This webpage is a work in progress and only a draft of My Story Warts & All, last edited August 2024  

 

‘Ring for Justice’

A Chronology of Events

By Alan Smith

 

Introduction

 

Until the late 1990s, the Australian government wholly owned Australia’s telephone network and the communications carrier, Telecom (today privatised and called Telstra). Telecom held the monopoly on communications and let the network deteriorate into disrepair. When four small business owners had severe communication problems, they went into arbitration with Telstra. The arbitrations were a sham: the appointed arbitrator not only allowed Telstra to minimise the casualties of Telstra (COT) members’ claims and losses but also bowed down to Telstra and let the carrier run the arbitrations. Telstra committed serious crimes during the arbitrations, yet the Australian government and the Australian Federal Police have not held Telstra or the other entities involved in this deceit. 

While I refrain from recommending that visitors to absentjustice.com avail themselves of the lengthy YouTube video of COT Cases Ann Garms or the Television Channel Nine Sunday Business Program, it is noteworthy that the amalgamation of these recordings, inclusive of my personal 4-minute YouTube recording attached here on  Price Waterhouse Coopers 1, serve to corroborate the veracity of the COT stories, contingent on the accuracy of our own account. Consequently, the perusal of these resources by visitors of absentjustice.com can facilitate independent assessment. The comportment of the Telstra board and its management, in particular Sue Laver, the incumbent Telstra Corporate Secretary, is indicative of disconcerting conduct. In 1998, Sue Laver had the opportunity to disclose to a Senate Committee the falsity of information posited by Telstra regarding the 1993 testing by Bell Canada International Inc at the Cape Bridgewater telephone exchange, to which my business was affiliated.

Visitors to this website who have perused the numerous mini-stories and supporting exhibits have drawn correlations between its content and a comprehensive portrayal of criminal activities encompassing fraud, corruption, depravity, sinfulness, wickedness, and bribery. Consequently, the arbitrator and his consultants administered several arbitration processes outside the agreed ambit of the procedures. Explore the unleashing of fraudulent conduct, thuggery, and criminal legal abuses against the COT Cases. Regrettably, the Australian government-endorsed Casualties of the Telstra arbitration process has been marred by unacceptable abuse, with a thorough and transparent investigation into this criminal conduct still pending.

John Pinnock, the second appointed administrator to the arbitrations and the Telecommunications Industry Ombudsman, formally communicated to the Government and provided testimony to a Senate Estimate Committee on September 26, 1997, after the completion of most arbitrations that:  

"...In the process leading up to the development of the arbitration procedures—and I was not a party to that, but I know enough about it to be able to say this—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 of the ambit of the arbitration procedures”.  ( Prologue Evidence File No 22-D) 

The government has only investigated five of the twenty-one COT arbitration and mediation processes referred to by John Pinnock, as shown in the following link: An Injustice to the remaining 16 Australian citizens.

After the arbitrator accepted Telstra's submission of the Bell Canada International Inc (BCI) report as evidence to halt further investigation into my claims of ongoing telephone issues, I contacted the Canadian government to expose the fraud. This was the same BCI report the Australian government refused to investigate to help support my argument that my arbitration claims should not have been concluded until Telstra could demonstrate that my business was now free from faults after eight years of complaints. Two months after selling my holiday camp to Jenny and Darren Lewis at land value, I had no business component left to sell, as the entire Portland, Cape Bridgewater and most of southwest Victoria knew that the camp had continued to suffer issues for another six years after the arbitration process. (Refer to Chapter 4 The New Owners Tell Their Story, and Chapter 5 Immoral - hypocritical conduct

 

The Canadian Minister's letter was at least something of a Victoria.  

I believe you are taking the most appropriate course of action

I have never received a written response from BCI, but the Canadian government ministers’ office wrote back on 7 July 1995, noting:

"In view of the facts of this situation, as I understand them, I believe you are taking the most appropriate course of action in contacting BCI directly with respect to the alleged errors in their test report, should you feel that they could assist you in your case."   

On August 15, 2024, at 80, I am the sole surviving member among the original four Casualties of Telstra (COT cases). Regrettably, two of the members have passed away, while the remaining individual is currently facing severe illness. In 1994, the Australian Government sanctioned an arbitration process for our four cases pertaining to managing intricate Telstra network telephone faults, otherwise known as Difficult Network Faults (DNF). Our four cases were instrumental in serving as a litmus test and were later joined by sixteen analogous cases.

Two Canadian telecommunications companies, Bell Canada International Inc. (BCI) and DMR Group Inc., were brought to Australia to investigate the telecommunications issues experienced by the Casualties of Telstra group before and during their government-endorsed settlement and arbitration procedures. Lane Telecommunications Pty Ltd from South Australia was also involved, suggesting there may have been a cover-up by the Australian government-owned Telstra corporation. The investigation was limited from the start. Lane Telecommunications was later sold to Ericsson, a Swedish company whose faulty telephone equipment had been installed by Telstra in their Australian exchanges. Ericsson's faulty equipment was a primary subject of arbitration. Despite Lane's involvement in the arbitration investigation, none of the investigation material collected was returned (see Chapter 5 - US Department of Justice vs Ericsson of Sweden).

During the arbitration process, Ericsson's acquisition of Lane raised significant concerns regarding the transfer of sensitive technical and business information acquired by Lane under a confidentiality agreement. Ericsson obtained this information, which encompasses names, contacts, and banking records, without signing any confidentiality agreement related to the COT Cases.

Upon the introduction of Bell Canada International Inc (BCI) to Australia, pivotal evidence was submitted to the arbitrator to establish the testing of telephone exchanges associated with the business. Regrettably, the arbitrator's reliance on Telstra's defence material led to the misrepresentation that BCI tests had resolved the phone problems, disregarding the limitations of the testing equipment utilized by BCI (see Telstra's Falsified BCI Report).

Furthermore, the incomplete investigation by DMR Group Inc. from Canada underscored significant concerns. Their failure to rigorously test the service lines or complete their findings on the arbitration claim rendered critical aspects undiagnosed and unresolved. Notwithstanding the notification to the Canadian government telecommunications minister, the expected assistance was not forthcoming.

It is discernible that a comprehensive and diligent investigation by DMR Group Inc. in Canada should have remained prioritized and may have positively impacted the overall situation.

It has been brought to attention that at least one current Telstra Board member, as well as Telstra's current corporate secretary, Sue Laver, was implicated in withholding pertinent information from the Senate during the period spanning 1997 to 1998. Ms Laver's involvement in allowing false testing results prepared by Bell Canada International Inc (BCI), utilized by Telstra in my arbitration, to be submitted to the Senate 'On Notice' is of significant concern. It is noted that the deliberate provision of known false information to the Senate constitutes Contempt of the Senate, carrying a potential two-year jail term.

As of 2024, Sue Laver has not been subjected to any custodial sentence for being party to this decision or for allowing it to destroy the lives of those COT Cases whose arbitration claims were devalued because of that deception.

Sue Laver's failure to release a public statement refuting my claims, supported by Scrooge - exhibit 62-Part One and exhibit 62-Part-Two and the legal affirmations of three ex-senior Telstra technicians, only serves to delay justice. Telstra's provision of known false BCI information to the Senate didn't just ruin my chance to prove to the arbitrator my telephone problems were still ongoing. It ruined the chances of all the other COT cases, proving their ongoing telephone problems still affected the viability of the arbitration and mediation claims.

The fact that Telstra allowed Simone Semmens to state on Nationwide TV that the Bell Canada International Inc (BCI) proved there were no systemic billing problems in Telstra's network during the four years of the COT arbitrations is bad enough, but to have said it when thousands upon thousands of Australian's had billing problems and that Telstra was using the falsified BCI testing process to win over the COT arbitrator which it did is beyond contempt. This was deception of the worst possible kind, especially after Senator Schacht advised Telstra's Mr Benjamin of his concerns regarding Simone Semmen's statement, inferring Telstra's network was of world standard when both Telstra and BCI knew different.  

The remaining sixteen claimants were subsequently evaluated; however, the phone faults were not rectified during the assessment process for any of the COT Cases. The arbitrator's assessment of losses awarded was approximately ten per cent of each claimant's accountant-estimated direct business losses. In the coming month, I intend to compile and revise information from this website to integrate it into the home page as part of my endeavour to narrate my second story. I invite you to follow my journey each day or week to witness its progression. As evidenced by the attached documents, rest assured that I will present nothing but the truth.

 

I NEED TO FAST FORWARD TO JULY 2009

 

I need to fast-forward to 30 July 2009 to share the statutory declaration with Paul Crowley, CEO of the IAMA. This was provided to him by COT spokesperson Graham Schorer and included a letter dated 4 August 1998 from Mr Schorer to me. This letter, which was received more than three years after my arbitration concluded, sheds light on the arbitrator to the COT Cases arbitrations. In the letter, Mr Schorer conveys information from a previous client of the arbitrator, Dr Gordon Hughes, who notified Mr Schorer of the potential misplacement of some of the arbitration lost claim documents by the head office of Dr Hughes's Sydney law practice.

Whether or not this was the case, the COT Cases were never informed of this possibility. It could have provided them with grounds to appeal part of their arbitration award if they had been. Furthermore, the failure to inform the Australian Federal Police of this possibility during their investigations into the lost arbitration-related documents hindered their official inquiries, in which the COT Cases were involved.

According to this letter dated 30 July 2009, Graham Schorer (COT spokesperson) and ex-client of the arbitrator Dr Hughes (Chapter 3 - Conflict of Interest) wrote to Paul Crowley, CEO of the Institute of Arbitrators Mediators Australia (IAMA), attaching a statutory declaration (see Burying The Evidence File 13-H and a copy of a previous letter dated 4 August 1998 from Mr Schorer to me, detailing a phone conversation Mr Schorer had with the arbitrator early in 1994 regarding lost Telstra COT related faxes. During that conversation, the arbitrator explained, in some detail, that:

“Hunt & Hunt [The company’s] Australian Head Office of was located in Sydney and [the company] is a member of an international association of law firms. Due to overseas time zone differences, at close of business, [the company’s] Melbourne’s incoming facsimiles are night switched to automatically divert to Hunt & Hunt Sydney office where someone is always on duty. There are occasions on the opening of the Melbourne office, the person responsible for cancelling the night switching of incoming faxes from the Melbourne office to the Sydney Office, has failed to cancel the automatic diversion of incoming facsimiles.” Burying The Evidence File 13-H.

Were these lost faxes intercepted by Telstra's secondary fax machine (see Open Letter File No/12 and File No/13 or the arbitrator's office negligence? Numerous faxes originally faxed to the arbitrator's office played a significant role in the COT arbitrations, as shown throughout this website. I later added a reference to these lost faxes as an amendment to the 21 claim documents I provided to the IAMA Ethics and Professional Affairs Committee. It is well documented that government bureaucrats before and during my arbitration alerted the Australian Federal Police to the significance of the faxes that were not arriving at their intended destination during the COT arbitrations (see Evidence - Australian Federal Police Investigations) 

 

THE LOST ARBITRATION-RELATED FAXES

 

In July 2005, fourteen COT Cases met in Brisbane, Queensland, with Senator Barnaby Joyce to discuss their unresolved Telstra issues. This included complaints about lost arbitration-related documents that affected their arbitration submissions, replies to Telstra's arbitration defence, and arbitration appeals. Each COT case was given around four minutes to state their name, case, and why they believed they had not been allowed a proper transparent arbitration.

Many of the fourteen COT Cases mentioned issues with documents, including faxes sent to their claim advisers that never arrived or arrived in a different state from where they were initially faxed. Four cases, including mine, provided conclusive proof to Senator Barnaby Joyce using the Scandrett & Associates report (see Open Letter File No/12 and File No/13. Even in 2024, this report leaves no doubt that faxes sent to politicians had been intercepted before arriving at government ministers' offices. In my case, only the first page arrived at The Hon. Peter Costello's office on 2 November 1998 (see Exhibit 10C - File No/13). At that time, Costello was the Federal Treasurer and was interested in my case.

It was the 9 January 1999 Scandrett & Associates report to The Hon. Senator Ron Boswell that prompted Senator Barnaby Joyce to promise the Australian Government that if they investigate these unlawful claims against Telstra by the fourteen nominated COT Cases, he would cast his crucial Senate vote to privatize the last portion of the government-owned Telstra Corporation.

Please scroll down this Home Page. When you arrive at the image of Senator Helen Coonan, please view the information that follows it, including clicking on the image, and learn what happened after Senator Joyce cast his crucial vote.

 

During the COT arbitrations, the fight was dirty and controlled. 

Later, when Telstra submitted its defence for my arbitration, I learned that Telstra's solicitors, Freehill Hollingdale & Page, acted as Telstra's fault control centre. Eighteen months earlier, I had to register my phone complaints with Denise McBurnie in writing before Telstra would attempt to fix telephone problems. No sooner had I written to Denise McBurnie registering a series of phone faults than I was back on the typewriter, sending my complaints on a fax line that was not working. By mid-1993, I had been seeing two clinical psychologists, Ms. Francolm and Dr. Burnard, to assist me in running my telephone-dependent business with a phone and fax service that was 'Not Fit For Purpose'. The arbitrator refused to investigate my ongoing telephone problems despite my claim advisor, ex-Senior Detective Sergeant of the Queensland Police, Garry Ellicott, who was also an ex-National Crime Investigator. The government brought in the Australian Federal Police to investigate why my fault complaint-registered documents with Denise McBurnie of Freehill Hollingdale & Page had gone missing, along with my Fast Track Settlement Proposal claim documents sent to my lawyers and accountants in Melbourne.

One document I provided to the AFP in 1994 does not state Adelaide or a specific location elsewhere other than when I visited Melbourne. I visited Melbourne and South Australia regularly from 1991 to 1993. Did Telstra even know where I stayed and who with whom? Let us not forget that I was not under suspicion of committing any crime, let alone a serious one, nor was I suspected of being a terrorist. So why were the communications carrier and/or their government minders interested in my contacts and movements? When I showed see AFP Evidence File No 8 to Margaret (my office assistant), she advised me that she had not spoken to anyone about leaving the holiday camp (which was at 5.30 pm, just as described in this Telstra memo).

On October 29, 1993, two weeks before signing our two Fast Track Settlement Proposals (FTSP) with Telstra, Graham Schorer, the spokesperson for Casualties of Telstra (COT), and I requested all parties involved to check our fax lines for security purposes. All parties agreed. This was two weeks before Telstra forced us to abandon our FTSP and sign their arbitration agreements on April 21, 1994. Before this testing process, Graham Schorer at his Melbourne Golden Messenger Courier Service and I at my business, Cape Bridgewater holiday camp, had experienced difficulties sending faxes between our respective offices. An internal Telstra FOI document, K01489, confirms that while Telstra was testing my Mitsubishi fax machine using the COT spokesperson's office as the testing base, they noted the following:

‘During testing the Mitsubishi fax machine some alarming patterns of behaviour was noted”. This document further goes on to state: “…Even on calls that were tampered with the fax machine displayed signs of locking up and behaving in a manner not in accordance with the relevant CCITT Group fax rules. Even if the page was sent upside down the time and date and company name should have still appeared on the top of the page, it wasn’t’

During a received call the machine failed to respond at the end of the page even though it had received the entire page (sample #3) The Mitsubishi fax machine remained in the locked up state for a further 2 minutes after the call had terminated, eventually advancing the page out of the machine. (See See AFP Evidence File No 9)

My 3 February 1994 letter to Michael Lee, Minister for Communications (see Hacking-Julian Assange File No/27-A) and a subsequent letter from Fay Holthuyzen, assistant to the minister (see Hacking-Julian Assange File No/27-B), to Telstra’s corporate secretary, show that I was concerned that my faxes were being illegally intercepted.

An internal government memo, dated 25 February 1994, confirms that the minister advised me that the Australian Federal Police (AFP) would investigate my illegal phone/fax interception allegations. (See Hacking-Julian Assange File No/28)

This internal, dated 25 February 1994, is a Government Memo confirming that the then-Minister for Communications and the Arts had written to advise that the Australian Federal Police (AFP) would investigate my allegations of illegal phone/fax interception. (AFP Evidence File No 4)

In February 1994, the Australian Federal Police (AFP) visited my business at Cape Bridgewater to discuss my claims that I had recently received FOI documents suggesting Telstra had been monitoring my telephone conversations. The AFP was concerned that Telstra had written the names of various people and businesses I had called on CCAS data records, which collated all incoming and outgoing calls to my business (see Hacking-Julian Assange File No 20). The hand-written notes in the right-hand column of this CCAS data include, against dates, the names of people I telephoned and faxed, e.g., 31 January 1994, GM (Golden Messenger), AUSTEL and the Ombudsman. In one instance, the name Faye Smith appeared on several Telstra documents when I phoned my ex-wife. The writing up of my ex-wife's name on Telstra documentation reflects further advice I received from the AFP concerning my phones and/or faxes had been bugged at least since September 1992. This follows from the statements made by Senator Jenkin regarding Telstra's secret surveillance of their employees in 1990, which was because Telstra used similar tactics in January 1994 while in a litigation process with me.

Telstra’s FOI document (M34363) dated 4 February 1994 was not made available to the arbitrator or me during my arbitration, even though Telstra’s FOI numbering system (M followed by a number) indicates to Telstra and the TIO’s office that I was still reporting problems with my fax transmissions during my FTSP process (see Hacking-Julian Assange File No 24).

“I am writing to inform you that members of the group known as the Casualties of Telecom (COT) have contacted my Office regarding the Australian Federal Police enquiries into voice monitoring by Telstra of their telephones. Both Mr Graham Schorer and Mr Alan Smith of COT have informed my Office that they have information on Telstra’s activities in relation to these matters.” (This exhibit was not made avaialable to me during my arbitration)

On 8 February 1994, The Hon Michael Lee, Minister for Communications, wrote to the Hon Duncan Kerr, MP, Minister for Justice: (Note: this document is held in the Government archives.)

“I am writing to inform you that members of the group known as the Casualties of Telecom (COT) have contacted my Office regarding the Australian Federal Police inquires into voice monitoring by Telstra of their telephones.

Both Mr Graham Schorer and Mr Alan Smith of COT have informed my Office that they have information on Telstra’s activities in relation to these matters”.

Question 81 in the following AFP transcripts, Australian Federal Police Investigation File No/1, confirms that the AFP told me that AUSTEL's John MacMahon had supplied the AFP evidence that my phones had been bugged over an extended period. Why did the arbitrator not award me in his official findings concerning this evidence after he was supplied with these AFP transcripts?

"... does identify the fact that, that you were live monitored for a period of time. See we're quite satisfied that, there are other references to it".

My AFP interview transcript on 26 September 1994 describes the Telstra recording of who I phoned or faxed and when. The AFP believed Telstra monitored my calls because the people they recorded were associated with the COT issues. Pages 3-5 of the AFP transcript and other documents I provided to the AFP between February and November 1994 prove that Telstra had listened in on private conversations.

My telephone faults were so chronic and serious in early 1993 that Telstra threatened (the first of two series of threats) that I had to register my ongoing telephone/faxing problems with their outside lawyers, or they would refuse to regard my complaints as genuine.

By July/August 1993, the communications regulator was becoming concerned about Telstra’s approach to our complaints, particularly their continual use of outside solicitors. In October 1993, while the regulator was negotiating with Telstra for a commercial settlement proposal to be put in place for the COT members, the regulator’s chairman made it clear to Telstra’s commercial division that the regulator would not be happy if Telstra’s solicitors were used in future COT matters. This request was ignored, however, and Telstra continued to insist that I register my complaints through their solicitors, even though by then, I was in litigation with Telstra.

On 3 March 1994, this article appeared in the Portland Observer newspaper (AS 773-b), noting:

“Federal Police officers are investigating allegations of possible illegal activity on the part of Telecom Australia.

Officers from the Federal Police visited Portland last week and interviewed Cape Bridgewater Holiday Camp proprietor, Alan Smith, who is one of the four original members of COT (Casualties of Telecom).”

 

A letter dated 2 March 1994 from Telstra’s Corporate Solicitor, Ian Row, to Detective Superintendent Jeff Penrose (refer to Home Page Part-One File No/9-A to 9-C) strongly indicates that Mr Penrose was grievously misled and deceived about the faxing problems discussed in the letter. Over the years, numerous individuals, including Mr Neil Jepson, Barrister at the Major Fraud Group Victoria Police, have rigorously compared the four exhibits labelled (File No/9-C) with the interception evidence revealed in Open Letter File No/12 and File No/13. They emphatically assert that if Ian Row had not misled the AFP regarding the faxing problems, then the AFP could have prevented Telstra from intercepting the relevant arbitration documents in March 1994, thus preventing any damage to the COT arbitration claims. 

Faxed COT arbitration-related documents screened and intercepted 

Fighting on two fronts 

Many of those within the Establishment said that it was unconstitutional to force the COT cases into an arbitration process with Telstra while the Australian Federal Police (AFP) were still investigating Telstra for alleged phone and fax hacking of the COT cases’ businesses and, furthermore, it was acknowledged that it was an unworkable process.  This didn’t stop the arbitrations, however, but it does raise several important questions:

1. How could two separate investigations into Telstra for allegedly unlawful conduct be undertaken by two organisations simultaneously, i.e., an arbitrator and the AFP? As far as we can find, this situation is unheard of in any other Western democracy.
2. While all the COT cases attempted to keep their individual small businesses going while their arbitrations continued, how could they be expected to submit a complex submission to an arbitrator while assisting the AFP with their investigations?
3. Who decided that this situation would be allowed to continue?

Not only was it grossly undemocratic for these small-business people to be put into such a situation, but these two investigations (the one run by the AFP and the arbitrations themselves) were being run concurrently. While these two investigations were being run concurrently, the Commonwealth Ombudsman was also investigating Telstra for acting unlawfully and outside of the Freedom of Information Act (FOI Act, 1984), for NOT supplying the COT cases with our promised FOI documents we needed to support our claims. That investigation started before the COTs signed their arbitrations and continued for five years.

How have many other Australian arbitration processes been subjected to this type of hacking? Is electronic eavesdropping and hacking into in-confidence documentation still happening today during legitimate Australian arbitration?

QUESTIONS ON NOTICE: On 15 February 1994, during my settlement /arbitration process, Senator Richard Alston (Shadow Minister for Communications) put many questions to the Senate Estimates Committee, On Notice, to be answered by Telstra. These are the questions most pertinent to the COT claimants (see Main Evidence File No/29 QUESTIONS ON NOTICE):

1. Could you guarantee that no Parliamentarians who have had dealings with ‘COT’ members have had their phone conversations bugged or taped by Telstra?
2. Who authorised this taping of ‘COT’ members’ phone conversations and how many and which Telstra employees were involved in either making the voice recordings, transcribing the recordings or analysing the tapes?
3. On what basis is Telstra denying copies of tapes to those customers which it has admitted to taping?
4. (A) How many customers has Telstra recorded as having had their phone conversations taped without knowledge or consent since 1990? (B) Of these, how many were customers who had compensation claims, including ex Telecom employees, against Telecom?
5. Why did Telecom breach its own privacy guide-lines and how will it ensure that the revised guidelines will not be open to similar breaches or abuses?
6. Could you explain why a large amount of documents accessed by customers under FOI have a large amount of information deleted, including the names of Telecom employees who wrote and received memos and documents?
7. How many customers who have alleged that Telecom has tapped or bugged their phones without their consent or knowledge are the Australian Federal Police currently investigating?

The response to Question 5 (see Main Evidence File No/29) notes, “…These matters are currently being investigated by the AFP and AUSTEL, and by Telecom;"

It would be inappropriate for Telecom to make any further comments at this stage about possible breaches of the Telecommunications (Interception) Act while the matter is before the Federal Police. However, the Minister will be making a full statement in the near future on action taken to date to remedy apparent procedural problems within Telecom”.

Telstra’s claim (when referring to Question 5 On Notice) that it would be inappropriate for them to comment on these phone interception issues whilst the AFP was still investigating these matters is, in itself, the typical and expected comment that Telstra lawyers would have ensured that Telstra would make, under those circumstances.  No other form of interception investigation by any other authority should have taken place whilst the AFP was still investigating these breaches of privacy issues because that might well have undermined the AFP process.

Telstra is run by 'thugs in suits' 

Telstra threats carried out. 

Page 180 ERC&A, from the official Australian Senate Hansard, dated November 29, 1994. These events stem from my cooperation with the AFP in their investigations into Telstra's interception of my telephone conversations. During the second Australian Federal Police Investigation File No/1 interview conducted at my place of business on 26th September 1994, as part of their investigation into the bugging issues, I was subjected to a series of 93 inquiries. This line of questioning pertained to the interception of my telecommunication services conversations and Telstra's alleged submission of inaccurate information to governmental authorities.

“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?” Senate Evidence File No 31)

Even after I provided the arbitrator with a copy of Senator Ron Boswell's Senate Hansard statement and wrote to the arbitrator and Telecommunications Industry Ombudsman to demand answers from Telstra about why these threats were still being made six months into my arbitration, the arbitrator still officially recorded in his award (the findings) that Telstra had conducted itself appropriately during my arbitration.

The fax imprint across the top of this letter is the same as the fax imprint described in the Scandrett & Associates report (see Open Letter File No/12 and File No/13), which states:

“We canvassed examples, which we are advised are a representative group, of this phenomena [sic].

“They show that

• the header strip of various faxes is being altered
• the header strip of various faxes was changed or semi overwritten.
• In all cases the replacement header type is the same.
• The sending parties all have a common interest and that is COT.
• Some faxes have originated from organisations such as the Commonwealth Ombudsman office.
• The modified type face of the header could not have been generated by the large number of machines canvassed, making it foreign to any of the sending services.”

The fax imprint across the top of this letter dated 12 May 1995 (Open Letter File No 55-A) is the same as the fax imprint described in the January 1999 Scandrett & Associates report provided to Senator Ron Boswell (see Open Letter File No/12 and File No/13), confirming faxes were intercepted during the COT arbitrations. One of the two technical consultants attesting to the validity of this January 1999 fax interception report emailed me on 17 December 2014, stating:

“I still stand by my statutory declaration that I was able to identify that the incoming faxes provided to me for review had at some stage been received by a secondary fax machine and then retransmitted, this was done by identifying the dual time stamps on the faxes provided.” (Front Page Part One File No/14)

It is clear from exhibits 646 and 647 (see AS-CAV Exhibits 589 to 647) that Telstra admitted in writing to the Australian Federal Police on 14 April 1994 that my private and business telephone conversations were listened to and recorded over several months, but only when a particular officer was on duty. 

Does Telstra expect the AFP to accept that every time this officer left the Portland telephone exchange, the alarm bell set up to broadcast my telephone conversations throughout the Portland telephone exchange was turned off every time this officer left the exchange? What was the point of setting up equipment connected to my telephone lines that only operated when this person was on duty? When I asked Telstra under the FOI Act during my arbitration to supply me all the detailed data obtained from this special equipment set up for this specially assigned Portland technician, that data was not made available during my 1994.95 arbitration and has still not been made.

 

Forced to proceed with arbitration

Five years too late

On March 23, 1999, the Australian Financial Review conducted a thorough investigation into the conduct of twenty-one arbitration and mediation processes, including my own, which had been finalized almost five years prior. The findings of their investigation prompted the Senate Estimates Committee to issue a statement.

“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 [Telstra] have defied the Senate working party. Their conduct is to act as a law unto themselves.”  

The following six senators formally recorded how they believed Telstra had 'acted as a law unto themselves' throughout the COT arbitrations. Where were Dr Gordon Hughes and Warwick Smith when this disgraceful conduct towards the COT Cases was carried out?  

Eggleston, Sen Alan – Bishop, Sen Mark – Boswell, Sen Ronald – Carr, Sen Kim – Schacht, Sen Chris, Alston and Sen Richard) 

It is crucial to emphasize to all parties reading this account that the COT Cases agreed to the arbitration process because the Australian government, along with several senators, prominent lawyers, and the Canberra media, were officially advised by the Telecommunications Industry Ombudsman (who was the administrator of the proposed arbitrations) that the COT Cases arbitrations would be conducted under the Arbitration Procedure (the Act). Furthermore, we were informed that Telstra and the government would provide the documents we requested under the Freedom of Information Act.

To substantiate this understanding, John Pinnock, the second appointed administrator (see above), formally communicated to the Government and provided testimony to a Senate Estimate Committee on September 26, 1997, after the completion of most arbitrations that:  

"...In the process leading up to the development of the arbitration procedures—and I was not a party to that, but I know enough about it to be able to say this—the claimants were told clearly that documents were to be made available to them under the FOI Act." ( Prologue Evidence File No 22-D) 

I reiterate that it's concerning how the COT Cases were burdened with the financial responsibility for arbitration fees to resolve their ongoing telephone problems. They were essentially left with the choice of funding an arbitration to compel Telstra to fix these problems or operating their businesses at a significant disadvantage due to unresolved telecommunication issues. 

 

Infringe upon the civil liberties.

Most Disturbing And Unacceptable 

On 27 January 1999, after having also read my first attempt at writing my manuscript absentjustice.com, Senator Kim Carr wrote:

“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.” 

Telstra had 47 of Australia's most prestigious law firms on retainer.

We COT Cases never had a chance 

Telstra was using public money to destroy the truth 

 

The initial Telecommunications Industry Ombudsman (ex-lawyer) assumed the administrator role in the commercial assessment processes and exerted pressure on the COT Cases. This coercion led to abandoning the operational and executed Fast Track Settlement Proposal (FTSP) in favour of Telstra's highly legalistic arbitration rules, which incorporated a specific confidentiality clause not present in the FTSP Commercial Assessment Process. The threat of discontinuing the administration of the ongoing commercial assessment process, previously endorsed by Telstra and the Australian Government, dealt a severe blow to the claimants. Unbeknownst to the COT claimants, it was subsequently disclosed that Warwick Smith had permitted Telstra's legal representatives to devise this new highly legalistic agreement, thereby benefiting Telstra to the detriment of the COT Cases.

The world of political corruption 

Graft, malfeasance, and nepotism

The documented evidence indicates that Telstra's CEO and the entire board possessed foreknowledge of millions of dollars being unlawfully withdrawn from government funds. These funds were utilized to exert control over 45 prominent legal firms, thereby obstructing ordinary citizens with claims against Telstra from pursuing legal remedies. This crucial information is publicly available on absentjustice.com, shedding light on pervasive unethical practices and erroneously billed accounts.

Senator Mark Bishop's denouncement of Telstra's utilization of these 45 prominent legal firms against ordinary Australian citizens and small business operators, who had lodged complaints solely regarding inadequate service, is accessible at parlinfo.aph.gov.au/parlInfo/search/displaychamberhansards1999-03-11. His condemnation of this unjust practice underscores the enormity of a government-owned entity, Telstra, employing public funds in opposition to the public interest, constituting an abuse of power. The enduring absence of an investigation into this scandalous matter is noteworthy.

Heavy-handed tactics 

$24 million of moneys being used to crush these people 

On March 11, 1999, after Dr Gordon Hughes and Warwick Smith utilized heavy-handed tactics to handle the COT Cases, their arbitrations were concluded, with less than 11 per cent of the claims being met. Senator Kim Carr criticized the handling of the COT arbitrations, as evidenced in the following Hansard link shows:

Addressing the government’s lack of power, he said:

“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 when 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 parlinfo.aph.gov.au/parlInfo/search/displaychamberhansards1999-03-11)

Telstra's misuse of public funds, which should have gone to the Australian government instead of paying yearly retainers to 45 leading legal firms, is concerning. Moreover, during the COT arbitrations, they spent an additional $24 million to suppress sixteen Australian small business operators, hindering their efforts to prove events over two decades. This also affected around 120,000 similar COT cases, where individuals were fighting Telstra for a reassessment of their wrongly billed accounts. Senator Kim Carr's statement about the $24 million is deeply troubling for COT cases. 

Senator Schacht was even more vocal:

 

Who had the authority in Australia to convince the senator to investigate and grant damages to only five of the twenty-one COT Cases with unresolved FOI issues?

“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.” (See parlinfo.aph.gov.au/parlInfo/search/displaychamberhansards1999-03-11)

Welcomed news for five COTs, but not for the remaining sixteen COT cases discarded by the senate, An Injustice to the remaining 16 Australian citizens

Treacherous and unconscionable conduct 

                     

15 September 2005, Senator Barnaby Joyce writes to me:-

“As a result of my thorough review of the relevant Telstra sale legislation, I proposed a number of amendments which were delivered to Minister Coonan. In addition to my requests, I sought from the Minister closure of any compensatory commitments given by the Minister or Telstra and outstanding legal issues. …”

“I am pleased to inform you that the Minister has agreed there needs to be finality of outstanding COT cases and related disputes. The Minister has advised she will appoint an independent assessor to review the status of outstanding claims and provided a basis for these to be resolved.”

“I would like you to understand that I could only have achieved this positive outcome on your behalf if I voted for the Telstra privatisation legislation.” (Senate Evidence File No 20)

Once Senator Joyce had cast that crucial vote, however (the one vote that was hanging in the balance), and had, therefore, made history for the Telstra Corporation and the Liberal-National Coalition Government, Senator Coonan reneged on her promise with a decisive back-flip, as many of the letters collected on this website so clearly shows.  

In an attempt to salvage something from this event, Senator Joyce compromised with the Department of Communications, Information Technology and the Arts (DCITA), who agreed that they would assess the claims of any of the 14 COTs interested in being involved. The Casualties of Telstra – chronology of events (see Absentjustice Part 1, 2 and 3 describes how, once the government secured Senator Joyce’s vote, they did a back-flip and refused to appoint anyone other than their own government-employed assessors, rather than the independent assessor that had been promised to Senator Joyce.

This internal Coalition government email dated 22nd September 2005, concerning the agreed-to COT commercial settlement proposal, from Nikki Vajrabukka notes:-

“Key issues for consideration include:

• Analysis of Senator Joyce’s request, and Minister’s response
• What the Minister can and can’t do
• Whether there is any basis to re-open the investigations/appoint an independent assessor
• If so, who will that be?
• What powers does the Minister have to direct a person to do so (for example direct the TIO to revisit the cases?)
• Whether there were any compensatory commitments or warrants of compensation given by the Minister, the Department or Telstra.”​ (Refer to GS 420 File  GS-CAV Exhibit 410-a to 447

Please note that the question of whether the Minister had the power to grant a Commercial Assessment was only raised with Senator Joyce after the Coalition Government secured his crucial vote for the full privatisation of Telstra.

29 September 2005, David Lever, Department of Communications, Information Technology and the Arts, sends an internal email to a number of Department Personnel regarding an Independent Assessor:-

“Matt Stafford rang to say that the Minister wants a draft letter to Senator Joyce by Friday next week that:

• re-states what she said she would do in her last letter to him;
• demonstrates that processes are in place to meet her commitment;
• indicates the cases/persons who the independent assessment would cover, and
• asks Senator Joyce whether this should meet his needs. …”

“I suggest that we do all we can to restrict coverage to the 16 COTs that were considered by AUSTEL in its 1994 report as inclusion of any others without some justification, eg that they were mentioned in the Senate’s 1999 report on COTs, would risk irresistible pressure to extend to numerous others who have had disputes with Telstra over the past 10 years. …”

“I also suggested that there may be advantages in appointing ACMA as the independent assessor rather than a consultant to the Department. He has not opposed to this idea.”
(Refer to GS 421 File  GS-CAV Exhibit 410-a to 447

Bullet point 2 above confirms there was a process in place to meet Senator Helen Coonan’s commitment given to Senator Joyce for his vote to allow the government to privatise Telstra. So why did the Minister’s Department not honour that commitment once Senator Joyce cast his vote?  This misleading and deceptive, unconscionable conduct caused the COT Cases and their families unmeasurable grief, trauma and heartache.

This internal email dated 18 October 2005 to Senator Helen Coonan states:-

“Senator Joyce has written to you seeking urgent advice on your proposed approach to the conduct of independent assessments of various claims against Telstra by customers or former customers or contractors of Telstra.

We propose you ask the Australian Communications and Media Authority (ACMA) to conduct the assessments. …

There is significant risk for the Government if expectations in relation to compensation are created among claimants that cannot be met by the Government.” (Refer ro GS 422 File  GS-CAV Exhibit 410-a to 447

Exhibit GS 423 is an unsigned Government memo from Senator Coonan’s office, received by the Cot cases during their FOI requests to the Minister’s office regarding this assessment process.

“According to Minister’s understanding, assessor to:

• review the status of all outstanding claims and
• provide a basis for any sustainable claims that have not been resolved through earlier processes to negotiate a possible settlement with Telstra”

“Possible Loopholes

‘sustainable claims not resolved through earlier processes’ – on the basis that information provided by the claimants raises no new issues, particularly regulatory issues that require addressing by the Minister or the ACA/ACMA.

If concerns relate to conduct of Telstra, then these should be raised with the Commonwealth Ombudsman?

If the CoTS have evidence of unlawful activities, these should be brought to the attention of the police or relevant law enforcement authorities.” Refer to GS 423 File GS-CAV Exhibit 410-a to 447 )

19 October 2005,  David Lever, advisor to Senator Coonan, emails Departmental Personnel:-

“As discussed with Andrew yesterday, the minister has signed and sent a letter to Barnaby Joyce that deals with the above and local presence plan issues. We have not seen it but I made comments on the draft sent yesterday afternoon by matt, seeking to retain the tight constraints on the scope of the assessment, which he had relaxed.”

Simon Bryant responds:-

“I think Jodi maybe getting confused about what the assessment is meant to do (or at least what we are recommending) ie an assessment of process and what further resolution channels may be available to people. We are arguing strongly that the assessment should not be about the merits of each case.” (Refer to File 424 GS-CAV Exhibit 410-a to 447 )

My question here is:

1. Who was Simon Bryant, to argue strongly “that the assessment should not be about merits of each case”?
2. How can an independent commercial assessment process be independent, if those administering the process seek to retain tight constraints on the scope of the assessment process?
3. Why did the Federal Government give Senator Joyce its commitment, in exchange for his vote to allow the Telstra privatisation bill to be passed? Then, as soon as they secured his vote, renege on that commitment?

The statement made by Simon Bryant, another DCITA bureaucrat's that: 

“I think Jodi maybe getting confused about what the assessment is meant to do (or at least what we are recommending), i.e. an assessment of process and what further resolution channels may be available to people. We are arguing strongly that the assessment should not be about the merits of each case.” (refer to GS 424 File  [document|1248] does not exist ) shows how far these government bureaucrats went to discredit the merit of our claims.

2 December 2005:  David Lever emails TIO John Pinnock:-

“Subject: independent assessment of claims against Telstra …

“Some of the former ‘COTs’ are among the 22 who will be asked if they wish to participate in the process. …

“The assessment will focus on process rather than the merits of claims, including whether all available dispute resolution mechanism have been used.” (GS 425)

This email from David Lever does not match the promises given to Senator Barnaby Joyce by Senator Helen Coonan.

The Hon David Hawker, Speaker in the House of Representatives assists me in my independent assessment process

As shown below: worse was to come, however. I received a copy of an email, dated 3 March 2006, sometime after the end of my April 2006 government-endorsed assessment process. This email was originally sent to a senior ex-government communications bureaucrat who was a government liaison officer for Telstra for his advice on how to go about assessing my 2006 claim (see Senate Evidence File No 18).

10 March 2006:  The Hon David Hawker writes to me:-

“I wish to acknowledge receipt of your correspondence dated 23 February and 27 February along with your facsimile transmissions of 6 and 9 March. I will ensure this material, including the corrected version, is forwarded to Minister Coonan…” (Refer to GS 442 File GS-CAV Exhibit 410-a to 447 )

As one of the many examples, I have exposed on this website as a testament that in my case, these pen-pushing power - bureaucrats have not acted impartially when officially investigating my claims lodged with the government on this occasion under the direction of the Department of Communications, Information Technology and the Arts (DCITA). I have used here the letter dated 10 March 2006, from me to Liz Forman, Acting General Manager, DCITA who, along with her other DCITA pen-pushing bureaucrats, was one of the appointed assessors of my 2006 independent assessment process agreed to by then Hon Senator Helen Coonan so as to secure the one crucial vote needed from the then-Senator Barnaby Joyce (who is 2021, became the Deputy Prime Minister of Australia for the second time. My 2006 independent assessment process was one of the ten amendments agreed to by the John Howard government if Senator Barnaby cast his crucial vote in the Senate to pass the final vote allowing Telstra to be privatized. However, these DCITA  public servants instead of impartially assessing my claims against Telstra, DCITA sort the advice from Telstra as to the validation of my official DCITA claim, which at that point if time in March 2006, had cost me above $12,000 in secretarial and professional fees as The Hon Barnaby Joyce Deputy Prime Minister is very much aware. 

In my 10 March 2006 letter to Liz Forman (one of the government assessors appointed on behalf of the government to assess my privacy issues and my claims Telstra had perverted to course of justice during my 1994/95 arbitration I stated that:

"Although you have stated in your letter that “...the assessment process will not extend to an examination of whether the law was broken by Telstra....” I have been advised that it is mandatory, under Commonwealth law, for DCITA and/or the Minister to notify the Attorney General of any unlawful activities they may uncover during official department investigations". (Refer to exhibit AS 614 File  AS-CAV Exhibits 589 to 647

17 March 2006:  On the 17 March 2006 David Lever, Manager, Consumer Section, Telecommunications Division (a further government bureaucrat) wrote to me in response to my letter to Ms Forman noting:

"Thank you for your letter of 10 March 2006 to Ms Forman concerning the independent assessment process. If the material you have provided to the Department as part of the independent assessment process indicates that Telstra or its employees have committed criminal offences in connection with your arbitration, we will refer the matter to the relevant authority". (Refer to exhibt AS 657 File  AS-CAV Exhibits 648-a to 700

The information in our story on this website indicates that Telstra employees have committed criminal offences in connection with my arbitration as our  Telstra's Falsified BCI Report  the Telstra's Falsified SVT Report  page so clearly shows. Yet these three reports were NOT taken into consideration by the government bureaucrats namely Liz Forman and David Lever.

A further Pen Pusher powerful - Bureaucrat  Nikki Vajrabukka from the Department of Communications, Environment, Technology and the Arts (DCITA sent an internal email to David Lever on 3^rd March 2006, informing him that she had emailed David Quilty (a previous government Pen Pusher power - Bureaucrats who were now a Telstra Government Liaison Officer (AS 1042) at david.quilty@team.telstra.com asking for his assistance in addressing my March 2006 DCITA submission which described how, during my arbitration, Telstra had knowingly submitted three fundamentally flawed reports as official defence documents namely  Telstra's Falsified BCI Report  the  Telstra's Falsified SVT Report  and the  Tampering of Evidence .  Sending this email is much like asking a criminal if they should be charged in relation to crimes they have committed after being caught with the stolen goods. 

It is also interesting to note that, before Mr Quilty moved to Telstra, he was Chief of Staff to the DCITA Minister (then Senator Richard Alston) during the time that I was requested to provide the Minister with any further damning evidence against Telstra and the unlawful way in which they had been allowed to conduct their arbitration defence of the COT Cases claims. In fact, when I wrote to Philip Gaetjens (Principal Advisor to The Hon Peter Costello, who was then the Federal Treasurer) on 12 November 1997, I provided conclusive evidence of the way Telstra had perverted the course of justice during their defence of my arbitration claims which included the evidence now attached to  Telstra's Falsified BCI Report  the  Telstra's Falsified SVT Report  and the  Tampering of Evidence  reports.

On 3 December 1997, documents show that Mr Gaetjens passed my evidence on to Mr Quilty (in his position as Senator Alston’s Chief of Staff). How could the DCITA process remain independent if Mr Quilty was evaluating the claims against his new employer (Telstra), particularly since:

In some cases, those claims were that persons with access to Telstra's network had continued to intercept my faxes after the conclusion of my arbitration.  The evidence to support those allegations had previously been supplied to the DCITA in January 1999 prepared had been signed under oath in January 1999 by two renowned technical consultants (see Open Letter File No/12 ,  Senate Evidence File No 31 ) and was now supplied again by me in my March 2006 submission.

It is also important to note David Quilty was once Chief of Staff of DCITA to the Minister for Communications Senator Richard Alston, as well as an advisor to the Prime Minister, John Howard? This seems to demonstrate that public officials i.e., the pen-pushing powerful - bureaucrats live in a different world to most of Australia – a world where there is no meaning to the term “conflict of interest” and/or mutual respect for a fellow Australian citizen.

The final DCITA assessment on my submission found in favour of Telstra, and lo and behold, David Quilty ended up with a senior executive position in Telstra.

Peta Credlin is clearly showing by the content of her May 2021 newspaper article that the Australian public has a right to know that incidences like mine which I have proved did happen during my official DCITA assessment process should be exposed as I have done on this website.

Telstra’s unlawful conduct towards Australian citizens has been proved, but Government Ministers and officials have concealed those crimes from the public under Parliamentary Privilege and then written to the victim of the crimes, advising that the best thing that victim can do to find any justice is to personally take the huge Telstra Corporation to court have already proved Telstra’s guilt as shown in our story.

19 April 2006: my letter to the Hon Senator Helen Coonan (Refer to exhibit AS 615-A File  AS-CAV Exhibits 589 to 647

"In regard to my current claim, Mr Lever of DCITA had notified me that, if DCITA found I have proved that Telstra had carried out any unlawful acts during my arbitration, then the evidence would be provided to the relevant authority. Then in a later telephone conversation with Mr Lever, I was told that he had not found any evidence in my claim to show that Telstra had perverted the course of justice".           

29 April 2006: my letter to the Hon David Hawker, Speaker in the House of Representatives notes:

"Over the years however I have explained to you some of the problems I have encountered with faxes and emails that ‘go missing’ or arrive late or faulty. The apparent interference in my emails has now forced me to arrange for Ronda Fienberg, my Melbourne editing service to send emails out on my behalf, from her computer and email address, because emails often don’t arrive at their  correct destination when I attempt to send them from my emails address.’

 Please note the footnote in Alan’s letter from Ronda Fienberg states:

Mr Hawker, I feel obliged to add to the information Alan has provided here. I have run a small editing support business from my home since 1991 and first began assisting Alan in mid-1994. Until then I had never had a problem receiving or sending faxes for myself, or on behalf of my clients, to anywhere in the world, but I continually (still) have problems with Alan’s faxes which often come through with the words drawn out down the page and therefore unreadable, or with the page cut off half way down. 

24 May 2006,  Senator Coonan responds to Hon David Hawker MP:-

“Mr Smith has indicated that he would like the terms of reference for the assessment to be wider, requiring the Department to make judgements about the fairness of the arbitration process undertaken by Dr Gordon Hughes, under the administration of the Telecommunications Industry Ombudsman, in 1994. While this is understandable, it is not reasonable to expect the Department or indeed any other person at this point in time to make judgements about the circumstances surrounding Mr Smith’s arbitration. The terms of reference for the assessment are therefore more forward looking, aimed at identifying whether any further dispute resolution processes may be available to be pursued by claimants and Telstra in order to resolve their disputes.” (Refer to exhibit GS 445-b File  GS-CAV Exhibit 410-a to 447 )

This statement by Senator Helen Coonan:-

1. This does not coincide with the commitment given by Senator Coonan’s advisor, David Lever, 17 March 2006 me, prior to me signing the agreement:-“If the material you have provided to the Department as part of the independent assessment process indicates that Telstra or its employees have committed criminal offences in connection with your arbitration, we will refer the matter to the relevant authority.” (Refer to exhibit AS 321 File  AS-CAV Exhibit 282 to 323  
2. Does not coincide with her commitment given to Senator Barnaby Joyce:-

“As a result of my thorough review of the relevant Telstra sale legislation, I proposed a number of amendments which were delivered to Minister Coonan. In addition to my requests, I sought from the Minister closure of any compensatory commitments given by the Minister or Telstra and outstanding legal issues. …”

“The Minister has advised she will appoint an independent assessor to review the status of outstanding claims and provide a basis for these to be resolved.”

“I would like you to understand that I could only have achieved this positive outcome on your behalf if I voted for the Telstra privatisation legislation.”
(GS 432)

The one crucial vote the Government needed to pass the Telstra privatisation – Senator Barnaby Joyce’s vote – was given on the basis of a commitment that Senator Coonan had no intention of honouring – that an independent assessor would be appointed to assess the merits of each COT case’s claims.

27 March 2006,  The Hon. David Hawker writes to me:-

“A note to acknowledge receipt of your letters dated 24, 25, & 26 March pertaining to your request for an independent assessment. Thank you also for forwarding Darren Lewis’ letter of 25 March consenting to being interviewed under oath to support your claim that the phone and fax faults continued long after your arbitration.”

“Please be assured representations have been made today to the Minister for Communications and I have supplied Senator Coonan with copies of all above-mentioned letters.” (Refer to exhibit GS 443 File  GS-CAV Exhibit 410-a to 447 )

17 July 2006:  In this letter to Senator Helen Coonan, I note:

"I will not attempt to include all of the numerous other alarming incidents that have occurred in relation to my battle with Telstra, but you may be interested to know that when the Victoria Police Major Fraud Group were investigating my complaints between 1999 and 2001, I sent a number of faxes to the Police Barrister, Neil Jepson where on at least two occasions they did not reach his office even though Telstra included them on my subsequent bill, and my fax journal print-out shows they were sent successfully.   

Documented evidence now included in my current submission to the DCITA independent assessment confirms that other faxes sent from my office between 1994 and 2002 were still being intercepted by unknown parties, before they arrived at their intended destination". (Refer to exhibit AS 615-B File  AS-CAV Exhibits 589 to 647

8 and 10 August 2006: Exhibit AS 517 File  AS-CAV Exhibits 495 to 541  is Witness Statement dated 10 August 2006 (provided to the DCITA) by Ann Garms and sworn out by Des Direen - ex-Telstra Senior Protective Officer, eventually reaching Principal Investigator status.  Mr Direen has been brave enough to reveal that, in 1999 / 2000, after he left Telstra, he assisted the Victoria Police Major Fraud Group, in particular Rod Kueris, with their investigations into the COT fraud allegations.  I was called into that investigation as a witness 

Points 12 to 18 in Mr Direen’s statement explained that

“From what (he) observed on this day, and applying the knowledge that (he) gained during (his) twelve years at Telstra, (he had) no doubt in (his) mind that the phones at Rod KUERIS’s home address were possibly interfered with".

Within a few weeks of Mr Direen having assisted the Major Fraud Group with their investigations, it became apparent that Mr Kueris was very distressed. Both Graham (COT Spokesperson, I also reported to Mr Kueris and the Barrister for the Major Fraud Group that I believed I was also under surveillance during those investigations.

Exhibit AS 517 is also a witness statement dated 8 August 2006, prepared by Bob Hynninen, Public Servant (Australian Taxation Office), formerly Detective Sergeant of the Victoria police. At point 3 in this statement, Mr Hynninen notes:

"I can recall that during the period 2000/200, I had arranged to meet Detective Sergeant Rod KURIS from the Victoria Police Major Fraud Squad at the foyer of Casselden Place, 2 Lonsdale Street, Melbourne. At the time, I was assisting Rod with the investigation into alleged illegal activities against the COT Cases.

Rod then stated that he wanted me to follow him to the left side of the foyer. When we did this he then directed my attention to a male person seated on a sofa opposite our seat. He then told me that the person had been following him around the city all morning. At this stage Rod was becoming visibly upset and I had to calm him down.Rod kept on saying that he couldn't believe in what was happening to him. I had to again calm him down".  

Points 21 and 22 in Mr Direen’s statement also record how, while he was a Telstra employee, he had cause to investigate 

“… suspected illegal interference to telephone lines at the Portland exchange” but, when he “… made inquiries by telephone back to Melbourne" (he) "was told not to get involved and that another area of Telstra was handling it”  and that “... the Cape Bridgewater complainant was a part of the COT cases”.

Ann Garms, a COT case member, provided these two witness statements to the DCITA after discussing them with Senator Barnaby Joyce.  

31 August 2006: David Hawker MP wrote to me noting:

Many thanks for keeping me informed. As requested, issues concerning privacy breaching have been raised with Senator Coonan’s office for your meeting with the Minister set for 6 September 2006".  (Refer to exhibit AS 578 File  AS-CAV Exhibits 542-a to 588  

My privacy concerns were not addressed during this meeting. However, as shown below for the date of 17 May 2007, Senator Helen Coonan did write to me on this matter, noting:

"...I also appreciate the depth of feeling regarding the matter and suggest you consider whether any court proceedings may be your ultimate option" (Refer to exhibit AS 616-B) File  AS-CAV Exhibits 648-a to 700 )

3 November 2006: Senator Helen Coonan wrote to David Hawker, Speaker In the House of Representatives, stating:

"Thank you for your representation of 17 August 2006 on behalf of Mr Alan Smith regarding Mr Smith’s allegations that Telstra monitored his phone calls and emails during an arbitration process with Telstra. The interception of emails and monitoring of phone calls is an offence under the Telecommunications (Interception and Access) Act 1979. Mr Smith should consider his dispute through the dispute resolution bodies, including his State Office of Fair Trading, the Competition and Consumer Commission, the Australian Communications and Media Authority state, and the courts". (Refer to exhibit AS 616-B File  AS-CAV Exhibits 648-a to 700

17 May 2007: The Hon. Senator Helen Coonan wrote to me noting:

"I have now made both formal and informal representations to Telstra on behalf of the CoTs. However, Telstra’s position remains that this is a matter that is most appropriately dealt with through a Court process. Telstra is not prepared to undertake an alternative means of pursuing this matter. I also appreciate the depth of feeling regarding the matter and suggest you consider whether any court proceedings may be your ultimate option". (Refer to exhibit AS 616-B  File  AS-CAV Exhibits 648-a to 700       

Indeed, it was Senator Helen Coonan’s responsibility, as the Minister for Communications, Information Technology and the Arts, to instigate an official enquiry into why Telstra continued to intercept in-confidence documents leaving either my office (or residence), the offices of various Senators and the Commonwealth Ombudsman’s office during and after the COT arbitrations?

Why was it left open to a citizen of Australia to take Telstra to court for intercepting documents during and after their government-endorsed arbitration when the Senate Estimates Committee had also been advised that some of these faxes were intercepted, leaving Parliament House?

It is important to note that the conclusive evidence of faxes being intercepted during and after my arbitration was provided to Senator Helen Coonan in person by The Hon David Hawker MP, Speaker of the House of Representatives at the time. This evidence confirms that my arbitration-related faxes, including my correspondence to Hon. Peter Costello, the Federal Treasurer (see Exhibit 10C - File No/13), were intercepted via Telstra's network. 

This statement underscores Telstra's significant influence over government ministers. It is unreasonable to expect me to resort to legal action against Telstra for interception of documents to and from government ministers. I question why Senator Coonan did not correspond with the Hon. David Hawker, MP, to convey this message. Given that Hon. David Hawker, MP, provided this evidence to Senator Coonan regarding the intercepted documents, he should have received this correspondence, and I should have been furnished as copied.

I reiterate that this issue underscores the considerable influence exerted by Telstra over government ministers.

The Hon Senator Helen Coonan and the DCITA bureaucrats who abused their power during the DCITA Independent Assessors used exhibit AS 639 File  AS-CAV Exhibits 589 to 647 , headed “Department of Communications Information Technology and the Arts – Casualties of Telstra (COT) Background And Information For Ministers Office” as a guide to the validity of the COT case issues including my previous arbitration and fax interception issues, but Exhibit (AS 639) does not include what we have shown here on this website (see example below).

It is becoming increasingly apparent that due to Australia's spin-doctoring bureaucrats not reporting the truth in government archives for future reference purposes, many local and international students are not learning the truth concerning Australia's history.

It is clear from the Senate information below (which cannot be refuted) beyond all doubt that the report used by the DCITA assessors, namely AS 639 File  AS-CAV Exhibits 589 to 647, mentions what the nine senators found between June 1997 and March 1999. Had the DCITA assessors been provided with the following government records, including the other COT Cases whose 1994/95 claims were reassessed in 2006 by the DCITA assessors?

Having doctored information in the government archives has once again denied the COT Cases the justice they deserve.

How can the non-reporting of these facts be seen as Supporting Honest History?

Alan Smith purchased the Cape Bridgewater Holiday Camp in November 1987, and the hand over of the business to Alan and his wife, Faye, took place in February 1988. There was no disconnection or reconnection of the phone or fax service; the accounts were simply transferred into their names, maintaining the same business names associated with the same contact numbers.

This is the chronology of events and documents pertaining to ‘Ring for Justice’, a book detailing the events that ensued.

 

Setting the Scene

19^th April 1988: Telstra records one of Alan’s complaints Exhibit (AS 1). Alan had driven approximately twenty kilometres from the Camp into Portland to do some shopping when he realised he had left his shopping list behind, so found a public phone to ring his wife, Faye. He was stunned when, instead of reaching Faye, he twice reached a recorded message stating the phone had been disconnected. Alan rang Telecom’s fault centre and was told Telecom would investigate the problem. Finally, he decided to try to ring the camp again to check the purchases against the list. This time the phone was engaged and he assumed Faye was talking to a friend or, hopefully, a prospective customer.

When Alan arrived back at the camp Faye advised him she had not answered, or made any phone calls the entire time he had been gone.

26^th April 1988: Telstra records another one of Alan’s complaints (AS 1).

2^nd & 24^th May 1988: Telstra records two more of Alan’s complaints (AS 1).

One of the faults frequently experienced with the phone at the camp were call drop-outs.  If Alan or his wife had rung the person themselves, this was not such a great problem at first since they could just redial, although it did cost them another STD call. The problem became much worse if they couldn’t reconnect (and often the line remained dead for some time), or if the call was inbound (as the caller had to bear the cost of redialling). If the call had come in to the camp, particularly if it was one of the few business enquiries that managed to get through at all, it was very frustrating for Alan or Faye to wait and wait in the hopes of the caller ringing back, ultimately causing a loss of prospective clients.

 

2^nd & 6^th September 1988: Telstra continues to record Cape Bridgewater fault complaints.

