Please note: Manipulating the Regulator is a work in progress last edited January 2019
As we have stated on our Absentjustice – Introduction page we are currently, pulling various sections from our menu bar above these in order to produce the final COT Cases story. Had we not separated these issues, i.e., Arbitrator / Part One, to Part Three, Absentjustice Preface, Burying The Evidence, Manipulating the Regulator etc, the firmly embedded corruption and collusive practices, in the arbitration process itself, would have been lost. We have done this below so as to show the reader how Telstra and the government communications regulator acted in concert so as only part of the COT Cases evidence of major problems in the network would be exposed during the COT arbitrations.
The Briefcase Saga
My constant complaints to Austel finally bore fruit when, for the first time in this story, Telstra investigators came to Cape Bridgewater. Dave Stockdale and Hugh Macintosh of Telstra’s National Network Investigation Division arrived at my office on 3 June 1993. At last, I thought, I would be able to speak directly to people who knew what they were talking about.
I should have known better. It was just another case of ‘No fault found.’ We spent some considerable time ‘dancing around’ a summary of my phone problems. Their best advice for me was to keep doing exactly what I had been doing since 1989, keeping a record of all my phone faults. I could have wept. Finally they left.
A little while later, in my office I found that Aladdin had left behind his treasures: the Briefcase Saga was about to unfold.
The briefcase was not locked, and I opened it to find out it belonged to Mr Macintosh. There was no phone number, so I was obliged to wait for business hours the next day to track him down. But what there was in the briefcase was a file titled ‘SMITH, CAPE BRIDGEWATER’. After five gruelling years fighting the evasive monolith of Telstra, being told various lies along the way, here was possibly the truth, from an inside perspective.
The first thing that rang bells was a document which revealed Telstra knew that the RVA fault they recorded in March 1992 had actually lasted for at least eight months — not the three weeks that was the basis of their settlement pay-out. Dated 24/7/92, and with my phone number in the top right corner, the document referred to my complaint that people ringing me get an RVA ‘service disconnected’ message with the ‘latest report’ dated 22/7/92 from Station Pier in Melbourne and a ‘similar fault reported’ on 17/03/92. The final sentence reads: ‘Network investigation should have been brought in as fault has gone on for 8 months.’ (Prologue Evidence File No 26)
I copied this and some other documents from the file on my fax machine, and faxed copies to Graham Schorer. The next morning I telephoned the local Telstra office, and someone came out and picked the briefcase up.
Just the information in this document of 24 July 1992 was proof that senior Telstra management had deceived and misled me during negotiations with me and showed too that their guarantees that my phone system was up to network standard were made in full knowledge that it was nowhere near ‘up to standard’.
Not only was Telstra’s area general manager fully aware at the time of my settlement on 11 December 1992 that she was providing me with incorrect information which influenced my judgement of the situation, placing me at a commercial disadvantage, but the General Manager, Commercial Victoria/Tasmania was also aware of this deception.
The use of misleading and deceptive conduct such as this in a commercial settlement such as mine contravenes Section 52 of the Australian Trade Practices Act. Yet this deception has never been officially addressed by any regulatory body. To get ahead of my story here, even the arbitrator who handed down his award on my case in May 1995 failed to question Telstra’s unethical behaviour.
I took this new information to Austel, and on 9 June 1993, Austel’s John MacMahon wrote to Telstra regarding my continuing phone faults after the settlement, and the content of the briefcase documents:
“Further he claims that the Telecom documents contain network investigation findings which are distinctly different from the advice which Telecom has given to the customers concerned.
In summary, these allegations, if true, would suggest that in the context of the settlement Mr Smith was provided with a misleading description of the situation as the basis for making his decision. They would also suggest that the other complainants identified in the folders have knowingly been provided with inaccurate information.
I ask for your urgent comment on these allegations. You are asked to immediately provide AUSTEL with a copy of all the documentation which was apparently inadvertently left at Mr Smith’s premises for its inspection. This, together with your comment, will enable me to arrive at an appropriate recommendation for AUSTEL’s consideration of any action it should take.
As to Mr Smith’s claimed continuing service difficulties, please provide a statement as to whether Telecom believes that Mr Smith has been provided with a telephone service of normal network standard since the settlement. If not, you are asked to detail the problems which Telecom knows to exist, indicate how far beyond network standards they are and identify the cause/causes of these problems.
In light of Mr Smith’s claims of continuing service difficulties, I will be seeking to determine with you a mechanism which will allow an objective measurement of any such difficulties to be made.”
I can only presume that Telstra did not comply with the request ‘to immediately provide AUSTEL with a copy of all the documentation which was apparently inadvertently left at Mr Smith’s premises,’ for on 3 August 1993, Austel’s General Manager, Consumer Affairs wrote to Telstra requesting a copy of all the documents in this briefcase that had not already been forwarded to Austel. (See Arbitrator File No 61)
I sent off a number of Statutory Declarations to Austel explaining what I had seen in the briefcase.
On 27 August 1993, Telstra’s Corporate Secretary, Jim Holmes, wrote to me about the contents of the briefcase:
“Although there is nothing in these documents to cause Telstra any concern in respect of your case, the documents remain Telstra’s property and therefore are confidential to us … I would appreciate it if you could return any documents from the briefcase still in your possession as soon as possible.”
How blithely he omitted any reference to vital evidence which was withheld from me during their negotiations with me regarding compensation.
Telstra management was trying to force COT members into court, well aware that their highly paid lawyers would eat us alive. We became increasingly sure that this was their plan, and indeed, our suspicions were confirmed, years later, by some extraordinary documents which belatedly came our way.
The author of this internal Telstra memo to senior executives on 21 April 1993, for instance, referred to raising the issue of court with us:
“That carries an implied threat not only to COT cases but to all customers that they’ll end up as lawyer fodder. Certainly that can be a message to give face to face with customers and to hold in reserve if the complainants remain vexatious …” (Prologue Evidence File No 27)
The aim could only be construed as to wear us down and ‘hang us out to dry’ as an example to others who might wish to bring future complaints. And a copy of a Telstra email dated 28 September 1993, while referring to the ‘duress that the COT members are suffering’, goes on to say:
“… we can’t afford to let anything get away … our best option is still to force these cases down a legal structured path.” (Prologue Evidence File No 28)
Once Telstra management decided claimants were becoming ‘vexatious’, this was the time to threaten legal action. Behind its public face of a supposedly benevolent, government-owned corporation acting for the good of the public — an organisation Australians were being exhorted to trust with radio and television advertisements bombarding us night and day — Telstra management intended to turn legitimate claimants into ‘lawyer fodder’ if they persisted with their claims.
On 17 January 1994, Telecommunications Industry Ombudsman (TIO) Warwick Smith distributed a media release announcing that Dr Gordon Hughes would assess the four COT Fast Track Settlements. What the TIO did not say was that, as I had feared, Telstra was not abiding by their agreement: they were not supplying us with the discovery documents critical for establishing our cases.
Telstra was treating us with sheer contempt, and in full view of the Senate. We were beginning to believe that no single person, and no organisation, anywhere in Australia, had the courage to instigate a judicial inquiry into the way Telstra steamrolled their way over legal process.
To be fair, Austel’s chairman, Robin Davey, was expressing his anger to Telstra about their failure to supply us our necessary documents, but it was to no avail. By February 1994, Senator Ron Boswell was asking questions of Telstra in the Senate, again to no practical avail. (Questions about this failure to supply FOI documents were raised in the Senate on a number of occasions over the following years, by various Senators, whose persistence ultimately paid off for some members of COT but, unfortunately, not for me.)
Worse than this, however, was a new problem for us COT four. Dr Hughes had somehow been persuaded (presumably by Telstra) to drop the commercial assessment process he had been engaged to conduct and adopt instead an arbitration procedure based on Telstra’s arbitration process. Such a procedure would never be ‘fast-tracked’, and was bound to become legalistic and drawn out. Telstra knew none of us had the finances to go up against its high-powered legal team in such a process. This was the last thing we COT members wanted. We had signed up for a commercial assessment and that’s what we wanted.
Graham Schorer telephoned the TIO, Warwick Smith, to explain why the COT four were rejecting the arbitration process. Our reasons were dismissed. Mr Smith said he had been spending too much time on his role as administrator of our FTSP; that his office had already incurred considerable expense because of this role (Telstra refused to reimburse those expenses), and that his office had no intention of continuing to incur expenses on our behalf. He told Graham that if we did not agree to drop our commercial agreement with Telstra then Telstra would pull out all stops with the aim of forcing us into a position where we would have to take Telstra to court to resolve our commercial losses.
Moreover, if we did decide to take legal action in an attempt to compel Telstra to honour their original commercial assessment agreement then he (the TIO) would resign as administrator to the procedure. This action, he insisted, would have forced an end to the FTSP and left us with no alternative but to each take conventional legal action to resolve our claims.
The TIO had sold us out.
We implored Mr Smith to let us continue with the original FTSP agreement, but our pleas fell on deaf ears. Austel was no help either, and by April 1994, we had no choice but to prepare ourselves for an arbitration process. The first step was to familiarise ourselves with the rules of arbitration.
