2 of 12 alternative remedies pursued

Please note: 2 of 12 alternative remedies pursued is a work in progress last edited September 2020.  

On 24 August 2020, The Department of Finance, Discretionary Payments Section, Risk and Claims Branch that has been aware of the validity of my claims since 2011, wrote to me advising that we should not use the mechanism my lawyer chose to have my claims reassessed by the government and we should not include AUSTEL (now the Australian Communications Media Authority – ACMA), even though AUSTEL concealed the most vital evidence surrounding its own investigations, which found heavily against Telstra (see Manipulating the Regulator). Worse than this concealment from me was the fact that AUSTEL provided those same findings to Telstra’s arbitration defence, and thus assisted Telstra in knowing what information it should hold from the arbitrator during my arbitration and which information could be released (see AUSTEL’s Adverse Findings). Providing those findings to the defence and withholding the same from the claimant (me) destroyed any chance I had of proving my phone problems were still current on the day the arbitration.

How could a government conceal evidence such as is disclosed in AUSTEL’s Adverse Findings, and then force one of their citizens into spending (in my case) more than $200,000 (two hundred thousand) dollars in arbitration fees to try to prove something the government had already proved?

How, in the course of all these travesties, could the regulatory bodies — AUSTEL (for the government) and the TIO (for the carriers) — fail to exercise any control over Telstra, to the point where they could reasonably be seen as acting in concert.

The advice received on 24 August 2020 from this government department – to take my action against a Non-Corporate Commonwealth Entity (NCE) and to use this entity to have my claims reassessed – is now being considered. I have not named this government department in the following link 2 of 12 alternative remedies pursued, which highlights a number of government and non-government agencies who investigated my claims without ever bringing down a finding.

Because of the voluminous amount of documentation I have provided to the various dispute resolution agencies in Australia including the Department if Finance, I have decided to only document two of those agencies on this web page. The other 10 agencies who investigated our still unresolved COT cases Telstra arbitration issues (without bringing down a finding) have been documented in our mini-stories in the above menu bar namely Other alternative remedies pursued.

The Hon Richard Alston

First alternative remedy pursued

In the third week of September 1995, (four months after my arbitration had been concluded) I visited Senator Alston’s Canberra Parliament House office in the company of The Hon David Hawker MP and four other witnesses to discuss the four failed arbitration processes (see Senator Ron Boswell’s statement made in the senate under the heading: A Matter of Public Interest i.e.

“The process has failed these people and can never give them justice – – a point confirmed by professionals deeply involved in the arbitration process itself and by the TIO’s annual report where conclusion is described as ‘if that is ever achievable’.”    

“Telecom has treated the Parliament with contempt. No government monopoly should be allowed to trample over the rights of individual Australians, such as has happened here.” (See Senate Hansard Evidence File No-1).

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, 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).

I also explained to Senator Alston that I could provide evidence to the senator that Telstra had knowingly perverted the course of justice by deliberately falsifying technical report as well as tampering with evidence during my arbitration (see Telstra’s Falsified SVT Report, Telstra’s Falsified BCI Report and 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.

Mr Paul Fletcher

Six months later 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.

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 in September 1996 (see following link > Open Letter File No/41/Part-One and File No/41 Part-Two).

Paul Fletcher was chief of staff to the Hon Richard Alston, Minister for DCITA, who in June 1996 and requested I send him similar Telstra-related arbitration material to support the report I had previously supplied to the Hon Senator Richard Alston between September 1995 and March 1996, when the John Howard government won office.

