continued from Absentjustice – Brief Summary Part 1
Stretched to the limit
The Telstra briefing note in justicecommand.com /G.S. Conflict of Interest File 1 shows, at point 5, that the Australian Government Solicitor, on behalf of Telstra, wrote to Graham’s legal advisors instructing them “not to disclose to their client [Graham Schorer] or other the content of the report on the North Melbourne Exchange”. It is important to note the author of this exhibit later became chair of the Telecommunication Industry Ombudsman board: the same TIO office that administered the COT arbitrations.
This shows that people holding a higher level of service within Australia’s telecommunication industry are fully aware of how the system took Graham’s business life, destroyed it and then sat by while he was forced to spend hundreds of thousands of dollars in legal fees in a process that lasted for FIVE GRUELLING YEARS in proving his claim, while fully aware his claims were proven correct by none other than the Australian Government Solicitor and the government communications regulator. Even worse is that the receiver of G.S. Conflict of Interest File 1 briefing note copied this briefing note to a person in another department in Telstra and noted:
“It would appear that any concerns over the disclosure of the adverse report on the North Melbourne Exchange can now be set to rest as it will not be released until point (5) has been complied with.”
This point 5 is point 5 in the enclosed briefing note that confirms Graham’s lawyers were actually being threatened by the Australian Government Solicitors not to disclose this North Melbourne Exchange report to their client, Graham.
Of course, Dr Gordon Hughes, one of the lawyers being threatened, later became the COT arbitrator, four years after this event. Amazingly, Dr Gordon Hughes never openly disclosed to the COT cases his prior involvement in this Telstra matter nor the threats made by the AGS.
While this conflict of interest matter is alarming enough, equally alarming is that the receiver of the G.S. Conflict of Interest File 1 exhibit is also the author of G.S. Conflict of Interest File 3. This same person (Peter) was also named in the Senate estimates on 24 June 1997, by a Telstra whistleblower, as advising him that the first five COT cases (naming Graham as one of the five) had to be stopped at all cost from proving their claims see Senate – Parliament of Australia.
This same person (Peter), therefore knew full well that Graham’s arbitration claim had already been proved to be valid by none other than the Australian Government Solicitor but still Graham’s arbitration went ahead, as soon as he had formally signed for the Fast Track Settlement Process on the 23 November 1993. Then, because no-one told Graham at the time that his claims were actually accepted as valid, the tormenting, legalistic process continued, without respite, until April 1999. It is impossible to even begin to calculate the damage this caused to Graham’s life, both for his business life and for his private life, mentally and physically, as he was forced to live through so many years with this stress constantly mounting. Those within the Telstra Corporation, and within the Government communications regulatory department, who stood by and allowed this stressful process to drag on for more than five long years, while they all knew that Graham was right and Telstra was wrong, should be charged for Crimes against humanity, which is defined as ‘certain acts that are deliberately committed as part of a widespread or systematic attack or individual attack directed against any civilian or an identifiable part of a civilian population.’ (See > Crimes against humanity – Wikipedia).
Australian Federal Police
It is important to digress briefly here, and revisit Absentjustice/Brief Summary Part 1, which discusses the intervention of the Australian Federal Police into our matters, particularly in February 1994, and the information they uncovered in relation to Telstra’s unauthorised interception of the COT cases’ telephone conversations and in-confidence faxes (both to and from our legal advisors).
The following Scandrett & Associates Pty Ltd report (see Open Letter File No/12, and File No/13) discusses COT cases’ arbitration related faxes were intercepted during their arbitrations by a secondary fax machine, installed in Telstra’s network. Intercepting arbitration-related claim document during arbitration processes by the defendants to the arbitration is highly illegal. One of the two technical consultants attesting to the validity of the Scandrett & Associates Pty Ltd report, emailed me on 7 December 2014, stating:
“I still stand by my statutory declaration that I was able to identify that the incoming faxes provided to me for review had at some stage been received by a secondary fax machine and then retransmitted, this was done by identifying the dual time stamps on the faxes provided.” (see Front Page Part One File No/14)
It is clear from Front Page Part One File No/1, File No/2-A to 2-E, File No/3, File No/4 and Front Page Part One File No/5, that numerous documents faxed from my office to the arbitrators office did not reach their intended destination.
Why didn’t Warwick Smith (TIO) and Dr Hughes (arbitrator) allow me to resubmit the documents I could show did not reach the arbitrators office?
During the first COT four settlement/arbitration processes, AUSTEL, the then government communications regulator, wrote to Telstra on 10 February 1994 stating:
“Yesterday we were called upon by officers of the Australian Federal Police in relation to the taping of the telephone services of COT Cases.
