This is a work in progress last edited December 2019
It is important to remind the reader as we have on our Absent Justice brief summary page that various exhibits supporting our story are linked in the text: for example, FrontPage Part One File No/1, Main Evidence File No/3 or Prologue Evidence File 1-A to 1-C. Clicking on these links with your cursor will automatically open a PDF of the exhibit.
Karina Barrymore, the journalist at the Melbourne Herald Sun Newspaper, wrote on 3 August 2016
“Dobber, Snitch, Rat, Squealer. It’s insightful how the words used to describe a whistleblower are so negative.
“Yet being honest and speaking the truth is supposed to be the cornerstone of our society. A cornerstone of our families, communities, corporate world and government.”
“So why aren’t we applauding and raising up these people, instead of shutting them down and ruining their lives.”
“Apparently we only demand truth and honesty from our youngest children – a fairytale told to toddlers in a short term attempt to let them believe it’s normal to be honest and ethical. Despite dutifully telling our children not to lie, Australia’s society quickly shows them otherwise.”
“In the real world, people are allowed to do what they like, be as dishonest as they like, steal, rip off and lie as often as they like, especially our corporate leaders and politicians. And the higher up the totem pole these liars and cheats climb the more willing we are to brush off their wrong-doing.”
“And it never fails to shock me just how far the liars and wrong doers are prepared to go to keep their dishonesty hidden and keep their own reputations unsullied. Their first and most lethal weapon of choice is attacking the messenger. Never is this modusoperandi more obvious than in the investment and finance worlds. Big money often means big bad behaviour.”
We only have to see how little has been done about the financial advice scams, insurance rip-offs, lending shonks and investment rorts involving our biggest and supposedly best banks and financial institutions, to know that if you’re a big enough bad guy you’ll get away with it.”
“But why, as a country, do we allow this?”
“Why are we so beaten down that can’t insist this corporate and political culture is changed. The whistleblowers have done their job, spoken the truth, suffered the consequences, lived the hardship and financial burden. But our corporate leaders, our regulators, our governments have not done their job either.”
Karina Barrymore’s statement is right on target because the Australian Establishment, which includes ex-government ministers as well ex-senior members of two government regulators, are aware Dr Gordon Hughes, arbitrator to my arbitration, and Warwick Smith, administrator to the same process acted in concert with the defendants and used their drafted arbitration agreement instead of the agreed totally independently drafted arbitration agreement. NONE of the corporate leaders, neither our regulators nor our government ministers have had the courage to investigate this matter. Set out below is only one of many examples where the arbitration process should not have commenced until after the Australian Federal Police (AFP) had finished their investigations.
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 on page 7 of this transcript, that Telstra received a copy of AUSTEL’s Adverse 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 during prior or during my arbitration. This situation also applied to a number of other COT Cases who like me was denied the truth of what the government had found.
It became obvious many problems experienced by the COT cases originated from negligence on the part of a number of government agencies. Therefore, we have used page 3 of the Australian Herald Sun newspaper dated 22 December 2008, written under the heading Bad bureaucrats as proof that government public servants need to be held accountable for their wrongdoings.
“Hundreds of federal public servants were sacked, demoted or fined in the past year for serious misconduct. Investigations into more than 1000 bureaucrats uncovered bad behaviour such as theft, identity fraud, prying into file, leaking secrets. About 50 were found to have made improper use of inside information or their power and authority for the benefit of themselves, family and friends“
It is also most important to link how, on 2 February 1995, AUSTEL (the Government Communications Regulator) public servants decided to withhold their true findings from the then-Minister for Communications, Michael Lee MP, regarding the deficient arbitration Service Verification Tests (SVT) conducted at my Cape Bridgewater business on 29 September 1994. My own story on the website absentjustice.com includes examples of the way some bad bureaucrats clearly favoured Telstra during the COT arbitrations, to the detriment of the claimants. Altering the facts of their findings is appalling enough but, according to the Telecommunications Act 1991, AUSTEL was duty-bound, under Section 342 of the Act, to provide the Communications Minister (the Hon Michael Lee MP) with all of their findings regarding the deficiencies in their Cape Bridgewater Holiday Camp SVT process.
We will never know what action the Hon Michael Lee MP might have taken in 1994, had the government bureaucrats advised the Minister that the SVT testing at my Cape Bridgewater business had not occurred according to mandatory government communications regulatory specifications. On 12 December 1994, as part of Telstra’s arbitration defence, it was stated under oath to the arbitrator in my case, that all three of the service lines tested at my holiday camp on 29 September 1994, had exceeded all of AUSTEL’s specifications. However, the person who made this statement could not get the SVT monitoring device to work in conjunction with its sister device installed at the Cape Bridgewater unmanned road-side exchange.
The Service Verification Tests link along with our Bad Bureaucrats page highlights in conjunction with the Herald Sun newspaper article dated 22 December 2008 (see above) how corrupted some of Australia’s public service is. I am raising this bad bureaucrat issue for good reason because had the Department of Communications Information Technology and the Arts (DCITA) bureaucrats correctly informed their then Chief of Staff Paul Fletcher (the now current Minister of Communications as of June 2019)
The following statement which we have also documented on our Front Page confirms two months before the arbitration agreements were signed AUSTEL 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)
When we four COT Cases demanded a copy of these NINE audio tapes, so we could more fully support phone hacking as part of our arbitration claims, the Government Communications Regulator actually refused to give us access to those NINE tapes, even though they had already supplied them to the AFP. In simple terms, we were being forced into arbitration with the then-Government-owned telecommunications carrier (Telstra) and it was the Government itself that was refusing to supply us, the legitimate claimants, with any of these very relevant audio tapes that, we now know, would have proved that our telephone conversations had been illegally recorded, regardless of which service lines this tape recording equipment had been attached to.
This becomes even more alarming when we take into account how, when the COT arbitrations were allowed to begin, some of the evidence that the COTs would be using to support their cases had already been seconded by the AFP and, in some cases, the official Government Communications Regulator had also collected that same evidence from Telstra’s own archives and records, and yet still some Telstra executives were prepared to later sign Statutory Declarations directly related to information that they knew the regulator, AUSTEL (now ACMA), had already proved to be false. In other words, it is clear that those Telstra executives knew that, no matter what they did, they would be protected by the Government Communications Regulator, regardless of the cost to the legitimate claimants.
By allowing these arbitrations to have commenced are even more alarming when you realise that the evidence some of the COT Cases would be used to support their case had already been disgusted between the AFP and the defendants (Telstra) without the claimants (the COT Cases) being aware what had been discussed. In simple terms, we COT Cases were shooting blind at a moving target right through our arbitrations. In some case, some of THIS interception evidence (fault data they had collected while listening to our telephone conversations) was used by AUSTEL when they prepared both their formal and draft findings. As we have shown in the first few chapters of Manipulating the Regulator Telstra got a copy of the more AUSTEL’s Adverse Findings against it by AUSTEL during March 1994, while the COT Cases had to wait until November 2007 and October 2008 until they got their copies.