 

The phone problems worsened. Often the line remained dead for some time after the preceding call had been terminated. This problem was not often noticed until the receiver was lifted to dial out of the business. (AS 1) 

 

6^th & 10^th January 1989: As the weeks went by Alan and Faye knew something was amiss as their new business should have been flourishing by now. They began to wonder if their decision to move to Cape Bridgewater was the right one. Family arguments ensued as Alan pushed to sell their beautiful family home in Melbourne and asked his wife, Faye, to give up her thriving dressmaking business in order to finance their new endeavour.

The business lost due to the phone issues was creating constant stress and certainly attributed to the breakdown of Faye and Alan’s marriage.

AUSTEL's 2/3 March 1994 draft Cape Bridgewater report (AS 487) offers enough evidence to show that Telstra had been aware of these problems, yet continuously denied them (AS 1).

It is important to note here that this Austel report (AS 487) was not released to Alan by ACMA (Australian Communications and Media Authority, and Austel’s new name) until 19 November 2007, some 13 years after it was drafted, and was only released as it was requested under Freedom of Information, and not released in full. This supposedly ‘secret’ and very damaging document is referred to many times throughout this chronology.

20^th October 1989: Local Telstra technicians had, by then, assured him there were no real problems with the Cape Bridgewater exchange, and that once the new RCM exchange was installed any lingering ongoing congestion problems would be eliminated.

 

Interception Issues / Criminal Conduct

3^rd June 1990: This newspaper article (see below) from The Australian (AS 765-g) states under the heading: Telecom ‘spying’ on its employees further supports pages 1 to 6 of the Australian Federal Police (AFP) transcripts and their concern that Telstra had been hand-writing the names of various people and businesses Alan had been calling on the side column of the CCAS data records which collates all incoming and outgoing calls to Alan's business (AS 765-f).

This newspaper article states

"Democrat Senator Jean Jenkins told the Senate last week Telecom’s activities including bugging workers’ homes.

She also said:

“… the accusations were contained in a statement by a former member of Telecom’s Protective Services branch. Senator Jenkins said the man claimed:

and some of those claims were:

• He and other Telecom employees and private investigators hired by Telecom did secret surveillance on hundreds of compensation recipients.
• He had been directed by his superior to use whatever methods to get the desired results, even when it was obvious the claimant was genuinely injured.
• Claimants have had a “C.CASS run” on their homes, which is a procedure where a computer can print out all numbers dialled on a home phone."

The hand-written notes in the right hand column of this CCAS data (AS 765-f) include, against various dates, the names of people that Alan had telephoned and/or faxed on the 31^st January 1994. e.g. GM” (Golden Messenger); AUSTEL; and the Ombudsman.  In one instance the name “Faye Smith” has been inserted when Alan had phoned his ex-wife. This supports the statements made by Senator Jenkins (above) regarding Telstra’s secret surveillance of their own employees in 1990 because here we have Telstra using the same practices in January 1994, and more disturbingly, while they were in litigation with Alan. 

Pages three to five of the transcript of Alan’s interview with the Australian Federal Police (AFP) on 26^th September 1994 (AS 765-D) relates to Telstra’s recording of who Alan phoned or faxed, and when. 

The AFP believed that Telstra had monitored Alan’s calls because all the people Telstra had recorded were associated with Casualties of Telstra (COT – refer glossary) issues. These three pages from the AFP transcript, together with other documents that Alan provided the AFP between February and November 1994, prove that Telstra had been listening in on private conversations prior and during his Government-endorsed arbitration. 

Australian Federal Police transcripts, (AS 765-D), also support Alan’s belief that, during late 1992 and early 1993 the Cape Bridgewater Holiday Camp was under surveillance. During this same period, Cathy Ezard was a professional associate of Alan’s, having previously visited his business with a social club from Ballarat. Cathy later signed a statutory declaration dated 23 May 1994, explaining a number of strange occurrences when she attempted to collect mail on Alan’s behalf from the Ballarat Courier Newspaper office (AS 22).

This declaration leaves questions unanswered as to whom collected Alan’s mail and how did they know there was mail to be collected at the Ballarat Courier mail office. On both occasions when this mail was collected by a third person, Alan had previously telephoned Cathy, informing her that the Ballarat Courier had notified Alan there was mail waiting to be picked up.

 

 

Fault Reports / Customer Letters advising RVA

 

15^th August 1991: This Telstra fault report Subject: Cape Bridgewater, although dated 2^nd February 1994, notes various points including the following:

 

• "LTS Melbourne were aware of the problem in early 1990 as Optocoupler measurements were documented on file date 13.02.90 (ref p34)
• The Cape Bridgewater Customer had documented complaints of call dropouts from 12/89 to 12/91 the later date some 7 months “after” the A735 loop mux had been replaced by the RCM (ref Source file)
• The question remains – why did it take one year for the Cape Bridgewater Loop Mux to be upgraded from the issue of the Work Spec….”  (AS 3)

Note: LTS is Local Telephone Switching

Thus supporting that Local Telephone Switching Melbourne (LTS) ‘were aware of the problem in early 1990,’ showing that Telstra knew Alan had major problems with his service over many years.

12^th February 1992: This hand-written letter from Gladys Crittenden, Haddon & District Community House Inc (AS 9-a) notes: – To Whom It May Concern states:

"Our group rang the Cape Bridgewater Camp on a number of occasions. Mainly from November 1991 through to February 1992, to try to book and finalize our camp arrangements. When I rang the number given to us we only got a taped message from Telecom to say that this number had been disconnected.  I wrote to the camp and told the Manager of the problem and to confirm his phone number. When we rang again we still got the same message as before about being disconnected."

2^nd July 1992: Telstra document Subject Grade of Service Complaint Mr Alan Smith notes:

"Our local technicians believe that Mr Smith is correct in raising complaints about incoming callers to his number receiving a Recorded Voice Announcement saying that the number is disconnected.

They believe that it is a problem that is occurring in increasing numbers as more and more customers are connected to AXE."  (AS 9-B)

[AXE being the Ericsson manufactured AXE telecommunication exchange equipment that is discussed further below]

12^th July 1992: This Telstra internal document (AS 705-B) states:

"Congestion between Cape Bridgewater and Portland had been prevalent as only five Junctions available. This situation was to be upgraded with the cutover of Cape Bridgewater RAX to an RCM parented back to Portland AXE 104."

This document explains that congestion meant incoming and outgoing calls intended for Cape Bridgewater could not be connected, because the five junctions were overloaded and, therefore, often resulted in a dead line. It has since been recorded in Exhibit AS DMR & Lanes Report that during the first three years of Alan’s business ownership there were only eight final selectors operating from the Rural Automatic Exchange (RAX), meaning that if four people from the 66 resident families in Cape Bridgewater at that time (mobile phones did not operate in Cape Bridgewater during this period) were on the phone at the same time this allowed only 4 free lines for the remaining 128 other residence (some with older children). Of course the lines were congested, and even more congested during holiday periods.

The alarming fact surrounding the statement in (AS 705-B) is when the RAX was cutover to the newer Remote Customer Multiplexer (RCM) Telstra forgot to program the 267 code into the Melu Melbourne Exchange that switched calls to Cape Bridgewater via Portland. It has been shown below using Telstra's own documents that this non-recognised code went undetected for 7 months - 7 months where 50% of ALL callers from Melbourne to Cape Bridgewater, when ringing Alan or anyone else in Cape Bridgewater, went unconnected.

24^th July 1992: This hand-written letter from Robert Palmer, Heywood Primary School – To Whom It May Concern notes:

"There have been several instances over the year when I have attempted, at length, to contact Mr Alan Smith at the Cape Bridgewater Holiday Camp and Convention Centre without success.

In the evenings of October/November 1991 I phoned at least six times to get the recording that the number was not connected. These calls were from my private home.

In school time during March/April 1992 I phoned to ascertain dates available for the Heywood Grade 4 camp and again received the message that the number was not connected." (AS 9-A)

 

 

1^st September 1992: Rosanne Pittard, Telstra’s General Manager, sends Alan a letter:

"Whilst our recent tests indicate that your service is now performing to normal network standards, I am initiating a further detailed study of all the elements of your service and the tests which have been conducted." (AS 12)

 

18^th September 1992: Mr Bob Beard, Telstra’s Service Manager, sends Alan a letter:

"We believe that the quality of your telephone service can be guaranteed and although it would be impossible to suggest that there would never be a service problem we could see no reason why this should be a factor in your business endeavours.” (AS 13)

Telstra Freedom of Information (FOI) document (date) folio R01444 (AS 14) confirms that Telstra had documented people experiencing a false Recorded Voice Announcement (RVA) recorded message on Alan's service as it was not connected to Telstra's service lines from at least March 1992. This document also confirms that a Heywood resident, Mrs Saville, also complained of the same RVA fault when trying to ring Alan on 2/9/92. Document R01444, confirms the fault was not fixed until 7^th October 1992, three weeks after Mr Bob Beard had sent Alan this letter.

 

15^th October 1992: This Telstra record (AS 10) shows that Alan complained on 13 October 1992 that incoming calls to his business at 1:20 pm, 1:40 pm, 2:00 pm and 3:00 pm rang only once and when the receiver was picked up it was a dead line.

 

Regarding this, (AS 11) shows that a Portland Telstra technician advised management that:

"We had the ELMI disconnected at the RCM and was installing it at Mr Smith's house.

The CCAS showed no evidence of above."

 

(AS 10) are copies of two ELMI tape records showing that an ELMI was connected at Alan's premises on 13 October 1992 and that calls at 13.29.25 (approximately 1:30 pm) and 15.01.11 (approximately 3:00 pm) did register as coming into Alan's business.

 

Why was a local Telstra technician saying one thing, and documents Alan acquired under FOI saying something else?  This conflicting information has largely contributed to business lost between February1988 and the start of his arbitration in April 1994. But together, this conflicting information and the flawed 12 December 1994 arbitration Witness Statements (which are discussed later), would have influenced the arbitrator’s and certainly rendered Alan’s complaints of ongoing telephone and fax problems less serious.

 

23^rd November 1992: Don Lucas, Telstra's Commercial Vic/Tas Region, fault centre incorrectly advises Alan that the RVA MELU fault had only lasted for three weeks and had been fixed by 19^th March 1992. (AS 15)

Another Telstra FOI document K02643 confirms that Telstra considered this particular RVA MELU fault to be apparent from the cut-over from the old exchange to the new RCM at Cape Bridgewater, dates pertained to from August 1991 to at least 19^th March 1992 (AS 16)

In his letter, Mr Lucas further states that another software ‘register’ problem relating to RVA local faults had only lasted from 2^nd to 7^th October 1992, while other documents received under FOI R01444 (AS 15) confirm that Telstra knew that this fault was apparent from at least 9^th September 1992 to 7^th October 1992.

 

 

Settlement

11^th December 1992: During this settlement process Alan provided Telstra several letters from clients who had documented their own phone problems when trying to contact the Cape Bridgewater Holiday Camp (AS 14).   

He also produced at least four letters he had written to the local rural fault centre at Hamilton, somewhere between June 1988 and September 1989, including four independent letters he had received from the operators of the Empress of Tasmania, Heywood Primary School, Collingwood Half-way House and the Haddon Community Health Centre. All of these organizations had experienced difficulties in contacting Alan because of the RVA phone message telling the caller, 'The number you are ringing is not connected'.

 

Affecting the outcome of this settlement was the alarming discovery that during 1993, the Regulator confirmed that Telstra’s ‘congestion’ tone was very similar to an engaged tone and, unless the caller was aware of the difference (and most non-technical people would not be aware of the difference) they would believe they were hearing an engaged signal when they were actually hearing a ‘congested’ signal.

Because the local Cape Bridgewater exchange used such old technology with so few lines, it is not surprising that it was often congested. This meant that it was quite likely that many prospective customers gave up trying to reach Alan, because they believed he had either ceased trading or not able to be contacted.

In one particular Telstra document FOI C04006 (AS 5) titled Telecom Secret, there is a reference to “... Mr Smith’s service problems…” being “…network related and spanned a period of 3 - 4 years.” and, on document C04008, there is another reference – “Overall, Mr Smith’s telephone service had suffered from poor grade of network performance over a period of several years; with some difficulty to detect exchange problems in the last 8 months.”

As stated, if they knew of the “poor grade of network performance” spanning “a period of 3 - 4 years”, how could they possibly have provided two guarantees that the service was adequately working two and three months before this settlement? 

Furthermore, document C04008 also states “with some difficulty to detect exchange problems in the last 8 months.” This means that the ‘difficulty to detect’ the problems dated back at least to April of 1992.  As a responsible corporate senior manager, how did Rosanne Pittard, Area General Manager, the person who signed this letter, ever allow the two ‘guarantees’ to leave her office?

2^nd April 1993: A letter sent in April 1993 to the Editor of the Herald-Sun Newspaper in Victoria, read in part: 

“I am writing in reference to your article in last Friday’s Herald/Sun (2nd April) about phone difficulties experienced by businesses.

I wish to confirm that I have had problems trying to contact Cape Bridgewater Holiday Camp over the past 2 years.

The letter goes on to say:

I have also experienced problems while trying to organise our family camp for September this year. On numerous occasions I have rung from both this business number and also my home number and received no response - dead line.

I also rang around the end of February (1993) and twice was subjected to a piercing noise similar to a fax. I reported the incident to Telecom who also got the same noise when testing." (AS 1006)

Because of a number of reports regarding this ‘piercing noise’, a worker from Telstra’s Country Division arranged to have Alan's service switched to another system.  Unfortunately, this did not help.

5^th May 1993: Alan rang psychologist Mr Don Burnard’s office looking for support. Alan's conversation with his office was interrupted three times by phone faults.  Later, Alan received a letter from Mr Burnards office, dated 5 May 1993 saying: 

“I am writing to you to confirm details of telephone conversation difficulties experienced between this office and your residence mid-morning this day, 5 May 1993. 

At approximately 11.30am today Mr Alan Smith telephoned this office requesting to speak with Mr Don Burnard.  Mr Burnard was not available to take the call but during this time the telephone cut out three times. Each time Mr Smith telephoned back to continue the call.” (AS 1007)

Other rural subscribers wrote to various TV stations and newspapers supporting Alan's allegations that, with regard to telephone services, rural small-business people, as well as the rural general public, were not being supplied with a level playing field when compared to their city cousins.

One of these letters dated 23 August, 1993 is particularly interesting. It came from a company of Insurance Loss Adjusters in Ballarat, a rural city in Victoria, and was sent to the producer of “Real Life”, a TV current affairs program then being broadcast on Channel 7.  The Loss Adjusters wrote:  “Re Problems with Telstra”

"I have watched with interest the shorts leading up to tonight’s program as I have similar problems to the man at Cape Bridgewater.

Our office is located in Ballarat and due to Telecom structure the majority of our local calls are STD-fee based. (STD calls are charged per time)

On many occasions we have been unable to get through to numbers we have dialled, often receiving the message “this number is not connected” or similar messages which we know to be untrue.

Clients report that they often receive the engaged signal when calling us, and a review of the office reveals that at least one of our lines was free at the relevant time.

We have just received our latest Telecom bill, which in total is up about 25% – 30% on the last bill.  This is odd because our work load in the billing period was down by about 25% and we have one staff member less than the previous billing period.” (AS 1008)

 

In the first twelve months of 1993, Alan received another eleven written complaints about his own service problems, and four small-business people calling themselves Casualties of Telstra (COT) was formed.

Well into 1993 things began to warm up for COT Cases: the then-Shadow Minister for Communications, the Hon Richard Alston, was showing an interest in their claims and a National Party Senator, the Hon Ron Boswell, who obviously had no political gain in mind, also became involved. Even though the National Party Senator was based in Queensland, and most of the members of COT were in Victoria, he has continued to offer his support.

Alan's local Member of Parliament (South West Victoria) the Hon David Hawker MP, was another who saw his ‘duty of care’ to his constituents, and so answered the call for help.  He continued to support Alan for more than fifteen years, but unfortunately was never able to resolve the ongoing telephone/fax problems at the holiday camp, for Alan and/or the new owners of the business.

 

While the politicians and Telstra conducted their secret deals behind closed doors, Alan continued to lobby Austel (Australian Telecommunications Authority) for assistance.  Between February and June of 1993, Alan provided more and more evidence of incorrect charging on his 008/1800 freecall service as well as the other three lines servicing his business.  Finally, AUSTEL's General Manager of Consumer Affairs asked Alan to record all the short duration calls and RVAs that were still being charged to his 008/1800 accounts, and were also showing up on the ELMI testing machine Telstra had installed at the local exchange.  Short duration calls were particularly irritating – the phone would ring once and stop, or if Alan or his staff picked it up after that first ring, they would find a dead line with no way of knowing who had tried to get through.

Not only was AUSTEL, now involved in the COT battle by late 1992, but the COT Cases were also dealing with the Commonwealth Ombudsman’s Office as well, so both these organisations were aware that Alan continued to ask Telstra, under the rules of FOI, to provide him with copies of the data from the testing equipment at the phone exchange that the camp was connected to, for the period of May to July 1993.

The Regulator’s General Manager of Consumer Affairs was becoming more concerned at the evidence COT members were producing; evidence of faults and incorrect charging.  These two problems — people not being able to get through and calls being charged incorrectly, come together in a note from a lady in Croydon who wrote regarding problems getting through to Cape Bridgewater on 22^nd May 1993. She explained how she continually reached a recorded voice announcement saying that Alan's phone had been disconnected. Alan's Telstra 008 account for that day showed a number of very short calls.  Apparently he was being charged for RVA messages, short duration and faults that Telstra calls ‘post dialling delay faults’! (AS 1012)

 

 

Briefcase Saga

On 3^rd June 1993: As a result of Alan's constant complaints to the Regulator, including incorrect charging. Telstra’s ‘Network Investigations’ department were finally involved and, for the very first time, Telstra investigators were sent to Cape Bridgewater.  At last, or so Alan thought, he would be able to speak directly to people who knew what they were talking about and get to the bottom of the issue.

Mr David Stockdale and Mr Hew Mackintosh told him nothing he hadn’t heard before. With nothing resolved, they finally prepared to leave and head back to town.  Alan's own transport was, by this time, long gone: sold to pay some of his mounting debts, and he also needed to go into Portland.  The technicians offered Alan a lift. 

After spending some time in Portland Alan got a lift back to Cape Bridgewater with a neighbour.  In his office he found that, one of the technicians, had inadvertently left behind a briefcase. Alan opened it to find out who actually owned it and the first thing he found was a file titled “SMITH, CAPE BRIDGEWATER”. 

After five gruelling years fighting with Telstra and being told various lies along the way, here was possibly the truth, as seen from Telstra’s perspective.  Some of the documents in this file were much too technical for Alan to understand or interpret. Some that he could decipher, however, dated back to the ex-gratia compensation payment he received on 11^th December 1992.  Then he froze.  He had turned the page to be confronted with the words “Problem 1”.

This document referred to Telstra being aware that the alleged three-week RVA fault in March of 1992 had actually lasted for ‘eight months’, not the three weeks Alan had been told on the day he accepted the compensation payment (AS 16). A copy of a similar document that Alan received in 2007 from now Australian Communications Media Authority (AS 15) supports that document.

The file also revealed that Telstra had known before Alan’s settlement, that major faults still existed in their network at the time of the settlement, but they did not disclose this to Alan during that settlement process (AS 5), (AS 9) and (AS 10).

Another not seen before document dated 24^th July 1992, and with Alan’s phone number in the top right corner, refers to Alan's complaint that people ringing him get an RVA “service disconnected” message, with a sentence reading: “Network investigation should have been brought in as fault has gone on for 8 months " (AS 1003).

A further document (AS 1004), dated 27 July 1992, discusses other problems experienced by possible clients who tried to contact Alan from Station Pier in Melbourne: some of these hand-written records go back to October 1991, and many of them were fault complaints that Alan had not recorded himself.  Telstra, however, has never explained who authorised the withholding of these names from Alan because if he had known he could have contacted them with an alternate contact number, Alan’s Melbourne agent, Peter Turner.  Employing an agent was the only alternative due to Telstra’s inability to fix the ongoing problems.

Some of the entries listed on document AS 1004 appeared to have been schools and social clubs, which not only means that Alan had clearly lost a number of very large bookings because they had not been able to get through, but of course, he lost any return bookings or referrals and repeat business. Even if only half those enquiries turned into bookings, all that business, and the repeat and/or flow-on business was still lost because Telstra wouldn’t or couldn’t fix the phone problems, and continued to refuse admission for ongoing faults.

The documents in the briefcase quickly informed Alan that they were aware of the impact Telstra’s inadequate service was actually having on his revenue base.

 

Document AS1005 supports that it was quite possible that the RVA problems Alan’s business experienced had actually lasted from at least August 1991 to at least July 1992 – and probably longer.  It is also clear from this internal Telstra memo that their Portland technicians supported this, because document (AS 1005) states that:

 

"Our local technicians believe that Mr Smith is correct in raising complaints about incoming callers to his number receiving a Recorded Voice Announcement saying that the number is disconnected.

 

They believe that it is a problem that is occurring in increasing numbers as more and more customers are connected to AXE."

 

The Portland Telephone Exchange, which was manufactured by Ericsson, was commonly known around the word as an AXE exchange and, as will be explained later in this story, Telstra was well aware at the time that other countries were experiencing major lock-up problems with the AXE.  They also knew that this lock-up fault could have created anything up to 15% of lost calls. This Telstra internal email FOI folio A13980 dated 24 February 1994 from a Kevin Dwyer to Peter Gamble (AS 1009) notes:

 

“You are quite correct in your thought that the anecdotal reference applied more to AXE than ARE-11. 'Lockups' are generally well-known as a problem in AXE exchanges, not only in Australia but in overseas countries as well.”

 

The email goes on to say:

 

“Ericsson are said to have suggested that call loss could be up to 15%.” 

 

It is perfectly clear that Alan was certainly misled and deceived by Telstra as part of his 11 December 1992 settlement, and it eventually became equally clear that he had actually been misled almost from the very first complaint he registered in April 1988 as well

 

9^th June 1993: this letter to Telstra from AUSTEL is part of the briefcase saga, as it confirms that AUSTEL was concerned that Alan had been misled and deceived by Telstra during the aforementioned settlement.  On page one, paragraphs four and five, when referring to Alan’s allegations that Telstra had withheld this information from him on 11^th December 1992, this letter states:

 

"Further, he claims that Telecom documents (found in the briefcase) contain network investigation findings which are distinctly different from the advice which Telecom has given to the customer concerned.

In summary, these allegations, if true, would suggest that, in the context of the settlement, Mr Smith was provided with a misleading description of the situation as the basis for making his decision. They would also suggest that the other complainants identified in the folders have knowingly been provided with inaccurate information.

I ask for your urgent comments on these allegations. You are asked to immediately provide AUSTEL with a copy of all the documentation which was apparently inadvertently left at Mr Smith’s premises for his inspection.

It goes further to say:

In light of Mr Smith’s claims of continuing service difficulties, I will be seeking to determine with you a mechanism which will allow an objective measurement of any such difficulties to be made." (AS 27)

 

 

Telstra’s Muzzling Power 1

 

9^th June 1993: A TV news program was clearly also a target for Telstra's executives to muzzle the media regarding the validity of the COT Cases claims.  This Telstra internal email dated 16 June, 1993 FOI folio A04646 (AS 956) reports:

"Good news re channel nine news. Haven’t checked all outlets but as it didn’t run on the main bulletin last night, we can be pretty certain that the story died the death. I wish I could figure which phase it was that convinced Jason Cameron not to proceed. Might have been one of Jim Holmes' pearls..."

Jim Holmes being the Telstra Corporate Secretary, the reader by now may well be asking themselves, what type of pearl had been cast by Jim Holmes? Were they pearls of wisdom, financial pearls, or another type of pearl that convinced a respected journalist to drop a story?

During meetings following this casting of pearls, Mr Holmes was assigned to take charge of deflecting allegations about a fellow Telstra executive, Chris VonWiller, for misleading a Minister concerning the true extent of the faults associated with the telephone exchange that two COT businesses had been connected to. These two Telstra executives were also members of the Telecommunications Industry Ombudsman board (TIO) when Mr VonWiller misled the Minister, and Mr Holmes was assigned to deflect this serious matter. Again, Jim Holmes and Chris VonWiller were even allowed to attend TIO Board meetings when the TIO was discussing the progress of the TIO-administered COT arbitrations (AS 232-A).

 

 

Briefcase Saga, continued

One of the more important documents left in that briefcase provided evidence that discussed the manner in which they settled with Alan in December 1992. It indicates they were fully aware that there were still major communication problems affecting the viability of his business endeavours. This is the same ‘briefcase’ evidence that Telstra later told Alan they had also copied on to AUSTEL for assessment. Then, on 27 August 1993, Mr Holmes wrote to Alan about the same ‘briefcase’ documents, noting:

"Although there is nothing in these documents to cause Telecom any concern in respect of your case, the documents remain Telecom’s property and therefore are confidential to us. I would also ask that you do not make this material available to anyone else".

Telstra’s FOI document dated 23 August 1993 and labelled as ‘folio R09830’ (AS 73-A) with the subject listed as ‘The Briefcase’ is alarming to say the least. This document, which had been copied to Mr Holmes, notes:

"Subsequently it was realised that the other papers could be significant and these were faxed to Craig Downing but appear not to have been supplied to Austel at this point. The loose papers on retrofit could be sensitive and copies of all papers have been sent to Ross Marshall".

The word ‘alarming’ is used in relation to this last ‘briefcase’ document because John Pinnock, the TIO, later told the Senate Estimates Committee that COT/TIO-administered arbitration issues were openly discussed at regular monthly TIO Council meetings, which suggests that they would have been discussed at monthly TIO Board meetings too.

The COTs will never know for sure whether Dr Hughes did not find against Telstra on this ‘briefcase’ issue, because he was influenced by Mr Holmes’ pearls, who was, at the time, a member of the TIO Board.

Further, even though Alan’s claim advisor (who had been a witness to the Fitzgerald Royal Commission into Police Corruption in Queensland and a National Crimes Investigation Detective) proved to Dr Hughes how unethical Alan’s 11 December 1992 Settlement process had been, Dr Hughes’ arbitration award report regarding Alan’s case still found in favour of Telstra’s defence regarding that earlier settlement. 

Then, secret Government Regulatory report dated 3 March 1994 (AS 487), which was only supplied to Alan from the Government Regulator in November 2007, condemned Telstra’s 11 December 1992 settlement at point 45 and 46 noting:

"File evidence clearly indicates that Telecom at the time of settlement with Smith had not taken appropriate action to identify possible problems with the RCM. I March 1993 a major fault was discovered in the digital remote multiplexer (RCM) providing telephone services to Cape Bridgewater holiday camp.  The fault may have been in existence for approximately 18 months. The fault Given the nature of Mr Smith's business in comparison with the essentially domestic services surrounding subscribers, Mr Smith would have been more affected by this problem due to the greater volume of incoming traffic than his neighbours.    

Telecom's ignorance of the existence of the RCM fault issues raise a number of questions in regard to Telecom's settlement with Smith. For example, on what basis was settlement made by Telecom if this fault was not known to them at this time? Did Telecom settle with Mr Smith on the basis that his complaints of faults were justified without a full investigation of the validity of these complaints, or did Telecom settle on the basis of faults substantiated to the time of settlement? Either criteria for settlement would have been inadequate, with the latter criteria disadvantaging Mr Smith, as knowledge of the existence of more faults on his service may have led to an increase in the amount offered for settlement of his claim".   

Once again, for reasons known only to Dr Hughes, his ex-Telstra employee/technical advisor favoured Telstra’s arbitration defence in relation to this 11 December 1992 Settlement issue and so Dr Hughes recorded, in Alan’s award, that the RCM fault had only lasted “…at least 50 days (probably 70) in early 1993.” (AS 992).  The DMR & Lane report, at point 2.9, also records 50-70 days (AS 993). 

In November 2007 however, under FOI from ACMA, Alan finally received a copy of AUSTEL’s 3 March 1994 findings against Telstra (AS 487), and the truth was revealed:  the RCM digital fault had existed within the system for at least eighteen months, not 50 to 70 days, as recorded by the arbitrator. While downplaying this serious and ongoing fault was bad enough, Dr Hughes’ award and the DMR & Lane findings included even more favouritism by repeating Telstra’s defence almost word for word. (Arbitration issues are discussed in full later.)

At point 1 on page 33 of Dr Hughes’ award (AS 922) he notes that lightning damage to the RCM on 21 November 1992 affected the service:

“… for 4 days before restorative action was taken.”

At point 2.8, on page 26 of the DMR & Lane report , in relation to the same lightning strike of 21 November 1992, they note:

“The condition affected services for 4 days, before restorative action was taken, which may have been less than successful, refer 2.9”.

Then in AUSTEL’s secret findings for the same fault, at their point 23 (AS 487), they note: 

"It is difficult to discern exactly who had responsibility for Mr Smith’s problems at this time, and how information on his problems was disseminated within Telecom. Information imparted by the Portland officer on 10 February 1993 of suspected problems in the RCM “caused by a lightning (sic) strike to a bearer in late November” led to a specialist examination of the RCM on March 2 1993. Serious problems were identified by this examination."

It may never be possible to calculate what Dr Hughes would have awarded Alan if he had known that this fault lasted for eighteen months rather than 50 to 70 days, or how much he would have awarded Alan had he known that the other four-day lightning strike fault had been ongoing from November 1992 to March 1993. What we do know is that AUSTEL’s report (AS 487) shows that, for around seven months, until Alan’s complaints were finally acted upon, Telstra had somehow forgotten to program the 055 267 telephone prefix for the Cape Bridgewater exchange into the Lonsdale Telephone Exchange in the centre of Melbourne. 

AUSTEL has since accepted that 50% of all callers trying to reach Cape Bridgewater during these seven months would have gone through the Lonsdale Exchange and would have been greeted by a recorded voice message telling the caller that ‘the number you are ringing is not connected’, thereby inferring that Alan was no longer trading.  In relation to this same recorded message however, the arbitrator’s award only reported that the incorrect recorded message caused between 20 and 33% of calls to be lost and it only lasted for: “...16 days and possibly longer”.

 

 

 

Short duration and 1800 call problems

18^th June 1993: Julian Cress from 60 Minutes Channel Nine Television sends Alan a facsimile noting:

"Just a note to let you know that I had some trouble getting through to you on the phone last Thursday. Pretty ironic considering that I was trying to contact you to discuss your phone problems.

The problem occurred at about 11AM. On the “008” number I heard a recorded message advising me that “008” was not available from my phone and on your direct line it was constantly engaged." (AS 24)

In an in-confidence internal Telstra memo dated 25^th November 1993, on the subject of short duration calls on Alan's phone lines, Telstra states:

"Mr Smith is obviously well aware that customer premises equipment (CPE) is a significant source/cause of charging and billing disputes, particularly those involving short calls which the customer believes were unsuccessful and should not be charged.  Telephone answering machines, facsimiles and call diverters typically are at the centre of these disputes".

Alan provided evidence to both AUSTEL and the later arbitration process proving that neither his answering machine nor his fax machine could have answered many of these short duration calls. This leaves call diverters as the only ‘culprit’ possible and, since Alan had not authorised any call diversion on any of his lines, this raises the question: Who then had authorised the diversion of at least some of Alan's incoming calls?

The true level of short duration and post dialling delay faults were well known to Telstra as early as May 1993, but they chose to hide the problems and continue to collect revenue from their customers regardless of the level of customer complaints.  In some cases, Telstra forced customers to pay incorrect accounts by threatening to disconnect the customer’s phone lines, even though the customer complaints may well have been quite real.

A Telstra FOI document folio H36291, dated 11^th October 1993 (AS 35), states

"I am receiving a disturbing number of instances where the 1800 prefix ‘does not work’ in the network.  Given we are now part way through a major (direct mail) National campaign launching freecall 1800 statewide, I need to know the extent of the problem of missed areas across the country".

Another FOI document dated 1^st November the same year, Telstra folio H36293, goes even further (AS 45-A) noting: 

"All Admin groups are being inundated with complaints from customers who have advertised their numbers as 1800 but their customers are simply unable to get through to them. I have spoken to our fault staff out at Waverley who are also being inundated with the same complaints."

An even more alarming Telstra FOI document folio H36178 indicates that, even while being fully aware that they were promoting a faulty service, which would not provide the service as was adverted, Telstra continued to charge their customers for calls that they knew were not connecting correctly, where the caller reached a dead line, thought they had dialled incorrectly and hung up, but the charge still registered at the other end – on the 1800 customer’s account.  This same document actually discusses concerns: 

“…that the matter requires fixing at a National level, not just on a fault by fault basis”

and further notes that it:

“… also raises the question whether we should be actively promoting 1800 in the circumstances".

 

 

Telstra’s muzzling power 2

7^th July 1993: Another Telstra internal email, this one FOI folio C04054 (AS 957), shows that at about this same time, a number of Labor Party Senators were becoming more and more concerned at what COT members were uncovering.

Other FOI documents show that Telstra were not reporting the truth of the situation in the early months of 1993. It is also clear from more FOI documents that it is highly likely that some newspaper journalists were approached by Telstra and asked to ‘kill’ a story about the COT problems with their phone faults. This one, entitled “Cot Wrap-Up”, states, in part:

“I advise that Clinton be targeted for some decent Telstra exclusive stories to get his mind out of the gutter. He will write a nasty piece in tomorrow’s (thursday) paper. He will certainly mention the confidentiality clauses and I fully expect a call from him at home tonight.”

It goes further to say:

"I think it should be acknowledged that these customers are not going to become delighted. We are dealing with the long-term aggrieved and they will not lie down.

Further, I propose that we consider immediately targeting key reporters in the major papers and turn them on to some sexy “look at superbly built and maintained network” stories.”

We are left to wonder just who ‘Clinton’ was and why his mind was considered to be ‘in the gutter.'

 

12^th July 1993: Telstra FOI documents M34204 - M34205 (AS 18) confirm that Alan had been complaining of cut-offs on the phone after only talking for a few seconds in early January to March 1993.

This document shows that Telstra states there were 45,993 degraded minutes yet, in the 30^th April 1995, Arbitration Technical Report, DMR and Lane refers to only 405 degraded minutes.  The Technical Report also claims there were only 43,500 errored seconds (ES), while the Telstra document shows 65,535.  It seems that, for some unknown reason, DMR and Lane played down the actual number of faults.

At this point it is important to raise the issue of an Arbitration Witness Statement that was sworn by a local Telstra employee, dated 12^th December 1994, which Telstra used in their arbitration defence of Alan's 1994 arbitration claim. In part (2) of this Statement, Mr Stokes states: 

“I transferred to Network Operations Portland in 1989 and between 1990 and 1994 I was responsible for maintaining switching equipment at the Portland exchange.” 

At point (8), Telstra further states: 

“After the Portland to Cape Bridgewater RCM systems were installed, I became aware that the performance of the systems could be measured using the facility known as CRC.  I checked the CRC error counters regularly between the date the RCM systems were installed and February 1994, when I left Telecom.  Checking the CRC counters in this way was normal maintenance practice.  I can recall checking the CRC counters prior to March 1993.  When I checked the CRC counters pre-March 1993, I did not observe any errors that could have impacted upon the telephone service provided to cape Bridgewater customers.  A typical reading for each RCM system was 5 to 10 errored seconds, no degraded minutes and severely errored seconds” (AS 20)

If Telstra did check the RCM regularly, as he states, why didn’t he notice that the fault alarm system had not been installed after the RCM replaced the RAX exchange in August 1991, twenty months before?  Furthermore, this Telstra technician's statement does not correlate with a report made after a visit to the Portland exchange by the Melbourne Pair Gain Support Group which states: “At this stage we had no idea over what period of time these errors had accumulated.”

If this Telstra Witness Statement is correct in that he “… checked the CRC counters pre-March 1993 and (I) did not observe any errors”, then 65535 errored seconds and 45993 degraded minutes would have had to have accumulated in the three days between 28^th February and 2^nd March, which is almost impossible.

Up to this period Alan had received thirty-six letters from different individuals, as well as more than forty other complaints from people who had tried, unsuccessfully, to respond to Alan's advertisements for his business. The Hadden & District Community House wrote in April 1993: 

"problems with contacting you by phone.  Several times I have dialled (my phone number) and received no response  — dead line.  I have also experienced similar problems on your 008 number. Our youth worker, experienced similar problems while organising our last year’s family camp, over a six month period during 1991/1992".

As more and more letters like this arrived in Alan's office he began to seriously consider that Telstra senior executives were hiding the true facts of the problems at the Cape Bridgewater exchange. Surely they must have been aware by now that he was not inventing the problems he was complaining about?

In Austel’s (now ACMA) secret report mentioned earlier (AS 487), they uncovered 65,535 errored seconds and 45,993 degraded minutes at the Cape Bridgewater RCM unmanned roadside exchange between 1992 and 1993.

AUSTEL’s findings for this single complaint recorded:

"Some important questions are raised by the possible existence of a cable problem affecting the Cape Bridgewater Holiday Camp service. Foremost of these questions is why was the test call program conducted during July and August 1992 did not lead to the discovery of the cable problem. Another important question is exactly how the cable problem would have been manifested in terms of service difficulties to the subscriber".

12^th July 1993: a newspaper article from the Portland Observer Newspaper is headed ‘Network Complaints Taken Up by MPs’ (AS 825), and notes:

"Problems highlighted by Cape Bridgewater Holiday Camp operator Alan Smith, with the Telecom network have been picked up on by not only other disgruntled customers but Federal politicians.

Having suffered a faulty telephone service for some five years, Mr Smith’s complaints had for some time fallen on deaf ears, but it now seems people are standing up and listening.

Federal Member for Wannon, David Hawker, described the number of reports of faulty and inadequate telephone across Australia as alarming.

Mr Hawker said that documents recently presented to him showed that the problems people had been experiencing Australia wide had been occurring repeatedly in the Portland region". 

 

 

Attempting to move on…but wait!

By June/July 1993, the public were becoming interested in what they were hearing about; The COT Cases battle - four Australians had taken on the Telstra Corporation.

At the camp in Cape Bridgewater, Alan acquired a logo especially for the over-forties singles club, and his Community Groups, which he was calling “Country Get-A-Ways”, and he hit the road with a vengeance, marketing a range of different weekend holidays. He had organised an outdoor canoe weekend, a walking and river cruise along the Glenelg River, and a Saturday Dress-up Dinner Dance with a disco, as well as a trip to the Coonawarra Wineries and a Saturday morning shopping tour to Mt Gambier, both in South Australia. This meant Alan was able to market the holiday periods in both Victoria and South Australia.

Numerous testimonials from hopeful customers trying to make a booking at Alan's venue from 1988 up to this period is already well documented in AUSTEL's report (AS 487). At point 9, 10 and 11 in their reporting AUSTEL notes:

"During the past five years Mr Smith has received many testimonials from other network users such as community groups, health and welfare agencies, school and individuals which have advise of continuing difficulties contacting the camp. These statements support Mr Smith's claims of service problems of Mr Smith.

An important point in relation to Mr Smith's service is that he is operating a business service in an area which is predominantly that of a residential and/or farming community. Therefore both the nature, volume and origin of calls received by Mr Smith is comparison with those of his neighbours would be markedly different…

Often calls to the Cape Bridgewater Holiday Camp would be from people previously unknown to Mr Smith, who in comparison to other callers to Cape Bridgewater would be less likely to initiate further contact should they have difficulty in contacting the Camp…"

So here it was, mid-1993, and still hardly any phone calls were getting through to Alan at the Camp.  What he couldn’t know was that less than twelve months later, AUSTEL would discover that what Alan had been telling Telstra was the truth, but that AUSTEL would hide most of those truths from the relevant Ministers, from Alan and from the arbitrator.

All Alan knew was that his business was sinking fast and so he stepped up the marketing of the camp and the singles-club weekends; he visited numerous recognised social clubs around the Melbourne metropolitan area and spoke personally to the people in charge and in fact, over the next few weeks, he spoke to the Phoenix Social Club in Camberwell, the Australian Social Centre in Hartwell, Frenze-In-Deed in Mont Albert and Capers in Knox City, as well as visiting numerous other singles organisations in Ballarat and Warrnambool, both large country centres in Victoria.

Further newspaper advertising followed, with ads placed with the Leader Newspaper group in Melbourne.  This local newspaper group covers twenty-three different metropolitan areas around Melbourne. Ads also went into the local newspapers for a number of large regional centres around Victoria and South Australia, including the Geelong Advertiser, the Warrnambool Standard, the Ballarat Courier News, the Horsham Wimmera Times, the Colac Local News, the Mt Gambier-Border Watch and others. 

But complaints about the phones continued. People had enormous trouble getting through to the camp and, although some obviously persevered, it’s impossible to know how many simply gave up trying.

12^th August 1993:  This letter (AS 34 A) from Ms Elisie Espinoza from a singles club to Alan describes the constant engaged problems she experienced when trying to book a weekend during April and May 1993. Exhibit (AS 34 -B) is a Telstra FOI document K03870 dated 17^th June (assume 1993) refers to the same Elisie Espinoza and her friend Rita Stenoya. This document does not only record the two personnel phone numbers of these two ladies, it also confirms Telstra was fully aware of the times Alan's office assistant left the business when Alan went to Melbourne.

Ms Espinoza writes:

"I tried to ring you in order to confirm our stay at your camp site. However when I did this I found it impossible to get through since it was engaged for several hours.  I tried to ring later but encountered the same signals, on the 10th of August around 7:30 pm to 8.30 pm.

I believe you have a problem with the exchange and strongly advise you contact Telecom.

Do you remember the same problem happened in April and May?

I apologise but I have made arrangements with another camp".

 

17^th August 1993: this Telstra file note FOI folio K03096 (AS 35-A) is related to the Daylesford Community House (Victoria) and explains how the line was continually dead when they rang Alan's 1800 number four times on 17^th August 1993. And how, even so, Alan was charged for these four calls, all in the space of a single twenty-eight-second period (AS 35-B). 

Since the malicious-call tracing equipment (which locked the line up for 90 seconds) was not removed from Alan's phone line until 18^th August 1993 (AS 23-E), how could the Community House have been connected four times in such a short period of time?  It is clear from other FOI documents, and has been supported by Telstra technical consultants, that no call could have connected under these circumstances at any time between 26^th May and 19^th August 1993, while the call tracing equipment was still connected. So, where were these calls diverted to?

The group from the Daylesford Neighbourhood House finally arrived for their holiday in January 1994. Later, two letters arrived from members of this group complaining that my customer coin-operated gold phone service, provided on our property, was most unsatisfactory. They wrote that the phone was taking money ‘under false pretences’ and not connecting long enough for the caller to properly complete their calls. Both wrote that the line ‘went dead’ and they both supplied their names and addresses (AS 35-C)

 

 

Misleading and Deceptive Conduct

During this period Ann Garms, Graham Schorer, and Alan met with Senator Richard Alston, Shadow Minister for Communications, in his St Kilda Road (Melbourne) office, to discuss their ongoing communication problems, Telstra’s misleading and deceptive conduct in relation to those services and, in Alan’s case, the way Telstra had deliberately misled and deceived him during his December 1992 settlement process.

In the years to come, the COTs found Senator Alston to usually be quite stony-faced when discussing such matters, but this time when Alan showed him some of the documents he had found during the briefcase saga, the Senator changed his position and was not only showing empathy for Alan’s situation, but was clearly quite angry about Telstra’s behaviour during Alan’s December 1992 settlement.

Graham then tabled another document that showed how Telstra had knowingly sold him faulty equipment, even though both Telstra and the manufacturers, Phillips, had known it was faulty for at least six months before they had installed it at Graham’s business (Golden Messenger).

Senator Alston was then quite clear as he explained that, while he believed that Telstra technicians and senior management could perhaps be excused for making occasional mistakes in such a large corporation, for them to knowingly deceive Australian citizens so deliberately could not be excused.

Alan and Graham were then advised that if Telstra did not address this misleading and deceptive conduct in a manner befitting a government-owned corporation, then ‘heads would fly’ and Senator Alston was adamant that he would raise these issues with Robin Davey, Chairman of AUSTEL.

2^nd September 1993:  Senate Estimates Committee (Hansard) – When Senator Richard Alston, Shadow Minister for Communications, and the then Minister for Communications, Senator Bob Collins, questioned Mr Robin Davey, AUSTEL Chairman, regarding this matter it was clear that Mr Davey had confirmed that, if AUSTELS’s COT investigations found deliberate ‘misleading and deceptive conduct as distinct from sheer incompetence’ by Telstra towards the COT claimants, then AUSTEL would pass the matter on to the Trade Practice Commission. Mr Davey stated to Senator Collins (AS 736)

"We have legal advice which I am quite prepared to make available to you, Senator – I apologise that I have not got a copy with me at the moment – to the effect that, if we were to find misleading and deceptive conduct, as distinct from sheer incompetence, then we could direct Telecom to engage in an assessment process to assess the quantum. Having assessed the quantum, we do not have the power to enforce the quantum, but I am sure that at that point that would not be necessary. I think there would be such a moral persuasion at that point".

In AUSTEL’S report secret draft (AS 487) against Telstra in relation to Alan, which AUSTEL provided to Telstra in March 1994 during the COT arbitrations (see [P-7] (AS 495), showed that AUSTEL did find Telstra had deliberately misled and deceived both claimants. So why did the Government Regulator conceal this information from the arbitrator?

At point 5.10, in the arbitrator’s award in Alan’s case he notes:

The AUSTEL formal report notes a number of instances of misleading conduct by Telecom of the nature described by the claimant, but not specific to the claimant as indicated earlier, the claimant has not articulated the legal bases for his claim, nor did I expect him to do so. Had he done so, however, he may well have alleged some instances of misleading conduct by Telecom of the nature set out in the AUSTEL report. (AS 487)

It seems that Senator Alston’s letter to Mr Davey has answered the two questions raised by Alan above, i.e.

1. Why did AUSTEL’s final report not state publicly that Alan’s phone problems were still ongoing, and

 

2. Why did that same report not declare specifically which COT cases Telstra had mislead and deceived?

If AUSTEL had included those more adverse findings against Telstra in their formal report, this would have immediately led Senator Alston to call for a Senate Select Committee investigation into these matters, on behalf of the then-opposition party. It is therefore clear, that the formal AUSTEL COT Cases report that was used as evidence in the COT arbitrations was tainted, ‘got-at’ or ‘cleansed’ well before the COT Cases received their copies.

7^th September 1993:  This letter from Robin Davey, Chairman of AUSTEL, to Jim Holmes, Telstra’s Corporate Secretary (AS 835), confirms that even when legitimate testing was carried out on the phone lines of the COT claimants (see also AUSTEL’s reference to the poor testing regime by Telstra in their report) shows Telstra’s testing equipment connected to Alan’s service lines caused additional problems. In fact, all the various types of testing equipment that was installed on Alan’s service lines appeared to have created extra problems, suggesting that at least some of the problems experienced by Telstra’s Peter Gamble and his Melbourne counterparts, during Telstra’s 29^th September 1994, Cape Bridgewater Holiday Camp Service Verification Testing (SVT) could have been caused by Telstra’s faulty SVT equipment.

AUSTEL did not take exhibit (AS 835) into consideration when they allowed Telstra to submit known flawed Cape Bridgewater Holiday Camp (SVT) results as arbitration defence documents, even though the letter’s author, AUSTEL’s Chairman Robin Davey clearly states in it’s second paragraph:

“Your ‘two bob each way’ letter of 31 August 1993 outlining how Telecom is to monitor the COT Cases’ services in response to AUSTEL’s direction of 12 August does little to inspire confidence in Telecom’s approach to the issue.

The offer to provide…(specific testing)…might be interpreted as nothing more than an attempt to lay a foundation for disowning the tests if they appear to support the COT Cases.”

Point 5.32 on page 91 of the AUSTEL COT Cases Report notes:

"Its omission as far as the initial ‘settlement’ of the original COT Cases were concerned meant that there was continued dissatisfaction with the service provided without any steps being taken to rectify it. This inevitably led to dissatisfaction with the initial ‘settlement’ and to further demands for compensation. To avoid this sort of problem in the future, AUSTEL is, in consultation with Telecom, developing –

a standard of service against which Telecom’s performance may be effectively measured

a relevant service quality verification test".

 

 

 

Legal Professional Privilege

During September 1993, Telstra announced they would not address anymore of Alan's telephone complaints unless he first registered them in writing with their external lawyer, Denise McBurnie, of Freehill Holligdale & Page. Unfortunately, Alan didn’t realise that Telstra thought this process would mean that all technical documents connected to any complaints Alan registered with Ms McBurnie would then, as far as Telstra was concerned, be classified under Legal Professional Privilege (LPP).

10 September 1993: this Telstra FOI document folio N00749 to N00760, from Denise McBurnie of Freehill Hollingdale & Page to Ian Row, Telstra’s Corporate Solicitor, relates to strategies that were about to be used in dealing with the COT cases. Folio N00749 is the first page of this strategy (AS 923) noting: 

"Both Freehill’s and Duesbury’s would be happy to assist you should any further presentations to Telecom management be required on any of the matters raised in the issues paper or with regard to any other matters concerning management of “COT” cases and customer complaints."

This document is important because Ms McBurnie names Duesbury's as assisting Freehill's in this matter, and Duesbury's was also involved with the employment of private investigators (paid by Telstra) in relation to Graham Schorer, and possibly other COT claimants.

It is clear from folio N00750 that Ms McBurnie has singled out four of the COT Cases businesses: Golden Messenger, Tivoli Theatre Restaurant, Japanese Spare Parts and the Cape Bridgewater Holiday Camp, in which Legal Professional Privilege (LPP) was to be used to conceal documents from those four cases (AS 923), as they state these claimants:

“…high level of understanding (acquired by experience) with FOI procedures and the procedures involved in accessing Telecom documentary information.”

appeared to be perhaps threaten their misleading ways.

In June 2000, renowned Legal Professional Privilege expert, Associate Professor Suzanne McNicoll, provided the COT claimants (AS 924) with the following legal opinion regarding the Freehill's ‘COT Case Strategy’ i.e.

"There is also some potential prima facie evidence of (4) i.e. knowingly making false or spurious claims to privilege. For example, there is potential structure set up for the possible abuse of the doctrine of legal professional privilege in the faxed document entitled “COT” Case Strategy, marked “Confidential” dated 10 September 1993 from Ms Denise McBurnie of Freehill Hollingdale and Page, Melbourne Office to Mr Ian Row, Corporate Solicitor, Telecom Australia.”

Telstra FOI document folio P03022 (AS 925) is an internal email dated 23 September noting:

"In the current climate Telecom needs to be particularly careful with its correspondence to the CoT customers. I have engaged Denise McBurnie from Freehills to participate on an “as required” basis in this matter and it is appropriate that all correspondence from the CoT (and near CoT) customers should be channelled through Denise for either drafting of the reply from Telecom or for the reply direct from Freehills as our agent.

It goes on to say:

'Would you please ensure that with all customers that are, (or have the potential to become) serious complaints, correspondence is processed through Freehills with initial acknowledgement by the Region."

As already mentioned on page 21, under chapter ‘Short duration and 1800 call problems,’ Telstra already knew of these existing problems, but continued to conceal them and continued to incorrectly charge their customers for calls that were never received.

5^th October 1993: Robin Davey, AUSTEL’s Chairman provides a draft of the agreement to be used in the four COT Cases, for Graham Schorer (Golden Messenger), Ann Garms (Tivoli Theatre Restaurant), Maureen Gillan (Japanese Spare Parts) and Alan Smith (Cape Bridgewater Holiday Camp), Fast Track Settlement Proposal to Telstra’s Ian Campbell, Managing Director, Commercial  (AS 927) noting:

"Finally, if the attached letter (Attachment 'D') dated 7 July 1993 from Freehill Hollingdale & Page to one of the COT Cases’ solicitors is indicative of the way that Freehill, Holingdale & 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."

It is important to note that during the first week of January 1994, the COTs advised Warwick Smith, 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, Robin Davey, had also assured the COTs that Freehill’s would no longer be involved in their Fast Track Settlement Proposal. An internal Telstra email (FOI folio C02840) from Greg Newbold to various Telstra executives (AS 928) 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 Freehills."

Later, between January and March 1994, when the COTs again spoke to Warwick Smith concerned that Telstra had now appointed Freehills as their FTAP defence lawyers, the TIO’s response was that it was up to Telstra who they appointed as their arbitration lawyers, even though Alan also advised the TIO, in March 1994, that he was still having to register his phone complaints through Freehills and had still not been provided with any of the technical data to support Freehill’s assertions that there was nothing wrong with his telephone/fax service. This was a grave conflict of interest situation.

During and after Alan's arbitration he raised his concerns that the arbitrator had not addressed Freehill’s submission of Telstra witness statements that had only been signed by Freehills and not by those who were actually making the statements. Nothing was transparently done to assist Alan in this matter other than to send this witness statement back to be signed by the alleged author making the statement.

Alan’s appeal lawyer (Law Partners of Melbourne) was not only staggered to learn about this witness statement issue, but was also staggered to learn that none of the arbitration fault correspondence that had been exchanged between Freehills, Telstra and Alan was ever provided to Alan as it should have been according to the rules of discovery. In fact, Alan’s lawyer suggested that perhaps Telstra had originally appointed Freehills to be Alan’s designated fault complaint managers so that any of that correspondence would form what Telstra believed to be a legal bridge, so that Alan’s ongoing telephone fault evidence could be concealed under Legal Professional Privilege (LPP) during his arbitration.

Telstra’s continued use of Freehills throughout the COT arbitrations and the arbitrator’s refusal, in Alan’s case, to look into why Telstra was withholding technical data under LPP, suggested, at the time, that the arbitrator was not properly qualified as he didn’t seem to understand that Telstra could not legally conceal technical information under LPP.

As this story reveals, Dr Hughes was, in fact, not a graded arbitrator at all, and was not registered as an arbitrator with the arbitrator’s umbrella organisation, then called the Institute of Arbitrators Australia.  

19^th October 1993: This document from Denise McBurnie (Freehill's) to Telstra's Don Pinel titled Legal Professional Privilege In Confidence FOI folio A06796:  includes the following statements:

"Duesbury & FHP continuing of evaluating (blank) claim - final report to Telecom will be privileged and will not be made available to (blank).

Telecom preparing report for FHP analysing data available on (blank) services ie. (CCAS, Leopard, CABS and file notes) – this report will be privileged and will not be made available to (blank)." (AS 930)

In other words, Telstra FOI documents (folio R00524 and A06796) confirm Telstra were already hiding technical information from the COT claimants under Legal Professional Privilege. It is important to note here that Telstra had directed Alan to register his 'ongoing' telephone faults, in writing, to Denise McBurnie of Freehills in order to have those issues addressed. Alan found this not just time consuming, but also very frustrating, because by the time he received a response to one complaint he already had further complaints to register. It wasn’t until Graham and Alan entered the arbitration process that it appeared as though Telstra were using Freehills’ Legal Professional Privilege strategy to hide numerous important technical documents from the claimants, including the very same 008/1800 fault complaints that Alan had registered through Freehills, according to Telstra’s directions.

 

29^th October 1993: this Telstra FOI document folio K01489 Exhibit (AS 767-A) notes

"During testing the Mitsubishi fax machine, some alarming patterns of behaviour were noted, these affecting both transmission and reception. Even on calls that were not tampered with the fax machine displayed signs of locking up and behaving in a manner not in accordance with the relevant CCITT Group 3 fax rules."

The hand-written note in the bottom right corner of Exhibit AS 767-B, which states: “Stored in Fax Stream?” suggests that faxes intercepted via Telstra’s testing process are stored in Telstra's Fax Stream service centre so the document can be read, at any time, by anyone with access to Telstra’s fax stream centre. The Scandrett & Associates report proves that numerous COT arbitration documentation was definitely intercepted, including faxes travelling to and from Parliament House, the Commonwealth Ombudsman’s Office (COO) and the COTs and, in Alan Smith’s case at least, that this interception continued for seven years after his arbitration was over. This means, in turn, that Telstra had free access to in-confidence documents that the claimants believed they were sending ONLY to their accountants, lawyers and/or technical advisors (as well as Parliament House and the COO), and those documents could well have included information that the claimants might not have wanted disclosed to the defendants at the time.

 

 

Coopers & Lybrand Report

Towards the end of 1993 Telstra commissioned an international audit company, Coopers and Lybrand, to report on Telstra’s fault handling procedures, particularly in relation to complaints like those raised by the members of COT. In a letter dated 17 September 1993 (AS 1010) to AUSTEL’s Chairman, Mr Robin Davey, the then-Shadow Minister for Communications, Senator Richard Alston, wrote:

"Finally I note that Telecom propose to engage one of the "Big Five" accounting firms to audit its handling of the COT cases with Austel merely having unspecified access to the consultants and its output.

If such an audit is to have any legitimacy it is essential that it should be commissioned and paid for by Austel. To allow one party to litigation to select and pay - undoubtedly generously - for the judge would not be tolerated in any judicial proceedings. It should not be tolerated here."

Regardless of the concerns expressed by various government ministers, including Senator Alston, it was Telstra alone who paid Coopers & Lybrand and Bell Canada International Inc. to carry out that work. Then, in the case of the COT arbitrations, Telstra paid for the arbitrator and the arbitrator’s helpers who were then also exonerated from all liability for anything untoward that they might be involved in.

Senator Alston’s objections to Telstra being allowed to pay for both the Coopers & Lybrand audit of Telstra systems and the Bell Canada International Inc (BCI) audit of the main COT claims, and the telephone exchanges that the COT businesses were connected to, was particularly alarming because, as is now known, both those reports were not only orchestrated by Telstra, but were orchestrated by AUSTEL too, as their April 1994 ‘COT Cases Report’ clearly shows. (Note: these Bell Canada International Inc (BCI) tests are discussed in the next chapter)

This is even more alarming because, although all this auditing was carried out on behalf of the Government Regulator, Telstra was still able to manipulate the results by hiding any findings that went against them, whether those findings were reported by Coopers & Lybrand or BCI, and they accomplished this with even more manipulation, this time by using various exemptions in the FOI Act, such as Legal Professional Privilege (LPP) or adverse findings against Telstra marked as (ADV), as (AS 1015, 1016, 1017, 1018 and AS 1019) so clearly show.