“Given the investigation now being conducted by that agency and the responsibilities imposed on AUSTEL by section 47 of the Telecommunications Act 1991, the nine tapes previously supplied by Telecom to AUSTEL were made available for the attention of the Commissioner of Police.” (See Illegal Interception File No/3)
If AUSTEL was truly impartial, as a government communications regulatory should be, then it would have ensured the transcriptions of these unauthorised intercepted telephone conversations were provided to the victims – the COT cases. These “nine tapes previously supplied by Telecom to AUSTEL”, should have been supplied to the four COT cases so we could use these tapes as evidence to support that part of our arbitration claims. These tapes were concealed from the COT cases, just as AUSTEL’s Adverse Findings were also concealed from the COT Cases, during their arbitrations
Our phone and fax interception issues were now headline news over many months, not only in our local newspapers but in ALL the major national newspapers. Members of my singles club (which I started in order to expand my business) were now concerned that their private information given to me in confidence was no longer private. To add to this exposure, on 15 April 1994, ex-prime minister of Australia Malcolm Fraser discussed my phone interception issues in the Sun Herald newspaper and how FOI documents I received under FOI discuss his and my telephone conversations being transcribed in Telstra file notes. The Herald Sun newspaper reported:
“FORMER prime minister Malcolm Fraser yesterday demanded Telecom explain why his name appears in a restricted internal memo.
“Mr Fraser’s request follows the release of a damning government report this week which criticised Telecom for recording conversations without customer permission.
“Mr Fraser said Mr Alan Smith, of the Cape Bridgewater Holiday Camp near Portland, phoned him early last year seeking advice on a long-running dispute with Telecom which Mr Fraser could not help.” (See Australian Federal Police Investigations)
Who within the Telstra Corporation thought it was important to note that I telephoned Malcolm Fraser?
The arbitration process should have been put on hold until after the AFP concluded their findings as to why Telstra was monitoring the COT Cases business affairs. These intercepted claim documents were important to our claims and should have been released to us during our arbitration process, once the AFP had located those documents. How could the arbitrator request this interception evidence from the AFP while the AFP was investigating how Telstra obtained this information concerning our business affairs? It is now obvious that once we agreed to sign our settlement/arbitration agreements, while the AFP was still investigating that part of our claim, our basic rights, as Australian citizens, were lost. The arbitrator could hardly make a finding against Telstra on these interception issues (see Senate Hansard Evidence File No-1) when, despite the Federal police finding there was a prima facie case to institute proceedings against Telstra, the Director of Public Prosecutions, in terse advice, recommended against this. How can the Director of Public Prosecutions make a finding on behalf of the Federal government before the arbitrator has made his finding in a civil arbitration process on the same subject? This is why the COT four arbitrations was an unworkable process.
The COT cases reluctantly accepted their arbitrations would be conducted while the AFP was also investigating the same issues as the arbitrator. However, the proviso was that if the arbitrator found Telstra had used its position of power to intercept arbitration faxes or telephone conversations during the arbitrations or practised this unlawful conduct before the arbitrations and the claimant could prove either, then compensation would be awarded to the claimants. Despite the Director of Public Prosecutions’ terse recommendations against proceedings against Telstra, this should not have stopped the arbitrator from awarding damages to the claimants, because, after all, the Australian Federal Police had found there was a prima facie case against Telstra. So how could Telstra have argued with the arbitrator awarding damages?
Many within the Establishment said that it was actually unconstitutional to force the COT cases into an arbitration process with Telstra while the Australian Federal Police (AFP) were still investigating Telstra for alleged phone and fax hacking of the COT cases’ businesses and, furthermore, it was acknowledged that it was clearly an unworkable process. The COT Cases all at different times leading up to and during their arbitrations raised the AFP issues with Frank Blount, Telstra’s CEO.
On 3 March 1994, (before I went into arbitration) I received a telephone call from Telstra’s CEO Frank Blount in response to my previous phone call to him the day before concerning my ongoing telephone problems. Telstra internal email (see AXE Faulty Equipment 4-A), headed Subject: RE: COT Cases – call from Alan Smith dated 2 and 3 March 1994, between Mr Blount and Telstra’s Steve Black, show Mr Blount as stating:
“I also am not certain from my discussion to Alan that he expects anything else at this point. He simply states that he is still having major problems as late as the day he placed the call to me”.
“It may be time to have an auditor reporting to me review the Portland trouble procedures and data in and around Portland.”