This corporate culture at the management level within AUSTEL and Telstra was what put the members of COT in the positions they found themselves in: fighting an unfair arbitration simply because we challenged the misleading and deceptive conduct of Telstra managers. Simply because we were seeking the truth. Simply because we were prepared to stand up for our rights as Australian citizens; our rights to a telephone system which was comparable to that of our competitors.
During May 1994 Garry Ellicott and I spent five nights toiling over the pile of Telstra discovery documents in an attempt to decipher what they all meant. By this time Garry was also experiencing phone problems similar to those problems, I had been suffering from for all these years. I found some comfort in having someone of Garry’s standing staying with me, even if it was for only a short time. His background in the police force and the NCA was quietly reassuring. When he left to return to his office in Queensland he took some of the FOI documents with him for further examination.
While Garry was visiting, I discovered I could not locate a number of important camp documents. Missing were exercise books in which I kept official booking records, books which I needed to support those few bookings that were still managing to get through; a number of bank statements and my bank pay-in books for 1992/93. Also missing were two diaries which were keepsakes because they were in my ex-wife’s handwriting (from the two years she spent at Cape Bridgewater before our marriage broke up). These diaries covered the period of 1988 to 1989 and they have never been seen since. I was left with my rough diaries, and wall planners which I used to register bookings as they came in and before they were registered in the official exercise books. This information is covered in more detail in the description of an oral arbitration hearing which occurred later, on 11th October 1994.
Because all these records went missing, I was hard pressed to produce full and correct financial statements for my financial advisor, Derek Ryan. In fact, I had to resort almost to guesswork, based on information from my wall planner and diary which was compared to those bank statements I still had. Where these missing records really went is anybody’s guess.
Graham Schorer found himself in a similar position. A concrete pillar at the side of his office was smashed so thieves could gain access to his business. Interestingly, the only things stolen were documents.
My stress levels rose enormously over this period. Trying to produce a claim in some readable form when the story was so very complex, and without much actual technical knowledge was extremely difficult. With the AFP advising me that it appeared I had been under-surveillance for some months and with my private life in a mess with my partner in Ballarat I turned, for a time, to another fine lady for comfort. It is interesting to note that soon after she befriended me she also began to experience problems with her business phones and her customers started complaining that her phone was continually engaged. FOI documents indicate that Telstra investigated this and clearly recorded her phone problems. What was going on? Why did I feel so uncomfortable at nights when I had never been worried ever before. Twenty-years in the Merchant Navy, both English, Australian and Panamanian crews taught me to be alert but not how I felt now.
Often I was aware of a particular car sitting on the road above my house. Were they admiring the picturesque view of Cape Bridgewater Bay, I wondered, or were they watching me? Even though I was aware that my mind may well have been playing tricks on me, this was certainly a worry.
Finally, in the early hours of one morning, in July or August of 1992, I confronted an intruder sitting in a car among trees on my property. I was rather agitated, as anyone would be at finding a stranger on their property, and I was also rather loud, but the intruder actually offered what seemed, at the time, a plausible excuse so I let him go. I lodged a call with the Portland police and, the next morning, the local sergeant of police, Frank Zeigler, who later became Mayor of Portland, visited my office with a constable, to take some notes about the incident. During this interview I mentioned in passing the phone call I had which was ‘accidentally’ switched through to Telstra’s John Stanton instead of the ‘Four Corners’ Sydney office, and raised with Frank my belief that my phones were being bugged, as well as my property being watched.
Some days later Frank came again with information about the ‘intruder’ and his apparently sensible reason for being on my property. Frank had made inquiries in both Victoria and over the South Australian border, in Mt Gambier but the information he had acquired did not support the reason I had been given in any way.
While he was carrying out this inquiry Frank also looked into my suggestion that my phones were being bugged but he could not clarify how or why my call had been transferred to the wrong office in Sydney. Much later, when I began to sort through the confusion of documents which were sent to me from Telstra under FOI, and began to discover Telstra e-mails and other records which showed that they knew, on a daily basis, who I had telephoned and when; when my staff left my business and when I was away, I could only shudder. Transcripts taken by the AFP during the second interview with me on 26 September 1994 (see Australian Federal Police Investigation File No/1) shows they were most concerned about this evidence which I had received under FOI. What on earth had I done to deserve such treatment?
Even the local Telstra technicians seemed to be involved in this process: in one FOI document (K03273), an internal Telstra memo, the unidentified writer offers to supply a list of phone numbers which I had rung (I believe this was around the time of the ‘briefcase saga’ incident which is described in Chapter 11). Why were Telstra employees happy to distribute this private information so freely?
Attached to this document was another which indicated that I was the ‘customer’ referred to. All this seems to indicate that phone calls I had made to a number of clients and friends were being circulated to various people, courtesy of my local telephone exchange. I had previously learned that the writer of this fax was listening in to my private conversations and, when I confronted him with this information, he insisted that he was not the only technician in Portland listening in.
Other FOI documents show that other Telstra officials were checking up on who I rang, and were keeping records including the names of other organisations, clients and friends. Even my ex-wife did not escape — her name was listed also. As I uncovered more and more of this ‘spying’ I became more and more agitated. By May/June of 1994, as I battled on with the preparation of my claim, I was sinking deeper and deeper into depression.
Much of this information was forwarded to the TIO, who was, after all, supposed to be the independent administration of the arbitration. Not once did I receive a reply from the TIO’s office regarding this particular matter. And still the phone and fax problems continued. Since the problems were still occurring I was in somewhat of a bind. Legally, Telstra had 30 days to respond to any FOI request I lodged so how could I provide evidence to the arbitration regarding faults that only happened the day before? The whole process was getting out of hand and, although I raised this issue with both the TIO and the arbitrator, I didn’t get much help. The TIO would only reiterate that I should lodge my claim to the best of my ability.
Garry Ellicott attempted to ring me on 27 May 1994, using my 1800 freecall service (this can be confirmed from Telstra’s own records). Finally, he got through at 7.59 pm. I was at a screaming point when I discovered he had tried at 7.51 pm and again at 7.55 pm, reaching a recorded voice announcement both times. On both occasions, he was told that my number was not connected. When Garry rang Telstra fault centre to complain about these voice messages the operator told him that she could not register the fault because the complaint had to come from the customer. Garry’s response was understandably rather rude. How, he asked, “can the customer complain if he doesn’t even know that 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 for this period arrived I was again stunned to see that I had been charged for both calls. The 7.51 pm call was charged at 76 cents and the 7.55 pm call was charged at 30 cents.
The Austel COT report talks about Telstra’s fault reporting, recording and monitoring system and procedures regarding these recorded voice announcements on page 125 at point 6.53:
“Monitoring equipment at the exchange will not identify this condition as the call will either not be received at the terminating exchange or it will be seen as a call existing from the exchange. Complementary equipment at the customer’s premises will not record a call being received in either of the above circumstances.”
This is a report compiled by an official, government-funded body and yet Telstra continued to tell the public that these faults did not exist, even though many of these non-connected calls were being charged out to customers.
By this stage, I had been fighting for 6½ years to have these matters addressed and still I was caught in a game of ‘catch up tennis’. As each new fault appeared I had to lodge an FOI request and each request would take 30 days to bring results. No sooner had I faxed information to the arbitrator detailing yesterday’s faults than more occurred and I had to wait, again, for another 30 days to get copies of Telstra’s records. Many times I sobbed in frustration. No-one would listen or, if they did hear me, they apparently didn’t care. Or was Telstra playing some sort of cat and mouse game with me?