I referred Mr Fletcher to the Senate Hansard, dated 20 September 1995, which includes Senator Boswell’s statement concerning the first four arbitrations (see below):

“Eleven years after their first complaints to Telstra, where are they now? They are acknowledged as the motivators of Telecom’s customer complaint reforms. … But, as individuals, they have been beaten both emotionally and financially through an 11-year battle with Telstra. …

“Then followed the Federal Police investigation into Telecom’s monitoring of COT case services. The Federal Police also found there was a prima facie case to institute proceedings against Telecom but the DPP [Director of Public Prosecutions], in a terse advice, recommended against proceeding. …

“Once again, the only relief COT members received was to become the catalyst for Telecom to introduce a revised privacy and protection policy. Despite the strong evidence against Telecom, they still received no justice at all. …

“These COT members have been forced to go to the Commonwealth Ombudsman to force Telecom to comply with the law. Not only were they being denied all necessary documents to mount their case against Telecom, causing much delay, but they were denied access to documents that could have influenced them when negotiating the arbitration rules, and even in whether to enter arbitration at all. …

“This is an arbitration process not only far exceeding the four-month period, but one which has become so legalistic that it has forced members to borrow hundreds of thousands just to take part in it. It has become a process far beyond the one represented when they agreed to enter into it, and one which professionals involved in the arbitration agree can never deliver as intended and never give them justice.

“I regard it as a grave matter that a government instrumentality like Telstra can give assurances to Senate leaders that it will fast track a process and then turn it into an expensive legalistic process making a farce of the promise given to COT members and the inducement to go into arbitration.

“The process has failed these people and can never give them justice – – a point confirmed by professionals deeply involved in the arbitration process itself and by the TIO’s annual report where conclusion is described as ‘if that is ever achievable’.”    

“Telecom has treated the Parliament with contempt. No government monopoly should be allowed to trample over the rights of individual Australians, such as has happened here.” (See Senate Hansard Evidence File No-1).

It is apparent from the information provided to Senator Alston’s (see Open Letter File No/41/Part-One and File No/41 Part-Two), which Mr Fletcher and I discussed on the telephone, that Mr Fletcher should have seen my claims as valid – at least from the statements made in the above Senate Hansard Evidence File No-1). and at the time of the telephone call in June 1996.

However, a letter I received from Mr Paul Fletcher, dated 4 September 1996 (see Open Letter File No/41/Part-One), notes:

“In addition, I have examined the material you sent me.

“On the basis of the information I have received, I do not believe that there is any action in relation to your case that would be appropriate for the Minister to take at this time. The Minister has no power to intervene in the conduct of the COT arbitrations, which are being administered by the Telecommunications Industry Ombudsman.”

Whatever made Mr Fletcher change his opinion between June and September 1996 concerning my valid claims and those of the Hon Ron Boswell i.e.

“The process has failed these people and can never give them justice – – a point confirmed by professionals deeply involved in the arbitration process itself and by the TIO’s annual report where conclusion is described as ‘if that is ever achievable’,”  (see Senate Hansard Evidence File No-1)

This statement on its own is a testament that both Senator Alston and Mr Fletcher should have looked further into my claims.

The Hon Paul Fletcher MP

If the current Member for Bradfield (New South Wales), the Hon Paul Fletcher, had properly ensured my evidence was correctly investigated my partner Cathy and I could then have lived a better life than what the current coalition government has afforded us these past 25-years

On 26 May 2019, The Hon Paul Fletcher became Australia’s Minister for Communications and the Arts (see https://www.paulfletcher.com.au/media-releases/media-release-fletcher-deeply-honoured-to-be-appointed-minister-for-communications a portfolio he is professionally equipped to handle.

The ninth remedy in our Other alternative remedies pursued link shows transcripts from both the 2008 and 2011 AAT hearings, which reveal that I raised that Dr Hughes (the arbitrator hearing my 1994/95 arbitration) failed to investigate why my business was still experiencing ongoing telephone problems and faults during my arbitration and that Mr Pinnock (TIO) would not transparently investigate my complaints of the arbitration not addressing these ongoing faults. Because of this neglect, I was literally forced to sell my business, in December 2001, for land value only. My client base had dwindled because no one was able to reliably contact my business via the telephone: some days the phones worked, and others they did not. The TIO and Telstra were both refusing to investigate why this was happening. Was the real reason not to investigate my complaints to avoid proving that the arbitration failed me?

