internationally. This has been particularly evident in the discourse around digital technologies and communication access (Gauntlett, 2009). Increasingly, access to a number of digital communication channels is essential for everyday tasks. This is no less important for people with disability (Goggin, 2017). Indeed, for many people with disability, digital technology is the mechanism by which communication is enabled. Thus the interdependencies between human rights, communication and technology are critical aspects of my research.

I begin by reviewing and evaluating the antecedent international human rights instruments that predicated and ultimately invoked the United Nations development and

64 adoption of the CRPD in 2006. I discuss how these antecedent international human rights instruments fell short in promoting inclusive protections and non-discrimination for people with disability. It is in this interrogation of the shortcomings of earlier human rights instruments that the need to develop a specific disability rights-based international instrument becomes clear. I then discuss the significance of the CRPD in the context of this research, drawing out the specific Articles within the CRPD that promote and protect human rights access to information, digital technologies and converged new media for people with disability. I also include discussion of the existing human rights and disability protections that are in place in

Australia, and evaluate how they intersect with Australian telecommunications policy, specifically those policies designed to support and protect the inclusion of Australians with disability in today’s telecommunications environment. The chapter concludes by discussing where future communications policy development and implementation can adopt the inclusive principles of equal access explicated in the Articles of the CRPD, in particular in the context of the Australian communications policies interrogated in this research.

As stated, the CRPD clearly sets forth the principles of access and inclusion upon which this research is predicated – principles that need to be promoted and protected in communications policy in order for Australians with disability to enjoy their human rights of communication, equal access and inclusion. The inclusion of people with disability in the

Australian telecommunications marketplace, as analysed in later chapters, has had a long and contested history. The principles laid out in the Articles of the CRPD provide not only an opportunity but also an obligation for policy-makers to ensure that future communications policy is inclusive of people with disability. While the general principles included in the CRPD provide broad anti-discrimination protections, it is the specific reference to communications access in a number of the Articles that is particularly relevant to this research. For example,

Article 9 – Accessibility, Article 21 – Freedom of expression and opinion, and access to

65 information, and Article 30 – Participation in cultural life, recreation, leisure and sport, set out obligations of non-discrimination in the areas of communication access. However, in order to undertake a rigorous evaluation of recent Australian communications policies and disability from the framework of the CRPD, it is necessary to illuminate the positioning of communications disability access within the pre-existing canon of human rights instruments

(Skarstad & Stein, 2018).

Modern-day human rights

While codifying the rights of all people, modern day human rights, beginning with the 1948

UDHR, failed to fully promote and protect the rights of people with disability. While universal in intent, specific acknowledgement and inclusion of people with disability was routinely omitted even while there was specific reference to other marginalised groups. For example,

Article 2 of the UDHR codifies that all people are entitled to the same human rights, stating:

Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

It was only through acknowledging the shortcomings of these antecedent international human rights instruments for disability that it became possible for the CRPD to be adopted into the canon of existing human rights instruments.

History of human rights

With a long history of theories of justice, dating as far back as Aristotle in 300 BCE, the ideal of human rights has developed over time, perhaps most significantly influenced by the philosophies and writings of the seventh-century English philosopher John Locke, who asserted that that, as humans, we all have natural rights to life, liberty and property. Locke’s theory prescribed that until forming a ‘social contract’ with others, people have the right to

66 self-govern. The adoption of a ‘social contract’ allows for the enjoyment of natural rights through the agreement to allow others to enjoy their own freedoms (Simmons, 1992). This understanding of human rights presupposes a moral order, independent of government, and applying to all humans. Locke (1688) outlined this philosophy in his Two Treatises of

Government, claiming that individuals possess natural rights and that these rights are independent of any political endorsement. Locke’s philosophy argued that the sole role of government was to protect the natural rights of individuals. Thus, according to Locke’s theory, legitimate authority should be based on a human rights foundation.

The eighteenth-century German philosopher Emanuel Kant further developed the principles of what is now known as the doctrine of human rights through his moral philosophy.

In his ideals of equality and the moral autonomy of rational human beings, these ideals of natural rights, moral autonomy, human dignity and equality have become embedded in an increasingly potent worldview of international human rights. It is this history of inalienable rights and equality that has contributed to the development of the United Nations and its international legitimacy.

In the aftermath of World War II, and in response to the atrocities against humanity that occurred, the United Nations undertook to establish an international foundation of justice and rights for all people. This endeavour was underpinned by a long history of theoretical considerations and theories of natural law. Central to this are questions of what it means to be human: What are the rights and responsibilities that all of us carry as members of humanity?

What are the fundamental rights needed to be able to live a good life? The outcome of this endeavour was the development of the international Bill of Human Rights – a trio of treaties consisting of the Universal Declaration of Human Rights (UDHR), adopted in 1948; the

International Covenant on Economic, Social and Cultural Rights (ICESCR) adopted in 1966,

67 and the International Covenant on Civil and Political Rights (ICCPR) and its two Optional

Protocols, adopted in 1966.

Table 4.1: International Bill of Human Rights Treaties

Year Treaty Year enacted adopted

1948 Universal Declaration on Human Rights 1948

1966 International Covenant on Civil and Political Rights 1976

1966 International Covenant on Economic, Social and Cultural 1976 Rights

The United Nations international human rights treaties are founded on this theory of the doctrine of human rights. Moreover, while modern-day human rights are based on the ideal of natural rights, they in fact go further by supporting and protecting the rights of the individual.

However, while international in scope and legally enforceable, they often require the support of domestic legislation in order to be fully realised.

International human rights scholar Jack Donnelly describes this as the universal declaration model. It includes several defining characteristics, with human rights: being used to implement certain values; belonging to individuals and not groups; being indivisible; and being implemented by nation states. Donnelly argues that the principles that underpin this universal declaration model support the fundamental intent of the UDHR, and that the UDHR has formalised human rights internationally. Moreover, Donnelly asserts that human rights, while being inalienable, are dependent on government support through the implementation of domestic legislation and social policies.

Enshrined in the UDHR is the fundamental ideal of equality and respect for all people.

This ideal is the basis of social justice. Donnelly (2003) asserts that a socially just society

68 ensures that the distribution of goods and services is equitable and it is the role of government to ensure that all of its citizens have access to a fair and just level of economic opportunity.

While Donnelly’s universal declaration model offers an ideal of opportunity for all, his assertion that human rights ascribed to groups of citizens is not necessary, based on the grounds that it is unclear which groups should be given particular rights, does not acknowledge the profound discrimination that various groups within society face.

Donnelly’s universal declaration model and his egalitarian approach are at odds with the foundational argument of the capabilities approach. Both Amartya Sen and Martha Nussbaum assert that for people with disability to be able to achieve the same capabilities and functioning as those without disability, greater resources may need to be provided. Thus, when we consider this in the context of human rights, people with disability – like other marginalised groups – will need specific group protections that promote and protect their human rights.

Moreover, in contrast to Donnelly’s argument, this ongoing and often systemic discrimination against minority groups has been acknowledged by the United Nations. In response to this discrimination, the United Nations has drafted and adopted a number of international treaties to protect these specific marginalised groups that, while protected in theory under the auspice of the three core universal human rights treaties, continue to face discrimination – specifically racial minorities, women, children and migrants. In acknowledging the need for greater protection for these groups, the United Nations adopted the following key instruments, which provide greater protection: the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD); the Convention on the

Elimination of All Forms of Discrimination Against Women (CEDAW); the Convention on the Rights of the Child (CRC); and the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families (ICPMW) respectively.

69 Table 4.2: Group rights treaties

Year adopted Treaty Year implemented

1965 International Convention on the Elimination of All 1969 Forms of Racial Discrimination

1979 Convention on the Elimination of All Forms of 1981 Discrimination against Women

1989 Convention on the Rights of the Child 1990

1990 International Convention on the Protection of the 2003 Rights of All Migrant Workers and Members of their Families

While the United Nations human rights paradigm is broadly supported internationally, contemporary human rights discourse has become an increasingly contested space. Tensions exist across a number of rights discourses, with the universality of individual rights dependent on sovereign state implementation, as argued by Donnelly (2003); global north ideals unsuited for global south cultures and needs, as questioned by Meekosha and Soldatic (2011); neoliberal economic theories of sufficiency or theories of distributive justice, as argued by Samuel Moyn; and the tension inherent in the prioritisation and implementation of rights in a domestic context, as articulated by Caroline Harnacke (2013).. These questions of legitimacy, necessity and efficacy of human rights have been widely contested in both theory and practice. The primary tension comes from the international foundation of rights and their efficacy, which is dependent on domestic adoption and implementation under a multiplicity of programs, in diverse social contexts and political environments (Erni, 2019; Gregg, 2012; Moyn, 2018).

Inherent in the liberal democracy conception of human rights is the assumption that implementation will enable all citizens to access freedom and protection from threats to their humanity. This has not been borne out for many people, particularly those with disability. For example, in the Australian context, while Australia has a human rights body – the Australian

70 Human Rights Commission – with legislative authority to promote Australian anti- discrimination policies, including investigating possible contraventions of these policies,

Australia does not have a national Bill of Rights underpinning the support and comprehensive protection of the human rights of individual citizens. For this reason, issues of systemic discrimination continue to exist against Australians with disability (Australian Human Rights

Commission, 2019; Byrnes, Charlesworth & McKinnon, 2007).

Samuel Moyn (2018) argues that while human rights have provided greater opportunity for personhood and strived to eradicate discrimination based on difference; this has come with little thought to distributive equality. Furthermore, Moyn mirrors the rise of human rights alongside an ascendency of the neoliberal political economy of the latter half of the twentieth century, asserting that there has been a neoliberal economic dominance that has changed the focus of distributive equality to one of sufficiency. Moyn claims that the historical focus on first-generation rights has been the predominant focus of the neoliberal economic worldview.

Meekosha and Soldatic (2012) similarly suggest that the neoliberal ascendency of the

1990s in Australia transformed the right to social support to a ‘mutual obligation’ paradigm, in which the state provided the minimum in terms of social welfare support and there was an obligation on recipients to ‘work for the dole’. This tension between neoliberal economic policies and nations’ adoption of multiple human rights instruments poses significant complications for public policy. A further tension that of adoption versus implementation, can be gleaned from Meekosha and Soldatic’s (2011) argument that in fact the transition to a more human rights-oriented positioning of disability has weakened the role of other emancipatory approaches to equality, thus questioning the expectations placed on human rights to single- handedly resolve issues of discrimination, social inclusion and empowerment. They suggest that this results in tension when nation states are both implementers and defenders of human

71 rights while at the same time ignoring or even violating the human rights instruments to which they are signatories.

This contested nature of human rights in the context of disability can be seen in the ongoing struggles faced by people with disability in ameliorating the everyday barriers of their respective communities. An example from the Australian experience – discussed in Chapter 7 of this thesis – involves the implementation of audio description on free-to-air television.

Although Australia was an early signatory and adopter of the CRPD and its Optional Protocol, successive Australian governments have been steadfast in their unwillingness to encourage or mandate a principle aspect of Article 30 – Participation in cultural life, recreation, leisure and sport – that is, functionally equivalent access to television for people who are blind or vision impaired.

Reflecting on Martha Nussbaum’s disability capabilities approach, we see Moyn’s

(2018) egalitarian ideal of distributive equality encompassed in Nussbaum’s capabilities, providing the opportunities for realisation of both first- and second-generation human rights, suggesting a more holistic disability rights approach. Incorporating Nussbaum’s approach, and in contrast to Donnelly’s assertion that it is a more effective implementation of the UDHR, not group rights, that is needed, Michael Stein (2007) argues that there has been a need for specific protection of minority groups as a fundamental aspect of his disability human rights paradigm.

Specifically, Stein argues that the limitations of the human rights instruments existing prior to the CRPD, while being implicitly applicable to people with disability, did not sufficiently protect their rights. For example, while the UDHR provides universal human rights protections to all, as explicitly set out in Article 2, the UDHR does not specifically include mention of the protection of rights for people with disability.

72 Stein (2007) also points out that, while in addition to the seven core human rights treaties there are a number of additional human rights instruments that endorse the protection of people with disability, these instruments do not have the legally binding ‘hard’ law authority of the seven core international human rights treaties. While raising awareness of how people with disability continue to be marginalised and subject to discrimination, they therefore have no enforceable mandate or authority.

Table 4.3: Additional United Nations instruments

Year adopted Declaration

1971 Declaration on the Rights of Mentally Retarded Persons

1975 Declaration on the Rights of Disabled Persons

1981 The International Year of Disabled Persons

1982 World Programmed of Action concerning Disabled Persons

1991 The Principles for the Protection of Persons with Mental Illness and the Improvement of Mental Health Care

1993 Standard Rules on the Equalization of Opportunities for Persons with Disabilities

In order to overcome these shortcomings, Stein’s theory is articulated in his development of the disability human rights paradigm. Foundational to this paradigm is Stein’s claim that, for some marginalised groups including people with disability, discrimination and exclusion deny them enjoyment and protection of their fundamental human rights. It is because of this further exclusion and discrimination towards specific groups of society that these enforceable international responses providing additional protections are required. Stein argues that it is because of this ongoing discrimination that group rights are needed. However, Stein is also clear in his argument for group-based rights that the development and adoption of group-

73 specific human rights instruments is not intended to undermine existing instruments, but rather to provide additional awareness and protection both domestically and internationally. So while those human rights instruments in existence prior to the CRPD – specifically those making up the International Bill of Human Rights – included all people within the envelope of their respective protections and Articles, there continued to be groups within society whose rights were not supported and protected.

As discussed in the earlier section on the social construction of disability, people with disability have struggled to gain their independence and participation in society as equal citizens, unable to enjoy the same inalienable human rights as other members of their communities. Decades of ableist policies, which routinely deprived people with disability of their fundamental human rights, their independence and their dignity, continued unchanged and unchallenged at the same time that the United Nations International Bill of Human Rights was in place across the world. It was these limitations of the existing human rights instruments that foreshadowed a need for a disability-specific convention. In 2001, the United Nations commissioned the drafting of the Articles that would ultimately become the CRPD. Of particular significance in this process was the involvement of people with disability in the development process. In addition to the governmental ad hoc committees, there were over 70 international civil society organisations that participated in the negotiations in development of the Convention (Kayess & French, 2008).

One of the key outcomes of this inclusion of people with disability in the development of the CRPD was the fundamental objective in the drafting of the CRPD to acknowledge the move away from the historic positioning of disability – that of a ‘medicalised’ charity model – to the ‘social’ model of disability. As discussed in the previous chapter, the social model of disability, developed in the latter part of the twentieth century by UK disability advocates,

74 challenges the medicalised positioning of disability as being a result of a deficit in the person and attributes disability to being the result of environmental and attitudinal barriers. The CRPD, with its foundation in the social model, explicates this view in its Preamble: Clause (e)

Recognizing that disability is an evolving concept and that disability results from the interaction between persons with impairments and attitudinal and environmental barriers that hinders their full and effective participation in society on an equal basis with others.

Thus, in unpacking this social model understanding of disability, it is evident that for most Australians the possibility of ‘disablement’ is likely. Our ever-increasing life expectancy and the myriad impairments that are exacerbated by ageing mean that most people will at some point experience many of the environmental barriers that many people with disability encounter in their daily lives.

In fact as the CRPD focused on expounding existing human rights in a context of greater inclusion for people with disability, an interesting and increasingly pertinent understanding of disability became clear: that of the ‘human rights’ model of disability (Degener, 2016). As discussed previously, there has been a growing debate about the appropriateness of the ‘social’ model of disability, questioning its singular focus on the disabling barriers of society – attitudinal and environmental – with little acknowledgement of the often significant physical and psychological impacts of impairment on people’s lives. However, this social model view of disability being caused through and as a result of barriers created through societal attitudes and the physical environment allows for a rethinking of how people with impairment can be included if and when we think of how to dismantle these barriers – a new framework of inclusion, a human rights model of disability. While this new ‘human rights’ positioning of disability refocuses the personhood of people with disability, it does not create new human rights. This new positioning instead expounds on existing human rights, explicating the

75 interaction between implementation and opportunity (Quinn, Crowther & Recaps, 2017).

Furthermore, as the CRPD entwines both first- and second-generation human rights within its

Articles, there is a greater opportunity for tangible implementation of rights and the opportunities of self-determination, independence and participation in all aspects of community – participation from which people with disability have predominately been excluded.

As discussed earlier, there are arguments both for and against the provision of treaties focusing on group rights as opposed to individual rights. However, as Stein (2007) argues, it is important to acknowledge that the Articles making up the CRPD do not in fact create any additional rights; rather, they expound on how existing rights can be interpreted and implemented to protect and support the rights of people with disability while ensuring that people with disability do not suffer ongoing discrimination and exclusion. This clarification is also clearly outlined in the United Nations Handbook for Parliamentarians on the Convention on the Rights of Persons with Disabilities, which states:

It does not recognize any new human rights of persons with disabilities, but rather clarifies the obligations and legal duties of States to respect and ensure the equal enjoyment of all human rights by all persons with disabilities. The Convention identifies areas where adaptations have to be made so that persons with disabilities can exercise their rights and areas where the protection of their rights must be reinforced because those rights have been routinely violated. It also establishes universal minimum standards that should apply to everyone and that provide the basis for a coherent framework for action. (United Nations, 2007)

Fundamental to the efficacy of these protections is the underpinning framework of how the

CRPD positions disability as explicated in Clause 5 of the CRPD Preamble:

Recognizing that disability is an evolving concept and that disability results from the interaction between persons with impairments and attitudinal and

76 environmental barriers that hinders their full and effective participation in society on an equal basis with others.

Human Rights Law Professor Gerard Quinn asserts that it is only through this Human Rights framing of disability that it is possible for people with disability to be full and equal human subjects (Mackay, 2007). Explicit in the CRPD, therefore, is the fundamental acknowledgement that people with disability are entitled to the full and equal enjoyment of their human rights in all aspects of life – including the right to equal opportunity. In the context of this research, it is this right to equal opportunity that is being investigated, through an evaluation of how current Australian telecommunications policies protect and support the opportunity of people with disability to benefit from our ubiquitous networked society.

Human rights and access to communications

How, then, do the principles of access and inclusion that underpin the CRPD relate to this research? Article 1 states that a fundamental goal of the Convention is ‘to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity’.

The CRPD was adopted by the UN General Assembly on 13 December 2006 and came into force on 3 May 2008 after it had been ratified by 20 countries. Australia was an early signatory, ratifying the CRPD in July 2008 and ratifying its Optional Protocol in 2009.

The CRPD is explicitly built on eight rights-based principles, which are enunciated in

Article 3 (United Nations, 2006a):

1 respect for inherent dignity, individual autonomy including the freedom to make one’s own choices, and independence of persons

2 non-discrimination

77 3 full and effective participation and inclusion in society

4 respect for difference and acceptance of persons with disabilities as part of human diversity and humanity

5 equality of opportunity

6 accessibility

7 equality between men and women

8 respect for the evolving capacities of children with disabilities and respect for the right of children with disabilities to preserve their identities.

Explicit in the Articles of the CRPD is the principle of equal access and opportunity. The CRPD incorporates both first- and second-generation universal human rights, civil and political rights, and economic, social and cultural rights. Through this incorporation, the CRPD provides the necessary mechanism to overcome the long-standing and systemic discrimination against and exclusion of people with disability from economic, social and cultural participation (Quinn,

2017). It was the formation of the CRPD, with its foundational inclusion of people with disability, their advocacy organisations and human rights legal scholars, that provided a clear understanding of the barriers and discrimination long experienced by people with disability.

This illumination of the barriers made it possible to clearly articulate what solutions were needed in drafting the CRPD. This is nowhere more apparent than in the clauses of Article 4, which clearly map out the actions required when implementing the CRPD to ensure that the barriers and discrimination are ameliorated.

Article 4 outlines the obligations of States Parties with regard to implementation of the principles contained within its substantive clauses. In Article 4, there is a clear mandate for governments to review existing policies and ensure that new policies do not impinge on the capacity of people with disability to enjoy all their human rights to the full. It is these obligations on States Parties that provide the benchmark from which to measure the efficacy

78 and adherence to the principles of access and inclusion in Australian communications policy.

For example, the following clauses under Article 4 1 are all pertinent to the evaluation and analysis of communications policies undertaken in this research:

(a) To adopt all appropriate legislative, administrative and other measures for the implementation of the rights recognized in the present Convention

(b) To take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices that constitute discrimination against persons with disabilities

(c) To take into account the protection and promotion of the human rights of persons with disabilities in all policies and programs

(d) To refrain from engaging in any act or practice that is inconsistent with the present Convention and to ensure that public authorities and institutions act in conformity with the present Convention

(e) To take all appropriate measures to eliminate discrimination on the basis of disability by any person, organization or private enterprise

(f) To undertake or promote research and development of universally designed goods, services, equipment and facilities, as defined in Article 2 of the present Convention, which should require the minimum possible adaptation and the least cost to meet the specific needs of a person with disabilities, to promote their availability and use, and to promote universal design in the development of standards and guidelines;

(g) To undertake or promote research and development of, and to promote the availability and use of new technologies, including information and communications technologies, mobility aids, devices and assistive technologies, suitable for persons with disabilities, giving priority to technologies at an affordable cost

The human rights explicit in the CRPD that are of most relevance to this research are predominately second-generation rights – those focused on equal opportunity (Stein, 2007). It is these principles of access and inclusion, fundamental to effective communications and digital

79 networks, that are specifically called out in a number of the CRPD Articles; when implemented, these can provide people with disability with the same opportunities and benefits as others when connected to our increasingly networked society. Benefits afforded through equal access to participation in education, employment, cultural, political and community life are all made possible through access to digital communications services. By incorporating these specific references to information access – access to both existing and new technologies via mainstream and assistive solutions – the CRPD provides the benchmark for this research to evaluate how participation and inclusion are implemented in the Australian telecommunications policies being evaluated.

The CRPD preamble foreshadows the principles of access and inclusion expounded in the Articles that I utilise in the evaluation of the communications policies analysed in this research – articles that specifically outline the responsibilities and obligations of States Parties when implementing the CRPD within their national legislative framework. For example,

Clause (v) recognises the importance of accessibility to the physical, social, economic and cultural environment, to health and education and to information and communication, in enabling persons with disabilities to fully enjoy all human rights and fundamental freedoms.

In understanding how these principles of access and inclusion enshrined in the

CRPD can promote and support the human rights of persons with disabilities, we need to understand what the barriers are. In the context of this research, the barriers to participation for people with disability in Australian digital society specifically involve barriers to access to telephony networks, telephony equipment and online audio-visual content. These barriers are multidimensional – they encompass access, affordability, digital capability and support.

Successive Australian governments have acknowledged these barriers through myriad reviews, public consultations and policy implementation over many years, including in the decade since

80 the adoption of the CRPD and its Optional Protocol in 2008. This research focuses on this 10- year timeframe, evaluating reviews and public consultations of the National Relay Service, and investigating disability equipment policies and policy activity, and access to audio-visual access services. The Articles of the CRPD that specifically promote the right to communicate are the benchmark used in reviewing and evaluating these communications policies.

While all the Articles in the CRPD promote greater access and participation for people with disability, the following Articles are particularly relevant to this research:

Article 9: Accessibility

1. To enable persons with disabilities to live independently and participate fully in all aspects of life, States Parties shall take appropriate measures to ensure to persons with disabilities access, on an equal basis with others, to … information and communications, including information and communications technologies and systems …

These measures, which shall include the identification and

Elimination of obstacles and barriers to accessibility, shall apply to, inter alia:

(b) Information, communications and other services, including electronic services and emergency services.

2. States Parties shall also take appropriate measures:

(g) to promote access for persons with disabilities to new information and communications technologies and systems, including the Internet;

(h) to promote the design, development, production and distribution of accessible information and communications technologies and systems at an early stage, so that these technologies and systems become accessible at minimum cost.

Article 21 Freedom of expression and opinion, and access to information

States Parties shall take all appropriate measures to ensure that persons with

81 disabilities can exercise the right to freedom of expression and opinion, including the freedom to seek, receive and impart information and ideas on an equal basis with others and through all forms of communication of their choice, as defined in Article 2 of the present Convention, including by:

(a) Providing information intended for the general public to persons with disabilities in accessible formats and technologies appropriate to different kinds of disabilities in a timely manner and without additional cost

…

(c) Urging private entities that provide services to the general public, including through the Internet, to provide information and services in accessible and usable formats for persons with disabilities;

(d) Encouraging the mass media, including providers of information through the Internet, to make their services accessible to persons with disabilities;

(e) Recognizing and promoting the use of sign languages.

Article 30 Participation in cultural life, recreation, leisure and sport

1. States Parties recognize the right of persons with disabilities to take part on an equal basis with others in cultural life, and shall take all appropriate measures to ensure that persons with disabilities:

(a) Enjoy access to cultural materials in accessible formats;

(b) Enjoy access to television programs, films, theatre and other cultural activities, in accessible formats …

It is these obligations explicated in the Clauses of Article 9 that guide the critical disability discourse in evaluating how the positioning of disability in our public sphere has influenced the evolution of the National Relay Service. Reviewing the post-CRPD NRS contract consultations and respective implementation against these clauses illuminates both the efficacy of the policy implementation and the changing economic influences on policy outcomes.