On a number of occasions during 1994 I was interviewed by the Australian Federal Police in relation to my problems with Telstra and my arbitration.
On the following page is a copy of the first page of the transcript of one of these interviews together with a copy of part of page 7 of this same interview. This was the second interview and I answered, in all, more than ninety-six different questions. It was clear that the Federal Police were very concerned at the documentation I had provided for them. In particular, they were alarmed by the document shown on page 103 (Chapter 18). The police were asking: How could a caller, who usually called from this number, be identified if he called from another number, apparently somewhere in Adelaide?
During this second interview, Constable Dahlstrom of the Federal Police stated at question 81 (see Australian Federal Police Investigation File No/1)
“But it does identify the fact that you were live monitored for a period of time. So we’re quite satisfied that, that there are other references to it.”
Clearly, Telstra had provided the Federal Police with evidence supporting this ‘live monitoring’. In other words, Telstra had admitted to listening to my private and business telephone conversations “for a period of time”.
If the Federal Police, Telstra or the Government had provided me with answers to these mounting questions as they arose, I would not still be searching for those answers today.
This statutory declaration marked: ‘Document Has Been Released under The FOI Act by the Australian Federal Police’ is a copy of the same sworn statement faxed on this day to Detective Superintendent Jeff Penrose (AFP) by me (AS 1095) in which it notes:
“At approximately 4.20 pm yesterday, I spoke to Detective Superintendent Jeff Penrose (Federal Police) regarding my concerns about what had taken place.
My purpose for being at Telecom House was that when Telecom had originally supplied the FOI documents, they had somehow failed to supply the adjoining documentation that should have accompanied some of these Fax Header Sheets (fifty six (56) header sheets in all) It is now my concerns were justified…and In the office provided for me , that because much of the FOI documentation was so blanked out that it was hard to march the correct correspondence to the Telecom Header Sheets in question.
The moment I brought to their attention the irregularities regarding the two faxes in question there was an immediate urgency to terminate my presence and I was asked to leave at 4.40 pm”.
In the last paragraph of this document the deputy TIO Ombudsman, Sue Harlow wrote to Warwick Smith (TIO), and referred to the proof I left with her confirming Telstra had defaced many documents by blanking out information on the supplied documents noting:
“Attached is a fax received from Alan Smith regarding access to FOI documents at Telecom.”
“Smith is alleging that documents are not in chronological order and blanking done for earlier FOI inspections has made the collection of appropriate documentation uncertain and diminished the opportunity for him to satisfactorily present his case.”
“Mr Smith has demanded a TIO member be present at today’s examination of papers by him at Telecom. …”
“He left an example of this with us…” (AS-CAV 78)
No one came from the TIO’s office the next day to assist me in inspecting the documents although Deputy TIO Sue Harlow appeared to have been distressed at the evidence I have provided her and my explanation what was happening in full view of the TIO’s office.
This is the same Sue Harlow (now ex Deputy TIO) on 11th July 1996, as a member of AUSTEL wrote to the Hon Senator Richard Alston, Minister for the Department of Communications Information Technology and the Arts (DCITA) attaching the sixth status report on AUSTEL’s recommendations of the COT Cases report which notes on page 12:
“The TIO believes some comment on the behaviour and attitude of Telstra in the conduct of these Arbitrations is warranted. …”
“The TIO believes that Telstra has, in all claims, responded in an overly legalistic manner. It has shown a tendency to deny liability under every potential clause of action on the basis of perceived statutory and contractual immunities. It has provided large and detailed defences, often out of proportion to the size or complexities of claims. It has lodged lengthy and detailed request for further and better particulars in most arbitrations. In short, while the arbitration procedure has sought to relax the legal burdens, Telstra’s conduct has certainly not. …”
“There have also been considerable delays in the provision of claim and defence materials and further information from both claimants and Telstra. Telstra has taken excessive time in the provision of material requested under FOI.” (GS-CAV 242)
So why wasn’t Senator Richard Alston provided with all of the facts surrounding the appalling conduct of Telstra by Sue Harlow? Karina Barrymore’s statement in the Sun Herald newspaper (see above) when she wrote:
The whistleblowers have done their job, spoken the truth, suffered the consequences, lived the hardship and financial burden. But our corporate leaders, our regulators, our governments have not done their job either.”
The government bureaucrats did not do their job as they were legislated to do (the only did part of their job) as our website so clearly shows.
When I originally raised these ongoing unaddressed arbitration issues with the Hon David Hawker MP, Senator Ron Boswell and Senator Alston in their Parliament House, Canberra offices, in September 1995, Senator Richard Alston clearly stated, in front of many witness, including Mr Hawker, that if he had been back practising law, he would win an appeal against Telstra solely on the grounds that the arbitration process did not investigate any of my ongoing phone problems, which both the Senator and the government communications regulator (AUSTEL) knew were definitely still occurring. At the Senator’s request, I left numerous documents with him, including a condensed version of the report Open Letter File No/41/Part-One and File No/41 Part-Two discussed below. The many attachments accompanying this report confirmed that my phone problems were ongoing, the same report that had prompted the Senator to state that he would win my case if he had still been practicing law.
We COT four Cases have always believed that it was the condensed version of the report Open Letter File No/41/Part-One and File No/41 Part-Two and the accompanying attachments to that report which was originally provided to Senator Ron Boswell in September 1995 that prompted him to make the above statements to the Senate on 20 September 1995 (See Senate Hansard Evidence File No-1). as a Matter of Public Interest.
By May 1994, one month before I had to submit my claim, the flow of documents had stopped before they had started to arrive and so I arranged to go to Melbourne on 14 May 1994 to look at some FOI documents that Telstra stated they would show me, in their offices.
On the 14 May 1994, I arrived at Telstra’s Exhibition Street FOI viewing room at 9:00 am as previously arranged, to view FOI documents that Telstra had sent me without schedules. I was introduced to Telstra FOI staff, including George Sutton and Rod Pollock. I was informed I had the room until 6pm. I also arranged this meeting so I could apply for other material I had requested, but not received.
Rod Pollock offers fabricated reasons to explain why documents I had received some days before were heavily censored by blanking out information. I received some of the documents I should have received under December 1993 and February 1994 FOI requests. Mr Pollock provided some heavily blacked-out documents, including about 56 fax cover sheets, with attached documents. One of the documents refers to the MELU Exchange that caused me massive problems between August 1991 and March 1992, so I asked Mr Pollock if he could supply the document, without the blanking out. Mr Pollock left and I continued to check the documents provided.
I had arrived with some of the documents that Telstra had previously supplied with me. I noticed faxes that were only half received in the past were now not only incomplete, but they were attached to documents they had no connection to the attached information. Some of the 56 fax-cover sheets I had seen before, now had completely different material attached. Nothing seemed to match. For example, documents relating to a fault in 1991 were attached to a fault record dated 1993 that stated no fault had been found. I was so alarmed at this discovery, that I phoned Detective Superintendent Jeff Penrose of the Australian Police and described the situation to him. At his suggestion, I prepared a Statutory Declaration and provided it to both the TIO and the arbitrator.