What Frank Blount does not say is that on 25 February 1994 the then Shadow Minister of Communications Senator Richard Alston displayed his concerns in the Senate estimate committee hearing regarding the Portland AXE exchange and a document acknowledging I was right to raise my concerns two years previously concerning the lock-up problems with the Ericsson AXE exchange. (See AXE Faulty Equipment 4-B)
True to Mr Blount’s word, an audit review was commissioned and found congestion into Portland was appalling and the number of lines needed to be upgraded immediately. And it was, as Telstra’s internal email, also dated 3 March 1994, shows:
“Could you please arrange for the Z route between Warrnambool Node & Portland AXE-R to be incremented from 30 to 60 ccts [circuits]. … Could you please fast track this project due to the sensitivity of the current COT case at Cape Bridgewater (off PORX).” (See AXE Faulty Equipment 4-C to 4-K)
The advice the COT Cases were receiving in 1992 to 1994, was that congestion could be a major problem affecting their services, as Australia was installing or had installed ERICSSON AXE equipment (Portland was an Ericsson AXE), my lockup problems could be associated with the known ERICSSON AXE’s faults that cause lock-up problems.
And, indeed this was the case. AXE Faulty Equipment 4-D, dated 24 February 1994, is a Telstra internal email Folio A13980 that notes:
“You are quite correct in your thought that the anecdotal reference applies more to AXE than ARE-11 ‘Lockups’ are generally well-known as a problem in AXE exchanges, not only in Australia but in overseas countries as well.”
A further Telstra internal email, dated 22 June 1994, states:
“May 1993 – Rob Brooker of ericsson [sic] Australia advised that Telecom had a problem for a long time with an incapability problem with computer software in their exchanges and telephone equipment. The call loss resulted in a 50% loss.” (See AXE Faulty Equipment 4-E)
The documents at AXE Faulty Equipment 4-F to 4-J, and the advice I received from the UK was the same: that both Telstra technicians and Telstra executives would had to have known about the AXE exchanges problems when they allowed Telstra technicians to sign their false witness statements.
It is most important to link the Joker Two AXE Portland false-witness statement issue, discussed in Absentjustice – Brief Summary Part 1 page, with the introduction in Absentjustice – Brief Summary Part 2 because, when I raised the AXE Portland document that notes, “…it is a problem that is occurring in increasing numbers as more and more customers are connected to AXE” with Senator Richard Alston, early in January 1994, he was so concerned about this wording that he raised this document with the chair of AUSTEL Robin Davey in the Senate Estimates, on 25 February 1994, and demanded answers (see AXE Faulty Equipment 4-B)
I attended Senator Alston’s Canberra Parliament House office in the company of The Hon David Hawker MP and four other witnesses in September 1995. After I told the senator that the arbitrator Dr Hughes and his technical units had, for reasons unknown, not investigated this serious ongoing lockup AXE fault, which was still affecting my business, the senator asked me to keep his office informed of any other issues the arbitrator would not investigate and to supply his office with that evidence. In March 1996, the John Howard government won office and Senator Alston became the new minister for communications. Paul Fletcher, assisting Senator Alston, asked me to continue helping the senator with these telecommunication issues from April to June 1996.
It will be apparent from the following information (see Open Letter File No/41/Part-One and File No/41 Part-Two), that the wind changed and my valid claims were suppressed – and are still being suppressed, 22 years later.
In a letter I received from Mr. Paul Fletcher dated 4 September 1996 notes:
“In addition, I have examined the material you sent me. On the basis of the information I have received, I do not believe that there is any action in relation to your case that would be appropriate for the Minister to take at this time. The Minister has no power to intervene in the conduct of the COT arbitrations. which are being administered by the Telecommunications Industry Ombudsman.”
During this September 1995, meeting in Senator Richard Alston’s Canberra office, together with the Hon David Hawker MP and four other members of the COT group, I also explained that I could show that Telstra had knowingly perverted the course of justice by deliberately tampering with evidence during my arbitration (see Chapter One to Three in our Tampering With Evidence) page. Perhaps it should be noted here that Senator Alston had been a Barrister at the Victorian bar before becoming a Government Minister and so he then assured me that, since I had now officially provided him with information regarding how senior Telstra staff had condoned this unlawful behaviour; and since Telstra had carried out this unlawful behaviour against an Australian citizen while that citizen was involved in a Government-facilitated process with Telstra; and since this unlawful behaviour had occurred while Telstra was still entirely owned by the Government, then the Telecommunications Act and the Trade Practices Act would provide the Senator with the opportunity to officially question Telstra about the validity of my claims, on notice, through the Senate. The Senator also noted that the Government could additionally direct AUSTEL to investigate my claims, according to the Telecommunications Act of 1991, I assuming the Senator was referring to Nos 98 -1991, Sections 333 to 338.
