The Briefcase 

Ericsson AXE faulty telephone exchange equipment (1)

Telstra senior management finally visited my business, a five-hour drive from Melbourne. Within five minutes of saying hello, Mr Smith, I knew I was in for another round of untruths.

I should have known better. It was just another case of 'No fault found.' We spent some considerable time 'dancing around' a summary of my phone problems. Their best advice for me was to continue doing exactly what I had been doing since 1989, which was keeping a record of all my phone faults. I could have wept. Finally, they left.

A little while later, in my office, I found that Aladdin had left behind his treasures: the Briefcase Saga was about to unfold.

Aladdin

The briefcase was not locked, and I opened it to find out it belonged to Mr Macintosh. There was no phone number, so I had to wait for business hours the next day to track him down. However, what was in the briefcase was a file titled 'SMITH, CAPE BRIDGEWATER'. After five gruelling years fighting the evasive monolith of Telstra, being told various lies along the way, here was possibly the truth, from an inside perspective.

The first thing that rang alarm bells was a document that revealed Telstra knew that the RVA fault they recorded in March 1992 had lasted for at least eight months — not the three weeks that was the basis of their settlement payout. Dated 24/7/92, and with my phone number in the top right corner, the document referred to my complaint that people ringing me get an RVA' service disconnected' message with the 'latest report' dated 22/7/92 from Station Pier in Melbourne and a 'similar fault reported' on 17/03/92. The final sentence reads: 'Network investigation should have been brought in as fault has gone on for 8 months.'

I copied this and some other documents from the file on my fax machine and faxed copies to Graham Schorer. The next morning, I telephoned the local Telstra office, and the Telstra technician who had been providing my private and business information to a person called Micky, who Telstra admitted to the AFP on 14 April 1994 had been chosen by Telstra to listen to my telephone conversations, came out and picked the briefcase up. 

The information in this document, dated 24 July 1992, proved that senior Telstra management had deceived and misled me during previous negotiations, the 11 December 1992 settlement. It showed that their guarantees that my phone system was up to network standard were made in full knowledge that it was nowhere near 'up to standard'.

It is noted that Telstra's area general manager was fully aware at the time of my settlement on 11 December 1992 that she was providing me with incorrect information. This information had influenced my judgement of the situation, placing me at a commercial disadvantage, but the General Manager, Commercial Victoria/Tasmania, was also aware of this deception.

The use of misleading and deceptive conduct in a commercial settlement such as mine contravenes Section 52 of the Australian Trade Practices Act. Yet this deception has never been officially addressed by any regulatory body. To get ahead of my story here, even the arbitrator who handed down his award on my case in May 1995 failed to question Telstra's unethical behaviour.

Manipulating the Regulator

Previously Withheld Documents 

Further he claims that the Telecom documents contain network investigation findings which are distinctly different from the advice which Telecom has given to the customers 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 comment 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 its inspection. This, together with your comment, will enable me to arrive at an appropriate recommendation for AUSTEL's consideration of any action it should take.

As to Mr Smith's claimed continuing service difficulties, please provide a statement as to whether Telecom believes that Mr Smith has been provided with a telephone service of normal network standard since the settlement. If not, you are asked to detail the problems which Telecom knows to exist, indicate how far beyond network standards they are and identify the cause/causes of these problems.

In light of Mr Smith's claims of continuing service difficulties, I will be seeking to determine with you a mechanism that will allow an objective measurement of any such difficulties to be made.

I can only presume that Telstra did not comply with the request 'to immediately provide AUSTEL with a copy of all the available documentation which was apparently inadvertently left at Mr Smith's premises,' on 3 August 1993.  Austel's General Manager, Consumer Affairs, wrote to Telstra requesting a copy of all the documents in this briefcase that had not already been forwarded to Austel.

I sent off a number of Statutory Declarations to Austel explaining what I had seen in the briefcase. Telstra had returned and picked up the briefcase. 

One-third of the documents that I managed to copy contained sufficient information to convince AUSTEL that Ericsson and Telstra were fully aware that the AXE Ericsson lock-up faults were a global problem, affecting 15 to 50 per cent of all calls generated through this AXE exchange equipment. It was locking up flaws that affected the billing software. 

Thousands upon thousands of Telstra customers Australia-wide had been wrongly billed since the installation of this Ericsson AXE equipment, which in my case, had been installed in August 1991, with the problems still apparent in 2002. Other countries around the world were removing or had removed it from their exchanges (see File 10-B Evidence File No. 10-A to 10-f), and Australia was still denying to the arbitrator that there had ever been a problem with that equipment. Lies told by Telstra so as to minimise their liability to the COT Cases. (See Files 6 to 9 AXE Evidence File 1 to 9)

Was this the real reason why the Australian government allowed Ericsson to purchase Lane during the government-endorsed COT arbitration while the arbitrations were still in progress?

When the COT arbitration documents submitted to arbitration proved that th Ericsson AXE lock-up call loss rate was between 15% to 50% as File 10-B Evidence File No/10-A to 10-f so clearly shows. AUSTEL then instigated an investigation into these AXE exchange faults and uncovered that 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 for 120,000 COT-type complaints to show a hundred. If fact when the public AUSTEL COT Cases report was launched on 13 April 1994, it shown AUSTEL located up-wards of 50 or more COT-type complaints being experienced around Australia. 

Was this the major problem Julian Assange wanted to share with the COT Cases? He said corruption was significant. How bigger could this have been had it been exposed during the COT arbitrations?

In my case, none of the relevant arbitration claims raised against Ericsson, whose official arbitration records numbered A56132, were investigated, including my Telstra's Falsified SVT Report. Why did Lane ignore this evidence against Ericsson?  

Even worse was when my arbitration claim documents were returned to me after the conclusion of the arbitration NONE of my Ericsson technical data was amongst the returned material.

I believe the Australian government should answer the following questions: How long was Lane Telecommunications Pty Ltd 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 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 (see 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, if they were to visit this website absentjustice.com, where you can see, yourself that my claims against Telstra and Ericsson are valid (see Bribery and Corruption - Part 2).

Therefore, it is essential to highlight the Ericsson here, the bribery and corruption issues the US Department of Justice raised against Ericsson as discussed above in the Australian media reports on 19 December 2019

On 27 August 1993, Telstra's Corporate Secretary, Jim Holmes, wrote to me about the contents of the briefcase:

Although there is nothing in these documents to cause Telstra any concern in respect of your case, the documents remain Telstra's property. They, therefore, are confidential to us … I would appreciate it if you could return any documents from the briefcase still in your possession as soon as possible.

How blithely he omitted any reference to vital evidence which was withheld from me during their negotiations with me regarding compensation.

Flogging a dead horse

By the middle of 1993, people were becoming interested in what they heard about our battle. A number of articles had appeared in my local newspaper, and interstate gossip about the COT group was growing. In June, Julian Cress from Channel Nine's 'Sixty Minutes' faxed me:

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 11 am. On the 008 number I heard a recorded message advising me that 008 was not available from my phone and your direct line was constantly engaged.

Pretty ironic, all right!

A special feature in the Melbourne Age gave my new 'Country Get-A-Ways' program a great write-up. It was marketing weekend holidays for over-40s singles in Victoria and South Australia: 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 in South Australia with a Saturday morning shopping tour to Mt Gambier. I began to feel things were looking up for the Camp.

It was too much to hope for that my telephone saga was coming to an end. A fax arrived on the 26 October 1993, from Cathine, a relative of the Age journalist who wrote the feature:

Alan, I have been trying to call you since midday. I have rung seven times to get an engaged signal. It is now 2.45 pm.

Cathine had been ringing on my 1800 free-call line. I had been in my office and there had been no calls at all between 12.30 and 2.45 that day. What was going on? (Telstra's data for that day shows one call at 12:01, lasting for 6 minutes and another at 12:18, lasting for 8 minutes). I cannot express how frustrating this was; there seemed to be no end to it in sight. But I was determined not to let the bastards get me down. Their lies and incompetence had to be exposed. That day shows one call at 12:01, lasting for 6 minutes and another at 12:18, lasting for 8 minutes). I cannot express how frustrating this was; there seemed to be no end to it in sight. But I was determined not to let the bastards get me down. Their lies and incompetence had to be exposed.