We had been told, Austel had been told, and the Senate had been told that the arbitration agreement rules had been drawn up specifically for the purpose, independently of Telstra, by the President of the Institute of Arbitrators of Australia. We asked for a copy of these rules, which had already, apparently, been supplied to the TIO’s office, but the TIO refused our request, saying that it was ‘irrelevant to our cause.’ More than once we asked the TIO for a copy, to no avail. We were told we should trust the arbitrator. And so, foolishly, we did. We really had no choice. We were all exhausted, stressed and clutching at straws. Singly and as a group we were vulnerable to the mute force of Telstra’s corporate power.
The rules included a confidentiality agreement which prevented anyone involved in the arbitration process from discussing the conduct of the arbitration process. In other words, if either party committed an offence of a criminal nature, this confidentiality clause would effectively stop an investigation, thereby allowing a cover-up. In my case, even though the TIO and the arbitrator were aware Telstra had perverted the course of justice during my arbitration, this confidentiality clause has so far stopped any investigation into this unlawful conduct.
AUSTEL COT CASE Formal Public Report
Point 5.46 on page 95 ‘
Where, as part of its direction, AUSTEL sought to obtain detailed information on each of the exchanges involved in terms of performance standards, actual performance, maintenance requirements and achievements, Telecom initially responded with advice in terms of a few generalisations. Very specific requests were necessary to obtain data which a co-operative approach may well have been expected to deliver. Indeed, throughout this inquiry it has been apparent that Telecom has chosen to interpret AUSTEL’s request for information in the narrowest possible terms. The net effect of this was to minimise the amount of relevant data it put before AUSTEL and lengthen the process necessary to extract it.
On 21st November 2007 I received from the Australian Communications and Media Authority (ACMA), under FOI, a copy of AUSTEL’s original draft findings dated 2nd / 3rd March 1994, regarding the telephone problems experienced by the Cape Bridgewater Holiday Camp during 1988 to 1994 Exhibit. Copied below are some of the page numbers and points in the report. The reason I am discussing these issues here in our Manipulating the Regulator page is to show the difficulties that AUSTEL as the Government regulator had in obtaining documents from Telstra (at the time a fully Government owned Corporation). Given these difficulties, the non-supply of documents to the COT claimants during their respective arbitrations is one if the reason I was unable to conclusively prove to the arbitrator my telephone faults were still ongoing. The following list identifies some areas (in the AUSTEL draft report) where AUSTEL had problems with access to Telstra records on the service provided to me:
Point 43 on page 20 “As no fault report records remain in existence from Cape Bridgewater residents prior to this period, or these records have not been provided to AUSTEL, it is difficult to gauge the level of problems in the area.”
Point 48 on page 22 “AUSTEL has been hampered in assessing Telecom’s dealings with Mr Smith by Telecom’s failure to provide files relating to Mr Smith’s complaints.”
Point 71 on pages 28 and 29 “AUSTEL has not been provided with the documents on which the conclusion in this briefing summary were reached, such as fault reports from other Cape Bridgewater subscribers over this period or the details of the final selector fault. It would have been expected that these documents would have been retained on file as background to the summary. It can only be assumed that they are contained within the documentation not provided to AUSTEL.”
Point 140 on page 49 “t should be noted that AUSTEL’s investigation of matters relating to the RCM problem has been hampered by Telecom’s failure to make available to AUSTEL a file specifically relating to the Pairs Gains Support investigation of the RCM. The file was requested by AUSTEL on 9 February 1994.”
Point 160 on page 55 “It should be noted that it is hoped that a number of issues in regard to the Cape Bridgewater RCM will be clarified when Telecom provides the documentation requested by AUSTEL.”
Absentjustice-Introduction File 495, dated 22 September 1994, is a transcript taken during an oral interview at the Commonwealth Ombudsman’s Office, with AUSTEL’s representatives Bruce Matthews and John McMahon. On page 7 of this manuscript the Commonwealth Ombudsman’s officer John Wynack, asked: ‘What was the date the report was issued, the AUSTEL report? And Mr Matthews replied: ‘The final report was April – I can’t remember the date in April, but April 1994. The draft report was produced in March 1994 and Telecom received their copy of that at the time.’
While it is clear from the statement made by Bruce Matthews (see above), that Telstra received a copy of AUSTEL’s draft findings ‘NONE’ of the information in this draft report, which enabled the Government Communications Regulator (AUSTEL), to arrive at their adverse findings, was ever made available to me or Graham Schorer during prior of during their arbitrations.
In my 157-page Statement of Facts and Contentions dated 26th July 2008, provided to Mr Friedman and ACMA I clearly define where AUSTEL and later ACA and ACMA for reasons unknown did not conduct themselves in a transparent manner, including allowing Telstra to use known false Cape Bridgewater tests in support of their arbitration defence of my arbitration claims. It is also clear from my AAT Statement of Facts and Contentions that I highlight that Telstra’s use of the sanitized AUSTEL April 1994 Report and not the more adverse findings of AUSTEL’s reporting on my matters later severely disadvantaged me in my March/April 2006 submission to the Department of Communications Information Technology and the Arts. The financial cost of preparing this 2006 submission was past $20,000 of wasted money. I did not receive AUSTEL’s Adverse Findings until November 2007. Had I received them prior to this DCITA government assessment process I would have been able to prove my claim.
In simple terms, by AUSTEL only providing Telstra a copy of their AUSTEL’s Adverse Findings in March 1994, not only assisted Telstra during their defence of my 1994/95 arbitration it also assisted Telstra in 2006, when the government could only assess my claims on a sanitized report prepared by AUSTEL and not their AUSTEL’s Adverse Findings.
Minimizing Telstra’s Liability
AUSTEL’s Adverse Findings, at points 10, 23, 42, 44, 46, 109, 115, 130, 153, 158, 209 and 212 (below), were compiled after the government communications regulator investigated my ongoing telephone problems. Government records show AUSTEL’s adverse findings were provided to Telstra (the defendants) one month before Telstra and I signed our arbitration agreement to address my long outstanding claims against Telstra, some of which are documented in these adverse findings. I did not get a copy of these same findings until 23 November 2007, 12 years after the conclusion of my arbitration.
Page 10 – “Whilst Network Investigation and Support advised that all faults were rectified, the above faults and record of degraded service minutes indicate a significant network problem from August 1991 to March 1993.”
Point 23 – “It is difficult to discern exactly who had responsibility for Mr Smith’s problems at the time, and how information on his problems was disseminated within Telecom. Information imparted by the Portland officer on 10 February 1993 of suspected problems in the RCM [Cape Bridgewater unmanned switching exchange] “caused by a lighting (sic) strike to a bearer in late November” led to a specialist examination of the RCM on March 1993. Serious problems were identified by this examination.”
Point 42 – “Some important questions are raised by the possible existence of a cable problem affecting the Cape Bridgewater Holiday Camp service. Foremost of these questions is why was the test call program conducted during July and August 1992 did not lead to the discovery of the cable problem. Another important question is exactly how the cable problem would have manifested in terms of service difficulties to the subscriber.”
Point 44 – “Given the range of faults being experienced by Mr Smith and other subscribers in Cape Bridgewater, it is clear that Telecom should have initiated more comprehensive action than the test call program. It appears that there was expensive reliance on the results of the test program and insufficient analysis of other data identifying problems. Again, this deficiency demonstrated Telecom’s lack of a comprehensive and co-ordinated approach to resolution of Mr Smith’s problems.”
Point 46 –“File evidence clearly indicates that Telecom at the time of settlement with Mr Smith had not taken appropriate action to identify possible problems with the RCM . It was not until a resurgence of complaints from Mr Smith in early 1993 that appropriate investigative action was undertaken on this potential cause In March 1993 a major fault was discovered in the digital remote customer multiplexer (RCM) providing telephone service to Cape Bridgewater holiday camp. This fault may have been existence for approximately 18 months. The Fault would have affected approximately one third of subscribers receiving a service of this RCM. Given the nature of Mr Smith’s business in comparison with the essentially domestic services surrounding subscribers, Mr Smith would have been more affected by this problem due to the greater volume of incoming traffic than his neighbours.”
Point 76 – “One disturbing matter in relation to Mr Smith’s complaints of NRR [not receiving ring] is that information on other people in the Cape Bridgewater area experiencing the problem has been misrepresented from local Telecom regional manager to more senior manager.”
Point 86 – “From examination of Telecom’s documention concerning RVA [a recorded voice announcement – not in service] messages on the Cape Bridgewater Holiday Camp there are a wide range of possible causes of this message.”
Point 109 – The view of the local Telecom technicians in relation to the RVA problem is conveyed in a 2 July 1992 Minute from Customer Service Manager – Hamilton to Managers in the Network Operations and Vic/Tas Fault Bureau:
“Our local technicians believe that Mr Smith is correct in raising complaints about incoming callers to his number receiving a Recorded Voice Announcement saying that the number is disconnecte. They believe that it is a problem that is occurring in increasing numbers as more and more customers are connected to AXE. [AXE – Portland telephone exchange]”
Point 115 – “Some problems with incorrectly coded data seem to have existed for a considerable period of time. In July 1993 Mr Smith reported a problem with payphones dropping out on answer to calls made utilising his 008 number. Telecom diagnosed the problem as being to “Due to incorrect data in AXE 1004, CC-1. Fault repaired by Ballarat OSC 8/7/93, The original deadline for the data to be changed was June 14th 1991. Mr Smith’s complaint led to the identification of a problem which had existed for two years.”