As a result of this discussion with Senator Alston I then sent his office a copy of an eighty-eight-page report, I had compiled, together with various supporting Exhibit documents. This report detailed the way Telstra had broken the law by tampering with Government-owned equipment during my legal arbitration process, which was being conducted under the auspices of the Supreme Court of Victoria. This was the report that Paul Fletcher eventually returned to me (see following link > Open Letter File No/41/Part-One and File No/41 Part-Two).
I also have conclusive evidence of how, years after Mr Fletcher had returned my June 1996 report, other bureaucrats in the Department of Communications Information Technology and the Arts (DCITA) began investigations into other areas of my claims and instead of the department investigating my claims they sent this material straight to Telstra to ask if my claims were valid, which is a bit like a police officer asking a thief caught stealing a car if he should be charged for that theft! Interestingly, Paul Fletcher had previously worked at that DCITA too.
I have raised these DCITA decisions (to go straight to Telstra instead of properly and transparently investigating my claims) because, since Senator Alston requested my report in the presence of David Hawker, surely they would then both be informed of the outcome of Paul Fletcher’s investigations into that report. I know for a fact that Mr Hawker did not receive any information about my report because he told me, on two separate occasions, that he had not received any follow-up information at all, which further indicates that Senator Alston was never advised of the significance of that report either.
If the current Member for Bradfield (New South Wales), The Hon Paul Fletcher, (see opposite) had properly ensured that my evidence was correctly investigated in 1996, and the Liberal National Government had then immediately investigated Telstra in relation to why they did not honour the original deal they made with AUSTEL, which would have meant that they would have tested all of the COT Cases’ Customer Access Network connections properly, at the time, as part of the Government-endorsed arbitration process, then my arbitration claims would have been exposed in 1996, and I could have lived a better life than what the current Coalition Government has afforded me.
Perhaps the real reason for my claims never being assessed on merit was because, in March 1996 the TIO, Warwick Smith, became a Front Bench Minister in the John Howard Government. In simple terms, it became clear that no matter what proof I provided to Paul Fletcher while he was assisting Senator Richard Alston, during the same Howard Government (including the evidence contained in Open Letter File No/41/Part-One and File No/41/Part-Two) the COT Cases had to be stopped at all cost, from exposing how unethical their arbitrations had been conducted, regardless of the damage this cover-up caused to the claimants and their immediate family.
Stop the COT Cases at all cost
On 24 June 1997, two years after most of the COT arbitrations had been concluded see:- pages 36 and 38 Senate – Parliament of Australia an ex-Telstra employee turned-Whistle-blower, Lindsay White, stated that, while he was assessing the relevance of the technical information which had been requested by the COT claimants, he advised the Senate Committee that:
“In the first induction – and I was one of the early ones, and probably the earliest in the Freehill’s (Telstra’s Lawyers) area – there were five complaints. They were Garms, Gill and Smith [me], and Dawson and Schorer. My induction briefing was that we – we being Telecom – had to stop these people to stop the floodgates being opened.”
Senator O’Chee – “What, stop them reasonably or stop them at all costs – or what?”
Mr White – “The words used to me in the early days were we had to stop these people at all costs”.
Senator Schacht – “Can you tell me who, at the induction briefing, said ‘stopped at all costs”. (See Front Page Part One File No/6)
It is clear from Mr White’s statement he identified me and COT Case spokesperson (see STOP PRESS below) as two of the five COT claimants that Telstra had singled out to be ‘stopped at all costs’ from proving their claim against Telstra’.
On 25 June 1997, the day after the Senate committee were told we five COT cases had to be stopped at all cost from proving our claims, a number of senators discussed Telstra’s legal firm and its COT strategy, dated 20 September 1993. This strategy advises how Telstra can conceal technical information from the four COTs under Legal Professional Privilege, even though the documents were not privileged (see SENATE Hansard, page 5163). The COT strategy is available at Prologue Evidence File 1-A to 1-C
The author of this COT strategy is the same lawyer with whom I was forced to register each of my phone complaints, in writing, before Telstra would address these problems. NONE of the fault information I provided to this lawyer prior to or during my FTSP arbitration process, concerning ongoing telephone problems and Telstra’s response to those problems, were ever released to me during my arbitration.