A further alarming aspect of Telstra’s interference in the official auditing process is that any adverse findings could also be deliberately omitted from the formal Coopers and BCI reports that AUSTEL and the TIO had already agreed would be provided to the COT arbitrator. This meant that the arbitrator would never know what it was that Coopers and BCI found wrong with Telstra’s processes.

Since Alan has since proved that both the Coopers & Lybrand and BCI reports were fundamentally flawed and exhibits (AS 1015, 1016, 1017, 1018 and AS 1019) show that not all the adverse findings against Telstra have been revealed – even now – how then can the present Coalition Government condone the behaviour that led to the arbitrator not only accepting two thoroughly flawed reports as arbitration evidence, but then basing his final decisions, in part at least, on those flawed reports? 

How can the results of the COT arbitrations still stand, as they have for the last twenty years, when it has been obvious for some time that these were not the only findings against Telstra that Telstra has kept hidden, and that some of those hidden findings included technical documents that were falsified so the arbitrator would not uncover the truth about Telstra’s failing telecommunications network? How could Telstra get away with manipulating the law as it stood back then, in 1994, without even being asked to explain what really went on during the COT arbitrations?

It is important to note that when Coopers & Lybrand investigator, Robert Nason, and his secretary, Sue Hurley, met with Alan at his Cape Bridgewater Holiday Camp on 13 October 1993, Alan supplied them with evidence supporting his claims that Telstra had knowingly misled and deceived Alan during his 11 December 1992 settlement. Alan explained that two technicians visited Alan's businesses on 3 June 1993 to investigate his continuing complaints regarding his phone service and inadvertently left behind a briefcase. When Robert Nason and Sue Hurley saw this evidence they were shocked and likewise convinced that Telstra had clearly disadvantaged Alan's previous settlement claim.

A letter dated 3 November 1993 to Mr Robert Nason, (Coopers & Lybrand) from the Hon Senator Richard Alston, Shadow Minister for Communications (AS 938) notes:

"I have at last received a copy of your terms of reference and these make it clear that the review requires Coopers & Lybrand to "conduct an independent audit of (the) adequacy, reasonableness and fairness (of) Telecom's approach to Difficult Network Faults reported by customers over the last 5 years".

The review also explicitly requires Coopers & Lybrand recommendations to take "into account Telecom's legal obligations".

Despite the clear nature of these terms of reference I am disturbed to learn from several COT members that your review will not deal with questions of misleading and deceptive conduct".

While the final public Coopers & Lybrand report is almost identical in regards to Telstra's previous settlements with the COT Cases at point 2.20 to that as shown in their draft at point 2.20, it is important we highlight one particular variation

 

Draft

"We have found evidence that an inappropriate use of legal representation and aggressive tactics were used in negotiating settlements and attempting to develop a resolution process." (AS 939)

 

Final

"We believe that in some cases an inappropriate use of legal representation and aggressive tactics were used in negotiating settlements and attempting to develop a resolution process’s" (AS 940)

Alan has always been convinced that the segment referred to in the Coopers & Lybrand draft "have found evidence" was the same evidence Alan provided Robert Nason and Sue Hurley during their visit to Alan's business on 13 October 1993 which shocked them and left them both speechless. At point 3.5, 3.6 and 3.7 Nason clearly articulates he placed the Bell Canada International Inc Report, Coopers & Lybrand Report and the AUSTEL COT Cases Report into evidence.

Had Dr Hughes been provided the true findings in this case, those of Coopers & Lybrand as well as AUSTEL's secret findings on this settlement issue, as arbitrator he would have had to find against Telstra regarding these settlement issues instead of finding in favour of Telstra.

Although Senator Ron Boswell’s questions on notice were put to the Senate Estimate Committee Hearing in December 1993, they are most relevant to this date line, mostly because of the question that the Senator put directly to Telstra (AS 1030), i.e.: 

 

“In the review by Coopers and Lybrand of Telecom’s difficult network fault, policies and procedures will the terms of reference allow Coopers and Lybrand to examine the issues of misleading and deceptive conduct of Telstra?”

 

Telstra then replied:

 

“...Telecom does not accept that it has been involved in such conduct” and “Should allegations of such conduct arise in the course of C&L investigations, Telstra would expect C&L to have proper regard to such allegations on the conduct of its work” and “Telstra would also expect C& L to address any such allegations in its reports” (AS 1230). 

 

When Coopers & Lybrand later presented their draft report, it did include the suggestion that Telstra may have been party to misleading and deceptive conduct, but all those references were removed from the final version. The final version also excluded any references to a letter that Graham wrote to Robert Nason (a partner at Coopers & Lybrand) confirming that Telstra had knowingly sold faulty equipment to him, nor did it refer to the evidence that Alan also provided to Mr Nason supporting Alan and Graham’s belief that Telstra had knowingly misled and deceived them, nor did it include the evidence that Alan had found in the briefcase and also passed on to Mr Nason.

 

Perhaps this conduct was not disclosed, because it is directly related to the threats recorded in Telstra’s internal memo of 9^th November, from the Group Managing Director of Telstra Mr Doug Campbell to Telstra's General Manager of Commercial Mr Ian Campbell (AS 942), saying: 

"I believe that it should be pointed out to Coopers and Lybrand that unless this report is withdrawn and revised, their future in relation to Telecom may be irreparably damaged."

These are strong words from the most senior manager below the CEO of the largest telecommunications corporation in the country; a corporation that, at the time, had a monopoly hold on the industry in Australia.

Although the draft and final versions of the Coopers & Lybrand reports are not exactly complimentary of Telstra’s handling of COT matters, anyone reading them would not notice that by simply changing a word here and a phrase there, Coopers & Lybrand altered the draft so that the final version did not reveal what they really uncovered. For example, in paragraph 15 of the draft it is noted (AS 943) that:

"Telecom should satisfy itself that the customer premises equipment complies with Austel's technical specification or seek assurances from the customer that this is the case to ensure that the services supplied by Telecom are fit for purpose under the 1974 Trade Practices Act."

In the same section of the final version (AS 944) however, there is no mention of ensuring they that “…the services supplied by Telecom are fit for purpose under the 1974 Trade Practices Act.”

The draft report, at point 23 under ‘Other Recommendations’, notes (AS 945) that:

 "Fitness for Purpose: Telecom needs to issue, inter alia, instructions to sales, installation, maintenance, fault investigation and repair involved with PSTS and/or CPE work that checks must be made to ensure the PSTS will meet or continue to meet the "fitness for purpose" requirements of the 1974 Trade Practices Act for the circumstances they are dealing with."

In the final version Coopers & Lybrand have again left out the major issue of the service provided being ‘fit for purpose’ according to the1974 Trade Practices Act (AS 946), the very issues that AUSTEL advised the Government would be addressed by Telstra in a commercial settlement process, with no need for an arbitration if it was proved that Telstra had acted outside of the 1974 Trade Practice Act. But once again, here we have the arbitrator accepting the Coopers & Lybrand report, even though it did not include any reference to what Telstra should be doing according to the Trade Practice Act. 

Robert Nason has now been a senior executive in the Telstra Corporation for some time, including holding the position of Group Managing Director, Business Support and Improvement in 2014. In 2013 he was also appointed as Chairman of Foxtel, but before that, back in June 2010, Alan provided Mr Nason with a condensed draft version of this story and most of the Exhibits it refers to, in the hope that he could facilitate a resolution to Alan’s matters. Mr Nason has never responded.

However, Sue Laver, Telstra's General Counsel did write instead, noting:

I refer to your letter dated 1 June 2010 addressed to Robert Nason, Group Managing Director of Corporate Strategy & Customer Experience.

"Your claims were resolved pursuant to the arbitral award dated 11 May 1995. Over the thirteen years since the award, you have repeatedly sought to have your complaint re-opened. Telstra does not propose any further review of your claims or to respond to any further correspondence from you".

 

 

Impracticable Cape Bridgewater Bell Canada International Inc (BCI) tests

Cape Bridgewater’s local Member of Parliament for the Liberal Coalition, on 9^th December 1993 wrote to congratulate Alan for his 'persistence to bring about improvements to Telstra’s country services' and went on to say that he regretted 'that it was at such a high personal cost' and the then-Minister for Communications, Hon David Beddall, in the then Labor Government, also wrote, saying:

"Let me say that the Government is most concerned at allegations that Telstra has not been maintaining telecommunications service quality at appropriate levels. I accept that in a number of cases, including Mr Smith’s, there has been great personal and financial distress.  This is of great concern to me and a full investigation of the facts is clearly warranted".

The Shadow Minister for Communications (who later went on to become the Minister for Communications), and the National Party Senator, the Hon Ron Boswell, were pushing hard for a Senate Inquiry at this time. Senate Hansard records (the daily verbatim printed reports of Australian parliamentary debates) show that these Senators were assured by Telstra that the four main COT members would have their claims assessed commercially, in a specially designed, non-legalistic settlement proposal, to be called the Fast Track Settlement Proposal (FTSP). 

The decision for this FTSP was reached because all four main members of COT, Maureen Gillen, Ann Garms, Graham Schorer and Alan Smith, had suffered considerable consequential and resultant losses due to their many years of ongoing attempts to bring the matters to the attention of the Government. And because of their ongoing attempts and constant work aimed at finding natural justice through Telstra, on top of the losses caused directly by faulty phones.

With the sanction of the then-Labor Government, the Regulator arranged for an international expert to be brought to Australia to have a look at the exchanges and network that serviced the COT cases businesses. Bell Canada International Inc (BCI), technical telecommunications specialists from Ottawa, Canada, duly arrived to run tests on the network that serviced the cases. In Alan's case, these tests were allegedly carried out on the Cape Bridgewater network between 4^th and 9^th November 1993.

At the conclusion of these tests, BCI produced a report. Unfortunately, this report was not acceptable to the Australian Regulator since the BCI technicians had not tested the actual line between Alan's business and the nearest connection to the local exchange (called the Customer Access Network, or CAN). FOI documents numbered A00404 to A00407 (AS BCI 21) show that Telstra’s Commercial General Manager for Australia responded by letter to the Regulator on 15^th December 1993, saying: 

"The conclusion to be reasonably made from these events is that AUSTEL publicly judges the BCI report “fails to live up to the expectations raised by the terms of reference.

Reasonable inferences might be drawn about deficiencies in the competence, professional standing and integrity of BCI, and the competence and integrity of Telstra and myself in the conduct of the study and representation of the findings."

In this letter, Telstra goes on to discuss the COT Settlement Proposal (FTSP), saying: 

"Considering the above circumstances, Telstra cannot agree to attach a copy of the Regulator’s letter of 9 December to the BCI report if the latter is made available to the assessors nominated for the COT cases".

A hand-written note at the bottom of the last page of this letter states:  'There is a multitude of inaccuracies'.  This note is linked by an arrow to a reference to a letter dated 9^th December 1993, from the Regulator to Telstra (AS-002 BCI 20-A).  Some years after Alan's arbitration he received a copy of this 9^th December letter, under FOI (numbered K47052 to K47054).  The summary, at the end of this letter, stated: 

"Having regard to the above, I am of the opinion that the BCI report should not be made available to the Assessor(s) nominated for the COT cases without a copy of this letter being attached to it."

It is quite clear, however, from information Alan received in response to his FOI request of 18^th October 1995, that Telstra did not supply a copy of the Regulator’s letter to the arbitrator in Alan's case, or anyone else’s in the arbitration process.

If the full story of the Cape Bridgewater/BCI report (see AS-001 BCI Report and AS-002 BCI Exhibits 1 to 46) was to be properly investigated now, the investigators would be shocked to discover that some of Australia’s so called ‘most respected citizens’ closed ranks in a combined effort to discredit Alan’s BCI claims and hide the true extent of Telstra’s efforts to stop a full Senate Estimates Committee enquiry into their false reporting regarding the Cape Bridgewater/BCI tests (AS-002 BCI 1 to 46)

Both Dr Hughes’ award regarding Alan’s phone problems and the findings of the TIO-appointed technical consultants, DMR & Lane, verify that they did not assess and/or investigate any of the ongoing phone billing problems that Alan claimed to continue after the November 1993 Cape Bridgewater / Bell Canada International tests. This leaves very little doubt that both Dr Hughes and DMR & Lane believed the findings in the BCI report that stated that the Cape Bridgewater RCM was fault-free after the BCI investigations had been completed.

 

 

Protect This Information As Confidential

10^th November 1993: Details of information disclosed by Warwick Smith is given in Telstra FOI document folio A05993. This was not made available to Alan prior to signing the FTSP. It is marked CONFIDENTIAL Subject – Warwick Smith – COT Cases. This Telstra email is addressed to Telstra’s Corporate Secretary Jim Holmes, copied to Frank Blount Telstra’s CEO, author Chris Vonwilla states (AS 931)

 

"Warwick Smith contacted me in confidence to brief me on discussions he had in the last two days with a senior member of the parliamentary National Party in relation to Senator Boswell’s call for a Senate Inquiry into COT Cases.

 

Advice from Warwick is:

• Boswell has not yet taken the trouble to raise the COT Cases issue in the Party Room.
• Any proposal to call for a Senate inquiry would require, firstly, endorsement in the Party Room and, secondly approval by Shadow Cabinet.
• This would appear highly unlikely at this stage, given Boswell’s apparent lack of interest of raising it within the Party Room.
• The intermediary will raise the matter with Boswell, and suggest that Boswell discuss the issue with Warwick Smith. Warwick sees no merit in a Senate Inquiry.

 

He has undertaken to keep me informed, and confirmed his view that Senator Alston will not be pressing a Senate Inquiry, at least until after the AUSTEL report is tabled

Could you please protect this information as confidential."

It could be said that the advice Warwick Smith gave to Telstra’s Chris Vonwiller, in confidence, (that the Coalition Party was not keen on holding a Senate enquiry) could have later prompted Telstra to have the FTSP non-legalistic commercial assessment process turned into Telstra’s more preferred legalistic arbitration procedure, because they now had in-side Government privileged information there was no longer a threat of a Senate enquiry. Chris Vonwiller and Jim Holmes were both members of the TIO Board when this email went into circulation.

Two months after Warwick Smith provided Chris Vonwiller with his Government privileged information, he received advice on the 11^th January 1994, from Telstra’s arbitration COT liaison officer, Steve Black (AS 932) noting:

 

"It was agreed at a meeting between Mr Graeme Ward and Mr Steve Black of Telecom and Dr Bob Horton and Mr Neil Tuckwell of AUSTEL on 7 January 1994 that:

• Information obtained from Telecom, in the course of AUSTEL's regulatory functions, and relevant to any parties involved in a formal arbitration process with Telecom under the control of the Telecommunications Industry Ombudsman (TIO) will only be released after consultation with the TIO and Telecom".

The Acting Chairman of AUSTEL (now ACMA), Dr Bob Horton, also received a similar letter from Telstra's Paul Rizzio Finance & Administration (AS 933) noting:

         "To this end I wish to confirm the agreement reached between Mr Graeme Ward and Mr Steve Black in a meeting with you and Mr Neil Tuckwell today that:

• Information obtained from Telecom, in the course of AUSTEL's regulatory functions, and relevant to any parties involved in a formal arbitration process with Telecom under the control of the Telecommunications Industry Ombudsman (TIO) will only be released after consultation with the TIO and Telecom."

What these two letters show is that there were two meetings between the TIO Telstra and AUSTEL; one on 7^th of January and the other on the 11^th, agreeing to the same issue: allowing the TIO office to scrutinise what documents reached the COT arbitration process, and which would be concealed from the arbitrator.

 

When these two letters are read in conjunction with the 11 July 1994 letters (AS 934) it is quite clear that the TIO (the administrator to the arbitrations) and Telstra began their collusion prior to 11 July 1994, regarding what documents would reach the arbitration process. (AS 934) from Telstra’s Steve Black to Warwick Smith (TIO) notes:

 

   "Telecom will also make available to the arbitrator a summarised list of information which is available, some of which may be relevant to the arbitration. This information will be available for the resource unit to peruse. If the resource unit forms the view that this information should be provided to the arbitrator, then Telecom would accede to this request."

The statement: “… if the resource unit forms the view that this information should be provided to the arbitrator,” confirms that, during the very early part of the arbitration process, it was secretly planned that the Resource Unit would have the power to decide which documents would reach the arbitration process and which would be withheld.

The TIO, the arbitrator, the TIO Board and the TIO Counsel must all have known about this secret vetting of documents and destroying of evidence, just as they must have known that Telstra was not abiding by the process that had been formally agreed upon, in relation to the first four COT arbitrations, because none of the four were receiving the documents they needed to support their claims. This was the promise made by the TIO and the arbitrator in an effort to convince the COTs to abandon the original commercial assessment process and sign, instead, for the Fast Track Arbitration Procedure.

 

 

 

Issues continue

1^st November 1993, this Telstra internal email from Peter Zeagers to Nigel Beaman: FOI folio H36293 (AS 36) notes:

"All admin groups are being inundated with complaints from customers who have advertised their numbers as 1800 but their customers are simply unable to get through to them. I have spoken to our fault staff at Waverley who are also inundated with same complaints”.

3^rd November 1993: this Telstra FOI document, folio C00757 (AS 6), appears to explain why Alan had lost so much business; apparently he had ceased trading but had not known it at the time, as this internal Telstra memo so clearly notes:

“As a result of the investigations into difficult customer complaints and associated reports it has become apparent that the present Recorded Voice Announcement (RVA) for incorrect numbers requires revision. The RVA in question is worded:

‘The number you have called is not connected or has been changed. Please check the number before calling again.’

Document AS 6 then goes on to say:

“...this message tends to give the caller the impression that the business they are calling has ceased trading, and they should try another trader.” 

In other words, because Alan’s 008/1800 freecall service line worked through his 055 267 267 line, he was losing bookings from both the businesses that used his main 055 276 267 phone number, i.e. general school and social club bookings, but he was also losing bookings from singles club patrons who mostly used his 1800/freecall number.

The next internal Telstra RVA email (FOI folio A03544) and (AS 6) further stated:

“I am sure when we start to scratch around we will find a host of network circumstances where inappropriate RVAs are going to line.”

5^th November 1993: Telstra Internal Memo H36178. Telstra’s Greg Newbold, Group Communications Manager, alerts Harvey Parker, Group Managing Director – Commercial and Consumer, about the short duration post dialling delays affecting Telstra’s 1800 customers:

"Bruce is concerned that the matter requires fixing at a national network level not just on a fault by fault basis. He also raises the question whether we should be actively promoting 1800 in the current circumstances." (AS 45 B)

10^th November 1993:  This letter to Alan from D. Madden & Co (Lawyers) from Warrnambool (Victoria) notes:

 

"I am writing in reference to the proposed Senate committee investigation into Telecom.

As you are aware, I am employed as telephonist with a large legal firm in Warrnambool. In the course of my employment, and particularly during the months of July and August this year, numerous service faults have been brought to my attention." (AS 1011).

 

 

 

Fast Track Settlement Proposal

As a result of their own investigation, the Regulator had come to the conclusion that there were problems in the Telstra Network and that the COT four had been diligent in bringing these issues into the public domain. It looked like four Australian citizens, without any financial backing (and now all close to being bankrupt) had won a significant battle.

Because they were all in such difficult financial positions due to their phone services not being up to network standard, and because they had certainly proved their phones were still not working properly, the Chairman of the Regulator pressured Telstra into appointing a commercial loss assessor to arrive at a value for their claims against Telstra. This was to be the non-legal Fast Track Settlement Proposal (FTSP), and it was to be set up so the COT four would have prompt and speedy access to any discovery documents they might need to enable them to complete their claims as quickly as possible.

Telstra agreed to rectify any on-going phone faults before the assessor handed down any decision regarding payouts. After all, what good would a commercial settlement be if the phone faults continued? Again, the COTs’ spirits rose and they began to feel they were getting somewhere at last. They had discussions with the Regulator’s Chairman and he verbally assured them that any preparation costs they might incur would be considered as part of their losses, so long as they proved their claims.

18^th November 1993:  This same Chairman would not confirm this assurance in writing because, he explained, it could set a precedent. Telstra’s Corporate Secretary had written to him on 18^th November 1993 (FOI document number R10799), pointing out that:

“…only the COT four are to be commercially assessed by an assessor. For the sake of convenience I have enclosed an amended copy of the Fast Track Proposal, which includes all amendments.

To facilitate its acceptance by all or any of the COT members I have signed it on behalf of the company.  Please note that the offer of settlement by this means is open for acceptance until 5 pm Tuesday 23 November 1993 at which time it will lapse and be replaced by the arbitration process we expect to apply to all carriers following the Regulator’s recommendations flowing from this and other reviews.”

23^rd November 1993: Graham Schorer, Ann Garms, Maureen Gillan and Alan Smith signed the FTSP, trusting in the Regulator’s verbal assurances that consequential losses would be included. These signed FTSP agreements were forwarded to Telstra’s corporate secretary. Alan included a letter with his agreement, clearly putting his expectations of the process: 

“In signing and returning this proposal to you I am relying on the assurances of …, Chairman of the Regulator, and …, General Manager of the Regulator’s Consumer Affairs Department, that this is a fair document.  I was disappointed that … was unwilling to put his assurances in writing, but am nevertheless prepared to accept what he said.

I would not sign this agreement if I thought it prevented me from continuing my efforts to have a satisfactory service for my business.  It is a clear understanding that nothing in this agreement prevents me from continuing to seek a satisfactory telephone service.”

The four COT members felt some sense of achievement, although Maureen’s health was beginning to fail. The pressure on all four of them had been immense, with TV and newspaper interviews as well as their continuing canvassing of the Senate. The stress was telling by now, but Alan continued to fight for a change in rural telephone services.

The Hon David Hawker MP, Bridgewater’s local Federal Member of Parliament had been corresponding with Alan since 26^th July 1993 (AS 1013).

"A number of people seem to be experiencing some or all of the problems which you have outlined to me.”

It goes on to say…

“I trust that your meeting tomorrow with Senators Alston and Boswell is a profitable one"

and on 18^th August 1993 (AS 1014):

"Further to your conversations with my electorate staff last week and today I am enclosing a copy of the correspondence I have received from Mr Harvey Parker, Group Managing Director of Commercial and Consumer division of Telecom.  

I wrote to him outlining the problems of a number of Telecom customers in the Western Districts, including the extensive problems you have been experiencing."

25^th November 1993: Page two of this Telstra internal (AS 46-A) letter states:

"The following is an assessment of the individual disputes highlighted by Mr Smith. From the information given, little more can be offered for explanation than, ‘This is not the way it should work, we need to investigate to find cause.’

It goes on to point out:

1. Calls to Traralgon, being charged on busy. “This situation should not have occurred.

 

And further states:

 

3Calls to RVA, “…being charged for RVA is not correct operation.”

30^th November 1993:  This Telstra internal memo FOI document folio D01248, from Ted Benjamin, Telstra’s Group Manager – Customer Affairs and TIO Council Member writes to Ian Campbell, Customer Projects Executive Office. Subject: TIO AND COT. This was written seven days after Alan had signed the TIO-administered Fast Track Settlement Proposal (FTSP). In this memo Mr Benjamin states:

            "At today’s Council Meeting the TIO reported on his involvement with the COT settlement processes. It was agreed that any financial contributions made by Telecom to the Cot arbitration process was not a matter for Council but was a private matter between Telecom, AUSTEL and the TIO.

I hope you agree with this."

This shows that Telstra was partly or wholly funding the arbitration process.

If the process had been truly transparent then the claimants would have been provided with information regarding the funds – specifically, the amounts provided to the arbitrator, arbitrators resource unit, TIO and TIO special counsel for their individual professional advice throughout four COT arbitrations.

It is still not known how the arbitrator billed Telstra for his professional fees or how the TIO billed Telstra for his fees, and those of the TIO-appointed resource unit and special counsel. This raises the questions:

• Was the arbitrator and resource unit paid on a monthly basis?
• Did the resource unit receive any extra bonus for being secretly appointed as the second arbitrator in determining what arbitration documents the arbitrator was allowed to receive and what was withheld (see letter dated 11^th July 1994, from Telstra to Warwick Smith)?

Without knowing how these payments were distributed by the defendants to the parties involved in the first four arbitrations, it would be impossible for the TIO and AUSTEL (now the ACMA) to continue to state that the COT arbitrations were independently administered.

To summarise the issue: during these four arbitrations, the defence was allowed to pay the arbitrator and those involved in the process. How is this different to the defendant in a criminal matter being allowed to pay the judge? It is a clear and concerning conflict of interest.

Senate Hansard, dated 26^th September 1997 (AS 232-B), confirms that during a Senate hearing into COT issues, the then-new TIO, John Pinnock, agreed that Mr Benjamin had not removed himself from Council discussions when COT arbitration matters were discussed:

Senator SCHACHT – "…Mr Benjamin, you may think that you have drawn the short straw in Telstra, because you have been designated to handle the CoT cases and so on. Are you also a member of the TIO Board?

Mr Benjamin – "I am a member of the TIO council".

Senator SCHACHT – "Were any Cot complaints or issues discussed at the council while you were present?"

Mr Benjamin – "There are regular reports from the TIO on the progress of the Cot claims".

Senator SCHACHT – "Did the council make any decision about Cot case or express any opinion?"

Mr Benjamin – "I might be assisted by Mr Pinnock".

Mr Pinnock – Yes?"

Could there possibly be a more sinister political twist to Mr Benjamin being allowed to attend TIO Council meetings when the COT arbitration claims were being discussed? It certainly seems that there could be, because it was Mr Benjamin who was in control of which documents the COT claimants could be received in response to their FOI requests, and when that information would be released. It is believed this ties in with Mr Benjamin’s constant pressure for the TIO to investigate these FOI issues and the TIO’s reluctance to do so, since he had already supplied private COT / government particulars to Telstra members of the TIO Board.

The decision to allow the defendants to attend these meetings without inviting the claimants was made by the TIO Council Chairman, the Hon Tony Staley, who was then also the Federal Liberal Party Treasurer. This clearly raises questions about what political motives might have been behind that decision, particularly when it was clearly to the detriment of the claimants.

Mr Staley also falsely advised his liberal party colleagues, on numerous occasions, that the TIO-administered COT arbitrations had all been conducted according to the principals of natural justice when he knew, certainly in Alan’s case at least, that Mr Benjamin had deliberately withheld some of the most relevant Bell Canada Internal Inc. (BCI) Cape Bridgewater information from Alan, on behalf of Telstra, even though Alan had quite rightly requested that information under FOI rules, in May 1994. 

Mr Benjamin eventually released these documents, without ever assessing them, on 23 May 1995, two weeks after Dr Hughes had deliberated on Alan’s claims (AS 819).  This means that, as a direct result of attending those monthly TIO Council meetings, Mr Benjamin knew exactly where the arbitrator and his TIO-appointed Resource Unit were at with their investigations, and when a final award would be provided. This meant that Telstra knew exactly which of the most damning documents to conceal and when it would be safe to release them. In Alan’s case, that was after the designated arbitration appeal period had expired on 23 May 1995.

Sinister may not be the first word to describe the discovery that, in his position as Chairman of the TIO Council, Mr Staley received a letter (AS 1027) dated 2 June 1994, from John Pinnock (TIO) concerning another proposed arbitration process that noted:

“In part my position has hardened because of the many problems

 and deficiencies in the Arbitration process”,

but still Mr Staley continued to write to Alan (and we assume others), claiming quite the opposite of Mr Pinnock’s claim regarding the COT arbitrations. And Mr Staley’s letters are now included in privileged Government archives, as if they were the truth.  

6^th December 1993: This letter from Trevor Hill, Telstra's Corporate Management, to various other Telstra's executives FOI folio R04207/8 notes:

 

"The purpose of this memo is to provide formal Corporate Regulatory feedback to your project team on issues relevant to the development of service specifications and testing procedures arising out of the “COT Case” investigations.

I am concerned that within the project team there appears to be undue focus on trying to develop a service specification which will be “all things to all people.” That is, there would appear to be an attempt to develop a specification not only BCS service difficulties but also potential difficulties arising from a customer use of CPE. This is not appropriate. AUSTEL has already issues technical standards in relation to CPE and its connection to a carriers network” and

Telecom’s acceptance should only occur after a careful process of consideration and deliberation and with a full understanding of the impact upon the Company in terms of the delivery and ongoing monitoring of services within those specifications."

FOI folio R04207/8 document shows that Telstra are aware of the relevance of performing correct testing procedures – example: Service Verification Testing (SVT) Testing.

13^th December 1993: This Telstra internal email FOI folio R04205 (AS 419) shows quite clearly that AUSTEL’s Deputy Chairman, Bob Horton (ex-Telstra Executive), allowed Telstra to limit their mandatory parameter testing to only those customers that Telstra stated required testing:

"This Email is to alert you to a possible regulatory interaction with the current work on “COTS Cases” and ongoing work with AUSTEL on network performance.

As you know, a Ministerial Direction gave AUSTEL power to set end-to end network performance standards.”

It goes further to state:

“The AUSTEL staff member leading the group originally wanted a very wide list of mandatory parameters but after discussion with Bob Horton and a presentation to the Standards Advisory Committee by Yasmin, AUSTEL have agreed to limit the scope of the initial work to the few parameters our customer surveys had shown as being of most concern."

Bob Horton, referred to in the above memo, was AUSTEL’s Acting Chairman at the time.

It is easy to see just how bad this situation was by simply linking this limiting of the mandatory testing with another Telstra internal email (FOI folio A09392) dated 15 November 1993, (AS 418) which states that:

"Parameters for Cape Bridgewater RCM have been obtained, but I don’t believe them - I am attempting to check them. Some of the people supplying this information live in’ old Telecom’!".

The reader has only got to compare Exhibits AS 418 and 419 with AS 487, which are the covert findings included in AUSTEL’s Cape Bridgewater Holiday Camp March 1994 report which notes, at point 212:

"In view of the continuing nature of the fault reports and the level of testing undertaken by Telecom doubts are raised on the capability of the testing regime to locate the causes of faults being reported."

In other words, AUSTEL and Telstra suspected that Telstra's Service Verification Testing of Alan's telephone service lines would NOT locate the  'causes of faults being reported,' either during or after his arbitration. 

 

 

 

More 1800/800 fault deliberations/More damning evidence

16^th December 1993: This letter from Denise McBurnie of Freehill Holligdale & Page (FHP) in response to Alan’s letter of 6 December 1993 states:

“With respect to your comment concerning a customer from Mount Gambier, South Australia, who has reported to you that he had difficulty contacting you on your 008 service, if you are able to provide our client with more details (such as the caller’s telephone number) our client may be able to investigate and comment further on the problem which this customer reported to you". (AS 602)

 

Neither Telstra nor FHP explained why this Mt Gambier customer and numerous other customers were all experiencing the same problems. What this document does again confirm is that Alan, where his telephone problems and faults were concerned, had to deal directly with Telstra’s outside lawyers before his phone faults were investigated.

Documents (AS 59) are two letters; one dated 4 January 1994 from Alan to Ms McBurnie and the other dated 28 January 1994, also to Ms McBurnie’s response. These two documents show that Freehills had a significant input into settling the technical issues associated with Alan's phone problems, which continued to affect his businesses endeavours both during and after his arbitration. Not only was Freehills Telstra’s arbitration defence lawyers in both Graham and Alan’s arbitrations, these letters show they also advised Telstra on how to address COT related technical issues before the start of the arbitrations. Since none of the 008/1800 information Alan provided to Freehills was ever returned to Alan in response to his arbitration FOI requests. Could Telstra have originally set up this system of the COT Cases registering their phone complaints through Freehill's, with the sole aim of concealing all information concerning those complaints under Legal Professional Privilege.

20^th December1993: This internal email FOI folio A0035 from Telstra's Don Pinel to various other executives within Telstra notes:

"I understand there is a new tariff filing to be lodged today with new performance parameters one of which commits to 98% call completion at the individual customer level. Given my experience with customer disputes and the recent BCI study, this is a cause for concern. We will not meet this figure in many exchanges around Australia particularly in country areas.

I assume that it is too late to stop the filing (and we may not want to even if there is a downside) but this has the potential to cause us a major pain in the CoT area."

Apparently, Telstra were quite aware that their rural exchanges were not up to network standard.

This issue has still never been properly investigated, either by any of the various Ministers for Communications that have been appointed since 1995.

6^th January 1994: This letter to Telstra's Steve Black from AUSTEL's General Manger of Consumer John MacMahon FOI folio 000762 notes:

"You are probably aware of Mr Smith ongoing complaints as to the efficacy of his 008 service - he maintains that many callers receive a RVA advising that the number is no longer connected.

Further to that point is the experience of the Portland Tourist Information Centre which is now complaining of precisely the same problem".  

7^th January 1994: Internal Federal Government memo from Tom Dale, of Minister Lee’s Office with the subject cot cases (AS 48-F) states

"I spoke with Warwick Smith in light of today’s reports that he is investigating the telephone monitoring allegations.”

He later writes:

“He also mentioned that the fast-track claim settlement process was not getting anywhere due to the COT cases knocking back the TIO’s proposal for people to determine their claims. We should not give the Minister the impression that the fast-track would fix things: it is far from certain."

The issue being discussed regarding whether the ‘fast-track’ would fix these matters should have been addressed prior to the commencement of the FTSP. Robin Davey had already written to the previous Minister, the Hon David Beddall MP, on the 26^th August 1993, advising him that Telstra was aware of faults still affecting Cape Bridgewater (AS 48-G) stating on page 4:

Cape Bridgewater – "…Telecom has admitted existence of unidentified faults to AUSTEL."

This raises the following questions of AUSTEL, as the facilitators to Alan’s arbitration:

(a)  Why was this admission by Telstra to AUSTEL, and the advice given by AUSTEL to the Minister regarding these unidentified faults in existence, hidden from Alan and his technical advisors during his arbitration?

(b) Why did AUSTEL and the Government allow Telstra to submit under oath in their arbitration defence of Alan’s claims, during Telecom’s fault investigation at Cape Bridgewater during 1988 to1994, that they found no faults which would have affected Alan’s business endeavours?

It is important to remind the Telecommunications Industry Ombudsman (TIO) and the Australian Communications and Media Authority (ACMA) that Telstra’s Corporate Secretary, Jim Holmes, was advised in all three emails (AS 641) A01554, A06507 and A06508 that the Leopard Fault data had been destroyed once it was more than twelve months old, and he was a member of the TIO Board when the first four COT claimants signed the arbitration agreements. But it seems that Mr Holmes did not warn the Government, which had endorsed the arbitration agreements; or the TIO, who administered the arbitrations, that the claimants would not be able to support their claims effectively, because Telstra had destroyed all the historic data, at least from 1992 onward.

Have the TIO Board or the ACMA Board ever stopped to consider what followed, after Telstra kept this information secret? Have they ever considered the financial cost to each claimant as they tried to access this Telstra information? All of the COT cases accumulated costs that ran into hundreds of thousands of dollars trying to access this non-existence fault data (and other Telstra data) in support of their arbitration claims.

In summary – AUSTEL’s hiding of their true adverse findings against Telstra has cost Alan dearly and what the TIO, AUSTEL and now ACMA have failed to understand is that it took eighteen months and an enormous financial burden to complete Alan’s arbitration claim, and all he was unknowingly doing was attempting to prove the facts that AUSTEL had already proved (in their draft report). All the while Telstra submitted false witness statements, under oath, denying there were any problems of significance that had affected Alan’s business.

Have the ACMA Board, the TIO Board and the TIO Council fully understood how much it has cost taxpayers for Telstra to defend Alan’s claim, when Telstra was a fully-Government-owned corporation? The cost to the taxpayer included the hiring of the TIO-appointed arbitrator; the TIO-appointed Special Counsel; and the TIO-appointed Resource Unit – and all this money was spent as part of a process where the Government Communications Regulator AUSTEL had already secretly found in favour of Alan’s claims.

 

 

Who Paid Grant Campbell?

10^th January 1994: This TIO document (AS 542-A) confirms that Grant Campbell was handling Alan’s related FTSP and (Ferrier Hodgson Corporate Advisory) the TIO-appointed Resource Unit correspondence to Telstra on behalf of the TIO.

         Alan was never informed before his arbitration that Grant Campbell had been seconded from Telstra, nor that he had defected back to Telstra all within a twelve-month period. These following exhibits confirm that an unhealthy relationship between the TIO office and Telstra certainly existed during the period Alan was in arbitration.

It is interesting to note that the 1993/94 TIO Annual Report does not list Mr Campbell as having worked for the TIO office, even though Mr Campbell held a senior managerial position with the TIO office. Please consider the following points:

1. TIO documents dated 9^th February 1994 (AS 542-B) confirm that Grant Campbell was signing letters on behalf of Warwick Smith, particularly in relation to the fax billing and lock-up complaints included in Alan’s Smith’s FTSP claims.

 

2. Telstra FOI documents H00027 H36279, and H36280 (AS 542-C) confirm that, in January and February 1995, Grant Campbell and Ted Benjamin were addressing the same types of 008/1800 billing issues on behalf of Telstra’s Customer Response Unit. This is the same Unit that Ted Benjamin headed when he wrote to Dr Hughes on 16^th December 1994 to confirm that Telstra had advised AUSTEL, in writing, that they would address Alan Smith’s 008/1800 billing issues as part of their defence of his claim, as per the arbitration agreement. Alan has always been concerned about Grant Campbell’s handling of Alan’s 008/1800 arbitration materials that went through the TIO’s office in 1994.

         During the early stages of the COT arbitration process the COT claimants were told that Pia Di Mattina had been seconded from Minter Ellison by the TIO to assist him in the COT Arbitration Process. Miss Di Mattina’s name, understandably, does not appear in the TIO 1993/94 employee list that is included in the 1993/94 Annual Report (the report can be supplied on request), although all the other TIO employees are listed there, but it is also interesting to note that Grant Campbell’s name is not included on the employee list either, even though he dealt with a number of the billing issues during Alan Smith’s arbitration, as well as accepting part of Alan Smith’s original FTSP claim lodged with the TIO office on 27^th January 1994.

This Telstra internal email FOI folio 000973 (AS 542-E) notes:

"The ex-employee’s name is Grant Campbell. Grant then worked as the Deputy Telecommunications Industry Ombudsman and then on a senior management review team".

On the 9 February 1994, Mr Campbell wrote to Telstra’s Fiona Hills, under the heading Loss of Fax Capacity, noting:

"I spoke with Alan Smith on the 9 instant following our discussion on the 8 instant. He has agreed that this is a new matter and whilst it may be indicating some ongoing problems, it is not a matter that relates directly to the preparation of his material to be presented to the Assessor".

Mr Campbell’s statement to Fiona Hills that “He [Alan Smith] has agreed that this is a new matter” does not match the information in (AS 767-A, 768, 769, 770, 771, and AS 772-A) which confirm that local (Portland) Telstra technicians were aware of the major problems associated with the faxing capacity issue, at least as far back as October 1993. Mr Campbell’s correspondence was, therefore, clearly misleading fellow Telstra employees and, possibly, Warwick Smith also, about the ongoing problems. This adds even further weight to both Graham and Alan’s claims that there needs to be a transparent investigation into the TIO-administered COT arbitrations.

It is amazing enough to find that Grant Campbell was seconded from the employment of the defendants during the COT arbitrations, but it is even more amazing to learn that, while he was wearing his TIO hat, he was also working on 1800 problem claims lodged by another COT claimant but, in this instance, he was wearing his Telstra hat!  These two different ‘hats’ must lead directly to an understanding that no-one may ever know how many claim documents the COT cases sent to the TIO’s office while Grant Campbell was wearing his TIO hat but being paid by Telstra.

We may never uncover how many arbitration procedural documents never made it to the viewing room that the TIO-appointed, secretly-absolved-from-risk, arbitration Resource Unit appeared to have access to.

We have raised the issue of this Grant Campbell fax capacity issue here because Dr Hughes’ technical Resource Unit never provided Alan with the results of their investigations into the lost faxes, even though it cost Alan well over to $200,000.00 to participate in the arbitration process; and even though clause 11 in the official Arbitration Agreement notes: 'The Arbitrator's reasons will be set out in full in writing and referred to in the Arbitrators award, the lost fax issues were not referred to: 'in full in writing' in the Arbitrators award.

Like Grant Campbell, Warwick Smith and his appointed Arbitration Technical Resource Unit they appear to have misunderstood the significance of the 008/1800 problem, because they failed to alert Dr Hughes that the 008/1800 service Alan used was actually routed through his main service line, 055 267 267, the line that one of the two faulty EXICOM phones was connected to – the phone that was prone to lock-up after each terminated call. In other words, when the Resource Unit advised John Pinnock (TIO) on 15 November 1995, and Dr Hughes on 2 August 1996 (AS 220), that Alan’s 008/1800 billing claims were not addressed, they were also admitting to not investigating or addressing Alan’s main service line 055 267 267.

Was there a more sinister motive behind the decision to ignore Alan’s billing claims, the same 008/1800 billing faults that Telstra’s Grant Campbell was investigating while working with the TIO (on secondment from Telstra) and then working on again, later, after he went back to Telstra to work alongside TIO Council Member Ted Benjamin?

Did Ted Benjamin's relationship with Telstra and the TIO Council have anything to do with his later relationship with Grant Campbell? There appears to be NO doubt that this particular issue – of Grant Campbell addressing 008/1800 problems on behalf of the TIO and then on behalf of Telstra, all during Alan’s arbitration – created a massive conflict of interest.

Could it be that, when Alan told Mr Campbell that he needed all the documents related to his earlier settlement, from before December 1992, so he could show how undemocratic this 1992 settlement process was, that Mr Campbell then passed that information straight on to Telstra, thereby effectively alerting Telstra to which documents they could ‘lose’ because it was relevant to Alan’s case?  It is also interesting to connect this issue to a letter written on 11 November 1994, to Telstra from the Commonwealth Ombudsman’s Office, asking why the earlier settlement material that Alan had requested under FOI had still not been supplied to him.

 

 

Telstra's 'Fast Track' Proposed Rules of Arbitration

A forensic assessment of this 10 January 1994 document will show that, except for a few minor cosmetic changes, the agreement that the four COT Cases signed on the 21 April 1994, believing (as did various government ministers) that it had been drafted by the President of the Institute of Arbitrators, had in fact been drafted by the defendants lawyers

The arbitration agreement Alan signed, along with three other claimants, included a confidentiality clause that covered events that occurred DURING the arbitrations process but did NOT cover events that occurred before the arbitration had commenced. Even BEFORE the parties signed the agreement, and without the claimants’ knowledge or consent, a meeting on 22 March 1994 was attended by Steve Black (Telstra's arbitration liaison officer), David Krasnostein (Telstra’s General Counsel), Simon Chalmers (Telstra's arbitration lawyer), Peter Bartlett (TIO Special Counsel), Dr Hughes (Arbitrator), Warwick Smith (TIO) and the TIO’s secretary, Jenny Henright. This meeting discussed important issues concerning the conduct of Alan's arbitrations without the presence of any COT claimant or their representatives and, because of the secrecy surrounding this meeting, the claimants weren’t even able to comment on the proposals put to the meeting.  If Graham Schorer (COT spokesperson) and Alan had been represented in the same way that Telstra was represented at that meeting, then the resulting alterations to two of the clauses in the arbitration agreement would certainly never have been allowed.  If Alan had known about the meeting and the alterations had been discussed at this meeting a month before Alan's lawyers agreed to accept the unchanged agreement, he would never have agreed to sign it.

After reading our story various observers from all walks of life could argue that Telstra acted outside the law DURING Alan's arbitration when they submitted false evidence, including manufactured test results, under oath, in a clear attempt to stop the arbitrator’s technical consultants from investigating the ongoing telephone problems that were still being experienced by Alan's business, even during the arbitration deliberation period, but this is not what Alan is raising here; what Alan is most concerned about is the conduct of the TIO and the arbitrator before he signed the  FTAP confidentiality clause which was attached to the Arbitration Agreement.

 

 

GLOSSARY

 

008/1800                      The 008 & 1800 free call service allows a call to be dialed by a customer/client via long distances and the receiver pays the call.

Arbitration                Legal hearing to settle a civil dispute

ARK                          A type of Telstra telephone exchange, designed in the 1970s.

ASIS                         Australian Secret Intelligence Service

AUSTEL                   Australian Telecommunications Authority

AXE                          Ericsson manufactured AXE telecommunication exchange equipment

BCI                           Bell Canada International Inc.

Technical telecommunication specialists from Ottawa, Canada.

Busy Hour                The hour of the day when the average traffic of a telephone exchange is highest.

CAN                          Customer Access Network

The part of the network between the telephone exchange main distribution frame and the Service Delivery Point at the customer premises.

CANES                     Customer Access Network Evaluation System

C&C system – provides a complete fault registration, recording, diagnosis & analysis environment aimed at improving responsiveness to reported faults. Uses A1 technology; interfaces with SULTAN.

 

 

CCAS                        Call Charge Analysis System

 

For monitoring charging of selected services in analogue exchanges.

 

CCAS ELMI              Telstra monitoring equipment

CENTOC                   Centralised Traffic Occupancy

Computerised traffic recording & monitoring for analogue exchanges.

CHARMS                   Charging Maintenance System

Provides locations, rates & charging scales for Telstra’s customer charging

CLI                            Calling Line Identification

A customer facility in crossbar and SPC exchanges for billing and surveillance purposes – identifies the number of the calling party’s line.

COT                          Casualties of Telstra

Formerly known as Casualties of Telecom. A group of small-business people who banded together because all their businesses suffered from major telephone problems which Telstra did not address.

COT four                  The inaugural members of the COT group:  Ann Garms, Alan Smith, Graham Schorer and Maureen Gillian

 

 

 

CPE                          Customer Premises Equipment

All telecommunications terminal equipment located on the customer premises, from the analogue telephone to the most advanced data terminals and customer switches.

Discovery                 Legal term indicating documents relating to compulsory disclosure of facts (often ordered by a court)

 

DNF                          Difficult Network Fault

DOTAC                     Department of Transport & Communications.

Please note: the abbreviation for the Communication’s Ministers Office being used by Telco’s DCITA – Department of Communications Information Technology and the Arts.

ELMI                        Telstra monitoring equipment used to check the phone lines from the local exchange to the customer’s premises

EOS                          End of Selection code

Used to monitor switching & congestion loss. Please Note: this equipment allows the person operating the monitoring switching device to listen in on conversations.

Erlings                     Telecommunication’s measurement system used to evaluate the number of calls a specific exchange can handle at any one time

FHCA                       Ferrier Hodgson Corporate Advisory (accounting and liquidation firm)

 

 

 

FLEXICAB                A system similar to CABS (see above) but, with many more processes, and capable of producing very meaningful management reports.

FLEXITEL                        

FTAP                        Fast Track Arbitration Procedure

The second process set up in an attempt to settle the COT claims

FTSP                        Fast Track Settlement Process

A specially designed, non-legalistic commercial assessment process, specifically designed for the original four members of COT

FOI                           Australia’s Freedom of Information Act

Hansard                   The unofficial name given to the daily printed reports of Australian parliamentary debates.

ISDN                                 Integrated Services Digital Network

(CCITT) – A switched digital transmission network that provides, through a single digital access point, speech, data & other telecommunication services.

LEOPARD                Local Engineering Operations Processing and Analysis of Recording Data

A plant recording & maintenance system for telephone services; a computerised system to cater for all field technical records associated with provision and maintenance of services.

Litigation                 A legal hearing.

LOOP                        Pair Gain Signaling System

LTS                           Local Telephone Switching

Macrolink                 Telstra’s Primary Rate Access ISDN

MCT                         Malicious Call Trace

MDF                          Main Distribution Frame

Structural hardware, on one part of which terminate the permanent outside lines entering the customer’s premises, and on another part of which terminate the subscriber line multiple cabling. Used for associating any outside line with its corresponding internal exchange wiring.

MOSAIC                   Trouble Management system

That Telstra used to replace the Leopard system of fault recording.

Multiplexer               The combining of multiple channels onto a single transmission medium; any process through which a circuit normally dedicated to a single user can be shared by multiple users.

MP                            Member of Parliament

MUX                         Multiplexer

Telephone equipment at a local exchange

Natural Justice        A legal philosophy that is instinctively known to be right and fair

NCA                          National Crime Authority

 

 

 

NEAT testing            Network Evaluation and Test system

A test call system consisting of remote transponders, each connected at the network exchange MDF point as a normal customer, and central management and control unit. This system can conduct a schedule of test calls between transponders to measure call set-up, and hold performance, together with transmission, noise, post dialing delay, and other tests.

NODE                       A point of a network where various links come together, and which generally contains a switching element to direct traffic.

NRR                          Not Receiving Ring

OFMUX                     Optical Fibre Multiplexer Equipment

Outrage                    Is the time that Service to the customer will be unavailable for.

Procedural Documents     Documents used in a legal process

 

PABX                        Private Automatic Branch Exchange

A small switching system located on a customer’s premises which serves speech and data extensions within a business complex and provides access to the public network.

PTARS                     Telephone testing system that is installed in a local exchange to count the number of calls on a designated line.

 

 

 

PSTN                        Public Switched Telephone Network

Public telephone network that generally provides switching and signaling for local, long distance, and international voice and low speed data.

R00 faults                 When the phone rings once or twice and then stops before it can be answered

RAX                          Rural Automatic Exchange

A type of Telstra telephone exchange, designed in the 1940s / 1950s, specifically for low-call-rate areas only (see also ARK)

RCM                         Remote Customer Multiplexer

Modern unmanned local telephone exchange used in rural areas

REARK                     Private company that produces TELCATS reports.

RUBAS                     Traffic figure based on the 50 highest half hour average traffic figures over a 7-day period.

RVA                          Recorded Voice Announcement

A recorded message a caller may hear in place of a ring tone. E.g. “the number you have called is not connected.”

SMART 10                Subscriber Monitoring & Registration Terminal

This system operates similar to the CCAS see above.

STD                          Subscriber Trunk Dialing 

Timed calls charged according to the distance between the connected telephones

SULTAN                   Subscriber Line Test Access Network

Provides test information vital for diagnosis of customer fault reports and network performance monitoring – used with LEOPARD and CANES –C&C system.

Telecom                   Australian Government Telecommunications Company

(later became Telstra and was partially privatised in 1997) 

Telstra                      Australian Government Telecommunications Company

(previously called Telecom; partially privatised in 1997)

TIO                            Telecommunications Industry Ombudsman

An industry funded ‘watch dog’ operation that resolves complaints made against telecommunications carriers and service providers.  It was set up in 1993. The TIO has 650 member organisations and 13 investigation officers who deal with an average of 1200 complaints a week.

Trade Practice Act 1974   A set of federal laws ensuring fair trading practices. These address unfair market practices, product safety, price monitoring and industry codes of practice.

 

WRIT        A written document issued to an official directing him/her to act (or abstain from acting) in

DRAFT

Chapter 1

The house of cards  

 

Why weren't the COT arbitrations declared null and void after the disclosure below?

The link, beginning on page 5163 SENATE official Hansard – Parliament of Australia,  reveals that employees of Telstra allegedly embezzled millions of dollars from Telstra shareholders, including the government and Australian citizens who owned Telstra during that period. Senators Alston and Boswell's request for a Senate investigation into the Casualties of Telstra (COT cases) phone fiascos put pressure on Telstra to resolve the COT cases. Telstra and four claimants reached a proposed Fast Track Settlement Proposal in the third week of November 1993. Telstra was unable to bear the cost of further investigations into its operations, as this fraudulent activity was not limited to NSW. Several individuals threatened the COT cases as their persistence in acquiring functional phone systems was about to uncover unethical conduct at management level and other fraudulent activities at Telstra. It is astonishing that the CEO and board of Telstra were aware of the millions of dollars being illicitly taken from the government coffers, as reported on page 5163 of the SENATE official Hansard. In fact, the figures may have run into billions.

It is shocking to discover that Telstra's CEO and all members of the Telstra board were already aware of the millions of dollars that Telstra was unlawfully withdrawing from the government coffers, even before COT members and a few senators applied pressure. What's more surprising is that the COT cases, who stood for honesty and truth, received no recognition from either the government or Telstra. Instead, we have been labelled as vexatious litigants.

Our lives and the lives of our loved ones have been destroyed because we believed that our actions would benefit all Telstra subscribers. AUSTEL’s Adverse Findings, dated March 1994, confirms between Points 2 to 212 that the government, who investigated my ongoing telephone faults (when using Telstra's own fault records), commented to other government investigators that these Telstra fault records in many instances show that had it had not been through my persistence Telstra would not have located many of the problems affecting my business but several other Telstra subscribers, These same Point 2 to 212 show major faults through nt fault complaining had located faults that had benefited the broader Telstra consumer. It is surprising that AUSTEL government investigators made so many statements about how my complaints had helped others as well as myself and then concealed this evidence from the arbitrator hearing my case. In one of those major statements between Points 2 to 212, AUSTEL (now ACMA) has documented that in one incident, had I not continued to register my phone complaints in the way I did, Telstra would not have located a fault that had been in existence in one rural town for more than two years.

In my case, I have every reason to know why the government regulator deliberately concealed AUSTEL’s Adverse Findings from the arbitrator. It is unacceptable that AUSTEL permitted me to spend over $300,000 in arbitration fees between 23 November 1993 and 11 May 1995 despite having already validated the matter in their March 1994 report. I am entitled to answers and accountability.

The fact that AUSTEL’s Adverse Findings, dated March 1994, found my claims against Telstra validated. One does not have to be a genius to understand that had the arbitrator been provided AUSTEL’s Adverse Findings, his award on my financial business losses would have been substantially higher than he awarded on a claim that did not have a comprehensive log over the six-year period which AUSTEL used in which to derive at their findings as AUSTEL’s Adverse Findings shows.  

Absentjustice-Introduction File 495, dated 22 September 1994, is a transcript from 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 its copy then.

On 21st November 2007, I received from the Australian Communications and Media Authority (ACMA), under FOI, a copy of AUSTEL’s original draft findings dated 2nd / 3rd March 1994 regarding the telephone problems experienced by the Cape Bridgewater Holiday Camp from 1988 to 1994. Copied below are some of the page numbers and points in the report. I am discussing these issues in Chapter 4 to show the difficulties that AUSTEL, as the Government regulator, had in obtaining documents from Telstra (at the time, a fully Government-owned Corporation). Given these difficulties experienced by the government, it should have been enough to halt the arbitration process until all the evidence needed by all the parties was made available to allow those parties to prove or disprove each COT Case claim.

 

AUSTEL COT Case’s public report

Point 5.46 on page 95. ‘

As part of its direction, AUSTEL sought to obtain detailed information on each of the exchanges involved in terms of performance standards, actual performance, maintenance requirements, and achievements. Telecom initially responded with advice in terms of a few generalisations. A cooperative approach may have been expected to deliver particular requests that were necessary to obtain data. Indeed, throughout this inquiry, it has been apparent that Telecom has interpreted AUSTEL’s request for information in the narrowest possible terms. The net effect was to minimise the amount of relevant data it put before AUSTEL and lengthen the process necessary to extract it.

If the government was unable to access the documents it needed to prove the various COT Cases claims and still allowed the claimants to spend hundreds of thousands of dollars trying to access documents from Telstra that even the government regulator could not access from Telstra breached their statutory obligation to the COT Cases for allowing Warwick Smith (the administrator to the arbitrations) and Dr Gordon Hughes (the arbitrator) into forcing the COT Cases into arbitration without the necessary documents to prove they still had ongoing telephone problems. 

Without this supply of documents to the COT claimants during their respective arbitrations, it is one of the reasons we, COT Cases, could not conclusively prove to the arbitrator my telephone faults were still ongoing. The following list identifies some areas (in the AUSTEL draft report) where AUSTEL had problems with access to Telstra records on the service provided to me:

     Point 43 on page 20 “As no fault report records remain in existence from Cape Bridgewater residents prior to this period, or these records have not been provided to AUSTEL, it is difficult to gauge the level of problems in the area.”

     Point 48 on page 22 “AUSTEL has been hampered in assessing Telecom’s dealings with Mr Smith by Telecom’s failure to provide files relating to Mr Smith’s complaints.”

     Point 71 on pages 28 and 29 “AUSTEL has not been provided with the documents on which the conclusion in this briefing summary were reached, such as fault reports from other Cape Bridgewater subscribers over this period or the details of the final selector fault.  It would have been expected that these documents would have been retained on file as background to the summary.  It can only be assumed that they are contained within the documentation not provided to AUSTEL.”

     Point 140 on page 49 “It 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.”

Once AUSTEL was fully aware Telstra was refusing AUSTEL relevant information that would allow the government communications regulator to prepare its official report for the minister after the regulator facilitated the arbitration and mediation processes that were to be based on information obtained from Telstra, it is evident that AUSTEL should never have allowed those processes to proceed. AUSTEL breached its duty of care to the COT cases by permitting the arbitrations/mediations to proceed. After all, if the government could not officially order Telstra to supply records to the minister, then what hope did the COT cases ever have of obtaining the same documents?

 

Brian Hodged used Telstra's CCAS call line data from November 2006 to argue that phone problems were still affecting my once-owned Holiday Camp 11 years after the conclusion of my 1994/95 arbitration.

 

 

Heartbreaking 

After viewing the Cape Bridgewater Holiday Camp (SVT) CCAS data dated 29 September 1994 (see Arbitrator File No/110), Brian Hodge, B Tech, MBA (B.C. Telecommunications), on 27 July 2007, prepared a report and on page 23, (see Main Evidence File No 3) concludes:

"It is my opinion that the reports submitted to Austel on this testing programme was flawed, erroneous, fictitious, fraudulent & fabricated, as it is clear that no such testing has taken place as Telstra’s own call charge system DOES NOT record any such activities. Therefore the results are flawed or did not occur"   

 

 

On 4 September 2006, Darren Lewis provided the Hon Senator Helen Coonan, Minister for Communications, Information Technology and the Arts, with a two-page statutory declaration noting:

“Letters from us to our local Federal Member of Parliament, the Hon David Hawker, Speaker in the House of Representatives, led to Telstra visiting our business to investigate these continuing problems.

“After Telstra rewired the business including disconnecting a Telstra installed faulty phone alarm bell, we were informed Telstra had found other problems and believed who ever had installed the wiring had done an unprofessional job.

“Internal Telstra documentation provided to me by Allan Smith confirmed Telstra themselves had done the wiring.