Point 130 – “On April 1993 Mr Smith wrote to AUSTEL and referred to the absent resolution of the Answer NO Voice problem on his service. Mr Smith maintained that it was only his constant complaints that had led Telecom to uncover this condition affecting his service, which he maintained he had been informed was caused by “increased customer traffic through the exchange.” On the evidence available to AUSTEL it appears that it was Mr Smith’s persistence which led to the uncovering and resolving of his problem – to the benefit of all subscribers in his area”.
Point 153 –“A feature of the RCM system is that when a system goes “down” the system is also capable of automatically returning back to service. As quoted above, normally when the system goes “down” an alarm would have been generated at the Portland exchange, alerting local staff to a problem in the network. This would not have occurred in the case of the Cape Bridgewater RCM however, as the alarms had not been programmed. It was some 18 months after the RCM was put into operation that the fact the alarms were not programmed was discovered. In normal circumstances the failure to program the alarms would have been deficient, but in the case of the ongoing complaints from Mr Smith and other subscribers in the area the failure to program these alarms or determine whether they were programmed is almost inconceivable.”
Point 158 – “The crucial issue in regard to the Cape Bridgewater RCM is that assuming the lightning strike did cause problems to the RCM om late November 1992 these problems were not resolved till the beginning of March 1993, over 3 months later. This was despite a number of indications of problems in the Cape Bridgewater area. Fault reports from September 1992 also indicate that the commencement of problems with the RCM may have occurred earlier than November 1992. A related issue is that Mr Smith’s persistent complaints were almost certainly responsible for an earlier identification of problems with the RCM than would otherwise have been the case.”
Point 209 – “Cape Bridgewater Holiday Camp has a history of service difficulties dating back to 1988. Although most of the documentation dates from 1991 it is apparent that the camp has had ongoing service difficulties for the past six years which has impacted on its business operations causing losses and erosion of customer base.”
Point 210 – “Service faults of a recurrent nature were continually reported by Smith and Telecom was provided with supporting evidence in the form of testimonials from other network users who were unable to make telephone contact with the camp.”
Point 211 – “Telecom testing isolated and rectified faults as they were found however significant faults were identified not by routine testing but rather by the persistence-fault reporting of Smith”.
Point 212 – “In view of the continuing nature of the fault reports and the level of testing undertaken by Telecom doubts are raised on the capability of the testing regime to locate the causes of faults being reported.”
Amazingly, even though the arbitrator’s technical consultants – one from Canada, the other from Australia – warned the arbitrator, at point 2.23 in their final arbitration evaluation report, that there were “Continued reports of 008 faults up to the present. As the level of disruption to overall CBHC [Cape Bridgewater Holiday Camp] service is not clear, and fault causes have not been diagnosed, a reasonable expectation is that these faults would remain ‘open’,” the arbitrator Dr Gordon Hughes refused to allow these two arbitration consultants the extra weeks they needed to investigate these problems. Chapter One in our Prologue page shows the arbitration project manager John Rundell (who now operates an arbitration centre in Melbourne) knowingly misinformed the Telecommunications Industry Ombudsman (TIO) in his 15 November 1995 letter concerning these faults being left open. So not only was I battling Telstra’s false witness statements in my arbitration and the concealment of AUSTEL’s Adverse Findings against Telstra, I also had to contend with the arbitration project manager’s false statements to the TIO (the administrator of my arbitration).
Government records show that the following more-adverse findings by AUSTEL regarding their COT Case investigations (see AUSTEL’s Adverse were provided to Telstra (the defendant in my arbitration) in March 1994, one month before I signed my arbitrations agreement. Providing the defendant with a copy of these findings, showing Telstra destroyed both businesses, while concealing them from the claimants and arbitrator, shows the odds were against me even before I signed our arbitration agreement on 21 April 1994. Why is the Australian government still concealing this disgraceful and unethical conduct? When the government communications regular provided only the defendant with a copy of this report, it breached its statutory duty of care. Why has the Australian government not acted on this breach?
Document (Introduction File No/8-A to 8-C), a letter dated 8 April, 1994 to AUSTEL’s Chairman from Telstra’s Group General Manager, suggests that AUSTEL was far from truly independent, but rather could be convinced to alter their official findings in their COT reports, just as Telstra has requested in many of the points in this first letter.
For example, at point 4 on page 3, Telstra writes:
“The Report, when commenting on the number of customers with Cot-type problems, refers to a research study undertaken by Telecom at Austel’s request. The Report extrapolates from those results and infers that the number of customers so affected could be as high as 120,000.
However, at point 2 on page 1 of Telstra’s letter 9 April 1994, Telstra writes:
“In relation to point 4, you have agreed to withdraw the reference in the Report to the potential existence of 120,000 COT-type customers and replace it with a reference to the potential existence of “some hundreds” of COT-type customers”.
The fact that, on this occasions on 9 April, 1994 Telstra (the defendants) were able to pressure the Government Regulator to change their original findings in the formal 13 April, 1994 AUSTEL report is alarming, to say the least.
The 120,000 COT-type problems being experienced by other Australian citizens are not referred to in the Department of Communications Information Technology and the Arts (DCITA) report either see Falsification Report File No/10 DCITA even though it was used by the DCITA to determine the validity of the COT claims of ongoing telephone problems that were destroying their businesses.
It is clear from the following three letters dated 3, 14 and 16 October 1995, that the most important part of my arbitration claim was addressed in secret by AUSTEL and Telstra. How many of the 120,000 previously concealed faults which should have been shown in AUSTEL’s COT Cases report were related to the 008/1800 faults which AUSTEL allowed Telstra to address outside of my arbitration arena?
This 3 October 1995 letter from AUSTEL to Telstra’s arbitration defence liaison officer and copied to the TIO, states:
“I write concerning charging discrepancies raised in 1994 by Mr Alan Smith of Cape Bridgewater Holiday Camp regarding his 008 service, and the wider issue these discrepancies raise for Telstra’s 008/1800 customers. These matters have been the subject of previous letters from AUSTEL to you and to [Telstra], dated 4 October 1994 and 1 December 1994, respectively. The charging discrepancies have again been raised with AUSTEL by Mr Smith following the conclusion of his Fast Track Arbitration Procedure.”
On 14 October 1995, AUSTEL’s Darren Kearney wrote to me under the subject heading Charging Discrepancies Related to Telstra’s 008/1800 Service:
“As noted in my letter to you of 4 October 1995, AUSTEL has written to Telstra regarding the issues originally raised by you in 1994. The letter refers specifically to charging discrepancies raised in 1994 by Mr Alan Smith of Cape Bridgewater Holiday camp regarding his 008 service. …
“As previously advised, you will be informed of the outcome of this matter.”
Did the arbitration resource unit understand that when they failed to investigate the ongoing billing problems, they did not address the cause of the billing issues? The billing issues included calls registering into the holiday camp lines through Telstra’s Call Analyses Charges System (CCAS) that I was charged for, although the connection actually failed, and a fault where successful calls were terminated but the line remained engaged, thus prohibiting incoming or outgoing calls. The failure of the engaged line to correct itself, leaving the line effectively frozen, was significant.
This fault was only obvious when dialing out from the business office. From 1993 onwards, Telstra often advised us to disconnect the phone at the wall socket and then plug it back in to free up the line. This indicates the fault was in either the phone or the actual phone line. In order to dial out of the office when this particular fault was present (it was intermittent), we had to disconnect the line at the wall after every call.
Faults continued to occur. In January 2003 – seven years after the arbitration process – the new owners of my business wrote to David Hawker MP, seeking help (see Arbitrator File No/118). Ex-Telstra technical guru Brian Hodge, after viewing Telstra’s own fault material, confirms the problems were still affecting the business in November 2006. When the project manager admitted that NONE of the billing issues were addressed during my arbitration (see below), he also admitted to not investigating the faults that caused these billing issues. In fact, in both the draft and final 30 April 1995 technical arbitration evaluation Cape Bridgewater Holiday Camp reports, the consultants state:
“2.23 Continued reports of 008 faults up to the present. As the level of disruption to overall CBHA (Cape Bridgewater Holiday Camp) service is not clear, and fault causes have not been diagnosed, a reasonable expectation is that these faults would remain “open” (See Introduction File No/1-B)
The TIO-appointed arbitration project manager wrote to the TIO on 15 November 1995 advising them that NONE of my billing faults were investigated because the material was not submitted until April 1995.
“A second matter involved 008 calls. Again, this matter was current at a late stage (April 1995) of the Arbitration process. …
“As no further progress was likely to be made on these matters, the formal version of the Technical Evaluation Report did not leave the billing issue open.” (See Introduction File No/1-A )
Although the billing issues were certainly still “current” in April 1995, this letter implies that they were not referred to before: this is inaccurate as my billing issues were included in my letter of claim, which Garry Ellicott and Barry O’Sullivan lodged on 15 June 1994. The project manager, once again, misled and deceived the TIO. This same project manager was present at the oral arbitration hearing with the arbitrator and Telstra on 11 October 1994. I informed both the arbitrator and Telstra, in detail, as to the true extent of Telstra’s billing problems within their network. The transcript of this hearing shows that both the arbitration project manager and the arbitrator were given massive (and we repeat – massive) amounts of evidence in relation to wrongly calculated accounts charged to my phone services over many years recorded these facts. (See Open letter File No/45-B)
If my claim advisors, Garry and Barry, had provided me with the costs of the freight charges between Queensland and Victoria and the dates they sent the material on, I could have proved conclusively to the TIO that my billing claim documents were sent in June 1994, as the freight invoice would have shown when it left their Queensland office. No one has attempted to investigate why these documents were kept from the arbitration, not even my claim advisers. Senator Barry O’Sullivan has not replied to my questions as to why he won’t supply the freight costs.