A TIO file note dated 16 May 1994, which I received late in December 2001 (under the TIO policy privacy Act), confirms my visit to the TIO’s office (two blocks from Telstra House) and my request for a witness to accompany me back to the Telstra viewing room to see the altered documents for themselves. In the last paragraph of this document the deputy TIO, Sue Harlow refers to the proof I left confirming Telstra had altered information on the supplied documents, noting: “He left an example of this with us (also attached).”
Is the withholding and destroying of evidence on some of these requested documents related to the threats I received from Telstra, that if I continued to assist the Australian Federal Police (AFP) during their investigations into Telstra’s interception of my telecommunication services? Blowing the whistle/Chapter Three, shows that on 29 November 1994, Senator Ron Boswell asked Telstra’s legal directorate:
“Why did Telecom advise the Commonwealth Ombudsman that Telecom withheld FOI documents from Alan Smith because Alan Smith provided Telecom FOI documents to the Australian Federal Police during their investigation?”
After receiving a hollow response from Telstra, which the senator, the AFP and I all knew was utterly false, the senator states:
“Why would Telecom withhold vital documents from the AFP? Also, why would Telecom penalise COT members for providing documents to the AFP which substantiate that Telecom had conducted unauthorised interceptions of COT members’ communications and subsequently dealt in the intercepted information by providing that information to Telecom’s external legal advisers and others?” (See Senate Evidence File No 31)
What is so appalling about this withholding of relevant documents is that no one in the TIO office or government has ever investigated the disastrous impact this had on my overall submission to the arbitrator.
It is blatantly obvious the government-owned Telstra Corporation, which controlled my arbitration process, also denied me my rights as an ordinary citizen – an equal before the law – and ultimately deprived me the right of having justice run its due course. The arbitrator and the government (who, remember, at the time fully owned Telstra) should have initiated an investigation into why an Australian citizen, who assisted the AFP in their investigations into unauthorized interception of telephone conversations and facsimiles, was disadvantaged during a civil arbitration process.
Threats which became a reality
Furthermore, when Telstra carried out those threats, Dr Hughes covered up the withholding of these discovery documents by writing to Laurie James, president of the then Institute of Arbitrators Australia, on 16 February 1996 and stating my not-received 24,000 FOI documents were received and read by either him or the arbitration resource unit (see Prologue/Chapter Three). TIO official arbitration records, dated 30 March 1995, show those documents never reached the arbitration process (see Arbitrator File No/45)).
It is important to view Chapter Four Blowing the whistle see pages 5163 to 5169 SENATE official Hansard – Parliament of Australia. because it proves beyond all doubt that systemic criminal conduct did exist within the Telstra Corporation while the COT matters were being discussed. This corruption was certainly real and not a figment of our imaginations.
Senate Hansard records under the heading A MATTER OF PUBLIC INTEREST dated 20 September 1995, shows a very emotional Senator Ron Boswell discussing the injustices that we four COT claimants ( i.e. Ann Garms, Maureen Gillan, Graham Schorer and me) suffered prior during and after our ‘so-called’ government endorsed arbitrations:
“Eleven years after their first complaints to Telstra, where are they now? They are acknowledged as the motivators of Telecom’s customer complaint reforms. … But, as individuals, they have been beaten both emotionally and financially through an 11-year battle with Telstra. …
“Then followed the Federal Police investigation into Telecom’s monitoring of COT case services. The Federal Police also found there was a prima facie case to institute proceedings against Telecom but the DPP [Director of Public Prosecutions], in a terse advice, recommended against proceeding. …
“Once again, the only relief COT members received was to become the catalyst for Telecom to introduce a revised privacy and protection policy. Despite the strong evidence against Telecom, they still received no justice at all. …
“These COT members have been forced to go to the Commonwealth Ombudsman to force Telecom to comply with the law. Not only were they being denied all necessary documents to mount their case against Telecom, causing much delay, but they were denied access to documents that could have influenced them when negotiating the arbitration rules, and even in whether to enter arbitration at all. …
“This is an arbitration process not only far exceeding the four-month period, but one which has become so legalistic that it has forced members to borrow hundreds of thousands just to take part in it. It has become a process far beyond the one represented when they agreed to enter into it, and one which professionals involved in the arbitration agree can never deliver as intended and never give them justice.”
“I regard it as a grave matter that a government instrumentality like Telstra can give assurances to Senate leaders that it will fast track a process and then turn it into an expensive legalistic process making a farce of the promise given to COT members and the unducement to go into arbitration.
“Telecom has treated the Parliament with contempt. No government monopoly should be allowed to trample over the rights of individual Australians, such as has happened here.” (See Senate Hansard Evidence File No-1).
On the 27 January 1999, after reading the first draft of my manuscripts ‘Absent Justice My Story’ Senator Kim Carr stated:
“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 citizens in a manner that is most disturbing and unacceptable
I strongly believe that every single person who reads my manuscript, Absent Justice My Story, and the various related short stories on the absentjustice.com website, would all very quickly come to the same conclusion which is that the Telecommunication Industry Ombudsman office (which is, don’t forget, funded by Telstra and the other carriers) has, for at least the last two or more decades, knowingly assisted Telstra by ignoring the complete validity of my claims, year after year, as part of a joint effort (with Telstra) to stop any proper, transparent investigation into those claims before they even begin. In simple terms, as the years went by, those in charge of stalling all these investigations only needed to argue that, for instance, my claims are ‘many years old now’ and therefore ‘out of date’ and so, with that said, the cycle continues. This dreadful cycle means that it is not only my business that failed because the phones didn’t work properly, but unknown numbers of other businesses were also simply destroyed, with just one aim – to protect Telstra at all cost, regardless of the damage done, again and again, to us innocent Australians.
It is important I again raise the type of documentation I provided The Hon David Hawker MP, Senator Ron Boswell and Senator Richard Alston in their Parliament House, Canberra offices, in September 1995, which I later submitted into a condensed report at their request (see Open Letter File No/41/Part-One and File No/41 Part-Two), because in June 1996, I added extra information to those files which Paul Paul Fletcher discusses below.
It is most important we raise the date of the 5 September 1996 letter to me from Mr Fletcher see Open Letter File No/41/Part-One because anyone who reads our Open Letter File No/41/Part-One and File No/41 Part-Two, should firstly understand that a copy of the report dated June 1996 relates to the period he was adviser to Senator Richard Alston (the then-newly appointed Minister for Communications and the Arts) asked me to provide his office where I believed the arbitration process had failed the COT Cases. It will become clear that the exhibits and evidence that were attached to the June 1996, report show my claims have always been true concerning just how unethical the whole administration of my arbitration had been. Attachments to my June 1996 report confirmed that the Australian Federal Police were themselves had been amazed that I had been threatened by Telstra concerning the supply of discovery under FOI because I was assisting the AFP with their own investigations into Telstra’s unauthorized interception of my telecommunications services.
During the second week of September 1996, I received from Paul Fletcher, a letter stating:
“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.