I stepped up my marketing of the Camp and the singles weekends, with personal visits to social clubs around the Melbourne metropolitan area and in Ballarat and Warrnambool. I followed with ads in local newspapers in metropolitan areas around Melbourne and in many of the large regional centres around Victoria and South Australia. I also placed ads for the Get-Away holidays in the 1993 White Pages — or rather, I tried to: the entries never made it into the telephone books. I complained of this to the TIO (the Telecommunications Industry Ombudsman), who attempted to extract from Telstra an explanation for my advertisements being left out of 18 major phone directories.

As the Deputy TIO said in his letter to me of 29/3/96, he believed his office would simply 'be flogging a dead horse trying to extract more' from Telstra on this matter. (In fact, the TIO is an industry body supervised by a board, the members of which are drawn from the leading communications companies in the country: Vodaphone, Optus and, of course, Telstra.)

Between May and October of 1993, in response to my request for feedback, I received many letters from schools, clubs and singles clubs, writing of the difficulties they had experienced trying to contact the Camp by phone. The executive officer of the Camping Association of Victoria, Mr Don MacDowall, wrote on 6 May 1993 to say that 10,000 copies of their Resource Guide, which I had advertised, had been directly mailed to schools and given away. Mr MacDowall had said the other advertisers with ads similar to mine had experienced an increase in inquiries and bookings after distributing these books. So it seemed evident to him that the 'malfunction of your phone system effectively deprived you of similar gains in business.' He also noted that he had himself received complaints from people asking why I was not answering my phone. All in all, during this period, I received 36 letters from different individuals as well more than 40 other complaints from people who had tried, unsuccessfully, to respond to my advertisements. The Hadden & District Community House wrote in April 1993:

Several times I have dialled 055 267 267 number and received no response — dead line. I have also experienced similar problems on your 008 number.

Our youth worker, Gladys Crittenden, experienced similar problems while organising our last year's family camp, over a six month period during 1991/1992.

In August 1993 Rita Espinoza from the Chilean Social Club wrote:

I tried to ring you in order to confirm our stay at your camp site. I found it impossible to get through. I tried to ring later but encountered the same signal on 10 August around 7 – 8.30 pm. I believe you have a problem with the exchange and strongly advise you contact Telstra.

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

I apologise but I have made arrangements with another camp.

A testing situation

Late in 1993, a Mrs Cullen from Daylesford Community House informed me that she had tried unsuccessfully to phone me on 17 August 1993 at 5.17, 5.18, 5.19 and 5.20 pm, each time reaching a deadline. She had reported the fault to Telstra's Fault Centre in Bendigo on 1100, speaking to an operator who identified herself as Tina. Tina then rang my 1800 number, and she couldn't get through either. Telstra's hand-written memo, dated 17 August 1993, records the times Mrs Cullen tried to get through to my phone and reports Tina's failed attempt to contact me.

A copy of my itemised 1800 account shows that I was charged for all four of these calls, even though Mrs Cullen never reached me. All this information was duly passed to John MacMahon of Austel and, soon afterwards, Telstra at last arranged for tests on my line. These were to be carried out from a number of different locations around Victoria and New South Wales. Telstra notified Austel that some 100 test calls would take place on 18 August 1993 to my 1800 free-call service.

First thing that morning I answered two calls from Telstra Commercial, one lasting six minutes and another lasting eleven minutes, as they set up in readiness for the test calls expected that day. Over the rest of that day, there were another eight, perhaps nine calls from Telstra, which I answered. My 1800 phone account arrived, showing more than 60 calls charged to my service some days later. I queried this with Telstra, asking first how I could be charged for so many calls which did not ring, and next, why I should be paying for test calls anyway. In hindsight, I should have asked how more than 60 calls could have been answered in just 54 minutes when the statement shows that some of these calls came through at the rate of as many as three a minute.

Telstra wrote to Austel's John MacMahon on 8 November 1993, informing him that I had acknowledged answering a 'large number of calls' and that all the evidence indicated that 'someone at the premises answered the calls.' Austel asked for the name of the Telstra employee who made these so-called successful calls to my business, and I have also asked for this information, but Telstra didn't respond.

Then on 28 January 1994, I received a letter from Telstra's solicitors in which they referred to 'malicious call trace equipment' Telstra had placed — without my knowledge or consent — on my service between 26 May and 19 August 1993. This was the first I'd heard of it. This device, they explained, apparently caused a 90-second lock-up on my line after a call was answered, meaning that no further call could come into my phone for 90 seconds after I hung up.

This information put another complexity on the matter of those four calls from Mrs Cullen I was charged for in the space of a single 28 seconds and the 100 test calls from Telstra. Even supposing I could answer the phone at such a fast rate, the malicious call tracing equipment, apparently attached to my line at that time, was imposing its 90-second delay between calls, making the majority of these calls impossible. Telstra management, of course, had nothing to say about this.

What was going on? As far as I could tell, most of those 100 test calls simply weren't made; indeed, they couldn't have been made.

Late in 1994, I received two FOI documents concerning these calls. K03433 and K03434 showed 44 calls, numbered between 8 and 63, to the Cape Bridgewater exchange, nine of which had tick or arrow marks beside them. More than once, I asked Telstra what the marks represent but received no response. However, I presume that a technician made these marks against the calls I actually received and answered. A note on K03434 read:

Test calls unsuccessful. Did not hear STD pips on any calls to test no. The TCTDI would not work correctly on the CBWEX (Cape Bridgewater Exchange). I gave up tests.

The technicians themselves gave up on their testing procedure! The second series of tests conducted a year later in March 1994 fared little better. Telstra's fault data notes that only 50 out of 100 test calls were successfully connected. This information was of no use to me at the time, however, as it was withheld from me until September 1997. All I was to hear in 1994 was the old refrain: 'No fault found.'

Only one official document drew attention to the incapacity of Telstra's testing regime, and this was the Austel Draft Report regarding the COT cases, dated 3 March 1994, which concluded:

Cape Bridgewater Holiday Camp has a history of services difficulties dating back to 1988. Although most of the documentation 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 the customer base.

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.

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."   

It is also clear from Exhibit 8 dated 11 August 1995 (see BCI Telstra’s M.D.C Exhibits 1 to 46 a letter from BCI to Telstra;s Steve Black and Exhibit 36 on (see BCI Telstra’s M.D.C Exhibits 1 to 46 a further letter from BCI to Telstra's John Armstrong that neither letter is on a BCI letter head, as are Exhibits 1 to 7, from BCI to Telstra (see BCI Telstra’s M.D.C Exhibits 1 to 46. 

Both Exhibits 8 and 36 were provided by Telstra to the Senate Committee in October 1997, to support that BCI Cape Bridgewater tests were genuine when the evidence on absentjustice.com and Telstra's Falsified BCI Report confirms it is not.

Telstra has been relying on government ministers to ignore this fraud which the government has done for the past two decades or more.  

As far as Telstra's Simone Semmens stating on Nationwide TV (see above) that the Bell Canada International Inc (BCI) test conducted at the COT Cases telephone exchanges that serviced their business proved there were no systemic billing problems in Telstra's network does not coincide with the evidence attached to my website absentjustice.com or the public statement made by Frank Blount. The latter was Telstra's CEO during my arbitration. In 2000 in his co-produced manuscript.

On pages 132 and 133 in publication Managing in Australia (See File 122-i - CAV Exhibit 92 to 127) Frank Blounts reveaks Telstra did have a systemic 1800 billing problem affecting Australian consumers accross Australia. These were the same 1800 billing problems the arbitrator Dr Gordon Hughes would not allow his two technical consultants DMR (Canada) and Lane (Australia) to investigate (see Chapter 1 - The collusion continues). 

Had Dr Hughes given DMR & Lane the extra weeks they stated in their 30 April 1995 report was needed to investigate these ongoing 1800 faults (see Chapter 1 - The collusion continues) DMR & Lane would have uncovered what Frank Blount had uncovered. For Telstra to have mislead and deceivied  the arbitrator concerning these 1800 faults is one thing, but to mislead and devieve their 1800 customers is another issue in deed.

The following link Evidence - C A V Part 1, 2 and 3 -Chapter 4 - Fast Track Arbitration Procedure confirms Frank Blount, Telstra’s CEO, after leaving Telstra in he co-published a manuscript in 2. entitled, Managing in Australia. On pages 132 and 133, when discussing these 1800 network faults the author/editor writes exposes :

• “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 › can still be purchased online. 

The fact that Telstra allowed Simone Semmens to state on Nationwide TV that the Bell Canada International Inc (BCI) test 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 there were other legal processes being administered where the billing was an issue is deception of the worse 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 statdard when both Telstra and BCI knew different.  