If Mr Kearney is honest, then I am sure he remembers what he told me after I showed him point 2.23 (above). I remember, vividly, that he asked how the technical consultants could sign off their report as complete, when they had not even attempted to diagnose the causes of the faults that Telstra’s CCAS data showed were a major problem for my business. I told Mr Kearney the Canadian technical consultant had spoken to me on the telephone and informed me the report was not signed off because it had not been completed. We address this issue in more detail on another page.
While Mr Kearney was clearly shocked at the evidence contained in my comprehensive log of fault complaints and appeared to empathise with me regarding the arbitrator’s duplicity, he made it clear AUSTEL could not intervene. He requested, almost apologetically, that he be allowed to take the comprehensive log and its attachments – five spiral-bound evidence files compiled by Garry Ellicott and Barry O’Sullivan. I allowed Mr Kearney the privilege of taking this information to Melbourne. However, similar to when I ignored Telstra’s threats (see Senate Evidence File No/31) and continued assisting the AFP with their investigations, I was again deceived. AUSTEL (now ACMA) like the AFP, have refused to assist me when I needed the same assistance they had received from me.
Was it Legal or Illegal?
16 October 1995: Five months after my arbitration was deemed complete (and hence outside the arena of the arbitration process) AUSTEL allowed Telstra’s original arbitration defence liaison officer to address the 27 May 1994 recorded voice faults my claim advisor Garry Ellicott experienced (see also Open letter File No/46-A to 46-l). These were some of the billing RVA faults that the resource unit later admitted (2 August 1996) to the arbitrator and TIO that they had withheld from the arbitration process (see Open letter File No/45-H).
Trying to produce a readable claim when the story was so complex, multi-layered and obscured by long-delayed access to necessary information was extremely challenging. My phone and fax lines became lifelines to Garry Ellicott in Queensland. Ex-senior Queensland police officers Garry Ellicott and Barry O’Sullivan (now the Hon Senator Barry O’Sullivan) were heavily involved in my arbitration. Between May 1994 and May 1995, while working on my claim, Garry frequently experienced major problems when he tried to contact me by phone or fax (this was pre-email). Sometimes he attempted to phone me, but received an incorrect recorded voice announcement (termed an RVA fault) telling him that my phone line was ‘no longer connected’; sometimes the line was simply dead. Sometimes he was unable to send faxes to me or I could not receive them; on other occasions when faxes did get through, if they weren’t completely blank pages, they were so distorted they were unreadable.
When Garry attempted to ring me on 27 May 1994 on my 1800 service, he twice reached a recorded announcement telling him my number was not connected, before he finally got through. When Garry rang the Telstra fault centre to complain about these voice messages the operator told him she could not register the fault because the complaint had to come from the customer. Garry’s response was understandably blunt. He asked, ‘How can the customer complain if he doesn’t know I’m trying to reach him?! How can he complain if he is not aware that his incoming callers believe he’s no longer trading?’ When my telephone account arrived I had, of course, been charged for both failed calls.
AUSTEL, allowing Telstra to address arbitration issues outside of my arbitration, prohibited me from legally challenging (as part of the original arbitration process) Telstra’s response to the ongoing billing problems that still affected the viability of my business. AUSTEL did not alert me to this, which meant that I was unable to use my legal right to challenge Telstra on this matter.
When AUSTEL allowed Telstra to address these ongoing RVA billing issues covertly (see Open letter File No/46-L to 46-l) and without the involvement of the original ‘umpire’ (in my case, the arbitrator) AUSTEL could not have known that my claim advisors had already proved to the arbitrator that Telstra’s witness statement was full of inaccuracies. Telstra was able to submit this same witness statement to AUSTEL, fully aware that AUSTEL did not know what Gary Ellicott and Barry O’Sullivan (my claim advisors) had proven.
Anyone who uses a telephone has at some time reached a recorded voice announcement (known within the industry as RVA):
‘The number you have called is not connected or has been changed. Please check the number before calling again. You have not been charged for this call.’
This incorrect message was the RVA people most frequently reached when trying to ring the Camp. While Telstra never acknowledged this, I discovered much later, among a multitude of FOI documents I received in 1994, a copy of a Telstra internal memo which explained, ‘this message tends to give the caller the impression that the business they are calling has ceased trading, and they should try another trader’.
Another Telstra document referred to the need for:
‘a very basic review of all our RVA messages and how they are applied … I am sure when we start to scratch around we will find a host of network circumstances where inappropriate RVAs are going to line’.
It seems the ‘not connected’ RVA came on whenever the lines in or out of Cape Bridgewater were congested, which, given how few lines there were, was often.
For a newly established business like ours, this was a major disaster, but despite the memo’s acknowledgement that such serious faults existed, Telstra never admitted the existence of a fault in those first years. And with my continued complaints I was treated increasingly as a nuisance caller. This was rural Australia, and I was supposed to put up with a poor phone service — not that anyone in Telstra was admitting that it was poor service. In every case, ‘No fault found’ was the finding by technicians and linesmen.
NOTE: The arbitration confidentiality agreement, which both Telstra and I signed, prohibited us from exposing these types of documents outside of the arbitration process. Yet Telstra, on 16 October 1995, supplied AUSTEL some of their original arbitration defence documents. Telstra not only breached the confidentiality agreement, they used documents already proven false. If AUSTEL had gathered the main players together and insisted the arbitration issues be addressed because the systemic billing issues affected thousands of Telstra customers, the arbitrator would have been duty bound to reopen the arbitration.
How can AUSTEL (now the ACMA) continue to state that they are independent of Telstra and did not compromise my position? Mr Kearney’s report, from the information I provided him on 19 December 1995 (see below), confirms Telstra incorrectly charged me for telephone calls for more than two years, both before and during my arbitration. Between June 1993 and December 1995, I provided AUSTEL with copies of Telstra System CCAS data, showing that Telstra had a systemic billing problem in their network. Over this period, AUSTEL wrote to Telstra on numerous occasions regarding my claims. One letter, dated 4 October 1994, demanded answers (see Open letter File No/46-F to 46-l) and another letter, dated 2 August 1996, show AUSTEL was very concerned as it appeared this systemic billing problem still existed within Telstra’s network (see Arbitrator File No/115). Will the Australian public ever know how much extra revenue Telstra made during the period in which this systemic billing problem existed in their network?
Mr Kearney’s statements in his February 1996 report (see Arbitrator File No/109) support my original arbitration billing submission (which accompanied our arbitration chronology of faults submission and hence was hidden from arbitration) and show that the billing information that Telstra provided to AUSTEL on 16 October 1995 was fundamentally flawed. The information AUSTEL allowed Telstra to submit in secret did not match Mr Kearney’s findings. In essence, AUSTEL allowing Telstra to address some of my arbitration billing claims in secret, without an arbitrator present and disallowing me my legal rights to challenge Telstra’s submission, severely compromised my future complaints of ongoing telephone problems.
The TIO and Telstra both refused to properly investigate the ongoing problems until 16 January 1998, and then it was agreed (see Main Evidence File No 35 and File No 36) that these problems continued to haunt my business long after the end of my ‘completed’ arbitration. So, in 2015, how can the government say that the government communications regulator did not breach their statutory obligation to me as a citizen of Australia? Particularly, when they allowed Telstra to covertly address issues, which had cost me $200,000-PLUS merely to submit them to an arbitration where ultimately only a part of my claim was assessed.
Concealing the Truth (1)
One aspect of this more-than-twenty-two-years-old case is still very relevant today, and that is the fact that at least two of the public servants and/or bureaucrats who were heavily involved in concealing the truth about what the Communications Regulator had uncovered concerning Telstra’s unethical conduct towards their customers, were still senior bureaucrats within the current Communications Regulator, in 2015. Despite the fact that their behaviour, all those years ago, was clearly a breach of their statutory obligations, both to myself and the other COT claimants too, but still no one has ever transparently investigated any of the claims now exposed on absentjustice.com, which suggest that nothing has changed within the Regulator’s Department. Just imagine what would have happened if the Regulator and their public servant employees had not allowed Telstra to operate outside of their licensing guidelines but had, instead, told the Communications Minister that at least 120,000 COT-type complaints were being recorded in 1994! The government would have been forced to investigate just how deficient the Telstra network really was, and that would have resulted in most of the millions upon millions of dollars (in fact it is probably more like a billion dollars or more), of what it has cost the Australian government to fight our legitimate claims would have been saved, because the problems would have been dealt with way back then, twenty-three years ago. In other words, when the Regulator decided not to include the truth in their AUSTEL COT Cases Report of April 1994, those public servants indirectly caused much of the cost blow-out related to the new National Broadband Network in Australia.