What perhaps troubles me the most regarding this letter is that there is a very real possibility that Paul Fletcher (the Senator’s Chief of Staff) seems to have been misguided by a number of different people in his office who did not correctly convey the actual facts, just as Sue Harlow failed to convey the correct facts too (see (GS-CAV 242), when she reported only half of what she actually knew, for instance, her letter only includes one reference to Telstra withholding FOI documents from the claimants. Surely someone should have immediately asked why the TIO’s office chose not to officially advise Senator Richard Alston, via his Chief of Staff, that Telstra was not just withholding requested FOI documents from the claimants they were also altering evidence in some of the documents that they did provide to the COTs, once the COTs had requested that information.
Further, Sue Harlow’s letter to the Senator also omitted any mention of how the TIO had received advice from the previous Minister of Communications (the Hon Michael Lee MP) in regard to the systemic destruction of some of the documents that the COTs had requested, particularly in relation to the information that had been exposed by a Telstra Whistle-blower on 13 October 1994 (see Arbitrator / Part Two/Chapter Seven).
Of course, we understand that the Chief of Staff to any Minister would have a hefty workload to deal with and therefore cannot be expected to personally read every single report that comes into the Minister’s office, especially when that office has already seen a report about the same subject that, in relation to the COT claims at least, had probably already been submitted by the regulator, and that would mean that the Chief of Staff could therefore not always be fully aware that a later version of any report could have been watered down considerably. So, when Paul Fletcher’s 5th September 1996 letter noted that he had: “… examined the material you sent me (and, on) the basis of the information I have received …”, what Paul Fletcher really meant was that members of his staff had read it and they decided it was not relevant. So everything hinges on the fact that, if any Chief of Staff in any Minister’s office was to receive advice from their staff saying, for instance in this case, that most of Alan Smith’s claims had already been raised by AUSTEL’s, Sue Harlow, the truth, as recorded in both Open Letter File No/41/Part-One and Open Letter File No/41 Part-Two. would be discarded i.e. no one would both to read it.
On 26 May 2119, Paul Fletcher became Australia’s Minister for Communications and the Arts (see https://www.paulfletcher.com.au/media-releases/media-release-fletcher-deeply-honoured-to-be-appointed-minister-for-communications a portfolio he is professionally equipped to handle.
As the new Minister for Communications, I can only hope The Hon Paul Fletcher will now look at the evidence I originally provided Senator Alston in September 1995, and the more updated version to Mr Fletcher in June 1996 and the more recent information now exposed on absentjustice.com.
Systematic Judicial Persecution
Possibly even worse, however, on 24 June 1997, the day before the Senate committee uncovered the COT Strategy spuriously claiming Legal Professional Privilege (see below) they were also told under oath, see:- pages 36 and 38 Senate – Parliament of Australia by an ex-Telstra employee turned -whistle-blower, Lindsay White, that, while he was assessing the relevance of the technical information which had been requested by the COT claimants, he advised the 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, 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)
The It is clear from Mr White’s statement he identified me as one of the five COT claimants that Telstra had singled out to be‘stopped at all costs’ from proving their my against Telstra’. One of the named Peter’s in this Senate Hansard is the same Peter who swore under oath, in his witness statement to the arbitrator that the testing at my business premises had met all of AUSTEL’s specifications, when it is clear from Arbitrator File No/110that Telstra’s own Customer Call Analysis System (CCAS) data for 29 September 1994 show NONE of the mandatory required 20-tests calls to each of my service lines 055 267 267, 055 267230 and 055 267260 were generated into my business and held open for the required period of 120-seconds for each completed call. In simple words, the SVT process at my business was not carried out according to the government communications regulatory mandatory specifications. Telstra is fully aware Peter (on page 38 of this Hansard) received advice from AUSTEL, on 11 October and 16 November 1994, regarding the Service Verification Tests (SVT) being grossly deficient. AUSTEL demanded Telstra advise what it intended doing about this deficiency see Front Page Part One File/No 24-A to 24-B. No second SVT tests ever took place at my business during my arbitration. However, in November 2002 (eight months after I sold the business) Telstra tested the business for the new owners, concluded the wiring, cabling and the Telstra-installed infrastructure was corroded and the whole holiday camp was rewired.
This is the same Peter who somehow had the power to direct a Government Regulator regarding who they could release this known faulty SVT information to and who they could not release it to (see Telstra’s Falsified SVT Report) even though the Government Regulator (AUSTEL) knew that the inaccurate SVT results were being used to support Telstra’s arbitration defence.
This same Peter refused to conduct any sort of testing at my premises. Both Peter and David Reid (an ex-Telstra technician, and now with Lane Telecommunications) were present to investigate on-site telecommunication arbitration information. The allegedly independent arbitration resource unit did not test my three service lines that were still experiencing ONGOING problems when they visited my business on 6 April 1995. From what happened on this day, it is apparent the government-endorsed arbitration process was designed – NOT to assist the COT cases in proving their claims – but to destroy the credibility of the COT cases’ claims in order to sell off the Telstra network, no matter how degraded the arbitration process found it was.
Systematic Judicial Persecution Contines
On 25 June 1997, a number of senators discussed Telstra employees rorting millions upon millions of dollars from Telstra shareholders: i.e., the government and Australian citizens, who then owned Telstra see page 5163, in the following link > SENATE official Hansard – Parliament of Australia. It has since been shown that both the Telstra CEO and its board members had known, for some time, that millions upon millions of dollars were being unlawfully syphoned from the government coffers. In fact, figures running into the billions have also been quoted. It is important to view page 5163 because it proves beyond all doubt that systemic criminal conduct did exist within the Telstra Corporation while the COT matters were being discussed. This corruption was certainly real and not a figment of our imaginations.
Although the following ‘COT strategy’ has already been discussed above, it is raised again here because the Australian Government should have been called as a direct result of the Government Communications Regulator, AUSTEL (now ACMA), discovering that Freehill Hollingdale & Page, who had been appointed by Telstra as their main arbitration defence lawyers, were about to be involved again. After all, AUSTEL/ACMA knew that Freehills had put that COT strategy together for Telstra (see page 5169 SENATE official Hansard) and so they (AUSTEL/ACMA) and had already assured both the members of COT and numerous Senators that Freehills would not be used in any way in connection with our arbitrations (see point 40 in the following Prologue Evidence File No/2). So why didn’t the Government immediately insist that this legal firm, one that had already caused so much heartache and grief for the COT Cases, could not be used again as the whip to ensure the COT Cases did not win their cases?
The author of this COT strategy is the same lawyer Denise McBurnie, with whom I was forced to register each of my phone complaints, in writing, before Telstra would address these problems seeabove. NONE of the fault information I provided to this lawyer, 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 over the many months I had to do this.
However, when Telstra’s lawyers, which the government assured us would not be used in our arbitrations 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.
The most alarming points about this unsigned witness statement are:
- Before the psychologist met with me, Telstra’s lawyers provided him with a copy of the Cape Bridgewater Bell Canada International (BCI) addendum report stating 13,590 test calls were carried out, over a five-day period, into the Cape Bridgewater RCM exchange, using the TEKELEC CCS7 monitoring equipment. This report stated the test calls had a 99 per cent success rate.