Telstra’s Mr Benjamin's statement to Senator Schacht — "...I am not aware of that particular statement by Simone Semmens, but I think that would be a reasonable conclusion from the Bell Canada report,'' is also misleading and deceptive because I had already provided Mr Bejamin (see AS-CAV Exhibit 181 to 233 - AS-CAV 196, AS-CAV 188,  AS-CAV 189 and AS-CAV 190-A), with the proof the Cape Bridgewater BCI tests were fundamentally flawed.

Senator Schacht' s further statement — since then of course—not in conversations but elsewhere— we now have major litigation running into hundreds of millions of dollars  between various service providers and so on which are complaints about the billing system. Does that indicate that she may have been partly wrong?

Wrong or not, we know that several of those business owners who made those complaints lost their court actions and their businesses.

FIVE YEARS ON

Telstra in contempt of the Senate

On 23 March 1999, almost five years after most of the arbitrations had been concluded, the Australian Financial Review (newspaper) reported on the conclusion of the Senate estimates committee hearing into why the COT Cases were forced into a government-endorsed arbitration without the necessary documents they needed to fully support their claims i.e.

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

I doubt there are many countries in the Western world governed by the rule of law, as Australia purports to be, that would allow a group of small-business operators to be forced to proceed with a government-endorsed arbitration while allowing the defence (the government which owned the corporation) to conceal the necessary documents these civilians needed to support their claims. Three of those previously withheld documents confirm Telstra was fully aware that the Cape Bridgewater Bell Canada Internations Inc (BCI) tests could not possibly have taken place according to the official BCI report Telstra used as arbitration defence documents.

On my behalf, Mr Schorer (COT. Spokesperson) raised the Cape Bridgewater BCI deficient tests with Senators Ron Boswell and Chris Schacht. Pages 108-9 of Senate Hansard records (refer to Scrooge - exhibit 35) confirm Telstra deflected the issue of impracticable tests by stating my claim – that the report was fabricated – was incorrect. The only problem with the report was an incorrect date for one of the tests. The Senate then put Telstra on notice to provide evidence of that error.

If the 12 January 1998 letter to Sue Laver, with the false BCI information attached is not enough evidence to convince the Australian Government that Telstra cannot continue pretending. They know nothing about the falsified Cape Bridgewater BCI tests, Telstra, and the Senate estimates committee chair was again notified, on 14 April 1998, that the Cape Bridgewater BCI tests were impracticable. When is Telstra going to come forward and advise the Telstra board that my claims are right and that indeed it was unlawful to use the Cape Bridgewater BCI tests as arbitration defence documents as well as grossly unethical to have provided the Senate with this known false information when answering questions on notice?

On pages 23-8 of this letter, and using the Cape Bridgewater statistics material, Graham provided clear evidence to Sue Laver and the chair of the Senate legislation committee that the information Telstra provided to questions raised by the Senate on notice, in September and October 1997, was false (see Scrooge - exhibit 62-Part One and exhibit 62-Part-Two). Telstra was in contempt of the Senate. No one yet within Telstra has been brought to account for supplying false Cape Bridgewater BCI results to the Senate. Had Telstra not supplied this false information to the Senate, the Senate would have addressed all the BCI matters I now raise on absentjustice.com in 2021.

Telstra’s Falsified BCI Report’  is all the evidence necessary to show that arbitration lawyers provided false information to Telstra’s arbitration witness, namely the clinical psychologist, during my government-endorsed arbitration, and two years later, Telstra supplied that same BCI false information on notice to the Senate.

It is ironic that two Telstra technicians, in two separate witness statements dated 8 and 12 December 1994, discuss the testing equipment used by Telstra in overall maintenance and state that the nearest telephone exchange, to Portland and Cape Bridgewater, that could facilitate the TEKELEC CCS7 equipment was in Warrnambool 110 kilometres from Portland/Cape Bridgewater, where BCI alleged they carried out their PORTLAND / Cape Bridgewater tests via the Ericsson AXE exchanges trunked through the TEKELEC CCS7 equipment.

I have shown throughout this webpage absentjustice.com, including in the Brief Ericsson Introduction⟶  that in several cases such as Cape Bridgewater (where I tried to run my telephone dependent business), Ericsson telephone equipment was known to affect the telephone equipment that serviced my business. And yet Telstra was still prepared the lie and cheat in the arbitration defence of my claim as well as during a Senate Estimates investigation into my Ericsson AXE BCI claims.    

On 12 January 1998, during the Senate estimates committee investigations into COT FOI issues, Graham Schorer provided Sue Laver (now in 2021) Telstra’s corporate secretary with several documents. On page 12 of his letter, Graham states:

“Enclosed are the 168 listings extracted from Telstra’s Directory of Network Products and Network Operations, plus CoT’s written explanation, which alleges to prove that parts of the November 1993 Bell Canada International The report is fabricated or falsified.”

Had the Senate been advised by Sue Laver there was merit in my complaints concerning the flawed BCI testing, my matters raised on absentjustice.com could have been resolved two decades ago. 

Please click on the following link Telstra’s Falsified BCI Report and form your own opinion as to the authenticity of the BCI report which was used by Telstra as an arbitration defence document?

The evidence which supports the report is attached as BCI Telstra’s M.D.C Exhibits 1 to 46

On 23 October 1997, the office of Senator Schacht, Shadow Minister for Communications, faxed Senator Ron Boswell the proposed terms of reference for the Senate working party for their investigation into the COT arbitration FOI issues which Sue Laver,. Telstra's current Corporate Secretary in 2001, was heavily involved in these Senate hearings on behalf of Telstra.  This document shows the two lists of unresolved COT cases with FOI issues to be investigated. My name appears on the Schedule B list (see Arbitrator File No 67). Telstra, by still refusing to supply these 16 COT cases with promised discovery documents, first requested four years earlier, was acting outside of the rule of law and yet, regardless of Telstra breaking the law, these 16 claimants received no help from the police, arbitrator or government bureaucrats and were denied access to their documents, as absentjustice.com shows.

Exhibit 20-A, a letter dated 9 December 1993 from Cliff Mathieson of AUSTEL to Telstra’s Manager of Business Commercial, states on page 3,

 "...In summary, 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."

Had this letter and the many other letters in BCI Telstra’s M.D.C Exhibits 1 to 46 been provided to the senate as part of Telstra's response to questions placed on notice concerning my claims the BCI Cape Bridgewater tests were impracticable the Senate might well have demanded more information regarding my claims. This BCI 9 December 1993 letter is also discussed in the introduction to My story-warts and all as follows:

After my arbitration was concluded, I alerted Mr Tuckwell that Telstra had used these known corrupt Bell Canada International Inc (BCI) Cape Bridgewater tests to support their arbitration defence my claims without AUSTEL's letter being supplied to the arbitrator (see Telstra's Falsified BCI Report).

“The tests to which you refer were neither arranged nor carried out by AUSTEL. Questions relating to the conduct of the test should be referred to those who carried them out or claim to have carried them out.”  File 186 - AS-CAV Exhibit 181 to 233

If Neil Tuckwell (on behalf of the government communications regulator) had demanded answers back in 1995 as to why Telstra used known falsified BCI tests, this falsifying of arbitration defence documents would have been dealt with in 1995 instead of still actively being covered up in 2022.

I reiterate, by clicking onto the following link Telstra’s Falsified BCI Report you can form your own opinion as to the authenticity of the BCI report and/or my version that clearly shows the Cape Bridgewater test was impracticable.

The evidence (46 exhibits) which support my report is attached as BCI Telstra’s M.D.C Exhibits 1 to 46

 

COT is partly vindicated by audit

For all its faults, Austel pressured Telstra to commission an audit of its fault handling procedures. Telstra engaged the international audit company of Coopers & Lybrand to report on its dealings with complaints like those raised by COT members. Coopers & Lybrand’s report conveys serious concern at the evidence we presented of Telstra’s unethical management of our complaints.

The Coopers report did not go down well with Telstra. The Group Managing Director of Telstra wrote to the Commercial Manager Refer to Chapter 6 Bad Bureaucrats:

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

These are strong words from the most senior manager below the CEO of a corporation that had a monopoly on the telecommunications industry in Australia. Austel tabled the Coopers & Lybrand report in the Senate, but with some significant changes to what had appeared in the draft report. Regardless of those changes, Coopers were still damning in their assessment to what had happened to the COT Cases.

The following points are taken directly from the Coopers & Lybrand report:

2.20     Some customers were put under a degree of pressure to agree to sign settlements which, in our view, goes beyond normal accepted fair commercial practices.