As the new Minister for Communications,  I can only hope The Hon Paul Fletcher will now look at the evidence I provided Senator Alston in September 1995, and the more updated version of the information I provided him in June 1996 and the more recent information now exposed on Absentjustice my story and that provided below by the five following Senators.

Senator Kim Carr

On the 27 January 1999, after reading my manuscript  Absentjustice my story and the previous information I supplied to Paul Fletcher (see Open Letter File No/41/Part-One and File No/41 Part-Two), Senator Kim Carr stated:

“I continue to maintain a strong interest in your case along with those of your fellow ‘Casualties of Telstra’. The appalling manner in which you have been treated by Telstra is in itself reason to pursue the issues, but also confirms my strongly held belief in the need for Telstra to remain firmly in public ownership and subject to public and parliamentary scrutiny and accountability.

“Your manuscript demonstrates quite clearly how Telstra has been prepared to infringe upon the civil liberties of Australian citizens in a manner that is most disturbing and unacceptable” (See Arbitrator Evidence File No 66)

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.”

Senator Kim Carr

And addressing Telstra’s conduct, he stated:

“But we also know, in the way in which telephone lines were tapped, in the way in which there have been various abuses of this parliament by Telstra—and misleading and deceptive conduct to this parliament itself, similar to the way they have treated citizens—that there has of course been quite a deliberate campaign within Telstra management to undermine attempts to resolve this question in a reasonable way. We have now seen $24 million of moneys being used to crush these people. It has gone on long enough, and simply we cannot allow it to continue. The attempt made last year, in terms of the annual report, when Telstra erroneously suggested that these matters—the CoT cases—had been settled demonstrates that this process of deceptive conduct has continued for far too long. (See > http://parlinfo.aph.gov.au/parlInfo/chamberhansards1999-03-11)

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.

Australian Senate

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 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.”.http://parlinfo.aph.gov.au/parlInfochamberhansards1999-03-11)

Senator Mark Bishop

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.

“I am informed by Senator Boswell it is 24 million – defending a claim when the claim before it is somewhere between $2 million or $4 million. This is simply an outrageous proposition and a waste of public money” (See aph.gov.au/parlInfo/search/displaychamberhansards1999-03-11

Senator Alan Eggleston

On 23 March 1999, the Australian Financial Review (Australian newspaper) 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.”

Senator Len Harris – One Nation

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:

“Through the following questions, the media event will address serious issues related to Telstra’s unlawful withholding of documents from claimants, during litigation.

  • Why didn’t the present government correctly address Telstra’s serious and unlawful conduct of withholding discovery and/or Freedom of Information (FOI) documents before the T2 float?
  • Why has the Federal government allowed five Australians (from a list of twenty-one) to be granted access to some of the Telstra discovery documents they needed to support their claims against Telstra, but denied the same rights to the other sixteen?
  • Why has the Federal Government ignored clear evidence that Telstra withheld many documents from a claimant during litigation?
  • Why has the Federal Government ignored evidence that, among those documents Telstra did supply, many were altered or delivered with sections illegally blanked out? (See Senate Evidence File No 56 )

The following post-arbitration letters, Files One to Three (below) confirm I continued to register my complaints with a number of government and non- government agencies between 1995 and 2005/6, when Senators Helen Coonan and Barnaby Joyce brokered a deal (see Second alternative remedy pursued) to have all of the COT 14 unresolved Telstra arbitration/mediation claims (including mine) assessed, independently, as part of the Telstra privatisation legislation deal reached by the National Party to gain a crucial vote to sell off the remaining T3 Telstra sale.

The referred to files are Alan Smith’s – Post Arbitration Letters – File Onet, Alan Smith’s – Post Arbitration Letters – File Two and Alan Smith’s Post Arbitration Letters – File Three.