- Neither the psychologist nor the arbitrator was told tests through the Cape Bridgewater exchange was impracticable: the nearest exchange that could accommodate the TELELEC CCS7 equipment was the Warrnambool exchange, 120 kilometres from Cape Bridgewater (see Telstra’s Falsified BCI Report ‘masked identities’)
Had the psychologist known the 13,590 test calls allegedly carried out by BCI, could not terminate through the TEKELEC CCS7 monitoring system at Cape Bridgewater, his assessment of my mental state would have been somewhat different. He, too, might have been distressed if he had been aware Telstra misled and deceived him prior to him assessing my mental state.
At point 3, in this unsigned witness statement, the forensic psychologist states:
“I have been retained by Messrs Freehill Holllingdale & Page, the solicitors acting for Telstra Corporations Limited (“Telecom”) to review a report on the psychological status of Mr Alan Smith”...etc etc
Had this forensic psychologist been provided with the same COT strategy (see Prologue Evidence File 1-A to 1-C) showing my businesses were one of the four being targetted by Freehill’s in order to destroy our cases against Telstra he might have made a different set of findings in his witness statement, that he did.
It was Freehill’s lawyer, Wayne Maurice Condon, who verified, under oath, the ‘signature’ on the forensic psychologist’s witness statement, thereby attesting to a signature that was not actually on this significant document at all, so why was Mr Condon never investigated for this unlawful conduct? Furthermore, it is also clear, from absentjustice.com/brief summary, that at least three other arbitration witness statements that had all been sworn under oath by Telstra employees, included numerous false statements that were identified as grossly inaccurate by the AUSTEL/Adverse Findings report that the Government Communications Regulator prepared, and yet the TIO and the arbitrator have still continued to refuse to independently investigate why Telstra management allowed their employees to pervert to course of justice to these extremes.
On 5 October 1993, prior to arbitration AUSTEL’s chair Robin Davey provided a draft of the COT Cases Settlement Proposal to Mr Ian Campbell, Telstra’s commercial managing director. This proposal was to be used in the four COT cases’ Fast Track Settlement Proposal (discussed below). The draft notes at point 40:
“Finally, if the attached letter (Attachment ‘D’) dated 7 July 1993 from Freehill, Hollingdale & Page to one of the COT Cases’ solictiors is indicative of the way that Freehill, Hollingdale & Page have approached the COT Cases in the past, I would be more than a little concerned if they were to have a continuing role.” (See Prologue Evidence File No/2)
This FOI document folio R00524 – COT 1306. (AS Personal File 179) dated for the month of September 1993 was released to me by the Telstra under FOI (two years after my arbitration was over). The fact that I received it and the content appears to relate to my ongoing telephone problems which I had previously been forced to provide Denise McBurnie of Freehills before Telstra would investigate my complaint. folio R00524 actually admits to concealing technical information under Legal Professional Privilege,i.e.
“All technical reports that relate to the customer’s service are to be headed “Legal Professional Privilege”, addressed to the Corporate Solicitor and forwarded through the dispute manager”.
It is also important to note that, during the first week of January 1994, the COTs advised the TIO, who was also the administrator of both the Fast Track Settlement Proposal (FTSP) and the Fast Track Arbitration Procedure (FTAP), that AUSTEL’s Chairman, had assured the COTs that this aforementioned legal firm would no longer be involved in their Fast Track Settlement Proposal. An internal carrier email (FOI folio C02840) to various carrier executives AS Personal File 180 notes:
“Steve Lewis (Australian Financial Review news reporter) is following up on his own yarn NOT with the Davey letter to the minister but with the Davey letter to the CEO raising concerns about our use of Freehill’s”.
Telstra continued use of this legal firm throughout the COT arbitrations and the arbitrator’s refusal, in my case, to look into why Telstra was withholding technical data under Legal Professional Privilege suggested at the time that Dr Hughes (arbitrator) was not properly qualified as an arbitrator since he didn’t seem to understand that Telstra could not legally conceal technical information under Legal Professional Privilege when it had been accessed under the FOI Act.
It is also clear from exhibits Open Letter File No/50-B and 50/C that I was still having to register my phone complaints with Freehill Hollingdale & Page in 1994 before Telstra would attempt to address my valid complaints.
On the 2 January, 25 March, 6 May and 11 of November 1994, various members of the Commonwealth Ombudsman Office wrote to Telstra demanding to know where my legally requested FOI documents were. As the segment above shows, I was one of the four COT Cases who were having their technical requested documents withheld illegally under Legal Professional Privilege. It was left to Senator Ron Boswell to assist me in this matter unaware that I was now fighting these none released FOI documents on two fronts. Firstly, they were being withheld under illegally under LPP and secondly, because I was assisting the AFP with their own investigations into Telstra’s unauthorized interception of my telecommunications services.
Also shown in the following pages 5163 to 5169 see link > SENATE official Hansard – Parliament of Australia, shows Telstra employees rorted millions upon millions of dollars from Telstra shareholders: i.e., the government and Australian citizens, who then owned Telstra.
Many people made threats against the COT cases because it was our persistence, in order to gainfully functional phone systems that led to this unethical behaviour at Telstra, being exposed.
Perhaps even more unbelievable is that the COT cases received no recognition, from either the government or the Telstra board, for our stand for honesty and truth; instead, we have been treated in the worst deplorable way, we have been labelled as vexatious litigants and our lives have been ruined, simply because we believed that what we were doing would eventually benefit all Australians.
COT members pleaded with the Telecommunication Industry Ombudsman (TIO) not to force us into arbitration with Telstra whilst Telstra was under investigation by the Australian Federal Police for unauthorised interception of COT cases’ telephone conversations – this was undemocratic (see Australian Federal Police Investigations. The TIO ignored our concerns. What we did not know, was that the TIO and arbitrator had secretly agreed with Telstra to use their drafted arbitration agreement and NOT the independent agreement the government was assured would be used to assess our matters. Even worse, although the arbitrator wrote to the TIO, advising him the arbitration agreement was not credible to use in the arbitrations (see Chapter Five Prologue), it was still used. This letter from the arbitrator was then concealed from the claimants during their designated appeal processes, regardless of its value.
Even before the arbitrator brought down his first deliberation, both he and the TIO were warned, on 18 April 1995, that there were “forces at work” derailing the arbitrations. They both ignored this written advice. This letter to the TIO, from the arbitration project manager, was also concealed from the claimants during the same designated appeal process.
It is important to view page 5163 SENATE official Hansard because it proves systemic criminal conduct did exist within the Telstra Corporation as the COT arbitrations were about to proceed and because it shows that the corruption was certainly real and not a figment of our imaginations or the imaginations of a very young Julian Assange and his hacker mates who telephoned COT Case spokesperson Graham Schorer to advise him they had hacked into Telstra’s network and located evidence that crimes were being committed against the COT Cases during our arbitrations.
Page 5169 in this SENATE official Hansard confirms a number of senators discuss a legal firm and its strategy advising how Telstra can conceal technical information from the four COT cases under Legal Professional Privilege, even though the documents were not privileged. The COT strategy is discussed further in our Kangaroo court page and the evidence supporting what this legal firm was allowed to do to four Australian citizens prior and during a government-endorsed arbitration is available at download Prologue Evidence File 1-A to 1-C.