Similarly, it is the obligations expounded in the clauses of Article 30 that provide a human

82 rights model of disability within which to evaluate the state of inclusion in post-CRPD policy frameworks underpinning broadcast and streaming online audio-visual content.

Furthermore, the Clauses of Article 21 provide guidance in evaluating these policies from a human rights model of disability, providing a critical disability framework from which to reimagine access and inclusion in communications policy.

History of Australian human rights and disability

Australia has long been an influential participant at the international level, promoting rights and protections for all people through its participation in the United Nations. Australia was one of the founding countries of the United Nations in 1945 and was one of the eight countries charged with developing the Universal Declaration on Human Rights in 1948 (‘The Drafters’,

2019). Australia has continued in its support of the United Nations and the principles of human rights incorporated in the organisation’s Declarations and Conventions; it is also a signatory to the majority of them. Moreover, Australian participation within the United Nations framework assisted in the development of the CRPD, continuing this support of human rights through the participation of the Australian Government delegation and the strong participation by

Australian non-government organisations (Small, 2007). Furthermore, Australia’s nominated candidate, Professor R. Ronald McCallum, was elected to the inaugural Committee on the

Convention on the Rights of Persons with Disabilities at the Conference of the States Parties to the Convention on 3 November 2008 (OHCHR, 2008).

It is the 2008 adoption of the CRPD that has provided specific and substantive obligations for Australia to encourage support and protect the human rights of people with disability across all aspects of society. As a signatory to the CRPD, Australia has made both a domestic and an international commitment to advance the inclusion of its citizens with disability in all aspects of economic, social, political and community life. Significant for the positioning of this

83 research within a framework of human rights discourse is the CRPD’s implicit inclusion of people with disability in the broad family of all human beings, thus declaring the unquestionable entitlement of people with disability to the same rights and protections as all people. The CRPD, cognisant that human rights for people with disabilities are dependent on state action, explicitly encourages ‘States Parties’ to progress the principles of inclusion enshrined in its Articles.

In the intervening years since the adoption of the CRPD, Australia has adopted a number of domestic policies and initiatives to provide access and inclusion along with anti- discrimination protections for people with disability. Implicit in these instruments is an expectation that public policy will be inclusive of the needs of people with disability and when the private sector fails to include people with disability, these instruments will be the safety net that ensures all Australians will enjoy full and equal participation in every aspect of life.

Yet, while Australia has been an effective participant in the United Nations, there are questions regarding the efficacy of Australia’s incorporation of a number of these instruments into domestic legislation and everyday implementation of some of the principles of these instruments. The record on human rights in Australia has had a varied past – tensions between overarching principles of protection enshrined in these international instruments and the implementation of domestic policies have been fraught across a number of areas. For example,

Australia’s complex approach to refugees and Indigenous peoples has been widely criticised at the international level. Additionally, while Australia has a Parliamentary Joint Committee on

Human Rights, with a purview to evaluate new legislation for human rights compatibility, its recommendations are routinely ignored or not published until after the legislation has been enacted (Williams & Reynolds, 2015).

84 Furthermore, in their 2008 article, ‘Out of Darkness into Light? Introducing the

Convention on the Rights of Persons with Disabilities’, Rosemary Kayess and Phillip French

(2008) undertake a critical examination of the Articles of the CRPD. This examination highlights a number of areas in which the Articles of the CRPD fall short in fully protecting the rights of people with disability. For example, Kayess and Phillip assert that Article 5 –

Equality and non-discrimination, while being a fundamental aspect of the CRPD, is in fact limited in its capability to ensure that States Parties guarantee rights through the provision of accommodations for people with disability. The Article’s caveat of disproportionate or undue burden relieves States Parties of their obligation to provide accommodations when they deem it too costly to do so. This same caveat is found in the Australian Disability Discrimination Act

1992 (DDA). It is often used to relieve disability discrimination complaint respondents from removing barriers to access and inclusion for people with disability, by claiming that providing the necessary accommodations would cause undue hardship. This defence is often claimed under the cloak of ‘commercial in confidence’, thus denying the complainant the right of rebuttal.

Australian Disability Advocacy

As discussed previously, Australia developed a strong disability rights movement in the later decades of the twentieth century. The strong voices of people with disability have increased our public awareness of disability, resulting in a number of touchstones in the progress of disability rights. In 1986, the Australian parliament adopted the Human Rights and Equal

Opportunity Commission Act 1986, now known as the Australian Human Rights Commission

Act 1986. Initially, the only reference to disability in the Act was by way of the United Nations

Declarations – the Declaration on the Rights of Mentally Retarded Persons (1971) and the

Declaration on the Rights of Disabled Persons (1975) – which specifically identified economic,

85 social, political and civil rights for people with disability. In 1992, after a number of public consultations and parliamentary inquiries, the Australian parliament adopted the DDA, providing all Australians with protection from discrimination based on disability in the areas of employment, education, access to public premises, access to the provision of goods and services, and access to accommodation. While the DDA does not have specific provisions with regard to access to telecommunications, it facilitated two watershed cases focusing on access to communications for people with disability. While both cases occurred prior to Australia’s adoption of the CRPD, they highlight how the predominant ableist consideration of communications, in both policy and practice, excluded people with disability from the benefits of connectivity. In both cases, the recalcitrance of the defendants speaks to the positioning of people with disability as ‘unwanted and undeserving’ customers.

In 1995, a complaint was brought against Telstra under the DDA in Scott v Telstra, claiming that Telstra’s failure to provide teletypewriters (TTYs) to Deaf consumers constituted disability discrimination. This is discussed in depth in Chapter 6. The second DDA case was

Maguire v Sydney Olympic Games Organising Committee (SOGOC), in which the complainant, Bruce Maguire, a man who is blind, charged that the inaccessibility of the

SOCOG website was a case of disability discrimination.

Whilst both of these landmark disability rights legal cases were significant in highlighting barriers to access to communications technology, they also highlighted significant broader issues of exclusion. It is in this context that we see how these cases reinforced the need for the group-based human rights protections that were to become critical in the development and adoption of the CRPD. Moreover, these landmark cases also highlight the essentiality of access to communications technology in enabling the ‘functionings’ and ‘capabilities’. For example, the significance of the 2000 Maguire v. SOGOC case not only exemplifies the need for access

86 to information technologies but it also exemplifies the broader capabilities that this functioning provides. With access to the online information about the Sydney Olympics, people with disability would have had opportunities to participate in broader activities of community, social, sporting and national identity.

So, while both of these cases have had significant outcomes in highlighting some of the barriers that Australians with disability face accessing communications, there continue to be ongoing barriers to the realization of communication rights for many people with disability in

Australia. The tension between the rhetoric of inclusion and the implementation of policy, specifically the implementation of communication rights policies as articulated in the CRPD continues to create barriers to broader inclusion. For example, recent attempts to use the DDA as a mechanism to improve access to communications have been unsuccessful.

A number of cases of alleged disability discrimination were brought against the national television broadcaster, the Australian Broadcasting Corporation (ABC) for failing to provide audio description on television for viewers who are blind or vision impaired. These cases were unable to be conciliated by the AHRC and were subsequently terminated. Similar complaints brought against Australia’s commercial television broadcasters were ultimately terminated by the AHRC without conciliation or any determination of discrimination. When a DDA complaint is terminated, it may be taken to the Federal Court for consideration. This limited pathway is onerous and financially uncertain for the complainant. Should the Federal Court determine that there has not been any case of disability discrimination, the complainant is liable for all court costs, an uncertainty many people with disability are unable to risk. This indicates the inherent tension between human rights instruments and domestic policies. If the powers of the AHRC were more closely aligned with the overarching principles of protection of people

87 with disability, the AHRC would have the power and authority to determine instances of discrimination and initiate compliance actions.

Conclusion

As this chapter illuminates, Australia has been a strong supporter and early adopter of human rights, and has a number of policies and initiatives calling on the principles of human rights as seen in the NDA, NDS and NDIS. However, a reticence remains when it comes to implementing many of these principles of human rights in the development of broader policy areas. This is particularly evident in the example of the communications policies of Australia, where the implementation of the principles of access and inclusion enshrined in the CRPD have been acknowledged in public discourse and policy, but have been obfuscated by the pre- eminence of economic growth and innovation.

How are these two dichotomous ideals able to coexist without one overriding the other?

It is through this research that I investigate this question, proposing that the neoliberal economics of contemporary Australia are in fact undermining the principles of equality and inclusion embedded in our human rights instruments. Social and economic rights, specifically in the context of telecommunications access, have in large part been a trade-off for our ableist neoliberal political economy. The ableist approach inherent in this neoliberal economic paradigm has left people with disability out of the ‘market’. It is against this history of policy rhetoric that I locate Australia’s 2008 ratification of the CRPD as the catalyst for this research.

This investigation of the nexus between communications policy and the human rights principles of access and inclusion enshrined in the CRPD is fundamental in positioning this research within a multidisciplinary framework.

Having discussed the significance of the canon of human rights instruments, specifically the CRPD and its inherent value, as my guiding principle, Part 2 of the thesis examines three

88 communication policy case studies to evaluate how communication policy has included people with disability as equal participants in the Australian communications environment.

89

90

Part 2: Case studies

91

92 Chapter 5 Australia’s National Relay Service: Reviving the teletypewriter

Introduction

This chapter evaluates a core aspect of Australian communications policy: disability-inclusive access to the telephony network – both fixed and mobile networks. The access channel is the

Commonwealth’s national relay service (NRS), providing access for Australians who are Deaf, hearing and/or speech impaired to these telephony networks. The NRS is a communications policy initiative of the Australian Government, introduced in 1995 and legislated under the

USO in the Telecommunications Act 1997 (Goggin & Newell, 2000b). The NRS has been managed under government contracts since its inception, and is funded through a

Telecommunications Industry Levy (TIL), imposed on eligible carriage service providers

(CSP) (ACMA, 2019).

This chapter reviews and analyses the public discourse surrounding the public consultations leading up to each of the three most recent national relay service contracts. It evaluates, from a critical disability framework, the efficacy of the national relay service as a communications channel for Australians who are Deaf, hearing-impaired or speech-impaired.

First, I evaluate the 2006 NRS contract, examining archival documents to consider how principles of disability access and inclusion were positioned in a pre-CRPD communications policy environment. While the CRPD had formerly been adopted by the United Nations at the time of the 2006 NRS contract request for tender (RFT), it would be another two years before

Australia adopted the CRPD in 2008, and three years before Australia was to ratify the CRPD’s

Optional Protocol in 2009.

93 Following on from this – in effect a baseline – the second section reviews and analyses the subsequent 2013 NRS contract. This contract was the first implementation of the NRS service post Australia’s adoption and ratification of the CRPD. Again through a thematic analysis of the publicly available documentation – the government’s 2011 discussion paper,

Review of Access to Telecommunications by People with Disability, Older Australians and

People Experiencing Illness, the public submissions to this review and the government’s report on the review as well as the service requirements outlined in the government’s request for tender, the research illuminates the communications policy framework leading up to the 2013

RFT and the resulting contract.

The third section of the chapter analyses the 2018 NRS contract, reviewing and analysing a range of document sources, including the government’s review of Communications Access:

2016 and Beyond, the public submissions to this review and the Government’s subsequent report and implementation plan for the 2018 NRS contract.

The chapter concludes with an evaluation of the impact of Australia’s adoption of the

CRPD on the NRS. While the initial NRS was introduced over analogue networks, today’s

NRS sits squarely within the digital realm. As such, the concept of digital divide – or, more succinctly, the disability digital divide – underpins this section and is the constant by which I measure the efficacy and utility of these NRS contracts being evaluated in the following sections (Dobransky & Hargittai, 2006; Ellcessor, 2016; Goggin & Newell, 2003; MacDonald

& Clayton, 2012; Vicente & López, 2010).

The chapter also considers the data-set and resulting NRS contract service from a critical communications policy framework to evaluate the efficacy of the service in terms of its constitutive nature and value as a communicative construct.

94 Researching the NRS as an essential communications access channel for people who are

Deaf, hearing or speech impaired through a thematic analysis of the documentation and my own participant observer research thus provides a broad understanding of how principles of access and inclusion are incorporated into public policy in the Australian communication policy environment (Bourk, 2000; Goggin & Newell, 2003; Jolley, 2003).

NRS background

Initially, the sole function of the NRS was to provide text teletypewriter (TTY) connectivity to the public switch telephone network (PSTN) as a text alternative to the standard telephone service (STS) as prescribed under the USO. Introduced in 1995, this service began providing the much-needed access that Australians who were Deaf or hearing impaired had been long denied. The inclusion of access for Australians with speech impairment was included after the initial implementation of the NRS. The current NRS provides a variety of text and voice access channels to any telephone service in Australia or overseas. The current range of NRS communications channels includes text relay via TTY, internet and short messaging service

(SMS), video relay and captioned relay via Captel handset or web browser.

Table 5.1: The various NRS relay types and typical users

Relay type Typical user Internet relay People who want to make a text-based relay call using the internet Captioned relay People who use their voice but have trouble hearing SMS relay People who want to make a relay call on their mobile phone Video relay People who prefer to make calls using Auslan Type and read People who can’t hear and don’t use their voice Speak and read People who can’t hear but can speak Type and listen People who can’t speak but can hear Speak and listen People who are hard to understand on the phone

95 It was more than a century after the introduction of the telephone in Australia before people who were Deaf or hearing impaired had the opportunity to participate in this connected network, with Australia’s first telephone network being connected in 1879 and the first nationwide relay service for Deaf or hearing impaired Australians introduced in 1995. Looking at this timeline, we see that communications policy consideration of disability was slow to consider the inclusion of disability –– in fact, it was 14 years after the United Nations

International Year of Disabled Persons (1981) and three years after the adoption of the

Disability Discrimination Act 1992 before The Australian Government introduced the National

Relay Service, providing Australians who were Deaf or hearing impaired with text access to the PSTN via the use of a TTY device.

Despite ongoing advocacy and lobbying by consumer groups and people with disability over many years, increased access to telecommunications have been slow to realise progress.

For example, after exhaustive consultation and negotiations between industry and consumer and disability organisations on the need to adopt standards for disability telecommunications equipment through a regulatory process as directed by the Australian Communication

Authority, the only recommendations codified in Telecommunications Disability Standard

(Requirements for Customer Equipment for use with the Standard Telephone Service –

Features for Special Needs of Persons with Disabilities) in 2002 were the requirement that all handsets have a raised pip on the number five key for orientation to the keypad and the requirement for hearing aid coupling for handset receivers. Furthermore, the requirement for provision of accessible telecommunications equipment – necessary for people with disability to be able to adequately and appropriately engage in the telephony network – was implemented in 2001 as a requirement of Telstra’s Carrier License Conditions under its obligations as the primary universal service provider for the whole of Australia.

96 As discussed in depth in the next chapter, this issue of access to telecommunications equipment continues to be a barrier for many people with disability.

2006 NRS contract

From the introduction of the NRS in 1995 until the 2019 NRS contract, the NRS was delivered by the Australian Communications Exchange (ACE), a not-for-profit company. ACE initially provided both components of the NRS – the relay service and the outreach service – under one contract with the government. The outreach service was incorporated into the NRS after the

Government accepted a recommendation from the 2000 Telecommunications Service Inquiry

– the Besley report. This was implemented in 2001, adding a greater level of access and inclusion for people who could benefit from the NRS services. Additionally, in 2002 the

Department of Communications, Information Technology and the Arts (DCITA) had commissioned the Allen Consulting Group to evaluate the NRS services and the NRS provider,

ACE. While the full report from the Allen Consulting Group was not made public, DCITA did publish a detailed summary of the report on its website. The findings, which included consultation with NRS users, reported that NRS end-users were largely happy with the NRS service. However, there were two areas in which the report indicated that the NRS services could be improved. These were the number of times users were unable to connect with the NRS and the outreach service (Telecommunications (Consumer Protection and Service Standards)

Amendment (National Relay Service) Bill 2005).

In December 2004, the DCITA released a draft Statement of Requirement for the upcoming NRS request for tender as the contract with ACE was scheduled to expire on 30 June

2006. At this time, the NRS was providing a limited number of relay services for people who were Deaf, hearing and/or speech impaired, including the capability to have their own personal

97 relay phone number, which allowed people who were calling relay users to dial their individual phone number directly while being automatically connected via the NRS. These services were:

• text to voice and voice to text

• hearing carry over (HCO)

• voice carry over (VCO)

• emergency relay service (106)

• reverse charge calls (RCC)

• personal relay service (PRS)

• speech to speech relay (SSR)

At the time of the introduction of an emergency relay service (106) in 2000, Australia’s NRS was considered to be world leading in the level of access it was providing for people who were

Deaf, hearing and/or speech impaired. However, by the time the NRS draft Statement of

Requirements (SOR) was released for public comment, Australia’s NRS had fallen behind other jurisdictions where video relay and internet relay were available, allowing users in these jurisdictions to benefit from advancements in digital technology and providing more real-time functionally equivalent access to communications. This was a continuation of the reticent approach to disability inclusion that had plagued the Australian telecommunications sector both prior to and post the deregulation of the industry.

While Telstra, the incumbent national provider, had been engaging with the disability sector for several years and had been providing a disability equipment service for its customers as part of its licence condition, the 1995 landmark disability discrimination case of Scott v

Telstra was perhaps more indicative of the industry’s approach to disability inclusion. The

Scott v Telstra case was predicated on the claim that Telstra was discriminating against Deaf customers by charging more for provision of a TTS rental than for a standard handset rental

98 (AHRC, 1995). Furthermore, in the lead-up to the 2006 NRS contract, as the communications sector was undergoing rapid transformation towards new and emerging digital technologies, the policy actions surrounding disability telecommunications access was struggling to acknowledge the possibilities inherent in this new technology environment.

Consultation or limitation?

The 2004 statement of requirement released by DCITA was to be the formal public consultation document for the upcoming tender. The focus of this document was to outline the government’s intention regarding what services it was planning to procure and how it planned to manage both the two aspects of the NRS – the relay delivery service and the outreach service. The SOR also indicated the government’s intention to enter into a five-year contract with the option to extend the contract for another three years, potentially locking in the services procured for a total of eight years – an extraordinary timeframe for a contract in the increasingly fast-moving sector of telecommunications and digital technologies. The predominant focus and theme of the SOR was a strong reference to the letter of the legislation. The NRS was considered a service that existed solely to provide a text equivalent to the STS. This letter-of-the-law interpretation of the legislation provided no opportunity to expand the service options of the NRS, particularly with the legislation’s statement that the NRS is an English-based text alternative to voice telephony. In taking this narrow interpretation of what the NRS service was mandated to deliver, the consultation further reinforced the ableist dominance of the telephone itself, providing no accommodation to include those people who, as a consequence of their impairment, needed alternative ways to engage in telephony. While the English text-based functionality of the NRS services did provide an alternative to using hearing and/or voice, it made no accommodation for alternative methods of communications such as sign language or using other digital technologies such as internet connectivity. The SOR, in addressing these

99 alternative channels, opted to suggest that they may be made available as a ‘premium service’ at the discretion of the service provider. So, while the check-box of consultation was satisfied, the narrow interpretation of the role and functionality of the NRS meant that evaluating the service from a framework of greater access and inclusion for people with disability was not considered.

Calling for fairness

While the government’s SOR was released in late 2004, almost four years prior to Australia adopting the CRPD, there was a strong theme of equal rights and equity of access called for by

NRS users and disability organisations. The submission of the Australian Association for the

Deaf (AAD) to the SOR made a number of recommendations concerning the transformation of mainstream digital communications and the possibility of these technologies being adopted by

Deaf Australians and incorporated into the NRS. Recommendations for the inclusion of internet relay (IR), SMS relay and video relay (VR) were argued for in the AAD submission, which asserted that these new technologies should be incorporated as alternatives to voice telephony under the USO’s reference to ‘alternative options for people unable to utilise traditional STS services’. Included in these recommendations was an implicit recognition of the disability communities’ clarion-call ‘Nothing about us without us’. Consumers with disability requested that they have a seat at the table when decisions about the NRS were being decided.

Furthermore, there was strong opposition to the SOR suggestion that these new technologies might be made available as ‘premium services’ for NRS users. The inequality of this was not lost on consumers who relied on the NRS: the AAD submission argued that these were typical mainstream technologies that the rest of the community routinely used in day-to-day communications, so they should be available for the benefit of NRS users. Again in the AAD submission, a clear example of how the exclusion from functionally equivalent access to

100 communication technologies negatively impacted people who are Deaf was made in highlighting the example of employment.

Deaf people on the whole are capable and committed workers; the majority want to work.

However, because of barriers imposed upon them, such as employers’ attitudes and a lack of equitable access to telecommunications, the unemployment rate is higher for Deaf people than for hearing people. In today’s work environment, where telecommunications is such a vital part of so many jobs, providing a VR service as a standard component of the NRS is a practical way for government to help remove some of the barriers and assist more Deaf people into work. It is not sufficient or equitable to provide a VR service only as a ‘premium service’ for which the user will presumably have to pay extra. Employers already baulk at providing Deaf employees with TTYs; they would certainly baulk at having to pay extra charges for Deaf people to use a

VR service (Australian Association of the Deaf, 2005).

It is clear from this examination of the extensive data-set of documents that in 2006 there was a fundamental disconnect between the policy objective held by the government and the needs and aspirations of NRS users. Interrogating this tension from a CDT framework, we can see that it mirrors the wider tensions between the rhetoric of inclusion on the one hand and the lived experience of disability exclusion on the other. While there were indeed a number of social policies in place in 2006 that were intended to raise the participation of Australians with disability in all aspects of Australian life, the implementation of these policies and the positive outcomes they produced did not really meet the needs of Australians with disability. This interrogation of the 2006 NRS policy environment and consultation with consumers living with disability highlights that there was a clear need for a new policy approach if relay users were ever to be able to benefit from the opportunities that a ubiquitous telephony networked society

101 could provide. It is in this milieu, where the social and environmental barriers exclude people with disability, that the CRPD has the potential to create tangible improvement.

2013 National Relay Service

It is clear from the previous section that access to telecommunications for people with disability in Australia prior to the adoption of the CRPD was mired in the political rhetoric of inclusion, with little tangible progress in access to contemporary communication services for relay users.

As the telecommunications sector continued to evolve and expand, providing economic and social opportunities for the non-disabled community, people with disability continued to be denied the opportunities of emerging technology while being consigned to outdated equipment and services. The rhetoric of inclusion was over-shadowed by neoliberal economic predominance for market-based solutions and opportunities – opportunities that did not include people with disability. The government of the time adopted the neoliberal position of the ableist free-market in its suggestion that VR should be provided as a user-pays service rather than an essential equivalent telephony option for Auslan users.

In the lead-up to the 2013 NRS contract, the first review of the NRS since Australia’s adoption of the CRPD, there were significant expectations of change. It had been seven years since the 2006 contract had been put in place. In the intervening years, there had been fundamental changes to communication technology and the telecommunications environment more broadly. The analysis of the public documents related to the 2013 NRS contract provided an opportunity to understand what, if any, impact the CRPD had in both the positioning of disability discourse on access and inclusion, and its impact on disability communications public policy. Not only was this the first review of the NRS since the adoption of the CRPD, it was also the first review of any disability telecommunications policy under the new Labor

Government.

102 A new political environment?

Elected to government in 2009, the ALP government initiated a number of disability focused reviews and activities. Fundamental to this renewed focus on disability for the political and public agenda was Australia’s adoption of the CRPD.

The new government outlined its commitment to improving economic, social and community participation for people with disability in its 2009 National Platform and

Constitution (ALP, 2007). Chapter 7 of the Platform, ‘Securing an inclusive future for all

Australians’, included a number of high-level commitments that the government proposed to implement to facilitate this inclusion:

Providing opportunities for people with disabilities

73 Labor believes governments have a responsibility to support and empower people with disabilities, their families and carers.

74 Under Labor, disability policy is based on the recognition that people with disability have the same rights to health, work, adequate housing, freedom of movement and equal recognition before the law, as the rest of the Australian community.

75 It is the role of government to remove the barriers that prevent people with disability from exercising those rights and ensure that they receive the support they need to become full participants in society …

79 Labor will improve access to buildings, communications, transport, healthcare, aids, equipment and the justice and education systems, for those with disability and their families …

This was a significant change in disability public policy focus from the previous Liberal

Coalition government, which had held power for more than a decade. While this research does not focus on evaluating the values of different political parties, it does raise questions about how different political parties prioritise economic and social policy. Moreover, in the context

103 of this research, these divergent political economic and social priorities are the ideological frameworks that underpin disability communications policy decisions and outcomes. Thus, while in this research I am primarily interested in evaluating the impact that Australia’s adoption of the CRPD has had in improving access and inclusion in communications for people with disability, the political environment over this timeframe cannot be ignored.

Social policy

The Labor government, responding to the disability community’s call for better policies and greater inclusion for Australians with disability, initiated a Social Inclusion Agenda, developed a whole-of government National Disability Strategy in partnership with all state and territory governments and adopted the principal recommendation from the 2009 Disability Investment

Group report, The Way Forward: A New Disability Policy Framework for Australia, to undertake a feasibility study into a national disability insurance scheme. In late 2009, the government announced that the Productivity Commission would facilitate a public inquiry into long-term care and support for people with disability.