Senator Barnaby Joyce

Second alternative remedy pursued

In March 2006, before I officially committed to accepting the Department of Communications Information Technology and the Arts (DCITA) assessment proposal to value my still unresolved arbitration claims against Telstra (instead of a valuation carried out by an independent, non-government organisation, as proposed by Senator Barnaby Joyce), I wrote to DCITA. I explained I was concerned the government might not take into account my claims that Telstra and its employees deliberately perverted the course of justice during my arbitration by submitting evidence that Telstra was fully aware was falsified. My letter stipulated that, if I accepted DCITA’s assessment process, then Telstra’s unlawful conduct towards me must be taken into consideration. The attached letter, dated 17 March 2006, from DCITA’s David Lever clearly states that if DCITA found any such conduct had transpired during my arbitration, then that evidence would be passed on to the relevant authority. I know that that did not happen, however, because, among some FOI documents I received months after DCITA dismissed my claims, I discovered proof that DCITA engaged a senior ex-DCITA government official engaged david.quilty@team.telstra.com employed by Telstra, to advise DCITA on the assessment of my Telstra-related claims (emails supporting this can be provided if necessary). Interestingly, not long after DCITA found that Telstra had no case to answer, David Quilty secured a very senior executive position within Telstra. Eventually, the evidence ignored by David Quilty, seriously contributed to the destruction of my legitimate DCITA claim against Telstra.

Back in 2005, when Ann was still a staunch member of the National Party of Queensland, a rookie National Party senator, Barnaby Joyce, won his Queensland seat from the One Nation Party. After having worked tirelessly to ensure that the Queensland National Party won that Senate seat, Ann then brokered a deal with the new senator, not just for herself, which would have been less oppressive for the Liberal-National Coalition Party, but for 13 other COT cases as well. Ann arranged for us all to meet the new senator, along with his advisor. The agreed deal was that, if the government wanted Senator Joyce’s most crucial vote in the Senate for the full privatisation legislation of the Telstra Corporation, then the Minister for Communications, Information Technology and the Arts (Senator Helen Coonan) would have to agree to resolve all the still-unresolved COT/Telstra arbitration issues for all 14 members of COT. Senator Coonan and Senator Joyce formally agreed that this would go ahead and our claims would be reassessed under an independent commercial assessor as his letter to me dated 15 September 2005 (see Senate Evidence File No 20)

“As you are aware, I met with a delegation of CoT representatives in Brisbane in July 2005. At this meeting I made an undertaking to assist the group in seeking Independent Commercial Loss Assessments relating to claims against Telstra.

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.

In response, 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.” (See 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.

The DCITA advised Senator Joyce that if any of the 14 named cases in his original submission (which I was one of the 14) would accept the department as the assessors of their unresolved Telstra related arbitration mediation claims as a compromise by the government then this offer to settle our cases was still an option.

I was advised by Senator Joyce, that although the DCITA was not his first choice of assessors (as his letter of 15 September 2005 confirmed) this alternative remedy to have my matters finally resolved should be considered.

On 10 March 2006 after having received this advice from Senator Joyce, I wrote to Liz Forman, acting general manager of DCITA noting:

“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.” (See Home Page Part Two Evidence File No/12-A)

On 17 March 2006, David Lever, also at the DCITA wrote to me 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.” (See Home Page Part Two Evidence File No/12-B)

The Hon David Hawker

When I received this letter from Mr Lever, I informed the Hon David Hawker MP, Speaker of the House of Representatives that I was now submitting my DCITA Letter of claim titled > Department of Communications Information Technology and the Arts (DCITA) letter of Claim March 2006.

The information located throughout this website indicates Telstra employees committed a number of criminal offences in connection with my arbitration i.e; Telstra’s Falsified BCI Report, Telstra’s Falsified SVT Report and Tampering With Evidence page.

Government communications advisor Nikki Vajrabukka, DCITA, sent an internal email to David Lever, on 3 March 2006, advising she had emailed David Quilty (then Telstra’s government liaison officer) asking Telstra to assist in addressing my March 2006 DCITA submission that described how Telstra knowingly submitted three fundamentally flawed reports as official defence documents. (See Home Page Part Two Evidence File No/12-C) Sending this email is akin to 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 time I was providing the minister with damning evidence against Telstra and the unlawful way they were allowed to conduct their arbitration defence of the COT cases’ claims. In fact, I wrote to Philip Gaetjens (principal advisor to Peter Costello, who was then the Federal treasurer), on 12 November 1997 and provided conclusive evidence of the way Telstra perverted the course of justice during my arbitration claims. On 3 December 1997, 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)?