In simple terms, a very young Julian Assange was right: we four COT Cases never had a chance of ever fully proving our real losses.
The following statements are taken from Graham Schorer’s Statutory Declaration (See Hacking – Julian Assange File No/3)
“After I signed the arbitration agreement on 21st April 1994 I received a phone call after business hours when I was working back late in the office. This call was to my unpublished direct number.
“The young man on the other end asked for me by name. When I had confirmed I was the named person, he stated that he and his two friends had gained internal access to Telstra’s records, internal emails, memos, faxes, etc. He stated that he did not like what they had uncovered. He suggested that I should talk to Frank Blount directly. He offered to give me his direct lines in the his [sic] Melbourne and Sydney offices…
“The caller tried to stress that it was Telstra’s conduct towards me and the other COT members that they were trying to bring to our attention.
“I queried whether he knew that Telstra had a Protective Services department, whose task was to maintain the security of the network. They laughed, and said that yes they did, as they were watching them (Telstra) looking for them (the hackers). …
“After this call, I spoke to Alan Smith about the matter. We agreed that while the offer was tempting we decided we should only obtain our arbitration documents through the designated process agreed to before we signed the agreement.”
Enter the Hackers
After contacting me to discuss this offer, Graham and I decided not to accept this information. We were of the belief that accepting damning evidence outside the due process of discovery and/or FOI could be seen as acting unlawfully.
It is now apparent from two publications – one titled The Most Dangerous Man In The World by renowned investigative journalist Andrew Fowler and the other by Dr Suelette Dreyfus and Julian Assange, titled Underground – that it was Julian Assange and his companions who contacted Graham.
Although we have mentioned Julian Assange a number of times in our story, that is not because we intend, in any way, to promote his activities around the world, our only contact with Mr Assange was back when he was one of the young hackers who contacted Graham Schorer, when Graham was the official COT spokesperson, warning him they had uncovered damning information concerning our arbitrations. That information was related to how Telstra, and others, had been acting outside the law to our detriment. At the time, we alerted the administrator of our arbitration process to this information and the administrator then advised Graham that the hackers had been ‘apprehended’, but he would not tell Graham what he and/or the authorities had uncovered during their investigations into the information the hackers wanted to share with us. Sometime later the same administrator was advised, by his own arbitration unit, that there had been ‘forces at work’ that had ‘derailed’ the COT arbitrations (see Chapter One Prologue page. Once again the hackers had been
By clicking onto Chapters One to Five in our Prologue page, you will be able to determine if my claims are true or false concerning collusion between the TIO-appointed arbitrator, his arbitration resource and the TIO office did exist.
No control over the process
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 government promised the claimants that if they accepted this endorsed process then it would be conducted under the ambit of the Arbitration Act. However, unbeknown to the government and the claimants, the arbitrator and administrator of the process secretly met with the defendant, Telstra (see Chapter Three Burying The Evidence) and, between them, it was decided the arbitration agreement – the rules concerning how the process would run – would be altered. We suggest the reader views Chapter Three Burying The Evidence page because it will enlighten them to understand how undemocratic the COT arbitration process was going to be even before the claimants signed this tainted arbitration agreement.
Our story shows that high-profile lawyers and professional forensic accountants, with the backing of industry regulators, were able to manipulate the legal system of arbitration so that the only winner was the defendant in those arbitrations. Our story likewise shows that those same industry regulators were aware of how the arbitration system was bastardised by these aforementioned identities. Alarmingly, these same regulators allowed the defendant to take control over the arbitrations, the following 26 September 1997, Senate Hansard shows.
On 26 September 1997, the Telecommunications Industry Ombudsman John Pinnock formally addressed a Senate estimates committee (see page 99 > COMMONWEALTH OF AUSTRALIA – Parliament of Australia): noting:
“In the process leading up to the development of the arbitration procedures – the claimants were told clearly that documents were to be made available to them under the FOI Act.
“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.”
This contradicts information in a letter dated 24 January 1994 (see Open Letter File No/48-A). This letter, written to Dr Hughes before he was formally appointed as arbitrator, confirms Mr Frank Shelton (the TIO-appointed special counsel to the arbitration process) agreed with Dr Hughes that the first four COT claimant’s arbitrations would all be conducted according to the Victorian Commercial Arbitration Act 1984. This was despite the four COT cases still wanting to have their matters assessed under the previously signed and agreed to commercial assessment process. When this letter was provided to the four COT claimants, they were also given verbal assurances by the first TIO, Warwick Smith, and Dr Hughes that if they abandoned their commercial assessment process, the arbitrations would be conducted under the ambit of the arbitration procedures.
Why was John Pinnock’s admittance that our arbitrations were not conducted under the agreed-to process not acted upon?
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?
Senator Kim Carr again criticised the handling of the COT arbitrations on 11 March 1999 as the following Hansard link shows. Addressing the government’s lack of power, Senator Carr stated:
“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, he stated:
“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.”(See >http://parlinfo.aph.gov.au/parlInfo/chamberhansards1999-03-11)
Senator Schacht was possibly very vocal when he stated:
“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.”
I respectfully remind the current Liberal and National Coalition Government of a newspaper article that appeared on 23 March 1999, in the Australian Financial Review, 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.”
The Australian Government already has evidence confirming one of the main Telstra players Liberal Party Senator Alan Eggleston referred to when said, “They [Telstra] have defied the Senate working party. Their conduct is to act as a law unto themselves” was Sue Laver who in 2019, is Telstra’s corporate secretary.
On 12 January 1998, during the Senate Committee investigations referred to by Senator Alan Eggleston when Graham Schorer (COT spokesperson was part of that Senate process officially provided Sue Laver with a number of documents. On page 12 of his 12 January 1998 letter to Sue Laver, Graham states:
“Enclosed are the 168 listings extracted from Telstra’s Directory of Network Products and Network Operations, plus CoT’s written explanation, which alleges to prove that parts of the November 1993 Bell Canada International Report is fabricated or falsified.”
On pages 23-8 of this letter, and using the Cape Bridgewater statistics material, Graham provided clear evidence to Sue Laver and the chair of the Senate legislation committee that the information Telstra provided to questions raised by the Senate on notice, in October 1997, was false (see Scrooge – exhibit 62-Part One – Sue Laver BCI evidence and Scrooge – exhibit 62-Part Two – Sue Laver BCI Evidence).
The actual Cape Bridgewater BCI material discussed above is contained as exhibit 62-Part Two – Sue Laver BCI Evidence, and relates directly to the false BCI/Cape Bridgewater test results that were provided to the Senate Secretary as a result of a formal question on notice, are particularly important because, as is also reported in Absent Justice My Story/Chapter 2 and Arbitrator /Part One/Chapters Two and Three and TIO – Arbitration Administrators, between 1993 and 1994, Jim Holmes (another Telstra Corporate Secretary) was aware that, even before my settlement of December 1992, I had already been provided with other false information about my telephone problems. Mr Holmes was further aware that, in relation to the documents left (in a briefcase) at my businesses on 3 June 1993, not all of the information that the Government Communications Regulator asked for had been provided to the Government, even though the regulator, AUSTEL, had officially asked for this information.