To add further insult to these injustices, on 12 September 1994, as part of the arbitration process, I was obliged to meet with Telstra’s consulting forensic psychologist in Portland’s Richmond Hotel so he could analyse my mental health as part of Telstra’s defence of the arbitration process. One of the most important issues I raised with him was the trauma I suffered at the hands of the legal firm that hired him. He appeared to listen carefully to what I described and he said being directed to register phone complaints, in writing, with Telstra’s lawyer, before they would be investigated, was most disturbing. I provided confirmation that losing six incoming calls in a single day was common. Writing to a lawyer, explaining lost calls, was more than just soul destroying, it just about broke my will power to carry on. He said he was shocked Telstra and its legal firm forced this on me and agreed this would certainly affect my mental state in trying to cope with these ongoing problems.
However, when Telstra’s lawyers, which the government assured us would not be used in our arbitrations (see Prologue Evidence File No/2), provided this clinical psychologist’s witness statement to the arbitrator, it was only signed by a lawyer from this legal firm. It bore no signature of the psychologist and didn’t contain his concerns regarding me having to first contact this legal firm, in writing, before Telstra would address my telephone problems.
Is this unsigned clinical psychologist’s witness statement linked to the falsehoods contained in the witness statements of Joker Two, Joker Three and Joker Seven discussed in Absentjustice Brief Summary Part 1?
The Australian government, including the communications regulator AUSTEL, and the COT cases themselves were all assured the arbitration process would be conducted under the ambit of the Arbitration Act 1984. They were also assured the arbitration rules would be drafted totally independently of Telstra, in the same fashion as in the UK when British Telecom agreed to arbitration. In that case, the Chartered Institute of Arbitrators UK drafted the arbitration agreement. The evidence we supply on absentjustice.com shows Telstra’s lawyers covertly drafted the arbitration agreement and, even though Dr Gordon Hughes condemned that agreement as not credible (see Open Letter File No/50-A), he still used it to the detriment of the claimant.
The first Peter on page 39 in the Senate Hansard – Parliament of Australia is the Joker I have named Joker Five, who lied under oath in his witness statement provided to the arbitrator hearing my case (see Telstra Falsified SVT Report). Amazingly, the Telstra executive Ted Benjamin names on page 39 of this report was also a TIO council member, who admitted to the following Senate Estimates hearing on 26 September 1997 (see page 109 > COMMONWEALTH OF AUSTRALIA – Parliament of Australia) as not disclosing his conflict of interest when attending TIO council meetings where COT case issues were discussed, fed privileged TIO council-discussed material to fellow Telstra executives as the following exhibit > TIO Council Conflict of Interest 30 Nov 1993 shows. A detailed explanation of this damning exhibit can be read by clicking onto > Chapter One Telecommunication Industry Ombudsman).
As far as the COT cases receiving their basic legal rights as claimants during their TIO-administered arbitrations, that right was NEVER afforded them see page 99 COMMONWEALTH OF AUSTRALIA – Parliament of Australia by the Commonwealth who originally endorsed our arbitrations.
Chapter Three of our Telecommunication Industry Ombudsman page shows a seconded Telstra employee, Grant Campbell, signed off known-false information he had conjured in his letter to Telstra concerning my ongoing faxing problems.
The fact that Warwick Smith allowed Grant Campbell, a seconded Telstra employee, to sign off letters on his behalf and, in doing so, minimise Telstra’s liability in my arbitration, is beyond contempt when you consider Telstra was the defendant in that arbitration. If on the other hand, Warwick Smith didn’t give Mr Campbell the authority to sign off FTSP arbitration fault related correspondence, then who gave that authority?
To have allowed the defendant access to the opposing side’s claim material, before the claimant decided which information to submit to the assessor or arbitrator and which to keep back in order to answer the defendant’s defence, was highly undemocratic: how can a Western democracy allow this to happen? Did The Establishment consider this – and that Dr Hughes wrote to Warwick Smith, on 12 May 1995, to advise the arbitration agreement used on my arbitration the day before (see Open Letter File No 55-A) was grossly deficient and needed to be revised, but used it anyway and concealed this letter from me during my appeal period – when awarding both Warwick Smith and Dr Hughes The Order of Australia?
A Secret Deal
Steve Black (Telstra’s Arbitration Liaison Officer) wrote to Warwick Smith on 11 July 1994 stating:
“Telecom will also make available to the arbitrator a summarised list of information which is available, some of which may be relevant to the arbitration. This information will be available for the resource unit to peruse. If the resource unit forms the view that this information should be provided to the arbitrator, then Telecom would accede to this request”.