Some of those claims were that people with access to Telstra’s network intercepted my Telstra related documents, as well as perverted the course of justice during my arbitration.

This seems to demonstrate that public officials live in a different world to the rest of Australia: a world where there is no meaning to the term “conflict of interest”, nor respect for fellow Australian citizens. 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.

The Australian public has a right to know: Telstra’s unlawful conduct towards Australian citizens was proved. Yet, government ministers and officials concealed those crimes from the public under Parliamentary Privilege and wrote to the victim advising the best way to find justice is to personally take the huge Telstra Corporation to court, despite official government regulatory reports, prepared by AUSTEL, on both COT case Graham Schorer’s and my matters already proved Telstra’s guilt as shown in absentjustice.com and justicecommand.com.

On 19 April 2006, I wrote to the Hon Senator Helen Coonan, noting:

“In regard to my current claim, Mr Lever of DCITA had notified me that, if DCITA found I had 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.” (See Home Page Part Two Evidence File No/12-D)

Before you continue to read on, try to place yourself – as many COT cases have tried to do over the past decade –in the shoes of the then-rookie Senator Barnaby Joyce. He believed the deal he made with coalition minister Senator Helen.

The Hon Barnaby Joyce 

In an attempt to salvage something from this event, Senator Joyce came to a compromise 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 who were interested in being involved. The Casualties of Telstra – chronology of events (see Absent Justice Part (1),  Absent Justice Part (2), Absent Justice Part (3) and our Senate page describe 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.

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).

Surely it was Senator Coonan’s responsibility, as the Minister for Communications, Information Technology and the Arts, to initiate an official enquiry into WHY, both during and after the COT arbitrations, Telstra continued to intercept in-confidence documents leaving my office (or residence), AND the offices of various senators AND the Commonwealth Ombudsman’s office? The Australian Federal Police were also reluctant to bring charges against Telstra during my 1994/1995 arbitration process. The Scandrett & Associates Pty Ltd report discusses this COT document fax-interception issue (see Open Letter File No/12 and File No/13).

A secondary fax machine, installed in Telstra’s network during the arbitration process, intercepted numerous in-confidence documents. This illegal interception of legal in-confidence documents should have been investigated during the arbitration processes when these illegal acts were first discovered. Senator Coonan, writing to me on 17 May 2007 – 12 years after the AFP declined to help me, and suggesting I take Telstra to court in relation to the same issues, just provides even further evidence of the undemocratic and uncaring way in which the COT cases have been treated by their elected government ministers.

Even worse was to come: although the senator stated the COT cases long-outstanding, unresolved issues were the reason he sold off Telstra, once he had cast his crucial vote, Senator Helen Coonan (then Minister for Communications, Information Technology and the Arts) and her advisors reneged on the deal!

Senator Joyce was very disheartened the coalition government let down the COT cases once again. In an attempt to salvage something from this event, Senator Joyce agreed to the Department of Communications, Information Technology and the Arts (DCITA) assessing the claims of any of the 14 COTs who were interested in being involved. The COT chronology of events on absentjustice.com describes how, once the government secured Senator Joyce’s crucial privatisation vote, they did a back-flip and refused to appoint anyone other than their own government-employed assessors, rather than the independent assessor that was promised to Senator Joyce (see > Download PDF – Department of Communications).