Falsification Reports File No/4 dated 22 September, 1994 is a transcript taken during an oral interview at the Commonwealth Ombudsman’s Office, with AUSTEL’s representatives, Bruce Matthews and John McMahon. On page 7 of this transcript the Commonwealth Ombudsman’s officer, John Wynack, asked: ‘What was the date the report was issued, the AUSTEL report? And AUSTEL’s representative replied:
“The final report was April – I can’t remember the date in April, but April 1994. The draft report was produced in March 1994 and Telecom received their copy of that at the time.”
While it is clear from the statement made by one of AUSTEL’s two representatives at the hearing (see above), that Telstra received a copy of AUSTEL’s draft findings, ‘NONE’ of the information in this draft report, which enabled the Government Communications Regulator (AUSTEL), to arrive at their adverse findings against the Telstra Corporation, was ever made available to the COT claimants during their arbitrations.
The exhibit Falsification Report File No/8 and in our Introduction File No/8-A to 8-C contains two letters, dated 8 and 9 April 1994, from Telstra’s group general manager to AUSTEL’s chair (see also Arbitrator Part One). These letters suggest AUSTEL was far from truly independent, but rather could be convinced to alter their official findings in their COT reports, just as Telstra requests in many of the points in this letter.
For example, at point 4, on page 3 on the 8 April letter, Telstra’s Steve Black writes to AUSTEL’s Chairman Robin Davey stating:
“The Report, when commenting on the number of customers with Cot-type problems, refers to a research study undertaken by Telecom at Austel’s request. The Report extrapolates from those results and infers that the number of customers so affected could be as high as 120,000.”
And, in the second letter, on 9 April, from Mr Black to Mr Davey he writes:
“In relation to point 4, you have agreed to withdraw the reference in the Report to the potential existence of 120,000 COT-type customers and replace it with a reference to the potential existence of ‘some hundreds’ of COT-type customers…”
And further, on page 3, Mr Black adds:
“Telecom is still concerned that … the proposed reference to ‘some hundreds’ of customers has the potential to be misleading.”
Point 2.71 in AUSTEL’s April 1994 formal report notes:
“the number of Telecom customers experiencing COT type service difficulties and faults is substantially higher than Telecom’s original estimate of 50”.
That Telstra (the defendant) was able to pressure the government regulator to change its original findings for the formal 13 April 1994 AUSTEL report is alarming, to say the least.
Because acknowledgement of the 120,000 COT-type problems, experienced by other Australian citizens, was removed from the AUSTEL formal report, which the Department of Communications Information Technology and the Arts (DCITA) report referenced to determine the validity of COT claims of ongoing telephone problems destroying our businesses, the vastness of Telstra’s network issues does not appear in the DCITA report, either. How many other government-owned businesses have had reports cleansed to prevent the truth being exposed? (See also Destruction of Evidence / Perverting The Course of Justice/Falsification Report File No/10 )
When is a Regulator Not a Regulator?
As the two letters of 8 and 9 April 1994 show, Telstra pressured AUSTEL, and AUSTEL agreed, to dramatically change the actual findings that were included in the first version of AUSTEL’s public COT Cases Report, which would then be used in the COT arbitrations. In response to that pressure from Telstra, AUSTEL removed all reference to the 120,000 COT-type complaints that they had located and included in the original version of their report, and changed that figure to read instead that they had only found fifty or so COT-type complaints. Surely this was illegal, particularly since it is obvious that that one change would definitely provide considerable assistance for Telstra in their arbitration defence of the COTs’ claims?
At point 2.68 in the AUSTEL Cot report, the 120 thousand COT-type complaints was changed to read 50 or more, therefore the official AUSTEL COT report, provided to the minister, says 50 or more
9th April, 1994: In this letter Mr Black states:-
“In relation to point 4, you have agreed to withdraw the reference in the Report to the potential existence of 120,000 COT-type customers and replace it with a reference to the potential existence of ‘some hundreds’ of COT-type customers.”
As noted immediately above, the official report refers to 50 or more COT-type faults, confirming that Mr Davey was further pressured to change his real findings.
Telstra FOI folio 101115 to 101117 states:-
“A total of 8% of all businesses stated they had experienced problems themselves; 5% had, by inference from comments made by callers assumed they had problems; and 8% claimed they had both experienced problems themselves and also received comments from callers regarding difficulties in getting through to the business. …
73% of customers who felt the problems associated with incoming calls has seriously affected their business had reported the problems to Telecom with varying degrees of success regarding resolution.”
On 6th December, 1993 (see above), Telstra’s Ted Benjamin warned Telstra’s Group Managing Director, Harvey Parker, that 4 per cent of the 2,644 commercial business customers surveyed by TELCATS (on behalf of Telstra) reported experiencing significant phone problems that affected their businesses.
Four per cent of 2,644 means 106 businesses experienced COT-type problems – a significant number. Four per cent of all Telstra’s commercial business customers, nationwide, would be well over 120,000 – the number that AUSTEL’s chair, Robin Davey, wanted to include in the AUSTEL COT report, rather than the 50 or more customers Telstra insisted on. Robin Davey’s original calculations were correct.
Once the altered version of AUSTEL’s April 1994 report then indicated – completely falsely – that there were only fifty or so COT-type problems registered with Telstra, instead of the actual figure of 120,000, and this altered report was made available to the public, we must then ask what effect that hugely minimised figure would have had on the “value” of Telstra, when it was floated to the public. Surely the number of reported “problems” would influence that “value”? (see the comment, at the end of this, about share price fluctuations) Furthermore, when the Government/NBN later paid Telstra $11 Billion (see http://www.itnews.com.au/news/telstra-hands-over-copper-hfc-in-new-11bn-nbn-deal) for their network, just two years ago (in 2016), this same suppression of true information would also have been extremely useful in relation to the valuation, or the reliability, or the real value of the cable, to properly and effectively support communication systems around the country?
Forget the value of a compromised network infrastructure, e.g. a seriously deficient system, and consider the other side of the equation, i.e. that it is not the value placed on the network that is most important per se, it is the capability of the network to be an efficient communications service for the customers that should be front and centre here.
If Telstra was such a terrific investment, then surely the value of the shares should have improved over the years, but they certainly have not! Moreover, the current value of Telstra is, in part, based on timed calls and mobile communication but, remember the uproar when timed fixed line calls were suggested!!!! This same business model is carried over to the NBN with the exception that there are retailers who take the profit while the NBN is just a “wholesaler” of infrastructure. We could have had this with Telstra, if only there was a true separation of the wholesale and retail arms.
We (i.e. the Australian Public) personally have some insight into the NBN through what has now been in the media of later, and so we know that there is a substantial investment in technology and expertise that is not evident to the population, and the NBN is actually like a parallel universe, where there is focus on NBN and the real world we live in, but it is almost totally disjointed and attached to the “old” network and to paying retailers for a less-than-adequate service. And the Chief Engineer/CEO has just been replaced by a marketing person – astonishing!
So, where will this all lead? We are, personally, no better off with the NBN compared to the ADSL service we had before. This could be due to the equipment we have, the network we use, the increased volume, the design of “new” websites, the equipment the retailer uses, or some other factor we don’t even know about. And we will never really know, just like the world will never know about the COT cases.
Actually, in today’s share market there only has to be a hint of controversy and the market value of an individual enterprise falls, at least momentarily, while the mathematical risk-analysis kicks in and is then followed by the human analysis of the reality. What would be the effect if the public knew about those 120,000 unhappy Telstra customers I wonder?
Fudged Exchange Reporting
In the same original, draft report of AUSTEL’s findings they acknowledged that, for the first three and half years, my business was connected to an outdated RAX exchange with limited access lines. In the final, doctored version of the report however, the one with the fudged fifty or so COT-type complaints, the government advised the arbitrator that my business was connected to an ARK exchange at that time: an ARK is a different and more modern exchange with space for more incoming circuits.
So now, how is it that the government can continue to get away with deliberately hiding such major discrepancies in a report that is so important, not only to the COTs but the entire Australian population?
One aspect of this over-22-years-old case is still very relevant today: at least two public servants or bureaucrats, who were heavily involved in concealing the truth about what the communications regulator uncovered concerning Telstra’s unethical conduct towards their customers, are still senior bureaucrats within the current communications regulator today, in 2017. Despite the fact that their behaviour, all those years ago, was a breach of their statutory obligations to the COT claimants, still no one has ever transparently investigated any of the claims exposed on abesentjustice.com which suggests that nothing has changed within the regulator’s department.
As we have shown above – just imagine what would have happened if the regulator and its public servant employees had not allowed Telstra to operate outside of their licensing guidelines but had, instead, told the Minister for Communications that at least 120,000 COT-type complaints were recorded in 1994! The government would have been forced to investigate just how deficient the Telstra network really was and that would have resulted in the Australian government saving most of the millions (if not in the billions) of dollars spent to fight our legitimate claims. The problems should have been dealt with way back then, 22 years ago. When the regulator decided to retract the truth, from their AUSTEL COT cases report of April 1994, those public servants indirectly caused much of the cost blowout related to the new National Broadband Network in Australia.