While this National Platform and the resulting initiatives had a whole-of-life focus, each highlighted a lack of access to communications and information as significant barriers to participation and inclusion for many Australians with disability. For example, in the National

Disability Strategy 2010–2020 (DSS, 2010), access to communications, technology and information are understood to be critical for greater inclusion and participation:

Inclusive and accessible communities – the physical environment including public transport; parks, buildings and housing; information and communications including telecommunications, internet and computer technology …

So the public discourse and policy environment leading up to the next NRS contract, initially scheduled for 2011, was vastly different from the political and public disability discourse

104 leading up to the previous NRS contract in 2006. This was significant, given that this upcoming

NRS contract would be the first since Australia’s ratification of the Convention. Moreover, a number of Articles within the Convention explicate the essential nature of accessible telecommunications, digital technologies and access to information more broadly – specifically:

Article 9 – Accessibility

To enable persons with disabilities to live independently and participate fully in all aspects of life, States Parties shall take appropriate measures to ensure to persons with disabilities access, on an equal basis with others, to the physical environment, to transportation, to information and communications, including information and communications technologies and systems …

Article 21 – Freedom of expression and opinion, and access to information

There was optimism within the disability community that, given Australia’s adoption of the CRPD, future NRS contracts and the range of services they delivered would provide functional equivalence to the advanced telecommunications services enjoyed by the broader community – thereby ameliorating the ableist barriers of the past.

New government, new policy?

In 2011 the Labor government conducted a wide-ranging review of telecommunications access for people with disability, ‘Access to Telecommunications by People with Disability, Older

Australians and People Experiencing Illness’. The Terms of Reference for this review included:

• whether national relay and outreach services could be improved in the light of new technologies

• what more can be done to assist NRS and non-NRS users

• how to build community, industry and government awareness of telecommunication access issues, and

105 • how to communicate up-to-date information on telecommunication options and consumer rights.

Included in the accompanying media release, the Minister for Broadband, Communications and the Digital Economy, Stephen Conroy, stated, ‘The findings of this important review will help inform the Australian Government about the best ways to help people needing assistance to access telecommunication services.’

Changing technology environment

In addition to a changed political agenda, another significant aspect of this evaluation and comparison with the 2006 NRS contract process was the change in the telecommunications and digital technology environment. It raised questions about what these changes meant for people with disability, particularly those people who use the NRS as their communications bridge to the broader Australian community – family, friends and colleagues as well as all manner of business and government services. While mobile telephony was widely adopted in Australia in

2006, it was the introduction of the ‘smartphone’ in 2007 that changed the level of access for many people with disability. With the convergence of digital technologies inherent in mobile devices, innovative possibilities for uses by people with disability became possible. For example, in a similar way in that in which traditional NRS users had been able to adopt the functionality of mobile phone text messaging as a new communication channel, smartphone functionality incorporating broadband access opened up new communications channels such as video chat for Deaf users of Auslan. This new technology and the affordances made possible by increased functionality were a major theme repeated throughout the consultation’s data-set: the government’s consultation paper, public submissions and the resulting report.

The analysis of this data set identified another major theme underpinning all aspects of this policy process: the need for universal access and inclusion in our increasingly connected

106 society. Statements about the importance of access and inclusion for reasons of economy, productivity, and social and community participation were included in documents from all the stakeholder groups. However, while there were also multiple references to how these themes were the embedded principles found in the Articles of the CRPD, there was significant variance in how these principles should be applied.

For example, while the government’s discussion paper included statements about the importance of the CRPD and its commitment to the CRPD’s principles, a number of the questions included in the terms of reference raised questions about curtailing access to and use of the relay services as a way to contain costs. This opened the door for the consultation to focus not only on issues of access but also issues of financial sustainability. Here again we see the tension between economics and accessibility reinforcing the ‘charity’ model positioning of disability – access and inclusion that provides equity for people with disability predicated on the financial largesse of industry and government. In stark contrast to this idea of economically bounded access and inclusion, NRS end-user submissions argued that access and inclusion to functionally equivalent communications services such as the NRS were matters of human rights and should never be constrained by arbitrary financial determinations.

From a critical disability theory perspective, this dichotomy of equitable access and inclusion unfettered by economic barriers or limits has been a consistent struggle in both terms of definition and gaining greater access and inclusion. The exclusionary outcomes from this tension can be seen in an Australian context in the way social support and social welfare programs for people with disability have been implemented under the rubric of neoliberalism.

Karen Soldatic’s work on disability and employment in Australia (Soldatic, 2019; Soldatic &

Pini, 2012) highlights the ‘mutual obligation’ expected under a neoliberal policy approach to disability care and support.

107 Another theme prevalent throughout the data set is the concept of mainstream digital technology as enabler for people with disability. Again, this common theme was discussed in documents from all stakeholder groups; there was a nuanced interpretation of mainstream digital technology’s role in providing equitable access to economic, social, cultural and community participation. For example, while the submission from Able Australia (2011) acknowledged that emerging technology was providing access for some people with disability, it pointed out that people with dual disabilities struggled to benefit from mainstream technology. In fact, the Deafblind community has been left behind, becoming further marginalised as a result of the strides made in technology for single, but not dual, sensory impairment.

The dichotomy of technology as disability enabler or barrier has been long debated in disability studies, raising questions of ableism in design theory and about the inherent nature of technology (Ellcessor, 2016; Goggin & Newell, 2003; Roulstone et al., 2016).

Examples abound that highlight this dichotomy in the lives of people with disability. My own experience as a blind researcher and policy adviser is typical of this for many people with disability. On one hand, the digital technologies I use to read, research, write and engage with online undoubtedly enable me to have greater participation; however, there are many instances when this same technology creates barriers to my participation. Technology is just one cog in the suite of tools that enable people with disability to overcome many of the barriers we face in everyday life. Technology designed using the principles of inclusive design along with digital training, digital confidence and aspects of accessible technology, equipment set-up, support and ongoing maintenance all contribute to ensuring that digital technologies are enablers for people with disability.

108 Interpreting the government’s position

The outline accompanying the discussion paper released by the government for the Review of

Access to Telecommunications by People with Disability, Older Australians and People

Experiencing illness incorporated a number of themes, indicating a high-level policy consideration underpinning disability communications policy. First, the Discussion Paper framed the importance of communications in all aspects of Australian life, noting that access to communications is becoming increasingly important in many aspects of people’s lives, with specific reference to how access to communications networks empowers economic, social and community participation.

Telecommunication services play a vital role in the lives of all Australians. They provide access to emergency assistance and are important for community participation, employment and social interaction. They also promote independence (Department of Broadband,

Communications and the Digital Economy, 2011).

A second theme highlighted in the Discussion Paper is found in the background section and introductory paragraphs, making strong reference to the principles of access and inclusion enshrined in the CRPD:

The CRPD recognises the importance of access to telecommunications services. The Australian Government supports this view.

The Discussion Paper outlined the government’s expectation of the consultation, focusing on four key aspects;

• whether national relay and outreach services could deliver more within existing funding levels

• what more can be done to assist NRS and non-NRS users

• how to build community, industry and government awareness of

109 telecommunication access issues, and

• how to communicate up-to-date information on telecommunication options and consumer rights (Department of Broadband, Communications and the Digital Economy, 2011).

While the focus of the Discussion Paper is a high-level policy positioning underpinned by

‘social model’ interpretations of eliminating barriers and outdated technologies, this positioning was inconsistent with many of the questions raised in the Discussion Paper. For example, the first of the four proposed outcomes – determining how the National Relay service and related outreach service could be improved within the current funding parameters – can be construed as a question more about productivity and efficiency dividends than one about how to best enable relay users to benefit from the service. This tension between equitable access and cost has not changed from the policy discussions in the previous section, that of the pre-

CRPD national relay service contract of 2006.

So while access and inclusion framed the public discourse of this review, from a CDT approach questions remain regarding the government’s expectations of outcomes, particularly unstated questions of value for money – are services warranted if they cannot be contained within a certain funding envelope?

Public submissions

In the 66 submissions to the consultation, the majority were from NRS users and their advocacy organisations. As with the consultation’s Discussion Paper, there were a number of common threads or themes in these submissions, which provided a rich data-set for this research. Of the total 66 submissions, there were 22 submissions from NRS end-user advocacy organisations, including Deaf Australia, Deafness Forum, Communications Rights Australia, Able Australia, the Coalition of the Aging, Australian Federation of Deaf Societies, Australian Sign Language

110 Interpreters Association, Australian Sign Language Association Victoria, Australian Blindness

Forum, Cerebral Palsy league, Deaf Australia NSW, Deaf Society NSW, First Peoples

Disability Network, Novitatech, Royal Blind Society, Spinal Cord Injuries Australia, Vision

Australia and Women with Disability Australia. There were also consumer organisation submissions from the Australian Communications Consumer Action Network and Media

Access Australia. As these were primarily peak consumer representative organisations, they encompassed many smaller state- and territory-based organisations, which represent the interests of stakeholders. For example, the submission by the Australian Federation of Deaf

Societies was developed in consultation with, and representing the interests of, its member organisations: the Deaf Society of New South Wales, Deaf Services Queensland, Deaf Can Do

(South Australia), Tasmanian Deaf Society, VicDeaf and Western Australian Deaf Society.

The number of submissions from these end-user organisations indicates the importance of the consultation to users of the National Relay Service. As with the Disabled People’s

Organisation submission’s representation of multiple state and territory members, the

Australian Communications Consumer Action Network (ACCAN) submission was representative of multiple interested stakeholder groups and individuals. ACCAN, a member organisation, is funded by the government from the Telecommunications Industry Levy (TIL) to represent the interests of consumers. ACCAN is the consumer representative body in the communications sector, and in this capacity ACCAN undertook widespread consultation with its disability membership and other disabled people’s organisations representing end-users of the National Relay Service. There were also a number of short organisational and individual submissions made to the review in support of the recommendations outlined in the ACCAN submission.

111 In researching this topic, and specifically in regard to this government Review of Access to Telecommunications by People with Disability, Older Australians and People Experiencing

Illness, my role as ACCAN’s Disability Policy Adviser provided insights and expertise. This informed participant observation, in conjunction with the emancipatory nature of this critical research, provided me with a strong foundational knowledge about the various stakeholders as

I evaluated the data-set. My identification of themes and the associated coding process used to identify those themes relevant to an evaluation from both critical disability theory and critical communications policy research have been founded in principles of rigorous evaluation, self- reflection and objective reading and rereading of the data-set.

Consumer themes

The overarching theme present through all the submissions made by end-users of relay services was that of the principle of access and inclusion enshrined in the CRPD. Equity of access and inclusion is a fundamental aspect of CDT (Goodley, Hughes & Davis, 2012; Jaeger &

Bowman, 2005; Titchkosky, 2011). Invoking a human rights foundation to frame the importance of relay services for people who are Deaf, hearing impaired, speech impaired or

Deafblind speaks to the universality of communications and also calls upon the inherent underpinning argument of social model disability studies. The barriers of access for people with disability in traditional telephony communications exemplify our current understanding of social model framing of disability, an inbuilt ableist functionality of telephony designed with limited capability for people with hearing or speech impairment. The NRS had provided a limited work-around for people unable to use standard telephony since its introduction in 1995

(Power & Power, 2010; Power, Power & Horstmanshof, 2007). The NRS user community saw this review, in the lead-in to the upcoming NRS contract renewal, as an opportunity to advance the service to one that was more appropriate and advanced, employing the opportunities made

112 available by a wide range of new and emerging digital technologies (see submissions from

ACCAN, Deaf Australia, Deafness Forum, Able Australia).

Another of the primary themes that reappeared through the submissions of relay service users was focused on the capabilities of these new and emerging technologies, highlighted by reference to the decades-old technology of teletypewriters, the primary technology used for relay service delivery. For example, in its introduction the ACCAN (2012) submission illuminated the end-user sense of inadequacy of the current relay services:

The patchwork of programs available to these consumers delivers a level of service that was deemed acceptable 20 years ago but is well behind what we expect from communications services today … others, again, must make do with a service that relays calls at five times as long as a regular call takes place.

While acknowledging that the relay service was an integral element of improving participation in all aspects of Australian life for many people with disability, this theme of inadequacy in the present-day Australia was a strong theme that underpinned many of the end-user submissions.

Providing case studies of everyday experiences of exclusion for people with disability was a strategy employed in a number of submissions to highlight the sometimes life-threatening exclusion people faced without access to mainstream communications channels. An example of this was clearly articulated in the submission from Deafness Forum Australia, in which a case study highlighted how a Deaf driver was unable to contact emergency services while driving and suffering from a heart attack (Deafness Forum of Australia, 2011).

This theme of outdated technology limiting participation for people with disability along with the call for more appropriate new and emerging digital technologies exposes a clear lack of what has been widely adopted as ‘functional equivalency’ in communications. These limitations of access to similar anytime, anywhere communications access indicates that a two- tier telephony environment remained in existence in Australia in 2011. The proliferation of

113 mainstream technologies providing anytime, anywhere connectivity to able-bodied Australians was not available for people with disability – specifically, in the context of this research, people with hearing or speech impairment. This inequity was explicated in the submission from the

Australian Blindness Forum and also in that from Able Australia, which highlighted the barriers that people who are Deafblind experience when trying to access the limited services offered by the NRS (Australian Blindness Forum, 2011).

The final significant theme found in the wide ranging submissions from end-users was the fundamental barriers that people with disability encounter when trying to benefit from the multitude of participation opportunities afforded by our increasingly digitally connected society – barriers to everything from being able to gain meaningful employment, access essential services to everyday participation with family, friends, colleagues and their communities at large. Furthermore, while the NRS was initiated as the bridge to the telecommunications disability divide in 1995, it was apparent from the lived experience of many Australians with disability responding to the government’s review that this bridge was no longer able to span the growing communications divide.

Relay service providers

As discussed in the earlier section, with the introduction of the 2006 NRS contracts, service delivery changed from a single provider, the Australian Communications Exchange (ACE), delivering both relay and outreach services to a new model in which the two services were split and provided by different organisations. While ACE continued to deliver the actual relay services, Westwood Spice won the contract to provide all outreach services. At the time of the

2011 Review of Access to Telecommunications by People with Disability, Older Australians and People Experiencing Illness, this contractual arrangement was still in place. Both ACE and

Westwood Spice contributed submissions to the review and, while their contractual activities

114 were bound by the government’s service requirements, the themes that framed their submissions were similar to those of relay service end-users. Similarly, the significant importance of social and economic benefits garnered by connectivity for both individuals with disability and society at large were found in the submissions of relay users and ACE (Australian

Communications Exchange, 2011).

Industry submissions

The telecommunications industry, primary funders of the NRS through the TIL, contributed to the review through industry associations such as Communications Alliance (CA) and the

Australian Mobile Telecommunications Association (AMTA).

The primary theme underpinning these submissions was that of the value of telecommunications to individuals and society. While this was a theme that appeared repeatedly throughout all stakeholder groups, each had a somewhat nuanced approach to this theme. In contrast to the human rights principle underpinning this theme for NRS end-users, the telecommunications industry foundation underpinning this theme was more attuned to the commercial interests of industry. This nuanced interpretation of access for all was exemplified in the submission by AMTA that stated that the role of providing access for all was the role of government (Australian Mobile Telecommunications Association, 2011). Relying on the state to support the needs of people with disability has been the embodiment of the long-standing

‘charity’ model of disability. Furthermore, obfuscating responsibility for the provision of access to goods and services – in this case, access to communications – contravenes the principles of anti-discrimination upheld in the DDA. Section 24 of the DDA – Access to Goods and Services protects the right to equal access.

In a somewhat contradictory argument, another of the major themes in the submissions from industry was that of universal design. This was a common theme throughout the data-set;

115 however, as with other cross-cutting themes, the role of inclusive design took on a nuanced interpretation. The principle of universal design has long been a clarion call of the disability community. Universal design principles focus on design for all, incorporating holistic design to ensure that products and services are accessible and usable for the majority while allowing for ease of specialisation and adaption for those people who have specific needs and capabilities.

Government final report

The government released its report on the review in June 2012. The report included many of the same discussion points that were included in the Discussion Paper: the importance of telecommunications for all Australians, the social policies underpinning greater inclusion for

Australians with disability and the increasing accessibility of mainstream technologies. My analysis of the report identified the dominant themes as being similar to those in the 2006 NRS section: greater access and inclusion were possible; however, the delivery of these improved access channels was dependent on delivery efficiencies in order to retain the same funding envelope. While not stating that these improved communications channels – SMS relay, two- way internet relay and video relay – would only be considered as ‘premium services’, as was the recommendation in 2006, the first recommendation in the report stated:

1. The government test[s] the market’s capacity to provide improvements to the NRS as part of the next contract for NRS services, subject to efficiencies being realised so that costs are broadly maintained at existing levels. Improvements may include two-way internet relay and relay through video and captioned telephony, and a service that enables a deaf, hearing or speech impaired user to access emergency services from a mobile device using text. (Department of Broadband, Communications and the Digital Economy, 2012)

116 Another major theme identified in the report was the need for stakeholder consultation. There was widespread support across submissions for the benefits of regular dialogue between industry, the community and government on current and emerging telecommunications access issues. This has been a long-time request from the disability community, encapsulated in the

‘Nothing about us without us’ slogan.

Interestingly, given the articulated intentions of the government to increase the economic, social and community participation of people with disability and the adoption of a number of initiatives to implement these aspirations, most significantly the CRPD, it is clear from the analysis of the public consultation and resulting report that there continued to be a disconnect between intention and implementation. Investigating the 2013 NRS policy-development process from a CDT framework illuminates that the communications policy arena was still bogged down by ‘charity model’ understandings of disability and inclusive initiatives. For example, the report made further reference to containing the cost of the service at its current level:

The review also notes the telecommunications industry’s concerns about the cost to provide the NRS. However, improvements in technology may mean it is possible to improve the NRS by providing services more efficiently, while maintaining the overall cost at around existing levels. (Department of Broadband, Communications and the Digital Economy, 2012)

Quarantining the NRS within a funding envelope of $20 million per annum continues the narrative that disability access was still considered to be optional and not a human right, as explicated throughout the CRPD. The outcome of the 2013 RFT process saw the current providers contracted to deliver the NRS services for the next three years, with allowance for an extension of the contracts at the government’s discretion.

117 The new contract allowed for the introduction of a number of new relay services: SMS relay, two-way internet relay, captioned relay and video relay. These services were to be introduced progressively as the infrastructure was developed. While the video relay service was ultimately restricted to what amounted to business hours and the SMS relay was not capable of direct messaging to the triple zero service, these new relay services were the long- sought improvements for which the NRS user community had been advocating. While there were obvious shortcomings in the 2013 NRS contract, these new relay services provided greater choice and capacity for many people reliant on the NRS to access communications. The provision of two-way internet relay provided opportunities for people to both make and receive relay calls, providing greater opportunities for employment as well as social and community participation. In reviewing the quarterly usage reports from the relay service provider, it was clear how these new services were providing increased access to communications for people with disability. For example, the significant uptake over time of the captioned telephony relay service illuminated the previously unmet need and exclusion of people with hearing impairment from our telephony networks.

2019 NRS contract

So, while the 2013 NRS contract introduced what many NRS users had been calling for in the way of increased relay options with the possibility to communicate while out and about, the limited hours of operation for video relay continued the entrenched disadvantage faced by

Auslan users. There is much research to support the claims that for Auslan users, English based relay channels do not provide the equivalent functionality needed to enjoy the functionings and capabilities available to the rest of the community (Power & Power, 2010; Power, Power &

Horstmanshof, 2007). For many Deaf people, English is their second language, so many Deaf people have lower levels of English literacy than the hearing community. Therefore, while the

118 NRS operation under the 2013 contract increased access and inclusion for many people, the service was still lacking in terms of the principles of equal inclusion enshrined in the CRPD.

Moreover, from a CDT framework, five years after Australia had adopted the CRPD, the ableist dominance of the Australian telecommunications environment continued to exclude people with disability. The full inclusion of people with disability in the telephony networks continued to be considered an afterthought and as secondary to the priorities of free-market competition.

For example, one of the fundamental questions of equity in communications for people with disability – independent access to emergency services when out and about – continued to be unanswered despite a commitment from the Minister for Communications in 2010 to address the issue. While the 2013 NRS contract did introduce an SMS relay option, users were cautioned that SMS relay for triple zero was not a reliable option and that it should only be used in conjunction with a voice call.

Communications accessibility: 2016 and beyond

The uptake of the new relay services introduced in the 2013 contract exacerbated the historical tensions between policies of equal access and economic constraints. Prior to the implementation of the 2013 NRS contract, the funding model had been based on a previous quarter cost prediction. In other words, the amount allocated for the upcoming quarter was based on the cost of providing the service for the previous quarter. The 2013 NRS contract was allocated an annual budget of $20 million, excluding the 10 per cent GST. This $20 million was made up of a $16 million allocation to the provision of the relay service, to be delivered by ACE, and the remaining $4 million allocated to the provision of the outreach service, to be delivered by Westwood Spice. There was no formal explanation for this funding cap, other than the government’s statement that the new contract would remain within the ‘current’ funding amount. As the usage of the NRS had been relatively stable over the preceding several

119 years, with annual cost being below $20 million, it could be argued that the government’s decision to implement a $20 million per annum cap was little more than a short-sighted formalisation of the existing budget. However, the introduction of these two new aspects for the NRS contract – new services and AA funding cap – meant that there was no provision for the allocated funding to increase in line with the increased service usage. As a result of these newly introduced relay services, the cost of delivering the service exceeded the available funding. This unforeseen outcome created problems for the government in terms of how to provide the necessary and clearly needed services to people with disability while containing the cost at an amount that did not consider the possibility of increased service uptake.

Moreover, while based on the delivery cost of previous years, the funding cap was also intended to constrain the financial impost on the telecommunications providers who contributed to the levy, raising questions about the authenticity of the government’s desire to make communications more inclusive and accessible.

In response to this budget blowout as a result of community uptake of these new services, the government released a Discussion Paper in May of 2016 to consider how best to ensure the

NRS remain financially sustainable. For many in the disability community, this public consultation clearly undermined the government’s assertions for a more inclusive and accessible communications environment.

While the Discussion Paper contained the requisite nod to Australia’s domestic and international commitments and obligations to improve access and inclusion for people with disability, the questions posed in the discussion paper were framed in a way that many people in the disability and consumer sector viewed as being focused on economic constraints rather than principles of inclusion. From a critical disability theory framework, it is hard to interpret these questions in any other way than that of a government looking for financial cost-cutting

120 by reducing or capping NRS service usage. The dominant theme in the consultation paper was reform of the NRS to maintain its operation within the funding envelope of $20 million. An example of this is seen in the following excerpts from the discussion paper:

Option 2: Introduce measures to manage demand for NRS services and

Option 3: Introduce more specific requirements to support access to the National Relay Service, including greater enforcement of fair use policies (Department of Communications, 2016).

This tension created by the social policies of the government and the overarching neoliberal approach of prioritising business interests and opportunities in place at the time in the lead-up to the 2018 NRS contract were not dissimilar to the dichotomy of policy in the lead-up to the

2013 NRS contract. However, while the 2013 contract was investigating ways to increase access and inclusion for NRS users by investigating the opportunities available through the introduction of a number of new relay services, the tension in the lead-up to the 2018 NRS contract was more focused on how to curtail usage of the NRS and bring the service costs down. As I have indicated previously, this research is not focused on how different political parties frame disability communications policy; however, it is necessary to acknowledge that the 2018 NRS contract and the 2016 public consultation were directed under the governance of the Liberal–National Coalition and not the ALP government of the 2013 NRS contract.

Submissions

There were 25 public submissions made to the consultation, the majority of them from NRS end-users and disability advocacy organisations. Public submissions included two individual telecommunications provider submissions – from Telstra and Optus – and a combined submission from the telecommunications industry associations, the Australian Mobile

121 Telecommunications Association and the Communications Alliance on behalf of their respective members.

Consumer themes

The Discussion Paper presented a number of disparate options to be considered. These included potential NRS funding models, potential NRS outreach models, potential NRS governance models and potential options to meet disability equipment needs. The majority of NRS end- user submissions addressed each option as a question to be answered from one of the discussion points attributed to each of the separate options. Therefore, when I was evaluating each of the submissions in order to understand and identify the major themes, the discrete responses were easily catalogued but more difficult to code into themes. A greater number of significant themes were apparent in these submissions than in the previous sections. Moreover, in the process of identifying the themes it was necessary to recode the submission responses around the options in the Discussion Paper that focused primarily on the actual delivery of the NRS. This process therefore enabled me to refine the themes to those that were more in line in terms of my research question. I was then able to investigate the responses to the subsequent proposed options.