On 3 March 2006, Senator Barnaby Joyce wrote to Ann Garms, COT chair, during the independent assessment process. He stated:

“I met with Senator Coonan yesterday morning to discuss the matter of the agreed Independent Assessment of your claims. …

“From my understanding of the CoTs evidence, the Department and the Telecommunications Industry Ombudsman have not acted in the best interests of the CoTs. It could be said they have not investigated valid submissions concerning the misconduct of Telstra and the evidence the dispute resolution processes you have all been subjected to over the last decade were flawed. …

“At the meeting yesterday I argued your cases strongly and informed the Minister that justice delayed is justice denied.” (See Bad-Bureaucrats-File-No/20)

On 6 September 2006, in Parliament House, Canberra, Senator Barnaby Joyce advised a number of the COT cases, including me, he would not give up until the government honoured their commitment to him to have our unresolved Telstra arbitration issues assessed independently.

The Australian government, including the communications regulator AUSTEL, the lawyers representing the COT cases and the COT cases themselves were assured the arbitration process would be conducted under the ambit of the Arbitration Act 1984. They were also assured the arbitration rules would be drafted totally independently of Telstra, in the same fashion as in the UK when British Telecom agreed to arbitration and the Chartered Institute of Arbitrators UK drafted the agreement in Australia. The evidence we provided Senator Barnaby Joyce, and to which he appears to be referring to in this letter, shows this was not the case at all: the arbitrations were not conducted under the arbitration act and the agreement was not drafted independently of Telstra.

Australian Senate

Ann Garms had already provided Senator Joyce with a copy of Senate Hansard dated 26 September 1997, showing John Pinnock, the second appointed administrator to the COT arbitrations,  officially advised the same 27 Senators (see 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.”

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?

It was this type of evidence, in favour of the COTs’ claims, that prompted Senator Joyce to raise these matters in government. After all, how can you have an arbitration process when the arbitrator has no control over the process?

On 16 November 2006, Senator Barnaby Joyce wrote to Senator Helen Coonan under the heading of COTs cases and related disputes:

“I must remain with my commitment to the people involved with the CoTs cases. The commitment is representing their frustrations and finding a resolution to the issue.

“The resolution to the issue, is referenced in your letter of 13th September 2005, where you state ‘I agree that there should be finality for all outstanding “COT” cases and related disputes. I believe that the most effective way to deal with these is for me to appoint an independent assessor to review the status of all outstanding claims’. …

“I realise that my only influence is that of persuading you and I must endeavour to keep the door open on this issue.” (See Bad Bureaucrats File No/19)

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. (See DCITA Evidence File 6)

On 13 June 2008, Debra Denis, from the office of the Hon Senator Barnaby Joyce, wrote to me stating:

“Please be assured of Senator Joyce’s continued support for your endeavours to have your dispute resolved.” (See Bad Bureaucrats File No/21)

Please consider the following points

Point One

On 10 March 2006, I wrote to Liz Forman, acting general manager, Department of Communications, Information Technology and the Arts (DCITA), who was appointed to assess my government-endorsed DCITA claim as part of the promise given to Senator Joyce in return for his crucial vote for the privatisation of Telstra. 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.” (See Home Page Part Two Evidence File No/12-A)

On 17 March 2006, David Lever, manager, consumer section, telecommunications division wrote to me 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.” (See Home Page Part Two Evidence File No/12-B)

When I received this letter from Mr Lever, I informed the Hon David Hawker MP, who was also Speaker of the House of Representatives that I was now submitting my DCITA Letter of claim titled Department of Communications Information Technology and the Arts (DCITA) letter of Claim March 2006.

The information located throughout absentjustice.com indicates Telstra employees committed a number of criminal offences in connection with my arbitration (Telstra’s Falsified BCI Report, Telstra’s Falsified SVT Report as well as the fabricated alleged sticky-beer substance found in my collected TF200 EXICOM telephone.

Government communications advisor Nikki Vajrabukka, DCITA, sent an internal email to David Lever, on 3 March 2006, advising she had emailed David Quilty (then Telstra’s government liaison officer) asking Telstra to assist in addressing my March 2006 DCITA submission that described how Telstra knowingly submitted three fundamentally flawed reports as official defence documents. (See Home Page Part Two Evidence File No/12-C) Sending this email is akin to 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 time I was providing the minister with damning evidence against Telstra and the unlawful way they were allowed to conduct their arbitration defence of the COT cases’ claims. In fact, I wrote to Philip Gaetjens (principal advisor to Peter Costello, who was then the Federal treasurer), on 12 November 1997 and provided conclusive evidence of the way Telstra perverted the course of justice during my arbitration claims. On 3 December 1997, 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)?