The failure of those same public servants to alert the relevant communications minister to ALL of the alarming facts they uncovered, during their official investigation into Graham’s and my telephone problems, ruined any real chance we had to restructure our businesses. AUSTEL’s investigation into our ongoing telephone problems was conducted under Section 342 of the Telecommunications Act 1991. This section provides that, after the conclusion of such an investigation, AUSTEL must prepare a report covering “the conduct of the investigation concerned” and “any findings AUSTEL has made as a result of the investigation” and provide a copy to the Minister for Communications and the Arts. However, AUSTEL did NOT report ALL of their findings to the minister therefore AUSTEL and its public servants breached their statutory obligation under section 342 to all of the COT cases involved in AUSTEL’s official investigation.
Concealing the Truth (2)
On 15 July, 1995 AUSTEL’s previous General Manager of Consumer Affairs provided me with an open letter noting:
“I am writing this in support of Mr Alan Smith, who I believe has a meeting with you during the week beginning 17 July. I first met the COT Cases in 1992 in my capacity as General Manager, Consumer Affairs at Austel. The “founding” group were Mr Smith, Mrs Ann Garms of the Tivoli Restaurant, Brisbane, Mrs Shelia Hawkins of the Society Restaurant, Melbourne, Mrs Maureen Gillian of Japanese Spare Parts, Brisbane, and Mr Graham Schorer of Golden Messenger Couriers, Melbourne. Mrs. Hawkins withdrew very early on, and I have had no contact with her since.
During my time at Austel I pressed as hard as I could for an investigation into the complaints. The resistance to that course of action came from the then Chairman. He was eventually galvanised into action by ministerial pressure. The Austel report looks good to the casual observer, but it has now become clear that much of the information accepted by Austel was at best inaccurate, and at worst fabricated, and that Austel knew or ought to have known this at the time.”
Had the Government Communications Regulator AUSTEL/ACMA not concealed their Cape Bridgewater Holiday Camp covert report from the Minister for Communications and the arbitrator, the arbitrator would have been compelled to investigate as to whether my claims of ongoing problems was a valid claim. Below are just some examples of the information concealed from the arbitrator.
Although we have raised the following points in the introduction to introduction to Absentjustice / My Story because of the importantce of what these various points show we have again added them directly below.
The Concealment Continues
No report can be used as evidence in any court of law or arbitration unless it is properly backed by relevant supporting documents and all other necessary information. If that can be done, then justice will be done. It is now quite clear however,that justice was NOT done in Graham Schorer’s case because, as the following points explain, AUSTEL’s March 1994 Golden Messenger Report pages 14 & 23 see Falsification Report File No/7 proves that AUSTEL’s investigation into Graham’s complaints reached the conclusion that Telstra had knowingly misled and deceived him over the whole period of his claim. Even though they were the official decision makers when investigating Graham’s case, AUSTEL still concealed their findings from the relevant Minister (the Hon Michael Lee MP) and the arbitrator throughout the whole of Graham’s arbitration.
In AUSTEL’s further draft findings on Golden Messenger Falsification Report File No/7
“Findings at Allegation (ii) are also relevant to this Allegation. Telecom have maintained the position that network service was within acceptable standards despite having considerable information, obtained from internal investigations, that major problems did exist with the network and that these problems did impact on the level of service provided to the customer”.
In AUSTEL’s further draft findings on Golden Messenger Falsification Report File No/7
“Telecom Minute of 30/3/88 states that advice from Legal and Policy Headquarters indicate that Golden Messenger appeared to have a case against us and that we should negotiate a settlement to prevent legal action proceeding. This advice was also contained in Telecom Minutes of 27/4/88 and 5/1/92.
The two full reports totalling 41 pages in one report and 78 in the other where Falsification Report File No/7 was obtained from, was not released to Graham Schorer by the Government Communications Media Authority (ACMA) until October 2008, fourteen years too late to be used in his arbitration or during the Senate Estimates Investigation into why relevant documents (which AUSTEL had previously used to arrive at their findings) were being withheld from Graham. In other words, if AUSTEL had provided their adverse findings against Telstra to Graham and the Senate Estimates Committee during that 1997/1999 Committee investigation, it would be fair to say that the Committee would have immediately ensured that Telstra didn’t pressure Graham into accepting compensation of less than 33% of his arbitration claim – and that 33% did NOT include the thousands upon thousands of dollars Mr Schorer had wasted on legal fees to prove something that the Australian Government Communications Regulator had already proved.
Australian National Archives
Exhibit Falsification Report File No/10 DCITA an extract from the government archives (which will be the biggest question of all is): Why are the Casualties of Telstra (COT) documents now kept in the Australian Government Archives so different to COT documents kept in the Government Communications Regulators AUSTEL/ACMA archive? During the 2006, Government-endorsed assessment process that Senator Helen Coonan organised, why were the ‘cleansed’ government archive records used for assessment by government bureaucrats instead of AUSTEL/ACMA true and more adverse findings against the Telstra Corporation?
To re-iterate, there were COT arbitrations in 1994 and 1999, and there was a government-endorsed COT assessment processes in 2006 to re-assess the claims. Each one of these, had they used accurate records, could only have found in our favour. However, ALL of these cases used inaccurate records maintained in government archives rather than the accurate records we provided to them and have now compiled in ‘Ring for Justice’ and as exhibits on this website.
Anyone, whether the general public or those involved in our cases, who reads the material readily available on this website, will be forced to conclude that the COT Cases were denied natural justice in their original 1994 to 1999 arbitrations, and that the opportunity to redress the injustice in 2006 was again wasted because grossly inaccurate records were used. Given our years of frustration being stonewalled by inaccurate government records, who else might be experiencing the same fate? What other significant instances of political and other forms of corruption are we, as a society, failing to expose as a result of this stonewalling?
Just how far does this corruption go?
The Commonwealth Ombudsman’s records clearly show that AUSTEL provided Telstra with a copy of the draft of their COT Cases Report in March 1994, which means that Telstra therefore officially knew they had provided me with a “poor grade of network performance ” over the whole six years of my arbitration claim (see point 209 above). So how, after receiving that draft report, could Telstra have still allowed their arbitration defence unit to submit SEVEN separate Witness Statements to the arbitrator hearing my case, each one sworn under oath by Telstra employees and each one stating that Telstra had always provided me with a service that exceeded all of the mandatory government communications regulatory specifications, when the government’s own findings as shown above at points 44, 46, 115, 156, 209 and 212 came to a completely opposite conclusion? And even more importantly, why should we be expected to live with the knowledge of crimes such as these for – so far – twenty-two years?
Please read our authors’ note before you continue to read further.
As we have stated throughout justicecommand.com, there is much Graham cannot not disclose because, unwittingly, he signed his 1999 Deed of Release, not knowing the Telstra Corporation and the government communications regulator had withheld their knowledge that his claim had already been substantiated in 1990 by the Australian Government Solicitor. To have allowed Graham to go through an arbitration process while concealing from him that it was secretly known his claim was valid, and by doing so allowing him to waste a further NINE years of his life trying to prove something the government already proven, is mind blowing. And in 1999, after this façade had been executed, he was forced, under threat, to take less than 30 per cent of his arbitration claim, including denying him the costs of what this façade had cost him. This is something beyond all reason.
When Graham signed this Deed of Release in April 1999, he agreed not to divulge the goings-on surrounding his claims against Telstra. Before we tell the rest of Graham’s terrible story, we want to be 100 per cent sure that we won’t be sued because of this Deed of Release.
We are now seeking legal advice from a number of areas including the government: Was Telstra and the government communications regulator (AUSTEL) allowed to conceal from the arbitrator, before Graham signed the arbitration agreement, that the Australian Government Solicitors had already proved his case and therefore there was no need for him to have to prove again what was already officially proven?
Further Damning evidence shows see Open Letter File No/35 20130627133948062. that, although the Australian Government Solicitor (AGS) warned Telstra that Graham Schorer (COT spokesperson), of Golden Messenger Courier services, had a valid claim against them for misleading and deceptive conduct under section 52 of the Australian Trade Practices Act and advised Telstra should settle with Mr Schorer, Telstra ignored the AGS. For the next NINE years, Telstra went on a deliberate campaign to destroy Mr Schorer’s credibility and his finances even though they knew the AGS was right.
On age 23 of the government communications regulatory draft findings on Golden Messenger (see 20130627133948062: it notes:
“Telecom Minute of 30/3/88 states that advice from Legal and Policy Headquarters indicate that Golden Messenger appeared to have a case against us…and…the Australian Government Solicitor had advised Telecom that Golden Messenger is likely to be successful in establishing that Telecom engaged in misleading and deceptive conduct contrary to the Trade Practice Act and that consequence of lost calls or calls not getting through was likely to lead to an immediate loss of business in relation to that call and potential loss of future business from the customer”.
Exhibits 20111025143553046 and 20130627133948062. were not released to Graham until October 2008, fourteen years too late to be used in his arbitration or during the Senate Estimates Investigation into why relevant documents were being withheld from Graham during his arbitration. In other words, if AUSTEL had provided their adverse findings against Telstra to Graham and the Senate Estimates Committee during that 1997/1999 Committee investigation, it would be fair to say that the Committee would have immediately ensured that Telstra didn’t pressure Graham into accepting compensation of only 33% of his arbitration claim – and that 33% did NOT include the thousands upon thousands of dollars Graham had wasted on legal fees to prove something that the government regulator had already proved.