The dominant theme underpinning the submissions from NRS end-users and their advocacy organisations was ‘equity of access’. There was strong reference to the underpinning policy objective of the NRS – an equivalent service for people with disability to the access of a standard telephone service. Options 1 and 2 of the Discussion Paper garnered many practical and theoretical arguments and examples to support this overarching theme:

Deaf people consider the National Relay Service as the equivalent to voice telephony. By not providing adequate funding to sustain and enhance the National Relay Service, would ultimately limit the user’s capability to use the telephone service and this therefore would amount to discrimination. (Deaf Australia, 2016)

122 Capping minutes/calls, limiting hours or restricting access to the NRS would mean the service is no longer equivalent to the STS and users would no longer have 24/7 STS access/connectivity as required under the USO. It is highly unlikely that this would ever be imposed on people using telephones unassisted. (Connexu, 2016)

The overarching principle behind the NRS has traditionally been one of inclusion and participation. However, the options paper suggests a move away from that traditional view of the NRS as being essential to non-discriminatory and functionally equivalent Standard Telephone Service (STS) access and connectivity. The options paper suggests that the continuation of the NRS in its current form may actually be contingent on the subjective assessment of sustainability rather than guaranteed on the basis of non-discrimination and Telecommunications legislative requirements. (Deaf Australia, 2016)

These articulated arguments, which underpin the theme of equity of access, are supported by the fundamental principles enshrined in the CRPD.

The Articles of the CRPD that support and underpin inclusive anti-discrimination initiatives such as Australia’s National Relay Service include:

Article 3 – General Principles

(c) Full and effective participation and inclusion in society;

(e) Equality of opportunity;

(f) Accessibility,

Article 9 – Accessibility and

Article 21 – Freedom of expression and opinion, and access to information.

Interrogating this public consultation from a CDT framework requires questioning access to the NRS, not from an equity position but rather in terms of the dominance of ableism. The ideal

123 of universal service is that of including all of society in the ability to communicate as a way of building a connected community for the benefit of all participants. These benefits provide opportunities for the economic, social and political development of individuals, communities and the nation as a whole. Furthermore, by evaluating the NRS from a critical communications policy framework, we see the inadequacy of the policy as it pertains to ideals of communication rights, the values of a connected public square and a legacy of incremental progress towards holistic universal service.

Moreover, while CDT challenges us to understand disability and impairment as part of a continuum of humanity and not as the misfortune or deficit of the individual, it is this

‘medicalised’ narrative of disability and otherness that underpins the options and questions of the Discussion Paper that CDT looks to overturn. The narrative of disability left unchallenged provides the opportunity for and justification of inaccessibility and exclusion (Titchkosky,

2008).

Industry submissions

The dominant theme found in the submissions by industry was that of the NRS being a ‘safety net’ service for those users unable to transition to ‘mainstream’ communications options. This terminology of the NRS being a ‘safety net’ was adopted directly out of the government’s discussion paper:

Equally, the Associations support the principle that a safety net communication option should be provided for those in the community who are not able to access mainstream communications and must rely on the NRS to communicate with others in the community. (Australian Mobile Telecommunications Association and Communications Alliance, 2016)

While any service that allows those consumers who would otherwise be left out of our networked society is clearly a ‘safety net’, from both a CDT perspective and a communications

124 policy perspective, the idea that the NRS is a ‘safety net’ undermines the principles of access and inclusion in the CERPD and also undermines the legislative policy objective of the universal service obligation. Additionally, highlighted in the submissions from industry was the ongoing tension found with new technology – that of enabler or barrier. While the industry submissions did advocate strongly for a policy push to move people away from reliance on the

NRS, there was an understanding that not all people would have the capacity to transition.

Furthermore, there was an understanding that the transition to mainstream technology would require training and support for many people with disability:

The Associations submit that, where practical, Government should support and promote a shift away from reliance on TTY specifically, and the NRS more generally, to increasing use of mainstream direct communications as this would be more effective, efficient and beneficial for end-users that are able to use mainstream technologies. (Australian Mobile Telecommunications Association and Communications Alliance, 2016)

From a telecommunications industry perspective, there was not much change in the approach to the 2018 NRS contract from that of the 2013 NRS contract.

Government response

In June 2017, the government released its response to the 2016 consultation. This was in the form of an implementation plan – an outline of how the government intended to implement the

2018 NRS contract. This indicated that although the majority of the public submissions recommended that the NRS be funded on a cost recovery basis, the ongoing service would be maintained at the current $20 million per annum:

Most stakeholders with an involvement or interest in the sector supported largely unchanged delivery of the service, which generally means uncapped user demand at no additional cost to users. Telecommunications industry representatives were concerned about the rapidly increasing cost of funding the service beyond original

125 expectations, in an environment where text-based alternatives for voice communications, have proliferated rapidly, in terms of availability and take-up. The government has decided to make changes to both the relay and outreach service components. (Department of Communications and the Arts, 2016)

In the intervening time since the release of the 2016 consultation paper, the increased uptake of the NRS services, specifically the captioned telephony service, had significantly increased the cost of providing the relay services. The government’s report indicated that in the first nine months of the 2016/17 financial year, the cost of the NRS had exceeded $24 million. The ongoing response from the government and the Minister for Communications to the question of how the service would continue without cuts and caps on services if the budget was to remain capped at $20 million did nothing to reassure the NRS community. By the time the initial RFT for the 2018 contract was released, the cost of the NRS had reached more than $30 million for the previous 12 months. Whilst the government stood by the minister’s assurance that no service would be cut, the contract for the outreach service was renegotiated with Westwood

Spice. The ‘rebalancing’ eliminated a number of the outreach services – ‘promotion, awareness raising, training and research activities’ – while the help desk availability within specified hours, remained (Department of Communications and the Arts, 2016).

This ‘rebalancing’ of the outreach funding had an alarming effect on the NRS user community, which considered this a foreshadowing of the cuts to come. These fears were partially allayed for those NRS users who did not use the captioned telephony service when the final 2018 contract specifications were announced. Other than the captioned handset telephony service, all NRS services were to continue in their current form and with the same hours of operation.

The captioned handset service, provided via the Captel handset, was not included in the suite of relay options for the 2018 NRS contract. In its place, the government reported that the

126 new NRS contract would provide a number of alternative captioned relay options, including the Uniphone teletypewriter. This announcement created considerable push-back from the

Captel user community, which considered replacing the Captel handset with a TTY to be a retrograde step in access to communications, given that the government’s 2016 consultation paper referred to TTY technology as ‘legacy’ technology and asked ‘What sort of transition process would be appropriate in phasing out legacy proprietary technologies such as the TTY access to the NRS?’ (Department of Communications and the Arts, 2016). This decision raised a number of questions: Was this decision based on the growing cost of the service? How many of these Uniphone teletypewriters were available? And who was going to provide training to new users of the NRS? For the NRS user community, the government’s argument that this would be ‘equivalent’ to the Captel handset service highlighted the limits of the government’s commitment to improved access to communications for people with disability.

The 2019 NRS contract was awarded to Concentrix – a large multinational call centre company. Concentrix was contracted to provide all relay services, including the help desk operation. The funding was to remain the same at $20 million per annum; given that there would be no outreach service, this meant an increase in the budget for relay service delivery.

Another specification of the 2019 NRS contract included in the implementation plan was,

‘The introduction of a compulsory registration requirement to access the service’ (Department of Communications and the Arts, 2016). The government’s rationale for the introduction of a user registration requirement was expressed in terminology of economic efficiency and eligibility rather than in terms of improved access and service improvement:

This will assist in ensuring that the funding allocation available for provision of the service is being used effectively and efficiently in addressing the requirements of those with a genuine need to use the service. (Department of Communications and the Arts, 2016)

127 Furthermore, the implementation plan stated that, ‘Voice callers attempting to reach a user of the NRS will not be required to register’, creating a clear demarcation where people with disability would be treated differently from people without disability. The Disability

Discrimination Act 1992 defines disability discrimination as follows:

(1) For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if, because of the disability, the discriminator treats, or proposes to treat, the aggrieved person less favourably than the discriminator would treat a person without the disability in circumstances that are not materially different.

It can be argued that this compulsory registration for people with disability to use the NRS while those without disability do not need to register is in fact a case of direct disability discrimination. In other words, people who are Deaf, hearing impaired or speech impaired are being treated less favourably when using the NRS.

In evaluating this 2019 NRS contract from a CDT framework, it is clear that the

Government’s focus remained embedded in the normalised ideology of the predominant neoliberal economic policy framework, prioritising cost saving with less concern for equitable communication access.

The policy discussion leading up to the 2019 NRS contract had a familiar theme from the perspective of end-users. There was a strong voice for greater access and inclusion, a greater level of functional equivalence to the broader community’s access to communications and an expectation that policy-makers and the government would incorporate the principles underpinning the multiple anti-disability discrimination instruments in place to support this improved access.

In the five years since the introduction of the 2013 NRS contract NRS users had experienced significant and tangible benefits, and they were fearful from reading the

128 government’s Discussion Paper that these benefits may be jeopardised going forward. The

Discussion Paper questions did nothing to alleviate these concerns and when the government released its implementation plan as a result of the public consultation, these fears were reinforced. The overwhelming themes in the implementation plan and the subsequent request for tender documents were cost control, managing NRS usage and providing a scaled-back

‘safety-net’ service.

Looking at the NRS over the course of these 13 years, it appears that not much has changed in terms of the positioning of disability in the context of NRS. In fact it can be argued that while some benefits have been achieved, the view of disability access and inclusion from a policy and industry perspective is much the same: if it doesn’t cost any more, then it can be included. The needs of people who are Deaf, hearing impaired or speech impaired continue to be predicated on a ‘charity model’ understanding of disability. Adopting the CRPD as well as implementing a whole-of-government National Disability Strategy has done little in terms of greater access for NRS users.

The increased services introduced in the 2013 contract were not achieved as a result of government or industry policy; rather, they were achieved through delivery efficiencies initially provided by the relay provider ACE. Furthermore, while these relay channels – particularly captioned telephony – have been successful and provided greater choice and access for NRS users, resulting in a 30 per cent increase in delivery costs, the government at the behest of the telecommunications industry decided to keep the NRS funding envelope capped at $20 million per annum for the 2018 contract.

Conclusion

Researching Australia’s NRS public consultation, both prior and post the adoption of the

CRPD, from a critical disability theory framework illuminates the dominance of ableism in our

129 communications policies as they relate to disability access to communications. Ideally, universal service is one of inclusive access to communications networks, benefiting the entire community and providing opportunities for economic, social and political development of individuals, communities and the nation as a whole. This NRS case study raises significant questions regarding the efficacy of the NRS – a fundamental instrument of Australia’s USO, highlighting the ways in which the NRS continues to fall short as the bridge to telecommunications access for Australians who are Deaf, hearing impaired or speech impaired.

Throughout the research data-set, there was a strong voice for greater access and inclusion, calls for more functionally equivalent communications access and a universal theme extolling the essentiality of communications access and participation. Underpinning these themes of inclusive participation was a strong rhetorical reference by policy-makers and the government to the principle of equal access enshrined in disability inclusion policies.

However, it is clear from this case study that the simultaneous adoption of dichotomous policies, constrained by a tradition of disability discourse founded in neoliberal economics, implemented in the 2013 NRS contract created ongoing tensions between communications rights and economic sustainability. The inclusion of people with disability in the networks of telephony and internet in Australia has always been considered an afterthought and regarded as being secondary to the priorities of economic growth. Networks and business models in communications have been developed with little awareness of the barriers that this ableist dominance creates for those people who, for whatever reason, fall outside the able-bodied

‘norm’. Moreover, with this ableist focus prioritising connectivity and profits over access and inclusion, many Australians with disability have and continue to struggle to enjoy the benefits of connectivity to our increasingly digitally connected society.

130 It is thus apparent from this case study that not much has changed in Australia’s national communications policy positioning of disability access. In fact it can be argued that while some progress has been achieved, the view of communications rights for people with disability from a policy and industry perspective is much the same: if it doesn’t cost any more, then it can be included. In other words, the needs of people who are Deaf, hearing impaired or speech impaired continue to be predicated on a ‘charity model’ understanding of disability. It is this narrative of disability and otherness found in the various government documents and industry submissions that critical disability studies looks to overturn. It is when this narrative of disability goes unchallenged that the opportunity for and justification of inaccessibility and exclusion are able to prevail (Titchkosky, 2008).

So it appears that, adopting the UN Convention on the Rights of Persons with Disabilities, implementing a whole-of-government National Disability Strategy and policy document adoption of the ‘social model’ language of disability discourse has done little in terms of guaranteeing communications rights for the many people who rely on Australia’s National

Relay Service.

131 Chapter 6 Access to equipment: Marketing disablism

Introduction

As identified in the previous case study, the telecommunications ecosystem consists of a number of interconnected parts: network access, the right equipment and affordable connection. This case study discusses the essentiality of access to the appropriate telecommunications equipment for people with disability. In order to engage in Australia’s increasingly digital communications environment, people with disability – like those in the broader community – need the telecommunications equipment that meets their needs.

The chapter begins with a review of the historical barriers encountered by people with disability in accessing telephony since the introduction of Australia’s first public telephone network. The chapter then reviews the Australian communications policy approach to telephony equipment for people with disability – including an in-depth, critical analysis of the government’s 2009 public Inquiry into the Feasibility of a Disability Equipment Program

Independent of Carriers. This includes a critical evaluation of the government’s Discussion

Paper, the public submissions to the inquiry and the subsequent response, with a focus on how the changing nature of technology and disability has created a nexus of simultaneous empowerment and exclusion. This is followed by a review of a number of telecommunications industry-specific self-regulatory Codes and Determinations, which speak to the limited access experienced by people with disability when obtaining the appropriate equipment to engage in telephony. The chapter concludes with the proposition that the entrenched ableist positioning of people with disability as an unprofitable market group, along with the predominant neoliberal economic and self-regulatory policy approach by government, continues to create barriers for people with disability.

132 History of access to equipment

As discussed in an earlier chapter, the capability for people with disability to engage in

Australia’s telephony marketplace was not well considered or enabled for the first 100 years of public telephony (Bourk, 2000; Goggin & Newell, 2000a, 2000b; Goggin). For example, Deaf and hearing impaired Australians waited more than 100 years after the introduction of this telephony network to be able to participate in what had since become a ubiquitous communications channel for the broader community. It was the 1995 introduction of the

Commonwealth’s National Relay Service, reviewed in depth in the previous chapter, which facilitated the use of teletypewriters (TTY) to connect to the public switch telephone network

(PSTN), thereby enabling people who were Deaf or hearing impaired to communicate remotely with essential services, government agencies, businesses, and their families and friends (Bourk,

2000). Prior to this introduction of a National Relay Service, TTY users could only communicate remotely with other TTY users. Thus the legacy of Australia’s exclusion for people with disability was perpetuated in yet another domain: the telecommunications marketplace.

As with so much of the historical exclusion of people with disability in Australia, the consideration of telecommunications universal access was absent from Australia’s USO, which for two decades after its introduction as a government initiative ignored the essential aspect of accessibility with its single-minded policy intent of expanding the telephony network as a nation-building initiative (Bourk, 2000; Goggin, 1998; Goggin & Newell, 2000a; Wilson &

Goggin, 1993).

This tension between universally available connectivity, embodied in the USO, and universally accessible telecommunications exemplified the ableist approach entrenched in

Australian telecommunications policy and praxis. Australia’s continued inability to throw off

133 the paternal and exclusionary positioning of people with disability remained steadfast in the framework underpinning communications policy. Thus inclusive access to the network and greater access to appropriate telecommunications equipment for people with disability was a long-term priority for disability advocates Gerard Goggin and Christopher Newell (2003; see also BCA, 2018; CTN, 2002; TEDICORE, 2002). While incremental progress was achieved through keeping the issue of equitable access on the political agenda, the need for real policy change in the telecommunications sector was amplified with the introduction of mobile telephony. The potential ubiquity of anywhere, anytime telephony threatened to further exclude and disenfranchise Australians with disability. In repeating the ableist dominance that kept traditional STS services out of reach of the hearing impaired or speech impaired communities for decades, this move to new technology created its own barriers for many people with disability while simultaneously presenting opportunities for others. Many of the features included in mobile handsets were inaccessible for people with disability – for example, the silent display of SMS text messages meant that this functionality, while a boon for the hearing impaired community, was inaccessible for people with vision impairment. People with vision impairment were also unable to access mobile handset features such as the contact list, battery level indication and calling number display. Additionally, the small size of keypads on many mobile handsets created barriers for people with dexterity impairment.

Additional barriers to access were created with the switch from the analogue to digital mobile network in 2000. Whereas TTY users had been able to connect to the analogue mobile network with their mobile TTY, these devices were incompatible with digital mobile networks, thereby denying TTY users the benefits of the anytime, anywhere telephony that the rest of the

Australian community enjoyed with the move to next-generation mobile networks. Moreover, as international jurisdictions such as the United States and United Kingdom required that telecommunications providers ensured that Deaf and hearing and speech-impaired consumers

134 had access to TTY compatible digital mobile handsets, no such requirement was made of

Australian telecommunications providers (Federal Communications Commission, 2020).

Consequently, Australia’s TTY users have struggled to access real-time telephony when they are out and about for almost two decades.

Despite ongoing advocacy and lobbying from disability and consumer organisations, no government has mandated that these Australians have reliable access to emergency services when away from home or the workplace. A recommendation from the government’s response to the 2009 public consultation into Access to Electronic Media for the Hearing and Vision-

Impaired was that, ‘people with disability should have access to emergency services when at home and outside of the home. The Government has committed to the establishment of an SMS emergency service for people with disability’ (Department of Broadband, Communications and the Digital Economy, 2010).

However, while in 2014 a SMS relay service was introduced as an additional relay channel for Deaf, hearing and speech impaired consumers as a bridge to anytime anywhere communications, the store and forward nature of text messaging invalidated this as a real-time access channel to emergency services. In a risk-mitigation effort, the government initially specified that this SMS relay channel was not a reliable way to access triple zero and should only be used as a last resort and in conjunction with a voice call. The current information provided by the government no longer makes mention of the ‘store and forward’ nature of SMS relay, instead stating that a SMS relay call to triple zero will be prioritised by the NRS. In fact, the prioritisation of the call only occurs once the SMS has been received by the NRS and is not prioritised over the network (Department of Communications and the Arts, 2019). The ‘store and forward’ nature of SMS continues to make this relay channel unreliable in times of emergency.

135 This repeated ableist approach in the telecommunications sector – developing and adopting new technologies without consideration of their usability by people with different user needs – was further evidenced by the introduction of the second-generation digital mobile network. The magnetic interference on hearing aids from the new GSM handsets used over 2G networks made the handsets unusable for many people who used hearing aids (Australian

Association of the Deaf, 2002). It is evident from this repeated exclusion of people with disability as new technologies emerge that functionally equivalent disability access to communications has not been a high priority for either policy-makers or the telecommunications industry.

The essentiality of appropriate equipment

As with all Australians access to telecommunications for people with disability is an essential service. It is widely acknowledge that for many people with disability, being able to connect and benefit from telecommunications networks is dependent on having the appropriate equipment, be that mainstream equipment with built in access features or assistive equipment

(see Goggin & Newell, 2003; ACCAN, 2012). The appropriate equipment for a person with a disability varies according to individual circumstances – in other words there is not one piece of telecommunications equipment that will serve the access needs of all consumers with disability. Not being able to access and connect to today’s telephony networks creates barriers to opportunities across all aspects of Australian life – economic, social, cultural and community.

Telephony capability is a cornerstone of employment for most working Australians, so having the appropriate telephony equipment for a person with disability can make the difference between being able to gain and continue in employment or not. Furthermore, the ability to connect with family, friends and colleagues via telephony is a taken-for-granted

136 reality of everyday life for the majority of Australians. This capacity for telecommunications access is no less important for people with disability. It is within this opportunity paradigm provided through access to appropriate equipment that the distributive justice principles of equality underpinning Sen’s capability approach can be applied to disability communications policy. The embedded ableist nature of communications policy and praxis has historically thwarted equity of access for people with disability. It is through this critical evaluation of the policies interrogated in this research that the opportunities afforded by the CRPD can be recognised.

However, despite Australia’s ratification of the CRPD, for many Australians with disability myriad barriers to having the appropriate telecommunications equipment remain.

Information about accessible equipment is not readily available; issues of capability and confidence in using equipment create barriers for some people with disability; and barriers of affordability continue to make access difficult, if not impossible, for many people with disability. It has been widely reported that Australians with disability experience poverty at much higher rates than the rest of the population. In 2010, the Organisation for Economic

Cooperation and Development (OECD) reported that almost half of all Australians with disability were living in poverty (OECD, 2010). The same report indicated that Australia had one of the lowest levels of employment of people with disability of all OECD nations (OECD,

2010). It is clear that, with the introduction of digital and mobile technologies, opportunities for some people with disability have been created – mobile smartphones have enabled many people with disability to gain previously unimagined access, independence and autonomy. For example, with the introduction of the iPhone 3GS in 2009, it became possible for people who were blind or vision impaired to benefit from much of the functionality of the device through its built-in screen reading capability – Voiceover. Similarly, for people who were Deaf and whose first or preferred language was Auslan (Australian Sign Language), the capability of the

137 iPhone’s built-in FaceTime feature made real-time video chat possible (Goggin, 2016).

However, the retail cost of a new iPhone continues to be beyond the financial capabilities of many Australians living with disability. Similarly, the high cost of mobile data needed for video chat has been a barrier for many Deaf consumers. Statistics from the Australian Bureau of

Statistics (ABS) in 2017 indicate that more than 85 per cent of people with disability have no other income than the disability support pension, with a base rate fortnightly payment of $843.

The entry level price of the new iPhone XS was $1629 in December 2018. So, while there are both opportunities and barriers for people with disability in the new and emerging digital technologies, there is no clear policy pathway to ensure the inclusive adoption of these new products and services.

Inclusive design

Subsequent to Apple’s introduction of the iPhone 3GS, with its out-of-the-box built-in access features, such as Voiceover, Google’s Android operating system, used in numerous

Smartphone manufacturers’ handsets, began introducing similar access features. With each new release of both Apple’s iOS and Android’s operating systems, more access features are included.

That smartphones are being manufactured with increasing usability and accessibility features built in indicates a move by manufacturers towards the concept of universal design

(UD), also known as inclusive design. First coined by Ronald Mace in 1985, the term ‘universal design’ has become a ‘paradigm’ that has been driven by both legislation and societal need

(Ostroff, 2011). The legislative framework in Australia that has promoted the adoption of the

UD paradigm can be traced back to the Commonwealth Disability Agreement of 1986, the

Commonwealth Disability Discrimination Act 1992 and the adoption of the CRPD in 2008.

From a societal telecommunications framework, we can see that the ideals of UD were evident

138 in the 1981 Telecom report Disabled People and Telecommunications (Wilson & Keating,

1981).

The concept of UD is widely understood to consist of seven core principles:

• Principle 1: Equitable use. The design is useful and marketable to people with diverse abilities.

• Principle 2: Flexibility in use The design accommodates a wide range of individual preferences and abilities.

• Principle 3: Simple and intuitive use. Use of the design is easy to understand, regardless of the user’s experience, knowledge, language skills or current concentration level.

• Principle 4: Perceptible information. The design communicates necessary information effectively to the user, regardless of ambient conditions or the user’s sensory abilities.

• Principle 5: Tolerance for error. The design minimises hazards and the adverse consequences of accidental or unintended actions.

• Principle 6: Low physical effort. The design can be used efficiently and comfortably and with a minimum of fatigue.

• Principle 7: Size and space for approach and use. Appropriate size and space is provided for approach, reach, manipulation and use, regardless of the user’s body size, posture or mobility.

These principles were developed in 1997 at the Center for Universal Design as a model by which to develop, communicate and promote usable design of spaces, buildings and products

(NCSU, 1997).

Incorporating these principles in telecommunications equipment provides greater accessibility and usability for everyone, including people with disability. Examples abound highlighting how UD features incorporated into design elements for people with impairment

139 have subsequently been adopted by, and benefited, everyone. The most obvious example of this is the introduction of curb ramps in footpaths. Ostensibly provided to ensure that people in wheelchairs could safely and confidently cross the street, these ramps have been widely adopted by anyone needing to cross the street without having to step off the curb – for example, parents with children in strollers, delivery people with trolleys, cyclists and many more non- disabled people have benefited from the opportunities provided by these curb cuts (NCSU,

1997). In the communications sector, UD incorporated into the design and development of access features for people with impairment has also been adopted and widely utilised by the broader community. For example, while call vibration in mobile phones was initially developed to alert people with hearing impairment that the phone was ringing, this feature is used across multiple environments by people who can hear but don’t want to have their mobile phones ring audibly.

Furthermore, the introduction of cross-network short messaging service (SMS) text capability over Australian mobile telephony networks was in large part made possible due to the advocacy and lobbying of the Deaf community. While carriers introduced SMS functionality in 1995, it wasn’t until April 2000 that SMS was cross-platform capable, making it possible to SMS another mobile user regardless of which network they were using. This provided Deaf, hearing or speech-impaired Australians with the capability to contact others in the community when out and about in ways that had previously not been available. The significance of this new capability was highlighted in a survey of Deaf Australians undertaken by the Australian Association of the Deaf, indicating that Deaf consumer usage of SMS was

10 times the average usage of the broader community. While most Australians sent an average of 30 SMS text messages per month, many of those in the Deaf community indicated that they were making as many as 300 SMS text messages per month (Australian Association of the

140 Deaf, 2001). Incorporating inclusive design in new technology is paramount if that technology is to be an enabler for people with disability.

