On 25 March 1994, Ms Philippa Smith wrote to Telstra’s CEO Frank Blount, stating:
“It was unreasonable for Telecom to require the participants to make further assurances while Telecom was considering the Agreement and thereby denying the participants the opportunity to consider the rules that Telecom wished to have included in the Agreement.” (Home Page – Part One File No/2-B)
Ms Philppa Smith also stated on page 3 of this letter that Telstra's Steve Black had advised Mr Wynack (the Commonwealth Ombudsman Director of Investigations) that Telstra was vetting the supply of sensitive documents because I had previously released misused them, which had embarrassed Telstra. These documents I had supplied to the AFP exposed Telstra's listening to my telephone conversations, intercepting my faxes, or both.
In straightforward terms, Telstra was selectively vetting the sensitive information that I required to substantiate my claims. This practice hindered the Australian Federal Police (AFP) and the Arbitrator, who were jointly tasked with investigating these claims, from fully validating their legitimacy.
In her correspondence, Ms. Philippa Smith specifies that Warwick Smith, the administrator overseeing the settlement proposal, communicated to her office that the delays encountered during the process were solely due to the actions of Telstra. Nevertheless, this assertion is only partially accurate.
The letter does not mention that Warwick Smith was covertly sharing internal government political information that could potentially aid Telstra in their defence against the claims related to the COT Cases. The information provided by Warwick Smith, which Telstra appeared to value highly, was directly causing the delays in resolving these claims.
In March 1994, Ms. Phillipa Smith could not have anticipated that five years later, almost to the day after most of the COT cases, the government-endorsed arbitration and mediation processes would destroy businesses—including mine.
Threats Made
Threats Carried Out
Threats were made against me by Telstra arbitration officials because I assisted the Australian Federal Police with their investigations into these phone and fax hacking issues. Refer to page 180 ERC&A, from the official Australian Senate Hansard, dated 29 November 1994, which reports Senator Ron Boswell asking 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)
The threats I encountered ultimately became a troubling reality. A significant concern regarding the withholding of essential documents is that no individual within the Telecommunications Industry Ombudsman (TIO) office or any government entity has ever conducted a thorough investigation into the damaging effects this withholding had on my overall submission to the arbitrator.
At the time of the arbitration, Telstra was a government-owned corporation, which means that both the arbitrator and the government should have been particularly vigilant about ensuring a fair process. This raises questions as to why an Australian citizen who had collaborated with the Australian Federal Police (AFP) in their investigation into the unlawful interception of my private telephone conversations faced such severe disadvantages throughout the civil arbitration process.
To illustrate this point, the transcripts from the AFP's second interview with me, conducted on 26 September 1994, explicitly address the threats I experienced. These details can be found on pages 12 and 13 of the Australian Federal Police Investigation File No/1. The lack of inquiry into these matters undermines the integrity of the arbitration process. It highlights a serious failure to protect the rights of an individual who attempted to assist law enforcement in addressing serious misconduct.
On 26 September 1997, Telecommunications Industry Ombudsman John Pinnock formally addressed a Senate estimates committee refer to page 99 COMMONWEALTH OF AUSTRALIA - Parliament of Australia and Prologue Evidence File No 22-D). He noted:
“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.”
No amendment was attached to any agreement signed by the first four COT members allowing the arbitrator to conduct those particular arbitrations entirely outside the ambit of the arbitration procedure, and neither was it stated that he would have no control over the process once we had signed those individual agreements. How can the arbitrator and TIO continue to hide under a confidentiality clause in our arbitration agreement when that agreement did not mention that the arbitrator would have no control because the arbitration would be conducted entirely outside the agreed procedure?
An investigation conducted by the Senate Committee, which the government appointed to examine five of the twenty-one COT cases as a "litmus test," found significant misconduct by Telstra. This was highlighted by the statements of six senators in the Senate in March 1999:
Eggleston, Sen Alan – Bishop, Sen Mark – Boswell, Sen Ronald – Carr, Sen Kim – Schacht, Sen Chris, Alston Sen Richard.
On 23 March 1999, the Australian Financial. Review reported on the conclusion of the Senate estimates committee hearing into why Telstra withheld so many documents from the COT cases, noting:
“A Senate working party delivered a damning report into the COT dispute. The report focused 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 have defied the Senate working party. Their conduct is to act as a law unto themselves.”
Regrettably, because my case had been settled three years earlier, I and several other COT Cases could not take advantage of this investigation's valuable insights or recommendations. Pursuing an appeal of my arbitration decision would have incurred significant financial costs that I could not afford as shown in an injustice for the remaining 16 Australian citizens.
The six senators mentioned above formally recorded how they believed that Telstra had 'acted as a law unto themselves' leading up to and throughout the COT arbitrations; however, where were Dr Gordon Hughes (the arbitrator) and Warwick Smith (the arbitration administrator) when this disgraceful conduct towards the COT Cases was being carried out?