Some of those claims were that people with access to Telstra’s network intercepted my Telstra related documents, as well as perverted the course of justice during my arbitration.

This seems to demonstrate that public officials live in a different world to the rest of Australia: a world where there is no meaning to the term “conflict of interest”, nor respect for fellow Australian citizens. 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.

The Australian public has a right to know: Telstra’s unlawful conduct towards Australian citizens was proved. Yet, government ministers and officials concealed those crimes from the public under Parliamentary Privilege and wrote to the victim advising the best way to find justice is to personally take the huge Telstra Corporation to court, despite official government regulatory reports, prepared by AUSTEL, on both COT case Graham Schorer’s and my matters already proved Telstra’s guilt as shown in absentjustice.com and justicecommand.com.

On 19 April 2006, I wrote to the Hon Senator Helen Coonan, noting:

“In regard to my current claim, Mr Lever of DCITA had notified me that, if DCITA found I had 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.” (See Home Page Part Two Evidence File No/12-D)

The Hon Senator Helen Coonan

The Hon Senator Helen Coonan wrote to me on 17 May 2007 stating:

“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 court proceedings may be your ultimate option.” (See Home Page Part Two Evidence File No/12-E)

Why was Telstra able to tell the telecommunications minister it would not be investigated? Who held the power? Surely it was Senator Helen Coonan’s responsibility, as the Minister for Communications, Information Technology and the Arts, to initiate an official enquiry into why Telstra continued to intercept in-confidence documents leaving my office (or residence), the offices of various senators and the Commonwealth Ombudsman’s office during and after my arbitration?

I wasn’t the one who tampered with my collected TF 200 EXICOM telephone during the period Telstra’s laboratory staff advised the phone was received in a very dirty condition containing sticky wet beer. I didn’t swear under oath, as did Telstra’s Peter Gamble, telling the arbitrator all of his Cape Bridgewater Holiday Camp, 29 September 1994, arbitration, Service Verification Tests (SVT) met all of the government regulatory specifications despite the government advising him and Telstra’s Steve Black the tests were grossly deficient. See Telstra Falsified BCI Report masked identities; in the above absentjustice.com menu bar.

I did not provide the arbitrator with the Bell Canada International Cape Bridgewater known-impracticable tests as arbitration defence documents. Our Telstra Falsified BCI Report masked identities, confirms two Telstra arbitration witness statements, dated 8 and 12 December 1994, show the BCI report was a total fabrication, as does Main Evidence File No 3.

Senator Helen Coonan, on behalf of the Liberal National Party, should have engaged the Australian Federal Police and ensured I received the justice I deserved. It was not for me to take Telstra to court for committing criminal acts during an Australian-government-endorsed arbitration process. I now call upon the Hon Barnaby Joyce, as the current deputy prime minister, to assist me in ensuring I, and the other COT cases, receive the justice we 14 were promised we would receive if the then-Senator Barnaby Joyce cast his crucial vote for the privatisation of Telstra, which he did.

Point Two

Once the government secured Senator Joyce’s vote, they refused to appoint the independent assessor promised to Senator Joyce and instead appointed government-employed assessors (see point one). Those who accepted this compromise have now been able to prove the government bureaucrats also reneged on their duty of care to assess each claimant’s claim according to the evidence the claimants provided. The government bureaucrats found in favour of Telstra.

The Telstra Corporation was privatised on a lie provided to Senator Barnaby Joyce, in order to attain his crucial vote. The government bureaucrats even assisted Telstra to conceal their previous crimes against the COT cases, even though the in-camera Senate Hansard, dated 6 and 9 July 1998, confirms many senators, in secret, found in favour of the COT cases.