2.22     Telstra placed an unreasonable burden on difficult network fault cases to provide evidence to substantiate claims where all telephone fault information that could reasonably determine loss should have been held by Telstra.

(2)        Fault handling procedures were deficient in terms of escalation criteria and procedures, and there is evidence that in some cases at least, this delayed resolution of these cases.

3.5       We could find no evidence that faults discovered by Telstra staff which could affect customers are communicated to the staff at business service centres who have responsibility for responding to customers’ fault reports.

We COT four at last felt vindicated; we were no longer alone in claiming that Telstra really did have a case to answer.

A Fast Track (Commercial Assessment) Settlement Process

To summarise. Senators Alston and Boswell had taken up COT’s cases with Telstra and Austel in August 1993, saying that if they were not swiftly resolved there would be a full Senate Inquiry. Telstra agreed to cooperate, and Austel was authorised to make an official investigation into our claims.

As a result of their investigation, Austel concluded that there were indeed 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, had won a significant battle. Sometimes, we thought, David wins over Goliath, even in the twentieth century.

Because we were all in such difficult financial positions, Austel’s chairman, Robin Davey, recommended that Telstra appoint a commercial loss assessor to arrive at a value for our claims. These claims had already been found generally to be valid in Austel’s Report, The COT Cases: Austel’s Findings and Recommendations, April 1994 (public report) and it only remained for an assessor to determine an appropriate settlement based on the detailed quantification of our losses.

This ‘Fast Track Settlement Process’ was to be run on strictly non-legal lines. This meant we were not to be burdened with providing proof to support all of our assumptions, and we would be given the benefit of the doubt in quantifying our losses. This was the process Austel specifically deemed appropriate to our cases. Telstra was to give us prompt and speedy access to any discovery documents we needed to enable us to complete our claims as quickly as possible.

Telstra also agreed that any phone faults would be rectified before the assessor handed down any decision regarding payouts. After all, what good would a commercial settlement be if the phone faults continued? At last we began to feel we were getting somewhere. Robin Davey also assured us that any costs we might incur in preparing our claims would be considered as part of our losses, so long as our claims were proved. However, he would not confirm this assurance in writing because, he explained, it could set an unwanted precedent.

Telstra was anxious about setting precedents. On 18 November 1993, Telstra’s Corporate Secretary had written to Mr Davey 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 Austel recommendations flowing from this and other reviews.

In effect, we four COT members were given special treatment in terms of having a commercial assessment rather than the arbitration process. By this time Austel was dealing with another dozen or so COT cases. We four were being ‘rewarded’ for the efforts we had made over such a long period of suffering business losses. On the other hand, we were also being pressured by this rush — we would lose the option for a commercial assessment if we didn’t sign by 23 November, a mere five days away. The problem was, we were reliant on the supporting documents we needed for our claims. For these we were dependent on Telstra’s good will, and their track record gave us no confidence in that. We were also concerned about the lack of written assurance regarding compensation for preparational and other expenses.

On 22 November we turned for advice to Senator Alston, Shadow Minister for Communications. His secretary, Fiona, sent him an internal memo headed ‘Fast Track Proposal’, in which she conveyed our concerns:

Garms and Schorer want losses in Clause 2(c) to include its definition, ‘consequential loss arising from faults or problems’ although Davey verbally claims that consequential losses is implied in the word ‘losses’ of which he has given a verbal guarantee he will not commit this guarantee to writing.

COT members are sceptical of Davey’s guarantee given that he will not commit it to writing. On top of this, COT alleges that Telstra, in the past, has not honoured its verbal guarantees and so does not completely trust Davey.

COT want your advice whether or not COT should demand that clause 2(c) include a broader definition of losses to include consequential losses.

COT was hoping for your advice by tomorrow.

There was no response from Senator Alston.

Graham, Ann, Maureen and I signed the FTSP the following day, hoping we could trust Robin Davey’s verbal assurances that consequential losses would be included and that Telstra would abide by their agreement to provide the necessary documents. I included a letter with the agreement, clearly putting my expectations of the process:

In signing and returning this proposal to you I am relying on the assurances of Robin Davey, Chairman of Austel, and John MacMahon, General Manager of Consumer Affairs, Austel, that this is a fair document. I was disappointed that Mr Davey 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.

Despite nagging doubts, we felt a great sense of relief once we had sent off the agreement. The pressure on all four of us had been immense with TV and newspaper interviews as well as our ongoing canvassing of the Senate. And I had never stopped hammering for change in rural telephone services, at least in Victoria.

In December 1993 David Hawker MP, my local federal member, wrote to congratulate me for my ‘persistence to bring about improvements to Telecom’s country services’ and regretted ‘that it was at such a high personal cost.’

This was very affirming, as was a letter from the Hon. David Beddall MP, Minister for Communications in the Labor Government, which said, in part:

Let me say that the Government is most concerned at allegations that Telecom 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.

A number of other small businesses in rural Australia had begun to write to me regarding their experiences of poor service from Telstra detailing problems with their phones and various billing issues. I contacted Telstra management myself on a number of occasions, putting on record my requests for these matters to be resolved. I believe this was a responsible reaction to the letters I was receiving.

Rural subscribers wrote to TV stations and newspapers supporting my allegations that, with regard to telephone services, rural small-business people and the general public suffered a very bumpy playing field compared to our city cousins. David M. Thomson & Associates, Insurance Loss Adjusters in Ballarat, wrote to the producer of Channel 7’s ‘Real Life’, a current affairs program:

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 Telstra structure the majority of our local calls are STD-fee based.

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 Telstra 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.

A letter to the Editor of Melbourne’s Herald-Sun, read:

I am writing in reference to your article in last Friday’s Herald-Sun (2nd April 1993) 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.

I 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 053 424 675 and also my home number and received no response – a dead line.

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

(Because of a number of reports regarding this ‘piercing noise’, Ray Morris from Telstra’s Country Division arranged to have my service switched to another system. Unfortunately this did not help.)

TV stations reported that their phones ran hot whenever they aired stories about phone faults. People rang from all over the country with complaints about Telstra’s service. This support from the media and the general public boosted our morale and gave us more energy to keep going as a group. We continued to push to have these matters addressed in the Senate.

AUSTEL’s Adverse Findings, at points 10 to 212 were compiled after the government communications regulator investigated my ongoing telephone problems. Government records (see Absentjustice-Introduction File 495 to 551) show AUSTEL’s adverse findings were provided to Telstra (the defendants) one month before Telstra and I signed our arbitration agreement. This allowed Telstra the chance to conceal the documents AUSTEL had located in Telstra's files before my arbitration began. I did not get a copy of these same findings until 23 November 2007, 12 years after the conclusion of my arbitration.

Point 115 –

“Some problems with incorrectly coded data seem to have existed for a considerable period of time. In July 1993 Mr Smith reported a problem with payphones dropping out on answer to calls made utilising his 008 number. Telecom diagnosed the problem as being to “Due to incorrect data in AXE 1004, CC-1. Fault repaired by Ballarat OSC 8/7/93, The original deadline for the data to be changed was June 14th 1991. Mr Smith’s complaint led to the identification of a problem which had existed for two years.” 

Point 130 –

 “On April 1993 Mr Smith wrote to AUSTEL and referred to the absent resolution of the Answer NO Voice problem on his service. Mr Smith maintained that it was only his constant complaints that had led Telecom to uncover this condition affecting his service, which he maintained he had been informed was caused by “increased customer traffic through the exchange.”  On the evidence available to AUSTEL it appears that it was Mr Smith’s persistence which led to the uncovering and resolving of his problem – to the benefit of all subscribers in his area”. 

Point 153 –

“A feature of the RCM system is that when a system goes “down” the system is also capable of automatically returning back to service. As quoted above, normally when the system goes “down” an alarm would have been generated at the Portland exchange, alerting local staff to a problem in the network. This would not have occurred in the case of the Cape Bridgewater RCM however, as the alarms had not been programmed. It was some 18 months after the RCM was put into operation that the fact the alarms were not programmed was discovered. In normal circumstances the failure to program the alarms would have been deficient, but in the case of the ongoing complaints from Mr Smith and other subscribers in the area the failure to program these alarms or determine whether they were programmed is almost inconceivable.” 

Spoliation of evidence – Wikipedia

In simple terms, by AUSTEL only providing Telstra with a copy of their AUSTEL’s Adverse Findings in March 1994, not only assisted Telstra during their defence of my 1994/95 arbitration it also assisted Telstra in 2006, when the government could only assess my claims on a sanitized report prepared by AUSTEL and not their AUSTEL’s Adverse Findings.