“Jenny and I noticed that although our incoming-call rate had more than doubled once this wiring had taken place Telstra was still unable to provide a satisfactory reason as to why we were still having problems. …

“The technicians then in a hookup consultation with outside office guru’s [sic] did a fault graph reading on our 55 267267 line with the outcome that their office technical staff stated words to the affect [sic] the reading was impossible (couldn’t be correct). It was then that the local technician became quite annoyed when the technical guru insinuated that the equipment the local tech was using must be faulty. The local tech then informed the technical guru that there was nothing wrong with the equipment at all.” (See Main Evidence File No 13)

Most, if not all, of the COT cases, suffered from sleep disorders and stress for years as a result of their battles with Telstra’s senior management, who continued to deny there was ever a phone problem affecting their businesses.  It was these types of denials by Telstra employees like Tony Watson after the COT Cases that had spent hundreds of thousands of dollars in arbitration fees after the government had promised they would be fixed as part of the government-endorsed processes that caused so much damage. 

Chapter 2

The Saga Had Began

1995-1996

On page seven of their final financial evaluation report, which both Telstra and I received, dated 3 May 1995, FHCA stated:

“An analysis of the clientele of CBHC [Cape Bridgewater Holiday Camp] shows that only 53% were in fact schools.” Open Letter File No 57-A to 57-D)

There is an enormous difference between $30.82 for a two-night stay for school groups and $120.00 to $165.00 for a two-night stay for social club patrons. Knowingly downgrading my losses by a large percentage is verging on fraudulent, criminal conduct.

The potential patron’s testimonials are also referred to in the AUSTEL [government communication regulator] report of 3 March 1994 (See p33, point 85, AUSTEL’s Adverse Findings)

“As Mr Smith points out, the RVA message had the potential to severely damage his business. An important point in relation to the possible financial impact of the RVA message on the Cape Bridgewater Holiday Camp service is the camp’s dependence on group bookings. In June 1992 the camp tariffs ranged from $1500 to $6000 per week, so the loss of even one booking because of the RVA problem could mean a substantial financial loss.” 

I was also able to demonstrate to AUSTEL when their representatives visited my venue, that singles club customers would regularly buy souvenirs before they left: purchasing printed Cape Bridgewater t-shirts, sweatshirts, postcards, headscarves and crafted driftwood plant arrangements. School-children didn’t have that sort of money and typically only bought postcards. FHCA ignored all the income I lost from my singles and social club bookings, i.e., the profit I made on the souvenirs as well as the $120 to $165 tariff per person for these customers.

In 1993, the Age newspaper reporter visited my venue for an overnight stay after hearing about the type of outdoor back-to-nature activities I was providing for adult groups (if they could navigate their way through my very inadequate telephone system provided by Telstra). These activities included canoeing, horse riding, caving and bush-walking. A full-page report by the Age says what a great escape for Victorians the Cape Bridgewater Holiday Camp was. However, Ferrier Hodgson Corporate Advisory and Dr Gordon Hughes decided their evaluation of the losses my business experienced should only be calculated on the school losses and not the more lucrative up-market singles club and social club losses.

I attended Senator Alston’s Canberra Parliament House office in the company of The Hon David Hawker MP and four other witnesses in September 1995. After I told the senator that the arbitrator, Dr Hughes and his technical units had, for reasons unknown, not investigated this serious ongoing lockup Ericsson AXE fault, which was still affecting my business, the senator asked me to keep his office informed of any other issues the arbitrator would not investigate and to supply his office with that evidence.

At this September 1995 meeting, I reminded Senator Richard about the discussion he had during a Senate Estimates Committee hearing in February 1994, in demanded answers from both Telstra and AUSTEL concerning an FOI document showing local Telstra technicians secretly applauding me for raising the ongoing problems, which were getting worse as more and more people connected to the Ericsson AXE telephone system. I advised the senator that the author of that previous document he raised in the Senate, who applauded me in secret in this FOI document, swore – under oath in his arbitration witness statement – that Telstra had always provided me with reliable phone service. The Senator was furious that here I was, four months past my arbitration, and still, my ongoing phone problems had not been investigated. One of the other documents I provided to the Hon Senator Alston on this day, and which AUSTEL found most alarming, confirmed Telstra had concealed, from the government, a major network billing problem of national importance that affected many thousands of Telstra customers, including me (see Open Letter File No/4 and File No/5).

A similar document, headed Telecom Secret (see Call For Justice Evidence File 8), shows very clearly that Telstra knew how solid my case was. The document states:

“Legal position, Mr Smith’s service problems were network related and spanned a period of 3–4 years. Hence Telecom’s position of legal liability was covered by a number of different acts and regulations. … In my opinion Alan Smith’s case was not a good one to test Section 8 for any previous immunities – given his evidence and claims. I do not believe it would be in Telecom’s interest to have this case go to court.

“Overall, Mr Smith’s telephone service had suffered from poor grade of network performance over a period of several years; with some difficulty to detect exchange problems in the last 8 months.”

When the senator also heard that Ferrier Hodgson Corporate Advisory only used the school booking rates to value my claim, and discarded the more lucrative over-40s singles club and social club revenue, he stated that if he were back practising law he would challenge FHCA and those administering my arbitration. It was at the invitation of the Hon David Hawker MP that I travelled to Canberra (at my expense) to submit evidence that my arbitration had not been conducted under the agreed ambit of the arbitration procedures.

I also advised the Senator at this meeting that during my arbitration the TIO-appointed arbitration project resource unit FHCA and/or the arbitrator did not visit one singles club or convention centre to value the type of revenue these centres generated. They relied upon the Camping of Victoria (CAV) “school-needs survey” and Telstra’s financial experts using the IBIS Caravan Parks survey as part of their defence.

I reminded the Senator that two years previous to this visit to Canberra, we had also visited his St Kilda Road Melbourne office with the COT Cases in the company of Senator Ron Boswell. He and Senator Boswell viewed our evidence against Telstra’s defective phone service to our businesses. Within a few months of this meeting, we provided both Senators with a copy of the original 1993 AUSTEL government-facilitated settlement agreement dated 5 October 1993, which clearly stated the assessor appointed to value the four COT cases’ business losses would visit similar type of businesses and value the revenue earnt by those businesses who had reliable phone service so the assessor could reach a fair assessment of the losses for each of the four COT cases businesses (see point 17 on page 4 Exhibit GS 110 file GS-CAV 89 to 154-A) By 23 November 1993, the government had agreed to commercial assess our claims if we stopped our campaign against Telstra.

Senator Alston had also raised these same interception issues in the senate in February 1994 (see Main Evidence File No/29 QUESTIONS ON NOTICE). Between February 1994 and January 1995, the Australian Federal Police was investigating Telstra records as to how rank and file Telstra employees were able to transcribe on memos the names and phone numbers of a number of female members; Dr Hughes was fully aware that under instruction from the AFP, I was not to openly submit names, addresses or any financial details of the members of my singles club, unless that information was provided only to the arbitrator under confidentiality. Obviously, it worked in Telstra’s favour for the arbitrator to only assess the school camp losses, rather than the singles club and social club losses.

It was in late February 1994 when the AFP had told us that we were obliged to supply them with all of the Telstra FOI documents that we had received, and which suggested that any of our telephone conversations and faxes to/from the AFP might have been intercepted, explaining that this was because this whole matter was now ‘before the Government’.   We then told Robin Davey (Chairman of AUSTEL) exactly what the AFP had told us and asked Mr Davey if he believed we were legally bound to do as the AFP had requested, considering that these matters were to be assessed by the COT assessor. We were then ALL told that, as our matters were now part of an official Government-orchestrated investigation, which had been passed on to the AFP by AUSTEL under the direction of the relevant Minister, we had no alternative but to supply the AFP with whatever related material we had uncovered because, after all, this investigation was for the good of the whole nation, as well as for any future investigations that might arise as a result of our co-operation.

Sometime later, while I was in Melbourne, in July 1994, as part of a discussion I had with John MacMahon, AUSTEL’s General Manager of Consumer Affairs, I reminded him of the two-day meeting the COT Cases had with AUSTEL on between 6 and 8 April 1994; I reminded him that it had taken place in AUSTEL’s headquarters in Melbourne, and I reminded him of Robin Davey’s instructions concerning our duty to provide our FOI documents to the AFP during the settlement process (which had now become an arbitration).  I also mentioned the threats I had received from Telstra after they had somehow found out that I was still continuing to help the AFP. Later, on 26 September 1994, AFP Detective Sergeant Jeff Penrose told me that the AFP had NOT informed Telstra that I was continuing to provide the AFP with assistance, which clearly means that the only way Telstra could have obtained this information was either from listening to my phone calls to or from the AFP or by intercepting the FOI documents I faxed to the AFP. Mr Penrose’s off-the-record response was ‘sharp’, to say the least, especially since he was in no way obliged to comment at all.

I truly believe that Mr MacMahon was definitely shocked when I told him about this off-the-record conversation with Mr Penrose, just as I believe that was why Mr MacMahon reminded me that, regardless of Telstra’s threats, I was still obliged to help the AFP.  He also explained that if those threats from Telstra continued, then I should raise them with the arbitrator because these matters were now part of my arbitration, and so AUSTEL could not become involved. Mr MacMahon used words to the effect that as AUSTEL had passed on this part of their own investigation into COT matters. The AFP had instructed us COTs that we were legally obliged to assist the AFP and the Government (particularly since the Government had passed our matters to the AFP in the first place), so we had no choice but to continue to help the AFP wherever we could. We were told that, under these circumstances, the arbitrator could not penalise ANY of the COT claimants for raising these matters with the AFP outside of the arbitration process.  Mr McMahon also maintained that Telstra’s threatening manner and the wider ramifications for the overall submission of my claim should also be raised with the TIO, Warwick Smith.

Senator Alston and Senator Boswell knew most, if not all, of the issues surrounding why the COT Cases had concerns that the AFP investigations should not be running at the same time as the COT arbitration. No one would come to the COT Cases' aid; Telstra and its threats were allowed to continue, as our story so clearly shows.

So when it was revealed to Senator Alston by The Hon David Hawker that my singles club information had not been assessed by the arbitration process because the AFP had instructed me not to disclose any of the privacy issues associated with my single club members' personal information the Senator was taken back (shocked) that this might be the real reason why Ferrier Hodgson and Dr Hughes had not provided a full formal complete financial report for assessment during my arbitration.

On the 6 December 1995, (after this September 1995 meeting), Derek Ryan, my arbitration accountant, wrote The Hon. Senator Richard Alston, then Shadow Minister for Communications, stating:

“Over the last 2 years I have acted as an independent accountant for Alan Smith and I prepared the independent assessment of his losses and damages which formed part of his submission to the arbitrator, Dr G Hughes.

“In response to accounting documents and evidence submitted to the arbitrator, he appointed Ferrier Hodgson Corporate Advisory (Vic) Pty Ltd.(‘FHCA’) to support him in assessing the losses and damages.

“The FHCA report was inaccurate and incomplete. I have since been advised by a staff member of FHCA that a large amount of information was excluded from their final report at the request of the arbitrator. This has left the report in an incomplete state and it is impossible for anyone to re-calculate or understand how the FHCA loss figures were determined. This effectively meant that it was impossible to challenge the assumptions, calculations and the time periods used in the FHCA report.” (See Open letter File No/45-E)

On the 22 December 1995, Derek Ryan wrote to TIO John Pinnock, noting:

“The Ferrier Hodgson Corporate Advisory (Vic) Pty Ltd (‘FHCA’) report was dated 3 May 1995 and I received a copy of the report on 5 May. After discussions with Alan Smith it was decided that I should reply to the report as soon as possible.

“I worked all day Saturday and Sunday with Alan Smith trying to interpret the FHCA report. After this work I considered that the report was incomplete as the calculations of the FHCA loss figures were not included in their report. …

“In 17 May I telephoned John Rundell and he stated that he was unable to discuss anything with me until the appeal period had expired. … He then stated that he understood my problems and that FHCA had excluded a large amount of information from their final report at the request of the arbitrator.” (See Open letter File No/45-E)

Mr Rundell has never refuted Derek Ryan’s statement in a letter he wrote to John Pinnock (the TIO), in relation to my arbitration financial losses, which noted that:  “On 17 May I telephoned John Rundell and he stated that he was unable to discuss anything with me until the appeal period had expired”, even though that statement: “… until the appeal period had expired”, reveals the true calibre of Mr Rundell’s attitude, i.e. he recognised the advantages for Telstra if the COTs were forced to wait for the appeal period to elapse before they even began to expose the truth.

PLEASE NOTE: This is the same John Rundell who allowed David Reid (Lane Telecommunications) to assess my claim and then superimposed the DMR Inc Canada logo on the final arbitration technical report that Lane had provided the findings and NOT DMR (Canada). This was not made known even after Ericsson purchased Lane. The collusion and trickery continued to destroy any chance I had of a fair administered arbitration.

 

Back before the arbitration began

 

On 21 April 1994, on the day we signed our arbitration agreement (under duress), after being threatened by the TIO officials that, if we did not formally agree to exonerate the arbitration financial advisors, Ferrier Hodgson Corporate Advisory (FHCA) and DMR (Australia), from any liability in relation to their involvement in the arbitration process, then there would be no arbitration. We would, therefore, be left with only one alternative: the enormous costs involved in taking Telstra to court for not providing us with a decent telephone service, even though Telstra (as a government organization) had a legal responsibility to provide us all with a service comparable to our competitors.

As small businesses, none of us could afford to even think about entering into what was sure to be a drawn-out and expensive legal process with a government-owned corporation with a bottomless public purse available to fund their defence and so we were forced to agree to exonerate FHCA from all liability.  This meant, of course, that we could never sue FHCA for negligence in connection to our arbitrations. Then, when those arbitrations began, it was like being caught at the wrong end of a shooting range for the COTs because FHCA was also secretly appointed to decide which discovery documents the arbitrator would see and which would be concealed from assessment altogether.

A Secret Deal

Telstra’s Arbitration Liaison Officer Steve Black wrote to Warwick Smith, the TIO, on 11 July 1994 (see My Story Evidence File/16) stating:

“Telecom will also make available to the arbitrator a summarised list of information which is available, some of which may be relevant to the arbitration. This information will be available for the resource unit to peruse. If the resource unit forms the view that this information should be provided to the arbitrator, then Telecom would accede to this request”. 

The statement in Telstra’s letter “if the resource unit forms the view that this information should be provided to the arbitrator” confirms that both the TIO and Telstra were aware that the TIO-appointed resource unit had been assigned to vet most, if not all, the arbitration procedural documents en route to the arbitrator. If the resource unit decided a particular document was not relevant to the arbitration process, it would not be passed on to the arbitrator or other parties.

Was there a more sinister reason behind Telstra’s decision to withhold the more relevant documents from the claimants by channelling them through Ferrier Hodgson Corporate Advisory (FHCA, the Arbitration Resource Unit), particularly since FHCA later admitted, in writing, on 2 August 1996, to knowingly withholding some of the most relevant documents so they would not be investigated during the arbitration process, which would have certainly been of great assistance in helping to minimize Telstra’s liability?

In my case, some of the most important documents (which would actually have won my case if they had been supplied to me in time) were withheld until after Dr Gordon Hughes (the Arbitrator) had handed down his findings. This fact was known

During this September 1995, meeting I also explained that I could provide evidence to the senator that Telstra had knowingly perverted the course of justice by deliberately tampering with evidence during my arbitration (see Chapter One to Three in our Tampering With Evidence) page. Perhaps it should be noted here that Senator Alston had been a Barrister at the Victorian bar before becoming a Government Minister and so he then assured me that, since I had now officially provided him with information regarding how senior Telstra staff had condoned this unlawful behaviour; and since Telstra had carried out this unlawful behaviour against an Australian citizen while that person was involved in a Government-facilitated process with Telstra; and since this unlawful behaviour had occurred while Telstra was still entirely owned by the Government, then the Telecommunications Act and the Trade Practices Act would provide the Senator with the opportunity to officially question Telstra about the validity of my claims, on notice, through the Senate.

At the end of this meeting, David Kennedy who was assisting Senator Alston at this meeting asked me to continue to provide further evidence to his office (which I did) so as the senator was kept up to date with what had been truly a terrible outcome for me.

As stated above, in March 1996, the John Howard government won office and Senator Alston became the new minister for communications. Paul Fletcher, who was now also assisting Senator Alston, asked me to continue helping the senator with these telecommunication issues.

It will be apparent from the Introduction above and the following information (see Open Letter File No/41/Part-One and File No/41 Part-Two), that the wind changed and my valid claims were suppressed – and are still being suppressed, as of 2021.

In a letter I received from Mr Paul Fletcher dated 4 September 1996 noting:

“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.”

As a result of this discussion with Senator Alston I then sent his office a copy of an eighty-eight-page report, I had compiled, together with various supporting Exhibit documents. This report detailed the way Telstra had broken the law by tampering with Government-owned equipment during my legal arbitration process, which was being conducted under the auspices of the Supreme Court of Victoria.  This was the report that Paul Fletcher eventually returned to me (see following link > Open Letter File No/41/Part-One and File No/41 Part-Two).

I also have conclusive evidence of how, years after Mr Fletcher had returned my June 1996 report, other bureaucrats in the Department of Communications Information Technology and the Arts (DCITA) began investigations into other areas of my claims and instead of the department investigating my claims they sent this material straight to Telstra to ask if my claims were valid, which is a bit like a police officer asking a thief caught stealing a car if he should be charged for that theft! Interestingly, Paul Fletcher had previously worked at that DCITA too.

I have raised these DCITA decisions in this Second Investigation segment because, since Senator Alston requested my report in the presence of David Hawker, surely they would then both be informed of the outcome of Paul Fletcher’s investigations into that report. I know for a fact that Mr Hawker did not receive any information about my report because he told me, on two separate occasions, that he had not received any follow-up information at all, which further indicates that Senator Alston was never advised of the significance of that report either.

Perhaps the real reason for my claims never being assessed on merit was because, in March 1996, the TIO, Warwick Smith (the administrator to my arbitration) became a Front Bench Minister in the John Howard Government. In simple terms, it became clear that no matter what proof I provided to Paul Fletcher while he was assisting Senator Richard Alston, during the same Howard Government (including the evidence contained in Open Letter File No/41/Part-One and File No/41 Part-Two), the establishment had decided the COT Cases had to be stopped, at all cost, from exposing exactly how unethical the process had been. Regardless of the damage, this cover-up caused to the claimants.

It is most important to note also during Senator Richard Alston’s investigation on 11 July 1996, when as a member of AUSTEL (now ACMA) the Deputy TIO wrote to the Senator attaching the sixth status report on AUSTEL’s recommendations of the COT Cases report (see Call For Justice Evidence File/87) which notes on page 12:

“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 requests 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.”

This is the same Deputy TIO, administrator to my arbitration who I provided conclusive evidence (see Burying The Evidence File 2). that Telstra was destroying evidence I had requested in May 1994. As the facilitators of the process, AUSTEL (now ACMA) had a duty of care to inform the Minister that AUSTEL was provided evidence, which confirmed that Telstra was acting unlawfully during my arbitration by destroying and/or altering, requested FOI documents.

Furthermore, had this Deputy TIO and other officers of AUSTEL (refer to the following AUSTEL FOI document folio 94/0269-05 – 22) acted appropriately and informed the relevant Communications Ministers at the time that Telstra was destroying requested FOI documents, not just withholding them, there may well have been a thorough Senate enquiry into this unlawful conduct by Telstra.

When this information is added to the second appointed TIO’s statement that the arbitrations were conducted ‘the arbitrator had no control over the process because it was a process that was conducted entirely outside the ambit of the arbitrations procedures’, this certainly seems to add more weight to those rumours suggesting that the arbitrator had was forced to use Telstra’s drafted arbitration agreement (rules) and it was never his intention of doing so. Threats were nothing new to the COT claimants.

Even though the Institute of Arbitrators Mediators Australia (IAMA) agreed to investigate my claims against the arbitrator, they have chosen not to make a finding on my 21 submissions without explaining why could it be that the COT arbitrations were conducted so appallingly?  Could it be that this was not the only instance of using the Commercial Arbitration Act 1984 as a shield to protect those in power, who therefore appear to have that same power over the IAMA?

As shown above, by November 1995, the Institute of Arbitrators Australia had agreed to view why the arbitration process had not been conducted under the Commercial Arbitration Act of Victoria which was registrable as an order of the Victorian Supreme Court.

We need perhaps to jump forward some eighteen months so as the reader is fully aware that the Commercial Arbitration Act of Victoria (which the COT arbitrations were conducted under) provides that an award by the arbitrator is registrable as an order of the Victorian Supreme Court. To further support this fact on 26 September 1997, after most of the arbitrations were concluded, the second appointed administrator to the COT arbitrations, John Pinnock, officially advised the government (see pages 97 and 98 COMMONWEALTH OF AUSTRALIA – Parliament of Australia) that:

“However, under the rules of the fast-track arbitration procedure, the original CoT, or CoT four, claimants were actually entitled to discuss their respective proceedings and claims with each other. Finally, both of the arbitration procedures provided that where their rules were otherwise silent the proceedings were to be governed by the Commercial Arbitration Act of Victoria. Significantly, that provides that an award by the arbitrator is registrable as an order of the Victorian Supreme Court, and the act confers basically what is a limited right of appeal against any award by the arbitrator”.

However, I never learned that an award by the arbitrator is registrable as an order of the Victorian Supreme Court, and the act confers basically what is a limited right of appeal against any award by the arbitrator, until I met with the Institute of Arbitrators Australia (IAA) in November 1995, six months after my arbitration had been prematurely brought to a conclusion. When the Institute learned that the arbitrator Dr Gordon Hughes had not been appointed by the Institute as well as Dr Hughes not been a graded arbitrator it was suggested by the Chapter of the Melbourne (IAA) that I should write to Laurie James, who was then the President of the Institute of Arbitrators Australia and ask for an investigation into our arbitration processes.

Back then though, in November 1995, I was not aware that both Ann Garms and Maureen Gillan would eventually be given more than thirteen months longer to submit THEIR claims, than the much shorter time that Dr Hughes allowed ME, in which to submit my claim.  Neither did I know that one of the other COT Cases, Graham Schorer, had been a client of Dr Hughes over a number of years, before joining the other COTs in our arbitrations and I did not know that Graham would actually be given more than three years longer to lodge his claim than the arbitrator allowed me, and more than two years longer than the arbitrator allowed Ann Garms and Maureen Gillan (see Conflict of Interest).  This issue clearly upset the Institute in Melbourne because it was clear to them, from the paperwork I provided about our arbitrations, that each of us first four COT claimants had signed a copy of the same agreement and that agreement only allowed us one month each in which to submit our claims and one more month to respond to Telstra’s defence of that claim. It was at this point that I was warned that Dr Hughes was not a graded arbitrator of the Institute.

The collusion and deception that was exposed to the Institute did not finish there, however, and neither did that collusion and deception stop, even after I contacted Laurie James, as the following chapters show.

Between 18 October 1995 and 4 October 1997, with the assistance of Mr John Wynack, director of investigations on behalf of the Commonwealth Ombudsman, I sought, under FOI, from Telstra a copy of their arbitration file on my matters. Home Page File No/82 confirms Mr Wynack did not believe Telstra’s claim that it destroyed the file. I also tried to access a copy of the same arbitration file held by the TIO office, which, as the administrator of my arbitration – under the law – had to retain a copy for at least six years: until 2002. Mr Pinnock’s letter, of 10 January 1997, in response to my request, states:

“I refer to your letter of 31 December 1996 in which you seek to access to [sic] various correspondence held by the TIO concerning the Fast Track Arbitration Procedure. …

“I do not propose to provide you with copies of any documents held by this office.” (See Open Letter File No 57-C)

On 17 February 1996 Dr Hughes wrote to Laurie James, President of the Institute of Arbitrators (see above) attaching a copy of John Rundell’s letter of 13 February 1996 to the TIO). In this letter, Dr Hughes advised Laurie James:

“I consent to you disclosing this letter to Mr Smith, save that I do not consent to the disclosure of the attached correspondence from third parties.” (See Prologue Evidence File No/8-E)

Long before Mr Rundell and Dr Hughes wrote their letters in February 1996, AUSTEL, the government communications regulator, officially advised Mr Pinnock (see Open letter File No/46-K, dated 3 October 1995) and Mr Rundell (see Open letter File No/45-A, dated 15 November 1995) my concerns were completely valid and that NONE of the billing claim documents I legitimately raised in my 1994/95 arbitration process was investigated (or even addressed) during my arbitration process. Still, however, Laurie James was deliberately misled and deceived, not just by the arbitrator but also by the official administrator of the same arbitration. Mr James was the very person who could have asked so many seriously disturbing questions about why my arbitration was not conducted according to the ambit of the arbitration procedures.

Anyone reading my letter to Gareth Evans, dated 4 January 1996 (see Open Letter File No/49), will conclude I raised some very serious issues, which affected all the arbitrations still in progress.

Dr Hughes’ letter to Laurie James, under the heading “Letter to Senator Evans,” states:

“Mr Smith provided you a copy of a letter to Senator Gareth Evans dated 4 January 1996. I presume you require me to comment on those aspects of the letter which reflect upon my conduct as an arbitrator.

“The letter to Senator Evans is littered with inaccuracies. Some examples are:

• contrary to Mr Smith’s assertion on page 3, his 24,000 (sic) documents were all viewed by me, Ferrier Hodgson Corporate Advisory, DMR Group Inc (Canada) and Lane Telecommunications Pty Ltd in accordance with the arbitration procedure.”(See Open letter File No/45-G and Open Letter File No/49)

Why did Dr Hughes deceive Mr James in relation to these 24,000 documents, which Dr Hughes and his team could not possibly have read and collated? Why did the arbitrator tell Mr James that all those documents were assessed?

The Canadian and Australian technical consultants’ 30 April 1995 reports, under the heading “Cape Bridgewater Documentation,” states “More than 4,000 pages of documentation have been presented by both parties and examined by us.” (See Arbitrator File Nos/29 and 30) These reports are covered more thoroughly in other pages.

And at point 2.2 on page 4, in Dr Hughes’ final award, dated 11 May 1995, he notes, “In all, I have read in excess of 6,000 pages of documentary evidence submitted by the parties.” (See Prologue Evidence File No/9-A)

If either Mr James or Senator Evans were provided with the truth surrounding these 24,000 documents, my arbitration matters could have been completed in early 1996. So far, the arbitrator and the TIO office have managed to avoid being called to account for their devious and unethical conduct. Will they ever be held accountable?

Arbitrator File No/45 shows that on 30 March 1995 – 11 months before the arbitrator’s letters to Mr James – the arbitrator’s own resource unit wrote to the TIO outlining the progress of my arbitration. The timeline shows I advised them I received my discovery documents via the agreed-to FOI process after my claim was finalised and after Telstra had submitted their defence of that claim.

John Wynack, Director of Investigations for the Commonwealth Ombudsman’s Office, and Tony Morgan, a National Chief Adjuster for GAB Robins (Australia), are both fully aware that most of these 24,000 documents were not related to my Cape Bridgewater business in any way. Not only did they not have any identification or schedules to explain where they were sourced from, but it was quite clear that some belonged to the Fortitude Valley and Lutwyche telephone exchanges in Brisbane, more than 1,200 kilometres from the telephone exchange my business was connected to. Clearly, this delivery of so many useless documents was deliberately designed to cause me as much heartache as possible.

More than 16,800 of those FOI documents were meaningless without the schedule detailing their relevance; I had only 13 days to address Telstra’s defence, with documents I had no way of reading.

When I advised Warwick Smith, the Telecommunications Industry Ombudsman (and administrator to my arbitration) about this terrible situation, being left with only 13 days to decipher what documents belonged to me and which belonged to the two other COT cases, he said to contact Dr Hughes, the arbitrator. However, the arbitrator’s office informed me that Dr Hughes had taken his usual Christmas break, which meant the 13 days left for me to answer Telstra’s 12 December 1994 defence would be over by the time Dr Hughes returned from leave. Warwick Smith’s response to this was: do the best you can.

There was also no mention in Dr Hughes’ letter to Laurie James concerning the documents provided by Telstra were not intended for me or that Telstra had continued to withhold the main arbitration requested document namely the Portland/Cape Bridgewater telephone exchange logbook, which was requested under FOI and through the process of discovery. Dr Hughes was aware Telstra had not released the exchange logbook, which had the working notes of all my telephone complaints and those of other local Telstra subscribers for the period of my claim. The veracity of logbooks is irrefutable, yet Dr Hughes would not request the Cape Bridgewater exchange logbook for me. The Commonwealth Ombudsman’s office also requested this logbook to be supplied but was unable to obtain it. (See Home Page File No 10 -A to 10-B)

My facsimiles and subsequent follow-up telephone conversations, on 4 and 5 May, advised Dr Hughes of the nightmare these late 24,000 FOI documents caused for me and I asked for an investigation into why so many FOI documents, without proper FOI schedules, had been dumped on me too late to submit into arbitration, actually belonged to Ann Garms and Maureen Gillan and therefore were useless.

On 5 May 1995, Dr Hughes wrote,

“I refer to your telephone message of 4 May and your facsimiles of 4 and 5 May 1995 and advise I do not consider grounds exist for the introduction of new evidence or the convening of a hearing at this stage.” He also reiterated his previous instructions: “any comments regarding the factual content of the Resource Unit reports must be received … by 5:00 pm on Tuesday 9 May 1995”  (See Arbitrator False Evidence File 1).

Dr Hughes cared little about the justice he denied me by not allowing me to submit those of the 24,000 FOI documents I could decipher. He also refused to convene a hearing to determine why Telstra’s threats – to withhold all future relevant FOI documents from me – came to fruition. Two of the questions I raised in my telephone messages of 4 May 1995 and facsimiles of 4 and 5 May 1995, was why had the arbitration technical report not been signed off and why had it only assessed 11% of my claim documents. It is clear from this letter and Dr Hughes 11 May 1995 award that he ignored both those questions.

On 27 February 1996, John Pinnock wrote to Laurie James, attacking my credibility. The TIO deliberately misinformed Mr James that I had telephoned the arbitrator’s wife at 2 am one morning:

“Mr Smith has admitted to me in writing that last year he rang Dr Hughes’ home phone number (apparently in the middle of the night, at approximately 2.00 am) and spoke to Dr Hughes’ wife, impersonating a member of the Resource Unit.” (See Arbitrator File No /49)

Who advised the TIO that I telephoned at approximately 2 am? The telephone account for the evening in question (also Arbitrator File No /49) confirms I called at 8.02 pm. It is bad enough to see the lies told regarding the actual time that I made this telephone call, but it is perhaps even worse to discover that my reason for making that call was concealed from Mr James. I phoned the arbitrator to alert him I had, that day – 28 November 1995 – received vital arbitration documents that I should have received during my arbitration and these documents definitively proved Telstra’s TF200 EXICOM arbitration defence report was manufactured to pervert the course of justice.

It was exciting to read that Telstra staff proved beer could not have stayed wet and sticky for 14 days – the time between the TF200 EXICOM leaving my premises and arriving at their laboratory. It was already evening but, in the heat of the moment, I rang the arbitrator’s home number. His wife answered and told me he was overseas and not due home for some days.

I was caught on the back foot; in my excitement, I had not considered the arbitrator would not answer the phone. I assumed the arbitrator had discussed the Parliament House rumours, concerning his use of a non-credible agreement, with his wife. I thought if she knew who was calling, she might be afraid I was ringing to accuse the arbitrator. Impulsively, I gave her another name: one I knew the arbitrator was familiar with – that of the FHCA project manager.

Later, I informed the TIO about my exciting find and that I tried to contact the arbitrator to pass on the news. I also explained I gave the arbitrator’s wife the FHCA project manager’s name, instead of my own, to prevent her from being alarmed. I asked him what he would do with this proof that Telstra had fabricated the beer in the phone story. The TIO responded flatly that my arbitration had run its course and he did not intend to involve his office in any further investigation. He said I should go to the Supreme Court of Victoria if I wished to take it further.

If I did write to the TIO, as he alleges in his letter to Laurie James, why didn’t the TIO produce my letter? The reason is, of course, that I never wrote any such letter. Just as deceitful as claiming I wrote such a letter, is the fact that the TIO’s letter to Laurie James was copied to the arbitrator.

Surely the arbitrator would have discussed my telephone call with his wife and been told by her that I had telephoned at 8.02 pm and I was, at all times, courteous and respectful.

Did Dr Hughes and John Pinnock allow Dr Hughes’ wife’s name to be used to stop Mr James from uncovering Dr Hughes letter of 12 May 1995? Or was it to stop Mr James from investigating Telstra’s conjured TF200 report.

There is more to our story and the way in which Dr. Hughes allowed his good wife’s name to be used to stop an investigation into the now proven conjured ‘sticky beer’ substance TF200 Arbitration Report.

I doubt, even now 20-plus years after the event, Dr Hughes’ wife knows he used her to stop a transparent investigation by Laurie James, (then president of the Institute of Arbitrators Australia) into why her husband and John Pinnock (the second TIO) would not investigate the fresh TF200 EXICOM evidence that arrived on 28 November 1995, confirming that 11 months previously Telstra fraudulently manufactured their TF200 EXICOM arbitration report. I am sure Mrs Hughes would be alarmed that John Pinnock deceived Mr James by advising I wrote to him stating I telephoned Dr Hughes at 2.00 am when no such letter ever existed. John Pinnock’s letter, dated 27 February 1996, was also copied to her husband. Why did Dr Hughes allow such a letter to be sent when he must have known I did not telephone his wife at 2.00 am at all: I telephoned at 8:02 pm to tell Dr Hughes what this fresh evidence finally revealed (see Tampering With Evidence).

This tampering with evidence after it left my premises raises a most important question: why has the Australian government not advised the Telstra board that Telstra have both a legal and moral obligation to rectify these as a matter of public interest because this tampering with evidence, during a litigation process, was committed when the Australian Government and its people owned the Telstra Corporation.

After Dr Hughes letter of 17 February to Laurie James and John Pinnock’s subsequent letter, of 27 to Mr James, the Institute abandoned their investigations into my complaint against Dr Hughes.

Because the poor timeframes in the arbitration agreement did not allow for the late submission of information, such as my singles club material, Dr Hughes granted the remaining three COT cases, Ann Garms, Maureen Gillan and Graham Schorer, more than 13 months longer than he allowed me, in which to submit late-received material. Why didn’t Dr Hughes advise Laurie James of this? All four of us signed the same arbitration agreement in April 1994.

Australian Federal Police Investigations and Chapters One to Five in our Prologue page provide more detail regarding the privacy issues regarding the names, addresses and phone numbers of my over-40s singles club members. I was officially advised by the AFP to NOT provide the arbitrator and Telstra with these details while Telstra was still being investigated for the unauthorised interception of my telephone conversations. These interceptions included incidences where female members’ personal data was recorded: Telstra could have only obtained this information by intercepting my telephone conversations or faxes. Telstra’s admission to the AFP about this unauthorised monitoring is recorded in our Australian Federal Police Investigations page.

Chapter 3

You Be The Judge

 

Bribery and Corruption in Government 

Corrupt conduct is defined as an intentional wrongdoing that involves or affects a public official or public sector organization in New South Wales. This type of conduct can occur in various forms, such as when a public official improperly uses their position's knowledge, power, or resources for personal gain or the advantage of others. It can also happen when a public official dishonestly exercises their official functions, improperly partially exercises their official functions, breaches public trust, or misuses information or material acquired during their official functions.

In addition, when a member of the public tries to influence a public official to use their position in a way that affects the probity of the public official's exercise of functions or when a public member engages in conduct that impairs public confidence in public administration, it can be considered as corrupt conduct. The Australian  community expects public officials to perform their duties honestly and in the best interests of the public. Corrupt conduct by a public official involves a breach of public trust that can lead to inequity, wasted resources, public money, and reputational damage.

Some examples of corrupt conduct include a local councillor voting in favour of a development in which the councillor has an undisclosed financial interest, a member of the public bribing an official to pass a driver's licence test, and a former public official selling confidential information gained while working in an official capacity.

 

 

In September 1997, the Senate began investigating only five out of the twenty-one COT cases. The Australian Government, Government Communications Regulator (AUSTEL), and the Telecommunications Industry Ombudsman promised the four initial Casualties of Telstra (COT) cases - Graham Schorer, Ann Garms, Maureen Gillan, and Alan Smith - a facilitated non-legalistic Fast Track Settlement Proposal if they pursued a full Senate Estimates hearing.

Although the four COT cases believed that they would finally be treated fairly and honestly, they were unaware that by relenting, they would be mistreated and crucified by the very government they trusted. It's important to note that when the absentjustice.com website was created in January 2015, its primary goal was to tell the COT group's story clearly and explain their perspective. The COT members want the public to know that they aren't seeking vengeance, even though their experiences with Telstra have damaged them.

Their businesses were lost, and the telephone problems that sent them to arbitration are still occurring. As the website name suggests, they are seeking justice. As part of their plan, they decided to blank out (or 'mask') the names of those who, as part of their arbitration process with Telstra, had committed numerous crimes against them. Although they have kept the door open for those people to explain their contributions to the problem, no one has come forward to explain why they did what they did.

Telstra’s Corporate Secretary wrote to AUSTEL’s Chairman to him on 18 November 1993, pointing out that:

“only the COT four are to be commercially assessed by an assessor. For the sake of convenience I have enclosed an amended copy of the Fast Track Proposal which includes all amendments.

To facilitate its acceptance by all or any of the COT members I have signed it on behalf of the company. Please note that the offer of settlement by this means is open for acceptance until 5 pm Tuesday 23 November 1993 at which time it will lapse and be replaced by the arbitration process we expect to apply to all carriers following the Regulator’s  recommendations flowing from this and other reviews.”

On 23 November 1993, Graham Schorer (COT Spokesperson), Ann Garms, Maureen Gillan, and I signed the FTSP, trusting in the Regulator’s verbal assurances that all of the ongoing telephone problems currently being investigated by AUSTEL and Telstra would be rectified/fixed and addressed by the assessor before his findings are handed down. The four signed FTSP agreements were forwarded to Telstra’s corporate secretary. I included a letter with his agreement, clearly putting my expectations of the process:

“In signing and returning this proposal to you I am relying on the assurances of …, Chairman of the Regulator, and …, General Manager of the Regulator’s Consumer Affairs Department, that this is a fair document. I was disappointed that … was unwilling to put his assurances in writing, but am nevertheless prepared to accept what he said.

I would not sign this agreement if I thought it prevented me from continuing my efforts to have a satisfactory service for my business. It is a clear understanding that nothing in this agreement prevents me from continuing to seek a satisfactory telephone service.”

Prior to sharing my account, which may seem implausible to many Australian and offshore readers who believe that the rule of law governs Australia, I recommend that you peruse the remarks presented below by some of the most distinguished politicians in Australia.

On April 7th, 1994, AUSTEL's Chairman Robin Davey, along with John MacMahon, General Manager of Consumer Affairs, personally interviewed me at AUSTEL's headquarters in Melbourne. They apprised me that AUSTEL had conducted an investigation into my claims regarding Telstra's inadequate supply of my telephone service and found that my assertions had been verified. They stated that the pending arbitrator, Dr Gordon Hughes, would be officially informed of AUSTEL's findings, which would be explicitly defined in their AUSTEL COT Cases Report. Both officials recommended that I seek professional technical expertise to guide the arbitration process with the discovered facts.

AUSTEL had suggested that Telstra install a telecommunications tower at my business premises during the period that Telstra had agreed to resolve my ongoing telephone issues at my Cape Bridgewater business. The Service Verification Testing process that was conducted at my business during my arbitration was a recommendation agreed upon by Telstra because AUSTEL had permitted Telstra to restrict their Bell Canada testing (six months prior) at Cape Bridgewater.

The AUSTEL findings, which neither the arbitration resource process nor I received during my arbitration, were provided by ACMA in November 2007, thirteen years after my arbitration had concluded. The diluted version of AUSTEL's COT Cases findings, while damning enough, fails to mention that AUSTEL believed that Telstra would be able to locate the issues still being encountered at my business at the time of my arbitration (see points 2 to 212 in the withheld AUSTEL’s Adverse Findings, dated March 1994. This secretly prepared report confirms that between Points 2 to 212, the government public servants who investigated my ongoing telephone problems found my claims against Telstra validated. One does not have to be a genius to understand that had the arbitrator been provided AUSTEL’s Adverse Findings, his award on my financial business losses would have been substantially higher than he awarded on a claim that did not have a comprehensive log over the six-year period which AUSTEL used in which to derive at their findings as AUSTEL’s Adverse Findings shows.  

From January 10th, 1994, to October 1997, Ms Philipa Smith, Commonwealth Ombudsman, and her Director of Investigations, John Wynack, endeavoured in vain to access the FOI documents requested by most, if not all, of the COT Cases. They were informed that they would receive these documents if they went into arbitration. The sixteen remaining Australian citizens involved in the COT Cases have not received most of these pertinent documents.

A 12 February 1997 letter from Telstra to John Wynack (director of investigations in the Commonwealth Ombudsman’s office) concerns my original 1994 request for arbitration FOI documents (which I have still not received to this day). This letter states:

“You comment that you believe Telstra ‘should have taken steps to protect documents covered by [Mr Smith’s] request whilst it consulted with Mr Smith in an attempt to scope down the FOI request’.

“It is the case that Telstra did indeed take such steps, as Telstra wished to retain all of the files created by Mr Black relating to the CoT claims. … As a result a large number of files (86 in all) were forwarded to the FOI Unit. Unfortunately, at the time the files in question were apparently not recognised as files relating to CoT matters, rather they were thought to be simply files of miscellaneous material.

“As you will see from the above these files were inadvertently disposed of.” (See Senate Evidence File No 7)

Mr Wynack wrote to Telstra, concerning my FOI issues, on 11 March 1997:

“On 7 March 1997 I sought information from three Telstra officers about one aspect of your response to that complaint viz the disposal of some of Mr Black’s papers after Mr Black left the employ of Telstra.” (See Senate Evidence File No 7)

A further letter from Mr Wynack on 13 March 1997 to Telstra, concerning my FOI issues, states:

“During the course of her interview, Ms Gill informed me that the papers dealing with Mr Black’s role in establishing the Fast Track Arbitration Procedure were on an ‘arbitration file’ and that that file is one that is missing. Ms Gill said that ‘.. I don’t recall having sent it to anybody and I don’t recall having put it in the bin..’. Ms Gill said that the ‘arbitration file’ was a manila folder ‘..but a fairly thick one.’ …

“On the basis of the information given to me by [Telstra] and Ms Gill, it is extremely improbable that Ms Gill disposed of the documents in the ‘arbitration file’, or indeed any other documents from Mr Black’s office which would have been included in Mr Smith’s FOI application of 18 October 1995.″ (See Senate Evidence File No 7)

Telstra has still not provided me with a copy of their ‘arbitration file’ despite Mr Wynack’s letters referring to it.

The fourth 14 March 1997 letter from Mr Wynack to Telstra states:

“I refer to my letter of 13 March 1997 concerning the complaint by Mr Alan Smith alleging that Telstra unreasonably has delayed providing documents requested under the FOI application of 18 October 1995.

“I should be grateful if you would notify [Telstra employee], Mr Kearny and Ms Gill of my opinion that ‘On the basis of the information given to me by [Telstra employee] and Ms Gill, it is extremely improbable that Ms Gill disposed of the documents in the ‘arbitration file’ or indeed any other documents from Mr Black’s office which would have been included in Mr Smith’s FOI application…’ ” (See Senate Evidence File No/59)

Senate Hansard dated 24 June 1997, pages 76-77, show Senators Kim Carr and Schacht discussing my still outstanding arbitration matters, including:

Senator CARR – “In terms of the cases outstanding, do you still treat people the way that Mr Smith appears to have been treated? Mr Smith claims that, amongst documents returned to him after an FOI request, a discovery was a newspaper clipping reporting upon prosecution in the local magistrate’s court against him for assault. I just wonder what relevance that has. He makes the claim that a newspaper clipping relating to events in the Portland magistrate’s court was part of your files on him.” . . . .

Senator SHACHT – “It does seem odd if someone is collecting files. … It seems that someone thinks this is a useful thing to keep in a file that maybe at some stage can be used against him.” … . . . .

Senator CARR – “Mr Ward, (Telstra Executive) we have been through this before in regard to the intelligence networks that Telstra has established. Do you use your internal intelligence networks in these CoT cases?” (See Senate Evidence File No 2A & 2B)

PLEASE NOTE. Re the newspaper clipping and charges against me: No punches were thrown by me during this altercation with the sheriff who was about to remove catering equipment that I needed, to keep trading, from my property. I actually placed this man in a ‘full nelson’ and walked him out of my office. The Magistrates’ Court dropped all charges on appeal when it became obvious there were two sides to this story.

 

Australian Senate Parliament House Canberra

Starting on page 5163, this link SENATE official Hansard – Parliament of Australia, dated 25  June 1997, shows Telstra employees rorted millions upon millions of dollars from Telstra shareholders, i.e., the government and Australian citizens, who then owned Telstra. The pressure Senators Alston and Boswell applied for a Senate investigation into the Casualties of Telstra (COT cases) phone fiascos was one of the reasons Telstra agreed to settle the COT cases’ issues in a proposed Fast Track Settlement Proposal signed by Telstra and the four claimants in the third week of November 1993. Telstra, it seemed, could not afford a further investigation into its operation: NSW was not the only state where this rorting, and others, was taking place. Many people made threats against the COT cases because our persistence in order to gain fully functional phone systems was about to expose other unethical behaviour at Telstra, including at the management level. The fact that both the Telstra CEO and board knew millions upon millions of dollars (again, see 5163 of SENATE official Hansard – Parliament of Australia) were being unlawfully siphoned from the government coffers is unbelievable. In fact, figures running into the billions have also been quoted.

Furthermore, although it is astonishing, page 5163 of > SENATE official Hansard – Parliament of Australia shows that, even before COT members and a number of senators applied pressure, both Telstra’s CEO and all the members of the Telstra board had already known, for some time, about the millions of dollars that Telstra was unlawfully withdrawing from government coffers. Perhaps even more unbelievable is that the COT cases received no recognition, from either the government or Telstra, for our stand for honesty and truth; instead, we have been treated in the worst possible way, 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 the unauthorised interception of COT cases’ telephone conversations – this was undemocratic. 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, 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.

Both Telstra’s 14 April 1994 letter, to the Australian Federal Police (AFP), that admits at least one Telstra employee was intercepting my telephone conversations, and my 9 September 1994 response, concerning this unauthorised interception over an extended period, are now stamped “Protected AFP” material. The SENATE official Hansard – Parliament of Australia clearly refers to Telstra’s conduct, stand-over tactics and threats towards the COT cases. The Senate Hansard, AFP transcripts (of conversations with me concerning these threats) and the Commonwealth Ombudsman’s records, all confirm Telstra carried out those threats against; yet neither the arbitrator nor the TIO addressed this during my arbitration. Why has no one ever addressed this unethical conduct publicly? Why is there no record, in the arbitrator’s award, exposing these threats? Why was Telstra allowed to make these threats and commit similar unlawful acts against the COT cases during their arbitrations? Neither the TIO nor arbitrator came to my aid or demanded answers to why a corporation can take control over arbitrations in a government-endorsed process. This has been the hardest thing for the COT cases to accept, after having given so much to the people of Australia

 Melbourne lawyers, Michael Brereton & Co, sent this 20 August 1997 letter to Senator Ron Boswell, detailing how the process had failed me:

“The conduct of the arbitration which followed was highly dubious and open to attack as inviting questions of bias since the arbitrator ruled out many relevant documents to the detriment of Mr Smith’s claim… All of these circumstances and the fact that the entire arbitration was conducted in a highly legalistic manner much in favour of Telstra on rules it forced into place suggest that Mr Smith was less than fairly dealt with by Telstra and the arbitrator.” (See Senate Evidence File No/58)

Senator Ron Boswell’s son Steven immediately suggested that this letter clearly supported COT cases’ claims against the conduct of the arbitration process. I was, by then, included as one of the group that the Senate estimates committee working party was going to investigate. At this stage, however, in August/September 1997, the Senate working party had not yet divided the 21 COT claimants into two groups, the A (or ‘litmus’) group and the B group.

Again, on 4 October 1997, My Wynack (Commonwealth Mobudsman Office writes to Telstra stating:

“I refer to my letter to Telstra dated 13 March 1997 (copy attached for your convenience) in which I asked you to inform me of the specific file which Ms Gill described as the ‘arbitration file’, and whether Telstraasked [sic] Mr Black whether he has any knowledge of the whereabouts of the file.

“I have no record of receiving a response to my inquiries. Please inform me when I might expect a reply.” (See Senate Evidence File No 7)

I’m still waiting for a copy of this ‘arbitration file’, despite discussing it with Senator Ron Boswell on 20 August 1997 and despite Graham Schorer and I being told it would be provided to us once the Senate estimates committee started their FOI investigations.

On 23 October 1997, the office of Senator Schacht, Shadow Minister for Communications, faxed Senator Ron Boswell the proposed terms of reference of the Senate working party for their investigation into the COT arbitration FOI issues. This document shows 23 COT-type complainants, protesting about Telstra’s lack of cooperation in providing FOI documents, were arbitrarily divided into two groups: Schedule A and B (see Arbitrator File No 67 Senate). Five members of the A group went on to become the ‘litmus test’ cases. The 16 members of the B group were advised that, if the A group’s claims were successful, then any decisions and remedies that followed would equally apply to the members of group B. For reasons never explained, I was not included on the A list; Garry Dawson, from Melbourne, took that position instead, even though it eventuated that he did not actually take part in the investigation. In all, two COT cases did not have the energy to keep going and pulled out of the investigation.

A number of senators, Graham Schorer (COT spokesperson, and on the A list) and the Commonwealth Ombudsman’s Office were all told that, if the five on the A list proved their cases, then the remaining 16 would be treated the same. A litmus test is often used, for the sake of expediency, when there are many people affected by the same circumstances.

However, although the investigation into the litmus cases was initially intended to be completed quickly, the investigations ended up taking 20 months to complete and the remaining 16 were denied access to the remedies that were provided to the first five cases. The 15 other Schedule B COT claimants and I have never been given the chance to access the same relevant documents that the five test cases were provided, even though all our names were on the Senate estimates committee Terms of Reference schedule. The Coalition Government limited the investigation into Telstra’s conduct during the processing of the outstanding COT FOI issues to the first five litmus test cases.

If I had been included in the Schedule A list of COT cases in 1997, I would have asked the Senate working party to access a copy of Telstra’s arbitration file (see above) from the TIO or Telstra. With this file in hand, it would be just about impossible for Telstra to convince the senators that Telstra had destroyed their own major arbitration file. If I had been able to show the Senate estimates working party that the TIO’s special counsel, the arbitrator and Telstra were all involved in concealing the covert alterations to my arbitration agreement, following investigations would have also uncovered that the arbitrator continued to use the altered version of the agreement after he declared it was not a credible agreement. Those two issues (the covert alterations and the arbitrator branding the agreement as not credible) would have been enough for the Senate Estimates Committee to demand explanations for that unconscionable conduct. Surely no Australian senator would condone an arbitrator’s use of an agreement he knew was not credible? The arbitrator’s letter stating this was hidden from the Senate to prevent the TIO office from falling into disrepute.

Questions on Notice (1)

Although we address this 24 October 1997 letter from the TIO to Ms Pauline Moore, (secretary to the Senate Environment, Recreation, Communications and the Arts legislation committee) elsewhere on absentjustice.com, we can link in another sinister set of ill deeds committed against the COT claimants. This letter, stamped CONFIDENTIAL, includes the following statement:

“The COT Arbitration Procedures contain provisions relating to the confidentiality of the proceedings, which bind the parties. Those provisions also bind the Arbitrators, the Resource Unit, the Special Council and the TIO in my role as Administrator. …

“Accordingly, I ask that the answers given below to the questions on notice be treated as confidential by the Committee and not be published. …

“9.      Yes, from time to time I have received complaints from foundation COT members, concerning a range of matters, including alleged non-compliance with the rules of the Fast Track Arbitration Procedures by Telstra and/or the Arbitrator and/or the Technical and Accounting Resource Unit. …

“10.    Yes, I have refused to provide COT members with a copy of Telstra’s Preferred Rules of Arbitration. A copy of this document was not provided because it was of historical interest only, and the COT members did not advance any argument as to why it was relevant to their arbitration.” (See Senate Evidence File No 14)

The TIO’s insistence that the agreement was not provided to the COT claimants because: “it was of historical interest only, and the COT members did not advance any argument as to why it was relevant to their arbitration”, is a misrepresentation of the truth – to hide the fact that it was Telstra’s arbitration agreement that was used to protect Telstra, to the detriment of the claimants.

Graham Schorer, as COT spokesperson, first asked for a copy of the Fast Track Proposed Rules of Arbitration sometime before 17 February 1994, so the decision that it would be kept from the claimants was made at least a full two months before we signed the final version of the arbitration agreement. It was therefore entirely “relevant to their arbitration”. The COT claimants were legally entitled to know whether the arbitration agreement was drafted independently or if the defence crafted it, in their favour.

The claimants should have been provided with that original version of the agreement before we signed for arbitration; it should have also been provided during the arbitrations and the arbitration appeal periods. At an official arbitration meeting on 17 February 1994, Mr Schorer said he wanted assurances from the TIO and the arbitrator that the agreement he and the other COT claimants were being pressured to sign was not Telstra’s Proposed Rules of Arbitration. Telstra’s own transcript of this meeting (Senate Evidence File No/48) confirms the arbitrator and the TIO special counsel “both stated they had not received this document and had not read it and that it was irrelevant”. Documents (Senate Evidence File No 6 and File No/49) confirm the arbitrator was provided with (and read) a document called “Telstra Corporation Limited – ‘Fast Track’ Proposed Rules of Arbitration” sometime before 18 January 1994, a whole month before this pre-arbitration hearing on 17 February 1994.

Telstra’s Fast Track Proposed Rules of Arbitration, which the TIO was still refusing to supply us in October 1997, was the same arbitration file that John Wynack, director of investigations in the Commonwealth Ombudsman’s Office, was trying to access from Telstra on my behalf during 1995 to 1997 (discussed above). Powerful people amongst those administering the COT arbitrations wielded power within the establishment to conceal this very important pre-arbitration document.

How can the government who originally endorsed the first four arbitrations continue to ignore that we were entitled to receive Telstra’s rules of arbitration before we signed our arbitration agreement? Do not forget the TIO’s letter to me, dated 10 January 1996, stating, “I do not propose to provide you with copies of any documents held by this office” (see Senate Evidence File No/50) – echoing the responses that Graham Schorer and I had received since February 1994, from the previous TIO, when requesting copies of Telstra’s proposed rules of arbitration and later my own Ericsson AXE claim documents.

Questions on Notice (2)

There are further issues surrounding the TIO’s answers to similar Questions on Notice asked by the Senate committee. The TIO’s official response confirms that Ericsson purchased the arbitration main technical consultancy firm, Lane Telecommunications, during the COT arbitrations. All the technical information that I supplied to Lane Telecommunications during my arbitration, confirming the AXE Portland and Cape Bridgewater lockup problems were not just a local problem but a national and international problem affecting hundreds of exchanges all over the world, was acquired by Ericsson.

At least three other COT claimants also had businesses connected to Ericsson AXE exchanges and their claim material, too, was on Lane’s computer data files when the company was sold.

Australia must be the only country in the Western world that allows a witness (Lane Telecommunications was a witness to what the COT claimants had uncovered) to be purchased during a major litigation process, particularly when even the administrator advised the Senate committee of this, on 26 September 1997 (see Senate Evidence File No/61).

I believe the Australian government have to answer these questions: How long was Lane Telecommunications in contact with Ericsson, the major supplier of telecommunication equipment to Telstra, before Ericsson purchased Lanes? Is there a link between Lanes and DMR ignoring my Ericsson AXE claim documents and the purchase of Lanes by Ericsson during the COT arbitration process?

In-Camera Hansard

Ms Sue Owen, the solicitor assisting the four litmus COT claimants who registered their complaints with the police, met with me after seeing one of the reports I originally prepared for my arbitration. This particular report examines the Telstra-commissioned Bell Canada International Inc. (BCI) tests of the Cape Bridgewater network. Telstra submitted, and the arbitrator accepted, BCI’s official report – although the tests their report claimed they conducted were impossible.

After seeing some of the information I had uncovered, the Victorian Police Major Fraud Group asked me to meet with them at the police complex in St Kilda Road, Melbourne. This led to me spending a number of weeks going through documents and writing more reports.

During that process, at least one high-ranking police officer thought it was ironic that I was helping four people who, between them, had already collected some $15 million in compensation from Telstra, while I – left off the Senate’s Schedule A list of claims to be investigated – received nothing. The truth was that, by then, I was stone broke and hooked up to two mortgages while I helped these four COTs with their fraud case against Telstra.

When the fraud group’s investigation fell through, I was called again into their offices, this time to meet with two very senior detectives.

The Major Fraud Group were to courier my four storage boxes of evidence back to my residence. The two senior officers, however, wanted to make sure I personally took a half-size, cut down, A4 storage box of documents and, although I said I was happy to pack the information into one of the four storage boxes, they were adamant that I should take this small parcel with me. They wished me well and apologised to me for the way in which the Victorian Police Major Fraud Group had abruptly concluded their investigations without handing down a finding.

When I arrived back at Graham Schorer’s office and opened the box, we found a number of documents we had never seen before, including the in-camera Senate Hansard records of 6 and 9 July 1998.

Did the Major Fraud Group think it was undemocratic for the Australian government to help only one-third of a group of people without providing the same assistance to the other two thirds when the whole group had suffered the same fate? Was I given these documents to help me achieve justice for the remaining COTs, who the government had forgotten?

Of course, I doubt the Victoria Police Major Fraud Group would have expected the Senate to threaten me, for more than three years, with jail time if I release those Hansard records.

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:

“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.”