The statement in Telstra’s letter “if the resource unit forms the view that this information should be provided to the arbitrator” confirms that both the TIO and Telstra were aware that the TIO-appointed resource unit had been assigned to vet most, if not all, the arbitration procedural documents en route to the arbitrator.
Warwick Smith did NOT have the authority to introduce a separate deal into a process being conducted according to a written legal agreement. On page 5 of the Commercial Arbitration Act 1984, under Part II – Appointment of Arbitrators and Umpires, (see Open Letter File No/21
6. An arbitration agreement shall be taken to provide for the appointment of a single arbitrator unless –
(a) the agreement otherwise provides; or
(b) the parties otherwise agree in writing.
The fast-track arbitration procedure agreement the four COT Cases signed, mentions only one arbitrator. There is no written agreement in existence, seen by me or the other three claimants Ann Garms, Maureen Gillan, Graham Schorer that allows a second arbitrator to determine what information the first arbitrator will see. It is interesting to collate a number of covert situations set up by key players in the COT arbitrations and mischievously concealed under the arbitration agreement confidentiality clauses, even though those events took place before the confidentiality agreement was signed. In their 2 August 1996 communication to the arbitrator (copied to the TIO), the resource unit admitted to concealing relevant documents pertaining to my billing issues from the arbitrator during the course of my arbitration. This serious matter has never been addressed by the TIO or arbitrator.
It will be blatantly obvious to the reader after reading Arbitrator / Part Two and Chapters One to Four in our Prologue page that the arbitrator lost control over the process once this secret deal had been entered into by the TIO office and Telstra.
No control over the process
On 26 September 1997, three months after the Senate exposed the COT strategy the Telecommunications Industry Ombudsman John Pinnock formally addressed a Senate estimates committee (see page 99 > COMMONWEALTH OF AUSTRALIA – Parliament of Australia): noting:
“Firstly, and perhaps most significantly, the arbitrator had no control over that process, because it was a process conducted entirely outside the ambit of the arbitration procedures.”
Why weren’t the arbitrations put on hold until the claimants received their promised documents? Why were the arbitrations not conducted under the agreed ambit of the arbitration procedures? How can arbitration be a just process when the arbitrator has no control over how it is conducted? When did Dr. Hughes lose control over the arbitrations? Was it the first week, or two months or even nine months into the process? And, just as importantly, who authorised him to conduct the process entirely outside of the ambit of the arbitration procedures?
There is no amendment, attached to the arbitration agreement signed by the COT members, allowing the arbitrator to conduct those particular arbitrations entirely outside the ambit of the arbitration procedure – and neither was it stated that the arbitrator would have no control over the process once we signed those individual agreements. How can the arbitrator and TIO continue to hide under the confidentiality clause contained in our arbitration agreement, when that agreement did not mention the arbitrator would have no control because the arbitration would be conducted entirely outside of the agreed ambit of the procedures?
The government has advised all interested parties that the COT issues cannot be investigated because of the confidentiality clause we signed in our individual arbitration agreements, this advice by the government is misleading and deceptive. Firstly the fact Senate Hansard Senate – Parliament of Australia shows the government is aware we COT Cases were targeted by Telstra’s lawyers before the arbitrations commenced is one issue that the gag clauses should not be used to stop an investigation into our claims, and secondly both the government and claimants were advised the arbitration agreement to be used in the first four arbitration had been totally drafted by the Telecommunications Industry Ombudsman lawyers when this is not true. It was drafted by the same Telstra lawyers who concocted the COT strategy. How can you conceal this type of conduct which went inter operation before the COT arbitration confidentiality agreements were signed?
It is clear that the Australian Establishment saw AUSTEL and Dr Hughes as a saviour because they were protecting the assets of the then-Government-owned telecommunications carrier by not including, in their true findings, the faults that were clearly still crippling our businesses, even as our arbitrations progressed. The Government has however refused to acknowledge that, when Dr Hughes and AUSTEL deliberately set about minimizing Telstra’s liability, they also actually breached the rule of law, to the detriment of the COT claimants.
It was the interception of our arbitration-related faxes, together with the way that the most relevant discovery documents, particularly the telephone exchange logbooks, were deliberately withheld from the COT cases, that angered many Australian politicians. That anger however only translated into a few letters from some Senators without any commitment to helping any of us to rectify these injustices. In one of those letters, dated 27 January 1999 (more than four years after Telstra failed to produce the Portland/Cape Bridgewater telephone exchange logbook, either under my FOI requests or the discovery process), Senator Kim Carr advised:
“I continue to maintain a strong interest in your case along with those of your fellow ‘Casualties of Telstra’. The appalling manner in which you have been treated by Telstra is in itself reason to pursue the issues, but also confirms my strongly held belief in the need for Telstra to remain firmly in public ownership and subject to public and parliamentary scrutiny and accountability”.