Muzzling the media

We were getting a good amount of media coverage, even though it appears likely that some journalists were being asked by Telstra to ‘kill’ certain stories.

A memo between executives within Telstra back in July, entitled ‘COT Cases Latest ’, states, in part:

I disagree with raising the issue of the courts. That carried an implied threat not only to COT cases but to all customers that they will end up as lawyer fodder. Certainly that can be a message to give face to face to customers to hold in reserve if the complainants remain vexatious.

We are left to wonder how many Telstra’s customers like the COT Cases, who once they went into arbitration and/or mediation, ended up as lawyer fodder with broken homes and businesses destroyed?

A TV news program was also a target:

Good news re Channel —— 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 phrase it was that convinced —— not to proceed. Might have been one of ‘(name deleted) pearls.

The name deleted was Telstra’s Corporate Secretary at the time. I have omitted the identity of the TV station and reporter. We too can only wonder what it was that convinced a respected journalist to drop a story.

It transpired that the same area general manager who deliberately misinformed me during the settlement process in 1992–93 was one of the two Telstra staff appointed to ‘deal with the media/politicians’ regarding COT issues. Would she misinform the media the way she misinformed me, I wondered.

A memo between executives within Telstra back in July1993, entitled ‘Cot Wrap-Up’, states, in part:

I think it should be acknowledged 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.

I advise that Clinton be targeted for some decent Telstra exclusive stories to get his mind out of the gutter. Prologue Evidence File No 24 to 39

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

Another most startling document which I received long after my arbitration Telstra FOI folio 101072 to 10123 titled “In-Service Test Performance for The Telecom Australia Public Switched Telephone Service (Telecom Confidential) notes:

“The performances tabulated below have been formulated to aid dispute investigation and resolution. The information contained herein is for internal Telstra Corporation use only and must not be released to any third party, particularly AUSTEL.” (refer 101072 Arbitrator File No 63)

If AUSTEL had known that this document included the words: “must not be released to any third party, particularly AUSTEL”, perhaps their public servants might not have perjured themselves in defence of Telstra’s arbitration claims that all the Service Verification Testing at my business on 29 September 1994 had met all AUSTEL’s specifications? And I believe those public servants certainly did perjure themselves, not only in their 2 February 1995 letter but again in the third COT cases quarterly report to the communications minister, the Hon Michael Lee MP. Refer to Main Evidence File No/2 and File No 3 which confirms that, at my premises at least, Telstra definitely did not carry out their arbitration Service Verification Testing (SVT) to AUSTEL’s mandatory specifications, at all.

During this story as well as on my website, I have raised the issue of the government communications regulator writing to Telstra before the COT arbitrations began to warn them that the government would be quite concerned if a certain legal firm had any further involvement with the COT settlement/arbitration process. I also raised my concern when the arbitration agreement faxed to the TIO’s office on 10 January 1994 bore the abbreviated name of this very same legal firm, despite the government assuring us this firm would NOT have a continuing role to play.

This FOI document (refer to Arbitrator File No/80), dated in the month of September 1993, was released to me by Telstra under FOI too late for me to use in my arbitration claim may well have persuaded the arbitrator to have allowed me more time to access documents from Telstra. As this document was released to me after my arbitration, one would have to assume it relates to my ongoing telephone problems i.e.

“All technical reports that relate to the customer’s service are to be headed “Legal Professional Privilege”, addressed to the Corporate Solicitor and forwarded through the dispute manager.”

This Legal Professional Privilege document must be related to the threats I received from Telstra that if I did not register my phone complaints with these same lawyers (in writing) then Telstra would not investigate those complaints.  

Chapter 5

Sold out

TIO Evidence File No 3-A is an internal Telstra email (FOI folio A05993) dated 10 November 1993, from Chris Vonwiller to Telstra’s corporate secretary Jim Holmes, CEO Frank Blount, group general manager of commercial Ian Campbell and other important members of the then-government owned corporation. The subject is Warwick Smith – COT cases and it is marked as CONFIDENTIAL:

“Warwick Smith contacted me in confidence to brief me on discussions he has 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 the Shadow Cabinet. …
The intermediary will raise the matter with Boswell, and suggest that Boswell discuss the issue with Warwick. The TIO 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.”

Exhibit TIO Evidence File No 3-A confirms that two weeks before the TIO was officially appointed as the administrator of the Fast Track Settlement Proposal FTSP, which became the Fast-Track Arbitration Procedure (FTAP) he was providing the soon-to-be defendants (Telstra) of that process with privileged, government party room information about the COT cases. Not only did the TIO breach his duty of care to the COT claimants, he appears to have also compromised his own future position as the official independent administrator of the process.

It is highly likely the advice the TIO gave to Telstra’s senior executive, in confidence, (that Senator Ron Boswell’s National Party Room was not keen on holding a Senate enquiry) later prompted Telstra to have the FTSP non-legalistic commercial assessment process turned into Telstra’s preferred legalistic arbitration procedure, because they now had inside government privileged information: there was no longer a major threat of a Senate enquiry.

Was this secret government party-room information passed on to Telstra by the administrator to our arbitrations have anything to do with the Child Sexual Abuse and the cover-up of the paedophile activities by a former Senator who had been dealing with the four COT Cases? The fact that Warwick Smith, the soon-be administrator of the COT settlement/arbitrations, provided confidential government in-house information to the defendants (Telstra) was a very serious matter. 

On 17 January 1994, Warwick Smith the Telecommunications Industry Ombudsman (TIO) distributed a media release announcing that DR Gordon Hughes would be the assessor to the four COT Fast Track Settlements processes. The TIO did not say that, as I had feared, Telstra was not abiding by their agreement: they were not supplying us with the discovery documents critical for establishing our cases. The TIO also failed to tell the Australian public in this media release that he had agreed to secretly assist Telstra by providing them COT Cases issue  that were being discussed in the Coalition government Party Room.

Telstra and the TIO was treating us with sheer contempt, and in full view of the TIO and assessor. We were beginning to believe that no single person, and no organisation, anywhere in Australia, had the courage to instigate a judicial inquiry into the way Telstra steamrolled their way over legal process.

To be fair, Austel’s chairman, Robin Davey, expressed his anger to Telstra about their failure to supply us our necessary documents, but it was to no avail. By February 1994, Senator Ron Boswell asked Telstra questions in the Senate, again to no practical avail. (Questions about this failure to supply FOI documents were raised in the Senate on a number of occasions over the following years, by various Senators, whose persistence ultimately paid off for some members of COT but, unfortunately, not for me.)

Worse than this, however, was a new problem for us COT four. The assessor had somehow been persuaded (presumably by Telstra) to drop the commercial assessment process he had been engaged to conduct and adopt instead an arbitration procedure based on Telstra’s arbitration process. Such a procedure would never be ‘fast-tracked, and was bound to become legalistic and drawn out. Telstra knew none of us had the finances to go up against its high-powered legal team in such a process. This was the last thing we COT members wanted. We had signed up for a commercial assessment and that’s what we wanted.

Graham Schorer (COT spokesperson) telephoned the TIO, to explain why the COT four were rejecting the arbitration process. Our reasons were dismissed. The TIO said he had been spending too much time on his role as administrator of our FTSP; that his office had already incurred considerable expense because of this role (Telstra was slow in reimbursing those expenses). He went onto say that his office had no intention of continuing to incur expenses on our behalf. He told Graham that if we did not agree to drop our commercial agreement with Telstra, Telstra would pull out all stops to force us into a position where we would have to take Telstra to court to resolve our commercial losses.

Moreover, if we decided to take legal action to compel Telstra to honour their original commercial assessment agreement, he (the TIO) would resign as administrator to the procedure. This action, he insisted, would have forced an end to the FTSP and left us with no alternative but to each take conventional legal action to resolve our claims.

On 30 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 11th 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.

Senator Richard Alston, however discussed the Problem 1 document on 25 February 1994 during a Senate Estimates hearing. Another previously unseen document, dated 24 July 1992 and provided to Senator Richard Alston in August 1993, includes my phone number and refers to my complaint that people ringing me get an RVA “service disconnected” message. Yet another document, dated 27 July 1992, discusses problems experienced by potential clients who tried to contact me from Station Pier in Melbourne. (See Arbitrator File No 60).