As chairman of the Senate estimates COT committee, Senator Alan Eggleston’s statement that “The report found Telstra had deliberately withheld important network documents…” is clear. The TIO board and council also hid two important issues from the Senate estimates committee:

The board and council knew the TIO-appointed resource unit ALSO stopped the COT claimants receiving relevant documents during the arbitration process; and
The TIO and the defendants (Telstra) allowed this to happen by secretly placing the resource unit in charge of deciding which documents they thought were relevant for the arbitrator to view and which should be withheld from the arbitration process. The various links on absentjustice.com show this is what happened during my arbitration when the TIO-appointed arbitration resource unit failed to address my claims of incorrect charging on my facsimile and 1800 service.

Neil Jepson (barrister for the Major Fraud Group) suggested I inform the chairman of the Senate estimates committee that I had proof that Telstra had deliberately provided false Bell Canada International Inc. Cape Bridgewater information to Pauline Moore, secretary of the Senate Environment, Recreation, Communications and the Arts legislation committee.

On 18 August 2001, Senator Alan Eggleston wrote to me, noting:

“I am very concerned with your statement in the 6 August letter that you are in possession of two in-camera Official Committee Hansards relating to this issue, dated 6 and 9 July 1998. Furthermore, you intend to send these confidential Hansards to Mr Brian Pickard, Ms Sandra Wolfe’s solicitor.

“I wish to remind you that evidence or documents taken in camera or submitted on a confidential or restricted basis cannot be disclosed to another person unless by order of the Senate. This does not occur often, although the Senate, on 30 August 2000, did authorise the release of the Hansards of 6 and 9 July 1998 to the Victoria Police Major Fraud Group to assist in their investigations.

“The fact that you have received unauthorised confidential committee documents is a serious matter, but if you disclose these documents to another person, you may be held in contempt of the Senate. I would remind you that section 13 of the Parliamentary Privileges Act 1987 provides for penalties in relation to these matters.” (See Senate Evidence File No 12)

While I have never released these two Hansards, in broad terms, they cover two important issues.

First, they prove beyond all doubt that one senator announced that it would be an injustice to the remaining COTs if Telstra paid compensation to only those currently under investigation but not the others. However, Telstra was allowed to compensate only those five litmus test cases.
Secondly, in October 1997, when Telstra provided the Cape Bridgewater/Bell Canada International Inc. (BCI) report in response to questions raised by the Senate, on notice, Telstra already knew it was false but still no one has ever brought Telstra to account for that decision, even though their actions were in contempt of the Senate.

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 Parliment of Australia)

The Senate Hansard of 11 March 1999 includes quotes confirming just how scathingly critical a number of Senators were in relation to the way Telstra ran the COT arbitrations, and not the arbitrator Dr Hughes even going so far as to note that it was “a process subject to unilateral amendment by Telstra”. That the committee was able to state Telstra used their “unilateral” control of the arbitration process to avoid supplying the promised documents shows the arbitration process failed the COT cases.

Senator Schacht also was possibly more 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 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.”.http://parlinfo.aph.gov.au/parlInfochamberhansards1999-03-11)

Senator Mark Bishop’s statement shown below also notes

Significant issues do arise. I think it is appropriate to refer to the final paragraphs of the committee report. In the second to last paragraph, the report of the committee tabled by Senator Eggleston says:

Estimates of Telstra’s costs in relation to the CoTs issue since the claims were made exceed $20 million ($14.285 million to 1997 and rising). Most of the expenditure has been spent not on settlement but on administrative and legal costs. It became quite clear early in the process that the claimants had, in fact, been disadvantaged by malfunctions in their telephone system. It is difficult to understand why Telstra appeared to prefer to deny that there was a problem and then prolonged the difficulties in establishing the extent of that problem.

The final sentence reads:

In the Committee’s view, Telstra should now seek to reach a negotiated agreement with the interested parties.

If fault is to be allocated at this very early stage of the final lap, that fault lies at the door of Telstra. It really is appropriate for Telstra, a $100 billion corporation, to stop using its monopoly power, to stop retaining the services of dozens of highly paid solicitors and to come to the table and to seek to reach a negotiated agreement with these four or five persons. It is simply outrageous that Telstra, which is still a public corporation, can spend something in the order of $20 million – Senator Boswell – Some $24 million.

“Senator Boswell informs me 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 proposition and a waste of public money” (See Parliment of Australia)

The Senate intervention to stop this unlawful conduct only assisted the five ‘litmus’ COT cases (four) that had not yet reached arbitration. The remaining 16 COTs had already been through their government-endorsed processes but without the bulk of their FOI requests/evidence. Because the Senate did not assist the remaining 16 in obtaining their FOI requests, those COTs were unable to secure settlements that reflected their true losses. Why were the 16 cases that had gone through a – disputable – arbitration process not even looked at? This is certainly appalling discrimination by the LNP government. And our past and current government bureaucrats have the audacity to downplay what Julian Assange tried to do for the COT cases, i.e., his fellow Australian citizens.

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 chief of staff to the Hon. Senator Richard Alston, Minister for Communications. He asked:

“The media event will address serious issues related to Telstra’s unlawful withholding of documents from claimants during litigation through the following questions.

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 most honest politicians 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.

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 my arbitration (see Main Evidence File No 34).

Over the last 20 years I have had a number of conversations with people who were closely associated with my arbitration; it appears the person who held the position of TIO during my arbitration claimed his political career would be over, along with the careers of some others associated with my arbitration, if my arbitration evidence ever surfaced as part of a Senate estimates investigation. That TIO later became a very senior front-bench minister in the John Howard Liberal/Country Party Government.

So, is this only hearsay? Or could there be some truth to it, considering that the vacant position on the “A” list was never filled after Garry Dawson withdrew?

Author’s Note:

From 1993 through to 2008, the Hon David Hawker MP, Federal Member for Wannon (in South West Victoria), clearly knew just how badly corroded the existing copper wire was in telecommunication systems, particularly in his electorate, even while he was the Speaker in the House of Representatives. Mr Hawker was tireless in his attempts to ensure that his coalition colleagues in the Australian government saw the many documents that I had given to him over the years. Like me, most of the COTs wrote many letters to the Australian government, particularly between mid-1996 and 2002. We warned that to continue with the push to privatise the Telstra Corporation, while the copper wire network was in such bad shape, was almost criminal because the shareholders would be left with the bill to replace the ailing network in years to come. Senator Len Harris began to accumulate evidence from different sources, including at least three of the COTs, as his 14 November 2002 media release shows (see Senate Evidence File No 57). He tried, as an independent senator, to explain to the Minister for Communications that this information should be released into the public domain. No one seemed interested in listening to him or the COTs. The privatisation went ahead, and the rest is history.

Now, in 2018, Telstra shareholders are footing the bill, and the NBN rollout is a disaster. On 21 January 2016, a Telstra shareholder told me that he was not informed that the Telstra network was in such a state, either in writing or at shareholders’ meetings when he purchased his shares 10 years ago. The NBN rollout of 2014-2015 has revealed the copper wire network to be in a far worse state than the Telstra Corporation has ever acknowledged. How do Telstra’s shareholders feel about this non-disclosure by the government prior to the privatisation?

Many bureaucrats who commented on our fight for justice branded the members of COT as frivolous and vexatious litigants, but they missed a number of important facts. Firstly, most bureaucrats have never attempted to run a small business of any sort, particularly a business where the loss of four or five telephone calls a day is enough to completely destroy that business (especially if those lost calls continue to occur). The arbitrator handed down his findings based on Telstra’s claim, sworn to under oath that the complaints raised during arbitration were fully rectified. This was not the case.

Those same bureaucrats also failed to understand that my ongoing telephone problems were not investigated or fixed, even though the Australian government promised me that ALL the problems would be fixed as part of the arbitration process.

One of the founding four members of the Casualties of Telstra, Ann Garms, sadly passed away on 14 July 2018. Graham Schorer (COT Spokesperson) is ill and will no longer assist in telling our story. Maureen Gillan appointed a power of attorney to handle her COT matters long ago, which in August 2018 left me to take up the baton, so to speak.

 

Chapter 4

Life was not meant to be easy

 

 

After reviewing both Open Letter File No/41/Part-One and File No/41 Part-Two, it's clear that the exhibits and evidence attached to the report provided by both the Hon David Hawker MP and me to Senator Richard Alston, who then passed it on to his staff manager Paul Fletcher for investigation. Had Mr Fletcher investigated this report in June 1996, most, if not all, of the issues I have raised on this website absentjustice.com would have been resolved in 1996.

The Hon. Paul Fletcher was the Minister for Communications, Urban Infrastructure, Cities, and the Arts in the 2022 Morrison government. My Federal Member of Parliament, Dan Tehan, asked him to review my unresolved COT issues. However, Paul Fletcher declined to investigate.

Why is this once-liberal public servant turned politician prepared to conceal the truth that he and his once Liberal master, Senator Richard Alston, will not publicly acknowledge that it was their investigation after the Hon David Hawker MP (later Speaker in the House of Representatives) between 20 September 1995 and June 1996 that led me to uncover fellow members of the Liberal Party, with the assistance of Telstra and AUSTEL (now ACMA), concealed from the citizens of Australia the actual state of Telstra's network? By doing so, they destroyed my business and several other small businesses in their joint effort to protect Telstra.

Mr Alan Cameron was supplied with force information concerning this report by the arbitration unit when he first began investigating my claims. ASIC aborted their investigations, unaware they had been duped by the arbitration unit, who had been secretly exonerated from all liability for their part played in the COT arbitrations. In September 1995, the Hon David Hawker MP and I discussed this with Senator Richard Alston (Shadow Minister for Communications) in Parliament House Canberra, who assured us he would have it addressed and asked me to provide further supporting material because the accompanying documents provided to him by the Hon David Hawker MP suggested that the whole arbitration process should be put on hold until after an investigation into my claims had been provided to the government.

In March 1996, Senator Richard Alston became the new Minister for Communications in the John Howard government, and Mr Fletcher became the Senator's communications advisor. Had Paul Fletcher and Senator Richard Alston investigated this report in June 1996, these arbitration issues would have been validated 24 years ago.

One must ask whether the appointment of Warwick Smith as Sports Minister in March 1996, who, as administrator to the first four COT arbitrations, had covertly used Telstra's arbitration agreement instead of an independent agreement which the government had been told would be used, did that unethical conduct by Warwick Smith prompt both Senator Richard Alston and Paul Fletcher into dropping their investigation when Warwick Smith became a minister in the John Howard Government?

I have, to date, in 2024, been unable to obtain official government records as to whether Senator Richard Alston, who advised The Hon David Hawker MP that he would investigate my matters as a Senator for Victoria would investigate my claims against Warwick Smith was one of the government officials mentioned in this Senate Hansard dated 28 February 1998, who were treated with an all-expense paid trip to Atlanta before he and his Chief of Staff Paul Fletcher abandoned their investigations in to my claims.

Hansard at (Senate Evidence File No 1-C) shows the Senate was concerned that several government ministers had taken kickbacks from Telstra, creating a conflict of interest in their ministerial roles. The ramifications would have been significant if the Senate had been quiet about who they were discussing and if some ministers had not conducted their government affairs honourable.

Questions raised during a Senate committee hearing

Senator ALLISON – Telstra was very reluctant to reveal the names of its other commercial customers that were sent to Atlanta. Why is this?

Senator – ALLISON – These customers are not, presumably, private individuals?

Senator – ALLISON – So they are in the position of being able to make decisions which could favour Telstra, that is what you are suggesting?

Senator – ALLISON – Are you familiar with Telstra’s employee code of conduct?

Senator – ALLISSON – So this is still a current code of practice? It would be familiar to those people who needed to know

Senator – ALLISON – It says, under ‘guidelines for expected behaviour — bribes, pay-offs or kick-backs': No bribes, pay-offs, kick-backs or other considerations will be paid or received directly or indirectly. In addition, such payments to domestic or foreign government officials to influence a decision or gain a benefit either directly or through a third party, are prohibited.

Senator – ALLISON – Would you like to give us a view about these trips to Atlanta and how they relate to expected behaviour in this sense?

Senator – ALLISON – With respect, a seat at the ballet is quite different from a $12,000.00 trip to the 

Would you like to give us a view about these trips to Atlanta and

Atlanta Games surely?

Senator – ALLISON – Are you suggesting that there is another code for corporate conduct?

Senator SCHACHT – So the invitations to people to go to Atlanta, whether they were politicians or corporate, were approved by the CEO.

Senator ALISSON – I just come back to this question of the sensitivity of your business customers. Since they represent corporations, and since Telstra is a corporation, why is the need for such secrecy? Why is it a sensitive matter?

What has been said above in several statements by various Senators concerning the documented kickbacks that several Senators stated were a disgrace?  Creating a free $12,000.00 trip paid by Telstra is a situation that may be part of the reason if this named person was one of those mentioned who accepted this trip after having been part of my Telstra arbitration. This arbitration failed to investigate one ongoing telephone problem which was still affecting my business (as Telstra's own records show) in November 2006 (see main Evidence F, 11 years after my arbitration was set up to fix these problems.  If the Australian Government were to ask me for the name of the “named” person, I would undoubtedly supply that name and other information which suggests this person knowingly misled numerous people in a statement he prepared on 12 May 1995 concerning my arbitration, which he knew was not the truth by a long way.  I think by mentioning this issue in our Senate link here on absentjustice.com, someone in Government will be interested in researching back to this particular 27 February 1998 Hansard and the false statement made by this person as to whether this situation is part of the reason the Government has transparently investigated my valid claims.

ASIC - was the same, too. 

To support my claims that Anthony Hodgson, Chairman of Ferrier Hodgson Corporate Advisory (FHCA), misled ASIC or his own company misled him regarding assessing less than 11% (eleven per cent) of my legally submitted claim, see the following points:

Point 1: There are discrepancies between the arbitrator’s and my version of the technical consultants’ report titled Resource Unit Technical Evaluation Report. Mr A and Smith. CBHC  30 A ril 1995. The second paragraph on page one consists of only one short sentence: “It is complete and final as it is” (see Arbitrator File No/27). However, the second paragraph on the equivalent page (page two) of the arbitrator’s report, also dated 30 April 1993, says:

“There is, however, an addendum which we may find it necessary to add during the next few weeks on billing, i.e. possible discrepancies in Smith’s Telecom bills.” (See Arbitrator File No/28)

Point 2: The arbitrator’s version contains more information than mine. For example, the reference to my ongoing billing problems states that extra weeks are required to complete the investigation, but the arbitrator did not provide the extra weeks.

My page two of this report (see Open Letter File No/47-A to 47-D) shows no mention of my billing claim document in my version. However, page three in the arbitrator’s version notes:

“One issue in the Cape Bridgewater case remains open, and we shall attempt to resolve it in the next few weeks, namely Mr Smith’s complaints about billing problems.

“Otherwise, the Technician Report on Cape Bridgewater is complete.” (See Open Letter File No/47-A to 47-D)

How can two identical technical reports with the same 23 technical assessments, both dated 30 April 1995 and apparently both prepared by the same consultants, have one version noting that the “… case remains open, and we shall attempt to resolve it in the next few weeks”, while the other has no mention of it still being open and needing weeks to complete?

Both documents state, “A comprehensive log of Mr Smith’s complaints does not appear to exist.” It did exist, as we have shown. Had this comprehensive log of fault complaints been provided to the technical consultants to assess, they would have had to overrule the arbitrator’s decision not to allow them the extra weeks they had requested to investigate my ongoing billing faults.

My claims to ASIC also raised concerns that FHCA did not provide my evidence showing that the TF 200 telephone beer in the telephone report was fraudulently manufactured by Telstra to the arbitrator for assessment.

Garry Ellicott and Barry O’Sullivan (my claim advisors) had definitely submitted a very comprehensive list of fault complaints as part of my submission (see Arbitrator File No/31 & 32). One of those reports was a complete chronology of events to assist with reading the comprehensive log of fault complaints. Were these documents lost en route to the arbitrator's office via Australia Post or the inadequate faxing system at Dr Hughes’ office (see exhibit G Schorer 717-G stat dec and letter to IAMA)? My request was denied when I demanded an arbitration meeting to discuss these missing reports (see Arbitrator File No/48).

A dated chronology of my 008/1800 billing issues existed before, during and after my arbitration. A comprehensive log of faults was submitted to the federal government before and during my arbitration. Still, this record disappeared, leaving only 11% of my claim documents to be assessed. Neither Telstra nor AUSTEL could allow my 008/1800 billing issues to be scrutinised and exposed. The implications of a systemic charging issue, which affected as many as 120,000 Australian households and businesses (see Prologue Evidence File No 22-A)

The four COT claimants Ann Garms, Maureen Gillan, Graham Schorer and (me) were never told about any of these so-called “forces at work” and nor were we ever warned that, under the nose of the TIO, the TIO’s legal advisor and the Arbitrator, these un-named “forces at work” were allowed to infiltrate and manipulate the arbitration process wherever and whenever they desired, but always to help Telstra to defeat the COT claimants.

Point 4, When these three legal experts (i.e. Dr Gordon Hughes, Warwick Smith and Peter Bartlett) allowed this very important letter of 18 April 1995 to be hidden from the four COT cases, those so-called ‘legal experts directly assisted those “forces at work” to carry out their intended disruption of all four of the COT cases’ arbitrations. If John Rundell had sent a copy of his letter to the four COT cases, as he should have, all four of us could have approached the Federal Government at once because, with Mr Rundell’s letter as evidence, we would certainly have had a very reasonable chance of being granted the rights to have all four processes reviewed and amended, at the very least.  And don’t forget, it was the federal government that originally endorsed those first four Fast Track Arbitration Procedures.

By viewing exhibits Open Letter File No/41/Part-One and File No/41 Part-Two, as well as exhibits Open letter File No/45-A to 45-I and comparing them with Open letter File No/46-A to 46-L to Open Letter File No/47-A to 47-D, it will be clear my claims against the conduct of the arbitrator and FHCA are valid.

I also hoped that ASIC, with its legislative powers, would order a quick assessment of the arbitrator’s written technical findings in his award and compare Telstra’s arbitration defence. ASIC would have proved beyond all doubt that Telstra defended NONE of my Ericsson AXE and NEAT faulty testing equipment procedures or commented on by the arbitrator. Lane Telecommunications (the TIO-appointed arbitration technical advisors investigated NONE of my Ericsson fault data. I can only presume Lane did not assess my Ericsson claims because Ericsson was already purchasing Lane. ASIC was misled and deceived by Ferrier Hodgson Corporate Advisory as I had been during my arbitration.

Why then did Anthony Hodgson, the chair of Ferrier Hodgson Corporate Advisory (the arbitration financial resource unit), write to Alan Cameron, chair of the Australian Securities Commission (see Open letter File No/45-I), on 17 March 1998, advising that I was wrong: ALL of my claim documents were addressed during my arbitration when the above-aforementioned points and exhibits show they were not addressed at all. This statement by Mr Hodgson to ASIC was misleading and deceptive conduct. If he wrote on advice he received within his own corporation, then his own company members and partners within profoundly misled and deceived him and when this possibility was brought to his attention and the attention of John Pinnock (the second TIO), the truth of the matter was not relayed back to ASIC.

Had the Australian Securities Commission not been misled and deceived in March 1998, less than three years after my arbitration concluded, and instead made a finding that my claims were justified, as the attached exhibits on absentjustice.com show, then I could have challenged at least one of the sections in the arbitrator’s award, as 1998 was well within the statute of limitations time-frame allowed.

Chapter 5

Half Way There

 

This remedy was pursued from 1998 to 2001

An Injustice to the remaining 16 Australian citizens

During 1998/99, the Major Fraud Group Victoria Police asked me to supply any evidence I had of Telstra committing fraud to support its defence during my 1994/95 arbitration. It was common knowledge in government circles that Telstra, indeed, used fraud in defence documents, as well as submitted false information to the Senate in September and October 1997 concerning this same fraud. As I did during my 1994 arbitration, when I assisted the Australia Federal Police during its investigation into Telstra’s unethical conduct towards me (see Senate Evidence File No 31), I agreed to assist the Victoria Police in their 1998 investigations into similar acts of misconduct towards fellow Australian citizens.

It is essential to raise the Victorian Major Fraud Group’s police involvement in the COT cases’ matters (as well as several parties associated with the Major Fraud Group), as it is linked to our An injustice to the remaining 16 Australian citizens page. I was not one of the four COT cases’ litmus group, who, through Sue Owens (barrister), lodged complaints against Telstra with the Major Fraud Group in 1999. I was seconded some months later as a witness. The litmus COT cases provided my evidence of Telstra committing fraud against me during my arbitration to the Senate estimates committee during their FOI investigations.

Despite this, the chair of the Senate estimates committee discarded my evidence (even though my records had proved it as factual. This bad advice On Notice to Senator Ron Boswell).

However, while the above was a significant issue that interested Mr Jepson, as did the falsified Bell Canada International Cape Bridgewater testing, the reason Mr Jepson seconded me as a witness to assist the Victoria Police.

I believed at the time, and I still do today, that it was this Secret Deal proof and the fact that Dr Hughes had not conducted the arbitrations see page 99 COMMONWEALTH OF AUSTRALIA – Parliament of Australia according to the agreed ambit of the arbitration procedures that prompted the Major Fraud Group. Later, the Institute of Arbitrators Mediators Australia (IAMA) agreed to investigate my claims. Simply put, between 1998 and 2001, there were two different investigations, one by the Major Fraud Group and the other by the IAMA.

That investigation was conducted on behalf of Sue Owens Barrister (Melbourne) and her four clients, Ann Garms, Ralph Bova, Ross Plowman and Graham Schorer. 

Ms Owens alleged that Telstra had committed fraud against her four clients and had initially relied upon the Bell Canada Internation BCI testing results conducted by BCI of several telephone exchanges that serviced the four COT Cases businesses. Those four COT Cases could not prove their claims, whereas Sue Owens Barrister argued that I could but had not alleged fraud against Telstra for my reasons.

The Institute of Arbitrators Mediators Australia was already investigating my arbitration claims.

This statement or something similar prompted the Major Fraud Group to ask me to supply at the request of their barrister Sue Owens, Neil Jepson, even though it only supported my case.

I was to find out later that the question that the Major Fraud Group would raise with the government communications regulator was: as Alan Smith had been able to prove that Belll Canada International Inc could not possibly travel to Cape Bridgewater and Portland to carry out their tests as their reporting and later advice to the Senate, there was a reasonable chance this false testing had happened to the four COT Cases now being investigated. 

It was on this note that I was seconded into the investigation because my evidence proved beyond all doubt that neither the Cape Bridgewater BCI tests nor Telstra's testing at the Cape Bridgewater Holiday Camp conducted ten months after BCI alleged tests could have been performed it was this evidence Telstra's Falsified SVT Report and Telstra's Falsified BCI Report that brought me into the investigation. 

After I provided the contents of (see AUSTEL’s Adverse Findings, at points 10, 17, 18, 23, 37, 39, 40, 42, 44,46,47, 53, 56, 61, 62, 70, 75, 76, 79, 85, 86, 87, 89, 91, 92, 93, 98, 100, 101, 104, 105, 109, 110, 111, 112, 118, 115, 129, 130, 136, 144, 151, 153, 158, 170, 173, 186, 187, 188, 206, 207, 208, 209, 210, 211 and 212, shows the government knew six weeks before my arbitration commenced that my claims had already been validated.

I finally received a copy of this draft report in November 2007, twelve years too late to use in my arbitration. at points 211 and 212, respectively: 

“Telecom testing isolated and rectifies faults as they were found however significant faults were identified not by routine testing but rather by the persistent fault reporting of Smith”

"In view of the continuing nature of the fault reports and the level of testing undertaken by Telecom doubts are raised on the capability of the testing regime to locate the causes of faults being reported”.

During the Major Fraud Group investigation, while working on the Tampering With Evidence, Telstra's Falsified BCI Report, and Telstra's Falsified SVT Report, I also worked with Senior Sergeant Sommerville and Detective Sergeant Rod Kueris regarding Telstra's tampering with evidence after it let my business. Telstra alleged someone in my office had split a residue in the TF200 telephone and claimed the phone was dirty when it arrived at Telstra's laboratories ten days after being collected (Tampering With Evidence).
Photos taken by Telstra of the TF200 after it left my premises showed the telephone was clean. After the Major Fraud Group investigated this issue, on their advice on 26 May 1999, I wrote to 

Dr Zygmunt Switkowski, Chief Executive Officer Telstra Melbourne, Mr David Hoare, Chairman of the Board Telstra Melbourne and Mr Tony Staley Chairman of the TIO Board Telecommunications Industry Ombudsman Limited Melbourne and copied it to Senior Sergeant Sommerville, Victoria police Major Fraud Group, Melbourne along with supplying the proof that Telstra had in deed relied upon fraud to support their arbitration defence of my claims  (see exhibits Open Letter File Nos/36, 37 and File No/38).

I have never received a response from the three addressees of that letter concerning this tampering with my phone after it left my office.

addresses these issues, showing the arbitration project manager’s claims of me impersonating him could only have come from an incident I recount below, on 28 November 1995, after Telstra themselves uncovered that their first arbitration report, of 10 and 12 May 1994 and provided to the arbitrator, concerning my TF200 telephone locking up after each terminated call, was a false report. Apparently, Telstra discussed some issues I previously raised with Telstra Frank Blount in March 1994 (see above) when he telephoned me in Cape Bridgewater. We discussed a number of problems associated with these ongoing lock-up problems.

During my period assisting the Major Fraud Group in 1999, I provided evidence showing that AUSTEL, the then communications regulator during my arbitration, allowed Telstra to address the significant part of my 008/1800 billing complaints on 16 October 1995 (FIVE MONTHS) after the conclusion of my arbitration, without allowing the arbitrator or me to make a response to that submission Absent Justice Part 2 - Chapter 14 - Was it Legal or Illegal?

The main issue regarding 008/1800 correspondence I raised with Mr Jepson was the arbitration project manager’s letter to the TIO admitting, on 13 February 1996, he advised my accountant, Derek Ryan, that he removed a large portion from the report on my financial losses by order of the arbitrator and would not discuss this matter until after my appeal period had expired. It infuriated Mr Neil Jepson and Mr Jock Somerville that a person who knows the truth would only discuss it once my appeal period expired: both commented words to the effect that this shows just how unethical this person really was. Just imagine, had he the balls to disclose the truth during my appeal, period, all this heartache could have been over in 1995.

It was after I discussed this 15 November 1995 letter from John Rundell to John Pinnock knowingly misleading him concerning the 008/1800 billing faults having been left open, but he told Mr Pinnock the complete opposite. This was where the Major Fraud group could start their investigation into my matters.

But the collusion did not stop there because, as Mr Jepson pointed out, if I had of been a suspect in the damaging of Mr Rundell’s property before December 1995, when Quest did the interview, my local Portland police station would have been contacted and I would have been asked to provide a written statement concerning where I was at the time this alleged damage took place. As I live a six-hour drive from Brighton, it would have been an easy exercise for local police to determine my whereabouts. This 13 February 1996 letter to John Pinnock (TIO) says:

“Mr Smith engaged a Private Investigator, who visited my home on 27 December 1995 with the intention of discussing matters associated with the Ferrier Hodgson report. I found such an intrusion into my privacy and house (and also the tape recording of our discussion without advice) highly inappropriate.

“As you may be aware I have contacted the Brighton CIB in relation to

1. damage to property at my home

2. the actions of Mr Smith impersonating me and pursuing me via the use of a private investigator.

“You should be aware that the Brighton CIB intend to interview Mr Smith in relation to criminal damage to my property, but regard the matter of his impersonating and tape recording and telephoning me at home a civil matters.”

This letter of 13 February 1996 is amongst the 8 damning letters discussed in Chapter 1 - The collusion continues to Chapter 5 - The Eighth Damning Letter.

Mr Jepson asked to see evidence supporting my claims that the 008/1800 billing faults were widespread and that it was raking in millions upon millions of dollars into government coffers. Then, I showed Mr Jepson some of the information on this website, which clearly shows hundreds of thousands of Telstra customers were being billed for calls not connected, calls that did connect but did not sound the ringing tone, and so on.

At the insistence of the COT Case, Ann Garms and Graham Schorer, I raised my Ericsson AXE telephone exchange fault data in conjunction with Ann Garms's AXE evidence with the Major Fraud Group.

We did this because Ann Garms had previously raised the issue Telstra was still concealing their Ericsson telephone exchange evidence which I should have received. After all, I was not part of the Senate investigations demanding Telstra supply this Ericsson documentation as part of the Senate COT Cases investigations.

Ann and Graham informed the Major Fraud Group that, in my case, the arbitrator and Lane Telecommunications Pty Ltd (who had been the technical arbitration unit) had never investigated my Ericsson billing claim documents. The Major Fraud Group was shocked that one of the side effects of the Ericsson locking up faults was the incorrect charging for a service line that remained open for ninety seconds after each terminated call.

Telstra was reaping money from using known faulty Ericsson AXE equipment. I provided this evidence to Paul Fletcher, Senator Richard Alaton's Chief of staff, who is not Australia's 2022 current Minister for Communications in the Scott Morrison government. 

 

Chapter 5 Fraudulent conduct

Historical Interest Only

This 24 October 1997 letter from John Pinnock, Telecommunications Industry Ombudsman (the second appointed administrator to the COT arbitrationsto) to Ms Pauline Moore, (secretary to the Senate Environment, Recreation, Communications and the Arts legislation committee) is important to add here in this Ericsson and Lane segment. This letter, stamped CONFIDENTIAL, includes the following statement:

“The COT Arbitration Procedures contain provisions relating to the confidentiality of the proceedings, which bind the parties. Those provisions also bind the Arbitrators, the Resource Unit, the Special Council and the TIO in my role as Administrator. ...

“Accordingly, I ask that the answers given below to the questions on notice be treated as confidential by the Committee and not be published. ...

“9.      Yes, from time to time I have received complaints from foundation COT members, concerning a range of matters, including alleged non-compliance with the rules of the Fast Track Arbitration Procedures by Telstra and/or the Arbitrator and/or the Technical and Accounting Resource Unit. ...

“10.    Yes, I have refused to provide COT members with a copy of Telstra’s Preferred Rules of Arbitration. A copy of this document was not provided because it was of historical interest only, and the COT members did not advance any argument as to why it was relevant to their arbitration.” (See Senate Evidence File No 14 letter from TIO to secretary of Senate admitting to withholing copies of Telstra's rules of arbitration from the claimants)

John Pinnock's insistence that the agreement was not provided to the COT claimants because: “it was of historical interest only, and the COT members did not advance any argument as to why it was relevant to their arbitration”, is a misrepresentation of the truth – to hide the fact that there were several reasons as to why this arbitration agreement was so important to the COT Cases during their pending appeal processes. 

Graham Schorer, as COT spokesperson, first asked for a copy of the Fast Track Proposed Rules of Arbitration sometime before 17 February 1994, so the decision that it would be kept from the claimants was made at least a full two months before we signed the final version of the arbitration agreement. It was, therefore, entirely “relevant to their arbitration”. The COT claimants were legally entitled to know whether the arbitration agreement was drafted independently or if the defence crafted it, in their favour. 

The COT Cases also wanted to know when and why DMR Group Inc (Australia), the officially appointed arbitration consultants who signed the same confidentiality arbitration agreement, was no longer the technical consultants. Warwick Smith (the first administrator of our arbitrations) refused to tell the four COT Cases the date DMR Group (Australia) had pulled out of the process. Why did it take until March 1995 for Warwick Smith to inform us of four COT Cases that Lane was now taking over when rumours had it in government circles that DMR Group (Australia) had resigned their commission in September 1994? 

Telstra’s Arbitration File, which the TIO was still refusing to supply us in October 1997 (See Senate Evidence File No/59), was the same arbitration file that John Wynack, director of investigations in the Commonwealth Ombudsman’s Office, was trying to access from Telstra on my behalf in October 1995 through to October 1997 (Bribery and Corruption My Story Warts & All). It is clear from the letters dated between October 1995 and October 1997 (two years) that John Wynack, director of investigations in the Commonwealth Ombudsman’s Office, did not believe Telstra had destroyed the arbitration file I had been seeking for so long

Would this arbitration file (had it been provided according to the FOI Act, which John Wynack, on behalf of the Commonwealth, was using to access this information on my behalf exposed when Lane and Ericsson had entered into the arrangements they did when Lane agreed to be purchased?

How can the government, who originally endorsed the first four arbitrations, continue to ignore that we were entitled to receive Telstra’s arbitration file during our designated arbitration appeal process? Do not forget John Pinnock's letter to me, dated 10 January 1996 (when I advised him I was appealing my arbitration). He wrote: “I do not propose to provide you with copies of any documents held by this office” Senate Evidence File No/50 TIO refuses to supply me arbitration documents in which to support my appeal. 

It also important to take into consideration the Senator Ron Boswells statement that:

“…Telstra are still withholding the most important network documents. Mr Wynack [Commonwealth Ombudsman Office] has said, `There is plausible evidence that Ericsson would have documentation’ and that he believes much of the documentation specified by Mrs Garms would have been created. Further, going to the core of the dispute of bad service,” 

That statement suggests that Senator Boswell, along with John Wynack, believed Telstra was still concealing vital Ericsson telephone exchange equipment from the COT cases during an official Senate Committee hearing. 

This is the same Ericsson documentation that Ms Phillipa Smith (Commonwealth Ombudsman) and John Wynack, Director at the Commonwealth Ombudsman Office, also tried to access from Telstra on my behalf during my arbitration without any success. 

I took this Ericsson AXE information to the government regulator AUSTEL, and on 9 June 1993, AUSTEL's John MacMahon wrote to Telstra regarding my continuing phone faults after the settlement, and the content of the briefcase documents: this letter states:

“Further, he claims that Telecom documents (found in the briefcase) contain network investigation findings which are distinctly different from the advice which Telecom has given to the customer concerned.

In summary, these allegations, if true, would suggest that, in the context of the settlement, Mr Smith was provided with a misleading description of the situation as the basis for making his decision. They would also suggest that the other complainants identified in the folders have knowingly been provided with inaccurate information

I ask for your urgent comments on these allegations. You are asked to immediately provide AUSTEL with a copy of all the documentation which was apparently inadvertently left at Mr Smith’s premises for his inspection. In light of Mr Smith’s claims of continuing service difficulties, I will be seeking to determine with you a mechanism which will allow an objective measurement of any such difficulties to be made”.(See Arbitrator File No 61)

When I exposed just how bad the Ericsson AXE telephone system was and that Telstra was also using faulty Ericsson AXE testing equipment, AUSTEL asked for further better particulars I provided. From this date onward, as shown throughout this website, I continued to help AUSTEL even to the extent one representative even drove six hours from Melbourne on 19 December 1995 to my business premises. This Ericsson fault was also causing billing faults due to lockup problems in that equipment. But Telstra also had another issue that AUSTEL and I worked on, and this was another billing problem in Telstra's 008/1800 software. The problem with these two faults was that they caused the incorrect billing to the customer account.   

This two-fold Ericsson v Telstra software billing problem is discussed throughout our story.

call loss rate to AUSTEL (the then government communications regulator) AUSTEL (now ACMA) instigated an investigation into these Ericsson AXE exchange faults and uncovered some 120,000 COT-type complaints that were being experienced around Australia. Exhibit (Introduction File No/8-A to 8-C), shows AUSTEL’s Chairman Robin Davey received a letter from Telstra’s Group General Manager, suggesting he alter that finding:

For example, at point 4 on page 3, Telstra writes:

“The Report, when commenting on the number of customers with Cot-type problems, refers to a research study undertaken by Telecom at Austel’s request.  The Report extrapolates from those results and infers that the number of customers so affected could be as high as 120,000.

When the COT Cases exposed the Ericsson AXE call loss rate from 15% to 50%, as File 10-B Evidence File No/10-A to 10-f so clearly shows, AUSTEL (the then government communications regulator), then instigated an investigation into these AXE exchange faults and uncovered some 120,000 COT-type complaints were being experienced around Australia. Exhibit (Introduction File No/8-A to 8-C), shows AUSTEL's Chairman Robin Davey received a letter from Telstra's Group General Manager (who was also Telstra's main arbitration defence liaison officer), suggesting he alter that finding. As can be seen from the below segment, those findings were altered to the detriment of those COT Cases in arbitration.

For example, at point 4 on page 3, Telstra writes:

“The Report, when commenting on the number of customers with Cot-type problems, refers to a research study undertaken by Telecom at Austel’s request.  The Report extrapolates from those results and infers that the number of customers so affected could be as high as 120,000.

However, at point 2 on page 1 of Telstra’s letter 9 April 1994, Telstra writes:

“In relation to point 4, you have agreed to withdraw the reference in the Report to the potential existence of 120,000 COT-type customers and replace it with a reference to the potential existence of “some hundreds” of COT-type customers”.

The fact that on this occasion, on 9 April 1994, Telstra (the defendants) were able to pressure AUSTEL, the Government Regulator (now called ACMA), to change their original findings in the formal April 1994 COT Case report is alarming to say the least. Worse, when AUSTEL released it into the public domain, the report states that AUSTEL only uncovered 50 or more COT-type complaints.

False Reporting  

For a government regulator to reduce their findings from 120.000 COT-type complaints to read just 50 or more COT-type customer complaints is one hell of a lie told to its citizens. Were the government's downplaying of the Ericsson AXE fault complaints part of the overall collusion, which involved the purchasing of Lane Telecommunications Pty Ltd, who often worked on government contracts? 

Because the faulty Ericsson AXE telephone equipment played such an important part in the COT Cases 1994 to 1999 arbitration procedure, I have introduced it here along with the selling off of Lane Telecommunications Pty Ltd (the arbitration technical unit) to Ericsson the very corporation it had been commissioned to investigate. during the COT arbitrations.

How can an Australian company like Lane be sold off during an Australian government-endorsed arbitration to a Swedish International telecommunications company it is investigating? If this is not collusion and corruption of the worst possible kind, then what is? 

Australia must be the only country in the Western world that allows a witness (Lane Telecommunications Ptd Ltd) was a witness to what the COT claimants and arbitrator had uncovered against Ericsson to be purchased by the very same company who were officially under investigation. This purchase bought the silence of Lane once the money was in the bank. The career politician again had closed their eyes to this collusion, regardless of how unethical all this had become with one aim in mind to ensure the COT Cases were "stopped at all costs" from proving their arbitration claims (See pages 36 and 38 Senate -Senate - Parliament of Australia). 

I believe the Australian government should answer the following questions: How long was Lane Telecommunications in contact with Ericsson, the major supplier of telecommunication equipment to Telstra, before Ericsson purchased Lanes? Is there a link between Lane ignoring my Ericsson AXE claim documents and the purchase of Lane by Ericsson during the COT arbitration process? Is there a sinister link between the government communications media regulator ACMA denying me access to the Ericsson AXE documentation, which I lawfully tried to gain access to during my two government Administrative Appeal Tribunal hearings in 2008 and 2011 (Chapter 9 - The ninth remedy pursued  and Chapter 12 - The twelfth remedy pursued).

The latest 2019/2020 5G Ericsson partnership with Telstra is relevant to all Australian Telstra subscribers; however, it is also relevant that these same subscribers visit my website absentjustice.com, where they can see for themselves that my claims against Telstra and Ericsson are valid.

Purchasing all of Lane Telecommunications' COT-related arbitration files (during the COT arbitrations) was a most significant coup for both Telstra and Ericsson because all of the arbitration technical information Lane had acquired as a witness during the COT arbitrations, which were stored in Lane's computer system as well as in hard copy records belonged to Ericsson once they owned Lane.

What the Australian government appears not to have considered when they allowed Lane to be sold off during our government-endorsed arbitrations is that Lane had signed a Confidentiality Arbitration Agreement in which each of the COT claimants also signed agreeing under no circumstances, they would disclose to a third party any information they obtained during the COT arbitrations. Here, Lane is the main arbitration witness allowed to sell that confidential acquired information to Ericsson, whom Lane had been assigned to investigate.

it is on record, that when Lane together with Telstra and me visited the Portland Ericsson AXE telephone exchange and the Cape Bridgewater unmanned switching exchange on 6 April 1995 both Lane and Telstra would not allow me to view the Portland Ericsson AXE log book. It is most important I attach here the following link although dated 1996 all Ericsson exchanges had their own logbooks (see page 20 > http://www.wedophones.com/Manuals/EricssonNotInService/AXE%20Operation%20And%20Maint%. It is also on record that the arbitrator would not access this logbook under the arbitration discovery process. Even the Commonwealth Ombudsman (during my arbitration) tried to acquire this same logbook using my FOI applications but was unsuccessful. 

How can AUSTEL (now the ACMA) continue to state that they are independent of Telstra and did not compromise my position? How can one side of arbitration be allowed to secretly submit information to a government regulator and not the officially appointed arbitrator where the government regulator makes the finding and not the arbitrator? Why was I disallowed my legal right of reply to Telstra's 16 October 1995 submission? A submission which does not match the findings of Telstra's own CEO on pages 132 and 133 in his publication Managing in Australia (See File 122-i - CAV Exhibit 92 to 127) is discussed below.

The following link Absent Justice Part 1, Part 2 and Part 3 confirms Frank Blount, Telstra’s CEO, after leaving Telstra in he co-published a manuscript in 2000. entitled Managing in Australia. On pages 132 and 133, the author exposes the problems Telstra were hiding from their 1800 customers:

• “Blount was shocked, but his anxiety level continued to rise when he discovered this wasn’t an isolated problem. 
• The picture that emerged made it crystal clear that performance was sub-standard.” (See File 122-i - CAV Exhibit 92 to 127)

Frank Blount's Managing Australia https://www.qbd.com.au › managing-in-australia › fran can still be purchased online. 

It is important to introduce here the bribery and corruption issues the US Department of Justice raised against Ericsson on 19 December 2019 as recorded in the Australian media noting

One of Telstra's key partners in the building out of their 5G network in Australia is set to fork out over $1.4 billion after the US Department of Justice accused them of bribery and corruption on a massive scale and over a long period of time.

Sweden's telecoms giant Ericsson has agreed to pay more than $1.4 billion following an extensive investigation which saw the Telstra-linked Company 'admitting to a years-long campaign of corruption in five countries to solidify its grip on telecommunications business.((https://www.channelnews.com.au/key-telstra-5g-partner-admits-to-bribery-corruption/)

The US Department of Justice has accused Ericsson of bribery and corruption. Ericsson is the same company whose telecommunication equipment was under investigation by the COT arbitrator. And, as for bribery in the case against Telstra, Senate Hansard, dated 27 February 1998 shows Telstra paid kickbacks and bribes to a number of Australian politicians and government bureaucrats.

It is important we use the Ericsson link above as part of my ongoing attempt to have the Australian government impartially investigate my claims against Telstra and whether Ericsson should have been allowed to purchase Lane Telecommunications Pty Ltd during the period Lane was the officially appointed arbitration technical consultant assigned to the COT arbitrator who himself had been assigned to value the COT cases claims against Telstra.

Australia must be the only country in the Western world that allows a witness (Lane Telecommunications was a witness to what the COT claimants and arbitrator had uncovered against Ericsson and their faulty installed telephone equipment during the COT arbitrations) to be purchased by the very same company under investigation by the arbitrator and Australian government refer  Senate Hansard dated 27 February 1998).

I believe the Australian government should answer the following questions: How long was Lane Telecommunications in contact with Ericsson, the major supplier of telecommunication equipment to Telstra, before Ericsson purchased Lanes? Is there a link between Lanes ignoring my Ericsson AXE claim documents and the purchase of Lanes by Ericsson during the COT arbitration process? Is there a sinister link between the government communications media regulator ACMA denying me access to the Ericsson AXE documentation, which I lawfully tried to gain access to during my two government Administrative Appeal Tribunal hearings in 2008 and 2011 (refer to Chapter 9 - The ninth remedy pursued  and Chapter 12 - The twelfth remedy pursued).?

The latest 2019/2020 5G Ericsson partnership with Telstra is relevant to all Australian Telstra subscribers; however, it is also relevant that the same subscribers visit my website, absentjustice.com, where you can see that my claims against Telstra and Ericsson are valid.

an are discussed on our [page | my-story/absent-justice-preface/| Absentjustice Preface] page [document | 313]. Members of the current government were provided with copies of these witness statements without redactions. Sadly, the information in these two witness statements has not been acted upon to date.

8 & 10 August 2006 Witness Statements 

I ask you to consider two witness statements, dated 8 and 10 August 2006, referring to the 1999 and 2001 Major Fraud Group investigations: one statement was prepared by a government public servant/ex-police officer and the other by a very senior Telstra protective officer (later promoted to the principal investigator). Both statements are discussed on our Absentjustice Preface page AFP Evidence File No 13. Members of the current government were provided with copies of these witness statements without redactions. Sadly, the information in these two witness statements, to date, has not been acted upon.

The Telstra ex-senior protective service officer’s witness statement discusses a then-still senior detective sergeant of the then Major Fraud Group, Victoria Police. The ex-police officer’s witness statement also describes the anguish experienced by the senior detective sergeant while he was investigating alleged fraud within Telstra during the COT arbitrations and the fears he had after being subjected to intimidation. Consider this: if this feeling of being got at by the Telstra Corporation can reduce a fully trained senior police officer to the condition Telstra’s ex-senior protective service officer alleged, just think how this continued. Unaddressed harassment by Telstra officials left the COT cases during and after their government-endorsed arbitrations. None of us was ever offered any counselling or apologised to by the government, who still owned Telstra when this harassment commenced in 1992 (see Australian Federal Police Investigation File No/1) and continued well past the Major Fraud Group investigations of 1998 and 2001.

Exhibits CAV-AS 814, 815 and 816, which are attached to AS-CAV 790 to 818, show perfectly clear that the Department of Justice in the State of Victoria has declined to even begin an investigation into the evidence I have, which shows how Arbitration-and Supreme Court-related documents that were sent by fax during the COT Arbitrations (but which were definitely not sent to Telstra) were, however, intercepted via Telstra’s network during the time that Telstra was the defendant in all of the arbitrations that were connected to those intercepted faxes.

After the Federal Government put the Major Fraud Group under political pressure to abandon the four COT claims of fraud against Telstra, I met two senior Victorian police officers who apologised for what they realised was truly an ordeal for me: not only my failed arbitration but also the failed Victoria Police investigation. I was provided with a small A4 storage box, taped shut. They advised me my four larger boxes of evidence would be couriered to my designated location. I asked if this small package could be included, as I preferred not to carry it away. The look in the eyes of the police officer in charge was stern and direct, “NO, you take this box with you now,” I didn’t argue!

It turned out that this box contained some startling documents I had not seen before, documents that would shock most Senators today but which clearly indicated that their predecessors had allowed only five of the twenty-one legitimate COT claimants to have access to discovery documents and had also organised compensation for those five, compensation that ran into the millions upon millions of dollars in hush money. All of that was accomplished so that the Telstra Corporation could be privatized.  Now, if I am wrong, and that is not the case, then why were the remaining sixteen COT claimants all denied access to any of the privileges that the five ‘litmus test cases’ had been granted, and why did a letter from the Senate Estimates Committee Chair advises the police that two In-camera Hansard records, dated 6 and 9 July 1998, must not be provided to anyone outside of the Major Fraud Group and, if someone did reveal them then that person risked being sentenced to jail?  Interestingly, the 9 July 1998 Hansard clearly states that to only award compensation to the ‘litmus test cases’ that were being investigated by the Senate Committee Working Party, and not to the other sixteen claimants, would be an injustice?

It might be hard to believe but, back in August 2001, and again in December 2004, the Australian Government threatened, in writing, to have me charged with contempt of the Senate if I was to ever disclose these in-camera Hansard records, even though those documents could well have won our cases if the COT claimants had appealed against the arbitration process? Where is the justice in that? Being charged with contempt of the Senate can result in a two-year jail term and, of course, the Government has always known that but, if I had been in a position to safely go ahead and make these documents public, they would have been a huge help, probably resulting in me winning my appeal against Telstra for gross misconduct.  So how can the Senate continue to hide this conduct and, in the process, destroy so many lives? How is this democratic?

To understand how and why this occurred, we need to go back to 1997, when the John Howard Coalition Government was in the throes of executing the first of its three steps towards the final privatisation of Telstra. Then, towards the middle of October 1998, the COT ‘litmus test’ cases were, eventually and slowly, beginning to receive some of the previously withheld documents they had legally requested. It then became apparent that the Howard Government was selling the Telstra Corporation, i.e. a government asset, which was in a much worse state than the Government Communications Regulator had claimed it was in (see

The seventh remedy pursued went from 2001 to 2002

In mid-2001, I met with Peter Condliffe, Chief Executive Officer of The Institute of Arbitrators and Mediators Australia at 450 Lt Bourke St Melbourne 3000. On 12 January 2002, in response to a request from Mr Condliffe I provided his office with further documents to help the IAMA with their investigation into claims that Dr Gordon Hughes did not conduct my arbitration in a transparent manner and/or according to the ambit of the arbitration procedures.

Two of the many documents provided to Mr Condliffe dated 26 September 1997, after most of the arbitrations were concluded, was the statements made by the second appointed administrator to the COT arbitrations, John Pinnock, to a Senate Committee (page 99 COMMONWEALTH OF AUSTRALIA – Parliament of Australia) that:

“In the process leading up to the development of the arbitration procedures—and I was not a party to that, but I know enough about it to be able to say this—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.”

My question to Mr Condliffe was: 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? Where are these hidden arbitration related Telstra documents that we COT Cases were told we would receive if we entered our government endorsed arbitrations? Why hasn’t the government acted upon this official advice given by John Pinnock?

The second document provied to Mr Condliffe, was the three page Freehill Hollingdale & Page minutes of the covert pre-arbitration meeeting which the COT Cases were not invited but the defedants Telstra was Open letter File No 54-A. This document alarmed Mr Condliffe after I had alerted him to the fact that Dr Hughes had to have samctioned the removal of the $250,000.00 liability caps which are discussed in Part 2 Chapter 5 Fraudulent conduct and the Major Fraud Group investigation Part 3 below. It meant that Dr Hughes was thinking only of his arbitration resource unit and not the four COT Cases as Maureen Gillan had not yet signed her arbitration agreement on 8 April 1994, when these $250,000.00 liability caps had not yet been removed.

Mr Condliffe would not comment on this removal of the clauses from the agreement until he had read further into my claims. However, Mr Condliffe did comment that we had been entitled to a copy of the minutes from the clandestine gathering and notified by the administrator of the reason sections 4 and 5 of these official minutes had been removed from Open letter File No 54-A).

During this briefing with Mr Condliffe, I also showed him evidence, as shown in Part 3 Chapter 5, of Fraudulent conduct that a secret deal with Telstra by the TIO (the administrator to the arbitrations) to allow the TIO arbitration consultants first access to all significant arbitration-related documents before they were provided to Dr Hughes (the arbitrator). This covert deal, which undermined the arbitrator and his complete knowledge of what was happening during the first four arbitrations I had been party, freaked out Mr Condliffe. This secret deal left the arbitrator needing a thorough understanding of the documents flowing through the first four arbitrations. Mr Neil Jepson, Barrister for the Major Fraud Group Victoria Police, was also interested in how such a deal could have been secretly implemented without the arbitrator's knowledge.  

I believed at the time, and I still do today, that it was this Secret Deal proof and the fact that Dr Hughes had not conducted the arbitrations see page 99 COMMONWEALTH OF AUSTRALIA – Parliament of Australia according to the agreed ambit of the arbitration procedures that prompted the IAMA to agree to investigate my claims.

It is once again important to point out that the 26 September 1997 - John Pinnock Senate Hansard document was attached to my draft manuscript, which attracted Mr Condliffe's attention which I had received from Senate Kim Carr dated 27 January 1999, which notes

“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.”

It also raise the following Senate Hansard records to Mr Condliffe, Eggleston, Sen Alan – Bishop, Sen Mark – Boswell, Sen Ronald – Carr, Sen Kim – Schacht, Sen Chris, Alston and Sen Richard) which all formally record how those six senators believed that Telstra had ‘acted as a law unto themselves’ throughout all of the COT arbitrations, is incredible. The LNP government knew that not only should the litmus-test cases receive their requested documents but so should the other 16 Australian citizens who had been in the same government-endorsed arbitration process.

Although Senator Alan Eggleston advice to the Australian Finacial Revieiw has been discussed on the Home age it was also relevant to raise it here in Chapter 7 - The seventh remedy pursued. By incorperating the above six Senators speaches with Senator Alan Eggleston statement to the media directly below we can show all seven statements were made by the seven sentators were made in the public interest ;.e.; on public record.

Forced members to proceed with arbitration without the necessary information 

It is also important to once again discuss the 23 March 1999, statement in 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:

“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.”

However, I discussed with Mr Condliffe that what was not on public record in the same manner as above is that there were more than just the five referrered to litmus COT tests cases. In fact, there were a further sixteen COT Cases who suffered the same fate as those discussed by the six named senators above. 

After I had provided my manuscript and the several Senate Hansard information to Mr Condliffe, he stated words to the effect that the IAMA would investigate these matters because several claimants had suffered due to the arbitrator having no control over the arbitration process. This was a matter the IAMA would investigate.    

On 30 January 2002, I received a letter from Mr Nosworthy, Senior Vice President of the IAMA, advising me that:

“It should be clearly understood that the Institute’s role is to take seriously complaints which are articulated against its member arbitrators.  We will do so here.”

After I received this 30 January 2002 letter I provided Nosworthy with a copy of Dr Hughes letter dated 12 May 1995, to Warwick Smith (TIO) the day after Dr Hughes had deliberated on my arbitration claim which notes

“…the time frames set in the original Arbitration Agreement were, with the benefit of hindsight, optimistic;

“in particular; we did not allow sufficient time in the Arbitration Agreement for inevitable delays associated with the production of documents, obtaining further particulars and the preparation of technical reports…

Most important is the question: why did Dr Hughes bring down his award on 11 May 1995 when he was aware of the agreement he was using was not a credible document to be using?

I was entitled to receive this well-concealed 12 May 1995 letter during my designated appeal period, but I did not receive a copy until 2002 (and outside the statute of limitation period). In this letter, Dr Hughes states:

“…as far as I could observe, both Telecom and Smith co-operated in the Smith arbitration…”

 “…the time frames set in the original Arbitration Agreement were, with the benefit of hindsight, optimistic;

“in particular; we did not allow sufficient time in the Arbitration Agreement for inevitable delays associated with the production of documents, obtaining further particulars and the preparation of technical reports…

“In summary, it is my view that if the process is to remain credible, it is necessary to contemplate a time frame for completion which is longer than presently contained in the Arbitration Agreement” (Open Letter File No 55-A)

The fax imprint across the top of this letter (Open Letter File No 55-A) is the same as the fax imprint described in the Scandrett & Associates report (see Open Letter File No/12, and File No/13), confirming faxes were intercepted during the COT arbitrations. The question the Telecommunication Industry Ombudsman and the Federal Attorney-General has still not answered is:

Was this letter actually faxed to my office by the ombudsman to assist me in any pending appeal process, and if not, why was such an important letter deliberately kept from me during my designated appeal period? 

If I had received a copy of this letter declaring the agreement used in my arbitration process was not credible, then, of course, I would have appealed the arbitrator’s award. After all, how could an appeal judge argue against the arbitrator’s own findings that the agreement was not credible, even though he used it anyway?

Interception of this 12 May 1995 letter by a secondary fax machine:

Whoever had access to Telstra’s network, and therefore the TIO’s office service lines, knew – during the designated appeal time of my arbitration – that my arbitration was conducted using a set of rules (arbitration agreement) that the arbitrator declared not credible. There are three fax identification lines across the top of the second page of this 12 May 1995 letter:

The third line down from the top of the page (i.e. the bottom line) shows that the document was first faxed from the arbitrator’s office, on 12-5-95, at 2:41 pm to the Melbourne office of the TIO – 61 3 277 8797;
The middle line indicates that it was faxed on the same day, one hour later, at 15:40, from the TIO’s fax number, followed by the words “TIO LTD”.
The top line, however, begins with the words “Fax from” followed by the correct fax number for the TIO’s office (visible

Consider the order of the timestamps. The top line is the second sending of the document at 14:50, nine minutes after the fax from the arbitrator’s office; therefore, between the TIO’s office receiving the first fax, which was sent at 2.41 pm (14:41), and sending it on at 15:40, to his home, the fax was also re-sent at 14:50. In other words, the document sent nine minutes after the letter reached the TIO office was intercepted.

The fax imprint across the top of this letter is the same as the fax imprint described in the Scandrett & Associates report (see Open Letter File No/12 and File No/13), which states:

“We canvassed examples, which we are advised are a representative group, of this phenomena [sic].

“They show that

• the header strip of various faxes is being altered
• the header strip of various faxes was changed or semi overwritten.
• In all cases the replacement header type is the same.
• The sending parties all have a common interest and that is COT.
• Some faxes have originated from organisations such as the Commonwealth Ombudsman office.
• The modified type face of the header could not have been generated by the large number of machines canvassed, making it foreign to any of the sending services.”

Four months after having received a copy of this 12 May 1995 letter and the following supporting exhibits (seeFront Page Part One File No/1, File No/2-A to 2-E, File No/3, File No/4 and Front Page Part One File No/5, which show numerous documents faxed from my office to the arbitrator’s office did not reach their intended destination Mr Nosworthy wrote to me on 10 April 2002 and stated:

“I note that your most recent actions have involved making a complaint to the police, alleging fraud – at least on the part of Telstra – and I do not propose to conduct further enquiry in relation to the matter if you are pursuing police action.

I have returned your papers to Mr Condliffe, Chief Executive Officer of the Institute of Arbitrators and Mediators Australia. Will you kindly contact him to make arrangements to collect them.”

Since the police were investigating Telstra – and not Dr Hughes — I found Mr Nosworthy’s decision to stop his investigation into my complaints against Dr Hughes rather puzzling. As shown above, I have already explained the facts surrounding the involvement of the Victoria Police Major Fraud Group and that it was at their request I provide evidence in support of the other COT Cases claims against Telstra.