“Your manuscript demonstrates quite clearly how Telstra has been prepared to infringe upon the civil liberties of Australian the citizens in a manner that is most disturbing and unacceptable.” (See Arbitrator Evidence File No 66).
This Senate Hansard link > parlinfo.aph.gov.au/parlInfo/search/displaychamberhansards1999-03-11 shows quite clearly the government’s lack of power over the Telstra Corporation whilst they were in arbitration with the COT Cases (fellow Australian citizens). Senator Kim Carr, tells it the way it really was for the COT Cases with this statement:
“What I do make a comment on is the question of civil liberties and the rights of citizens to approach this parliament and seek redress for their grievances when corporate power, particularly in a publicly owned corporation, has been abused. And there can be no question that that is what is at the heart of this issue.”
And addressing Telstra’s conduct, by saying:
“But we also know, in the way in which telephone lines were tapped, in the way in which there have been various abuses of this parliament by Telstra—and misleading and deceptive conduct to this parliament itself, similar to the way they have treated citizens—that there has of course been quite a deliberate campaign within Telstra management to undermine attempts to resolve this question in a reasonable way. We have now seen $24 million of moneys being used to crush these people. It has gone on long enough, and simply we cannot allow it to continue. The attempt made last year, in terms of the annual report, when Telstra erroneously suggested that these matters—the CoT cases—had been settled demonstrates that this process of deceptive conduct has continued for far too long”.
What appeared to have shocked Senator Kim Carr into making those statements is the information I provided to him that confirmed how, after my telephone had been taken away by Telstra for testing, Telstra people had tampered with it in some way (see Tampering With Evidence), and had changed the records related to that evidence into a totally different format. Altering evidence en-route to an official, Government-appointed arbitrator must really be one of the worst crimes a defendant (in this case, the Telstra Corporation) could have committed against an Australian citizen. So, when evidence of this tampering was provided to the Telecommunications Industry Ombudsman (John Pinnock), the Chair of the TIO’s Counsel (The Hon Tony Staley), the Chair of the Telstra Board (David Hoare), and Telstra’s then-CEO (Ziggy Switkowski AO) nineteen years ago, why was that evidence not investigated immediately and why has it still never been investigated (see Open Letter File Nos/36, 37 and File No/38)?
Senator Schacht was possibly more vocal:
“I rise to speak to this statement tabled today from the working party of the Senate Environment Communications, Information Technology and the Arts Legislation Committee—a committee I served on in the last parliament—that dealt with the bulk of this issue of the CoT cases. In my time in this parliament, I have never seen a more sorry episode involving a public instrumentality and the way it treated citizens in Australia. I agree with all the strong points made by my colleagues
on both sides who have spoken before me on this debate. What was interesting about the Senate committee investigating this matter over the last couple of years was that it was absolutely tripartisan—whether you were Labor, Liberal or National Party, we all agreed that something was rotten inside Telstra in the way it handled the so-called CoT cases for so long.
The outcome here today is sad. There is no victory for citizens who have been harshly dealt with by Telstra.”
On 23 March 1999, the Australian Financial Review (An Australian daily newspaper) reported on the conclusion of the Senate estimates committee hearing into why Telstra concealed so many arbitration documents from the COT cases:
“A Senate working party delivered a damning report into the COT dispute. The report focussed on the difficulties encountered by COT members as they sought to obtain documents from Telstra. The report found Telstra had deliberately withheld important network documents and/or provided them too late and forced members to proceed with arbitration without the necessary information,” Senator Eggleston said. “They [Telstra] have defied the Senate working party. Their conduct is to act as a law unto themselves.”
aph.gov.au/parlInfo/search/displaychamberhansards1999-03-11 Senator Bishop notes:
Significant issues do arise. I think it is appropriate to refer to the final paragraphs of the committee report. In the second to last paragraph, the report of the committee tabled by Senator Eggleston says:
Estimates of Telstra’s costs in relation to the CoTs issue since the claims were made exceed $20 million ($14.285 million to 1997 and rising). Most of the expenditure has been spent, not on settlement but on administrative and legal costs. It became quite clear early in the process that the claimants had in fact been disadvantaged by malfunctions in their telephone system. It is difficult to understand why Telstra appeared to prefer to deny that there was a problem and then prolonged the difficulties in establishing the extent of that problem.