Not providing all of the facts regarding exactly what was in that briefcase when it was left at my business seriously affected the Government Regulator’s investigations into the validity of my claims of ongoing telephone problems back in 1992 and 1993 but yet, once again, here we have Telstra actually providing even more false information to the Senate, again in response to a question on notice, in October 1997, and the very person who was present at that time (Ms Sue Lava) was not Telstra’s Corporate Secretary. Furthermore, it is the Corporate Secretary who, for the past few years, has consistently refused to investigate this BCI matter at all.
Surely most reasonable-minded people would read this information and come to the conclusion that Telstra’s provision of this false BCI/Cape Bridgewater information to the Senate was actually a matter of a deliberate contempt of the Senate?
If the 12 January 1998 letter to Sue Laver, with the false BCI report attached, is not enough evidence to convince the Australian Government that Ms Gamp cannot continue pretending she knows nothing about the falsified Cape Bridgewater BCI tests, Sara Gamp and the Senate estimates committee chair were again notified, on 14 April 1998, that the Cape Bridgewater BCI tests were impracticable. When is Sue Laver going to come forward and advise the Telstra board that my claims are right and that indeed it was unlawful to use the Cape Bridgewater BCI tests as arbitration defence documents as well as grossly unethical to have provided the Senate with this known-false information when answering questions on notice?
Telstra’s Falsified BCI Report and Main Evidence File No 3 are all the evidence necessary to show that Telstra’s 1994 arbitration defence provided false information to a Telstra arbitration witness, namely the clinical psychologist, during my government-endorsed arbitration, and two years later Telstra supplied that same BCI false information on notice to the Senate.
It is ironic that two Telstra technicians, in two separate witness statements dated 8 and 12 December 1994, discuss the testing equipment used by Telstra in overall maintenance and state that the nearest telephone exchange, to Portland and Cape Bridgewater, that could facilitate the TEKELEC CCS7 equipment was in Warrnambool. Telstra proved my claims correct themselves, and yet Sue Laver has written to me for years, maintaining my 1994/95 arbitration addressed these BCI matters when she knows this is far from the truth, as she knows it to be.
Part of my response, dated 20 June 2010, to one of those letters from Ms Laver states:
“In your letter you note: ‘I refer to your letter dated 1 June 2010 addressed to Robert Nason, Group Managing Director of Corporate Strategy & Customer Experience. The letter also indicates that you also wrote to Mr Nason on 27 April 2010. Mr Nason did not receive a letter from you dated 27 April or the CD to which you refer.’…
My partner Cathy Ezard, and various other members of the Casualties of Telstra (COT) group have similar stories to tell concerning Telstra related mail (including emails and facsimiles) not reaching their intended destination. A copy of my previous letter to Mr Nason’s dated 27th is enclosed. To alleviate any confusion to what CDs have been received by Telstra I have attached herewith two CD disks ti[t]led (1) Simon Cleary (Acting TIO) (2) BCI and SVT Telstra’s Misleading & Deceptive Conduct. Please note: this correspondence has been hand delivered by courier.” (See Open Letter File No/27)
My above letter to Sue Laver shows that Telstra always knew, even before they submitted the Cape Bridgewater/Bell Canada International Tests and the Cape Bridgewater Holiday Camp/Arbitration Service Verification Tests, that both were fabricated. However, the full evidence of the fabrication was not revealed until 1997/98, during the Senate estimates’ investigations into COT matters, which Sara Gamp was party to.
Sue Laver keeps insisting that the issue of the fabrication of these reports was addressed during my 1994/95 arbitration with her latest letter of 11 April 2016 stating: “As stated in my letter of 13 October 2015 (attached), your claims were resolved over 20 years ago.” (See Open Letter File No/27)
However, that’s just not possible because she and the Senate estimate committee did not see this fresh evidence confirming both reports were fabricated until 1997/98, when that evidence was also copied to both the Commonwealth Ombudsman and the Senate chair.
How could the matter of the fabrication of these reports have been addressed in an arbitration that was finalised in May 1995, two years before that evidence actually came to light?
Other government ministers have shown their disgust at the way Telstra was able to act as a law unto themselves as can be seen from Senator Mark Bishop’s statement shown below notes in the following link > aph.gov.au/parlInfo/search/displaychamberhansards1999-03-11
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 – Senator Boswell – Some $24 million.
Senator Mark Bishop –
“I am informed by Senator Boswell it is 24 million – defending a claim when the claim before it is somewhere between $2 million or $4 million. This is simply an outrageous propostion and a waste of public money”.
A fair resolution of all the COT cases claims has still not been reached as the following An injustice to the remaining 16 Australian citizens shows.
Senator Len Harris, who won his Senate seat on 2 July 1999 for the One Nation party, then lived in Queensland, 2,977 kilometres from Melbourne. 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 Hon Senator Richard Alston, Minister for Communications noting:
“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 did supply, many were altered or delivered with sections illegally blanked out? (See Senate Evidence File No 56 ).
Senator Len Harris is possibly one of the finest men I have ever had the pleasure of meeting, a true man that believes in justice for all, not just those with political clout. The senator could not understand how, despite various senators from both houses of parliament openly condemning Telstra’s unethical conduct towards those five litmus test COT claimants during their arbitrations and the Senate investigation itself, the other 16 were left to their own devices. The in-camera Senate Hansard records indicate that no one seemed to grasp the importance of Senator Schacht’s advice to the committee that, if Telstra only provided compensation to the five litmus test cases and not the other 16, it would be an injustice because they had also suffered similarly at the hands of Telstra.
The Senate committee helped those five litmus test claimants gain access to documents previously withheld from them, as Senator Harris’ press release shows. These claimants, on top of receiving their long-awaited discovery documents, also received millions of dollars in compensation; not only as a result of their business losses but also because of the unethical conduct they suffered at the hands of Telstra. In 2015 however, the remaining claimants from the 16 on the B list (some have now died) are still waiting for the justice that was denied them (see An injustice to the remaining 16 Australian citizens)
Imagine how I felt, on 6 December 2004, when I received the second threat from Senator Alan Eggleston on top of the threats I received from Telstra, after I assisted the Australian Federal Police in their investigations into Telstra’s unlawful interception of my telephone conversations. All these threats are linked to the one single issue: the right of all citizens in a democracy to have access to documents classified as ‘discovery’, in any legal process.
The Major Fraud Group’s two senior officers were adamant that I take the small A4 storage box of documents with me after the police were pressured to close down their investigations. Perhaps, it had something to do with me being one of the 16 COTs who had still not received their documents, unlike the five litmus test cases who HAD received over 150,000 documents between them – documents that the TIO initially promised ALL of the COT cases they would receive if they signed the TIO arbitration agreement. That agreement appears to have been deliberately crafted by the defendants (Telstra) to include a limited period for the production of documents and the obtaining of further particulars. These were the same issues that the arbitrator confirmed had affected a number of COT arbitrations (see Main Evidence File No 34).
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