Part 2 

I say: “I found Mr Nosworthy’s decision to stop his investigation into my complaints against Dr Hughes rather puzzling”, because, when I personally met with Mr Condliffe at the IAMA office (450 Lt Bourke St Melbourne) in late 2001, I had just had a meeting with Mr Neil Jepson, barrister of the Major Fraud Group. I discussed my pending appointment with Mr Condliffe with Mr Jepson and asked if the police might see me discussing my arbitration issues with the IAMA as compromising the Major Fraud Group’s investigation into alleged fraud by Telstra against COT cases Graham Schorer, Ann Garms, Ross Plowman and Ralph Bova. Mr Jepson said I was free to discuss anything with the IAMA that I believed was of importance to my own arbitration case. Mr Jepson made a point of informing me that I should advise the IAMA that, although it had not yet been proven, it was my claims to the government that someone had tampered with Telstra-owned telephone equipment after it left my premises and that Telstra used known-false Bell Canada International Inc tests to support their arbitration defence of my claims that were of interest to the Major Fraud Group and the reason I had been called in as a witness to substantiate these claims, which I did, but this fact Mr Jepson said was not to be made known to the IAMA at this time, although senators Richard Alston, Ron Boswell, Chris Schacht and Len Harris had all been provided with conclusive evidence showing my claims were one hundred per cent correct. What shocked the Major Fraud Group (see Telstra’s Falsified BCI Report) was that so many Senators were made aware of this fraud and yet had done nothing to assist me in resolving the matter. Senators Schacht and Boswell requested Telstra prove my claims wrong – and Telstra could not do so. This upset numerous members of the Major Fraud Group. Of course, I did not reveal this at the time to the IAMA.

My involvement in the Major Fraud Group investigation can be further viewed by clicking onto An injustice to the remaining 16 Australian citizens

Chapter 8

Recapping So Far

 

Transcripts from my Administrative Appeals Tribunal AAT hearings (respondents the Australian Communications Media Authority - ACMA) on 3 October 2008 (No V2008/1836) show the judge (senior members hearing my AAT - Freedom of Information (FOI) case did not find me vexatious or my claims frivolous. However, other government agencies have branded me vexatious and my claims frivolous because they have a vested interest in concealing the truth surrounding my claims that the international arbitration process in Australia was legally abused to protect the Telstra Corporation at all costs → Senate Evidence

When it became evident that the new owners of my business along with me at my residence (next door) that we were both still losing faxes in December 2007, I sort documents from both Telstra and ACMA under FOI. This was to be my last attempt to resolve these long outstanding lost document issues which DCITA promised Senator Barnaby Joyce in 2005 (see above) they would investigate as part of my DCITA assessment process. This failure by the DCITA (which after all was the government) to investigate why eleven years after my arbitration and my now sold business was still experiencing the same ongoing telephone and faxing problems that first brought me to arbitration in 1994 I contacted a Brian Hodge, a suggested telecommunications expert so as I could provide his findings to the government. A cost of $15,000.00 plus.

After viewing the Cape Bridgewater Holiday Camp BCI/Ericsson NEAT testing results and the Cape Bridgewater Holiday Camp Arbitration related Service Verification Test results and the CCAS data dated 29 September 1994 (see Arbitrator File No/110), Brian Hodge (B Tech, MBA, B.C. Telecommunications), on 27 July 2007, prepared a report. On page 22, he states:

“It is my opinion that the reports submitted to Austel on this testing program was [sic] flawed, erroneous, fictitious, fraudulent & fabricated, as it is clear that no such testing has taken place as Telstra’s own call charge system DOES NOT record any such activities. Therefore the results are flawed or did not occur.” (See Main Evidence File No 3)

Mr Hodges concluded Telstra fabricated their reports about the many ongoing telephone problems still affecting the holiday camp customer access network CAN as late as November 2006. Many of these problems were caused by moisture affecting both the copper-wire and optical fibre joints in the CAN. These problems were so bad that, in late 2006, Telstra actually had to disconnect the Cape Bridgewater Holiday Camp from the fibre network and return it back to the already-corroded copper-wire network (see Open Letter File No/23).

In my 157-page Statement of Facts and Contentions dated 26 July 2008, which I provided to Mr Friedman and ACMA, I clearly defined how, for reasons unknown, AUSTEL, and later ACMA, did not conduct themselves in a properly transparent manner. This behaviour included allowing Telstra to support their arbitration defence by using deficient Ericsson NEAT Cape Bridgewater test results that AUSTEL (now ACMA ) knew were grossly deficient  – long before they used them. It is also clear from the same Statement of Facts and Contentions that I highlighted Telstra’s use of the sanitised April 1994 AUSTEL Report instead of the later, and more adverse, AUSTEL findings (against Telstra). that eventually resulted from AUSTEL’s full investigation into my matters, and that I explained how this severely disadvantaged my March/April 2006 submission to the Department of Communications, Information Technology, and the Arts. The financial cost of preparing that 2006 submission came to more than $20,000, which was entirely a waste of money, as I did not receive a copy of AUSTEL’s Adverse Findings until November 2007.

If I had received those findings before the DCITA government assessment process, I would have been able to prove to the DCITA assessors my claims were valid..

Transcripts from my Administrative Appeals Tribunal (AAT) hearing (where the Australian Government ACMA was the respondent) on 3 October 2008 (No V2008/1836) show I maintained my Freedom of Information applications to ACMA should be provided free of charge in the public interest, because of the extent of the problems within the Telstra installed Ericsson AXE telephone equipment right across Australia. Telstra and ACMA were still withholding from me this Ericsson data in 2008, [Judge] Mr G D Friedman considered this AAT hearings and, on 3 October 2008, stated to me in an open court in full view of two government ACMA lawyers.

“Let me just say, I don’t consider you, personally, to be frivolous or vexatious – far from it.

“I suppose all that remains for me to say, Mr Smith, is that you obviously are very tenacious and persistent in pursuing the – not this matter before me, but the whole – the whole question of what you see as a grave injustice, and I can only applaud people who have persistence and the determination to see things through when they believe it’s important enough.”

And, in 2008, Darren Lewis (the new owners of my business) wrote to the Federal Magistrates Court stating:

“I was advised by Ms McCormick that the Federal Magistrates Court had only received on 5th December 2008 an affidavit prepared by Alan Smith dated 2 December 2008. PLEASE NOTE: I originally enclosed with Alan Smith’s affidavit in the (envelope) overnight mail the following documents:

1. Two 29 page transparent s/comb bound report titled SVT & BCI – Federal Magistrates Court File No (P) MLG1229/2008 prepared by Alan Smith in support of my claims that I had inherited the ongoing telephone problems and faults when I purchased the Cape Bridgewater Holiday Camp
2. Two s/comb transparent bound documents titled Exhibits 1 to 34
3. Two s/comb transparent bound documents titled Exhibits 35 to 71 (the attached 71 Exhibits was enclosed in support of Alan Smith’s 29 page report);
4. Three CD Disks which incorporated all of the submitted material.

“On learning from Ms McCormick that the information discussed above in points 1 to 4 had not been received by the Federal Magistrates Court I again had a stress attack seizure, a problem I have been suffering with for quite some time due to the predicament I now find myself in and the disbelief that once again my mail has been intercepted. I have attached herewith dated 3rd December 2008, a copy of the Australia Post overnight mail receipt docket numbers SV0750627 and SV0750626 confirming the total cost to send the above aforementioned information was $21.80. I am sure Australia Post would confirm that a large amount of documents would have been enclosed in these two envelopes when they left Portland.” (See My Story Evidence File 12-A to 12-B)

Australia Post will not charge any postage fee for an overnight parcel unless they stamp and retain it. Since neither of these parcels arrived at their proper destination with all of the information originally enclosed, those documents must, therefore, have been ‘lost’ between the Portland Post Office and the Magistrates Court.

As I have reported throughout this webpage numerous Telstra COT related arbitration documents (like those lost on route to the Federal Magistrates Court in December 2008) were also lost during 1994/95 on route to the arbitrator hearing my case.

As Darren’s letter shows, I helped him prepare these reports two in his bankruptcy appeal against the Australian Taxation Office (for back taxes) using my own evidence that the Telstra Corporation, knowingly submitted two false and fundamentally flawed Cape Bridgewater Ericsson testings results to the arbitrator during my arbitration, to deliberately mislead the arbitrator into believing that there were no more ongoing phone problems affecting my business, when the Ericsson faulty equipment used in that testing had not proved those findings at all.

But more importantly for Darren and Jenny Lewis (my evidence needed that day to assist Darren and Jenny Lewis) of not being declared bankrupt went missing as did the same evidence during my 1994/95 arbitration Sixteen Years Previous (see Chapter 1 - The collusion continues which DMR (Canada) and Lane (Australia) state in their 30 April 1995 joint report “A comprehensive log of Mr Smith’s complaints does not appear to exist.” when it did exist. 

MOST IMPOTANT - see Chapter 1 - The collusion continues

I need to take the reader forward fourteen years to the following letter dated 30 July 2009. According to this letter dated 30 July 2009, from Graham Schorer (COT spokesperson) and ex-client of the arbitrator Dr Hughes (see Chapter 3 - Conflict of Interest) wrote to Paul Crowley CEO Institute of Arbitrators Mediators Australia (IAMA), attaching a statutory declaration (see ”Burying The Evidence File 13-H and a copy of a previous letter dated 4 August 1998 from Mr Schorer to me, detailing a phone conversation Mr Schorer had with the arbitrator early in 1994 regarding lost Telstra COT related faxes. During that conversation, the arbitrator explained, in some detail that:

“Hunt & Hunt [The company’s] Australian Head Office of was located in Sydney and [the company] is a member of an international association of law firms. Due to overseas time zone differences, at close of business, [the company’s] Melbourne’s incoming facsimiles are night switched to automatically divert to Hunt & Hunt Sydney office where someone is always on duty. There are occasions on the opening of the Melbourne office, the person responsible for cancelling the night switching of incoming faxes from the Melbourne office to the Sydney Office, has failed to cancel the automatic diversion of incoming facsimiles.”Burying The Evidence File 13-H.

The fact that Dr Hughes did not official diclose these faxing problems between his Sydney and Melbourne office prior to is hinging on criminal negligence. Dr Hughes also did not acknowledge what happened to the comprehensive log of my phone complaints.

I reiterate, a comprehensive log of my phone complaints did exist.

 It is important to note before AUSTEL commenced their investigation into my phone/fax complaints, I provided them with a comprehensive log of my phone complaints which I later supplied an updated copy to Dr Hughes (the arbitrator) to my claim on 15 June 1994 as my interim to my arbitration submission (see File - 7 to 9-A - AS-CAV Exhibit 1 to 47 and File 108 - AS-CAV Exhibit 92 to 127). The nominated documents in those two files AS-CAV Exhibit 1 to 47 and AS-CAV Exhibit 92 to 127 show a comprehensive log of my phone complaints did exist. 

Who in government had enough power to stop two investigations into Telstra's unlawful conduct stemming more than two decades?

Chapter 9

Where TO From Here

 

 

This remedy, pursued via Consumer Affairs Victoria (CAV), commenced in October 2007, before my first 2008 AAT hearing, with the second hearing lasting until May 2011. Then, it became clear the CAV would not make a finding.

 

 

Following the Hon. Senator Helen Coonan’s advice, Minister for Communications wrote to me in May 2007, stating I should take Telstra to court regarding these privacy issues.. I contacted Consumer As Affairs Victoria (CAV) through an advisor, who also assisted me in preparing a claim to be provided to a barrister for the CAV. From October 2007 through to late-2008, this un-named advisor, a once very high-ranking Victorian police officer, had a number of discussions with this barrister, who then proceeded to assess our various claims.

The barrister appeared overjoyed that I was able to provide evidence of faxes leaving the Sir Owen Dixon Chambers (the legal hub of Melbourne) being intercepted before they finally reached their intended destination. The barrister was also disturbed to hear that neither the TIO nor Telstra, ever returned to me the evidence I provided confirming faxes left the Crown casino complex arrived at my Cape Bridgewater business, even though they were not intended for me. Five years after the CAV came into possession of this evidence, it was returned to me in a state of disarray that seemed to me to indicate it had been investigated. However, Like the Institute of Arbitrators Mediator Australia (IAMA) see following this chapter never provided a finding either.

Following the Hon Senator Helen Coonan’s advice, I contacted all of the government agencies nominated by the senator, including the TIO’s office, and all declined to investigate my claims.

It became evident there was no one in Australia prepared to tackle Telstra regarding its unethical conduct, prior to and during the COT arbitrations, or its use of known faulty Ericsson exchange equipment.

Since back in 2003, a well-respected, ex-senior-Victorian Police officer, a recipient of the Order of Australia, has been attempting to help me to find a resolution to my 1994 arbitration issues and, during 2007, still on behalf of me but at the request of the Government’s most senior barrister, this same ex-police officer convened a meeting, which included me, in a restaurant just walking distance from the offices of the Victorian Government Consumer Affairs Victoria (CAV).  The barrister and this police officer were already known to each other professionally but the barrister had been prompted to request this particular meeting as a result of some preliminary COT Case evidence that he had received.

At that meeting, the barrister stated words to the effect that the CAV had been waiting and hoping – for years – to be able to collect exactly this type of evidence because it so clearly proved (see Australian Federal Police Investigations page and Open Letter File No/12, and File No/13, beyond all doubt, what they had suspected for years: that certain powers to be had access to privileged documents which had been faxed through Telstra’s network between the various parties during litigation processes.  At the same time, the barrister also expressed serious concerns in relation to what he had already learned in relation to the way that, during my Arbitration process, Telstra had openly used falsified reports, had clearly authorised false witness statements and had been able to get away with making, and then actually carrying out, serious threats against claimants during a legal arbitration process that was being conducted in the State of Victoria.

After seeing just some of the COT evidence, and then being told that there was more, similar evidence that was still being collated, the barrister immediately noted that whatever could be provided to the CAV would definitely be investigated.

A short time later, in October 2007, the same ex-police officer personally hand-delivered, to Consumer Affairs Victoria, thirty-two separate, spiral-bound volumes of evidence and, within a couple of weeks, I was asked (again via the ex-police officer) to copy all thirty-two volumes of this evidence onto a CD (a job that actually took me a full two days to complete).  I was told that this would help to speed up the then-ongoing CAV investigation.

More than two years later that CD was returned to me and, so far (i.e. in 2021), the Department of Justice in the State of Victoria has continued to refuse to release any findings based on that material.  This has now led to all that material gradually being added to our website, absentjustice.com, so that the general public can decide for themselves whether I was right to bring this evidence to the Victorian Government’s attention.

The barrister was also concerned that Telstra had used falsified reporting (see Telstra’s Falsified BCI Report, Telstra’s Falsified SVT Report and Tampering With Evidence) and made false witness statements (see page|my-story/summary-of-events/|Summary of events]Tampering With Evidence) as well as threatening claimants during arbitrations that were conducted in the state of Victoria (see Senate Evidence File No 31).

You can view some of the types of exhibits provided to the CAV during their two-year-plus investigation by clicking on CAV Part 1, 2 and 3, now collated on the absentjustice.com website, and form your own opinion as to whether the State of Victoria Department of Justice should have made a finding in 2007 regarding these very serious issues. While some of these numbered CAV exhibits are dated well past the period of that investigation and bear the CAV inscription, they were collated during 2011, when I introduced further evidence to the Department of Justice.

It is clear from exhibits AS-CAV 814, 815 and 816 (see AS-CAV 790 to 818) that the Victorian Department of Justice in 2011 would not investigate evidence of facsimiles that were intercepted in the State of Victoria during litigation/arbitration.

After being told more evidence was being collated, the barrister asked for all evidence to be provided for CAV to investigate. This ex-senior Victorian police officer personally submitted Alan’s 32 separate spiral-bound volumes of evidence to CAV. Within a couple of weeks, Alan was advised via this ex-senior Victorian police officer that CAV was investigating and requested all 32 separate volumes to be supplied on a CD (compact disc). More than two years after CAV said it was investigating this material, the evidence was returned and so far, in 2020, the State of Victoria Department of Justice has declined to make a finding on that material.

Chapter 10

Almost There

This remedy, pursued via Consumer Affairs Victoria (CAV), commenced in October 2007, before my first 2008 AAT hearing, with the second hearing lasting until May 2011. Then, it became clear the CAV would not make a finding.

 

 

Following the Hon. Senator Helen Coonan’s advice, Minister for Communications wrote to me in May 2007, stating I should take Telstra to court regarding these privacy issues.. I contacted Consumer As Affairs Victoria (CAV) through an advisor, who also assisted me in preparing a claim to be provided to a barrister for the CAV. From October 2007 through to late-2008, this un-named advisor, a once very high-ranking Victorian police officer, had a number of discussions with this barrister, who then proceeded to assess our various claims.

The barrister appeared overjoyed that I was able to provide evidence of faxes leaving the Sir Owen Dixon Chambers (the legal hub of Melbourne) being intercepted before they finally reached their intended destination. The barrister was also disturbed to hear that neither the TIO nor Telstra, ever returned to me the evidence I provided confirming faxes left the Crown casino complex arrived at my Cape Bridgewater business, even though they were not intended for me. Five years after the CAV came into possession of this evidence, it was returned to me in a state of disarray that seemed to me to indicate it had been investigated. However, Like the Institute of Arbitrators Mediator Australia (IAMA) see following this chapter never provided a finding either.

Following the Hon Senator Helen Coonan’s advice, I contacted all of the government agencies nominated by the senator, including the TIO’s office, and all declined to investigate my claims.

It became evident there was no one in Australia prepared to tackle Telstra regarding its unethical conduct, prior to and during the COT arbitrations, or its use of known faulty Ericsson exchange equipment.

Since back in 2003, a well-respected, ex-senior-Victorian Police officer, a recipient of the Order of Australia, has been attempting to help me to find a resolution to my 1994 arbitration issues and, during 2007, still on behalf of me but at the request of the Government’s most senior barrister, this same ex-police officer convened a meeting, which included me, in a restaurant just walking distance from the offices of the Victorian Government Consumer Affairs Victoria (CAV).  The barrister and this police officer were already known to each other professionally but the barrister had been prompted to request this particular meeting as a result of some preliminary COT Case evidence that he had received.

At that meeting, the barrister stated words to the effect that the CAV had been waiting and hoping – for years – to be able to collect exactly this type of evidence because it so clearly proved (see Australian Federal Police Investigations page and Open Letter File No/12, and File No/13, beyond all doubt, what they had suspected for years: that certain powers to be had access to privileged documents which had been faxed through Telstra’s network between the various parties during litigation processes.  At the same time, the barrister also expressed serious concerns in relation to what he had already learned in relation to the way that, during my Arbitration process, Telstra had openly used falsified reports, had clearly authorised false witness statements and had been able to get away with making, and then actually carrying out, serious threats against claimants during a legal arbitration process that was being conducted in the State of Victoria.

After seeing just some of the COT evidence, and then being told that there was more, similar evidence that was still being collated, the barrister immediately noted that whatever could be provided to the CAV would definitely be investigated.

A short time later, in October 2007, the same ex-police officer personally hand-delivered, to Consumer Affairs Victoria, thirty-two separate, spiral-bound volumes of evidence and, within a couple of weeks, I was asked (again via the ex-police officer) to copy all thirty-two volumes of this evidence onto a CD (a job that actually took me a full two days to complete).  I was told that this would help to speed up the then-ongoing CAV investigation.

More than two years later that CD was returned to me and, so far (i.e. in 2021), the Department of Justice in the State of Victoria has continued to refuse to release any findings based on that material.  This has now led to all that material gradually being added to our website, absentjustice.com, so that the general public can decide for themselves whether I was right to bring this evidence to the Victorian Government’s attention.

The barrister was also concerned that Telstra had used falsified reporting (see Telstra’s Falsified BCI Report, Telstra’s Falsified SVT Report and Tampering With Evidence) and made false witness statements (see page|my-story/summary-of-events/|Summary of events]Tampering With Evidence) as well as threatening claimants during arbitrations that were conducted in the state of Victoria (see Senate Evidence File No 31).

You can view some of the types of exhibits provided to the CAV during their two-year-plus investigation by clicking on CAV Part 1, 2 and 3, now collated on the absentjustice.com website, and form your own opinion as to whether the State of Victoria Department of Justice should have made a finding in 2007 regarding these very serious issues. While some of these numbered CAV exhibits are dated well past the period of that investigation and bear the CAV inscription, they were collated during 2011, when I introduced further evidence to the Department of Justice.

It is clear from exhibits AS-CAV 814, 815 and 816 (see AS-CAV 790 to 818) that the Victorian Department of Justice in 2011 would not investigate evidence of facsimiles that were intercepted in the State of Victoria during litigation/arbitration.

After being told more evidence was being collated, the barrister asked for all evidence to be provided for CAV to investigate. This ex-senior Victorian police officer personally submitted Alan’s 32 separate spiral-bound volumes of evidence to CAV. Within a couple of weeks, Alan was advised via this ex-senior Victorian police officer that CAV was investigating and requested all 32 separate volumes to be supplied on a CD (compact disc). More than two years after CAV said it was investigating this material, the evidence was returned and so far, in 2020, the State of Victoria Department of Justice has declined to make a finding on that material.

 

Legal abuse, or legal bullying, occurs when someone uses the law to control and intimidate. In Australia, public officials often use this corruption to undermine arbitration and mediation.

It is imperative to address the issue of ungraded lawyers posing as arbitrators and mediators, which amounts to legal abuse and bullying. This misconduct includes the creation of confidentiality agreements to conceal their lack of qualifications. Dr. Gordon Hughes, for instance, failed his grading exams while continuing to arbitrate cases as the official COT arbitrator. Such behaviour undermines the very essence of arbitration and mediation, and it is regrettably prevalent among public officials in Australia. This treacherous betrayal of trust threatens the foundational principles of the legal system.

 

 

During June and July of 2009, which had now become my eleventh remedy pursued, I wrote to The Hon Michael D Kirby AC, CMG, who was then the President of the Institute of Arbitrators Mediators Australian. I raised the issue of John Rundell (the Arbitration Project Manager), allowing Lane Telecommunications (the TIO-appointed arbitration technical consultant) to assess my arbitration claim, not the principal technical officer Paul Howell from Canada. I provided information on a CD, along with an abundance of documented evidence, to the IAMA, proving beyond all doubt that Mr Rundell had attacked my credibility and character using false statements to stop the first 1996 Institute of Arbitrator Australia from investigating my valid claims as well as assisting Telstra (the defendants) to minimize their liability. 

The Institute of Arbitrators & Mediators Australia (IAMA) appeared to be most concerned that Dr Hughes, while arbitrator hearing the COT Cases arbitrations that he and his partnership in the leading Sydney and Melbourne law firm might have been one of extreme conflict of interests because the Sydney arm of the company was acting for Telstra employees during their conflict with Telstra during the period several Telstra employees were being questioned by both the New South Wales State Police as well as the Australian Federal Police for rorting millions upon millions of dollars from the Australian government purse. The IAMA agreed to investigate my claims of conflict of interest. I believe both claims of this rorting (stealing) were also linked to lost arbitration-related faxes mistakenly sent from Dr Hughes' office to his Sydney office.  

The Institute of Arbitrators & Mediators Australia (IAMA) also agreed to investigate (on 2 July 2009) with any fresh evidence I wish to send confirming the arbitrator did not conduct my arbitration according to the agreed ambit of the Commercial Arbitration Act 1984. I also provided evidence showing the previous Arbitration Project Manager to my arbitration, who appeared to be the current treasurer of the Melbourne Chapter of the IAMA. I alerted the IAMA of this because if it was the same person, then the IAMA should be aware that this person knowingly misled and deceived a proposed investigation into several of my valid claims with the Telecommunications Industry Ombudsman. In his letter to me, the then president of the IAMA, The Hon. Michael D Kirby AC, CMG, advised:

“In accordance with established procedure, I have referred the complaint to the Ethics and Professional Affairs Committee of the Institute.

“In due course, you will be informed following this reference.” (See Burying The Evidence File 13-A)

Within two days of receiving this letter, I received a telephone call from the CEO of the IAMA, who explained that the IAMA Ethics and Professional Affairs Committee would investigate these fresh allegations and notify me of their findings. I advised the CEO that in 1996 and again in 2001 and 2002, the IAMA began investigating similar complaints concerning the same arbitrator but returned my documents without bringing down a finding. The CEO confirmed this would not be the case now. I deduced, from the CEO’s tone, that he had read the damning evidence against the arbitrator that had prompted the president of the IAMA to send the above letter of 9 July 2009.

At the end of July 2009, I provided 21 claim documents to the assistant of the IAMA CEO and stated in my letter:

“My letter to you on 16th July advised that the following documents would be hand-delivered to you. These reports are now attached for your information.” (Burying The Evidence File 13-B to 13-C)

I forwarded many submissions to the IAMA ethics and professional affairs committee, which comprises either ex-judges or qualified lawyers who should have been concerned about the evidence I provided. It appears they were not interested in assessing evidence showing one of their own had breached more than only his duty of care of a claimant in an arbitration process. I showed that the administrator of the arbitration process alerted the government on 26 September 1997 that “most significantly, the arbitrator had no control over that process because it was a process conducted entirely outside the ambit of the arbitration procedures” (see page 99 COMMONWEALTH OF AUSTRALIA – Parliament of Australia). This initially seemed to worry the CEO, who telephoned me to confirm they would investigate my allegations against the arbitrator. However, the IAMA Ethics and Professional Affairs Committee have still not brought down a finding about this information or my other 21 submissions, regardless of their advice to me in five different emails that they were investigating my matters. One of those five emails, sent at 12:50 pm on 21 October 2009, states:

“Presently, IAMA does not require this further documentation to be sent. However, the investigating persons will be notified of these documents and may request them at a later date.” (See Burying The Evidence File 13-B to 13-C)

On 27 November 2009, I sent a further email to the secretary of the IAMA’s CEO, advising him that I could provide solid evidence of the arbitrator’s previous role as Mr Schorer’s legal advisor during a previous Telstra Federal Court matter. The arbitrator was clearly in error in not declaring this primary conflict of interest before he accepted the position, particularly when the company he was a partner in had also been Mr Schorer’s business advisor.

At 2:00 p.m. the same day, I received an email from the IAMA secretary stating, “Your email has been forwarded to the CEO. Regards, Richard.”

On 29 November 2009, I wrote to the CEO of the IAMA regarding fresh evidence received from the office of the lawyer who represented COT spokesperson Graham Schorer in his earlier Federal court action against Telstra between 1990 and 1992.

This now-deceased lawyer replaced Graham’s initial lawyer, who was appointed as the arbitrator for the first four COT arbitrations, including Mr Schorer’s and my arbitration. The arbitrator, therefore, assessed the documents and complaints he had previously been privy to when acting as Mr Schorer’s legal counsel between 1990 and 1992.

This constitutes a clear case of conflict of interest. This is the same arbitrator the IAMA investigated in 2009.

The crux of the matter, discussed in my letter to the IAMA ethics and professional affairs committee, relates to the events of 12 May 1995, when the arbitrator wrote to the TIO warning him that the arbitration agreement he used throughout my arbitration was not credible and should, therefore, be revised for the remaining three claimants.

This vital letter from the arbitrator was another document the TIO and the arbitrator concealed from me during my pending appeal. My letter explained that two of the other three COTs were allowed an extra 13 months longer to prepare their claims than I was allowed. The arbitrator, who, don’t forget, had previously been Mr Schorer’s business and legal advisor for many years, allowed Mr Schorer a full 36 months longer to prove his case against Telstra than I was allowed.

The five emails dated between 20 and 23 October 2009 from the IAMA Ethics and Professional Affairs Committee clearly show that they were certainly investigating my claims against Dr Hughes (See Burying The Evidence File 13-B to 13-C) Burying The Evidence File 13-E) and Burying The Evidence File 13-D, and They were still supplying my claim material to their investigators.

On 30 July 2009, according to this letter from Graham Schorer (COT spokesperson) to Paul Crowley, attached to a statutory declaration and a copy of a letter dated 4 August 1998 from Graham to me, Graham had a phone conversation with the arbitrator early in 1994 regarding lost COT faxes. During that conversation, the arbitrator explained, in some detail, that:

“Hunt & Hunt [The company’s] Australian Head Office of was located in Sydney and [the company] is a member of an international association of law firms. Due to overseas time zone differences, at close of business, [the company’s] Melbourne’s incoming facsimiles are night switched to automatically divert to Hunt & Hunt Sydney office where someone is always on duty. There are occasions on the opening of the Melbourne office, the person responsible for cancelling the night switching of incoming faxes from the Melbourne office to the Sydney Office has failed to cancel the automatic diversion of incoming facsimiles.”Burying The Evidence File 13-H.

On 29 November 2009, I wrote to the CEO of the IAMA regarding fresh evidence received from the office of the lawyer who represented COT spokesperson Graham Schorer in his earlier Federal court action against Telstra between 1990 and 1992. This now-deceased lawyer replaced Graham’s initial lawyer, who was appointed as the arbitrator for the first four COT arbitrations, including Mr Schorer’s and my arbitration. The arbitrator, therefore, assessed the documents and complaints he had previously been privy to when acting as Mr Schorer’s legal counsel between 1990 and 1992. This constitutes a clear case of conflict of interest. This is the same arbitrator the IAMA investigated in 2009.

During the first months of my arbitration, when the Australian Federal Police officially investigated the possibility COT Cases faxes were being intercepted, had Graham Schorer or Dr Gordon Hughes alerted the AFP of the problems being experienced at the arbitrator's office when documents were faxed to their Melbourne office after the close of business each day, any investigation into these lost faxes might well, have uncovered that the arbitrators Melbourne office was not a haven for faxed arbitration documents because they ended up in the Sydney office.  

This diverting of faxes to Dr Hughes's Sydney office was in operation at the time the Sydney office was acting on behalf of several Telstra employees, and it is possible that some of those Melbourne Telstra-titled documents might have been mistakenly taken as Sydney Telstra-related documents and not those diverted from Melbourne. 

COT Case Ann Garms spent over $600,000.00 in her arbitration appeal in the Supreme Court of Victoria against Dr Hughes. Ann might have had a more favourable outcome of this appeal, which she lost, had she and her lawyers known of Dr Hughes's admission to Graham Schorer before the commencement of our four arbitrations. 

Before the government communications regulator, AUSTEL (now AMA) endorsed Dr Gordon Hughes as the independent arbitrator, they had a duty of care to advise the COT Cases in writing that Dr Hughes was not an experienced arbitrator and had not been graded by the Institute of Arbitrators Australia to perform such complex arbitrations as the COT four processes. AUSTEL did not. Could you inform us of this fact?

Dr Hughes also failed his duty of care as a pending arbitrator to COT Cases Ann Garms, Maureen Gillan, and me in writing as per the rules of the Victorian Arbitration Act that he had a conflict of interest with the fourth claimant Graham/Golden. And to add further salt to the COT Case's future wounds was that Graham Schorer, in his capacity as COT spokesperson, failed to disclose to us three other COT Cases that we should not send arbitration-related faxes to Dr Hughes’ Melbourne office after the closing of business each day; otherwise, they may not arrive at their intended destination.

This document Front Page Part One File No/1 shows the arbitrator’s secretary advised Tony Watson (of Telstra’s arbitration defence unit) that on 23 May 1994, six of my claim documents did not reach the arbitrator's fax machine. Yet, I was charged on my Telstra account for those six faxes. Why was this matter not investigated? No one from the arbitrator’s or TIO’s office allowed me to amend my claim so that the not-received claim documents could be valued as part of my arbitration process.

Why didn’t Dr Hughes (as the arbitrator to my case) also explain to me as he did to Graham Schorer Front Page Part One File No/1  that my 23 May 1994 faxed claim documents might be in his Sydney office? Did Dr Hughes believe that exposing this faxing problem with his Sydney office would halt the arbitration process in my favour? Was Dr Hughes worried by exposing to me the flaws in his own two offices concerning the possibility this is where my other lost faxes ended up, this admission would bring an end to his remaining the arbitrator to the COT arbitrations?

A further international arbitrator (qualified lawyer) on LinkedIn has continued to show interest in this website, asking him to be updated. Our association on LinkedIn first started in 2015, and as of late July 2021, we are still corresponding on how I can expose how many unlawful arbitrations are conducted in Australia. The Hon. Michael Kirby wanted to be investigated in 2009 by the IAMA Ethics and Professional Affairs Committee. That Committee chose NOT to disclose my claims publicly, as they are valid.  

Clicking on the following file, Discrimination, including the supporting exhibits IAMA Exhibits 1 to 39 and IAMA Exhibits 40 to 72, the reader can decide whether the IAMA should have found my claims.

After not hearing from the IAMA between 23 November 2009 and 17 February 2011, I wrote to the Hon. Michael D Kirby AC CMG, asking him to investigate why I had no proper advice as to how the IAMA was progressing with its investigations into my matters. Submitting my claim to the IAMA costs close to $16,000.00 in secretarial and administrative fees.

On 21 February 2011, I received a letter from The Hon. Mr Kirby stating:

“Thank you for your letter of 17 February 2011, just received. 

When I wrote to you in July 2009, I served as President of the Institute of Arbitrators & Mediators Australia. In June 2010, I stepped down from this position. Mr Warren Fisher was elected in my place. 

A possible explanation for your not hearing from Mr Paul Crowley is that, not long after my retirement as President, he resigned and Chief Officer of IAMA.I will send your letter and the attachment to Mr Fischer and request that he respond to your enquiry.” (See Burying The Evidence File 13-F)

17 February 2011: I wrote to the Hon. Michael D Kirby AC CMG, stating:

“I am now writing to you because I have twice written to Mr Crowley in late 2010, asking if he could let me know when the IAMA Ethics and Professional Affairs Committee might hand down their findings in relation to my matters, or at least advise me whether or not the IAMA believe I should continue to provide them further material when it becomes available under FOI.” (AS 719)

6 March 2011: I wrote to Warren Fischer, president of the IAMA, noting:

“I decided to update my previous AAT Statement of Facts and Contentions which the Hon Michael Kirby provided to you therefore, I thought it appropriate you should also receive (see attached) the new updated version also dated 9th February 2011. I have supplied this document because it appears that the IAMA Ethics and Professional Affairs Committee have still not reached their findings on my matters and because of those matters will be shortly discussed in the public arena once I attend the AAT Conference hearing”. (Burying The Evidence File 13-A to 13-I)

21 March 2011: Warren Fischer wrote (IAMA) to me noting:

“I confirm receipt of your correspondence dated 22 February 2011 (forwarded to me by the Hon Michael Kirby AC CMG) dated 28 February 2011, 6 March 2011, and 9 March 2011. I advise that I have passed all that correspondence to our Ethics and Professional Affairs Committee for reply to you.”  (Burying The Evidence File 13-A to 13-I)

9 May 2011: I received rather a strange letter from Warren Fischer (IAMA) noting:

“I have to hand your correspondence dated 2 May 2011. I observe that in that correspondence you state that you “have some concern that the IAMA Ethics and Professional Affairs Committee has not yet responded to my claims against [the arbitrator], which was lodged in July 2009”.

“I advise that my receipt of your other recent correspondence, dated 17 April 2011 caused me to enquire of the IAMA CEO as to the status of this matter as I had understood that the IAMA Ethics and Professional Affairs Committee had concluded its deliberations and notified you accordingly.” (AS 723)

Mr Fischer’s letter is strange because, in the last week of February 2011, the Hon. Michael D Kirby AC CMG (AS 717) advised him that I was waiting for a response to the IAMA investigation into my previous arbitrator’s conduct. So why, six weeks later, did Mr Fischer write that my letter of 17 April 2011 caused him to enquire of the IAMA CEO as to the status of this matter because he understood that the IAMA Ethics and Professional Affairs Committee had concluded its deliberations?

Between May 2011 and November 2013, I tried all reasonable avenues to have the IAMA explain why they would not bring down a finding of their investigations into my valid claims.

On 11 November 2013, the IAMA CEO notified me in writing that I should:

“… not write to the IAMA, our President, or any person connected with IAMA again on this matter. Any future letters received will be returned to you.”

In the government regulatory communications authority - The COT Cases AUSTEL’s report of April 1994 at point 6.67 it states:

“the arbitrator is to be a person of clear impartiality, independence and integrity with expertise in relevant legal, technical and accounting issues to them and with experience in commercial assessment and arbitration.”

Letters I provided to the government in 2008 and again in 2011 show Dr Hughes (the arbitrator) did not have expertise in arbitration. In fact, in my case, the information I received from the Institute of Arbitrators Mediators Australia advises that Dr Hughes did not get his arbitration grading until well past the end of my arbitration. One letter I received from Mr J L Muirhead, President of the Institute of Arbitrators Australia, dated 10 September 1996, states:

"The Institute is a learned society whose principal functions is the training, examination and grading of arbitrators. It will also nominate suitable arbitrators from its list of graded, practising arbitrators if required to do so by the parties. It selects nominees of appropriate of technical expertise and grading (i.e. experience) from its published list.

I am advised by our Chief Administrative Officer that no reference was made to us in the appointment of the arbitrator in the matter in which you were involved and there is always a risk in these circumstances.”     

11-B

Article 7

All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.

Article 12

No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks. 

Chapter 3 - Conflict of Interest shows beyond all doubt when Dr Hughes (the arbitrator) allowed his previous client, COT Spokesperson Graham Schorer, three years longer than he allowed me to prepare by claim and answer Telstra's defence; he knowingly discriminated against me. The fact he also had a Conflict of Interest in Mr Schorer's previous Federal Court action against Telstra and did not disclose this to me before I accepted him as the COT arbitrator has still not been addressed by the government and Telecommunication Industry Ombudsman who endorsed Dr Hughes and being independent of Telstra when he was not.   

Between June and October 2009, I established, using evidence provided to The Hon. Michael D Kirby AC, CMG, President of the IAMA, Paul Crowley (CEO of the IAMA) and those in the IAMA Ethics and Professional Affairs Committee, that I had valid claims against the conduct of the arbitrator Dr Gordon Hughes and those assisting him before, during and after my arbitration. It should have been apparent, from the evidence submitted during the IAMA Ethics and Professional Affairs Committee investigations, that several parties involved in my 1994/95 arbitration did not conduct my arbitration according to the ambit of the Arbitration Act. It should have also been apparent – to those administering my arbitration – that Articles 7 and 12 were not adhered to, as the website absentjustice.com clearly shows.

I introduce below a report titled Discrimination IAMA Introduction 15 July 2009, with attached exhibits, as it was provided to Mr Crowley of the IAMA Melbourne chapter at the request of the IAMA Ethics and Professional Affairs Committee. These exhibits show that the IAMA should have provided a finding regarding the evidence I provided. Yet, it refused to do so.

Arbitration Legal Opinion AS 701 to 756

Discrimination IAMA Introduction 15 July 2009 - ID Discrimination IAMA Introduction 15 July 2009

Discrimination IAMA Exhibits 1 to 39 - ID Discrimination IAMA Exhibits 1 to 39

Discrimination IAMA Exhibits 40 to 72 - ID Discrimination IAMA Exhibits 40 to 72

I reiterate. as of 2024, I have still not received a finding from the IAMA concerning the information I requested and/or received back from the IAMA the 23 submissions they requested I provide.

The evidence I provided to the IAMA was gleaned from the attached CAV evidence files below. The highlighted exhibits in the text above support the statements being discussed. It is clear that the IAMA has not treated me fairly and justly. 

Chapter 11

Towards The End

 

 

26 May 2011 (No 2010/4634) show I maintained my Freedom of Information applications to ACMA should be provided free of charge, in the public interest, including all of the requested information both Telstra and AUSTEL withheld during my government-endorsed arbitration process. Senior AAT member Mr G D Friedman considered this AAT hearing and it is now apparent that Mr Friedman was unaware that the government solicitors (AGS) and ACMA based their defence of my claims on the inaccurate DCITA COT archival documents, including the sanitised public AUSTEL COT report released in April 1994. Neither document includes the true (and very adverse) findings that AUSTEL had originally reached in relation to Telstra’s dealings with me (see AUSTEL’s Adverse Findings).

ADMINISTRATIVE APPEALS TRIBUNAL

Statement of Facts and Contentions

 

Introduction Part 1

Malfeasance, Felonious, and Illicit Dealings. Legal repercussions of malfeasance. Addressing felonious activities

It is important that the AAT understand that, back in August 1992, five ordinary small business operators, three from Victoria and two from Queensland, came together in an attempt to force Telstra to supply them with telephone services comparable to their business competitors. This group originally called themselves the Casualties of Telecom (later changed to the Casualties of Telstra) or COT Cases for short. One of the five, Shelia Hawkins, left the group at the end of 1992. After an audit of Telstra’s fault handling process by Coopers & Lybrand in late 1993, and a Government investigation into the COT’s complaints, which had by then escalated to some sixteen small businesses, it was clear that Telstra needed a testing process to would determine if the faults being lodged by Telstra customers were genuine or not. Together with AUSTEL (the Government Communications Regulator), Telstra then set up a process called Service Verification Testing (SVT), designed to meet all of AUSTEL’s mandatory specifications regarding the success of calls going out of a customer’s premises and, more importantly, the success of calls coming into the customer’s premises. The AUSTEL / COT Cases public report that was provided to the Hon Michael Lee MP on 13^th April 1994 confirms that, in a pending settlement process for the Difficult Network Fault (DNF) COT Customer complaint, this SVT process was to be used to prove that there were no more problems affecting the customer’s service.

Introduction Part 2 

This current sixteen-page Statement of Facts and Contentions has been condensed from a draft document entitled Section 70 of the Crimes Act 1914 (Australia), which totals 283 pages and 834 accompanying exhibits, including earlier letters I have written to the Australian Communications and Media Authority (ACMA) between 7^th February and 20^th October 2010, which the ACMA (the Respondents) have compiled as The Respondents Section 37 Documents.

In my 20^th October 2010 letter to the AAT I have claimed that the ACMA has a conflict of interest in my FOI matters and that AUSTEL (now the ACMA) have concealed, from both the Government and the public, that in some cases at least, AUSTEL knew that Telstra’s SVT process was fundamentally flawed (see below) but still AUSTEL allowed Telstra to submit these flawed SVT reports to the TIO-appointed arbitrator.  Evidence contained in documents 103 and 104 in The Respondents Section 37 Documents, namely CCAS data from the 29^th September 1994, the day Telstra conducted their SVT process at my business, has been analysed by Brian Hodge MBA who worked for Telstra for twenty-nine years as a technical specialist before going out on his own.  Mr Hodge’s report dated 27^th July 2007, which was provided to the ACMA in 2008, states that Telstra did not perform the mandatory incoming Service Verification Tests into my business. 

On page 12 below I suggest a way that, using the AAT platform, the ACMA can prove once and for all that they have no conflict of interest in relation to protecting past Commonwealth Officers who allowed Telstra to submit their flawed SVT reports, under oath, to an arbitrator.  My suggestion is that the ACMA simply appoint two independent technical consultants to assess Telstra’s CCAS Data for the 29^th September, 1994 and provide advice as to whether Telstra did carry out the mandatory AUSTEL incoming tests to my service lines 055 267 267, 055 267 230 and 055 267 260 on 29^th September 1994. After all, the general public has a right to know whether the current ACMA Chairman, Mr Chris Chapman, and the ACMA Board are truly independent and are prepared to show their independence by having this CCAS data assessed because it will be of public interest if the ACMA, which is overseeing the present splitting up of Telstra’s network, is truly an independent regulator, protecting the rights of ALL Australians.

If Mr Chapman refuses to have the ACMA involved in this elimination process because of Section 70 of the Crimes Act 1914, which prohibits a Commonwealth officer from disclosing any fact or document which has come into their possession by virtue of them being a Commonwealth officer, then it is in the public interest that Section 70 of the Act is revised. I believe most Australians will be horrified to learn that because of an old and out-dated Crimes Act the ACMA has been unable to disclose publically their knowledge of how Telstra knowingly submitted false information under oath to an arbitrator and how that submission stopped the claimant from having his ongoing telephone faults rectified during and after his arbitration.      

Section 70 of the Crimes Act 1914

Since my arbitration was endorsed by the Government Regulator, AUSTEL, on behalf of the Federal Government, then I believe it is certainly in the public interest (see page 13, following) for Australian citizens to know that, in Canberra, on 21^st March 1995, two Commonwealth officers advised me that AUSTEL knew that Telstra, the defendants in my arbitration process, had knowingly relied on two flawed reports to support their defence of my claims (the Cape Bridgewater Bell Canada International (BCI) test report and the AUSTEL-facilitated Cape Bridgewater Holiday Camp Service Verification Test report), but AUSTEL was powerless to intervene.

I believe it is a matter of public interest that during a Government endorsed arbitration process:

1. Three senior Telstra executives held positions on the TIO Board and the TIO Council at the same time as one of them was the subjects of the TIO-administered COT arbitrations.  We believe the positions that these Telstra executives held on the TIO Board and Council may well be why there has never been a proper or transparent investigation into Telstra’s conduct during the COT arbitrations, for example:  when two of the first four original COT claims were being assessed by the TIO-appointed arbitrator, a Senate Committee had already been investigating one of the Telstra TIO Board members for misleading the Senate regarding the telephone exchanges that the businesses of these two COT claimants were connected to – exchanges that were then also part of the COT arbitration investigations. 
2. In 1994, AUSTEL (now called ACMA), investigated and prepared draft reports regarding the telephone complaints that had been lodged by eight COT claimants including me.  It took sixteen years before Graham Schorer COT Spokesperson and me were finally given copies of these draft reports, in November 2007 and October 2008, and it was then clear that, back in 1994, AUSTEL had found, in both cases, that Telstra had misled and deceived us both concerning our ongoing telephone problems.
3. That Australian citizens can be assured that the legally binding arbitration agreements they have signed were drafted by the arbitrator in consultation with the Special Counsel attached to the TIO, only to learn, after the agreements were signed, that the defendants in the case (Telstra) had actually drafted the agreement so as the claimants had no chance of accessing FOI documents during the period allowed in the arbitration agreement.
4. Documents released in late 2007, years after the arbitration, proved that covert changes had been made to the ‘final’ version of the arbitration agreement, after it had been sent by the arbitrator to the Solicitor representing the claimants for his opinion but before the Solicitor’s clients (the claimants in the case) had signed it, without the Solicitor or his clients ever being notified of the changes on the day it was signed

Document 381 in the Respondent Section 37 Document

Is a report prepared by me totalling 164 pages and 486 supporting exhibits dated 4^th May 2010 to Simon Clearly, Acting (TIO) transcribed onto a CD disk. Various exhibits and statements in this report confirm that secret meetings with Telstra, Telstra’s Corporate Directorate, Dr Hughes (Arbitrator), Warwick Smith (TIO) and Special Counsel Peter Bartlett convened a meeting on 22^nd March 1994, without the COT Cases having representations to discuss the arbitration agreement. Telstra’s transcript of this meeting FOI folio 000136/000138 states under the heading Exclusion of Liability for Arbitrator’s Advisor that:

“...Mr Bartlett (Special Counsel) stated that he was unhappy that Telecom did not appear prepared to allow his firm an exclusion from liability. Mr Smith (Warwick Smith) stated that he thought it was reasonable for the advisors to incur some liability, and that the only matter left to be negotiated on this issue was the quantum of the liability caps. Mr Black (Telstra) said that he thought the liability caps proposed by Telecom in the amended rules were already reasonable”

Exhibit AS 333-a, also on the CD, is a letter dated 12^th April 1994 from Dr Hughes to Peter Bartlett, noting:

“I appreciate that one claimant has already executed the agreement in its current form. The others will no doubt be pressed to do likewise over the next few days. I further appreciate you will be reluctant to introduce additional changes to the draft procedure at this delicate stage of negotiations but it is of course also fundamental that account be taken of the concerns raised by members of the Resource Unit. Perhaps the agreement should be executed in the current form and then agreement sought from the parties to vary the terms to take into account any proposals by Ferrier Hodgson or DMR which you agree are reasonable”. 

Although the 12^th April, 1994 letter was only copied to the TIO (Warwick Smith) and J Selek & J Rundell of Ferrier Hodgson (the Arbitrators Resource Unit), it now has a Telstra FOI number folio (A59257) allocated to it, confirming that Telstra saw this letter, probably either before or shortly after we signed the agreement.  Since it was not officially copied to Telstra it would seem that perhaps Telstra (or their lawyers) noticed the alterations to clause 24 and the removal of the liability caps for Ferrier Hodgson (inc clause 25) and DMR the technical consultants (in clause 26) when Peter Bartlett (Special Counsel) couriered the agreement to Telstra on 21^st April 1994, after we had signed it.  Or did Dr Hughes and Peter Bartlett allow us to execute the agreement “in the current form”, as Dr Hughes suggested in his letter of 12^th April, and then allow Telstra themselves to alter the agreement while they still had it in their possession?  Although Peter Bartlett wrote to COT spokesperson Graham Schorer on 22^nd April 1994, advising him that Telstra had signed the agreement on 21^st April, we did not get the Telstra signed arbitration agreement until eight days later.  Could it be that the changes were made some time during those eight days perhaps?  What we do know for certain is that Graham Schorer, our lawyers and I believed we were signing the same agreement that the first claimant, Maureen Gillan, had executed on 8^th April because our lawyers had received the same (unsigned) version for their comment, faxed from Dr Hughes’ office, on 19^th April 1994.

The fax imprint on these two identical agreements Exhibits AS 429 and 430 on the CD were faxed from Dr Hughes’ office by his secretary, Caroline Friend, to Mr Alan Goldberg QC and William Hunt, solicitor between 1:20 and 2:00 pm on 19^th April 1994.  Each fax included an unsigned copy of the arbitration agreement, the same agreement that had already been executed by Maureen Gillan on 8^th April 1994 (the claimant referred to by Dr Hughes in his 12^th April letter to Peter Bartlett). It is these two identical agreements that Alan Goldberg QC, William Hunt, Graham Schorer COT spokesperson and I believed were signing on 21^st April 1994.

Document 232 to 244 in the Respondent Section 37 Document

This document, which includes a copy of a letter dated 22^nd June 1994, from Telstra’s Steve Black to Peter Bartlett and an attached copy of the arbitration agreement that was to be used for the following twelve COT claimants (with the $250,000.00 liability caps replaced) was faxed to AUSTEL/ACMA from the TIO’s office which seems to indicate that the Government Telecommunication Regulator, AUSTEL/ACMA was also involved in the collusion referred to immediately above.

Document 35 to 48 in the Respondent Section 37 Document 

On page 5 of my 7^th February 2010 FOI request I explain that AUSTEL was advised that Telstra was secretly altering FOI documents so as to minimise Telstra’s liability, before they were released to the COT claimants and that Telstra’s Steve Black had been named as the ringleader of that process.  This was the same Steve Black who signed the altered arbitration agreement and the same Steve Black who sent a copy of the new version of the agreement (prepared for the following twelve COT claimants, with the liability caps replaced) to Peter Bartlett on 22^nd June 1994.

Exoneration from liability

Attachments to my letter to Julian Burnside QC dated 9^th December 2010 (copied to the AAT and ACMA) and on the CD in The Respondents Section 37 Documents clearly prove that the arbitrator’s Resource Unit did not investigate at least 3,000 of my submitted claim documents.  Some of those documents are referred to in the conclusion of this Statement of Facts and Contentions, which explains how Telstra laid optical fibre they knew was faulty, and redeployed back into circulation hundreds of thousands of EXICOM TF200 touchphones even though they knew that both the optical fibre and the touchphones had serious faults associated with them.  My arbitration claim recorded all this but the Resource Unit ignored these two vital issues and I suspect they decided to ignore these matters because they knew they had been exonerated from any liability in relation to my arbitration.  This is a matter that is in the public interest because, if the arbitrator and special counsel had not made those secret alterations to my arbitration agreement then the Resource Unit would have been compelled to address these matters and this faulty equipment would have been recalled sixteen years ago; and who knows how many members of the public would have therefore been supplied with telephones and telephone lines that worked as it was meant to, instead of battling for years with seriously faulty Telstra equipment.

Document 303 in the Respondents Section 37 Documents

This is AUSTEL’s draft of their Alan Smith Cape Bridgewater Holiday Camp report dated 3^rd March 1994.  The following points are particularly relevant:

Point 209 states:

 “Cape Bridgewater Holiday Camp has a history of service difficulties dating back to 1988. Although most of the documentary dates from 1991 it is apparent that the camp has had ongoing service difficulties for the past six years which has impacted on its business operations causing losses and erosion of customer base”.

Point 210 states:

“Service faults of a recurring nature were continually reported by Smith and Telecom was provided with supporting evidence of this in the form of testimonials from other network users when were unable to make telephone contact with the camp”.

Point 212 states:

In view of the continuing nature of the fault reports and the level of testing undertaken by Telecom doubts are raised on the capability of the testing regime to locate the causes of faults being reported”.

In relation to this type of testing regime, it needs to be noted here that it seems as though the failure of the testing regime to “locate the cause of faults being reported” may be linked to AUSTEL/ACMA allowing Telstra to limit their mandatory parameter testing regime.  If this matter is not in the public interest then please consider a Telstra email dated 20^th December 1993 (FOI document A00354) which discusses this same testing parameter performance standards noting: 

“I understand there is a new tariff filing to be lodged today with new performance parameters one of which commits to 98% call completion at the individual customer level. Given my experience with customer disputes and the recent BCI study, this is cause for concern. We will not meet this figure in many exchanges around Australia particularly in country areas”. 

My records show that, during the period when AUSTEL allowed Telstra to limit this testing regime, AUSTEL and Telstra received over 2,644 customer complaints from just one survey and 4% (105) of the customers who responded to that survey stated they had experienced one or more of the COT type service difficulties and faults.   

Telstra v Golden Messenger Federal Court Action

On 3^rd November 1990, during Graham Schorer/Golden Messenger’s Federal Court proceedings against Telstra, Telstra’s Trevor Hill advised Telstra’s Peter Gamble (FOI folio C04550/C04551) that: 

“The Australian Government Solicitors, on behalf of Telecom, has written to the solicitor acting for Golden Messenger seeking their undertaking not to disclose to their client or others the content of the report on the North Melb exchange. To date, there has been no response.”

Graham Schorer, official spokesperson for COT, has told me that he did not receive a copy of the North Melbourne Exchange report from his solicitor at any time during his Federal Court action.  One of the two solicitors representing Graham Schorer in his Federal Court action was Dr Gordon Hughes, who later became TIO-appointed COT Arbitrator and then covertly sanctioned the alterations to the COT arbitration agreement after it had been faxed, unchanged, from Dr Hughes’ office to our lawyers, for their legal opinion.  Dr Hughes never did reveal his previous involvement with Golden Messenger in relation to Graham Schorer’s telephone matters and this must be a matter of some concern considering that Dr Hughes then chose to allow Mr Schorer more than two years in which to reply to Telstra’s arbitration defence of Golden Messenger claims, which included the North Melbourne Exchange matter, but only allowed me fifteen days to address Telstra’s defence.  Could it be that Dr Hughes subconsciously but compassionately provided Mr Schorer with more time because he (Dr Hughes) had already read the North Melbourne Exchange Report during Mr Schorer’s Federal Court case and was therefore aware of how bad the Exchange really was?

This serious conflict of interest in relation to Graham Schorer/Golden Messenger’s Federal Court proceedings put Dr Hughes in a precarious position; perhaps Telstra used this situation by threatening to reveal his past association with Graham Schorer/Golden Messenger earlier Federal Court proceedings against Telstra. Could this be why Dr Hughes never challenged Telstra’s false, sworn witness statements that my claim advisor (Garry Ellicott, ex-Detective Sergeant with the Queensland Police and ex-Senior National Crimes Investigator) declared had perverted the course of justice during my arbitration? 

It is important that the AAT and the ACMA carefully consider the ramifications of AUSTEL’s draft report on the Graham Schorer/Golden Messenger/GM Melbourne Holdings Pty Ltd matter, particularly points 38 and 43, (which I provided the AAT in my letter of 20^th October 2010), because they show that Telstra had been deliberately misleading and deceiving this company for years and had even hired a private investigator as part of their involvement with GM Melbourne Holdings, which is confirmed by a letter dated 3^rd March 1992 from the Australian Government Solicitor to Telstra’s Corporate Secretary, re “Telecom-ats-GM (Melbourne) Holdings Pty Ltd” which states:

“I enclose a certified claim for payment for the sum of $295.00 being amount payable to Equity Adjusters for professional services.” 

Telstra FOI document folio C05313 dated 15^th March 1993

“re AOTC ats GM (Melbourne) Holdings Pty Ltd”, notes: “Investigator’s Report and enclosing letter from Equity Investigators. I apologise for the state of the handwritten statement in the Investigators Report.”

These two FOI documents prove that Telstra had employed Equity Adjusters over a number of years in relation to Golden Messenger/GM Melbourne Holdings Pty Ltd, but the most important issue here is that Telstra must have misinformed the Government Solicitor regarding the issue of Telstra’s misleading and deceptive conduct towards Golden Messenger, an issue that was later included in AUSTEL’S draft report at points 38 and 43.  It is therefore a matter of public interest that the Federal Government paid the sum of $295.00 to Equity Adjusters, from the public purse, particularly since we now know that Telstra not only misled and deceived Golden Messenger in relation to their ongoing telephone problems but they also tricked the Government Solicitor into handing over public money in relation to a crime committed by Telstra on an Australian citizen

Senate Estimates Committee Investigation re COT / FOI requests

I believe it is a matter of public interest that:

• The then-Federal Coalition Government in 1997 and 1998 only investigated five of the twenty-one COT claimants complaints of not receiving relevant FOI documents during their government endorsed arbitration’s;
• The claims of the remaining sixteen COT Cases were ignored because the Government was concerned about the time frame of assessing (the remaining claims) because such an investigation would impede upon the then-pending privatisation of Telstra.

In-camera Senate Estimates Committee Hansard reports dated 6^th and 9^th July 1998, state that one Senator actually told a senior Telstra Executive that he agreed with:

“... the chair. We have a difficulty. In many senses we all say, ‘For God’s sake Telstra, just give the last four all half a million or a million dollars each and stop it immediately.’ But that would be an injustice to the 16 or whatever you have settled.” 