Some of these hand-written records go back to October 1991, and many of them were fault complaints that I had not recorded myself. Telstra, however, has never explained who authorised the withholding of these names (those who had complained to Telstra) from me. If I had known who had been unable to contact me, I could have contacted them with an alternate contact number for future reference. Has the withholding of these names and the unavailability of my past historic fault documents related to the Jim Holmes issues mentioned below i.e. (see documents A01554, A06507 and A06508  - TIO Evidence File No 7-A to 7-C)?

The TIO had sold us out.

We implored the TIO to let us continue with the original FTSP agreement, but our pleas fell on deaf ears. Austel was no help either, and by April 1994, we had no choice but to prepare ourselves for an arbitration process. The first step was to familiarise ourselves with the rules of arbitration, unaware that Telstra’s lawyers had drafted them.

We had had been told, Austel had been told, and the Senate had been told that the arbitration agreement rules had been drawn up specifically for the purpose, independently of Telstra, by the President of the Institute of Arbitrators of Australia. We asked for a copy of these rules, which had already, apparently, been supplied to the TIO’s office, but the TIO refused our request, saying that it was ‘irrelevant to our cause’ More than once we asked the TIO for a copy, to no avail. We were told we should trust the arbitrator. And so, foolishly, we did. We really had no choice. We were all exhausted, stressed and clutching at straws. Singly and as a group we were vulnerable to the mute force of Telstra’s corporate power.

The rules included a confidentiality agreement that prevented anyone involved in the arbitration process from discussing the conduct of the arbitration process. In other words, if either party committed an offence of a criminal nature, this confidentiality clause would effectively stop an investigation, thereby allowing a cover-up. In my case, even though the TIO and the arbitrator were aware Telstra had perverted the course of justice during my arbitration, this confidentiality clause has so far stopped any investigation into this unlawful conduct. 

The Establishment 

While it is clear the Australian Establishment saw him as a shining light because he was protecting the assets of the then Government-owned telecommunications carrier, and therefore protecting the public purse and so creating an outcome for the good of all Australians, what that arbitrator, and the Government, have never wanted to acknowledge is that when Dr Hughes bent the law to protect Telstra and its shareholders it actually meant that the rule of law was breached. Telstra, the TIO who was also the administrator of the arbitrations the arbitrator, used their position to bluff those interested government ministers of seeing a just outcome to all of the COT arbitrations including, the media into believing that the services once investigated during the arbitration process once an award had been handed down by the arbitrator that service was now operating efficiently and effectively. When this was disputed or fought in any way by the claimant then it was Telstra, the TIO and the arbitrators policy to fight the accusations for as long as possible to tire and eventually wear down the claimant. In my own case, it is shown in Bad Bureaucrats that over a six year period after my arbitration and no one would investigate my complaints of ongoing unaddressed arbitration faults I reluctantly sold the business in December 2001, to the Lewis family. Their seven year unsuccessful  attempt to have the problems fixed is scattered throughout our story.

To present this statutory declaration in some sort of chronology of events we need to begin before April 1994, when the appointed commercial assessor decided, with the first TIO and the defendants (Telstra), to turn the commercial assessment, FTSP, into a highly legalistic arbitration process. Telstra’s lawyers controlled at least 33 of Australia’s largest legal firms and most, if not all, of Australia’s technical resource units (see Senate Hansard for 24 June and 26 September 1997). By using Telstra’s drafted arbitration agreement, faxed to the TIO on 10 January 1994, Telstra had their foot in the door to control the whole arbitration process. Later, Dr Hughes alerted the TIO, in his letter of 12 May 1995 (see Open Letter File No/56-A), that they were duped by Telstra into using an agreement that did not allow enough time for the:

“inevitable delays associated with the production of documents, obtaining further particulars and the preparation of technical reports”.

The only choice these two lawyers should have had was to admit they misled and deceived the four COT cases, the claimant’s lawyers and many of Australia’s government ministers, including the Canberra Parliament House press gallery, into believing the arbitration agreement was totally prepared independently of Telstra, when this was far from the truth, as they both knew. Instead, they decided to conceal, what they had done and by doing so they have stolen 22-years of our lives.

On18 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 18th November 1993 (FOI D01274 to D01276, pointing out that:

“(3) Telecom does not accept the COT Cases’ grounds for reviewing the earlier settlements. However, on the basis of a denial of liability and without any legal obligation to do so and purely as a matter of good faith and business expediency, Telecom is prepared to agree to the above mentioned review.

(4) This proposal constitutes and offer open to all or any of the COT Cases referred to in Clause (1) (a), which will lapse at 5 pm Tuesday 23 November 1993. This offer may be accepted by signature below and sending advice of such signature to AUSTEL or the Telstra Corporate Secretary before that time.”

On 23 November Graham Schorer, Ann Garms, Maureen Gillan and I 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 Mr Robin Davey, Chairman of Austel, and Mr John MacMahon, General Manager, Consumer Affairs, Austel, that this is a fair document. I was disappointed that Mr Davey was unwilling to put his assurances in writing, but am nevertheless prepared to accept what he said."

It goes on to say:

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.”

A more precise chronology of events surrounding the Fast Track Settlement Proposal v Fast Track Arbitration Procedure as well as who drafted the originall FTAP can be obtained by clicking on Evidence - C A V Part 1, 2 and 3 - Chapter 3 - Fast Track Settlement Proposal.

Signing for arbitration, April 1994

On 21 April 1994 when we signed the documents to launch the new arbitration procedure, we still hadn’t seen the rules of arbitration. Not only did we want to see what we were in for, we wanted to make sure that the rules really were different from Telstra’s ‘proposed rules’. Our concerns were of no interest to the TIO however and so, as lambs to the slaughter, we signed on the dotted line. Later we discovered that the set of rules that had been supplied to the TIO’s office was actually headed "Telstra Corporation- Limited 'Fast Track' Proposed Rules of Arbitration". No wonder he had not wanted us to see it. The assurance we had been given as to the drafting of the rules had been a complete lie. Was anybody interested? I don’t need to give the answer to that.

My time now was focused on preparing my case for arbitration. In April 1994, Austel released its report on the COT cases,, and I used its findings and recommendations as a basis for my claims. I thought its findings in relation to my case were a lot milder than the original submissions I had made, but I learned that Austel had apparently had to tone it down because Telstra had threatened to enforce an injunction tying the report up for years. Austel had agreed to the amendments demanded by Telstra so that we COT four could have access to information in the report to prepare our claims. I did not know then of the ‘secret’ draft that I mentioned at the end of Chapter Three. This I did not discover until 2007.

In the meantime though, the Austel Report did confirm something for me. While I was hearing a constant refrain of ‘No fault found’ from Telstra, technicians were recording the truer picture. On occasions when I had rung to report the phone ringing once or twice, followed by no connection, officials had refused to acknowledge the fault, but in its report, Austel showed a different story:

In the period February to April 1993 Telstra staff responding to complaints lodged by Mr Smith of the Cape Bridgewater Holiday Camp recorded in their notes that there was a fault known to exist in AXE (digital) switching equipment which could give rise to a single burst of ring, followed by a busy tone to a caller and dial tone to the called party.

This was supported by quotes from technicians on the complaint forms:

‘This problem occurs intermittently throughout the network and although it is recognised as a problem there appears to be no one person or group involved in resolving it.’

‘I believe this may be tied up with the axe network problem which gives only one burst of ring and the calling party gets busy tone.’

A new fault

Even as I began to assemble my claims, there was a new fault to include. This was the ‘hang-up’ fault. While Telstra was refusing to send me documentary evidence for my claim, I was ringing their engineers about testing this hang-up fault, creating no doubt more evidentiary material that would be denied to me.

Since August 1993, I had complained to Telstra that customers and friends alike were commenting on the peculiar behaviour of my direct line, which was also a fax line. After I had hung up from calls I had initiated, they could (if they were slower to hang up) still hear me moving around the office. Because of all the other problems I was dealing with, I hadn’t paid much attention to this, but I needed now to come to grips with it.

On 26 April 1994, I phoned Cliff Matherson, a senior engineer at Austel, who suggested we carry out a series of tests. First, I was to hang up and count out loud, from one to ten, while he listened at his end. I did this; he heard me right through to the number ten and suggested we try it again but count even further this time. Again, he could hear me right through the range I counted. Next, he suggested I remove the phone from that line and replace it with the phone connected to my other line (they were both the same Telstra phones, Exicom model T200). We repeated the test, with the same results. According to Mr Matherson (and it was also apparent to me) this proved that the fault was not in the phone itself, but somewhere in the Telstra network. His next suggestion was that I ring Telstra, which I duly did.