Royal Commission Findings
The findings of Justice Fitzgerald and Justice Woods’ royal commission investigations into police corruption in Queensland and New South Wales, and the findings of various other investigations into government agencies over the years, state that no organisation that has claims made against it can legally investigate itself. More than half the complaints I raised with the TIO are either against TIO officials involved in the COT arbitrations or the TIO-appointed resource unit. Although I have since taken those complaints to the State Ombudsman, the Australian Competition and Consumer Commission (ACCC), the Australian Communications and Media Authority (ACMA) and various government ministers, they all have the same advice: take my matters back to the TIO, even though those government-funded organisations must know the TIO’s office cannot investigate itself. It seems therefore that justice, the Australian way, involves running ordinary Australian claimants around and around in circles in the hope they will become so exhausted, and probably financially ruined, that they give up their fight. This is what has been done to me and the other COT cases for the past 22 years, while those who acted inappropriately towards us, those who instigated the roundabout and those who caused the Australian justice system to fail, have their inappropriate conduct buried, safely out of sight. It is perfectly clear: the law does not permit a party to an allegation to investigate itself. One of two most recent Four Corners programme on crime and collusion, see following link > Breaking the Brotherhood – Four Corners – ABC, is just one of a number of media stories that leave NO doubt in the mind of the viewer that corruption and collusive practices certainly exists in the Australian Establishment.
On 16 September 1994, my claim advisor, Garry Ellicott (ex-detective sergeant in the Queensland Police Force, also ex-superintendent of the National Crime Division), was answering Telstra’s interrogatories (in writing). Mr Ellicott advised Dr Gordon Hughes (the arbitrator) I was in a terrible situation, as Telstra was demanding from me, through Dr Hughes and my arbitration process, the information I provided the Australian Federal Police (AFP). Dr Hughes did not demand Telstra stop using the arbitration process to shut down the AFP investigation into my complaints that Telstra was intercepting my telephone conversations and faxes without my knowledge or written consent. Below, I discuss Telstra’s threat of withholding FOI documents if I continued to assist the AFP. When Telstra found out I supplied FOI documents to the AFP, they stopped releasing FOI documents until after they submitted their arbitration defence on 12 December 1994. Some 24,000 documents arrived on 24 December 1994 and, as the Commonwealth Ombudsman investigation into this late delivery of my FOI documents found, 70 per cent of those documents came without the legally required FOI schedules. More than 16,800 of those FOI documents were meaningless without a list detailing their relevance and I had only 13 days to address Telstra’s defence, with documents I had no way of reading.
I also show below, that, instead of assisting me with deciphering this material, Dr Gordon Hughes and TIO John Pinnock embarked on a campaign of deceit of the worst possibly kind (see Open letter File No/45-D, E, F, G, and File No/49. We are talking about to people, two fellow Australian citizens who knew my quest for justice was my right and yet denied me that right and in doing so led me and my partner Cathy to where we are today with our lives totally destroyed. Twenty-two years which we will never get back no matter how much compensation we might eventually receive.
From the end of 1995 to at least February 1999, John Pinnock told government ministers he was investigating the possibility as to whether Dr Hughes (arbitrator) had investigated my billing problems during my arbitration. These stalling tactics were ongoing despite the government communications regulator, AUSTEL advising Mr Pinnock, in their 3 October 1995 letter to Telstra (copied to Mr Pinnock), Telstra had still not investigated my arbitration billing faults raised by me during my 1994 arbitration (see Open letter File No/46-K). Mr Pinnock continued this charade (a terrible injustice against me) even though John Rundell (arbitration project manager) also advised him, in his letter of 15 November 1995 (see Open letter File No/45-A), that none of my billing claims were addressed.
Administrative Appeals Tribunal
On the 28 January 2003, a letter from TIO officer Gillian McKenzie to Telstra states:
“Mr & Mrs Lewis claim in their correspondence attached:
“That they purchased the Cape Bridgewater Coastal Camp in December 2001, but since that time have experienced a number of issues in relation to their telephone service. Many of which remain unresolved.
“That a Telstra technician “[name deleted]” is currently assigned to his case, but appears unwilling to discuss the issues with Mr Lewis due to his contact with the previous camp owner, Mr Alan Smith.” (See Home-Page File No/76).
Was there a more sinister motive involved in Telstra’s technician refusing to help Darren Lewis with the ongoing phone/fax problems that, nine years before, Telstra and the arbitrator assigned to my case had failed to investigate transparently? Why was this Telstra technician still holding a grudge against me in 2002/03 because of something my 1994/95 arbitration should have addressed – i.e. the ongoing phone and facsimile problems that this same Telstra technician was now refusing to help Mr Lewis with, nine years later. Threats were nothing new to Telstra as our website shows.
On 4 September 2006, Darren Lewis provided the Hon Senator Helen Coonan, Minister for Communications, Information Technology and the Arts, with a two-page statutory declaration noting:
“Letters from us to our local Federal Member of Parliament, the Hon David Hawker, Speaker in the House of Representatives, led to Telstra visiting our business to investigate these continuing problems.
“After Telstra rewired the business including disconnecting a Telstra installed faulty phone alarm bell, we were informed Telstra had found other problems and believed who ever had installed the wiring had done an unprofessional job.
“Internal Telstra documentation provided to me by Allan Smith confirmed Telstra themselves had done the wiring.
“Jenny and I noticed that although our incoming-call rate had more than doubled once this wiring had taken place Telstra was still unable to provide a satisfactory reason as to why we were still having problems. …
“The technicians then in hook up consultation with outside office guru’s [sic] did a fault graph reading on our 55 267267 line with the outcome that their office technical staff stated words to the affect [sic] the reading was impossible (couldn’t be correct). It was then that the local technician became quite annoyed when the technical guru insinuated that the equipment the local tech was using must be faulty. The local tech then informed the technical guru that there was nothing wrong with the equipment at all.” (See Main Evidence File No 13)
Most, if not all, of the COT cases suffered from sleep disorders and stress for years as a result of their battles, as Chapter One in Arbitrator Part One shows. On 23 February 2007, after Darren Lewis become suicidal following a confrontation with Telstra over ongoing telephone problems at the camp, a Psychologist from Portland Psychiatric Services visited my Cape Bridgewater residence. She was struggling to understand what Darren was talking about and why he felt suicidal. I provided this Psychologist with documents supporting Darren’s valid claims about Telstra’s defective services, adding that I was sorry that Darren had ended up this way. Post-Traumatic Stress.
During this meeting with a Portland Psychologist from the Portland Psychiatric Services, I provided a letter dated 21 March 1999 and addressed to the Casualties of Telstra, C/- The Small Business Show, Channel Nine. This letter suggests that others who had run afoul of Telstra had suicided:
“I watched your show on Sunday morning carrying the piece on Telstra. I was interested to hear of Telstra’s lies under oath, destruction of evidence, etc, etc.
“I started a law suit 2½ years ago against Telstra for breach of contract during their cable TV rollout. They have placed every obstacle in our way and dragged the case out to try to bleed us dry. They sent dozens of contracting companies such as mine to the wall by manipulating markets and breaching contracts. Only 3 companies have had the resources to fight them. Unfortunately two company owners have allegedly committed suicide due to the loss of their homes and families as a consequence of Telstra’s actions, although this would be difficult to prove.
“As a direct consequence I have lost my home, separated from my wife, lost hundreds of thousands of dollars and a twenty year old business and fought a very dirty legal battle. My other partners have had to sell or re mortgage homes and one has retired without any of the security he should have had from owning [sic] a business for over twenty years.” (See Home Evidence File No/7)
I also provided another letter to this Psychologist, dated 8 November 2002, from a man in South Australia, stating:
“I am writing to you following viewing the Channel 9 Sunday Program on 3/11/02. After viewing the Sunday program, I realised the similarities you [sic] business and others had with Telstra some ten years ago with the similarities our building business had, when we lived at Bridgewater.
“During this period of time I was on a call talking to a councilor [sic]. She believed that the conversation we were having was being bugged, or listened into, and we immediately ceased the call.
“Our phone problem had such a negative effect on our building business over a period of time that our work dried up and or [sic] business shut down.” (See Home Evidence File No/15)
I believe that Darren first became concerned about the possibility that his phone conversations also may have been illegally listened to when he discovered my accreditation file in the camp office, where I had inadvertently left it when handing the Camp over to Darren. This file included Australian Federal Police/Telstra intercept documents, including one dated 14 April 1994 from Telstra to the AFP, notifying them that Telstra had installed equipment in the Portland exchange so that a bell would ring whenever I received an incoming telephone call, so that the person on duty could then listen in on those conversations.After reading these two letters Ms Howard drew up a Risk Management Plan for Darren to use (AS 629), including a warning that, if Darren felt suicidal again, he should not only share those thoughts with his wife, but also with me as well as with Portland Health.
And now, here was Telstra in 2002/2003 – nine years after my arbitration process – still having not fixed my original telephone problems and making sure that the Lewis’ ongoing telephone problems were also not transparently investigated, because to have done so would have proven just how delusive and undemocratic my arbitration process had been. The Lewis’ lives, as was my life and that of my partner, were insignificant as long as Telstra’s network deception remained protected … at all costs.
Article of The Universal Declaration of Human Rights notes:
No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.