Injustice or not, as a result of the Senate’s involvement, the first five of the sixteen COT claimants did eventually get some of the FOI documents they had asked for and receive compensation as a result of the Senate investigation.  The remaining sixteen COT claimants however, who were also on the Senate Estimates Committee’s list, were not provided all the FOI documents they were entitled to, nor did they receive compensation from Telstra through this Senate Estimates investigation, even though they had been told that, whatever the outcome of the first five ‘litmus test’ COT cases, the following sixteen would be treated the same. If this isn’t discrimination of the worst possible kind against sixteen Australian citizens by the then-Federal Government, then what is?

I believe it is a matter of public interest that three Senators I know of (there could be more) have tried desperately to organise for these claimants to have access to the type of documents that the other five claimants had access to as well as some sought of compensation for those remaining sixteen COT claimants, but this has not eventuated.  In fact, there was one occasion when a Senator phoned my home at 7.45 one morning to inform my partner and me that he had achieved a breakthrough it was a done deal, only to be stopped by those with a vested interest in concealing the type of evidence that is included in my 26^th July 2008 AAT Statement of Facts and Contentions and in this current Statement of Facts and Contentions.  All this evidence proves that the COT / Government-endorsed arbitrations were not conducted according to the promises pledged to the then-Labor Minister for Communications, the Hon Michael Lee MP; the then-Shadow Minister for Communications, Senator Richard Alston; Senator Ron Boswell of the National Party; and the Australian Democrats. 

25^th March 1994:  The Commonwealth Ombudsman, Ms Philippa Smith, wrote to Telstra’s CEO, Frank Blount, advising him that Telstra’s Steve Black had advised her Director of Investigations, John Wynack, that Alan Smith was not being provided with FOI documents because of:  

“...the need for Telecom to check all documents prior to release so that Telecom is alert to the possible use/misuse of sensitive information. Your officers also informed Mr Wynack that they expected the vetting of the documents would take only a couple of days.”

On 7^th July 1994 I wrote to the arbitrator, complaining that Telstra had advised me that they would not supply any more FOI documents because I had previously provided the Australian Federal Police with documents confirming that Telstra had intercepted my telephone calls without my knowledge or consent.  Dr Hughes did not respond, so I then sought assistance from Senator Ron Boswell asking for his help and, on 29^th November 1994, at a Senate Estimates Hearing, Senator Boswell asked Telstra: 

“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 investigations?” 

I have never seen Telstra’s official response to this question (if one was ever made) although after ten months later, on 7^th September 1995, Telstra did advise the TIO that they had withheld 40% of the FOI documents I had legally requested until two weeks after my arbitration had been deemed to be complete.

12^th May 1995: Two hours after Warwick Smith (TIO) received a fax from Dr Hughes advising that the COT arbitration agreement he had just used to deliberate on the first of the COT claimants (Alan Smith) needed revising before it was used for the next three cases because it was not ‘a credible document’ and because: 

“… there are some other procedural difficulties which revealed themselves during the Smith arbitration and which I would like to discuss with you when I return”, Warwick Smith issued a public statement to the media, noting:  “The Administrator noted that the arbitration process, under the direction of the independent Arbitrator Dr Gordon Hughes, appointed with the agreement of the parties, had been run in accordance with principals of natural justice.”  

In August 1995 I discovered just what the “procedural difficulties” that Dr Hughes referred to were, when my claim documents were returned to me and I discovered that, on 30^th April 1995, the arbitration technical resource unit had advised the arbitrator that they were still weeks away from finalising their investigation into the full extent of the billing problems that were affecting my business.  This information was, however, withheld from both my technical advisors and me, and Dr Hughes handed down his award in relation to my claims when only 20% of my claim documents had been assessed.  This information has been passed on to the TIO and ACMA Boards numerous times since 1995 and can also be supplied to the AAT on request.

22^nd June 1995: six weeks after Dr Hughes brought down his findings using the agreement he declared not credible and a technical report that was incomplete Telstra released under to me under FOI conclusive proof that the Bell Canada international Cape Bridgewater tests were impracticable. When I raised this fresh evidence with the new TIO John Pinnock and Dr Hughes on 21^st June 1995 the TIO office faxed their concerns to Peter Bartlett at Minter Ellison stating:

“Re Alan Smith, John (John Pinnock) wants to discuss it on Monday, and what the approach should be re parties seeking to revisit issues post Arb’n (Arbitration) His position is not to open the can of worms, but would like to discuss strategy with you – regards Pia     

11^th July 1996: AUSTEL provide their sixth COT Cases quarterly report to Senator Richard Alston, Minister for Communications noting:

“...The TIO believes that Telstra has, in all claims, responded in an overly legalistic manner. It has shown tendency to deny liability under every potential clause of action on the basis of perceived statutory and contractual immunities. In short, while the arbitration procedure has sought to relax the legal burdens, Telstra’s conduct has certainly not”.

20^th August 1997: Ben Dunn, Barrister Michael Brereton & Co wrote to Senator Ron Boswell Re: Alan Smith v Telstra Corporation noting:

“...It seems clear that at the time of reaching the initial settlement with Telstra, Mr Smith had not been fully informed by them of the extent of the problems with the exchange and that Telstra, wittingly or unwittingly, withheld information relevant to the settlement to Mr Smith’s detriment, The conduct of the arbitration which followed was highly dubious and open to attack as inviting questions of bias since the arbitrator ruled out many relevant documents to the detriment of Mr Smith’s claim. All of these circumstances and the fact that the entire arbitration was conducted in a highly legalistic manner much in favour of Telstra on rules it forced into place suggest that Mr Smith was less than fairly dealt with by Telstra and the arbitrator”.

26^th September 1997: During the Senate Estimates Committee investigation into the COT Cases FOI issues John Pinnock (TIO) advised the Committee that: 

“...the arbitrator had no control over the process, because it was a process conducted entirely outside the ambit of the arbitration procedures”. 

27^th January 1999: Senator Kim Carr, Manager of Opposition Business in the Senate (and now Minister for Science) wrote to me noting: 

“The appalling manner in which you have been treated by Telstra is in itself reason to pursue the issue, but also confirms my strong 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.” 

23^rd March 1999: after the Senate Estimates Committee Hearing into the COT arbitrations had been completed, the Australian Financial Review reported that the Chairman of the Committee, Senator Eggleston, had stated:   

“A Senate working party delivered a damming report into the COT dispute. The report focussed on the difficulties encountered by COT’s 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 above statement made by Senator Eggleston that: “They [Telstra] – is to act as a law unto themselves”, coincides with a letter I received two days previous dated 21^st March, 1999 from J R Perry of Perry & Associates Pty Ltd addressed to the Casualties of Telstra C/- The Small Business Show Channel Nine noting: “

...I watched your show on Sunday morning carrying the piece of Telstra. I was interested to hear of Telstra’s lies under oath, destruction of evidence, etc, etc. I started a law suit 21/2 years ago against Telstra for breach of contact during their cable TV rollout. They have placed every obstacle in our way and dragged the case out to try to bleed us dry. They sent dozens of contracting companies such as mine to the wall by manipulating markets and breaching contracts. Only 3 companies have had the resources to fight them. Unfortunately two company owners have allegedly committed suicide due to the loss of their homes and families as a consequence of Telstra’s actions, although this would be difficult to prove. We also have found the following: – Destruction of evidence from the first day of the suit – False affidavits from Telstra management – Withholding discovery documents”

Australian Democracy Telstra Style  

On 12^th December 1994, Telstra declared to the arbitrator (under oath), that the Telstra Corporation had no case to answer in relation to my claims.  In support of this statement Telstra submitted twelve witness statements, five bound volumes of supporting documents, a highly legalistic submission, two fundamentally flawed technical reports, a request for further and better particulars and a demand that I respond to Telstra’s interrogatories.  It cost me close to $200,000.00 to submit professionally prepared financial and technical claims and a response to Telstra’s interrogatories but, before I even began that expensive process, AUSTEL had already found strongly against Telstra in their draft report (see document 303 to 379 in the Respondents Section 37 Documents). Since 1995 I have invested a further $240,000.00 in expenses in (so far) an unsuccessful attempt to have these matters investigated.  I am now auctioning my family home on 12^th February 2011 due to this ongoing financial and emotional stress.  

I believe it is in the public interest and the public certainly has a clear right to know that, during a Government-endorsed legal arbitration process, a Government-owned corporation (as Telstra was in 1994) could submit so many sworn documents in support of their claim that they had no case to answer when:

1. AUSTEL had already provided Telstra with AUSTEL’s draft findings in relation to my matters, on 3^rd March,1994 noting: “...it is apparent that the camp has had ongoing services difficulties for the past six years which has impacted on its business operations causing losses and erosion of customer base;  
2. Before Telstra submitted all these documents to the arbitration they already had a document titled Telecom Secret Folio C04006/7/8 which recorded:  “...Many letters stating the problem of not getting through to Alan Smith. Legal position – Mr Smith’s service problems were network related and spanned a period of 3-4 years – given his evidence and claims. I do not believe it would be in Telecom’s interest to have this case go to court. Overall, Mr Smith’s telephone service suffered from poor grade of network performance over a period of several years”.

Document 35 to 75 in the Respondent Section 37 Document (Under surveillance)

These include a copy of my FOI request of 7^th February 2010, which records how transcripts of a meeting with the Australian Federal Police on 26^th September 1994 confirm that evidence given to the AFP by AUSTEL proved that my telephone conversations had been intercepted over an extended period.Documents 81 and 63, sworn affidavits from Robert Hynninen of the ATO (previously an ex-Victoria Police Detective Sergeant) and Des Direen, an ex- Principal Investigator for Telstra, show that they both believe that, while the Victoria Police Major Fraud Group was investigating COT issues between 1998 and 2000, Detective Sergeant Rod Kueris, who was in charge of the investigations, was kept under surveillance and that both his office at the Major Fraud Group’s headquarters in St Kilda Road and his private residence telephone services were illegally interfered with.This invasion of Mr Kueris’s privacy finally ruined his life and his police career and he resigned from the police force, as Mr Direen recorded at points 12 and 19 in his affidavit.

I believe Mr Kueris will remember that, between 1999 and 2000, while I was assisting the Major Fraud Group with their enquiries, I advised him that faxes from my office to his office (on two occasions) did not arrive and that I believed, on at least one occasion, that I was followed from my Queens Road (Melbourne) unit on route to the Major Fraud Group’s St Kilda Road offices.

Document 43 in the Respondents Section 37 Document

On page 9 of this document I provided advice that, on 7^th January 1999, Scandrett & Associates Pty Ltd, Telecommunications Consultants (Queensland) wrote: “

In our opinion these additional “facts” would make it almost certain that COT persons did not perform any alteration to the headers of the faxes involved. The second possibility is that a party or parties with access to the Telstra network on a national basis and the ability to selectively intercept and resend facsimiles have interfered with or used the national network of Telstra to intercept and resend these faxes. In summary then it appears to be almost certain that faxes are being intercepted and resent, with an attempt to hide the same, to the receiving party”;

and on 11^th January 1999, Peter Hancock of Total Communications Solutions (Victoria) wrote in his statutory declaration that:

“It is my opinion from the evidence provided that a third party has been intercepting all of the faxes referred to above. In my experience there is no other explanation for the discrepancies in the facsimile footprints in question. I have read the report of Scandrett & Associates Pty Ltd and concur with its contents”.

My 2010 FOI request of 7^th February asks the ACMA to provide all the documents referred to in the Australian Federal Police transcripts as being provided to the AFP by AUSTEL.I believe it is important for the AAT to know that no-one has ever addressed the issue of the invasion of my privacy, even though AUSTEL (a Government Regulator), Dr Hughes (arbitrator) and Warwick Smith (TIO) assured all the COT Cases that these privacy issues would be addressed during their arbitrations. Although I now have conclusive proof that Telstra knew when my secretary left my office at various times when I was away in Melbourne including, on one occasion, noting the dates I would be away from my office weeks before those trips occurred, and in one occasion Telstra was able to document that one of my regular callers happened to telephone me from a different location than normal.

I believe most Australians would be astounded to learn about the following documents and the events they relate to:  

1. On 29^th October 1993 a Telstra FOI document (folio K01489) confirmed that Telstra knew that faxes sent from my office were arriving at their intended destinations as blank sheets of paper, without the imprint of my business identification or the date it was sent displayed on the received document;
2. On 18^th March 1994 Telstra advised AUSTEL that they would only intercept faxes after receiving permission from the customer;
3. On 14^th April 1994 a Telstra file note admitted that Telstra intercepted my telephone conversations over an extended period.  I certainly never gave my permission for this to occur; 
4. On 15^th April 1994, an article in the Herald-Sun newspaper reported that:  “Former Prime Minister Malcolm Fraser yesterday demanded Telecom explain why his name appears in a restricted internal memo. He said he had never contacted Telecom about the subject of the memo. Mr Fraser’s request follows the release of a damming government report this week, which criticised Telecom for recording conversations without customer’s permission. Mr Fraser said Alan Smith, of the Cape Bridgewater Holiday Camp near Portland phoned him early last year seeking advice on a long-running dispute with Telecom which Mr Fraser could not help”;     
5. On 22^nd April 1994 AUSTEL wrote to me, confirming that, although their fax journal showed three separate faxes from me arriving at their office, with each process recorded as lasting between 1 minute 30 seconds and 2 minutes 40 seconds, the documents arrived completely blank, and did not include the imprint of my business identification or the date it was sent (see also point 1);
6. On 26^th September 1994 I met with the AFP in relation to my Telstra matters.  Transcripts of that meeting indicate how shocked the AFP officers were to see Telstra file notes from as far back as 1992 showing that Telstra was recording my activities, including noting the name of a bus company that I had tendered to for a contract (which I did not win); 
7. During my Government-endorsed arbitration) an internal Telstra email, from Bruce Pendelbury to David Stockdale, notes that:  “Mr Smith is absent from his premises from the 5/8/94 to 8/8/94”;
8. On 23^rd January 1997 an internal Telstra email from Stephen Mead of Telstra’s Corporate Directorate asks:  “Do we have (name deleted) under surveillance?; 
9. On 27^th June 1997 a private detective agency (International Detection Services) hired by Telstra, wrote to Telstra’s Corporate Security to report that:  "We have been attending this address on other matters as you are aware. The home is a low set brick residence and appears neat and tidy. There is a weldmesh security door at the front of the home”, proving that another COT claimant was clearly also under surveillance;
10. Between 1994 and June 1998 two different secretarial services and an education consultant confirmed problems receiving faxes from and sending faxes to my office; 
11. On 30^th January 2000 a third secretarial service, Dial a Secretary, confirmed problems receiving faxes from my office;
12. On 23^rd December 2002 I wrote to Tony Shaw Chairman of the ACA. A copy of this letter has since been returned to me from the ACA and it is clear that this letter was also intercepted before being redirected on to the ACA.  The markings on this document and those described are same type of documentation assessed by Scandrett & Associates and Peter Hancock (see above) which they labelled as having been intercepted; 

 

Document 303, the Respondents Section 37 Document 

Point 9 of this document describes how it is of public interest that, as a result of AUSTEL deciding NOT to survey other Cape Bridgewater residents in 1994 Mr Barry Sullivan lost his Cape Bridgewater building business during this period.  On the 8^th November 2002, I received a letter from Mr Sullivan, in which he advised: 

“I am writing to you following viewing the Channel 9 Sunday Program on 3/11/02. After viewing the Sunday program, I realised the similarities your business and others had with Telstra some ten years ago with the similarities our building business had, when we lived at Bridgewater. During a period of time between the late 1980s and early 1990s we had a considerable amount of difficulty with our phone. Our phone problem had such a negative effect on our building business over a period of time that our work dried up and our business shut down. Our business had been running successfully for several years prior to the phone problems”.

Like Mr Sullivan, the ongoing telephone problems that were not investigated during my arbitration had such a negative effect on the viability of our business my partner and I had to sell the holiday camp in December 2001, to Darren & Jenny Lewis. Had AUSTEL chose to force Telstra (under their licensing conditions) to investigate why my business was still suffering from the same ongoing phone problems that had forced Barry Sullivan out of business the same ongoing phone telephone problems that AUSTEL acknowledged in their covert draft report (see Document 378 in The Respondents Section 37 Document) at point 209, which states:   “...it is apparent that the camp has had ongoing service difficulties for the past six years which has impacted on its business operations causing losses and erosion of customer base”, both Barry Sullivan and I might still be in business today.

I believe most Australians would be aghast if they were shown the statement in AUSTEL’s draft covert Alan Smith report of 3^rd March 1994 that:“… doubts are raised on the capability of the testing regime to locate the causes of faults being reported” by Brian Hodge MBA in his 27^th July 2007 technical report regarding the ongoing telephone problems inherited by Darren & Jenny Lewis’ after they purchased my business in December 2001 noting:

“CCAS data over recent times (e.g. 2004-2006) indicates a continuing & worsening level of “Outgoing Released During Setup” calls (ORDS). These reports on the CCAS data indicate that the calls are not successful in the call up set up stage of the connection or are lost in the network”

Document 290 to 292 in the same Respondent Section 37 Document

This letter dated 28^th January 2003, from TIO Investigator Gillian Mc Kenzie to Telstra, notes: “Mr and Mrs Lewis claim:

• That they purchased the Cape Bridgewater Coastal Camp in December 2001, but since that time have experienced a number of issues in relation to their telephone service, many of which remain unresolved.
• That a Telstra technician “Mr Tony Watson” is currently assigned to his case, but appears unwilling to discuss the issues with Mr Lewis due to his contact with the previous Camp Owner, Mr Alan Smith.
• That the phone problems have decreased dramatically since Telstra Corporation rewired the business on 9 December 2992 and disconnected the phone alarm bell, however he is still experiencing problems with receiving calls and continued to have problems with his fax line”.

The comment at point 2 That:

“...a Telstra technician “Mr Tony Watson” is currently assigned to his case, but appears unwilling to discuss the issues with Mr Lewis due to his contact with the previous Camp Owner, Mr Alan Smith”, is ambiguous to say the least because I have lived next door to the Holiday Camp since 1994 (and therefore next door to the Lewis’ and the Lewis’ drew their water from my bore), so of course we were in regular contact.  Plus, this same Tony Watson had been in charge of the phone problems at the Camp both before and during my arbitration in 1994/95 and, we now know, provided the arbitrator with misinformation in relation to lost faxes, even though Mr Watson knew those faxes had never arrived at their destination because of problems with the fax system in Cape Bridgewater, yet here we have the same Tony Watson harassing the Lewis’ in relation to their faxes that were being lost or not received, just as he had harassed me, dismissed my complaints as frivolous eight years before. 

Senate Hansard

Hansard records of a Senate Estimates Committee Meeting on 24^th June 1997 confirm that, during cross examination by Senator Schacht and Senator O’Chee, Mr Lindsay White, a senior Telstra technical expert, stated under oath that part of his COT arbitration work was to assess technical information and that during his induction he was told about five complainants, including me, who, according to Peter Gamble, had to be stopped.  According to Mr White, Mr Gamble actually said:

“… we – we being Telecom – had to stop these people, to stop the floodgates being opened.” The Hansard report then records Senator Schacht asking: “Stopped at all costs – that was the phrase?  Can you tell me who, in that induction briefing, said ‘stopped at all costs’?  To which Mr White responded: “Mr Peter Gamble, Peter Gamble.”

On 16^th November 1994 AUSTEL wrote to Telstra, condemning the way the SVT process had been carried out at my business.  On 28^th November 1994, one month after Peter Gamble had been forced to abandon the SVT procedure at my business, Mr Gamble responded to AUSTEL’s letter, advising AUSTEL that the information he was providing to AUSTEL regarding my matters, and other SVT results, was being: “… supplied to Austel on a strict Telecom-in-Confidence basis for use in their Service Verification Test Review only and not for any other purpose. The information is not to be disclosed to any third party without the prior written consent of Telecom”, even though that information was being used by Telstra as arbitration defence material during the Government-endorsed, AUSTEL-facilitated COT arbitrations, AUSTEL still went along with Mr Gamble and concealed their knowledge that Telstra had relied on SVT results they knew were fundamentally flawed, because they knew those false reports would stop any arbitration investigation into why my business was still experiencing ongoing problems with the Cape Bridgewater telephone network.

I therefore ask that the AAT carefully consider:

• A comparison of the CCAS data in documents 103/104 of the Respondent Section 37 Document, which confirms that Telstra’s Peter Gamble did NOT carry out the required SVT process at my premises on 29^th September 1994, with Mr Gamble’s letter dated 28^th November (see immediately above), because it is of public interest that AUSTEL, a Government Regulator, concealed this vital CCAS data from me, as a claimant in a Federal Labor Government-endorsed arbitration;
• If AUSTEL had released this evidence during my arbitration then the arbitrator would have had no other choice but to demand that Telstra explain why they were relying on Cape Bridgewater Holiday Camp test results they knew were fundamentally flawed.

DICTA Independent Assessment

On 15^th September, 2005 Senator Barnaby Joyce wrote to me noting:

“I am pleased to inform you that the Minister has agreed there needs to be finality of outstanding CoT cases and related disputes. The Minister has advised she will appoint an independent assessor to review the status of outstanding claims and provide a basis for these to be resolved.

I would like you to understand that I could only have achieved this positive outcome on your behalf if I voted for the Telstra privatisation legislation”.

On 12^th March 2006, before I agreed to be a part of Senator Barnaby Joyce’s independent assessment process, I wrote to Liz Forman of the Department of Communications, Information Technology and the Arts DCITA noting:

“In your last letter to me you advised that the proposed independent assessment will not include “...an investigation of whether the law was broken by Telstra” and yet you are asking me to supply any information I can in support of my unresolved claims against Telstra. The issue of Telstra’s illegal activities and my unresolved claims cannot be separated. Quite aside from the Minister’s legal obligation to have Telstra’s conduct investigated by the Federal Attorney General, the reason my claims are still unresolved, after ten years, is directly because of Telstra’s unlawful behaviour plus the lack of assistance provided by either the TIO or the arbitrator, either during my arbitration or since, in relation to these acts.

How can we separate these issues when they were entwined even before my arbitration began, when I was forced to sign the original arbitration agreement without being told that the terms had been secretly changed to favour the defendants (Telstra)?

How can DCITA expect some issues to be separated from others when they are so inextricable intertwined?

How can the proposed Independent Assessment process be deemed to be independent and impartial if the (DCITA) investigator and/or investigators do not investigate all the facts?” 

It is alarming to note that a Nikki Vajrabukka from Senator Helen Coonan’s office sent a Department Communication Information Technology and the Arts (DCITA) internal email to David Lever on 3^rd March 2006, informing him that she had emailed David Quilty (then Telstra’s Government Liaison Officer) at david.quilty@team.telstra.com, asking for Telstra’s assistance in addressing my 2006 DCITA submission which proved how, during my arbitration, Telstra had knowingly submitted the fundamentally flawed Cape Bridgewater Bell Canada International (BCI) and SVT reports as official arbitration defence documents.  Sending this email is much like asking a criminal if they should be charged in relation to crimes they have committed.  It is also interesting to note that, before Mr Quilty moved to Telstra, he was Chief of Staff to the DCITA Minister (then Senator Richard Alston) during the very same period in which I provided the Senator with this same type of BCI / SVT evidence.  In fact, when I wrote to Philip Gaetjens (Principal Advisor to the Federal Treasurer, then Peter Costello) on 12^th November 1997, providing similar evidence Mr Gaetjens was so concerned that, on 3^rd December 1997, he passed this evidence on to Mr Quilty (then still in his position as Senator Alston’s Chief of Staff), and Senator Amanda Vanstone (then the Minister for Justice).

PLEASE NOTE: David Quilty is now a very Senior Executive within the Telstra Corporation.

A letter dated 17^th May 2007, from Senator Helen Coonan (DCITA) notes:

“I have now made both formal and informal representations to Telstra on behalf of the CoTs. However, Telstra's position remains that this is a matter that is most appropriately dealt with through a Court process. Telstra is not prepared to undertake an alternative means of pursuing this matter. I also appreciate the depth of feeling regarding the matter and suggest you consider whether any court proceedings may be your ultimate option.”

The Australian public has a right to know that bad government bureaucrats have concealed those crimes from the public under Parliamentary Privilege and then allowed elected Government Ministers to write to the victim of the crimes, advising that the best thing that victim can do to find justice is to personally take the huge Telstra Corporation to court, even though secret Government reports have already proved Telstra’s guilt.  As proof of this I have a letter written to me some time after my March/April 2006 DCITA Independent Assessment process had failed to address Telstra’s unlawful conduct. 

Document 29 in the Respondent Section 37 Document is a Herald Sun newspaper article dated 22^nd December 2008 reporting under the heading Bad Bureaucrats that: “...Hundreds of federal public servants were sacked, demoted or fined in the past year for serious misconduct”.

It is clear that there are many secrets held by Members of our Parliament and their public servant advisors, secrets that have ruined the lives and businesses of honest Australians and which raise the following questions:

• How can a democratically elected government allow a corporation (private or not) to dictate the Government’s decisions when both Houses of Parliament have acknowledged that the corporation has committed crimes against fellow citizens?
• How can a democratically elected Government allow that same corporation to attempt to force citizens into highly expensive court action when the corporation has already financially ruined those citizens?
• Why is it that, if a group of citizens who have suffered as a result of crimes wishes to have a corporation charged when elected Senators have already proved those crimes, those citizens have to instigate and finance the court process themselves?

The Australian public has right to know that some people previously employed in Government Ministerial offices, who are known to have been involved in deflecting allegations regarding Telstra’s behaviour over the years, have ended up holding executive positions within Telstra, the ACMA and the TIO Board. This is the same ACMA and TIO Board that continues to refuse to address the validity of my claims. 

The Australian public has a right to know that people employed by a Government Minister failed to follow up on evidence provided to another Minister, with the result that this conduct was never transparently investigated.

The Australian public has a right to know that a Government Regulator concealed evidence from claimants who were participating in an arbitration process facilitated by that same Regulator and endorsed by the Federal Government, particularly if the evidence being concealed proved that the defendants in the case were using fundamentally flawed reports and altering information in discovery documents in order to minimise their liability in that Government-endorsed process.

Document 103 and 104 in the Respondent Section 37 Document

These two documents are Telstra’s CCAS data records from 29^th September 1994, the day that Telstra claim to have successfully carried out all the required incoming Service Verification Tests at the Cape Bridgewater Holiday Camp.  I believe the Australian public would consider it to be a gross miscarriage of justice, an abuse of power, and a major matter of public interest if they were to learn that public servants, paid from the public purse and working for a Government regulatory body (AUSTEL), would allow the defendants (Telstra) in a legal process such as my arbitration to hide behind their Government employer by falsely stating that all the incoming tests carried out at my business, on each of my service lines, had met all of AUSTEL’s specifications, when Documents 103 and 104 clearly confirm that none of the required incoming test calls to my business were carried out, on any of the three phone lines 055 267 267, 055 256 260 and 055 267 230 AT ALL. 

If we can prove that, during a Government-endorsed arbitration process (even if it was sixteen years ago), AUSTEL, which was then the Government Telecommunications Regulator, knowingly allowed the defendants in the process (Telstra) to state, under oath, that their Service Verification Tests had met all of AUSTEL’s requirements, even though both Telstra and AUSTEL knew this was not true, and that they then concealed their knowledge from the relevant Communications Minister (then the Hon Michael Lee MP), then I believe the Australia public would definitely believe it was in the public interest for this information to be revealed.   I am therefore now placing on record, as part of my AAT Statement of Facts and Contentions, a formal request for Mr Chris Chapman, Chairman of the ACMA, to appoint two independent technical consultants to assess the two pages of CCAS data records referred to above for the purpose of determining the actual level of ACMA’s independence in relation to my matters.  I also ask that Mr Chapman then provide the results of that investigation (which should not take any more than thirty minutes) to the Federal Government Attorney General, the AAT, and me.  If Mr Chapman refuses to do this he will simply confirm my claims that the ACMA has a conflict of interest in relation to my matters and the ACMA should therefore not be left in charge of determining which documents they can locate and which they cannot.  I am therefore also respectfully asking that the AAT pass a copy of this Statement of Facts and Contentions to the Federal Attorney General because it is quite clear that a crime was committed against me seventeen years ago and the Government Regulator has continued to conceal the associated evidence ever since.  It should also be noted that there is no statute of limitations in relation to exposing a crime.

The Incestuous Link (1)

On the 18^th June 1993 Michael Elsegood, AUSTEL’s Manager of International Standards, wrote to Telstra in relation to my billing issues.  I had explained to AUSTEL that there seemed to be two related problems caused by a lock-up problem in the Ericsson AXE software (which Telstra already knew about).  The Portland, manned AXA Exchange, which the Cape Bridgewater, unmanned Remote Multiplexer Exchange is routed through, had been experiencing these problems from at least August 1991, a situation that is supported by numerous Telstra FOI documents, one of which (L23848) notes: 

“These numbers indicate to me the poor standard of Ericsson software. For as long as we have had AXE we have been having software lockups and almost every CNA/ISU that comes along promises a solution to this problem but they still occur”. 

Then an internal Telstra email to the infamous Peter Gamble (FOI folio A13980) notes: 

“...you are quite correct in your thoughts that the anecdotal reference applies more to AXE than ARE-11 ‘Lock-ups’ are generally was well-known as a problem in AXE exchanges not only in Australia but in countries overseas as well”. 

On 20^th January 1994 Cliff Mathieson AUSTEL Specialist Advisor Networks and Michael Elsegood co wrote and signed a letter to Telstra on behalf of the Government Regulator AUSTEL under the heading Verification Tests For Difficult Network Fault Cases noting: “...Tests involving the customer’s equipment should be conducted to ensure that there is no fault in the equipment. Where test results do not meet the essential outcome, remedial action should be taken and the relevant tests repeated to confirm correct0 network operation” In fact AUSTEL’s first quarterly COT Cases report to the Hon Michael Lee MP dated July 1994 notes:

“...An important component of Telecom’s 4-stage fault handling process is the Service Verification Tests (SVT). These tests are applied during stage 3 of this process. These tests are important for Telecom to be able to provide objective data about the end-to-end performance or its network in regard to the service of an individual customer on the date the tests are conducted. In its briefing, Telecom indicated (and we will seek confirmation and further detail in writing) that if the SVT indicates an unacceptable level of service then the required replacement of network equipment will be undertaken”.  

Michael Elsegood is currently a member of the TIO Board and both the TIO and ACMA Boards are refusing to investigate why AUSTEL (now the ACMA) deceived the Hon Michael Lee MP into believing that all of the Service Verification Tests had been successful when the attached CCAS data (Documents 103 and 104 in the Respondent Section 37 Document) proves otherwise. One way in which the TIO and ACMA Boards can prove their independence to the general public would be to use the platform of the matters now before the AAT to arrange for documents 103 and 104 in the Respondent Section 37 Document to be properly and transparently analysed to determine whether or not Telstra did generate the required number of test calls in to my business on my three service lines, as directed by AUSTEL, and then make the results public.  It must surely be in the public interest for both the TIO and ACMA Boards to determine whether the ACMA’s predecessors did or did not act in an unconscionable manner by providing an elected Member of Parliament with false information concerning the Cape Bridgewater SVT process. 

The Incestuous Link (2)

Exhibits AS 160, 162, 163, 169, 170, 173, 174 and AS 180, in my AAT Statement of Facts and Contentions dated 26^th July 2008, and in my 9^th December 2010 letter to Mr Julian Burnside QC (copied to the AAT) confirm the various people and organisations who directly benefited from the secret changes to the arbitration agreement that covertly exonerated them from liability for any act or omission (for their part played in my arbitration), did act in a negligent manner during my arbitration, but those actions could not be addressed due to the covert alterations to the agreement. 

Exhibits AS 160, 166 and 169 in my 26^th July 2008 Statement of Facts and Contentions also confirm that, at least by 18^th April 1995, all those parties knew that there had been “…forces at work collectively beyond (our) reasonable control that had delayed…” Dr Hughes’ Resource Unit from being able to either address or investigate all the claim documents I had lodged with the arbitrator.  These same Exhibits further confirm that, because of the delays created by those un-named “forces at work”, only 12% of the documents I legally submitted were ever investigated and/or addressed.  If this isn’t bad enough, Dr Hughes then wrote to Warwick Smith, the TIO, on 12^th May 1995 Exhibit AS 180 – the day after he had handed down his final decision regarding my arbitration – by which time he also was fully aware of those “forces at work” and the damage they had done to my legally submitted claim.  Dr Hughes’ letter advised the TIO that, as a result of those delays, the arbitration agreement he had just used to reach his conclusions in relation to my matters was not a ‘credible’ document and would therefore need to be revised for the next three claimants so they would have more time for “the production of documents, obtaining further particulars and the preparation of technical reports”. Clearly as a direct result of that letter the TIO then allowed the next three claimants between thirteen months and two years longer than he had allowed me in which to prepare my claim.  Then, again, as if all of that isn’t bad enough, Dr Hughes’ letter regarding the agreement now judged not to be ‘credible’ was withheld from me during the designated arbitration appeal period and was only finally released to me by the TIO’s office in 2002 – obviously well outside the statute of limitations during which I could have appealed Dr Hughes’ award.

The information I am currently seeking under my 7^th February 2010 FOI request (which is now before the AAT) is of public interest because it is directly linked to the Government Communications Regulator (AUSTEL) and the TIO’s Special Counsel both being aware, at the very least by 22^nd June 1994, of these covert alterations to my arbitration agreement, and how they did nothing to assist me to have these clauses reinstated in the same way they were reinstated, as Clause 11.2, in the new agreement to be used for the remaining twelve COT claimants, and in Rule 31 in the TIO’s ‘Standard Arbitration Rules’ that were used for all other TIO-administered arbitrations.

Section 70 of the Crimes Act 1914

A statutory declaration dated 23^rd March 2010 was aexplaining that Frances Wood and Cliff Mathieson had advised me, on 21^st March, 1995 two months before the arbitrator handed down his decision in relation to my matters, that AUSTEL knew the BCI and SVT tests at Cape Bridgewater tests were fundamentally flawed.When I asked Mr Mathieson to report this to the administrator to my arbitration however, he stated words to the affect that AUSTEL could not become involved, because I was in arbitration.It is both a matter of serious concern AND of public interest that public servants, paid from the public purse, are afraid to reveal information that will affect court or arbitration decisions.In the SVT case, the arbitrator then accepted as fact three sworn affidavits from Telstra, all falsely saying that the SVT process had met all of the Government Regulator specifications. Are we to assume that because Section 70 of the Crimes Act 1914 prohibits public servants from revealing what they uncover during their regulatory duties this act supersedes Australia’s Constitution that every citizen of Australia has a duty of care to report a crime committed against a fellow Australian? Submitting false testaments and known fundamentally flawed reports to an arbitrator as Telstra did in my case, is a crime.

Two Concerned Victoria Police Officers 

In July 2001, two senior Victorian Police Officers, who had been staggered to discover that the Communications Minister’s officers had stopped the Senate Estimates Committee Investigation in 1997/99 from assessing my Telstra matters, passed on to me a damning document headed Senate Estimates Committee Hansard In-Camera 6^th and 9^th July 1998, and stamped ‘Confidential.  I am convinced that this document was sent to me after the Victoria Police Major Fraud Group had been in contact with Carlton & United Brewers who had dismissed as total rubbish Telstra’s arbitration report that the Telstra laboratory had found a ‘wet and sticky substance’, which they identified as ‘beer’, inside my EXICOM TF200 phone, and that this had caused the phone to lock up. 

On 28^th November 1995, six months after my arbitration, I received evidence confirming that Telstra had actually carried out two separate investigations of my phone, two weeks apart, and that the second test report proved that the first one, which had been provided to the arbitrator, was not a true account of the testing process at all but was a total fabrication because actual photos and graphs proved that, when wet beer was introduced into the TF200 phone by Telstra’s laboratory staff, it dried out completely in forty-eight hours.  My phone however was collected on 27^th April 1994 and not tested until 10^th May – a gap of fourteen days.  I now believe that the members of the Major Fraud Group who were involved in my case were also staggered to learn about this evidence, but still neither the TIO Board nor AUSTEL would investigate these Telstra tests. If it would help, I can provide the AAT and the ACMA, in the public interest, with a copy of Telstra’s original, twenty-nine-page TF200 EXICOM Report, and the second set of Telstra’s laboratory findings – the ones that denounce the first report as nothing more than a bogus document that stopped a full and proper investigation into why my telephone service was locking up.

When it became known that I had received the In-Camera Senate Hansard of 6^th and 9^th July COT Cases information I received a letter on 16^th August 2001 Senator Eggleston threatened me with the possibility of legal action when he warned me: 

“…The fact that you have received unauthorised confidential committee documents is a serious matter, but if you disclose these documents to another person, you may be held in contempt of the Senate.” 

I am therefore somewhat limited in what I can say about the confidential documents I received the previous month but I can say that they prove, beyond all doubt, that both sides of Parliament have been fully aware since at least 1998, that when the Coalition Government sanctioned the investigation of only five of the twenty one COT Claimants on the Senate Estimate Committee working list those remaining 16 COT Cases were denied natural justice.

Conclusion

The current WikiLeaks saga provides testament to how people all around the world, Australians included, have had enough of secret deals made by Government Ministers and Regulators (like AUSTEL / the ACMA) and the way Governments conceal information that citizens have a right to know about.  In the COT case issue, the secret information relates to the violation of our rights as an Australian citizen by organisations like Telstra and the TIO’s office, and individuals like Dr Gordon Hughes (the arbitrator) and Peter Bartlett (the TIO’s Special Counsel), none of whom have ever explained why they allowed the COT arbitration agreement to be altered to the determent of the claimants.  I am sure that most Australians would call for an investigation into why a Government Regulator would allow the defence in a legal, Government Regulator-endorsed arbitration process to submit test results that were known to be fundamentally flawed and which had already been covertly condemned as deficient by the same Regulator.

My arbitration submission included references to:

• AUSTEL’s General Manager of Consumer Affairs writing to Telstra’s Steve Black on 12^th April 1994 regarding ‘engineering activity’ in the Cape Bridgewater area, which indicated that Telstra was ‘laying optical fibre’ in the area; and
• A Telstra FOI document (A00253) which notes:  “Existing stocks of Corning cable will be used in low risk / low volume areas”, indicating that Telstra definitely was laying optical fibre cables but, further, that Telstra knew the cable they were laying was faulty which is why they were using it in areas they thought would not be affected by the aculeate coating (CPC3) used on the optical fibre from Corning Inc (US). 
• My concern regarding another statement in document A00253, that: “Optical fibre cable is supposed to have a 40 year working life. If the MacKay & Katherine experiences are repeated elsewhere in the network, in the northern part of Australia, the network is likely to develop attenuation problems within 2 or 3 years of installation”.

TIO arbitration procedural documents dated 30^th April, 1995 confirm this part of my claim was withheld from the TIO-appointed arbitration consultants during the assessment process.

Document 298 to 299 in the Respondent Section 37 Document

It is certainly important that the public be aware that Telstra chooses to install faulty optical fibres into areas they think will not be affected by heat, particularly when this information is added to a statutory declaration dated 4^th September 2006, from Darren Lewis (the new owner of the Cape Bridgewater Holiday Camp) which notes, at point 19,

“Telstra informed us we had what is commonly known in technical words as ‘a line in lock-up’ rendering our business phone useless until the fault is fixed.

It was then that the local technician informed me that as strange as it might seem he believed that because our business was on optical fibre and was so close to the Beach Kiosk (junction box) this could very well be part of the problem. Apparently either under powering or over powering was also an issue.   He realised that after testing all the other optical fibre outlets with his testing equipment and still reached this impossible reading (according to the technical guru) he would move us off of the fibre.

It was on this note that the technician informed me that although it was a back ward step he was going to investigate the possibility of moving the business off the optical fibre and back to the ‘old copper wiring’”.

Could Darren Lewis’ telephone and fax problems, or any of the other Customer Access Network-related problems that Telstra hid from AUSTEL during AUSTEL’s COT investigations be connected to the installation of Corning optical fibre cables?  Could Telstra have installed the faulty Corning Inc (US) optical fibre cable in the Cape Bridgewater area because they thought that area was not heat or moisture prone, just like they thought the area was not moisture prone when they installed the faulty EXICOM TF200 telephone at my business during my arbitration in 1994?  How many residences in Australia are connected via Telstra’s Customer Access Network to faulty Corning Inc (US) optical cable? These are major issues that could be badly affecting unknown numbers of Telstra customers, all over the country, and it is certainly important that, in the public interest, this information is now broadcast to Telstra customers at least, particularly since Telstra’s network is about to be divided up.

EXICOM TF200 phones and Faulty Optical Fibre

We already know about the problems caused when Telstra installed EXICOM TF200 phones in areas they thought were not moisture prone and now we have proof that they thought some areas would not be affected by heat and that it was therefore appropriate to install faulty cable into those areas.  In relation to the EXICOM phones, Telstra’s FOI document D01026 states: 

“Whilst I do not have the total deployment of EXICOM phones available it has been assessed that there is approximately 450,000 phones with potential faults. Of these there are 325,000 Serial 550/141 phones deployed in areas of high moisture. Because of the supply problems Exicom phones will still have to be deployed in areas of lower moisture risk”.

I have already given the ACMA and the TIO’s office irrefutable evidence that Telstra installed two of these EXICOM TF200 phones at my business in 1993 and again in 94 and one of these EXICOM’s were still in use just prior to me selling the business to the Lewis’.  One question that has never been answered is whether or not the problems experienced by the Lewis’, after they took over the business, were caused by a combination of the faulty optical fibre and the faulty EXICOM phones.  I do know though that many trash and treasure markets in rural Victoria, and interstate, were selling EXICOM TF200 phones until quite recently, clearly unaware that the product locked up in moisture-prone areas like Cape Bridgewater or in places like, for example, a fish shop, an indoor swimming pool, a pizza parlour, bakery, or almost anywhere moisture is prevalent.

Even with all this proof of problems with the EXICOM phones, Telstra has never publicly recalled them.  Surely the public therefore now have a right to know (in the public interest) that Telstra and the ACMA are hiding the problems with the EXICOM phones and the faulty optical fibre from the Australian public? How many of these EXICOM TF200s will be purchased in Australia in 2011 by unsuspecting customers wanting a cheap second-hand extension phone? 

Thank you

Alan Smith

Cc The Hon Federal Attorney   

Mr Chris Chapman, Chairman of the ACMA / Ms Alison Jermey. Senior Lawyer the ACMA  

It is important to note that during this second AAT hearing (No 2010/4634), Mr Friedman (Judge) hearing my case stated:

“Mr Smith still believes that there are many unanswered questions by the regulatory authorities or by Telstra that he wishes to pursue and he believes these documents will show that his unhappiness with the way he has been treated personally also will flow to other areas such as it will expose the practices by Telstra and regulatory bodies which affects not only him but other people throughout Australia.

“Mr Smith said today that he had concerns about the equipment used in cabling done at Cape Bridgewater back in the 1990s. He said that it should – the equipment or some of the equipment should have a life of up to 40 years but, in fact, because of the terrain and the wet surfaces and other things down there the wrong equipment was used.”

During this second AAT hearing in May 2011, I again raised the telephone problems that had affected my business from before my arbitration to 1995, stressing that the arbitrator had failed to investigate or address most of those problems, and therefore allowed them to continue for a further 11 years after the end of the arbitration. Since that second AAT hearing, and as a result of Australia’s National Broadband Network (NBN) rollout, which began in mid-2011 and is still continuing today, numerous faults, just like those that I raised during my arbitration and both AAT hearings, have been found to have continued unabated; this can be confirmed by a simple internet search for “Australia NBN”.

One of the documents I provided both the arbitrator in 1994 and the AAT in 2008 and again in 2011 is a Telstra FOI (folio A00253) dated 16 September 1993 and titled Fibre Degradation. It states:

“Problems were experienced in the Mackay to Rockhampton leg of the optical fibre network in December ’93. Similar problems were found in the Katherine to Tenant Creek part of the network in April this year. The probable cause of the problem was only identified in late July, early August. In Telecom’s opinion the problem is due to an aculeate coating (CPC3) used on optical fibre supplied by Corning Inc (US). Optical fibre cable is supposed to have a 40 year workable life. If the MacKay & Katherine experience are [sic] repeated elsewhere in the network, in the northern part of Australia, the network is likely to develop attenuation problems within 2 or 3 years of installation. The network will have major QOS problems whilst the CPC3 delaminates from the optical fibre. There are no firm estimates on how long this may take. …

“Existing stocks of Corning cable will be used in low risk / low volume areas.” (See Bad Bureaucrats File No/16)

Were the citizens of Australia entitled to be advised by the Australian government, before it sold off the Telstra network, that, e.g., the aforementioned optical fibre with CPC3 coating, supplied to Telecom/Telstra by Corning Inc (USA), was installed in their area? How many people in Australia have been forced to live with a subpar phone system, i.e., a known poor optical fibre that Telstra should NEVER have installed? How many businesses have gone up against the wall due to Telstra’s negligent conduct of knowingly laying their existing stocks of Corning cable in locations that Telstra believed were low risk/low volume areas?

Chapters one to three in our Tampering With Evidence page show Telstra was also prepared to re-deplore some 450,000 faulty TF200 telephones to locations where Telstra thought moisture was non-existent. The decision-makers regarding where Telstra installed these moisture-prone phones were certainly not trained in meteorology. I doubt that Telstra or the government advised these TF200 customers when Telstra was sold off, that if they were experiencing phone problems that this was no longer Telstra’s problem or the government’s.

The following link and information on it can also be located on Absent Justice Part 1, Part 2 and Part 3

Dilapidated Copper-wire Network

The following information shows what I revealed in my second Administrative Appeals Tribubal hearing in May 2011 concerning the state of Telstra's network was a true account of how things were then and six years onwards.

An example of the type of corroded copper wire follows > Worst of the worst: Photos of Australia’s copper network | Delimiter

In the world of political and media misinformation that is attached to the NBN, there is one important issue that hasn’t been fully addressed – Does Australia’s copper network meet the original mandatory government regulatory requirements? If this question is answered honestly, it would directly affect billions of dollars in Commonwealth spending.

23 June 2015: Had the arbitrator appointed to assess my arbitration claims correctly investigated ALL of my submitted evidence he would have had to value my claim as an ongoing problem NOT a past problem as his final award shows. It is clear from the following link dated > Unions raise doubts over Telstra's copper network; workers using ... that when reading in conjunction with Can We Fix The Can which was released in March 1994, these faults copper-wire network faults have been in existence for more than 24-years.

3 December 2015: I reiterate, Telstra continued to conceal this type of sensitive material from AUSTEL from as far back to before our 1994 arbitrations. And here this news artcle has led to a huge blowout in Australia's National Broadband budget roll-out. The total bill to fix the faulty copper lines was estimated last year at $641M. “[N]ow we find out the cost of upgrading the copper has blown out by almost 900 per cent”. (http://www.smh.com.au/technology/technology-news/nbn-faces-another-potential-cost-blowout-leaked-document-shows) If Telstra, the TIO and the COT arbitrator had not concealed the truth surrounding what the COT Cases had uncovered surrounding Telstra's ailing copper-wire network, the cost would have been significantly (millions upon millions) less than what it has cost the current government.

9 November 2017: Sadly, many Australians in rural Australia can only access a second-rate NBN. This didn’t have to be the case: had the Australian government ensured the arbitration process it endorsed to investigate the COT cases’ claims of ongoing telephone problems was conducted transparently, it could have used our evidence to start fixing the problems we uncovered in 1993/94. This news article See https://theconversation.com/the-accc-investigation-into-the-nbn-will-be-useful-but-its-too-little-too-late-87095 and Chapter 3 Lies under oath. again shows that the COT Cases claims of ailing copperwire network was more than valid.  

Almost two decades after this cover-up had been executed, with the government spin doctors successfully branding my claims as frivolous and me as a vexatious litigant, I have been left the government stopped financing the roll-out of the National Broadband Network (NBN), which still utilises part of the existing, seriously degraded copper network. In fact, the “… state of the copper network is considerably worse than expected, leading to extensive work beyond the node,” say leaked documents.

28 April 2018: This ABC news article regarding the NBN see >NBN boss blames Government's reliance on copper for slow ... needs to be read in conjunction with my own story because had these lies told under oath by so many Telstra employees had not occurred then the government would have been in a better position to evaluate just how bad the copper-wire Customer Access Network (CAN) really was just 4-years ago.

Sadly, as the above many Australians living in rural Australia can only access a second-rate NBN. This didn’t have to be the case: if the Australian Government had ensured the arbitration process they endorsed to investigate the COT cases’ claims of ongoing communication problems had been conducted lawfully.

The following three A Current Affair YouTube exposes similar COT type phone complaints raised by our COT group in 1994. Australia still has an inferior telecommunications NBN network 27-years after the COT Cases exposed these problems during a government-endorsed arbitration process that was supposed to have fixed these problems.

 

26 May 2011 (No 2010/4634) show I maintained my Freedom of Information applications to ACMA should be provided free of charge, in the public interest, including all of the requested information both Telstra and AUSTEL withheld during my government-endorsed arbitration process. Senior AAT member Mr G D Friedman considered this AAT hearing and it is now apparent that Mr Friedman was unaware that the government solicitors (AGS) and ACMA based their defence of my claims on the inaccurate DCITA COT archival documents, including the sanitised public AUSTEL COT report released in April 1994. Neither document includes the true (and very adverse) findings that AUSTEL had originally reached in relation to Telstra’s dealings with me (see AUSTEL’s Adverse Findings).

ADMINISTRATIVE APPEALS TRIBUNAL

Statement of Facts and Contentions

 

Introduction Part 1

Malfeasance, Felonious, and Illicit Dealings. Legal repercussions of malfeasance. Addressing felonious activities

It is important that the AAT understand that, back in August 1992, five ordinary small business operators, three from Victoria and two from Queensland, came together in an attempt to force Telstra to supply them with telephone services comparable to their business competitors. This group originally called themselves the Casualties of Telecom (later changed to the Casualties of Telstra) or COT Cases for short. One of the five, Shelia Hawkins, left the group at the end of 1992. After an audit of Telstra’s fault handling process by Coopers & Lybrand in late 1993, and a Government investigation into the COT’s complaints, which had by then escalated to some sixteen small businesses, it was clear that Telstra needed a testing process to would determine if the faults being lodged by Telstra customers were genuine or not. Together with AUSTEL (the Government Communications Regulator), Telstra then set up a process called Service Verification Testing (SVT), designed to meet all of AUSTEL’s mandatory specifications regarding the success of calls going out of a customer’s premises and, more importantly, the success of calls coming into the customer’s premises. The AUSTEL / COT Cases public report that was provided to the Hon Michael Lee MP on 13^th April 1994 confirms that, in a pending settlement process for the Difficult Network Fault (DNF) COT Customer complaint, this SVT process was to be used to prove that there were no more problems affecting the customer’s service.

Introduction Part 2 

This current sixteen-page Statement of Facts and Contentions has been condensed from a draft document entitled Section 70 of the Crimes Act 1914 (Australia), which totals 283 pages and 834 accompanying exhibits, including earlier letters I have written to the Australian Communications and Media Authority (ACMA) between 7^th February and 20^th October 2010, which the ACMA (the Respondents) have compiled as The Respondents Section 37 Documents.

In my 20^th October 2010 letter to the AAT I have claimed that the ACMA has a conflict of interest in my FOI matters and that AUSTEL (now the ACMA) have concealed, from both the Government and the public, that in some cases at least, AUSTEL knew that Telstra’s SVT process was fundamentally flawed (see below) but still AUSTEL allowed Telstra to submit these flawed SVT reports to the TIO-appointed arbitrator.  Evidence contained in documents 103 and 104 in The Respondents Section 37 Documents, namely CCAS data from the 29^th September 1994, the day Telstra conducted their SVT process at my business, has been analysed by Brian Hodge MBA who worked for Telstra for twenty-nine years as a technical specialist before going out on his own.  Mr Hodge’s report dated 27^th July 2007, which was provided to the ACMA in 2008, states that Telstra did not perform the mandatory incoming Service Verification Tests into my business. 

On page 12 below I suggest a way that, using the AAT platform, the ACMA can prove once and for all that they have no conflict of interest in relation to protecting past Commonwealth Officers who allowed Telstra to submit their flawed SVT reports, under oath, to an arbitrator.  My suggestion is that the ACMA simply appoint two independent technical consultants to assess Telstra’s CCAS Data for the 29^th September, 1994 and provide advice as to whether Telstra did carry out the mandatory AUSTEL incoming tests to my service lines 055 267 267, 055 267 230 and 055 267 260 on 29^th September 1994. After all, the general public has a right to know whether the current ACMA Chairman, Mr Chris Chapman, and the ACMA Board are truly independent and are prepared to show their independence by having this CCAS data assessed because it will be of public interest if the ACMA, which is overseeing the present splitting up of Telstra’s network, is truly an independent regulator, protecting the rights of ALL Australians.

If Mr Chapman refuses to have the ACMA involved in this elimination process because of Section 70 of the Crimes Act 1914, which prohibits a Commonwealth officer from disclosing any fact or document which has come into their possession by virtue of them being a Commonwealth officer, then it is in the public interest that Section 70 of the Act is revised. I believe most Australians will be horrified to learn that because of an old and out-dated Crimes Act the ACMA has been unable to disclose publically their knowledge of how Telstra knowingly submitted false information under oath to an arbitrator and how that submission stopped the claimant from having his ongoing telephone faults rectified during and after his arbitration.      

Section 70 of the Crimes Act 1914

Since my arbitration was endorsed by the Government Regulator, AUSTEL, on behalf of the Federal Government, then I believe it is certainly in the public interest (see page 13, following) for Australian citizens to know that, in Canberra, on 21^st March 1995, two Commonwealth officers advised me that AUSTEL knew that Telstra, the defendants in my arbitration process, had knowingly relied on two flawed reports to support their defence of my claims (the Cape Bridgewater Bell Canada International (BCI) test report and the AUSTEL-facilitated Cape Bridgewater Holiday Camp Service Verification Test report), but AUSTEL was powerless to intervene.

I believe it is a matter of public interest that during a Government endorsed arbitration process:

1. Three senior Telstra executives held positions on the TIO Board and the TIO Council at the same time as one of them was the subjects of the TIO-administered COT arbitrations.  We believe the positions that these Telstra executives held on the TIO Board and Council may well be why there has never been a proper or transparent investigation into Telstra’s conduct during the COT arbitrations, for example:  when two of the first four original COT claims were being assessed by the TIO-appointed arbitrator, a Senate Committee had already been investigating one of the Telstra TIO Board members for misleading the Senate regarding the telephone exchanges that the businesses of these two COT claimants were connected to – exchanges that were then also part of the COT arbitration investigations. 
2. In 1994, AUSTEL (now called ACMA), investigated and prepared draft reports regarding the telephone complaints that had been lodged by eight COT claimants including me.  It took sixteen years before Graham Schorer COT Spokesperson and me were finally given copies of these draft reports, in November 2007 and October 2008, and it was then clear that, back in 1994, AUSTEL had found, in both cases, that Telstra had misled and deceived us both concerning our ongoing telephone problems.
3. That Australian citizens can be assured that the legally binding arbitration agreements they have signed were drafted by the arbitrator in consultation with the Special Counsel attached to the TIO, only to learn, after the agreements were signed, that the defendants in the case (Telstra) had actually drafted the agreement so as the claimants had no chance of accessing FOI documents during the period allowed in the arbitration agreement.
4. Documents released in late 2007, years after the arbitration, proved that covert changes had been made to the ‘final’ version of the arbitration agreement, after it had been sent by the arbitrator to the Solicitor representing the claimants for his opinion but before the Solicitor’s clients (the claimants in the case) had signed it, without the Solicitor or his clients ever being notified of the changes on the day it was signed

Document 381 in the Respondent Section 37 Document

Is a report prepared by me totalling 164 pages and 486 supporting exhibits dated 4^th May 2010 to Simon Clearly, Acting (TIO) transcribed onto a CD disk. Various exhibits and statements in this report confirm that secret meetings with Telstra, Telstra’s Corporate Directorate, Dr Hughes (Arbitrator), Warwick Smith (TIO) and Special Counsel Peter Bartlett convened a meeting on 22^nd March 1994, without the COT Cases having representations to discuss the arbitration agreement. Telstra’s transcript of this meeting FOI folio 000136/000138 states under the heading Exclusion of Liability for Arbitrator’s Advisor that:

“...Mr Bartlett (Special Counsel) stated that he was unhappy that Telecom did not appear prepared to allow his firm an exclusion from liability. Mr Smith (Warwick Smith) stated that he thought it was reasonable for the advisors to incur some liability, and that the only matter left to be negotiated on this issue was the quantum of the liability caps. Mr Black (Telstra) said that he thought the liability caps proposed by Telecom in the amended rules were already reasonable”

Exhibit AS 333-a, also on the CD, is a letter dated 12^th April 1994 from Dr Hughes to Peter Bartlett, noting:

“I appreciate that one claimant has already executed the agreement in its current form. The others will no doubt be pressed to do likewise over the next few days. I further appreciate you will be reluctant to introduce additional changes to the draft procedure at this delicate stage of negotiations but it is of course also fundamental that account be taken of the concerns raised by members of the Resource Unit. Perhaps the agreement should be executed in the current form and then agreement sought from the parties to vary the terms to take into account any proposals by Ferrier Hodgson or DMR which you agree are reasonable”. 

Although the 12^th April, 1994 letter was only copied to the TIO (Warwick Smith) and J Selek & J Rundell of Ferrier Hodgson (the Arbitrators Resource Unit), it now has a Telstra FOI number folio (A59257) allocated to it, confirming that Telstra saw this letter, probably either before or shortly after we signed the agreement.  Since it was not officially copied to Telstra it would seem that perhaps Telstra (or their lawyers) noticed the alterations to clause 24 and the removal of the liability caps for Ferrier Hodgson (inc clause 25) and DMR the technical consultants (in clause 26) when Peter Bartlett (Special Counsel) couriered the agreement to Telstra on 21^st April 1994, after we had signed it.  Or did Dr Hughes and Peter Bartlett allow us to execute the agreement “in the current form”, as Dr Hughes suggested in his letter of 12^th April, and then allow Telstra themselves to alter the agreement while they still had it in their possession?  Although Peter Bartlett wrote to COT spokesperson Graham Schorer on 22^nd April 1994, advising him that Telstra had signed the agreement on 21^st April, we did not get the Telstra signed arbitration agreement until eight days later.  Could it be that the changes were made some time during those eight days perhaps?  What we do know for certain is that Graham Schorer, our lawyers and I believed we were signing the same agreement that the first claimant, Maureen Gillan, had executed on 8^th April because our lawyers had received the same (unsigned) version for their comment, faxed from Dr Hughes’ office, on 19^th April 1994.