Inclusion and capability

For many people with disability, inclusion and the capability to participate in the telecommunications market are dependent on eliminating barriers – first, the physical barriers by providing accessible and usable equipment, and second, the societal barriers, the adoption and implementation of inclusive communications policies. By ensuring that Australians with disability have the appropriate equipment they need to connect, and by incorporating the principles of access and inclusion that are enshrined in the CRPD, greater opportunities and benefits become possible for people with disability. It is these opportunities, stemming from connectivity made possible by appropriate equipment that the principles of the CRPD promotes. Having access to the right telecommunications equipment can therefore ameliorate some of the communications barriers created by an ableist paradigm rooted in the neoliberal policy approach of market competition.

As discussed in my theoretical framework, when we apply Amartya Sen’s capabilities approach to disability – specifically to disability telecommunications equipment access – we are able to see the capabilities approach as a new opportunity to assess these barriers. Sen’s capability approach is interested in the capabilities individuals have through functionings and opportunity – in this example, the functionings available to people with disability through their capability to connect and participate in a telecommunications networked society as a result of having the appropriate telecommunications equipment. Thus, when we evaluate Australia’s disability telecommunications environment from the capabilities approach framework, we see how Sen’s theory, with its focus on functionality, can be ascribed to the functionality provided to Australians who are Deaf, hearing or speech impaired through access to the TTY. The

141 benefits are achieved not solely from the TTY equipment, but through the functionality that the appropriate equipment provides when it is capable of connecting to the PSTN via the operationalisation of the relay service – utilising the incorporation of a relay officer to relay the text in spoken word to the hearing party.

The struggle for equipment

With the government’s introduction of the National Relay Service in 1995, it became possible for TTY users to communicate remotely in real time with the rest of the community. For many people, however, the high cost of a TTY was financially out of reach. While the broader community was able to rent telephone handsets from Telstra for a low monthly fee, Telstra did not supply TTYs through its Telstra Disability Tariff Concession Policy (DTCP). The decision to exclude TTYs from the DTCP reinforced the predominant ableist approach to disability telecommunications access. Unable to see the hearing and speech-impaired communities as potential customers, Telstra’s approach positioned TTY users in what is now understood as the oppressive ‘charity’ model of disability. This positioning of disability was further reinforced through the government’s voucher system, providing subsidies to people who needed TTYs.

While the Commonwealth Disability Discrimination Act had been adopted in 1992, the government’s charity approach to disability telecommunications equipment indicated a complicity in the ableist discourse (Bourk, 2000).

The eventual capability for Deaf or hearing-impaired households to obtain a TTY at the same cost as a standard telephone handset rental was a result of disability discrimination litigation. It was the landmark 1995 ruling by the Australian Human Rights Commission

(AHRC) – at that time, the Human Rights and Equal Opportunity Commission (HREOC) – in the landmark disability discrimination case, Geoffrey Scott v Telstra Corporation Limited. The

Commission ruled that, by its refusal to provide TTYs to people who were Deaf, in the same

142 way it provided standard handsets to its hearing customers, Telstra was discriminating against such people. This case exemplified the entrenched ‘ableist’ approach on which the telecommunications market was predicated. Telstra’s defence was prosecuted on the claim that the company solely provided products – a telephony network and a standard handset, specifically the T200 – in other words, claiming that, ‘It was not in the business of supplying services described as access to a telecommunications service’ (Scott v Telstra).

A key aspect of this case was the significance of the social utility of the TTY for the complainant – and, by extension, all Deaf and hearing-impaired Australians. While not explicit in the Commission’s ruling, this evaluation of social utility having precedence over the financial implications for the respondent invokes the principles of justice and equity that underpin Sen’s capabilities approach. The opportunities afforded Deaf and hearing impaired consumers through equal access to equipment under the Telstra Disability Tariff Concession

Policy (DTCP) were clearly articulated in the Commission’s ruling:

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 defense of unjustifiable hardship has not been made out. (Scott v Telstra)

There have continued to be additional barriers of equity for people who rely on TTY access to the PTSN network (Bourk, 2000).

While myriad communication options have become available with the evolution of digital technologies, the opportunities of choice and mobility for those people who rely on the

NRS have been slow to eventuate. This ongoing struggle for functionally equivalent access to

143 telecommunications for the Deaf, hearing and speech-impaired communities is discussed in depth in Chapter 5.

Advocacy for change

As flagged earlier, there had long been efforts by disability and consumer organisations to promote greater access to telecommunications in Australia. Organisations such as the

Consumers Telecommunications Network (CTN), Deaf Australia and Telecommunications

Disability and Consumer Representation (TEDICORE) had been effective in keeping disability telecommunications issues on the political agenda. Researchers, including Gerard Goggin and

Christopher Newell, Scott Hollier and Michael Bourk were researching and writing on the intersection of Australian telecommunications and disability. This ongoing advocacy and research highlighted the limitations of communications policy in providing adequate support and inclusionary pathways for many in Australia’s disability community.

It was in part due to this changing environment of increased disability advocacy that a number of critical social policies and protection instruments were adopted, supporting the rights and inclusion of Australians with disability – instruments such as the Disability

Discrimination Act 1992 and the Commonwealth Disability Agreement (CDA) of 1994. So, while there had been broader social policies and initiatives promoting the elimination of

Australia’s long-held ableist norms, communications policies continued to struggle to promote the necessary protections for disability access in much the same way that they struggled to keep abreast of the rapid developments of the telecommunications sector.

It was in response to this milieu that the HREOC published its 2003 report, When the

Tide Comes In: Accessible Telecommunications for People with Disability in Australia (Jolley,

2003). It was this conundrum of advancing technological change in the face of unaddressed

144 disabling barriers that Australia’s Acting Disability Discrimination Commissioner, Dr Sev

Ozdowski, articulated in the foreword to the Commission’s report:

Advances in telecommunications technology are rapid, but people with disabilities have been left out of the loop. This is the major message of this discussion paper on access to telecommunications for people with disabilities. (Jolley, 2003)

In November 2003, HREOC hosted a major forum on telecommunications for people with disability in Parliament House. The forum included key stakeholders from disability organisations, industry and government, with the aim of examining the issues raised in the

Discussion Paper.

A key area of discussion at the forum was access to appropriate telecommunications equipment for people with disability. Recommendations 7 and 8 of the Discussion Paper raised the following questions at the Forum:

Q1: Should mobile phones be included in disability equipment programs, and if so, what is the best way to do this?

Q2: Would people with disabilities be better served by a cross-industry disability equipment program, and if so, how might it operate?

Disability advocates had been calling for a disability equipment program (DEP) independent of a single carrier. As the telecommunications industry expanded as a result of deregulation in

1997, the light-touch regulatory paradigm that the government had adopted in support of greater competition meant that many consumers were benefiting from provider choice – being able to pick and choose the provider that offered them the best value for their communications needs.

However, for people with disability, dependent on equipment that enabled their access to the network, there was little if any market choice. Under its licence condition, Telstra offered

145 the most comprehensive disability equipment program; the only other provider with a disability equipment program was Optus. Telstra’s DEP offered access to TTYs, volume-controlled handsets and a number of ancillary items that could assist people with disability. The Optus

DEP was limited to customers on Optus’s direct-line network in metropolitan Sydney,

Melbourne and Brisbane, and offered TTYs and a volume-controlled handset. Thus the myriad market choices that the rest of the community enjoyed were not available to people who relied on alternative technologies. This was another example of the predominance of the ableist norm

– a tokenistic provision of ‘equal’ access for people with disability that was flagged by the

Australian Productivity Commission as potential ‘discrimination’.

Reporting in its review of the Telecommunications Competition Regulation Inquiry of 2001, the Productivity Commission – when considering a claim in a submission that

Telstra was discriminating against a consumer with a disability by bundling rental TTY equipment with line access – asserted that the discrimination was not by Telstra, but rather entailed potentially discriminatory practice by other carriers, as they did not provide

TTY rentals to potential customers with disability (Productivity Commission, 2001). The inquiry also noted that a number of submissions recommended that consumers with disability would be more equitably served if there were a disability equipment program providing telecommunications equipment that was independent of any one provider, citing both the Australian Communications Exchange submission and the TEDICORE submission in the report (Productivity Commission, 2001).

Enabling public policy

In 2006, the year that the United Nations formally adopted the CRPD, the Department of

Communications, Information Technology and the Arts (DCITA) commissioned research into the provision of telecommunications equipment to consumers with disabilities. The terms of

146 reference, while wide-reaching, were focused squarely in a medicalised and charity positioning of disability, with a strong focus on projecting future need and cost of the provision of disability telecommunications equipment:

Effectiveness of current arrangements

Having regard to the current regulatory and self-regulatory arrangements for the provision of telecommunications equipment to people with a disability, examine the effectiveness of these arrangements in meeting the requirements and needs of consumers with a disability.

Examine international arrangements for the provision of telecommunications.

Equipment to consumers with a disability and compare these with the arrangements in place in Australia.

Consult with consumers, including potential consumers, of disability equipment services to determine their awareness of, experiences with and attitudes towards the current equipment programs available to them and their requirements for access to new and emerging technologies and services over the next 5–10 years.

Key issues for the future

Examine current research into new and emerging digital telecommunications technologies that could provide improved access for people with disabilities to telecommunications services. This should include consideration of equipment connectivity and compatibility issues, the suitability of specialised equipment, such as TTY, to meet the needs of people with disabilities, emerging technologies such as multimedia and VoIP applications, and access to other services including mobile phone and Internet services.

Examine the likely demand over the next 5–10 years for access to telecommunications customer premises equipment obtained through disability equipment programs. This should include emerging areas of need such as the aging population, Indigenous communities and people living in non-urban areas. The impact of any proposed alternative arrangements on industry and government should also be identified.

147 Cost of existing carrier disability equipment programs

Conduct an assessment of the estimated annual and per capita cost of delivering the disability equipment service to consumers under the current regulatory and self-regulatory arrangements and any proposed alternative arrangements. (Allen Consulting Group, 2006)

The review highlighted a number of issues impacting the capability of consumers with disability to equitably access the telecommunications market. These included difficulty in accessing appropriate information about new equipment, issues of affordability and the limitations imposed by the Universal Service Obligation – access to a STS. In its evaluation of the current arrangements the review found that while the majority of requests for disability equipment were fulfilled, there were significant limitations in the overall efficacy of the arrangements to meet the needs of all consumers with disability:

The fact that there are implementation issues at the carrier level shows that the current regulatory and legislative arrangements are not by themselves fully effective in providing all customers with disabilities with access to the STS. (Allen Consulting Group, 2006)

And while the report acknowledged that there existed mobile and digital equipment and products that could provide greater access to telecommunications for some people with disability, the legislative and regulatory environment did not extend beyond the STS.

Extending the scope of the USO or the current equipment arrangements to apply to equipment and software that facilitates mobile phone or Internet access for someone with a disability is not currently feasible. (Allen Consulting Group, 2006)

This statement, arguably an over-reach in making an evaluation outside of the terms of reference, is clearly situated in a neoliberal economics framework. That it was not feasible to remake the USO to be fit for purpose in a mobile and digitally connected telecommunications

148 environment, which could be more inclusive of people with disability, echoes the rhetoric of the predominant ableist positioning of Australia’s telecommunications policy environment.

So, while there had been considerable lobbying by disability advocates, multiple inquiries and a national forum discussing the merits of providing people with disability with greater access to telecommunications equipment, the status quo continued, ensuring that

Australians with disability continued to struggle to connect and benefit from a burgeoning telecommunications market. Again, we can see how the compounding impact of neoliberal policy priorities, an entrenched ableist industry approach and outdated regulation create ongoing barriers for people with disability. Moreover, when we evaluate Australia’s disability communications environment from Sen’s capability approach, we see how these compounding barriers prevent people with disability from equity of opportunity and the consequent freedoms that are being enjoyed by the broader community.

Feasibility study into an independent disability equipment program

In what was seen by disability organisations and people with disability as a positive initiative in light of Australia’s recent ratification of the CRPD, the Minister for Broadband,

Communications and the Digital Economy, Stephen Conroy, announced on 16 February 2008 that the government would undertake a feasibility study into an independent disability equipment program. Speaking at the Signposts for Change: People with Disability and

Telecommunications Forum, the minister made a commitment to the investigation of how people with disability accessed Australia’s rapidly changing telecommunications marketplace.

The proposal for a disability equipment program (DEP) that was independent of carriers had been advocated for by many leading disability organisations for several years (Consumers

Telecommunications Network, 2002), with assertions that the existing DEPs offered by Telstra and Optus were limited in both their range of equipment and the accessibility of their services.

149 To access either of these, a person with a disability needed to be a customer of the respective provider. Furthermore, both DEP programs were limited to the narrow interpretation of the

USO in which provision of access to a standard telephone service and the equivalent was all that needed to be made available, thereby excluding people with disability from access to the growing range of increasingly essential digital telephony products and services.

In March 2009, the Department for Broadband, Communications and the Digital

Economy (DBCDE) released a discussion paper for the consultation, inviting submissions from interested stakeholders. The DBCDE was tasked with undertaking the inquiry and reporting back to the government by the end of 2009. As with other government consultations of the period, including the later 2011 Review of Access to Telecommunications services by People with Disability, Older People and People Experiencing Illness, discussed previously, the framework of this Discussion Paper had overtones of a typical medical model approach to disability. Included in one of the key terms of reference was an investigation and evaluation of the ‘eligibility’ criteria used to establish an individual’s need for equipment – an evaluation positioned squarely in a ‘medicalised’ determination, whereby the focus of the evaluation was on ‘fixing’ the individual. This approach was at odds with the Discussion Paper’s overarching rhetoric of ‘social’ model access and inclusion. Referencing the CRPD, this rhetoric evoked a telecommunications policy in which the value of the equipment to an individual was paramount as a way to provide opportunity.

As the first comprehensive disability telecommunications review post Australia’s adoption of the CRPD, there were expectations among the disability community that progress could be achieved. The inclusive rhetoric of the Discussion Paper spoke to the essential nature of telecommunications access for all Australians, including people with disability, and made reference to the CRPD’s ‘social ‘positioning of disability. It was the terms of reference that, on

150 critical evaluation, echoed the status quo. Reminiscent of previous reviews, including the 2006 research discussed above, the terms of reference were no different in their focus and intent, with a typical medical and charity model positioning of disability. With little expression of an inquiry into the possibilities that functionally equivalent access to telecommunications equipment could provide for people with disability, the terms of reference focused on eligibility, need and cost.

The terms of reference to be investigated in the consultation were:

1 The size and nature of the Australian market for specialised telecommunications equipment* including an estimate of the demand for such equipment over the next five to 10 years, together with eligibility criteria that should apply to accessing this equipment at standard equipment comparable prices. This will include:

i an examination of how provision of specialised telecommunications equipment to people with disabilities is catered for in other comparable countries; and

ii the current arrangements in Australia for people with disabilities to obtain specialised equipment, the eligibility criteria that are applied to the provision of such equipment and the process for selecting equipment to include in current disability equipment programs.

2 The types of organisational models that could be established or adapted to deliver an independent disability equipment program including an assessment of the merits of each model proposed.

3 The types of governance structures, such as a board of directors, council, or other structure, that could be put in place to manage the operation of an independent disability equipment program.

4 The types of equipment, software and other technologies that should be included on an independent disability equipment program, including an assessment of whether or not certain types of equipment are available in

151 Australia, and if not whether they should be available.

5 Options for funding an independent disability equipment program, including an assessment of projected costs.

The consultation received a significant number of submissions from a wide range of stakeholders – people with disability, disability and consumer organisations, telecommunications carriers and carriage service providers, regulators and a number of government agencies. In addition to these 39 written submissions, the DBCDE undertook a number of one-on-one consultations with consumers, industry and government, and conducted several focus groups.

Of the 39 submissions that the consultation received, 29 were from disability advocates or disability organisations (Table 6.1). This large number of submissions indicates the significance of the consultation for the disability community. Moreover, this high number of submissions by the disability sector speaks to the efficacy of the sector as a politically engaged voice. No longer willing to be silent and accept the status quo, the Australian disability community had become a strong and strategic player in the public policy arena.

The growing international movement of disability advocacy over the previous years had been adopted by the Australian disability community. As with other comparable nations, the incidence of disability in Australia was close to 20 per cent of the population, and with almost one in five Australians living with disability, the voice of this large minority was challenging government to do more. The social model of disability, the foundation of the CRPD, empowered a strong and committed movement for change. Inspired by the principles of access and inclusion enshrined in the CRPD, many of the disability sector submissions to the consultation supported their arguments for an independent disability equipment program by referencing Articles of the CRPD.

152 Table 6.1: Disability community submissions

Able Australia Australian Communication Australian Federation of Deaf Exchange Societies

Australian Federation of AGOSCI Australian Seniors Computer Disability Organisations Clubs Association

Blind Citizens Australia Communication Rights Consumer Australia (CAUS) Telecommunications Network

Deaf Australia Deaf Council of New South Deafness Forum of Australia Wales

Deaf Services Australia Deaf Society of New South Independent Living Centres Wales – WA

National Council on National Disability Services National Ethnic Disability Intellectual Disability Alliance

NovitaTech Royal Society for the Blind Tasmanians with Disabilities of SA

TEDICORE Vision Australia Westwood Spice

Women with Disabilities Alex Varley Helen Willett Australia

Hugh Ralston Richard Stubbs Stefan Slucki

For example, Deaf Australia made reference to Article 4 (g):

To undertake or promote research and development of, and to promote the availability and use of new technologies, including information and communications technologies, mobility aids, devices and assistive technologies, suitable for persons with disabilities, giving priority to technologies at an affordable cost, to support the position that new technologies suitable for Deaf consumers should be available through an independent equipment program at the same cost as the general community pay for equivalent equipment.

Given that the government had recently ratified the CRPD, there was a renewed unified call for functional equivalence in telecommunications for Australians with disability.

153 One of the prominent themes recurring throughout the submissions from the disability sector was the essentiality of access to communications. As with the rest of the community, access to digital communications provides people with disability with greater independence, economic, social and community participation and opportunity. In essence, these calls for functional equivalence are an interpretation of the principle of distributive justice underpinning

Sen’s capability approach: access to the appropriate equipment will provide people with disability opportunities and freedoms they have previously been denied. This was thus an important argument in the support for an independent DEP. For example, the submissions from

TEDICORE, Blind Citizens Australia and the Deafness Forum all discussed the benefits of functionally equivalent access to telecommunications for people with disability (BCA, 2018;

Deafness Forum of Australia, 2011; TEDICORE, 2002), reinforcing the call for a stronger foundation in a social model positioning of disability in Australian public policy. The inherent ableist barriers predominant in the history of Australian telecommunications policy and praxis can be overcome through accommodations that can ameliorate these barriers. This argument was a fundamental aspect of most of the submissions made by members of the disability community, both individual and organisations.

One other aspect of the disability community’s engagement in the consultation was a need to move away from the restrictive and narrow interpretation of the STS under the auspice of the USO. That people with disability should be limited to accommodations that only allow access to a fixed line telephone service was considered incongruent with the widely adopted advances in digital technologies of the time. Blind Citizens Australia’s submission called out this inequity in stating that the STS was no longer the Australian telephony standard; that the telephony standard of the day was indeed the mobile telephone and that any independent disability equipment program should include not only STS access but also mobile and broadband access. Furthermore, the submission from TEDICORE asserted that there needed to

154 be a new model for a disability equipment program that moved away from the USO legislation, recommending the adoption of TEDICORE’s suggestion to the 2007USO Review ‘that the definition of basic phone services be expanded to “basic communication services” such as mobile and Voice over IP [VoIP], Text over IP and Video over IP over all access technologies including wireless and mobile’.

Inclusive design was another of the dominant themes in the submissions of the disability community, calling for greater inclusion of access features in the design of mainstream equipment as a way of ameliorating both barriers to use by people with disability and the need for expensive one-off specialised equipment solutions. There were many examples cited in these submissions regarding how people with disability have adopted alternative uses for built- in features of equipment to provide unmet needs. One example is Deaf consumers using video chat to communicate in Auslan, thus alleviating the need to have adequate English proficiency to utilise text-based telecommunications options (Able Australia, 2011; Deaf Australia, 2016).

Hand in hand with the theme of inclusive design was a strong narrative focused on the affordability of equipment. A number of submissions highlighted the extraordinary higher cost of access for people with disability (see Able Australia, 2011; BCA, 2018; Vision Australia,

2018). For many people with vision impairment, the cost of an accessible mobile handset – one that was compatible with add-on screen reading software, was in the vicinity of $900 with the additional software costing another $350. Blind Citizens Australia argued that this $1250 price for an accessible mobile phone highlighted the need to expand the narrow definition of the STS in the USO (see BCA, 2018). That some people with disability needed to spend $1250 for an accessible mobile handset highlighted the lack of functional equivalence in the telecommunications market. Vision Australia’s research indicated that more than 60 per cent of Australians with vision impairment were unemployed or under-employed, and therefore unable to pay $1250 for mobile telephony (Vision Australia, 2018). Although not released at

155 the time of the consultation, a 2010 report from the OECD indicated that nearly half of all

Australians with disability lived in poverty (OECD, 2010).

Lack of choice for people with disability was the other significant theme identified in the submissions from disability stakeholders. With Telstra’s disability equipment program offering the widest range of equipment, it was broadly understood that the majority of people with disability in need of specialised equipment were obliged to become Telstra customers. While there was also acknowledgement that Optus offered a more limited equipment program, the limited coverage of the Optus fixed line network meant that anyone outside of the Optus network footprint needed to be a Telstra customer. The Australian Communications and Media

Authority (ACMA) reported that in 2009 there were 391 fixed line service providers (ACMA,

2009). While any CSP with a wholesale arrangement with Telstra could arrange to supply

Telstra disability equipment to its own customers, the legislated requirement only required those CSPs who provided handsets to also provide equivalent disability equipment. Thus a consistent argument found in the submissions from the disability community was that consumers with disability could not benefit from the competitive market due to the lack of access to disability equipment. A disability equipment program independent of carriers would provide consumers with disability with the same choice and benefits of industry competition that the rest of the Australian community was enjoying, thereby providing a functionally equivalent telecommunications marketplace.

Of the 39 submissions to the consultation, six were from members of the telecommunications industry (Table 6.2). Two of the submissions from industry were from

Telstra and Optus, the only providers of disability equipment programs. Telstra did have a wholesale arrangement with its network resellers, making it possible for them to obtain disability equipment from Telstra for provision to their own customers.

156 Table 6.2: Telecommunication Industry submissions

Australian Mobile Communications Alliance Optus Telecommunications (CA) Association (AMTA)

Telstra Trillium Technologies Unwired Australia

A prominent theme found in the submissions from industry was the argument that the provision of equipment for Australians with disability should be the role of broader disability and social inclusion programs and policies, not the role of the telecommunications industry

(AMTA, 2011; Telstra, 2019). In acknowledgement of the industry’s commitment to this position, it was to be reiterated in the 2016 Communications Accessibility: 2016 and Beyond inquiry into the sustainability of the NRS. This position of deflecting responsibility in the provision of equipment for people with disability is the same position that Telstra took in the

1995 Scott v Telstra disability discrimination case, where Telstra argued that it was not in the business of providing a communications service and therefore was not required to provide disability equipment. Inherent in this argument is the supposition that because people with disability are unable to use mainstream technologies – those technologies designed under the traditional ableist approach – it should be government policies that provide the necessary accommodation. Interestingly, there was no mention of these accommodations being included as part of a holistic customer service approach by industry, despite people with disability ultimately being the customers of these industry members, consuming the same product and paying the same price as their non-disabled customers. This ‘other’ positioning of people with disability was the historical foundation of disability discrimination evident in the various public discourses that underpinned the ‘charity’ and ‘medical’ modelling of disability. This discourse has been resisted by the disability community striving to overturn these exclusionary precepts

157 through the ‘social’ and ‘human rights’ positioning of disability. It is this ‘otherness’ positioning of disability as a disabling discourse that the CRPD is designed to overturn.

Another of the recurrent themes found in the submissions by industry was the adoption of access features in mainstream products and equipment (AMTA, 2011; Optus, 2019). As inclusive design had also been a significant theme throughout many of the submissions from the disability community, it is interesting to compare and contrast the context in which this concept was presented. In the call for greater access features in mainstream technologies from the viewpoint of people with disability, this was seen as a way to reduce the ‘ableist’ barriers to access – an essential aspect of greater inclusion for people with disability. From the viewpoint of the industry submissions, this concept of inclusive design was again seen as potential cost-cutting efficiencies in removing the need for specialised equipment or special programs for people with disability (see Optus, 2019; Telstra, 2019).

In a counter-argument to the argument of industry, Deaf Australia’s submission noted that while universal design will make mainstream products and equipment usable for people with disability, universal design is still an aspiration, and some people will continue to need specialised equipment.

It can be argued that the telecommunications industry ultimately bears the responsibility in this situation. Had technology and equipment used to access telecommunications networks included the needs of all customers from inception, there would be little, if any, need for specialised equipment or a disability equipment program. That this discussion was still being debated several years after Australia’s adoption of the CRPD indicates the level of entrenchment of the ‘able’-bodied dominance in technology, policy and public discourse.

158 Government position

Included in the submission to the consultation were a number of submissions from government agencies and authorities (Table 6.3).