Up until 2008, I had been pleading for the government and the TIO to understand that, when I received my claim material back from the arbitration, 43 sets of faxed claim material and two spiral-bound volumes of BCI and SVT reports, similar to those that I had provided to Darren to support his case, were missing. I also advised the government that claim material sent by me during my arbitration by Australia Mail was not on the list of arbitrator’s lists of documents received. Neither the government, nor AUSTEL, nor the TIO would investigate why this important claim material never reached the arbitrator.
My letter dated 24 April 2008 and Darren’s letter of 23 December 2008 (see below), taken together, show that material went missing in December 2008, seven months after I wrote to the AAT on 24 April 2008, noting:
“I also hope that you understand why I used a friend’s name and address on the envelope when I first sent my submission, and my apparent paranoia won’t affect your assessment of my claim. As further support for my concern, please also read the last paragraph on page ten in my submission, which discusses Telstra’s [technician] and how he was reluctant to talk to the new owner of my business, Darren Lewis, because Darren was in contact with me. My submission’s Exhibit 4 is a letter from the TIO to Telstra, which also relates to this same issue.” (See Home-Page Evidence File No/42)
My statement in this 24 April 2008 letter regarding using a friend’s address on the back of the envelope so that the letter would not be linked to me, and what happened to Darren’s Telstra related documents on 23 December 2008, show I had good reason to write to the AAT concerning about the security of my mail.
On 26 September 2008, in my three-page letter to Ms Regina Perton, Administrative Appeals Tribunal I note:
“I am sure you are aware, the Trade Practices Act directs companies to withdraw faulty goods or services immediately upon becoming aware of problems related to those goods and/or services and, at the same time, to bring the problems to the notice of their customers and the Australian public in general. If they do not follow these directions they are in breach of the Trade Practices Act.
ACMA knows that, on at least two occasions, Telstra used the regulator to ‘rubber stamp’ two technical reports that Telstra knew were more than just flawed but which were then provided to the arbitrator during my arbitration. ACMA has not published their knowledge of this matter.
On 16th October 1995 the regulator allowed Telstra to address one of the billing issues from my arbitration, outside the legal arena of my arbitration. Since my arbitration was a private matter between Telstra and me. the regulator did not have the authority to allow arbitration matters to be addressed in such a confidential way, outside the arbitration process, thus disallowing me my legal right under the Commercial Arbitration Act 1984, to challenge the false information that Telstra knew was false and misleading”.
We have added this rather long AAT segment because it is not only alarming that a Government Regulator would act in concert with a Government owned corporation (Telstra) who were the defendants in an arbitration to secretly address some of those arbitration issues outside the legal arena of that arbitration process using confidential defence documents is unbelievable and what makes it even worse, is when Telstra used the regulator as they did the arbitrator in the COT arbitration by supplying false information and when AUSTEL realized what had happened, where did they go, back to me asking if I could provide all of the arbitration material I had that Dr Hughes (arbitrator) had not investigated. As shown in further documentation on absentjustice.com AUSTEL drove the five hour journey to Cape Bridgewater to pick up eleven bound volumes of billing faults that Dr Hughes and his buddies failed to address. This further documentation also shows using absentjustice.com download evidence files that from those unaddressed arbitration claim documents AUSTEL reported my claims were validated.
So who got to who in my arbitration so that his 008/1800 arbitration claim material would not be investigated and addressed. Because of the ramifications of what AUSTEL had uncovered using my facts and figures which were after all Telstra’s own billing data AUSTEL and Telstra were staring down at a massive class action had my material been broadcast. From that time on since I helped the Government ‘in good faith’ My partner Cathy, and I have had our private lives ruined by the very government we tried to assist.
Despite numerous pleas to each of these people, none have provided good legal arguments as to why the TIO (the administrator of the arbitrations) and arbitrator allowed this destruction of evidence to continue throughout the COT arbitrations.All Pages
Courts need evidence to do justice in adjudicating disputes. Concerning the protection of evidence, its admissibility and discovery/disclosure, it is ultimately for the courts, in a democracy, to decide what is and what is not admissible in evidence in a judicial proceeding. It did not fall upon Telstra (the defendants) to decide unilaterally for themselves to advantage themselves in determining what should be concealed from the COT arbitrations and what should be disclosed.
Administrative Appeals Tribunal
Although we have addressed the ACMA two Administrative Appeals Tribunal hearings in the conclusion of our Absentjustice Brief Summary Part 2 page we thought it important enough we again important highlight below.
Transcripts from my two AAT hearings (respondents ACMA) on 3 October 2008 (No V2008/1836) and 26 May 2011 (No 2010/4634) show I maintained both my Freedom of Information applications to ACMA should be provided free of charge, in the public interest, including all of the requested information both Telstra and AUSTEL withheld during my government-endorsed arbitration process. Senior AAT member Mr G D Friedman considered both these AAT hearings and it is now apparent that Mr Friedman was unaware that the government solicitors (AGS) and ACMA based their defence of my claims on the inaccurate DCITA COT archival documents, including the sanitised public AUSTEL COT report released in April 1994. Neither document includes the true (and very adverse) findings that AUSTEL had originally reached in relation to Telstra’s dealings with me (see AUSTEL’s Adverse Findings).
It is also important to note again, that during my first AAT hearing (No V2008/1836) Mr Friedman stated:
“Let me just say, I don’t consider you, personally, to be frivolous or vexatious – far from it.
“I suppose all that remains for me to say, Mr Smith, is that you obviously are very tenacious and persistent in pursuing the – not this matter before me, but the whole – the whole question of what you see as a grave injustice, and I can only applaud people who have persistence and the determination to see things through when they believe it’s important enough.”
During my second AAT hearing (No 2010/4634), Mr Friedman stated:
“Mr Smith still believes that there are many unanswered questions by the regulatory authorities or by Telstra that he wishes to pursue and he believes these documents will show that his unhappiness with the way he has been treated personally also will flow to other areas such as it will expose the practices by Telstra and regulatory bodies which affects not only him but other people throughout Australia.
“Mr Smith said today that he had concerns about the equipment used in cabling done at Cape Bridgewater back in the 1990s. He said that it should – the equipment or some of the equipment should have a life of up to 40 years but, in fact, because of the terrain and the wet surfaces and other things down there the wrong equipment was used.”
During this second AAT hearing in May 2011, I again raised the telephone problems that had affected my business from before my arbitration to 1995, stressing that the arbitrator had failed to investigate or address most of those problems, and therefore allowed them to continue for a further 11 years after the end of the arbitration. Since that second AAT hearing, and as a result of Australia’s National Broadband Network (NBN) rollout, which began in mid-2011 and is still continuing today, numerous faults, just like those that I raised during my arbitration and both AAT hearings, have been found; this can be confirmed by a simple internet search for “Australia NBN”.
Therefore, I was right to demand that those in charge of my government-endorsed arbitration explain why they did not force Telstra to rectify the faults in my local Cape Bridgewater RCM exchange as part of my arbitration. There are numerous exhibits on this website, absentjustice.com, confirming the COTs and various ministers were told, in early-1994, that telephone exchanges servicing the COT claimants would be upgraded if arbitration SVTs revealed any problems still remaining.
If the arbitrator had conducted my arbitration according to the ambit of the Commercial Arbitration Act 1984 and investigated ALL of my ongoing telephone and faxing claim documents, then Darren and Jenny Lewis (the new owners of my business) would not have suffered. I was forced to sell my business because the TIO and Telstra did not transparently investigate my claims. Both the TIO and Telstra failed to divulge to me that their investigation conducted after my arbitration on 14 January 1998 showed it was apparent the phone problems would indeed continue.
If the TIO did carry out an in-house TIO investigation into my claims that some COT faxes were being illegally intercepted, but came to the conclusion that those faxes did not arrive at the arbitrator’s office because they had been lost as a direct result of faults in the network – the very network under investigation by the arbitrator – it would be deplorable if the TIO then decided not to respond to my interception claims. Deplorable because, either way, whether the missing documents were intercepted and not forwarded on or were lost because of faults in the network, it still comes down to the fact that certain claim documents of relevance to the COT claims were NOT assessed by the arbitration process as was intended by the Federal Labor Government when they endorsed our arbitrations.
Once again, during this second AAT hearing in May 2011, I raised the telephone problems that had affected my business, both from before my arbitration began in 1994 and during the arbitration itself, stressing that the Arbitrator had failed to investigate or address any of the ongoing telephone problems, and explaining that his failure therefore allowed all the problems to continue for a further eleven years after the end of the arbitration. Since that second AAT hearing, and as a result of Australia’s National Broadband Network (NBN) rollout, which began in mid-2011 and is still continuing today, numerous faults, just like those that I raised during my 1994 arbitration, are still apparent. So here we are, in 2018, and people around the country are reporting faults just like those that the COTs experienced – and raised with Telstra – back in 1994, because now we not only have a faulty telecommunications system left over from last century, we also have a second-rate NBN system. You can read about some of those NBN problems at http://www.abc.net.au/news/2017-10-18/nbn-complaints-to-tio-surge-in-last-financial-year/9058336.
As a citizen of Australia, I was therefore quite right to demand that those in charge of my government-endorsed arbitration should explain why Telstra was not forced to rectify the faults in the local Cape Bridgewater RCM exchange before the arbitrator handed down his findings which, of course, were only based on anecdotal, historic, past telephone problems and not on any of those that were STILL affecting the viability of my business
The following link also shows that the COT Cases were right way back in 1994 in regards to the copper-wire network,