The fax imprint on these two identical agreements Exhibits AS 429 and 430 on the CD were faxed from Dr Hughes’ office by his secretary, Caroline Friend, to Mr Alan Goldberg QC and William Hunt, solicitor between 1:20 and 2:00 pm on 19^th April 1994.  Each fax included an unsigned copy of the arbitration agreement, the same agreement that had already been executed by Maureen Gillan on 8^th April 1994 (the claimant referred to by Dr Hughes in his 12^th April letter to Peter Bartlett). It is these two identical agreements that Alan Goldberg QC, William Hunt, Graham Schorer COT spokesperson and I believed were signing on 21^st April 1994.

Document 232 to 244 in the Respondent Section 37 Document

This document, which includes a copy of a letter dated 22^nd June 1994, from Telstra’s Steve Black to Peter Bartlett and an attached copy of the arbitration agreement that was to be used for the following twelve COT claimants (with the $250,000.00 liability caps replaced) was faxed to AUSTEL/ACMA from the TIO’s office which seems to indicate that the Government Telecommunication Regulator, AUSTEL/ACMA was also involved in the collusion referred to immediately above.

Document 35 to 48 in the Respondent Section 37 Document 

On page 5 of my 7^th February 2010 FOI request I explain that AUSTEL was advised that Telstra was secretly altering FOI documents so as to minimise Telstra’s liability, before they were released to the COT claimants and that Telstra’s Steve Black had been named as the ringleader of that process.  This was the same Steve Black who signed the altered arbitration agreement and the same Steve Black who sent a copy of the new version of the agreement (prepared for the following twelve COT claimants, with the liability caps replaced) to Peter Bartlett on 22^nd June 1994.

Exoneration from liability

Attachments to my letter to Julian Burnside QC dated 9^th December 2010 (copied to the AAT and ACMA) and on the CD in The Respondents Section 37 Documents clearly prove that the arbitrator’s Resource Unit did not investigate at least 3,000 of my submitted claim documents.  Some of those documents are referred to in the conclusion of this Statement of Facts and Contentions, which explains how Telstra laid optical fibre they knew was faulty, and redeployed back into circulation hundreds of thousands of EXICOM TF200 touchphones even though they knew that both the optical fibre and the touchphones had serious faults associated with them.  My arbitration claim recorded all this but the Resource Unit ignored these two vital issues and I suspect they decided to ignore these matters because they knew they had been exonerated from any liability in relation to my arbitration.  This is a matter that is in the public interest because, if the arbitrator and special counsel had not made those secret alterations to my arbitration agreement then the Resource Unit would have been compelled to address these matters and this faulty equipment would have been recalled sixteen years ago; and who knows how many members of the public would have therefore been supplied with telephones and telephone lines that worked as it was meant to, instead of battling for years with seriously faulty Telstra equipment.

Document 303 in the Respondents Section 37 Documents

This is AUSTEL’s draft of their Alan Smith Cape Bridgewater Holiday Camp report dated 3^rd March 1994.  The following points are particularly relevant:

Point 209 states:

 “Cape Bridgewater Holiday Camp has a history of service difficulties dating back to 1988. Although most of the documentary dates from 1991 it is apparent that the camp has had ongoing service difficulties for the past six years which has impacted on its business operations causing losses and erosion of customer base”.

Point 210 states:

“Service faults of a recurring nature were continually reported by Smith and Telecom was provided with supporting evidence of this in the form of testimonials from other network users when were unable to make telephone contact with the camp”.

Point 212 states:

In view of the continuing nature of the fault reports and the level of testing undertaken by Telecom doubts are raised on the capability of the testing regime to locate the causes of faults being reported”.

In relation to this type of testing regime, it needs to be noted here that it seems as though the failure of the testing regime to “locate the cause of faults being reported” may be linked to AUSTEL/ACMA allowing Telstra to limit their mandatory parameter testing regime.  If this matter is not in the public interest then please consider a Telstra email dated 20^th December 1993 (FOI document A00354) which discusses this same testing parameter performance standards noting: 

“I understand there is a new tariff filing to be lodged today with new performance parameters one of which commits to 98% call completion at the individual customer level. Given my experience with customer disputes and the recent BCI study, this is cause for concern. We will not meet this figure in many exchanges around Australia particularly in country areas”. 

My records show that, during the period when AUSTEL allowed Telstra to limit this testing regime, AUSTEL and Telstra received over 2,644 customer complaints from just one survey and 4% (105) of the customers who responded to that survey stated they had experienced one or more of the COT type service difficulties and faults.   

Telstra v Golden Messenger Federal Court Action

On 3^rd November 1990, during Graham Schorer/Golden Messenger’s Federal Court proceedings against Telstra, Telstra’s Trevor Hill advised Telstra’s Peter Gamble (FOI folio C04550/C04551) that: 

“The Australian Government Solicitors, on behalf of Telecom, has written to the solicitor acting for Golden Messenger seeking their undertaking not to disclose to their client or others the content of the report on the North Melb exchange. To date, there has been no response.”

Graham Schorer, official spokesperson for COT, has told me that he did not receive a copy of the North Melbourne Exchange report from his solicitor at any time during his Federal Court action.  One of the two solicitors representing Graham Schorer in his Federal Court action was Dr Gordon Hughes, who later became TIO-appointed COT Arbitrator and then covertly sanctioned the alterations to the COT arbitration agreement after it had been faxed, unchanged, from Dr Hughes’ office to our lawyers, for their legal opinion.  Dr Hughes never did reveal his previous involvement with Golden Messenger in relation to Graham Schorer’s telephone matters and this must be a matter of some concern considering that Dr Hughes then chose to allow Mr Schorer more than two years in which to reply to Telstra’s arbitration defence of Golden Messenger claims, which included the North Melbourne Exchange matter, but only allowed me fifteen days to address Telstra’s defence.  Could it be that Dr Hughes subconsciously but compassionately provided Mr Schorer with more time because he (Dr Hughes) had already read the North Melbourne Exchange Report during Mr Schorer’s Federal Court case and was therefore aware of how bad the Exchange really was?

This serious conflict of interest in relation to Graham Schorer/Golden Messenger’s Federal Court proceedings put Dr Hughes in a precarious position; perhaps Telstra used this situation by threatening to reveal his past association with Graham Schorer/Golden Messenger earlier Federal Court proceedings against Telstra. Could this be why Dr Hughes never challenged Telstra’s false, sworn witness statements that my claim advisor (Garry Ellicott, ex-Detective Sergeant with the Queensland Police and ex-Senior National Crimes Investigator) declared had perverted the course of justice during my arbitration? 

It is important that the AAT and the ACMA carefully consider the ramifications of AUSTEL’s draft report on the Graham Schorer/Golden Messenger/GM Melbourne Holdings Pty Ltd matter, particularly points 38 and 43, (which I provided the AAT in my letter of 20^th October 2010), because they show that Telstra had been deliberately misleading and deceiving this company for years and had even hired a private investigator as part of their involvement with GM Melbourne Holdings, which is confirmed by a letter dated 3^rd March 1992 from the Australian Government Solicitor to Telstra’s Corporate Secretary, re “Telecom-ats-GM (Melbourne) Holdings Pty Ltd” which states:

“I enclose a certified claim for payment for the sum of $295.00 being amount payable to Equity Adjusters for professional services.” 

Telstra FOI document folio C05313 dated 15^th March 1993

“re AOTC ats GM (Melbourne) Holdings Pty Ltd”, notes: “Investigator’s Report and enclosing letter from Equity Investigators. I apologise for the state of the handwritten statement in the Investigators Report.”

These two FOI documents prove that Telstra had employed Equity Adjusters over a number of years in relation to Golden Messenger/GM Melbourne Holdings Pty Ltd, but the most important issue here is that Telstra must have misinformed the Government Solicitor regarding the issue of Telstra’s misleading and deceptive conduct towards Golden Messenger, an issue that was later included in AUSTEL’S draft report at points 38 and 43.  It is therefore a matter of public interest that the Federal Government paid the sum of $295.00 to Equity Adjusters, from the public purse, particularly since we now know that Telstra not only misled and deceived Golden Messenger in relation to their ongoing telephone problems but they also tricked the Government Solicitor into handing over public money in relation to a crime committed by Telstra on an Australian citizen

Senate Estimates Committee Investigation re COT / FOI requests

I believe it is a matter of public interest that:

• The then-Federal Coalition Government in 1997 and 1998 only investigated five of the twenty-one COT claimants complaints of not receiving relevant FOI documents during their government endorsed arbitration’s;
• The claims of the remaining sixteen COT Cases were ignored because the Government was concerned about the time frame of assessing (the remaining claims) because such an investigation would impede upon the then-pending privatisation of Telstra.

In-camera Senate Estimates Committee Hansard reports dated 6^th and 9^th July 1998, state that one Senator actually told a senior Telstra Executive that he agreed with:

“... the chair. We have a difficulty. In many senses we all say, ‘For God’s sake Telstra, just give the last four all half a million or a million dollars each and stop it immediately.’ But that would be an injustice to the 16 or whatever you have settled.” 

Injustice or not, as a result of the Senate’s involvement, the first five of the sixteen COT claimants did eventually get some of the FOI documents they had asked for and receive compensation as a result of the Senate investigation.  The remaining sixteen COT claimants however, who were also on the Senate Estimates Committee’s list, were not provided all the FOI documents they were entitled to, nor did they receive compensation from Telstra through this Senate Estimates investigation, even though they had been told that, whatever the outcome of the first five ‘litmus test’ COT cases, the following sixteen would be treated the same. If this isn’t discrimination of the worst possible kind against sixteen Australian citizens by the then-Federal Government, then what is?

I believe it is a matter of public interest that three Senators I know of (there could be more) have tried desperately to organise for these claimants to have access to the type of documents that the other five claimants had access to as well as some sought of compensation for those remaining sixteen COT claimants, but this has not eventuated.  In fact, there was one occasion when a Senator phoned my home at 7.45 one morning to inform my partner and me that he had achieved a breakthrough it was a done deal, only to be stopped by those with a vested interest in concealing the type of evidence that is included in my 26^th July 2008 AAT Statement of Facts and Contentions and in this current Statement of Facts and Contentions.  All this evidence proves that the COT / Government-endorsed arbitrations were not conducted according to the promises pledged to the then-Labor Minister for Communications, the Hon Michael Lee MP; the then-Shadow Minister for Communications, Senator Richard Alston; Senator Ron Boswell of the National Party; and the Australian Democrats. 

25^th March 1994:  The Commonwealth Ombudsman, Ms Philippa Smith, wrote to Telstra’s CEO, Frank Blount, advising him that Telstra’s Steve Black had advised her Director of Investigations, John Wynack, that Alan Smith was not being provided with FOI documents because of:  

“...the need for Telecom to check all documents prior to release so that Telecom is alert to the possible use/misuse of sensitive information. Your officers also informed Mr Wynack that they expected the vetting of the documents would take only a couple of days.”

On 7^th July 1994 I wrote to the arbitrator, complaining that Telstra had advised me that they would not supply any more FOI documents because I had previously provided the Australian Federal Police with documents confirming that Telstra had intercepted my telephone calls without my knowledge or consent.  Dr Hughes did not respond, so I then sought assistance from Senator Ron Boswell asking for his help and, on 29^th November 1994, at a Senate Estimates Hearing, Senator Boswell asked Telstra: 

“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 investigations?” 

I have never seen Telstra’s official response to this question (if one was ever made) although after ten months later, on 7^th September 1995, Telstra did advise the TIO that they had withheld 40% of the FOI documents I had legally requested until two weeks after my arbitration had been deemed to be complete.

12^th May 1995: Two hours after Warwick Smith (TIO) received a fax from Dr Hughes advising that the COT arbitration agreement he had just used to deliberate on the first of the COT claimants (Alan Smith) needed revising before it was used for the next three cases because it was not ‘a credible document’ and because: 

“… there are some other procedural difficulties which revealed themselves during the Smith arbitration and which I would like to discuss with you when I return”, Warwick Smith issued a public statement to the media, noting:  “The Administrator noted that the arbitration process, under the direction of the independent Arbitrator Dr Gordon Hughes, appointed with the agreement of the parties, had been run in accordance with principals of natural justice.”  

In August 1995 I discovered just what the “procedural difficulties” that Dr Hughes referred to were, when my claim documents were returned to me and I discovered that, on 30^th April 1995, the arbitration technical resource unit had advised the arbitrator that they were still weeks away from finalising their investigation into the full extent of the billing problems that were affecting my business.  This information was, however, withheld from both my technical advisors and me, and Dr Hughes handed down his award in relation to my claims when only 20% of my claim documents had been assessed.  This information has been passed on to the TIO and ACMA Boards numerous times since 1995 and can also be supplied to the AAT on request.

22^nd June 1995: six weeks after Dr Hughes brought down his findings using the agreement he declared not credible and a technical report that was incomplete Telstra released under to me under FOI conclusive proof that the Bell Canada international Cape Bridgewater tests were impracticable. When I raised this fresh evidence with the new TIO John Pinnock and Dr Hughes on 21^st June 1995 the TIO office faxed their concerns to Peter Bartlett at Minter Ellison stating:

“Re Alan Smith, John (John Pinnock) wants to discuss it on Monday, and what the approach should be re parties seeking to revisit issues post Arb’n (Arbitration) His position is not to open the can of worms, but would like to discuss strategy with you – regards Pia     

11^th July 1996: AUSTEL provide their sixth COT Cases quarterly report to Senator Richard Alston, Minister for Communications noting:

“...The TIO believes that Telstra has, in all claims, responded in an overly legalistic manner. It has shown tendency to deny liability under every potential clause of action on the basis of perceived statutory and contractual immunities. In short, while the arbitration procedure has sought to relax the legal burdens, Telstra’s conduct has certainly not”.

20^th August 1997: Ben Dunn, Barrister Michael Brereton & Co wrote to Senator Ron Boswell Re: Alan Smith v Telstra Corporation noting:

“...It seems clear that at the time of reaching the initial settlement with Telstra, Mr Smith had not been fully informed by them of the extent of the problems with the exchange and that Telstra, wittingly or unwittingly, withheld information relevant to the settlement to Mr Smith’s detriment, The conduct of the arbitration which followed was highly dubious and open to attack as inviting questions of bias since the arbitrator ruled out many relevant documents to the detriment of Mr Smith’s claim. All of these circumstances and the fact that the entire arbitration was conducted in a highly legalistic manner much in favour of Telstra on rules it forced into place suggest that Mr Smith was less than fairly dealt with by Telstra and the arbitrator”.

26^th September 1997: During the Senate Estimates Committee investigation into the COT Cases FOI issues John Pinnock (TIO) advised the Committee that: 

“...the arbitrator had no control over the process, because it was a process conducted entirely outside the ambit of the arbitration procedures”. 

27^th January 1999: Senator Kim Carr, Manager of Opposition Business in the Senate (and now Minister for Science) wrote to me noting: 

“The appalling manner in which you have been treated by Telstra is in itself reason to pursue the issue, but also confirms my strong 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.” 

23^rd March 1999: after the Senate Estimates Committee Hearing into the COT arbitrations had been completed, the Australian Financial Review reported that the Chairman of the Committee, Senator Eggleston, had stated:   

“A Senate working party delivered a damming report into the COT dispute. The report focussed on the difficulties encountered by COT’s 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 above statement made by Senator Eggleston that: “They [Telstra] – is to act as a law unto themselves”, coincides with a letter I received two days previous dated 21^st March, 1999 from J R Perry of Perry & Associates Pty Ltd addressed to the Casualties of Telstra C/- The Small Business Show Channel Nine noting: “

...I watched your show on Sunday morning carrying the piece of Telstra. I was interested to hear of Telstra’s lies under oath, destruction of evidence, etc, etc. I started a law suit 21/2 years ago against Telstra for breach of contact during their cable TV rollout. They have placed every obstacle in our way and dragged the case out to try to bleed us dry. They sent dozens of contracting companies such as mine to the wall by manipulating markets and breaching contracts. Only 3 companies have had the resources to fight them. Unfortunately two company owners have allegedly committed suicide due to the loss of their homes and families as a consequence of Telstra’s actions, although this would be difficult to prove. We also have found the following: – Destruction of evidence from the first day of the suit – False affidavits from Telstra management – Withholding discovery documents”

Australian Democracy Telstra Style  

On 12^th December 1994, Telstra declared to the arbitrator (under oath), that the Telstra Corporation had no case to answer in relation to my claims.  In support of this statement Telstra submitted twelve witness statements, five bound volumes of supporting documents, a highly legalistic submission, two fundamentally flawed technical reports, a request for further and better particulars and a demand that I respond to Telstra’s interrogatories.  It cost me close to $200,000.00 to submit professionally prepared financial and technical claims and a response to Telstra’s interrogatories but, before I even began that expensive process, AUSTEL had already found strongly against Telstra in their draft report (see document 303 to 379 in the Respondents Section 37 Documents). Since 1995 I have invested a further $240,000.00 in expenses in (so far) an unsuccessful attempt to have these matters investigated.  I am now auctioning my family home on 12^th February 2011 due to this ongoing financial and emotional stress.  

I believe it is in the public interest and the public certainly has a clear right to know that, during a Government-endorsed legal arbitration process, a Government-owned corporation (as Telstra was in 1994) could submit so many sworn documents in support of their claim that they had no case to answer when:

1. AUSTEL had already provided Telstra with AUSTEL’s draft findings in relation to my matters, on 3^rd March,1994 noting: “...it is apparent that the camp has had ongoing services difficulties for the past six years which has impacted on its business operations causing losses and erosion of customer base;  
2. Before Telstra submitted all these documents to the arbitration they already had a document titled Telecom Secret Folio C04006/7/8 which recorded:  “...Many letters stating the problem of not getting through to Alan Smith. Legal position – Mr Smith’s service problems were network related and spanned a period of 3-4 years – given his evidence and claims. I do not believe it would be in Telecom’s interest to have this case go to court. Overall, Mr Smith’s telephone service suffered from poor grade of network performance over a period of several years”.

Document 35 to 75 in the Respondent Section 37 Document (Under surveillance)

These include a copy of my FOI request of 7^th February 2010, which records how transcripts of a meeting with the Australian Federal Police on 26^th September 1994 confirm that evidence given to the AFP by AUSTEL proved that my telephone conversations had been intercepted over an extended period.Documents 81 and 63, sworn affidavits from Robert Hynninen of the ATO (previously an ex-Victoria Police Detective Sergeant) and Des Direen, an ex- Principal Investigator for Telstra, show that they both believe that, while the Victoria Police Major Fraud Group was investigating COT issues between 1998 and 2000, Detective Sergeant Rod Kueris, who was in charge of the investigations, was kept under surveillance and that both his office at the Major Fraud Group’s headquarters in St Kilda Road and his private residence telephone services were illegally interfered with.This invasion of Mr Kueris’s privacy finally ruined his life and his police career and he resigned from the police force, as Mr Direen recorded at points 12 and 19 in his affidavit.

I believe Mr Kueris will remember that, between 1999 and 2000, while I was assisting the Major Fraud Group with their enquiries, I advised him that faxes from my office to his office (on two occasions) did not arrive and that I believed, on at least one occasion, that I was followed from my Queens Road (Melbourne) unit on route to the Major Fraud Group’s St Kilda Road offices.

Document 43 in the Respondents Section 37 Document

On page 9 of this document I provided advice that, on 7^th January 1999, Scandrett & Associates Pty Ltd, Telecommunications Consultants (Queensland) wrote: “

In our opinion these additional “facts” would make it almost certain that COT persons did not perform any alteration to the headers of the faxes involved. The second possibility is that a party or parties with access to the Telstra network on a national basis and the ability to selectively intercept and resend facsimiles have interfered with or used the national network of Telstra to intercept and resend these faxes. In summary then it appears to be almost certain that faxes are being intercepted and resent, with an attempt to hide the same, to the receiving party”;

and on 11^th January 1999, Peter Hancock of Total Communications Solutions (Victoria) wrote in his statutory declaration that:

“It is my opinion from the evidence provided that a third party has been intercepting all of the faxes referred to above. In my experience there is no other explanation for the discrepancies in the facsimile footprints in question. I have read the report of Scandrett & Associates Pty Ltd and concur with its contents”.

My 2010 FOI request of 7^th February asks the ACMA to provide all the documents referred to in the Australian Federal Police transcripts as being provided to the AFP by AUSTEL.I believe it is important for the AAT to know that no-one has ever addressed the issue of the invasion of my privacy, even though AUSTEL (a Government Regulator), Dr Hughes (arbitrator) and Warwick Smith (TIO) assured all the COT Cases that these privacy issues would be addressed during their arbitrations. Although I now have conclusive proof that Telstra knew when my secretary left my office at various times when I was away in Melbourne including, on one occasion, noting the dates I would be away from my office weeks before those trips occurred, and in one occasion Telstra was able to document that one of my regular callers happened to telephone me from a different location than normal.

I believe most Australians would be astounded to learn about the following documents and the events they relate to:  

1. On 29^th October 1993 a Telstra FOI document (folio K01489) confirmed that Telstra knew that faxes sent from my office were arriving at their intended destinations as blank sheets of paper, without the imprint of my business identification or the date it was sent displayed on the received document;
2. On 18^th March 1994 Telstra advised AUSTEL that they would only intercept faxes after receiving permission from the customer;
3. On 14^th April 1994 a Telstra file note admitted that Telstra intercepted my telephone conversations over an extended period.  I certainly never gave my permission for this to occur; 
4. On 15^th April 1994, an article in the Herald-Sun newspaper reported that:  “Former Prime Minister Malcolm Fraser yesterday demanded Telecom explain why his name appears in a restricted internal memo. He said he had never contacted Telecom about the subject of the memo. Mr Fraser’s request follows the release of a damming government report this week, which criticised Telecom for recording conversations without customer’s permission. Mr Fraser said Alan Smith, of the Cape Bridgewater Holiday Camp near Portland phoned him early last year seeking advice on a long-running dispute with Telecom which Mr Fraser could not help”;     
5. On 22^nd April 1994 AUSTEL wrote to me, confirming that, although their fax journal showed three separate faxes from me arriving at their office, with each process recorded as lasting between 1 minute 30 seconds and 2 minutes 40 seconds, the documents arrived completely blank, and did not include the imprint of my business identification or the date it was sent (see also point 1);
6. On 26^th September 1994 I met with the AFP in relation to my Telstra matters.  Transcripts of that meeting indicate how shocked the AFP officers were to see Telstra file notes from as far back as 1992 showing that Telstra was recording my activities, including noting the name of a bus company that I had tendered to for a contract (which I did not win); 
7. During my Government-endorsed arbitration) an internal Telstra email, from Bruce Pendelbury to David Stockdale, notes that:  “Mr Smith is absent from his premises from the 5/8/94 to 8/8/94”;
8. On 23^rd January 1997 an internal Telstra email from Stephen Mead of Telstra’s Corporate Directorate asks:  “Do we have (name deleted) under surveillance?; 
9. On 27^th June 1997 a private detective agency (International Detection Services) hired by Telstra, wrote to Telstra’s Corporate Security to report that:  "We have been attending this address on other matters as you are aware. The home is a low set brick residence and appears neat and tidy. There is a weldmesh security door at the front of the home”, proving that another COT claimant was clearly also under surveillance;
10. Between 1994 and June 1998 two different secretarial services and an education consultant confirmed problems receiving faxes from and sending faxes to my office; 
11. On 30^th January 2000 a third secretarial service, Dial a Secretary, confirmed problems receiving faxes from my office;
12. On 23^rd December 2002 I wrote to Tony Shaw Chairman of the ACA. A copy of this letter has since been returned to me from the ACA and it is clear that this letter was also intercepted before being redirected on to the ACA.  The markings on this document and those described are same type of documentation assessed by Scandrett & Associates and Peter Hancock (see above) which they labelled as having been intercepted; 

 

Document 303, the Respondents Section 37 Document 

Point 9 of this document describes how it is of public interest that, as a result of AUSTEL deciding NOT to survey other Cape Bridgewater residents in 1994 Mr Barry Sullivan lost his Cape Bridgewater building business during this period.  On the 8^th November 2002, I received a letter from Mr Sullivan, in which he advised: 

“I am writing to you following viewing the Channel 9 Sunday Program on 3/11/02. After viewing the Sunday program, I realised the similarities your business and others had with Telstra some ten years ago with the similarities our building business had, when we lived at Bridgewater. During a period of time between the late 1980s and early 1990s we had a considerable amount of difficulty with our phone. Our phone problem had such a negative effect on our building business over a period of time that our work dried up and our business shut down. Our business had been running successfully for several years prior to the phone problems”.

Like Mr Sullivan, the ongoing telephone problems that were not investigated during my arbitration had such a negative effect on the viability of our business my partner and I had to sell the holiday camp in December 2001, to Darren & Jenny Lewis. Had AUSTEL chose to force Telstra (under their licensing conditions) to investigate why my business was still suffering from the same ongoing phone problems that had forced Barry Sullivan out of business the same ongoing phone telephone problems that AUSTEL acknowledged in their covert draft report (see Document 378 in The Respondents Section 37 Document) at point 209, which states:   “...it is apparent that the camp has had ongoing service difficulties for the past six years which has impacted on its business operations causing losses and erosion of customer base”, both Barry Sullivan and I might still be in business today.

I believe most Australians would be aghast if they were shown the statement in AUSTEL’s draft covert Alan Smith report of 3^rd March 1994 that:“… doubts are raised on the capability of the testing regime to locate the causes of faults being reported” by Brian Hodge MBA in his 27^th July 2007 technical report regarding the ongoing telephone problems inherited by Darren & Jenny Lewis’ after they purchased my business in December 2001 noting:

“CCAS data over recent times (e.g. 2004-2006) indicates a continuing & worsening level of “Outgoing Released During Setup” calls (ORDS). These reports on the CCAS data indicate that the calls are not successful in the call up set up stage of the connection or are lost in the network”

Document 290 to 292 in the same Respondent Section 37 Document

This letter dated 28^th January 2003, from TIO Investigator Gillian Mc Kenzie to Telstra, notes: “Mr and Mrs Lewis claim:

• That they purchased the Cape Bridgewater Coastal Camp in December 2001, but since that time have experienced a number of issues in relation to their telephone service, many of which remain unresolved.
• That a Telstra technician “Mr Tony Watson” is currently assigned to his case, but appears unwilling to discuss the issues with Mr Lewis due to his contact with the previous Camp Owner, Mr Alan Smith.
• That the phone problems have decreased dramatically since Telstra Corporation rewired the business on 9 December 2992 and disconnected the phone alarm bell, however he is still experiencing problems with receiving calls and continued to have problems with his fax line”.

The comment at point 2 That:

“...a Telstra technician “Mr Tony Watson” is currently assigned to his case, but appears unwilling to discuss the issues with Mr Lewis due to his contact with the previous Camp Owner, Mr Alan Smith”, is ambiguous to say the least because I have lived next door to the Holiday Camp since 1994 (and therefore next door to the Lewis’ and the Lewis’ drew their water from my bore), so of course we were in regular contact.  Plus, this same Tony Watson had been in charge of the phone problems at the Camp both before and during my arbitration in 1994/95 and, we now know, provided the arbitrator with misinformation in relation to lost faxes, even though Mr Watson knew those faxes had never arrived at their destination because of problems with the fax system in Cape Bridgewater, yet here we have the same Tony Watson harassing the Lewis’ in relation to their faxes that were being lost or not received, just as he had harassed me, dismissed my complaints as frivolous eight years before. 

Senate Hansard

Hansard records of a Senate Estimates Committee Meeting on 24^th June 1997 confirm that, during cross examination by Senator Schacht and Senator O’Chee, Mr Lindsay White, a senior Telstra technical expert, stated under oath that part of his COT arbitration work was to assess technical information and that during his induction he was told about five complainants, including me, who, according to Peter Gamble, had to be stopped.  According to Mr White, Mr Gamble actually said:

“… we – we being Telecom – had to stop these people, to stop the floodgates being opened.” The Hansard report then records Senator Schacht asking: “Stopped at all costs – that was the phrase?  Can you tell me who, in that induction briefing, said ‘stopped at all costs’?  To which Mr White responded: “Mr Peter Gamble, Peter Gamble.”

On 16^th November 1994 AUSTEL wrote to Telstra, condemning the way the SVT process had been carried out at my business.  On 28^th November 1994, one month after Peter Gamble had been forced to abandon the SVT procedure at my business, Mr Gamble responded to AUSTEL’s letter, advising AUSTEL that the information he was providing to AUSTEL regarding my matters, and other SVT results, was being: “… supplied to Austel on a strict Telecom-in-Confidence basis for use in their Service Verification Test Review only and not for any other purpose. The information is not to be disclosed to any third party without the prior written consent of Telecom”, even though that information was being used by Telstra as arbitration defence material during the Government-endorsed, AUSTEL-facilitated COT arbitrations, AUSTEL still went along with Mr Gamble and concealed their knowledge that Telstra had relied on SVT results they knew were fundamentally flawed, because they knew those false reports would stop any arbitration investigation into why my business was still experiencing ongoing problems with the Cape Bridgewater telephone network.

I therefore ask that the AAT carefully consider:

• A comparison of the CCAS data in documents 103/104 of the Respondent Section 37 Document, which confirms that Telstra’s Peter Gamble did NOT carry out the required SVT process at my premises on 29^th September 1994, with Mr Gamble’s letter dated 28^th November (see immediately above), because it is of public interest that AUSTEL, a Government Regulator, concealed this vital CCAS data from me, as a claimant in a Federal Labor Government-endorsed arbitration;
• If AUSTEL had released this evidence during my arbitration then the arbitrator would have had no other choice but to demand that Telstra explain why they were relying on Cape Bridgewater Holiday Camp test results they knew were fundamentally flawed.

DICTA Independent Assessment

On 15^th September, 2005 Senator Barnaby Joyce wrote to me noting:

“I am pleased to inform you that the Minister has agreed there needs to be finality of outstanding CoT cases and related disputes. The Minister has advised she will appoint an independent assessor to review the status of outstanding claims and provide a basis for these to be resolved.

I would like you to understand that I could only have achieved this positive outcome on your behalf if I voted for the Telstra privatisation legislation”.

On 12^th March 2006, before I agreed to be a part of Senator Barnaby Joyce’s independent assessment process, I wrote to Liz Forman of the Department of Communications, Information Technology and the Arts DCITA noting:

“In your last letter to me you advised that the proposed independent assessment will not include “...an investigation of whether the law was broken by Telstra” and yet you are asking me to supply any information I can in support of my unresolved claims against Telstra. The issue of Telstra’s illegal activities and my unresolved claims cannot be separated. Quite aside from the Minister’s legal obligation to have Telstra’s conduct investigated by the Federal Attorney General, the reason my claims are still unresolved, after ten years, is directly because of Telstra’s unlawful behaviour plus the lack of assistance provided by either the TIO or the arbitrator, either during my arbitration or since, in relation to these acts.

How can we separate these issues when they were entwined even before my arbitration began, when I was forced to sign the original arbitration agreement without being told that the terms had been secretly changed to favour the defendants (Telstra)?

How can DCITA expect some issues to be separated from others when they are so inextricable intertwined?

How can the proposed Independent Assessment process be deemed to be independent and impartial if the (DCITA) investigator and/or investigators do not investigate all the facts?” 

It is alarming to note that a Nikki Vajrabukka from Senator Helen Coonan’s office sent a Department Communication Information Technology and the Arts (DCITA) internal email to David Lever on 3^rd March 2006, informing him that she had emailed David Quilty (then Telstra’s Government Liaison Officer) at david.quilty@team.telstra.com, asking for Telstra’s assistance in addressing my 2006 DCITA submission which proved how, during my arbitration, Telstra had knowingly submitted the fundamentally flawed Cape Bridgewater Bell Canada International (BCI) and SVT reports as official arbitration defence documents.  Sending this email is much like asking a criminal if they should be charged in relation to crimes they have committed.  It is also interesting to note that, before Mr Quilty moved to Telstra, he was Chief of Staff to the DCITA Minister (then Senator Richard Alston) during the very same period in which I provided the Senator with this same type of BCI / SVT evidence.  In fact, when I wrote to Philip Gaetjens (Principal Advisor to the Federal Treasurer, then Peter Costello) on 12^th November 1997, providing similar evidence Mr Gaetjens was so concerned that, on 3^rd December 1997, he passed this evidence on to Mr Quilty (then still in his position as Senator Alston’s Chief of Staff), and Senator Amanda Vanstone (then the Minister for Justice).

PLEASE NOTE: David Quilty is now a very Senior Executive within the Telstra Corporation.

A letter dated 17^th May 2007, from Senator Helen Coonan (DCITA) notes:

“I have now made both formal and informal representations to Telstra on behalf of the CoTs. However, Telstra's position remains that this is a matter that is most appropriately dealt with through a Court process. Telstra is not prepared to undertake an alternative means of pursuing this matter. I also appreciate the depth of feeling regarding the matter and suggest you consider whether any court proceedings may be your ultimate option.”

The Australian public has a right to know that bad government bureaucrats have concealed those crimes from the public under Parliamentary Privilege and then allowed elected Government Ministers to write to the victim of the crimes, advising that the best thing that victim can do to find justice is to personally take the huge Telstra Corporation to court, even though secret Government reports have already proved Telstra’s guilt.  As proof of this I have a letter written to me some time after my March/April 2006 DCITA Independent Assessment process had failed to address Telstra’s unlawful conduct. 

Document 29 in the Respondent Section 37 Document is a Herald Sun newspaper article dated 22^nd December 2008 reporting under the heading Bad Bureaucrats that: “...Hundreds of federal public servants were sacked, demoted or fined in the past year for serious misconduct”.

It is clear that there are many secrets held by Members of our Parliament and their public servant advisors, secrets that have ruined the lives and businesses of honest Australians and which raise the following questions:

• How can a democratically elected government allow a corporation (private or not) to dictate the Government’s decisions when both Houses of Parliament have acknowledged that the corporation has committed crimes against fellow citizens?
• How can a democratically elected Government allow that same corporation to attempt to force citizens into highly expensive court action when the corporation has already financially ruined those citizens?
• Why is it that, if a group of citizens who have suffered as a result of crimes wishes to have a corporation charged when elected Senators have already proved those crimes, those citizens have to instigate and finance the court process themselves?

The Australian public has right to know that some people previously employed in Government Ministerial offices, who are known to have been involved in deflecting allegations regarding Telstra’s behaviour over the years, have ended up holding executive positions within Telstra, the ACMA and the TIO Board. This is the same ACMA and TIO Board that continues to refuse to address the validity of my claims. 

The Australian public has a right to know that people employed by a Government Minister failed to follow up on evidence provided to another Minister, with the result that this conduct was never transparently investigated.

The Australian public has a right to know that a Government Regulator concealed evidence from claimants who were participating in an arbitration process facilitated by that same Regulator and endorsed by the Federal Government, particularly if the evidence being concealed proved that the defendants in the case were using fundamentally flawed reports and altering information in discovery documents in order to minimise their liability in that Government-endorsed process.

Document 103 and 104 in the Respondent Section 37 Document

These two documents are Telstra’s CCAS data records from 29^th September 1994, the day that Telstra claim to have successfully carried out all the required incoming Service Verification Tests at the Cape Bridgewater Holiday Camp.  I believe the Australian public would consider it to be a gross miscarriage of justice, an abuse of power, and a major matter of public interest if they were to learn that public servants, paid from the public purse and working for a Government regulatory body (AUSTEL), would allow the defendants (Telstra) in a legal process such as my arbitration to hide behind their Government employer by falsely stating that all the incoming tests carried out at my business, on each of my service lines, had met all of AUSTEL’s specifications, when Documents 103 and 104 clearly confirm that none of the required incoming test calls to my business were carried out, on any of the three phone lines 055 267 267, 055 256 260 and 055 267 230 AT ALL. 

If we can prove that, during a Government-endorsed arbitration process (even if it was sixteen years ago), AUSTEL, which was then the Government Telecommunications Regulator, knowingly allowed the defendants in the process (Telstra) to state, under oath, that their Service Verification Tests had met all of AUSTEL’s requirements, even though both Telstra and AUSTEL knew this was not true, and that they then concealed their knowledge from the relevant Communications Minister (then the Hon Michael Lee MP), then I believe the Australia public would definitely believe it was in the public interest for this information to be revealed.   I am therefore now placing on record, as part of my AAT Statement of Facts and Contentions, a formal request for Mr Chris Chapman, Chairman of the ACMA, to appoint two independent technical consultants to assess the two pages of CCAS data records referred to above for the purpose of determining the actual level of ACMA’s independence in relation to my matters.  I also ask that Mr Chapman then provide the results of that investigation (which should not take any more than thirty minutes) to the Federal Government Attorney General, the AAT, and me.  If Mr Chapman refuses to do this he will simply confirm my claims that the ACMA has a conflict of interest in relation to my matters and the ACMA should therefore not be left in charge of determining which documents they can locate and which they cannot.  I am therefore also respectfully asking that the AAT pass a copy of this Statement of Facts and Contentions to the Federal Attorney General because it is quite clear that a crime was committed against me seventeen years ago and the Government Regulator has continued to conceal the associated evidence ever since.  It should also be noted that there is no statute of limitations in relation to exposing a crime.

The Incestuous Link (1)

On the 18^th June 1993 Michael Elsegood, AUSTEL’s Manager of International Standards, wrote to Telstra in relation to my billing issues.  I had explained to AUSTEL that there seemed to be two related problems caused by a lock-up problem in the Ericsson AXE software (which Telstra already knew about).  The Portland, manned AXA Exchange, which the Cape Bridgewater, unmanned Remote Multiplexer Exchange is routed through, had been experiencing these problems from at least August 1991, a situation that is supported by numerous Telstra FOI documents, one of which (L23848) notes: 

“These numbers indicate to me the poor standard of Ericsson software. For as long as we have had AXE we have been having software lockups and almost every CNA/ISU that comes along promises a solution to this problem but they still occur”. 

Then an internal Telstra email to the infamous Peter Gamble (FOI folio A13980) notes: 

“...you are quite correct in your thoughts that the anecdotal reference applies more to AXE than ARE-11 ‘Lock-ups’ are generally was well-known as a problem in AXE exchanges not only in Australia but in countries overseas as well”. 

On 20^th January 1994 Cliff Mathieson AUSTEL Specialist Advisor Networks and Michael Elsegood co wrote and signed a letter to Telstra on behalf of the Government Regulator AUSTEL under the heading Verification Tests For Difficult Network Fault Cases noting: “...Tests involving the customer’s equipment should be conducted to ensure that there is no fault in the equipment. Where test results do not meet the essential outcome, remedial action should be taken and the relevant tests repeated to confirm correct0 network operation” In fact AUSTEL’s first quarterly COT Cases report to the Hon Michael Lee MP dated July 1994 notes:

“...An important component of Telecom’s 4-stage fault handling process is the Service Verification Tests (SVT). These tests are applied during stage 3 of this process. These tests are important for Telecom to be able to provide objective data about the end-to-end performance or its network in regard to the service of an individual customer on the date the tests are conducted. In its briefing, Telecom indicated (and we will seek confirmation and further detail in writing) that if the SVT indicates an unacceptable level of service then the required replacement of network equipment will be undertaken”.  

Michael Elsegood is currently a member of the TIO Board and both the TIO and ACMA Boards are refusing to investigate why AUSTEL (now the ACMA) deceived the Hon Michael Lee MP into believing that all of the Service Verification Tests had been successful when the attached CCAS data (Documents 103 and 104 in the Respondent Section 37 Document) proves otherwise. One way in which the TIO and ACMA Boards can prove their independence to the general public would be to use the platform of the matters now before the AAT to arrange for documents 103 and 104 in the Respondent Section 37 Document to be properly and transparently analysed to determine whether or not Telstra did generate the required number of test calls in to my business on my three service lines, as directed by AUSTEL, and then make the results public.  It must surely be in the public interest for both the TIO and ACMA Boards to determine whether the ACMA’s predecessors did or did not act in an unconscionable manner by providing an elected Member of Parliament with false information concerning the Cape Bridgewater SVT process. 

The Incestuous Link (2)

Exhibits AS 160, 162, 163, 169, 170, 173, 174 and AS 180, in my AAT Statement of Facts and Contentions dated 26^th July 2008, and in my 9^th December 2010 letter to Mr Julian Burnside QC (copied to the AAT) confirm the various people and organisations who directly benefited from the secret changes to the arbitration agreement that covertly exonerated them from liability for any act or omission (for their part played in my arbitration), did act in a negligent manner during my arbitration, but those actions could not be addressed due to the covert alterations to the agreement. 

Exhibits AS 160, 166 and 169 in my 26^th July 2008 Statement of Facts and Contentions also confirm that, at least by 18^th April 1995, all those parties knew that there had been “…forces at work collectively beyond (our) reasonable control that had delayed…” Dr Hughes’ Resource Unit from being able to either address or investigate all the claim documents I had lodged with the arbitrator.  These same Exhibits further confirm that, because of the delays created by those un-named “forces at work”, only 12% of the documents I legally submitted were ever investigated and/or addressed.  If this isn’t bad enough, Dr Hughes then wrote to Warwick Smith, the TIO, on 12^th May 1995 Exhibit AS 180 – the day after he had handed down his final decision regarding my arbitration – by which time he also was fully aware of those “forces at work” and the damage they had done to my legally submitted claim.  Dr Hughes’ letter advised the TIO that, as a result of those delays, the arbitration agreement he had just used to reach his conclusions in relation to my matters was not a ‘credible’ document and would therefore need to be revised for the next three claimants so they would have more time for “the production of documents, obtaining further particulars and the preparation of technical reports”. Clearly as a direct result of that letter the TIO then allowed the next three claimants between thirteen months and two years longer than he had allowed me in which to prepare my claim.  Then, again, as if all of that isn’t bad enough, Dr Hughes’ letter regarding the agreement now judged not to be ‘credible’ was withheld from me during the designated arbitration appeal period and was only finally released to me by the TIO’s office in 2002 – obviously well outside the statute of limitations during which I could have appealed Dr Hughes’ award.

The information I am currently seeking under my 7^th February 2010 FOI request (which is now before the AAT) is of public interest because it is directly linked to the Government Communications Regulator (AUSTEL) and the TIO’s Special Counsel both being aware, at the very least by 22^nd June 1994, of these covert alterations to my arbitration agreement, and how they did nothing to assist me to have these clauses reinstated in the same way they were reinstated, as Clause 11.2, in the new agreement to be used for the remaining twelve COT claimants, and in Rule 31 in the TIO’s ‘Standard Arbitration Rules’ that were used for all other TIO-administered arbitrations.

Section 70 of the Crimes Act 1914

A statutory declaration dated 23^rd March 2010 was aexplaining that Frances Wood and Cliff Mathieson had advised me, on 21^st March, 1995 two months before the arbitrator handed down his decision in relation to my matters, that AUSTEL knew the BCI and SVT tests at Cape Bridgewater tests were fundamentally flawed.When I asked Mr Mathieson to report this to the administrator to my arbitration however, he stated words to the affect that AUSTEL could not become involved, because I was in arbitration.It is both a matter of serious concern AND of public interest that public servants, paid from the public purse, are afraid to reveal information that will affect court or arbitration decisions.In the SVT case, the arbitrator then accepted as fact three sworn affidavits from Telstra, all falsely saying that the SVT process had met all of the Government Regulator specifications. Are we to assume that because Section 70 of the Crimes Act 1914 prohibits public servants from revealing what they uncover during their regulatory duties this act supersedes Australia’s Constitution that every citizen of Australia has a duty of care to report a crime committed against a fellow Australian? Submitting false testaments and known fundamentally flawed reports to an arbitrator as Telstra did in my case, is a crime.

Two Concerned Victoria Police Officers 

In July 2001, two senior Victorian Police Officers, who had been staggered to discover that the Communications Minister’s officers had stopped the Senate Estimates Committee Investigation in 1997/99 from assessing my Telstra matters, passed on to me a damning document headed Senate Estimates Committee Hansard In-Camera 6^th and 9^th July 1998, and stamped ‘Confidential.  I am convinced that this document was sent to me after the Victoria Police Major Fraud Group had been in contact with Carlton & United Brewers who had dismissed as total rubbish Telstra’s arbitration report that the Telstra laboratory had found a ‘wet and sticky substance’, which they identified as ‘beer’, inside my EXICOM TF200 phone, and that this had caused the phone to lock up. 

On 28^th November 1995, six months after my arbitration, I received evidence confirming that Telstra had actually carried out two separate investigations of my phone, two weeks apart, and that the second test report proved that the first one, which had been provided to the arbitrator, was not a true account of the testing process at all but was a total fabrication because actual photos and graphs proved that, when wet beer was introduced into the TF200 phone by Telstra’s laboratory staff, it dried out completely in forty-eight hours.  My phone however was collected on 27^th April 1994 and not tested until 10^th May – a gap of fourteen days.  I now believe that the members of the Major Fraud Group who were involved in my case were also staggered to learn about this evidence, but still neither the TIO Board nor AUSTEL would investigate these Telstra tests. If it would help, I can provide the AAT and the ACMA, in the public interest, with a copy of Telstra’s original, twenty-nine-page TF200 EXICOM Report, and the second set of Telstra’s laboratory findings – the ones that denounce the first report as nothing more than a bogus document that stopped a full and proper investigation into why my telephone service was locking up.

When it became known that I had received the In-Camera Senate Hansard of 6^th and 9^th July COT Cases information I received a letter on 16^th August 2001 Senator Eggleston threatened me with the possibility of legal action when he warned me: 

“…The fact that you have received unauthorised confidential committee documents is a serious matter, but if you disclose these documents to another person, you may be held in contempt of the Senate.” 

I am therefore somewhat limited in what I can say about the confidential documents I received the previous month but I can say that they prove, beyond all doubt, that both sides of Parliament have been fully aware since at least 1998, that when the Coalition Government sanctioned the investigation of only five of the twenty one COT Claimants on the Senate Estimate Committee working list those remaining 16 COT Cases were denied natural justice.

Conclusion

The current WikiLeaks saga provides testament to how people all around the world, Australians included, have had enough of secret deals made by Government Ministers and Regulators (like AUSTEL / the ACMA) and the way Governments conceal information that citizens have a right to know about.  In the COT case issue, the secret information relates to the violation of our rights as an Australian citizen by organisations like Telstra and the TIO’s office, and individuals like Dr Gordon Hughes (the arbitrator) and Peter Bartlett (the TIO’s Special Counsel), none of whom have ever explained why they allowed the COT arbitration agreement to be altered to the determent of the claimants.  I am sure that most Australians would call for an investigation into why a Government Regulator would allow the defence in a legal, Government Regulator-endorsed arbitration process to submit test results that were known to be fundamentally flawed and which had already been covertly condemned as deficient by the same Regulator.

My arbitration submission included references to:

• AUSTEL’s General Manager of Consumer Affairs writing to Telstra’s Steve Black on 12^th April 1994 regarding ‘engineering activity’ in the Cape Bridgewater area, which indicated that Telstra was ‘laying optical fibre’ in the area; and
• A Telstra FOI document (A00253) which notes:  “Existing stocks of Corning cable will be used in low risk / low volume areas”, indicating that Telstra definitely was laying optical fibre cables but, further, that Telstra knew the cable they were laying was faulty which is why they were using it in areas they thought would not be affected by the aculeate coating (CPC3) used on the optical fibre from Corning Inc (US). 
• My concern regarding another statement in document A00253, that: “Optical fibre cable is supposed to have a 40 year working life. If the MacKay & Katherine experiences are repeated elsewhere in the network, in the northern part of Australia, the network is likely to develop attenuation problems within 2 or 3 years of installation”.

TIO arbitration procedural documents dated 30^th April, 1995 confirm this part of my claim was withheld from the TIO-appointed arbitration consultants during the assessment process.

Document 298 to 299 in the Respondent Section 37 Document

It is certainly important that the public be aware that Telstra chooses to install faulty optical fibres into areas they think will not be affected by heat, particularly when this information is added to a statutory declaration dated 4^th September 2006, from Darren Lewis (the new owner of the Cape Bridgewater Holiday Camp) which notes, at point 19,

“Telstra informed us we had what is commonly known in technical words as ‘a line in lock-up’ rendering our business phone useless until the fault is fixed.

It was then that the local technician informed me that as strange as it might seem he believed that because our business was on optical fibre and was so close to the Beach Kiosk (junction box) this could very well be part of the problem. Apparently either under powering or over powering was also an issue.   He realised that after testing all the other optical fibre outlets with his testing equipment and still reached this impossible reading (according to the technical guru) he would move us off of the fibre.

It was on this note that the technician informed me that although it was a back ward step he was going to investigate the possibility of moving the business off the optical fibre and back to the ‘old copper wiring’”.

Could Darren Lewis’ telephone and fax problems, or any of the other Customer Access Network-related problems that Telstra hid from AUSTEL during AUSTEL’s COT investigations be connected to the installation of Corning optical fibre cables?  Could Telstra have installed the faulty Corning Inc (US) optical fibre cable in the Cape Bridgewater area because they thought that area was not heat or moisture prone, just like they thought the area was not moisture prone when they installed the faulty EXICOM TF200 telephone at my business during my arbitration in 1994?  How many residences in Australia are connected via Telstra’s Customer Access Network to faulty Corning Inc (US) optical cable? These are major issues that could be badly affecting unknown numbers of Telstra customers, all over the country, and it is certainly important that, in the public interest, this information is now broadcast to Telstra customers at least, particularly since Telstra’s network is about to be divided up.

EXICOM TF200 phones and Faulty Optical Fibre

We already know about the problems caused when Telstra installed EXICOM TF200 phones in areas they thought were not moisture prone and now we have proof that they thought some areas would not be affected by heat and that it was therefore appropriate to install faulty cable into those areas.  In relation to the EXICOM phones, Telstra’s FOI document D01026 states: 

“Whilst I do not have the total deployment of EXICOM phones available it has been assessed that there is approximately 450,000 phones with potential faults. Of these there are 325,000 Serial 550/141 phones deployed in areas of high moisture. Because of the supply problems Exicom phones will still have to be deployed in areas of lower moisture risk”.

I have already given the ACMA and the TIO’s office irrefutable evidence that Telstra installed two of these EXICOM TF200 phones at my business in 1993 and again in 94 and one of these EXICOM’s were still in use just prior to me selling the business to the Lewis’.  One question that has never been answered is whether or not the problems experienced by the Lewis’, after they took over the business, were caused by a combination of the faulty optical fibre and the faulty EXICOM phones.  I do know though that many trash and treasure markets in rural Victoria, and interstate, were selling EXICOM TF200 phones until quite recently, clearly unaware that the product locked up in moisture-prone areas like Cape Bridgewater or in places like, for example, a fish shop, an indoor swimming pool, a pizza parlour, bakery, or almost anywhere moisture is prevalent.

Even with all this proof of problems with the EXICOM phones, Telstra has never publicly recalled them.  Surely the public therefore now have a right to know (in the public interest) that Telstra and the ACMA are hiding the problems with the EXICOM phones and the faulty optical fibre from the Australian public? How many of these EXICOM TF200s will be purchased in Australia in 2011 by unsuspecting customers wanting a cheap second-hand extension phone? 

Thank you

Alan Smith

Cc The Hon Federal Attorney   

Mr Chris Chapman, Chairman of the ACMA / Ms Alison Jermey. Senior Lawyer the ACMA  

It is important to note that during this second AAT hearing (No 2010/4634), Mr Friedman (Judge) hearing my case stated:

“Mr Smith still believes that there are many unanswered questions by the regulatory authorities or by Telstra that he wishes to pursue and he believes these documents will show that his unhappiness with the way he has been treated personally also will flow to other areas such as it will expose the practices by Telstra and regulatory bodies which affects not only him but other people throughout Australia.

“Mr Smith said today that he had concerns about the equipment used in cabling done at Cape Bridgewater back in the 1990s. He said that it should – the equipment or some of the equipment should have a life of up to 40 years but, in fact, because of the terrain and the wet surfaces and other things down there the wrong equipment was used.”

During this second AAT hearing in May 2011, I again raised the telephone problems that had affected my business from before my arbitration to 1995, stressing that the arbitrator had failed to investigate or address most of those problems, and therefore allowed them to continue for a further 11 years after the end of the arbitration. Since that second AAT hearing, and as a result of Australia’s National Broadband Network (NBN) rollout, which began in mid-2011 and is still continuing today, numerous faults, just like those that I raised during my arbitration and both AAT hearings, have been found to have continued unabated; this can be confirmed by a simple internet search for “Australia NBN”.

One of the documents I provided both the arbitrator in 1994 and the AAT in 2008 and again in 2011 is a Telstra FOI (folio A00253) dated 16 September 1993 and titled Fibre Degradation. It states:

“Problems were experienced in the Mackay to Rockhampton leg of the optical fibre network in December ’93. Similar problems were found in the Katherine to Tenant Creek part of the network in April this year. The probable cause of the problem was only identified in late July, early August. In Telecom’s opinion the problem is due to an aculeate coating (CPC3) used on optical fibre supplied by Corning Inc (US). Optical fibre cable is supposed to have a 40 year workable life. If the MacKay & Katherine experience are [sic] repeated elsewhere in the network, in the northern part of Australia, the network is likely to develop attenuation problems within 2 or 3 years of installation. The network will have major QOS problems whilst the CPC3 delaminates from the optical fibre. There are no firm estimates on how long this may take. …

“Existing stocks of Corning cable will be used in low risk / low volume areas.” (See Bad Bureaucrats File No/16)

Were the citizens of Australia entitled to be advised by the Australian government, before it sold off the Telstra network, that, e.g., the aforementioned optical fibre with CPC3 coating, supplied to Telecom/Telstra by Corning Inc (USA), was installed in their area? How many people in Australia have been forced to live with a subpar phone system, i.e., a known poor optical fibre that Telstra should NEVER have installed? How many businesses have gone up against the wall due to Telstra’s negligent conduct of knowingly laying their existing stocks of Corning cable in locations that Telstra believed were low risk/low volume areas?

Chapters one to three in our Tampering With Evidence page show Telstra was also prepared to re-deplore some 450,000 faulty TF200 telephones to locations where Telstra thought moisture was non-existent. The decision-makers regarding where Telstra installed these moisture-prone phones were certainly not trained in meteorology. I doubt that Telstra or the government advised these TF200 customers when Telstra was sold off, that if they were experiencing phone problems that this was no longer Telstra’s problem or the government’s.

The following link and information on it can also be located on Absent Justice Part 1, Part 2 and Part 3

Dilapidated Copper-wire Network

The following information shows what I revealed in my second Administrative Appeals Tribubal hearing in May 2011 concerning the state of Telstra's network was a true account of how things were then and six years onwards.

An example of the type of corroded copper wire follows > Worst of the worst: Photos of Australia’s copper network | Delimiter

In the world of political and media misinformation that is attached to the NBN, there is one important issue that hasn’t been fully addressed – Does Australia’s copper network meet the original mandatory government regulatory requirements? If this question is answered honestly, it would directly affect billions of dollars in Commonwealth spending.

23 June 2015: Had the arbitrator appointed to assess my arbitration claims correctly investigated ALL of my submitted evidence he would have had to value my claim as an ongoing problem NOT a past problem as his final award shows. It is clear from the following link dated > Unions raise doubts over Telstra's copper network; workers using ... that when reading in conjunction with Can We Fix The Can which was released in March 1994, these faults copper-wire network faults have been in existence for more than 24-years.

3 December 2015: I reiterate, Telstra continued to conceal this type of sensitive material from AUSTEL from as far back to before our 1994 arbitrations. And here this news artcle has led to a huge blowout in Australia's National Broadband budget roll-out. The total bill to fix the faulty copper lines was estimated last year at $641M. “[N]ow we find out the cost of upgrading the copper has blown out by almost 900 per cent”. (http://www.smh.com.au/technology/technology-news/nbn-faces-another-potential-cost-blowout-leaked-document-shows) If Telstra, the TIO and the COT arbitrator had not concealed the truth surrounding what the COT Cases had uncovered surrounding Telstra's ailing copper-wire network, the cost would have been significantly (millions upon millions) less than what it has cost the current government.

9 November 2017: Sadly, many Australians in rural Australia can only access a second-rate NBN. This didn’t have to be the case: had the Australian government ensured the arbitration process it endorsed to investigate the COT cases’ claims of ongoing telephone problems was conducted transparently, it could have used our evidence to start fixing the problems we uncovered in 1993/94. This news article See https://theconversation.com/the-accc-investigation-into-the-nbn-will-be-useful-but-its-too-little-too-late-87095 and Chapter 3 Lies under oath. again shows that the COT Cases claims of ailing copperwire network was more than valid.  

Almost two decades after this cover-up had been executed, with the government spin doctors successfully branding my claims as frivolous and me as a vexatious litigant, I have been left the government stopped financing the roll-out of the National Broadband Network (NBN), which still utilises part of the existing, seriously degraded copper network. In fact, the “… state of the copper network is considerably worse than expected, leading to extensive work beyond the node,” say leaked documents.

28 April 2018: This ABC news article regarding the NBN see >NBN boss blames Government's reliance on copper for slow ... needs to be read in conjunction with my own story because had these lies told under oath by so many Telstra employees had not occurred then the government would have been in a better position to evaluate just how bad the copper-wire Customer Access Network (CAN) really was just 4-years ago.

Sadly, as the above many Australians living in rural Australia can only access a second-rate NBN. This didn’t have to be the case: if the Australian Government had ensured the arbitration process they endorsed to investigate the COT cases’ claims of ongoing communication problems had been conducted lawfully.

The following three A Current Affair YouTube exposes similar COT type phone complaints raised by our COT group in 1994. Australia still has an inferior telecommunications NBN network 27-years after the COT Cases exposed these problems during a government-endorsed arbitration process that was supposed to have fixed these problems.