I explained to the Telstra engineer that I could count to 15 or more after hanging up, and that the person at the other end could hear me. I didn’t mention that I had tested two different phones because I was well aware that Telstra had a strong inclination to blame the customer’s equipment first. I was interested to see what he would come up with first.

I performed the same tests with the Telstra engineer, with the same results, and he promised to send a technician to collect the phone the next day. An internal email in March 1994 shows that Telstra’s engineer was aware, before the phone was even tested, that heat in the Cape Bridgewater exchange was causing the fault; the email also adds to the evidence that Telstra was aware of phone faults in the exchange, even while I was preparing my claim for arbitration.

I am concerned to note that heat may be part of the problem. I had occasion earlier this year to get involved in another ‘ongoing’ case involving an RCM with a heat problem at Murrumbateman (just outside Canberra). I do note, that one of the symptoms from the Murrumbateman case was ‘Not Receiving Ring,’ something Alan Smith at Cape Bridgewater has been complaining about for some time.

When my Telstra account is compared with Telstra’s data for this period, the call hang-ups and incorrect charging were occurring from at least August 1993 right up until the phone was taken away on 27 April 1994. The phone itself was an Exicom, manufactured in April 1993, and later proved to be a player in one of the many sub-plots of this saga. But that story comes later.

Preparational costs

In May 1994, A huge bundle of FOI documents finally arrived from Telstra, originally requested by me in December 1993, five months after they should have been provided under the then FOI Act. The legality requirements under the Act states quiet clearly that those supplying that requested information had 30-days in which to release the documentation being sought.  However, Telstra has always been a law unto themselves with little the government seemed to be able to quash. ‘Wonderful,’ I thought, ‘now we’re getting somewhere.’ I was wrong. According to the FOI act, documents should be supplied in some sort of order, numbered, and preferably chronological. These documents had no numbering  system, and were not in chronological order. Many were unreadable, with so much information blanked out that they were totally worthless. This would have driven even the most hardened lawyer to the wall with frustration. How could I support my claim with material like this?

A law student to assist would have been a God send. The mountain of documents threatened to engulf me entirely, especially knowing that Telstra’s enormous legal team stood by, waiting to pounce on every slightest crack they could manufacture in the claim documents I submitted.

I sought out the TIO and his legal counsel, explaining my lack of confidence and reiterating Robin Davey’s belief that a non-legalistic hearing was the best and fairest way for us to present our cases. The TIO could only console me with ‘Do the best you can,’ while his legal counsel assured me that the process was fair.

It was at this point of time that I decided I had no choice but to seek professional help. I began by approaching a firm of loss assessors in nearby Mt Gambier who had acted for me after some storm damage at the camp some years earlier. The assessor remembered that he had had a lot of trouble contacting me by phone. After discussing my current position, I decided that my problems were outside his area of expertise. I continued my search for assistance in the Melbourne metropolitan area, approaching four different companies specialising in communications. Three didn’t even respond in writing and the fourth simply wished me luck in finding someone who would be brave enough to go up against Telstra.

After this, I approached George Close in Queensland. George had technical expertise in the telecommunications area and was already working on Ann Garms’s case. He agreed to take mine on too, observing that we would get more of an insight into how Telstra was operating this way. Once Telstra became aware that we had secured George’s services, they approached him too, with an offer of work. It would seem they were trying to close off all avenues for us. George, however, at 70 years of age, was having none of that. He replied to Telstra that it would create a conflict of interest and, bless his beautiful heart, he declined their offer.

I also needed someone to help put the whole claim together. Finally, I located Garry Ellicott, an ex-National Crime Authority detective with a loss assessor company, Freemans, in Queensland. A final member of my team was Derek Ryan, a forensic accountant.

I felt cautiously optimistic. Government ministers, Austel, even the auditors, all agreed that the COT cases were right and Telstra was wrong. But we still had our backs against the wall. We were all in financial trouble and we were getting no financial assistance from anywhere. I was raising money by selling camp equipment and borrowing from friends.

When we signed on for an FTSP in November 1993, it was not for a legal arbitration. There was no allowance made for us to pay the legal professionals necessary to support our cases, and nor was such allowance made when the plan was switched on us. Had I known that professional fees would ultimately mount to over $200,000, I would never have agreed to the arbitration, even if the TIO and Telstra had held two guns to my head.

Under surveillance - Chapter 2

Telstra email K01006, dated Thursday 7 April 1994, at 2.05 pm raises two issues. Firstly this date falls during the time I was involved in the Regulator-designed commercial agreement with Telstra and secret observations would surely seem to be inappropriate, at the very least.  Secondly, this document refers to a time when I would be away from his business during this pending arbitration process. The author of the email states:

“Mr Alan Smith is absent from his premises from 5/8/94 – 8/8/94. On other occasions when he has been absent there have been documented complaints received (usually months later) involving NRR etc. I called the premises at approx 4:55 pm 6/4/94. The answer time was 41 secs.

I intend on this occasion to document his absence and file all data I can collect for the period. That way we should be prepared for anything that follows.” 

Clearly, the writer knew, in April of 1994, that I planned to be away later that year, in August. In other words, he knew of my movements, four months in advance.

The then-Minister for Communications, the TIO and the Federal Police were all supplied with this document, along with a number of other documents indicating that my private telephone conversations were being ‘bugged’.Another FOI document Folio 000605, clearly shows that the writer knew when “…Smith is in Melbourne”. I used to go to Melbourne (see AFP Evidence File No 8) on promotional tours to various single clubs advertising what outdoor activities we were packaging for two and three night stop-overs. Horse riding, canoeing, caving and bush-walking. How could the writer have this information, if someone hadn’t listened to this call to find out when I was going and which local girl would be on duty at the camp? Anyone reading the AFP transcripts from their interview with me on 26 September 1994 (see AFP Evidence File No 1) they will see that the AFP documented many examples where unless Telstra was not listening into my private telephone conversations they would not have been able to document what they had on these FOI documents.  Telstra have never been able to explain how they came by this information. At other times, this same person has also stated that he knew I had spoken to Malcolm Fraser, former Australian Prime Minister, on the phone, and when that conversation took place. (AFP Evidence File No 7) He insists I told him about this conversation, but this is not true. Again, Telstra has never been able to find a convincing explanation for their employee having this information. Obviously Telstra was still listening to my private calls, even though he was then involved in litigation with them and their lawyers.

Listening to private calls is appalling enough, but the following information is even more damning. Page A133 of the official Senate Hansard records dated 25 February 1994 states that the then-Shadow Minister for Communications questioned the Regulator’s Chairman, asking:

“Why did not Austel immediately refer COT’s allegations of voice recording to the federal police instead of waiting for the minister to refer the matter to the Attorney-General and then on to the federal police? 

A copy of a letter dated 2 March 1994, from Telstra’s Corporate Solicitor, Ian Row, to Detective Superintendent Jeff Penrose (see Home Page Part-One File No/9-A to 9-C). This letter makes it quite clear that Mr Penrose was profoundly misled and deceived about the faxing problems I was having to deal with, as discussed in this letter. Over the years, many people have compared the four exhibits numbered (File No/9-C) with the interception evidence revealed in Open Letter File No/12, and File No/13 and promptly concluded that, if Ian Row had not misled the AFP in relation to my faxing issues then the AFP would have been able to stop Telstra from intercepting the various relevant AFP arbitration documents in March 1994, before any damage had been done.

The then-Minister for Communications, the TIO and the Federal police were all supplied with this document, along with a number of other documents indicating my private telephone conversations were being ‘bugged’. Another FOI document, Folio 000605, shows the writer knew when “…Smith is in Melbourne”. I used to go to Melbourne (see AFP Evidence File No 8) on promotional tours to various single clubs advertising the outdoor activities we were packaging for two and three night stays. This information could only have been gleaned from listening into this call to find out when I was going and which staff member would be on duty at the camp. Anyone reading the AFP transcripts of my interview on 26 September 1994 (see AFP Evidence File No 7) will see the AFP documented many examples Telstra must have listened into our private telephone conversations in order to document the details in these FOI documents. Open Letter File No/12 and File No/13 prove COT cases’ faxes were intercepted during their arbitrations.

At Australian Federal Police Investigations, there is a detailed description of how Dr Hughes (the arbitrator) spent five, non-stop hours interrogating me in front of two of Telstra’s arbitration defence officers.  This interrogation included questions that were clearly made in an attempt to discover how far the Australian Federal Police had reached, during their investigations into issues that the then-Government Minister, Michael Lee MP, had officially asked them to investigate, in relation to whether or not my faxes were indeed being intercepted or had just been lost in the system.  This sort of interrogation was, however, forbidden under the rules of the signed arbitration agreement but, in Australia, when you challenge the Telstra Corporation, you have absolutely no chance of finding justice!