The final sentence reads:
In the Committee’s view Telstra should now seek to reach a negotiated agreement with the interested parties.
If fault is to be allocated at this very early stage of the final lap, that fault lies at the door of Telstra. It really is appropriate for Telstra, a $100 billion corporation, to stop using its monopoly power, to stop retaining the services of dozens of highly paid solicitors and to come to the table and to seek to reach a negotiated agreement with these four or five persons. It is simply outrageous that Telstra, which is still a public corporation, can spend something in the order of $20 million
Only five of the twenty-one COT Cases had their arbitration FOI/discovery document issues assessed by the Senate Working party. To fully understand how this discrimination against sixteen fellow Australian citizens the reader needs to visit An injustice to the remaining 16 Australian citizens. As we have shown directly below, Senator Len Harris was shocked that this discrimination took place during a government investigation.
On 25 July 2002, Senator Len Harris travelled from Cairns in Queensland (a trip that took more than seven hours) to meet four other COTs and me, in Melbourne, in an attempt to ensure our claims of discrimination against the Commonwealth were fully investigated. He was appalled that 16 Australian citizens were so badly discriminated against in such a deplorable fashion by the then-Coalition government, despite a Senate estimates committee working party being established to investigate all 21 COT-type claims against Telstra.
He was stunned at how I had collated this evidence into a bound submission. When Senator Harris read the 9 August 2001 letter from Senator Alan Eggleston Liberal Party warning me that if I disclosed the in-camera Hansard records (which supported my claims that sixteen Australian citizens had been discriminated against in the most deplorable manner) I would be held in contempt of the Senate and risk jail, he Senator Harris, was very upset to say the least.
At a press conference the next day, Senator Harris aimed questions at the chief of staff to the Hon Senator Richard Alston, Minister for Communications see Senate Evidence File No 56 he asked:
“Through the following questions, the media event will address serious issues related to Telstra’s unlawful withholding of documents from claimants, during litigation.
- Why didn’t the present government correctly address Telstra’s serious and unlawful conduct of withholding discovery and/or Freedom of Information (FOI) documents before the T2 float?
- Why has the Federal government allowed five Australians (from a list of twenty-one) to be granted access to some of the Telstra discovery documents they needed to support their claims against Telstra, but denied the same rights to the other sixteen?
- Why has the Federal Government ignored clear evidence that Telstra withheld many documents from a claimant during litigation?
- Why has the Federal Government ignored evidence that, among those documents Telstra didsupply, many were altered or delivered with sections illegally blanked out? (See An injustice to the remaining 16 Australian citizens)
In order to convince myself and other members of the COT group that we do have a story to tell I decided to forward extracts from my forthcoming manuscript (not yet named) to a number of international lawyers and received the following comments:
Advocate/International Arbitrator/Due Diligence Expert/Stock Exchange & Capital Market Arbitration Expert wrote:
“I am really shocked to learn the contents of your research. It is true, which I do not doubt, then, it can lead to havoc in international arbitration, especially in Australia. It will irreparably destroy the basic fundamental principle of confidentiality of an Arbitration process and can have serious adverse repercussions for Australia as a Seat of Arbitration. I would certainly suggest you to [sic] continue with your very important research and if possible do send me the updates”.
International Law Judge, Professor of Law
“I truly emphasis with your plight! We live in an unjust world, where Man to Man is so unjust! We all have a choice whether to accept it or resist it. Those who have the courage and determination spirit are equipped to make changes for good and for the betterment of humanity. Ergo, keep fighting for justice and one day you will succeed, the scales must be balanced!
Administrative Appeals Tribunal
Transcripts from my two Administrative Appeal Tribunal (AAT) hearings (respondents) the Australia Communications Media Authority – 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. 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”.
For more information regarding the unaddressed ongoing telephone problems raised during my AAT hearings No V2008/1836 and No 2010/4634 can be viewed by clicking onto Bad Bureaucrats.
In 2018, the United Kingdom Government appears to have reached the only real option left open to them concerning their old corroded ailing copper-wire network in order to improve rural broadband speeds (see https://www.telegraph.co.uk/news/2018/07/17/copper-internet-cables-will-switched-improve-broadband)
Before reading Condensed version of my story, which is approximately 41,000 words long. It would be particularly helpful to first click onto the following Prologue Chapter One to Chapter Four and see how the President of the Institute of Arbitrators Australia was mislead and deceived concerning the truth surrounding my arbitration claims.