Point Three

Just as important: was it considered lawful or ethical for the government bureaucrats to wait until after Senator Joyce cast his crucial vote before informing him the government could not possibly honour their undertaking to appoint an independent assessor to value each of the 14 COT cases’ unresolved claims?

On the other hand, had the government bureaucrats advised Senator Joyce before he cast his one crucial vote that this deal could NOT be met, the senator (aware of how much his vote to the government meant) may well have asked the government to negotiate a one-off deal with Telstra to compensate the claimants (those with valid claims).

Point Four

It is clear from the exhibit DCITA evidence File 16 numbered 848 that the government DCITA assessors never intended assessing each claim on their merit. Why then did David Lever (DCITA assessor) write to me before I submitted my claim stating “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.” (See Home Page Part Two Evidence File No/12-B)

Point Five

It is also clear from exhibits 420 to 436-B, in files GS-CAV 410-A to 447, that DCITA never intended to view each of the COT cases’ claims on their merit during the DCITA alleged-independent assessment process. The then Minister for Communications the Hon Senator Helen Coonan promised a fair process, for any COT cases placing their trust in the government, to value the merits of their claims. Yet, while these promises were being made Senator Coonan’s staff was colluding on how to dupe any COT cases who were silly enough to trust the government assessors. This appalling and premeditated conduct was perpetrated on Australian citizens.

Exhibit 441-B, in GS-CAV 410-A to 447, shows my secretary received automatic email receipt notifications from DCITA, in 2008, showing sent emails and attached files were deleted, unread – never viewed during the 2006 assessment process. The DCITA didn’t bother to view my evidence during my DCITA assessment, despite it costing me in excess of $20,000 in DCITA assessment fees, while all this trickery was being conducted behind the government’s closed doors. Fancy a government bureaucrat asking a citizen of Australia to submit a claim, when it never bothered to view that evidence on its merit. How crooked and deceitful was this whole DCITA process?

Point Six

In Senator Helen Coonan’s letter of 24 May 2006 to the Hon David Hawker MP who had represented me since 1992 and Darren Lewis (the new owners of my business) since early 2002, (shows from Exhibit 445-B in GS-CAV 410-A to 447 ) that The Senator stated:

“I note that Mr Darren Lewis offered to assist the assessment process by providing Department with information on the phone service at the Cape Bridgewater, coastal camp, Mr Smith’s previous premises. while his offer is appreciated, I regret that Mr Lewis, assessment of the phone service at these premises is “not relevant to the terms of reference for the independent assessment”

These were the same phone problems being experienced by Darren Lewis in 2006, 12 years after my arbitration process was supposed to fix those problems before the arbitrator brought down his award. And here was Senator Helen Coonan advising The Hon David Hawker that the DCITA assessors were not interested in the merits of my claims or those of Darren Lewis because the DCITA terms of reference did not take these issues into account (see also Chapter Three to Five Bad Bureaucrats page).

One of the most senior arbitration officials involved in the COT v Telecom/Telstra 1994 to 1999 arbitration FOI issues was a Ms Sue Laver.  Now, in 2020, that same Ms Laver holds the powerful position of Telstra’s Corporate Secretary. Meanwhile, since January 1998, Ms Laver has been fully aware of my claims that Bell Canada International Inc., who sent their experts from Ontario, Canada, to test the local Portland and Cape Bridgewater network telephone exchanges (which is how my business was connected to the Australian telecommunications network), did not carry out those tests according to the details recorded in Bell Canada’s official COT arbitration report (see Telstra’s Falsified BCI Report).

Furthermore, in December 1994, Telstra knowingly provided their arbitration witnesses with a copy of this faulty BCI report and the Australian Government not only allowed this unlawful conduct to remain unchallenged at the time, but this faulty report has still, in 2020, never been properly investigated. Surely, if Ms Laver is truly an honest corporate lawyer and now Telstra’s most senior corporate secretary, then she must have raised my valid claims with the Telstra Board and if she has carried out her duties as a most Corporate Secretaries should, why has the Telstra Board never publicly agreed or disagreed with my claims?