Table 6.3: Government agency submissions

Australian Communications Australian Human Rights Department of Education, and Media Authority Commission Employment and Workplace Relations

Department of Health and Department of Veterans’ Disability Services QLD - Ageing Affairs Home and Community Care Branch

The Department of Families, New South Wales Telecommunications Housing, Community Department of Ageing, Industry Ombudsman Services and Indigenous Disability and Homecare Affairs

There was considerable scope in the consultation for comments from government agencies, in particular where the terms of reference investigated current programs and policies for people with disability. The inclusion of questions about the range of initiatives that were currently providing aids and equipment, how telecommunications equipment featured in these initiatives and the inclusion of discussion questions with a focus on the role of the

Commonwealth Disability Agreement and the future National Disability Strategy in providing access to telecommunications equipment and services for people with disability were all addressed in the submissions from government. These questions also provided an opportunity for industry submissions to indicate their preference that access to specialised telecommunications equipment be the role of government inclusion policies.

Government’s response

This suggestion was given considerable consideration in the government’s final report on the consultation. Concluding that there was not strong enough evidence for the implementation of

159 a disability equipment program independent of industry, the report abrogated much of its decision-making responsibility by focusing on the potential role of both the NDS and the recently announced National Broadband Network (NBN). Acknowledging that with the progressive ageing of the Australian population and the undisputed evidence of age-related impairment increasing with an ageing population, the report supported the status-quo as the most appropriate (in)action to take.

When considering this choice of (in)action against the principles of access and inclusion that are enshrined in the CRPD, underpinning the government’s adoption of the ‘social’ model positioning of disability, we see the traditional ‘ableist’ norms continuing to establish and enforce barriers for Australians with disability. Evaluating this outcome from the viewpoint of critical communications research, one has to conclude that the DBCDE bureaucrats sat squarely on the administrative side of communications policy research, preferring the status quo over emancipatory policy action. The constraining belief in the status quo meant that people with disability would continue to be entrenched in outdated access to the plain old telephone service

(POTS) while the rest of Australia was being carried along on the rapidly evolving digital networked economy.

Disability equipment policy

ACMA disability equipment

Australia’s USO, in place since 1975 and discussed in detail in Chapter 2, includes requirements for equipment to enable people with disability to access the standard telephone service (STS) under the USO. These equipment requirements have been in place since 1998 and are guaranteed under the Telecommunications (Equipment for the Disabled) Regulations

1998 (Table 6.4).

Table 6.4: ACMA disability equipment

160 Equipment that allows access to the One-touch dialling memory National Relay Service

Hands-free capability Built-in hearing aid coupler

Cochlear implant telephone adapter Volume control

Alternative alerts to indicate that the Lightweight handset telephone is ringing

The facility to connect a second piece of equipment in parallel with the existing telephone

Telecommunications (Equipment for the Disabled) Regulations 1998

While these requirements ensure that many people with disability are able to access a voice- equivalent STS, these equipment requirements have not expanded with the advances that have occurred in telephony. In addition to the requirement for provision of equipment, there is a

Telecommunications Industry Standard applicable to all telephone handsets sold in Australia.

This Standard – Telecommunications Disability Standard (Requirements for Customer

Equipment for Use with the Standard Telephone Service: Features for Special Needs of Persons with Disabilities – was developed under the auspices of the Australian Communications

Industry Forum (ACIF) with input from industry, and from consumer and disability advocates.

In what is arguably an example of how the self-regulatory approach does not always work in the interest of consumers, a list of multiple recommendations were suggested to be included in the Standard from the consumer and disability participants, yet only two of these were included in the final document:

• a raised ‘pip’ on the ‘5’ digit key – assists in navigating keypad

• hearing aid couplers built into the handset – reduces handset magnetic interference with hearing aids.

161 As telecommunications equipment and services have undergone significant change and advancement in the intervening years, the provision of equipment for people with disability has remained static, relegating many people with disability to rely on legacy services and outdated access to the digital advancements that the rest of the community takes for granted.

Furthermore, these outdated requirements undermine the intent and possibilities exemplified and encouraged not only in the CRPD but also in a number of social policies that Australian governments have enacted to promote the inclusion and participation of people with disability.

For example, COAG’s National Disability Strategy 2010–2020, endorsed in 2011, has six areas of policy action to facilitate greater inclusion and participation of people with disability. The first of these policy areas is ‘Inclusive and Accessible Communities’. The policy action to achieve this includes:

Policy Direction 5: Communication and information systems that is accessible, reliable and responsive to the needs of people with disability, their families and carers.

In the 2017 Australian Senate Committee on Community Affairs’ review of the NDS, it was clear from the submissions made by consumer organisations that these policy areas were not being implemented effectively. There were numerous examples of limited progress in communications and information access for many people with disability (see ACCAN, 2016).

Industry self-regulation

Light-touch regulation has been a preferred policy approach in Australia’s communications market since the deregulation of the market in 1997, resulting in the industry adopting a self- regulatory framework in code of practice and industry guideline development. As seen in the discussion of the three disability communications policy areas in this research, the role of government in the policy agenda and development process has been led by the Department of

162 Communications – with several variations on the name under different governments – while the monitoring and compliance of these policies has been undertaken in large part by ACMA, previously the Australian Communications Authority (ACA). The telecommunications sector has not only been driven by these government institutions, but the industry association,

Communications Alliance – previously ACIF – has played a significant role in developing codes and guidelines to address issues of governance and best practice for industry members.

This largely self-regulated environment has not always had effective regulatory oversight from a consumer safeguards perspective. An example of this is evident from my participant observer insight, through my role as Disability Policy Adviser with ACCAN. ACCAN commissioned two independent research surveys of the telecommunications industry sales staff’s knowledge of disability, the first in 2014 and the second in 2016. Both surveys found that the knowledge of available disability access features in telecommunications equipment or services was woefully inadequate. These findings indicate that, while there is a requirement in the

Telecommunications Consumer Protection Code (TCP) for telecommunications providers to make information about disability equipment and services available to consumers, in the majority of cases this does not happen.

It was not until after the second survey that the ACMA undertook its own survey on the availability of disability access information from telecommunications providers. While the findings from the ACMA research indicated that this was a systemic issue, it raises questions about the efficacy of this self-regulatory approach, in which the monitoring of compliance is driven by consumer complaints. In a move that has been applauded by the disability sector, the findings of the ACMA research resulted in formal warnings being issued to the three major telecom companies, Telstra, Optus and Vodafone (ACMA, 2019). The ACMA warnings highlighted that, by failing to provide critical information to their customers with disability, the telecom companies were in breach of their obligations under the TCP.

163 Benefits of competition

While both Telstra and Optus have been providing DEPs since the early 2000s, these programs afford access to a limited range of disability-specific telecommunications equipment.

Consumers with disability who are reliant on the equipment available from these programs are thus limited in their choice of provider. This limited choice of provider has been an issue of concern for disability and consumer advocates lobbying for equity of choice in order for consumers with disability to benefit from the competitive marketplace. While the government’s policy intent of deregulation has been to encourage the economic growth of the sector and a competitive market that would benefit consumers, there has been little policy consideration of how this competition would impact people with disability. This oversight has allowed the market to continue to create barriers for people with disability. With its focus on neoliberal economic principles and light-touch regulation over social considerations, the telecommunications market, as well as the communications policies supporting this market, reflect Manuel Castells’ (1996) assertion that the state has a part to play in the technologies that are available by either stalling, unleashing or leading technological innovation.

Conclusion

This chapter has outlined how access to appropriate telecommunications equipment for

Australians with disability has long been a significant barrier to inclusion and opportunity. That

Deaf and hearing-impaired consumers who relied on TTYs to access the public switch telephone network were denied equivalent access to this equipment by the national carrier,

Telstra, indicates the level of systemic entrenchment of the ableist discourse in the telecommunications sector, and by extension the telecommunications public policy arrangements. That Australia’s Telecommunications Disability Standard (TDS) has not changed since its inception in 1998 speaks to the continued positioning of disability discourse

164 as ‘other’. While telecommunications and communications technologies have evolved, bringing greater opportunities and benefits for those who are able to access the increasingly ubiquitous digital networks, many people with disability have been and continue to be left behind as a result of outdated and exclusionary policy. This chapter highlights how the ableist approach to telecommunications, founded in the ideals of neoliberal economic principles of market power and competition, has continually ignored the needs and inclusion of people with disability. Transitioning to digital networks, introducing new products and converging media have exemplified how people with disability have been ignored – as both valued customers and entitled citizens. It is apparent from the chapter’s evaluation of the 2009 feasibility study into an independent disability equipment program that communications policy in Australia is most comfortable with the status quo, and that minimising expenditure – both public and industry – has been preferred over provision of equal access and inclusion. This position is articulated in the following statement in the government’s report: ‘The current arrangements are effective in providing people with disabilities with basic access to an STS over the PSTN.’

While there is much rhetoric incorporating the principles of social model disability discourse, including references to valuing the inclusion and participation explicated in the articles of the CRPD, the adoption of inclusive communications policies has been thwarted by prioritising cost over equality. If Australians with disability are to be included and to benefit from our increasingly connected society, the principles of access and inclusion articulated in the CRPD need to be implemented in future telecommunications policy.

165 Chapter 7 Online television and video on demand: Disruption or more of the same?

Introduction

Equitable access to the appropriate communications equipment is just one aspect of the disability accessibility paradigm. As discussed in the previous chapters, both network connectivity and accessible communications equipment are fundamental if people with disability are to be able to participate in and benefit from today’s ubiquitous digitally networked communities. However, another essential aspect of inclusion and participation is the availability of fully accessible digital information and online content. In the converged media environment of the twenty-first century, all these factors – networks, equipment and information – need to be accessible if people with disability are to be fully included and to benefit from this digital convergence. This chapter evaluates one aspect of information accessibility: Australia’s online audio-visual content, specifically online catch-up television and video on demand (VOD). Prior to the introduction of a number of new VOD services, such as Netflix Australia, Stan, Presto – widely referred to as the ‘streaming wars’ of 2015 – there were limited offerings in the Australian VOD market (Tucker, 2015). Free-to-air catch-up services were gradually introduced from 2008; however, there was little in the way of subscription VOD. For example, TiVO, a forerunner to streaming services, while successful in the United States, had a short-lived Australian lifespan during the late 2000s (Meese et al.,

2015). Australia’s first streaming subscription service was introduced by Quickflix in 2011, expanding the company’s offering of an online DVD rental service. This was followed in 2013 with EZYFlix, the streaming subscription service that grew out of EZYDVD, another online

DVD rental service. It is this growing plethora of new and emerging online audio-visual

166 services that is disrupting the traditional television and movie market, changing the way consumers engage with audio-visual media, by providing consumers with unprecedented flexibility and greater control over when and how they consume audio-visual content. No longer are consumers constrained by television consoles or cinema screening schedules when wanting to view television or movies (Bury & Johnson, 2015; D’heer & Courtois, 2016). This chapter investigates how this VOD market ostensibly denies this increased flexibility and control for Australian VOD consumers with disability by not providing the access features needed to make the content accessible to all.

Whereas digital terrestrial television in Australia is directed by the Broadcasting Services

Act 1992 (amended in 2012) to provide limited access services for people with disability – specifically closed- captions – this disruptive VOD market is as yet unregulated in terms of mandating accessibility (Ellis, 2014; Media Access Australia, 2015). Consequently, there is a paucity of access services in place to make these ‘anytime, anywhere, any device’ services accessible for Australians with disability.

This chapter examines how these VOD services create a nuanced interpretation of the digital divide in Australia, expanding on the traditional binary concept of the digital divide: that of connected or not connected. Furthermore, the chapter expands the concept of a ‘second- level’ digital divide, proposing that there is another manifestation of digital divide – in this case, a digital divide created when information delivered over digital networks is inaccessible to people with sensory impairments. The term ‘disability digital divide’ is adopted to explain what it means to be denied access to the information that digital networks can deliver.

Second, the chapter examines the role that Australia’s existing broadcasting and media policy frameworks have played in exacerbating this disability digital divide. It illuminates how

Australia’s neoliberal public policy approach has prioritised ableist norms over inclusive social

167 policies in media and communications. Further, it asserts that social resistance to these ableist norms will continue to be paramount for Australians with disability if they are to gain access to and benefit from these VOD services. It argues that the principles of access and inclusion enshrined in the CRPD are the enablers necessary to legitimise this resistance.

The chapter concludes by examining how other jurisdictions are making progress in providing greater access to online audio-visual media for their citizens with disability, offering a critical summary of, and suggestions for, amendments in practice and some hope for more inclusive options in future planning.

Audio-visual access features

Audio-visual media, across any platform or delivery model, have the potential to be fully inclusive for all viewers. Cinema, television and online audio-visual presentations in today’s digital ecosystem can, and often do, include the necessary features to include people with any manner of abilities. Captions, closed or open, enable people with hearing impairment – be that because of Deafness, hearing loss, noisy environment or simply needing to have the volume off – to view and understand what is being said on screen. Similarly, audio description enables people with vision impairment to understand what is being visibly displayed on screen.

Including on-screen sign language interpretation enables people who are Deaf and use sign language as their first and preferred language to follow the dialogue. The digitisation of audio- visual delivery platforms has made these and many other features potentially life-transforming for many people with disability.

Captioning

Captioning is the display in words of the aural elements of a program (i.e. the dialogue, narration and sound effects) as the program is being displayed on screen. Captions are similar

168 to foreign-language subtitles, except that they also include non-spoken aural information such as sound effects. Captions on online audio-visual content such as catch-up television, streaming services and VOD services provide access to essential information for viewers who are Deaf or hearing impaired, providing the audio-equivalent information that is an integral part of any audio-visual content.

Audio description

Audio description refers to a verbal commentary used to describe key visual elements of a television program, film or live performance or event. Identification of speakers, description of gestures, facial expressions, locale, scene changes and other visual content are narrated. If dialogue is present as part of the program or event, these narrations are inserted during breaks in the dialogue. Audio description of audio-visual content delivered over digital platforms such as television, catch-up services, streaming services or VOD enables blind or vision-impaired viewers to fully experience the content.

On-screen sign language interpretation

In the same way that captions provide an alternative communication of the verbal dialogue of audio-visual content for viewers who are Deaf or hearing impaired, sign language interpretation provides the dialogue in sign language for people whose first and often preferred language is sign language. Sign languages use hand and finger shapes, movement, body language and facial expressions to convey meaning.

While this research is limited to the provision of captions and audio description, there are a number of other access features that make audio-visual content accessible and usable by more viewers. In researching these possibilities, Katie Ellis (2014) suggests that in the digital environment these ‘accommodations’ are in fact user preferences in a fully digital context – in

169 other words, the broad reach of universal design theory changes what have traditionally been seen as disability accommodations to more general consumer preferences. Delivery platform accessibility, for example, can vary from those platforms that are designed and developed with

UD principles at their core to platforms where different user needs have not been considered.

The W3C Web Content Accessibility Guidelines provide comprehensive guidance on how to incorporate the principles of universal design in digital online development. The discourse on digital disability accessibility has been widely covered in disability studies, socio-technical studies and across government and business for many years (Ellcessor, 2016; Ellis & Kent,

2011). Remarkably, a predominance of inaccessible technologies and digital services still exists.

History of access features on broadcast television

There is a long history of disability advocacy underpinning the current provision of caption services on Australian free-to-air and subscription television. Captioning for the Deaf and hearing impaired communities was first broadcast on Australian television in 1982, with a limited number of programs being captioned voluntarily by broadcasters (Mikul, 2015).

Beginning in the early 1990s, the tension between the interests of broadcasters, a government pursuing a neoliberal economic business approach and the needs and rights of Australians with disability created an environment in which access to television for people with disability was squarely part of the political and public discourse. In 1998, the HREOC, now the AHRC, undertook an inquiry into the provision of captions on Australian television (AHRC, 1998).

The inquiry, Closed Captioning of TV Material, received 13 submissions, including five from disability and community organisations, four from television broadcasters, one from a captioning service, two from individuals and one from a government agency (Table 7.1).

170 Table 7.1: Submissions to inquiry

Stakeholder sector Submission

Disability advocacy Victorian Council of the Deaf

Disability advocacy Parents of Hearing Impaired Children National Network

Disability advocacy Deafness Forum

Disability advocacy Cairns Community Legal

Disability advocacy National Working Party on Captioning (NWPC)

Individual Mr. Bradley

Individual Mrs A. Fitzsimmons

Broadcaster NBN Television

Broadcaster Special Broadcasting Service (SBS)

Broadcaster Australian Broadcasting Corporation (ABC)

Broadcaster Federation of Australian Commercial Television Stations (FACTS)

Captioning service Australian Caption Centre (ACC)

Government Department of Communications and the Arts

The terms of reference of the inquiry included:

• the extent of captioning currently provided

• any technical, financial or other constraints on captioning, generally or regarding particular classes of material

• the relevance of developments in digital technology

• any plans or commitments for increasing the level of captioning provided, prior to and following conversion to digital transmission

• any issues regarding availability and pricing of television receivers with capacity to decode captions

171 • the relationship with existing obligations under the Disability Discrimination Act of current legislative proposals in the Television Broadcasting Services (Digital Conversion) Bill and the Captioning for the Deaf and Hard of Hearing Bill

• relevance of overseas requirements in this area, including the US Closed Captioning Rules

• actions that the Commission should take or recommend to government, parliament or relevant regulatory agencies

• whether the Commission ought to extend its inquiry to include captioning of videos for rental, sale or other distribution.

A key consideration of the Inquiry was to evaluate to what extent the Disability Discrimination

Act 1992 had a role in determining non-provision of closed captioning as disability discrimination. In the introduction to the Issues Paper – Part 2 of the Inquiry – the HREOC stated:

The Disability Discrimination Act (section 24) makes discrimination unlawful in the provision of services. It specifically includes services related to entertainment and services of a kind provided by government. Section 24 of the DDA clearly applies to discrimination affecting television services, including programs and advertising.

In addition, the television services of the ABC and SBS, as well as Commonwealth government television advertising, are covered by section 29 of the DDA, which makes discrimination unlawful in the administration of Commonwealth programs. Discrimination for this purpose includes

• direct discrimination (treating persons less favourably because of disability) and

• indirect discrimination (imposing an unreasonable condition or requirement which a person with a disability cannot comply with and with which a substantially smaller proportion of persons with that disability are able to

172 comply with than persons without the disability).

Captioning can be included in television material. In fact, television services do include some captioned material. The transmission of programs without captioning therefore appears highly likely to involve imposing a condition or requirement, rather than being an inherent part of the nature of the service concerned. The condition is that a person be able to hear for them to have access to the service on an equal basis. Clearly, people who are Deaf or have a hearing impairment are substantially less able to comply with such a condition compared with people who do not have a hearing impairment.

Such a condition or requirement would be discriminatory, and thus liable to be found unlawful under the DDA, except where:

• a lack of captioning is reasonable in the circumstances, or

• in the case of non-Commonwealth providers, it can be shown that provision of non-discriminatory service would involve unjustifiable hardship, or

• an exemption under section 55 of the DDA has been applied for by or on behalf of the provider concerned and has been granted by HREOC (1998).

While the light touch regulation of the television broadcast industry, as laid out in the

Broadcasting Services Act 1992, required Codes of Practice, these Codes included only an

‘aspiration’ to provide closed captions. For example, the ABC Code of Practice stated, ‘The

ABC will endeavour to increase the amount of closed-captioning as funds permit’ (AHRC,

1998).

Submissions to the inquiry from the broadcasters indicated that the levels of voluntary closed captioning were increasing over time. However, the submissions from the disability and community organisations, as well as those from individuals, all reported that the low levels of closed captioning meant that those people who relied on captions were being treated less

173 favourably than the hearing community. In fact, the submissions from several of the disability advocacy organisations asserted that the current limits on television captioning were discriminatory (AHRC, 1998). The submission from the ABC, the public broadcaster, argued that,

In considering the provision of closed captioning, there is the threshold issue of whether there is any relevant ‘requirement or condition’ beyond what is necessarily inherent in the ABC's television service.

This is a similar argument to that of Telstra in the landmark disability telecommunications case,

Scott v Telstra (1995), discussed in Chapter 6, in which Telstra asserted that it was in the business of providing a telecommunications network and not a telecommunications service. As with the Scott v Telstra case, the HREOC determined that the ABC was indeed providing a television service, so that service should be available to all Australians:

These comments support the view that provision of television services without captioning involves imposition of a condition or requirement and thus is capable of constituting indirect discrimination (subject to issues of reasonableness, and to issues of unjustifiable hardship where applicable).

In the case of the ABC, the Charter set out in section 6 of the Australian Broadcasting

Corporation Act 1983 states:

(1) The functions of the Corporation are:

(a) to provide within Australia innovative and comprehensive broadcasting services of a high standard as part of the Australian broadcasting system consisting of national, commercial and public sectors and, without limiting the generality of the foregoing, to provide:

(i) broadcasting programs that contribute to a sense of national identity and inform and entertain, and reflect the cultural diversity of, the Australian community...

174 In the Commission’s view, reference to ‘the Australian community’ means the community as it exists in fact, including people who are Deaf or have a hearing impairment, rather than a community artificially defined as excluding people with a disability. (AHRC, 1998)

That the national broadcaster was willing to take this position regarding the provision of its service to Australians who relied on captions indicated how people with disability continued to be positioned in the public discourse, entrenched in the vagaries of the ‘charity’ model, entitled to equal access only if ‘funds permit’ and excluded from the ‘cultural’ diversity of

Australian identity.

Television captioning legislation

At the time of the EOHRC inquiry, there were two legislative instruments mandating captioning that were poised to be included in the Broadcasting Service Act 1992. A Private

Member’s Bill, tabled in the Australian Senate by Australian Democrats Senator Natasha Stott

Despoja and the Television Broadcasting Services (Digital Conversion) Act 1998 both had requirements for the provision of closed captions across free-to-air television. While the

Despoja Bill was not passed, it outlined the key issues that the Deaf and hearing-impaired community wanted addressed:

• captioning of All programming broadcast between 4.00 pm and 10.30 pm, beginning 1 July 2000

• captioning of all news and current affairs programming, beginning 1 July 2000

• captioning of all programming broadcasts, beginning 1 July 2010.

While the Bill did not become legislation, it highlighted the need to move away from the voluntary Code of Practice to legislative obligations. The obligations on free-to-air broadcasters outlined in the Television Broadcasting Services (Digital Conversion) Bill – the legislation that was to become the first mandate on broadcasters to provide captioning –

175 included similar, if somewhat less prescriptive, requirements. The obligations required all free- to-air broadcasters to:

• caption all programming broadcast between 6.00 pm and 10.30 pm, beginning on the first digital broadcast transmission after 1 January 2001

• caption all news and current affairs broadcast, beginning on the first digital broadcast transmission after 1 January 2001.

It was therefore was with the introduction of the Television Broadcasting Services (Digital

Conversion) Act 1998 that Australia’s Deaf and hearing-impaired community would finally have certainty about which programming would be captioned.

During the intervening years since the passing of the Television Broadcasting Services

(Digital Conversion) Act 1998, through additional amendments to the Broadcasting Services

Act 1992, captioning on free-to-air broadcast television has increased. Since 2014, free-to-air television broadcasters have been required to provide closed captions on all programming between 6.00 am and midnight as well as all news and current affairs programming on their primary channel. In a concession to the free-to-air broadcasters, the legislation made no such requirement for the digital multichannels being introduced in the switch from analogue to digital broadcasting. The only requirement was for programs rebroadcast on multichannels to have captioning if they had been captioned when broadcast on the network’s primary channel.

Since the analogue television switch-off at the end of 2013, there has been no change to this requirement. Therefore, while there are increased television broadcast hours, the amount of captioned programming has remained static.

Audio description

Other access features over free-to-air television have not fared as well as captioning. Audio description, the access feature that makes television accessible for viewers who are blind or

176 vision impaired, has not been implemented on Australian broadcast television despite more than a decade of advocacy from disability and consumer organisations and individuals. In fact,

Australia is the only English-speaking OECD nation without audio description on free-to-air television, notwithstanding multiple reviews of the Broadcasting Services Act, two government-funded trials of audio description on the national broadcaster, the ABC, and a government-convened audio description working group in 2017.

The first indication that audio description had finally landed on the political agenda was in the government’s report from the Investigation into Access to Electronic Media for the

Hearing and Vision-Impaired, released in December 2010. The report included a recommendation for a trial of audio description to be undertaken on the ABC, subject to

‘funding approval’; again, we see the charity model of disability positioning holding steady in the communication policy discourse.

While funding was made available, as of 2019, this trial is the only time audio description has been provided on Australian free-to-air broadcast television. The trial was conducted in late 2012 for 13 weeks on the ABC’s primary channel. While this trial was implemented as one of the adopted recommendations of the government’s 2010 report, the government did nothing further to implement a permanent audio description service at the end of the trial. While this was the first time that audio description had been broadcast on television, there were earlier examples of radio providing an audio-described simulcast service for Australians who were blind or vision impaired in the early 1980s. Radio broadcasts of live audio description were aired alongside a number of Australian television programs for the benefit of people who were blind or vision impaired (Ellis, 2019).

While there had been ad hoc advocacy for the provision of audio description on broadcast television prior to Australia’s adoption of the CRPD, the adoption of the CRPD emboldened

177 the blindness community to push for the inclusion of audio description across all audio-visual channels – cinema, television and online. In, 2009, Blind Citizens Australia launched the ‘It’s

Our Turn’ campaign, the first successful advocacy campaign for the introduction of audio description. The ‘It’s Our Turn Now’ campaign focused on the provision of audio description in cinemas. The campaign, along with grass-roots advocacy from the Deaf and hearing- impaired community, resulted in the government and Australia’s four major cinema companies developing a roadmap to increase access in cinemas across Australia (Australian Government,

2010). Although this has had no impact on the provision of audio description over television or online services, it has been a positive first step towards greater inclusion of access features for Australians who are blind or vision impaired.

As with the opposition to providing captions on free-to-air television, the Australian broadcast industry has been resisting the call for audio description to be introduced. This resistance continues even after the switch to all digital broadcast technology, the adoption of the CRPD and disability discrimination complaints made against the free-to-air television broadcasters under the Disability Discrimination Act. Prior to the switch to an all-digital broadcast environment, the opposition to audio description was underpinned by arguments about the technical capability of analogue broadcast technologies to deliver a separate audio description track. Meetings between broadcasters, and consumer and disability advocacy groups hinted at the possibility of change with the increased capacity of digital networks.

However, in multiple inquiries into Australia’s broadcast environment, both during and post the digital television switchover, there has been no progress in implementing this essential access feature for people who are blind or vision impaired.

178 Sign language interpretation

As with audio description, the inclusion of sign language access on broadcast television has routinely been overlooked by both broadcasters and governments. Repeated calls from

Australia’s Deaf community for the inclusion of Auslan interpreters during broadcast emergency service announcements have been ignored by government and broadcasts. While there is a mandate that these announcements must be provided in both audio and textual format, there is no requirement that the first language for Deaf Australians be provided. The ableist indifference to the needs of these citizens in times of emergency is exactly the type of social barrier that the CRPD has been designed to overcome, yet more than a decade after Australia has undertaken the obligation to ameliorate such barriers, nothing has changed. With the switch from analogue to digital television, completed in December 2013, an opportunity to broadly increase disability access to free-to-air television was missed.

The move to online

Beginning in 2011, Australia has been undergoing a rollout of the National Broadband Network

(NBN). The NBN was intended to provide high-speed, high-capacity broadband to every household in Australia by 2020. Additionally, Australia’s pervasive 4G mobile network and soon-to-be implemented 5G networks are offering previously unavailable possibilities for streaming high-quality audio-visual media. These all-digital, high-capacity networks are providing the infrastructure for an increasing abundance of VOD services. Australian consumers have developed an ever-growing appetite for viewing this online content on a range of devices – computers, internet-enabled television, mobile devices such as tablets and smartphones. While research indicates that broadcast television remains the primary viewing model for most Australians (Roy Morgan, 2016), it is inevitable that this will change with the expansion of online viewing platforms and flexible consumption models.

179 In the most recent release of Screen Australia’s Australian Trends in Online and On

Demand Viewing (2018), the results indicate that there is a steady increase of both catch-up television and subscription VOD viewing by Australians (Screen Australia, 2018).

Australians with disability expect to be able to take advantage of these new delivery models and the anytime, anywhere flexibility they provide for Australians with sensory impairments (Ellis, Kent & Locke, 2016). Yet there has, and continues to be, little appetite from both industry and government to address this practice of exclusion. Australia’s broadcast industry has implemented several online audio-visual services over broadband in the new millennium, with little or no access features included. Furthermore, successive governments have done little to promote the principles of access and inclusion enshrined in the CRPD that relate directly to access to online content and access to television (UNCRPD, Article 30).

Media Convergence Review

A standout example of government’s failure to promote the rights of people with disability can be seen in the 2011 Media Convergence Review, an overarching government inquiry focused on Australia’s converging media environment undertaken throughout 2011. While the Review included discussion about Australian content and its importance in supporting national social identity and its cultural importance to the nation as a whole, any discussion about disability access in this converged media environment was absent from the government’s final report and recommendations (Australian Government, 2012a).

The Review, split into three sections – Terms of Reference, Framing Paper and Emerging

Issues Paper – covered issues of business opportunity, media ownership, and cultural and social significance. It identified the strong cultural and societal significance of Australian broadcast content for national identity, and for developing cultural identity for Australian children.

180 This indifference to the cultural and societal inclusion of people with disability through our various media channels continues as a pervasive theme in the rhetoric of disability inclusion. More recently, as the Australian blindness community struggles to achieve progress in its call for audio description on free-to-air television – deemed by industry and successive governments alike to be too expensive – in January 2019, the government announced an additional $10 million to support the ongoing provision of the Viewer Access Satellite

Television (VAST) service to regional and rural communities. In the associated media release, the Minister for Communications and the Minister for Regional Services stated:

Many Australians living in our regions rely on this service, and the Government’s investment will provide the peace of mind that their service will continue…Television is a vital entertainment and information service that all Australians should have access to … VAST ensures that regional Australians can receive reliable free-to-air television broadcasts so that we can all share and participate in cultural, education and social experiences. (Australian Government, 2018)

The message this sends to the blindness community is that they are not entitled to the same access and inclusion, or social and community identification, as those Australians living in regional and rural communities – reinforcing the historical positioning of disability as ‘other’ and not deserving (Soldatic & Pini, 2009).

This omission of disability participation and access in the Media Convergence Review’s report was more than an inadvertent oversight. There were submissions to the review from consumer organisations raising significant questions of access and inclusion in a converged media environment as well as making recommendations on how disability access is paramount if Australians with disability are also to benefit from the opportunities these new technologies can provide. There were three submissions to the Review’s Framing Paper that spoke specifically to the importance of including disability access in convergent media, from Media

181 Access Australia, ACCAN and Michael Lockrey. In its submission, Media Access Australia highlighted the importance of access features following content in the context of convergent media. When audio-visual content is provided with access features on one platform, the access features need to be retained when the content is delivered over other delivery platforms. For example, programming with access features broadcast on terrestrial television should retain those access features when delivered on a catch-up online service. Similarly, the submission from ACCAN recommended the inclusion of a new principle under the portfolio of ‘Consumer and Citizen Rights’, namely that ‘the broadest range of devices, services and content should be accessible to people with disabilities’ (ACCAN, 2011).

Investigating this review from a critical disability studies viewpoint, it is clear that the

Review was a lost opportunity to undo some of the historical exclusion that people with disability have faced in Australia. It offered an opportunity to rewrite the disability access narrative as Australia moved into a new digitalised media environment; however, the chance to develop a road map to inclusive online audio-visual media was squandered and the status quo of disability access as an afterthought prevailed. Consequently, the growing use of audio- visual media delivered over broadband has not only recreated many of the same barriers to access for people with disability but introduced additional issues of exclusion, as new inaccessible digital platforms and services have created new barriers. Opportunities for personalisation of audio-visual consumption via these new broadband enabled services are thus largely being denied to people with disability.

Catch-up television

In response to these disruptive new digital broadband enabled opportunities, Australia’s terrestrial broadcasters have introduced their online catch-up services, providing many consumers with the opportunity to view time-shifted content when and where they choose.

182 However, with no legislative framework underpinning disability access to these online services, the obligations that broadcasters have under the BSA do not apply. The limited access features offered as proscribed in the BSA are thus now provided in a voluntary ad hoc variation across the different broadcasters’ services. This voluntary provision of access features provides no certainty for viewers with disability that the features on which they rely to enjoy catch-up services will be available when they need them. A recent example of the vagaries that surround voluntary access features was seen in the 2016 announcement from the ABC that it would be cutting back on the amount of captioning provided over and above the legislated requirement.

In a cost-cutting move, the public broadcaster reported that both voluntary captions and transcripts of its current affairs programming would be eliminated (Jericho & Hutchens, 2016).

Extraordinarily, much of the online content that is now being delivered over catch-up television is presented without the BSA-mandated captions provided when the content was initially broadcast across terrestrial channels (Ellis et al., 2017).

Disability advocates and consumer organisations are now reigniting their advocacy and lobbying efforts to include equal access across these new delivery channels – continuing an advocacy that began in the early 1980s for terrestrial broadcast television access.

Australia’s first online catch-up television service was provided by the public broadcaster, the ABC. The service, called iview, was introduced in 2008. Since then, all free- to-air broadcasters have introduced their own stand-alone online catch-up services: SBS on

Demand, PLUS7, 9Now and Tenplay. As these online services were introduced, the provision of captions was intermittent, with captions first being accessible via website and later being made available on their respective apps. As of April 2019, all of Australia’s free-to-air broadcasters’ catch-up services, with the exception of 9Now, provide some level of captioning

(Ellis, 2014; Media Access Australia, 2015).

183 In addition to these online catch-up services, Australia’s free-to-air broadcasters introduced Freeview Plus in 2014. Freeview Plus is an online streaming platform offering both real-time broadcast programming and catch-up programming. As with the other online delivery of free-to-air television, the access features provided over Freeview Plus is something of a smorgasbord, making it difficult for consumers to know which programming will have the service they need.

Given that there is no public policy requirement for VOD content to include access services for Australian viewers with disability, it is not surprising that free-to-air broadcasters have been slow to provide any access services on their catch-up platforms (Media Access

Australia, 2015). The adoption of the CRPD does oblige governments to encourage business to eliminate barriers to participation and inclusion for people with disability. There is thus an obligation for the Australian Government to act on these obligations in the regulation of online audio-visual services. Additionally, the provisions of the Disability Discrimination Act oblige service providers to make their services accessible to all Australians. This unwillingness of government to act in the interests of people with disability continues to highlight how the political rhetoric of access and inclusion does little to ensure anti-discrimination or support and protection of the rights of people with disability.

What’s on offer?

The national broadcast service, the ABC, offers the highest percentage of closed captioning on its catch-up content. However, in 2019 the ABC iview catch-up service was only providing captioning on programming that had aired on the network’s main terrestrial channel with captions, along with select programming on its additional digital terrestrial channels – specifically ABC original and commissioned programming. The ABC’s iview service is also the only Australian catch-up service to have provided audio description. This was during a 15-

184 month government-funded audio description trial that concluded in July 2016. While this ‘trial’ proved that audio description could be delivered on catch-up television, there has been no implementation of a permanent audio description service. Both the ABC and the government have continued to argue that the other has the responsibility to fund audio description. In a disturbing display of collusion against disability inclusion, the Australian Government supported the ABC’s defence in a disability discrimination complaint that was taken to the

Federal Circuit Court. The case, ultimately withdrawn by the complainant, alleged that the public broadcaster was discriminating against the complainant who was blind in its refusal to provide audio description on its terrestrial service. This ‘collusion’ and funding ‘stonewalling’ by the government and the public broadcaster sits in stark opposition to both the government’s obligations under the CRPD and the public broadcaster’s charter.

While other networks provide catch-up services, the amount of captioning varies between broadcasters, leaving consumers who rely on captions with no certainty about which programs will be captioned. Aside from this ad hoc voluntary provision of captions, there are no permanent access services – audio description, Auslan sign language or clean audio tracks – on any of the free-to-air catch-up services.

Streaming services

Mirroring the online catch-up television environment, subscription VOD services available in

Australia provide very little in the way of access services for viewers with disability (Ellis &

Kent 2016). Of the increasing number of subscription services available in Australia, only

Netflix offers 100 per cent captioned content and a limited amount of audio-described content.

As part of the global reach of Netflix, Netflix Australia’s high proportion of access features can be attributed to anti-discrimination success by disability groups in the United States.

Domestic VOD providers such as Stan and Presto, introduced into the Australian market in

185 2015, provide little in the way of access features. For the first four years of Stan’s operation, it provided limited captioning and no audio-described content, despite many of the television programs and films in its catalogue having both caption and audio description digital files available from the content developers. In March 2019, Stan announced via its online support webpage that ‘Audio Description is now available on selected titles across most Stan supported devices’. Similarly, Quickflix, Australia’s first streaming VOD service, only provides captions on content where caption files are available from the content suppliers but has no audio description on any of its streaming content.

Presto Entertainment, another of the streaming services launched into the Australian market in 2015, along with Netflix Australia and Stan, was introduced into the market with no access features. Although a partnership between Foxtel and Seven West Media, both providers of audio-visual content mandated to provide captioning across their traditional platforms, this service was developed and launched in what can only be called the ‘ableist’ paradigm – a service suitable for able-bodied consumers with a nod to the possibility of introducing access features later. As highlighted by Ellis and Kent (2016), the Presto website stated that although there were no captions on Presto services the company was aware of the demand for captions and was working toward overcoming the technical difficulties in providing captions. There was no time frame or start date indicated on when captions would be available (Ellis & Kent, 2016).

This promise of retrofitting inaccessible technology has been a consistent failure across multiple technologies, despite the broad adoption of a ‘social model’ rhetoric from business and governments both domestically and globally. The Media Convergence Review report

(Australian Government, 2012a) exposed a fundamental problem with the ill-informed policy position that new technologies are inherently accessible. As this research has discussed in an earlier chapter, new technology products and services are only accessible when they are designed using UD or inclusive design principles. Had it been conceived and designed as a

186 service for all consumers, Presto would not have been launched with its obvious shortcomings.

The ‘apology’ posted on the Presto website indicated that the company was aware of the needs of people with disability but chose to go to market with a product that was inherently exclusionary. While this is unlikely to have been due solely to the services access barriers,

Presto Entertainment ceased business in 2017 and has been replaced by Foxtel Now.

Whereas the obligations on terrestrial broadcasters provide a level of certainty for those viewers who rely on captions, the voluntary nature of these access features across Australia’s subscription VOD services provides no certainty for subscribers about their capability to enjoy full access to the service for which they are paying. Additionally, under the BSA obligations a mechanism exists for consumer complaints when captions are either not provided or are of an incomprehensible quality. There are no such safeguards in the VOD environment. So while there has been limited progress across some VOD services during the intervening years since the 2015 ‘Streaming Wars’, this progress may well go the way of the ABC’s voluntary captions and transcription service should any of these providers take a financial downturn.

Countless examples exist of how both business and government have taken the axe to disability funding in times of economic downturn. Furthermore, the neoliberal approach to light-touch regulation, believing that the market will provide adequate protections for consumers with disability, is arguably no more than a dressing-up of the historic ‘charity model’ of disability access and participation. It is clear from this evaluation of the unregulated

VOD environment that the market to date has failed to meet the needs of people with disability.

With the industry’s poor record of developing and implementing services usable by all, VOD consumers with disability have limited access and participation opportunities. This paucity of access services on Australian online video content exacerbates the disability digital divide.

With the growing amount of inaccessible VOD content available in Australia, consumers with

187 disability are being left behind when it comes to social inclusion and participation. This barrier to information through new media is reinforcing hegemonic ableist norms at a time when recent

Australian disability discourse has been one of inclusion and participation.

As the landscape of catch-up television and VOD services continues to offer a baffling array of ad hoc access features with no clear commitment or roadmap to increase services,

Australian consumers with disability struggle to enjoy the benefits of these anytime, anywhere, any device digital services. While it is clear that there needs to be an inclusive intervention from government to advance the obligations enshrined in the CRPD to increase the provision of access features across all audio-visual media platforms, it seems unlikely that this will happen in the near future. While the VOD and catch-up television market continues to grow, with the Disney Plus streaming service introduced into the Australian market in November

2019, the disability digital divide grows wider and deeper. However, a possible intervention, the Alston Determination, which had a ‘sunset’ date of 1 October 2019, has been extended by the government for another three years. The Determination, which was included in the BSA in

2000 by then Communications Minister Richard Alston, excludes media – ‘a service that makes available television programs or radio programs using the Internet’ – from being regulated under the same rules as broadcast services.

Policy

The transformation in the delivery of television programming and other audio-visual content over broadband has occurred at a speed with which public policy has been unable to keep pace.

This explosion of new services with their convergence of media and increased delivery models has thus perpetuated the dichotomy of new technology for consumers with disability: technology as enabler on one hand and barrier on the other (Goggin & Newell, 2003).

188 Good public policy involves balancing a number of important interests. For communications and disability, these issues include policy and regulations that encourage a robust and competitive industry, as well as addressing issues of inclusive access and underpinning broader social policy goals and objectives (Bourk, 2000; Jaeger, 2006). Australia has adopted several human rights instruments, both domestic and international. The

Commonwealth Disability Discrimination Act in 1992), the CRPD in 2009 and the National

Disability Strategy in 2011, advocating for the promotion of greater community access and participation for Australians with disability – intended to provide equitable access and inclusion along with anti-discrimination protections for people with disability. Implicit in these instruments is an expectation that public policy will be inclusive of the needs of people with disability and that when the private sector fails to include people with disability, these instruments will be a safety net to ensure that all Australians have full and equal participation in every aspect of Australian life. This chapter’s evaluation of the transformation of Australia’s broadcast and media marketplace and the public policies designed to regulate this market indicate that these human rights mechanisms and their supporting public policy protections are falling short.

Assuming that the market will address all consumer needs in broadcasting has been the promise of industry and successive federal governments. While industry self-regulation policy proponents argue that the public interest is best served by a robust and competitive marketplace, there is much evidence that the competitive broadcasting market has failed to deliver for many

Australians living with disability. It took over a decade of advocacy and campaigning by DPOs and disability advocates before traditional broadcasters were required, in 2014, to provide 100 per cent closed captioned programming on their primary free-to-air channels between the hours of 6.00 am and midnight (Broadcasting Services Amendment (Improved Access to Television

Services) Act 2012). Inasmuch as these new online television catch-up services do not include

189 100 per cent captioning, audio description or sign language interpretation, free-to-air television broadcasters have recreated the same barriers that have plagued terrestrial television services, thus excluding consumers with sensory impairment.

While the national broadcaster recently concluded – in July 2016 – a 15-month audio description trial on its online catch-up service, the amount of described content was limited to

14 hours per week, less than 10 per cent of the available content on the service. While this trial was considered a positive initiative by the Australian blindness sector and consumer organisations – noting that the majority of Australians who are blind or vision impaired were unable to participate, given their lack of broadband connectivity – history again tells us that this trial may go the way of the 2013 three-month trial that the same broadcaster delivered on its primary terrestrial television channel. This initial trial was adopted enthusiastically by blind and vision-impaired viewers; however, since the conclusion of the trial, there has been no implementation by the broadcaster or any other broadcaster in Australia of a permanent audio- description service, nor has there been any commitment from successive governments to mandate this essential access feature on any of the free-to-air broadcast networks.

Audio description on television is available in many comparable jurisdictions – for example, in the United Kingdom television broadcasters are mandated to provide a minimum of 10 per cent of their programming with audio description. The UK regulator Ofcom (2006) reports that many of the networks are exceeding these mandated quotas and providing in excess of 20 per cent of their programming with audio description. In fact, Australia is the only

English-speaking country in the OECD that has no audio description on free-to-air television; the United Kingdom, Canada, Ireland, New Zealand and the United States all have some level of audio-described content on free-to-air broadcast television (Vision 2020 Australia, 2017).

While Australian broadcasters argue that ‘technical’ difficulties prevent them from providing

190 audio description, it is apparent from these international examples that the problem is not

‘technical’ but rather a lack of willingness from both the industry and government to implement this access feature in Australia.

In the same way that it took many years for Australian public policy to address this inequity on traditional broadcast television, there is little expectation that public policy will address this new disability digital divide in a timely manner. In fact, it appears that the window of opportunity for disability as a public policy agenda priority in the telecommunications sector may well have come and gone. After a number of media reviews and inquiries including the

Australian Government’s 2010 review of media convergence and multiple inquiries into electronic access to media for people with disability, there is still no public policy plan to implement further access services across audio-visual media. As can be seen in reviewing the history of resistance by people with disability to gain access services on broadcast television in Australia, the same ableist norms and hegemonic dominance inherent in Australia’s communications market are now being recreated with VOD. With only one of the free-to-air broadcasters providing a significant proportion of closed captions on its online catch-up services, we see the reintroduction of the market failure in providing equal access for people with disability.

Audio description

The formation of an Audio Description Working Group, announced by the Minister for

Communications and the Arts in April 2017, was seen as a possible bright spot on the policy agenda. The Working Group was made up of representatives from broadcasting and streaming industries, audio-description service providers and consumer groups to ‘examine options for increasing the availability of audio description services in Australia’. However, the final report, released in May 2018 (Department of Communications and the Arts, 2017), was met with

191 disappointment by leading audio-description advocates due to the lack of ‘commitment from the Government to introduce a permanent audio description service on Australian television within a specified timeframe’ (Blind Citizens Australia, 2018; Vision 2020, 2018; Vision

Australia, 2018). In fact, the Minister for Communications made no move on the report for more than a year. Despite repeated requests from the blindness sector, and repeated questions on the status of progress raised during Parliamentary Senate Estimates in February 2018,

August 2018 and again in February 2019, the minister did not write to free-to-air broadcasters asking how they proposed to introduce audio description. That this issue should have no priority within the minister’s office for 14 months while advocacy groups were repeatedly calling for action speaks to the government’s lack of commitment to disability access and participation as articulated in the CRPD.

In follow-up discussions with the broadcasting industry association in April 2019, the blindness community discovered that the industry had informed the minister that it would need time to investigate how best to overcome technical issues to implement audio description. That this was one of the key objectives of the government’s 2017 Audio Description Working Group indicates that it was not only the minister who had given audio description a low priority, but also the broadcasters who had done nothing since the working group had produced its report.

This question of how to implement audio description has had a long lifespan. In the government’s 2010 report Investigation into Access to Electronic Media for the Hearing and

Vision-impaired, a recommendation stated:

The Australian Government intends to commission the ABC to conduct a technical trial of audio description in the second half of 2011, subject to funding approval.

The trial will contribute to future policy and would be intended to generate greater understanding of both technical and consumer requirements associated with

192 establishing and delivering audio description services in Australia.

The ABC will deliver content and conduct the trial for the Australian Government. The technical trial will aim to identify and solve technical issues regarding the broadcast of closed audio description in Australia; raise awareness of audio description within the industry, government and other key stakeholders; and obtain information on user requirements.

The technical trial will involve significant consultation with disability group representative bodies and equipment suppliers to ensure the appropriate reception equipment is available and that such equipment will meet consumer needs. (Australian Government, 2010)

Explicit in this statement is an acknowledgement by the government that disability access was contingent on economic principles rather than the human rights principles enshrined in the

CRPD. The total Australian federal budget delivered to parliament on 10 May 2011 indicated a proposed expenditure of $365.8 billion; that the recommendation for audio description was contingent on funding approval from a budget of such magnitude was considered a slap in the face for many people in the blindness community.

Conclusion

Australia has long been a nation of early adopters of new technologies. This is clearly evident in the rapidly growing consumption of online catch-up television and VOD services. However, as this chapter has shown, this increased anytime, anywhere, any device consumption of VOD is not possible for all Australians. Many people with disability are being left out of this rapidly expanding digital market, creating a new disability digital divide for many Australians with disability.

While other comparable countries are adopting inclusive policies and initiatives to address this disability digital divide for their citizens, Australia remains stalled when it comes to taking tangible action to bridge this growing disability digital divide. For example, the

193 US Twenty-first Century Communications and Video Accessibility Act (CVAA) (2010) includes provision requiring that audio-visual content broadcast with captions must provide captions when delivered over other platforms such as catch-up television or video on demand services. The CVAA additionally requires major broadcasters to provide progressively greater quotas of audio-described content on broadcast television.

Similarly, in the United Kingdom, the communications regulator Ofcom requires that television broadcasters provide captions, audio description and sign language services. The provision of these services is required to increase over time. Recent Ofcom (2017) reports indicate that while broadcasters are currently mandated to provide at least 10 per cent of content with audio description, many broadcasters are voluntarily exceeding these quotas. For example, the BBC is providing in excess of 20 per cent of programming with audio description.

Additionally, Ofcom regulates the VOD industry in the United Kingdom, and while there are currently no legislative requirements for VOD providers to provide access services, Ofcom is monitoring annual levels of access services being provided, and working to encourage providers to increase accessibility of their services over time.

These international initiatives have roll-on benefits for Australian VOD consumers. With the increased globalisation of delivery services, content produced overseas with access services has the potential to benefit Australian consumers with disability. For example, the introduction of Netflix in the Australian VOD market in 2015 has provided Australians who rely on captions access to Netflix’s entire Australian catalogue and provided Australians who rely on audio description with access to audio-described Netflix content. Much of Netflix’s accessibility is a result of disability advocacy in the United States. Netflix is required to provide captioning on its content as a result of an Americans with Disabilities Act court case initiated by the National

Association of the Deaf (Netflix, 2012). Similarly, audio-described Netflix content is largely

194 due to advocacy pressure brought against the provider by the Accessible Netflix Project

(Netflix, 2019).

This ongoing innovation of new technologies without access features creates an inevitable cycle of advocacy catch-up. These international initiatives outline opportunities for

Australian stakeholders to work to bridge this growing disability digital divide, created by inaccessible audio-visual content. While the dichotomy of new digital technologies as potential enablers or potential barriers for people with disability is broadly acknowledged in critical disability studies, communications and media studies (Ellis, 2014; Goggin & Newell, 2003;

Mikul, 2015; Morsillo, 2011), this chapter has shown that VOD as a disruptive technology, while having the capacity to provide access services and thus enabling and empowering people with sensory impairment, is in fact a disempowering development for many Australians with disability.

It appears that the lessons of the past have not been learned by industry or policy-makers, with new VOD technologies recreating the familiar barriers to access and inclusion of traditional television. While Australian disability public policy is talking the talk of inclusion, it is not walking the walk to make this new media accessible for all Australians.

Disability organisations and disability advocates are again being called upon to challenge the ableist hegemony of communications and media policy. Grass-roots activism underpinned by the human rights principles of equal access and inclusion – embodying the emancipatory nature of critical disability theory – may well be the best pathway to resolving this impasse in

Australia in the same way that grassroots activism in the United States has increased Netflix access for people who are Deaf and those who are blind or vision impaired.

195 Chapter 8 Conclusion

As highlighted throughout this study, providing access to telecommunications for people with disability has a fraught history in Australia. As with broader social justice and rights-based narratives of disability access and inclusion, functionally equivalent access to telecommunications has struggled to shake off the historical conceptions and expectations of people with disability. Having been relegated to institutions, conceptions of protective and pitying public attitudes and policies the move toward societal and political understandings of equality, greater access and inclusion underpinned by a human rights philosophy has struggled to gain more than a rhetorical nod and result in practical and pragmatic benefits for Australians with disability. Examples of this can be seen throughout the literature and public discussions about telephony access for people with disability (Goggin & Newell, 2003, 2006; Jolley, 2003;

ACCAN, 2012). As highlighted in the NRS case study, the introduction of the 2019 NRS contract has seen the loss of captioned telephony as an available relay service. Discontinuing this service after its introduction in 2014, with the government suggesting that the TTY is a suitable alternative, reinforces the disconnect between rhetoric and practice. That the TTY is being touted as a suitable communication channel in 2019 after it was considered by the

Government as a legacy telecommunications artefact in 2016 is clearly a retroactive step for hearing impaired consumers.

This ongoing tension between policy and praxis in communications access has long been exemplified in the DDA, Australia’s 1992 landmark disability anti-discrimination legislation, which excludes telecommunications from its supporting Standards. While several Access

Standards have been implemented to support the DDA – Access to Public Transport; Access to Public Spaces and Access to Education – there has been no Standard promoting Access to

196 Telecommunications. People with disability have needed to invoke the broad interpretation of

Section 24 – Access to Goods and Services in the DDA to challenge policies and industry practice in order to gain access to telecommunications products and services. The first successful example of this was in the 1995 Scott v Telstra case in which HREOC ruled in favour of Geoffrey Scott in his claim that Telstra, the monopoly telecommunications provider, was practising disability discrimination by charging Deaf customers more for the rental of their

TTYs than the rental for a standard handset to connect to the network (Bourk, 2000). A second landmark case was the 2000 discrimination case lodged by Bruce Maguire against SOCOG, in which SOGOC was found to be in breach of the DDA by not providing accessible Braille information. Since these two cases, there has been little in the way of successful use of the

DDA to promote greater access to communication services for Australians with disability.

Subsequently, as shown in the preceding case studies, inclusive access continues to be a source of tension between the rhetoric of inclusion and the practical implementation of access and inclusion through functionally equivalent alternatives to standard telephony.

In addition to these disabling barriers to access, additional barriers remain for many people with disability, stemming from issues of affordability and digital capability.

Furthermore, as the government and industry continue to extol the potential of many new and emerging mainstream communications technologies, they are simultaneously removing the essential support mechanisms necessary for many people with disability to benefit from these emerging products and services. Both Telstra and Optus have retired their respective formalised engagement with the disability sector over the past several years, and in the 2018 NRS service requirements outlined in the government’s request for tender documents, there is no provision for an educative outreach service. Moreover, in 2019 the communications regulator, the

ACMA, issued formal warnings to Australia’s three major telecommunications companies,

197 Telstra, Optus and Vodafone, for breaching their respective obligations under the TCP Code to provide information about products and services suitable for customers with disability.

This research has focused on this ongoing disconnect between policy rhetoric and praxis, examining through the three case studies how this consistent rhetorical commitment from government and industry falls short in terms of progressing and promoting greater capabilities for Australians with disability.

These case studies have revealed a number of significant contradictory themes related to how people with disability are socially constructed and positioned by different stakeholders in the policy development process. My case study analysis has also illuminated how communication policy in Australia continues to be founded on an ableist assumption that has long been underpinned by the normalised supposition that a competitive free market will meet the needs of all consumers.

In this concluding chapter, I revisit these themes in order to support my interpretation of these communication policy outcomes as they relate to the inclusion of people with disability.

I then make recommendations on how future communications policy can enable greater access to digital communications by people with disability. Four questions were posed at the beginning of this research. While they have not directly been responded to within the report, the research has certainly been framed around these questions in a broad sense. In order to understand and interpret the findings of this research in the context of these questions, I return to them to consider them through the lens of the research findings.

Disability Oppression - Advocacy or Analysis

In evaluating these case studies, specifically the communications policies that each case interrogated, it was necessary for me to clearly differentiate between a critical analysis of the

198 data and my own beliefs and assumptions as a consumer policy advocate and a researcher with disability. Identifying the broader neoliberal policy framework in which each of these policies were imagined, developed and ultimately implemented helped to clearly articulate the ableist dominance underpinning the policy construction. As a consumer advocate participant in the broader consultative process of these policy processes I was cognisant of the need to critically evaluate each aspect of the policy process – public consultation, public messaging, various stakeholder positions and the Government’s response in both consultation reports and policy implementation. The iterative review and coding of the data along with my reflective practice throughout the data analysis process provided a clear pathway to interpret the data through the

CDT lens. Furthermore, the CDT framework, with its strong alignment with critical theory research with other oppressed groups such as Critical Feminist Theory, Critical Race Theory and Critical Queer Theory provided a sound and academically rigorous template to separate analysis and advocacy during the interrogation of the data set. Where my advocacy expertise became critical for this research was in the process of recommending opportunities for change in the way future policy could eradicate much of the exclusion and oppression that Australians with disability face in their equal access to and benefit from our increasingly digital society.1

How are Australian consumers with disability being excluded from full access to advanced communication services?

As discussed throughout this research, access to telecommunications by people with disability has been fraught with obstacles and difficulty from the inception of telephony. Deaf and hearing-impaired Australians were marginalised and excluded from access to the POTS service for decades while the rollout of the PSTN increasingly connected most Australians to the multifaceted benefits and opportunities of a growing connected network. Manuel Castells

(2001), along with many practitioners in communications research and policy, has highlighted the transformative benefits for both individuals and communities from being connected to a

199 networked society (see also Capra, 2002). Moreover, when we consider this exclusion from a capabilities approach, there are significant barriers to the realisation and fulfilment of individual freedoms and opportunities when access to communications is denied. Core to the capabilities approach is the identification and amelioration of barriers to opportunities such as accessing communications services.

While the move from analogue to digital technology in the communications arena has provided immense opportunities for greater inclusion and access for many people, including some people with disability, it has not always been an easy path to the digital connectivity of advanced communications services for many others. Issues of equipment accessibility, digital capacity and affordability all play a part in how people with disability are able to get and stay connected. This research has highlighted a number of significant barriers that people with disability have faced, from hearing aid incompatibility when the 2G mobile telephone network was rolled out, to inaccessible mobile phone features for people who are blind or vision impaired and, perhaps most significantly, the inability of people who have hearing or speech impairment to be able to independently and confidently contact emergency services when out and about. These barriers are found throughout the digital communications ecosystem and are certainly not constrained to telephony services.

Issues of inaccessibility to a broad range of digital consumer products and services are routinely identified as people with disability try to engage and take up new offerings. The significant literature on the digital divide for people with disability in accessing and utilising internet services is profound. Goggin and Newell’s (2000, 2003, 2004, 2007) early internet research highlighted many of the barriers that people face when accessing the internet, utilising the term ‘disability digital divide’ as a way to encompass these multifaceted barriers. People with disability are often subject to both first- and second-level digital divide barriers to

200 accessing the network, obtaining digital capacity and skills and, for many with sensory impairments, accessing online content. US scholar Paul Jaeger’s (2012) extensive catalogue of research on digital accessibility illuminates the breadth of barriers faced by people with disability when accessing the internet, and barriers to online content for people with disability have been researched extensively by Australian academic Katie Ellis (Ellis, 2014, 2019; Ellis

& Kent, 2011; Goggin, Ellis & Hawkins, 2019). What has been identified across all of these areas of research is that without the incorporation of the principles of access and inclusion; without the incorporation of inclusive design in product development life-cycles and without a critical communications policy framework to promote accessibility, people with disability will continue to face ongoing barriers to functionally equivalent access across the range of advanced communication services – telephony, broadband and converged media.

The research findings from the case study interrogating the public policy framework underpinning Australia’s NRS (Chapter 5) highlights how significantly these barriers impact people with disability. For example, it was the Deafness Forum submission to the government’s

2011 Inquiry into Access to Telecommunications by People with Disability that clearly identified the significant implications from barriers to equitable access to emergency service communications channels. This submission highlighted a case study in which a Deaf person was unable to contact the emergency triple zero service when suffering from a heart-attack while driving (Deafness Forum, 2011). Furthermore, while the 2013 NRS contract included a number of new relay services, including a SMS relay service, NRS users were cautioned that this SMS relay service should only be used in conjunction with a voice call to triple zero

(DoCA Accesshub, 2019). This was due to the ‘store and forward’ nature of SMS text services, where there is no prioritisation of the text message as there is with a voice call to triple zero.

Consequently, more than two decades after mobile telephony was introduced into the

Australian telecommunications market, some people with disability are still unable to benefit

201 from the opportunities of anytime, anywhere access to communications. It is hard to imagine that this scenario would be acceptable, or in fact even considered as suitable, for the broader community.

Another example of how people with disability continue to be excluded from the ubiquity of telephony is the NRS video relay service. As highlighted in numerous submissions to all three of the NRS contract consultations, 24/7 video relay for Australians whose first and preferred language is Auslan continues to be a bridge too far for policy-makers. Introduced in the 2013 NRS contract, video relay continues to be offered only during business hours, thus denying Auslan users access to anytime, anywhere functionally equivalent access to communications services. Again, it is hard to conceive that such limited access to communications would be acceptable for the able-bodied community.

Furthermore, as has been highlighted in the case studies, in addition to the barriers that

NRS users face when accessing communications, issues of equipment inaccessibility, affordability and digital capacity also create barriers to accessing communications services.

Inaccessible equipment barriers were exemplified in the findings from the access to equipment case study (Chapter 6), which illustrated how inaccessible and unaffordable equipment continues to create barriers for many people with disability. The nexus of technology and disability has been a contested space in multiple arenas; while potentially able to provide ground-breaking accessibility for people with disability, new technology continues to be developed and introduced into the market without consideration of the needs of people with disability. Known in industry as the most viable product (MVP), it is the economic prerogative to get products to market that creates ongoing barriers. This ongoing ‘ableist’ approach to advanced communication services was highlighted in the case study on access to equipment.

Examples of telephony products unusable by people with disability were highlighted in

202 numerous submissions. For example, Blind Citizens Australia discussed the inaccessibility of mobile phones for people with disability, highlighting that for people with vision impairment in 2009, there were only two handsets capable of installing a specialised software package that would convert the text on the handset screen into speech, allowing the user to hear what was on the screen. In 2009, these handsets were priced at more than $800 and the additional software was priced at $350, meaning that for a person with vision impairment to gain functionally equivalent access to mobile telephony, they needed to spend nearly $1000 more than the cost of a typical feature phone with the same functionality (Blind Citizens Australia,

2009).

Further barriers to advanced communication services for people with disability were highlighted in the accessing online content case study in Chapter 7. This case study focused primarily on audio-visual online content and the barriers that people with hearing or vision impairments encounter when accessing the majority of online broadcast and video on demand content available in Australia. In order that audio-visual content is accessible for people with sensory impairment, the content needs to include the access features, audio description and captioning. Without audio description, people with vision impairment are unable to determine what is happening on screen and are often unable to grasp the context and meaning of audio- visual media from the audio alone. Similarly, captioning of audio-visual media is essential for people with hearing loss to understand the context and meaning of the content.

The findings of this research identified that people with hearing or vision impairment are routinely denied equitable access to online audio-visual content. For example, the findings from this case study identified that while all of Australia’s free-to-air television networks have online catch-up services, the majority of this online content does not provide any audio

203 description or captioning. Furthermore, the research identified that the VOD services available in the Australian market provide little in the way of access features.

In summary, the answer to this first question identifies that the barriers to digital communications for people with disability in Australia are significant. When we reflect on this question and the findings from the research, we see how the ableist dominance of Australia’s communications ecosystem continues to deny many people with disability the opportunities and benefits that digital communications is providing for the broader community. Thus, when we assess these barriers from a capabilities approach, access to digital networks and equipment, and the associated capabilities they enable, such as social communication and participation, are very limited for people with disability (Garnham, 1997).

2 What role has Australian communications policy post the 2008 ratification of the UN Convention on the Rights of Persons with Disabilities played in this exclusion?

As discussed in earlier sections of this research, Australia has a long history of ableist public policy. This is evident in the long-standing priority of neoliberal economic ideals taking precedence over social policy. As can be seen from the review and analysis of the policies interrogated in these three case studies, the rhetoric of inclusion has in many cases failed to translate from policy to praxis. Despite a long and proud promotion of and support for human rights principles and multiple domestic initiatives to improve the inclusion and participation of people with disability in Australian life, access to advanced communication for many people with disability in Australia remains difficult and sometimes out of reach.

Clearly, there is a broad theoretical understanding of the principles of communications access and inclusion enshrined in instruments such as the DDA, the National Disability

Strategy and the CRPD. However, what this research has identified is that in our communications environment this theory of disability inclusion struggles to transition from

204 policy rhetoric to tangible improvements for people with disability. As highlighted in the review and analysis of the policy documents related to the 2006 National Relay Service contract – the last NRS policy decision made prior to Australia’s adoption of the CRPD – the policy priority was on maintaining the status quo. Asserting that additional relay services such as video relay and internet relay were beyond the scope of the NRS, while also claiming that these services could potentially be considered as pay-for-use services, clearly identified the government’s consideration of equal access for people with disability – the idea that you can have it if you are willing to pay for it. This, of course, was a normalised expression of the ableist neoliberal ideology – minimal state intervention and provision of ‘sufficient’ services with an expectation that individual self-sufficiency could take care of the rest. It is this disabling policy framework that the CRPD was developed to challenge and overturn through its multiple

Articles obliging States Parties to adopt and promote policies of greater access and inclusion.

However, the research findings from the analysis of the three NRS contract provisions indicate that the outcomes from these respective policy determinations have had mixed results in the context of greater access and inclusion. With progress being achieved in some areas, at the same time there has been the reinforcement of existing barriers to access. For example, the introduction of video relay in the 2013 NRS contract was profoundly empowering for Auslan users; however, the 2019 contract decision to stick with the status quo and deny access to 24/7 video relay indicates a continuing discourse of charity model disability policy. This charity positioning of disability is further explicated when we review the allocation of the NRS funding. Prior to the changes in NRS contracts mid-2018, the NRS Outreach Program was funded at $4 million per annum in an effort to stem the cost overruns of the relay services. This funding was amalgamated into the relay provision in the 2019 contract. The new NRS provider will receive $20 million per annum, the same funding envelope as the 2013 contract; however, there is no outreach service in the 2019 contract, nor is there any increase in the hours of video

205 relay. Furthermore, the decision to remove captioned telephony from the suite of NRS services in the 2019 contract will create potentially catastrophic communications barriers for people with hearing loss who rely on captions to fully benefit from telephony. It is understood that a significant cohort of people who have been using the captioned telephony service over the five years since its introduction will struggle to adopt to alternative communications channels.

Moreover, the government’s capacity to provide the necessary information, training and support for Captel users has failed to meet the need of these consumers before the 31 January

2020 deadline for the switch-off of the Captel relay. It therefore appears that, in the context of

Australia’s NRS service, the policy rhetoric continues to fall short in the implementation of functionally equivalent access to communications services for people with disability. This

‘policy failure’ reinforces the necessity of and urgency for a holistic implementation of the human rights principles enshrined in the CRPD.

Additionally, the findings of the access to equipment case study reveal further public policy decisions that are reinforcing barriers to equitable access to digital communications. For example, the government’s decision to stick with the status quo and not implement a DEP independent from industry has had ongoing implications for users of TTYs. Consumers with disability are being denied the benefits and opportunities of a competitive telecommunications marketplace with only Telstra and Optus providing TTYs. The consequence of a single provider, Telstra, being mandated to provide disability equipment in essence creates a regulated monopoly, as the Optus network historically has been limited to large metropolitan areas only.

The contradiction here is significant: it is acceptable for the disability community to be constrained to a market monopoly, while the broader communication policy is focused on supporting and promoting a thriving competitive market. This is classic disablism in practice

– communications policies which further disadvantage people with impairment (Campbell,

2008). Moreover, in the context of the capabilities approach, in which it is incumbent that for

206 the capability for people with disability to achieve the same opportunities as others, there is a requirement that greater provision be undertaken to overcome barriers (Sen, 1999). In other words, these hindrances to accessible telecoms create what Sen calls ‘unfreedoms’, which limit people’s opportunities (Sen, 1999).

Additionally, the access to equipment case study findings in Chapter 6 highlighted the lack of appropriate consumer information about telecommunication equipment and services suitable for people with disability. While there has been existing regulation under the TCP

Code for telecommunications companies to provide such information, it was not until ACMA undertook proactive compliance monitoring in 2019 that the industry was put on notice to ensure that it was indeed providing the appropriate information to its customers with disability.

Moreover, in the submissions of industry to the government’s 2009 feasibility study into an independent disability equipment program, there were multiple calls for the provision of equipment for people with disability to be the responsibility of government, while in the same submissions there were arguments that mainstream technology was capable of meeting the needs of most people with disability. The policy decision to maintain the status quo and not implement a DEP independent from industry was yet another policy failure in terms of greater access for people with disability. Limited to equipment for a standard telephone service while being denied the benefits of market competition further highlights how the rhetoric of inclusion fails to transfer to real-world improvements for people with disability.

This policy failure is further exemplified in the findings from the access to online content case study in Chapter 7. This case study indicates how, under successive governments, policy decisions have continued to prevent people with disability from full and equitable access to online audio-visual content. The most recent policy decision to entrench this exclusion was the government’s 2019 decision to extend the Alston Determination for three years. The

207 implication of this decision for people with disability is that any hope of amending the BSA requirements for captioning to be applied to online catch-up television services will not be possible for at least the next three years (Australian Government, 2019b). Furthermore, the intransigence of successive government ministers in mandating audio description on any

Australian television services for more than a decade illuminates the role that public policy continues to play in the exclusion of people with disability from digital communications. In what is unquestionably a positive step, on 19 December 2019 the Minister for Communications, the Arts and Security announced that the government had committed to providing $2 million to both the national broadcasters, the ABC and SBS, to implement audio description in the

2020/21 financial year. However, this is one-off funding with no prescription of how the service should be delivered or how much content needs to be provided, and no requirement that the broadcasters consult with the blindness community to ensure that the provision of audio description meets the needs of people who are blind or vision impaired.

In summary, while there have been limited improvements in digital access for some people with disability, public policy has largely been mired in what at best can be described as

‘incrementalism’. From a critical disability theory approach, it has been more ‘business as usual’, with the status quo being the predominant policy outcome.

3 What are the possible implications of Australia’s ratification of the UN Convention on the Rights of Persons with Disabilities in influencing future Australian communications policy?

As the underpinning benchmark that this research has used to critically evaluate and analyse

Australian communication policy, this is undoubtedly the question most pertinent to the aim of the research. The findings of the research indicate that there are considerable opportunities for future communications policy to employ and embed the principles of equal access and participation.

Furthermore, the findings clearly indicate that communication policy in Australia articulates many

208 of the arguments of the social model of disability. The obstacles that people with disability encounter in accessing digital communication services stem from the environmental and social barriers that have been entrenched in this policy milieu. With its solid foundation in the ideology of neoliberal economics of deregulation, self-regulation and the competitive market, the communication policy paradigm works against the inclusion of people with disability. The findings of the research illuminate a policy process mired in incrementalism with a preference for the status quo where industry pressures trump consumer interests.

Changing the disability discourse away from the rhetoric seen in the policy documents and policy decisions of the three case studies to policy development that incorporates both the aspirational and practical anti-discrimination principles in the Articles of the CRPD would create tangible benefits for people with disability as they access and benefit from advanced communication services. As identified in the findings from the NRS case study in Chapter 5, in both 2013 and 2019 the NRS contract policy process failed to result in true functionally equivalent access for people with disability. Employing the principles of equal access and inclusion in the

CRPD in the context of video relay would recommend that the service be made available on a 24/7 basis, providing Auslan users with the same benefits and opportunities that anytime, anywhere, any device connectivity provides for the broader community.

Furthermore, the policy decision of the 2019 NRS contract, to not continue the Captel handset relay service, has significant implications for many people with hearing loss. Whether this decision is a result of cost-cutting, as is the belief of many of the NRS user community, or of the current Captel licence holder being unwilling to make the service available to the new

NRS provider, as is the position of the government, the outcome is that people with disability are being denied access to a service which, from the NRS reporting statistics, has been eagerly adopted and embraced by the NRS user community. The government’s suggestion that a

209 suitable alternative replacement to the Captel handset service is a TTY is unquestionably at odds with the ideal of functionally equivalent communication. The government’s own 2016 discussion paper, Communications Accessibility: 2016 and Beyond, indicated that the TTY was an outdated ‘legacy’ technology that was being superseded by mainstream technology.

It can be argued that the Captel handset itself is a piece of mainstream technology, given that it is a standard handset with the addition of a screen that displays the captioned text of the hearing party’s part of the conversation. This adoption of universally designed technology is a foundational aspect of the CRPD’s promotion of access and inclusion – the ideal of universally designed new technology usable by people with disability. Thus, in the context of Australia’s

NRS, the underpinning intent of inclusion and implementation explicit in the Articles of the

CRPD, such as Article 4 – General Obligations and Article 9 – Accessibility, would greatly improve access for people with disability. This was highlighted in the submissions from disability organisations and users of the NRS service to the government’s 2016 inquiry. For example, the submission from the Australia Cross Disability Alliance asserted that the principles included in Article 4 – General Obligations and Article 9 – Accessibility Reference to Universal Design are paramount in ensuring communication technologies are accessible for people with disability (Australian Cross Disability Alliance, 2016).

Furthermore, as with the findings of the NRS and Access to Equipment case studies, the findings of the access to online content case study highlighted how the implementation of access and inclusion enshrined in the Articles of the CRPD could ameliorate the barriers faced by people with disability. Adopting requirements for access features in audio-video content delivered over broadband could help to ensure that people with disability would be able to understand and enjoy online audio-visual content. Article 21 – Freedom of Expression and

Opinion, and Access to Information Clauses (c) and (d), and Article 30 – Participation in

210 Cultural life, Recreation, Leisure and Sport Clause 1(a) and (b) specifically promote the accessibility of audio-visual media. Incorporating the inclusive principles within these Articles in public policy would ensure greater access to audio-visual information and entertainment.

4 How can the principles of disability access and inclusion transform communications policy for the twenty-first century?

This research highlights the current shortcomings of Australia’s communication policies when it comes to meeting the needs of our citizens with disability. It is clear that the communications market has failed to meet the needs of many people with disability in Australia. The incremental progress of providing a truly functionally equivalent market has been confounded by the entrenched policy framework of rhetoric rather than action. This research has highlighted the disconnect between espousing human rights principles and making policy that has tangible benefits for people with disability. We see from the NRS case study that while there is much discussion about the benefits to individuals and the community at large from enabling access to advanced communication services there is a financial determinant that will ultimately decide whether the rights of equal access will be available to all. Certainly the increased relay services that were introduced during the 2013 NRS contract were significant in terms of providing greater access for people with disability. However, as can be seen from the rhetoric of the government’s Communications Accessibility: 2016 and Beyond consultation paper, with its reference to the ‘sustainability’ of the NRS and the NRS as a ‘safety net’, this was a foreshadowing of the limits on access with the 2019 NRS contract’s funding cap of $20 million.

This decision to maintain the funding for the NRS at $20 million appears to have been the government’s preference prior to the completion of the consultation, with little regard shown for the significant uptake of the Captel service. The government’s final report on the

2016 consultation indicated that stakeholders with an interest in the NRS services were in

211 favour of continuing the service on a cost-recovery basis, while the industry stakeholders were concerned about the increased cost. While the submissions from NRS users far outnumbered the submissions from industry stakeholders, the government chose to go to tender for the next

NRS contract with the same funding that had been in place since 2013.

Arguably, there is a lack of public involvement – despite consultation, the recommendations of those most affected are ignored or downplayed. I argue that this can be attributed to the predominance of Australia’s neoliberal policy approach. As Nick Couldry

(2010) asserts, the predominance of neoliberal economic policies has created a ‘crisis’ of voice.

In other words, this primacy of neoliberalism has stifled the public debate on important social and democratic ideals. A fundamental aspect of the CRPD is allowing for the voice of people with disability, encouraging States Parties to engage people with disability in their own agency

– employing the disability community’s mantra, ‘Nothing about us without us’.

It is only when we fully invoke the principles of access and inclusion enshrined in the

CRPD, incorporate the expertise of the disability sector and forgo the assumption that the communications market will meet the needs of all consumers that we will be able to develop and implement public policy that is truly capable of providing functionally equivalent communications access to all people with disability.

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