In January 1999, the arbitration claimants provided the Australian government with a report confirming confidential, arbitration-related documents were secretly and illegally screened before they arrived at their intended destination. In my case, even though the arbitrator’s secretary advised the arbitration process that six of my faxed claim documents never reached the arbitrator’s office, I was never afforded the opportunity to resubmit this material for assessment. My fax account shows I dialled the correct fax number on all six occasions.

NONE of the COT cases was ever on a terrorist list in 1994 (or since, for that matter) and none of us was ever listed as suspects regarding any crimes committed against any Australian citizens. Why were our in-confidence arbitration and Telstra-related documents hacked by Telstra? In my case, 43 separate sets of correspondence faxed to the arbitrator’s office (some with attachments) are not listed on the Arbitration Schedules of Material as received by the arbitration process. 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 arbitrator’s fax machine. Yet, I was charged on my Telstra account for those six faxes. When this matter was exposed, no one from the arbitrator’s office nor the TIO’s office allowed me to amend my claim so that proven “not received” claim documents were valued by the arbitrator in support of my claim.

I raised enough cash to bring Garry Ellicott to the camp for a few days in May 1994 to observe what was going on with the phones. During his stay, Garry commented that he believed I was being watched, or rather, listened in on. His background as bodyguard for US President, Jimmy Carter, gave him some experience in this area during his visit to Australia.

I already had experienced several instances of Telstra accumulating personal information about me — details of who rang me, when they rang and from where, when staff left my business, even my movements. In April 1994, Telstra's Melbourne fault reporting officer seemed to be aware of my movements four months in advance when he wrote an internal memo to another member of staff:

Mr Alan Smith is absent from his premises from 5/8/94 – 8/8/94. On other occasions when he has been absent there have been documented complaints received (usually months later) involving NRR etc …I intend on this occasion to document his absence and file all data I can collect for the period. That way we should be prepared for anything that follows. 

Telstra has never explained how this Telstra fault officer came by this information, nor how he also knew I had spoken to the former Australian Prime Minister, Mr Malcolm Fraser, on the phone, and when that conversation took place.

This person insists I told him about this conversation but this is not true. I told him no such thing.

In an internal Telstra memo around the time of the ‘briefcase saga’, the unidentified writer, a local Telstra technician, offers to supply a list of phone numbers I had rung. I had previously learned that the writer was listening in to my private conversations and, when I challenged him with this information, he informed me he was not the only technician in Portland listening in.

Not long into our arbitrations, Graham Schorer (in his official role as COT spokesperson) received two phone calls within a couple of days, both from young people. They told Graham they knew we were in arbitration with Telstra and wanted to alert him to what they had discovered when they hacked into Telstra’s email network. They had found documents confirming that there were people close to our arbitration – as well as Telstra – who were acting unlawfully towards us. Both times they rang they asked if we would like them to send us that evidence.

Graham and I discussed the offer of the first call, but we finally said NO on the second call although we were interested in what Graham had heard. We were concerned this might be a set-up by Telstra and therefore if we agreed to accept this promising material, then both our arbitrations might be declared null and void.

Since then, Andrew Fowler and Suelette Dreyfus have each published book referring to Julian Assange’s hacking into Telstra’s Lonsdale Telephone Exchange in Melbourne, which Graham’s business and mine were trunked through. Was it Julian Assange and his friends who had contacted us? His concerns about the COT cases not getting the justice we were entitled to, certainly matches his profile.

In hindsight, we probably should have accepted that very kind offer. We might well have been able to use that evidence against Telstra all those years ago, and perhaps we would not be here writing our story 20 or more years later.

This side of the COT story can be accessed by viewing our website absentjustice.com and clicking onto our Hacking - Julian Assange page.  

Between February and September 1994, I provided documents to the Australian Federal Police which I had received under FOI showing Telstra knew more about my private and business arrangements than it should have. On 3 June 1990, during the period Telstra was telling me they had not found any problems (faults in their network) that were still affecting the viability of my businesses, "The Australian" (newspaper) printed an article under the heading: Telecom ‘spying’ on its employees, which supports pages 1 to 6 of the AFP transcripts (see Senate Evidence File No/ 44 Part 1 and File No/45 Part). The newspaper article states:

“She said the accusations were contained in a statement by a former member of Telecom’s Protective Services branch.

“Senator Jenkins said the man claimed:

• 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.” (See Hacking-Julian Assange File No/19)

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

In February 1994, the AFP visited my business at Cape Bridgewater to discuss my claims that recently received FOI documents suggested 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 that I telephoned and/or faxed e.g., 31 January 1994, GM (Golden Messenger), AUSTEL and the Ombudsman. In one instance, the name Faye Smith appears when I phoned my ex-wife. This reflects Senator Jenkins statements above regarding Telstra’s secret surveillance of their own employees in 1990, because here is Telstra using similar tactics in January 1994 while they were in a litigation process with me.

The pressure on all four of us COT cases was immense, with TV and newspaper interviews as well as our continuing canvassing of the Senate. The stress was telling by now but I continued to hammer for a change in rural telephone services. The other three COT Cases businesses were in central Brisbane and Melbourne. The Hon David Hawker MP, my local Federal member of parliament, had been corresponding with me for some time concerned that people in his electorate were being treated as second-class citizens. On 26 July 1993, Mr Hawker wrote:

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

“I trust that your meeting tomorrow with Senators Alston and Boswell is a profitable one.” (See Arbitrator File No/76)

On 18 August 1993 The Hon David Hawker again wrote to me, noting:

“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.” (See Arbitrator File No/77 and Arbitrator File No/82)

An internal hand-writen Telstra memo (see AFP Evidence File No 8) discusses two singles club clients of mine (I have redacted the names of these clients for security reasons), describes the constant engaged signal she experienced when trying to book a weekend during April and May 1993. AFP Evidence File No 8) dated 17 June 1993, records the personal phone numbers of these two ladies, but it also confirms Telstra was fully aware of when my office assistant left the business while I was away. 

My AFP interview transcript on 26 September 1994 describes Telstra recording 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, together with other documents I provided to the AFP between February and November 1994, prove that Telstra had listened in on private conversations.

So chronic and serious were my telephone faults 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 at 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

This fight was dirty and controlled. 

Later, when Telstra submitted their defence of my arbitration, I learned that Telstra’s solicitors also acted as Telstra’s defence counsel. By this time, I was able to provide the arbitrator with clear proof that Telstra had provided incorrect written statements to the regulator and me, with regard to incidents that occurred between January and August of 1993. The arbitrator would not investigate this information.

One document I provided the AFP in 1994, does not state Adelaide or a specific location elsewhere,  other than I was visiting Melbourne. I used to visit both Melbourne and South Australia on a regular basis from 1991 to 1993. Did Telstra even know where I stayed and who with? Let us not forget, 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 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). This part of our Hacking-Julian Assange page more than suggests that my daily moments were monitored by someone and/or some organisation who had ready access to Telstra’s network.

After the AFP had discussed that Telstra file note with me it became clear that Telstra knew that I was getting regular phone calls from someone in Adelaide who usually rang from his Pizza Restaurant but, on this occasion, they had noted that he had phoned me from a different number. AFP transcripts indicate their concern that, in order to have gained this knowledge, Telstra must have been listening to ALL my telephone conversations, both on a regular basis and for some considerable time. I alerted AUSTEL to this situation because some documents, which I have retained, record some eighty or more calls that should have connected to my business but didn’t, because they were illegally diverted to another number. At that time, this is exactly what was happening to other businesses around Australia too, and AUSTEL and the AFP could both see that all those calls were being diverted to the same business.

Federal Police investigation

Other members of COT also experienced this ‘voice monitoring’. In a Telstra internal memo relating to the Tivoli Theatre Restaurant, owned and run by Ann Garms in Brisbane, is the comment:

Tests looped … maybe the bug has slipped off. Looks like a job for super sleuth Sherlock Kelly? (See to exhibit 2 file Phone/fax bugging 1 to 8)

An ongoing Telstra fault record relating to the Tivoli Restaurant provides surprisingly interesting reading when it makes reference to the Federal Police investigation:

John Brereton (Fed Police) initially stated a particular person was paying money for 3 people + others in Telstra to manipulate some services … Why was Federal police stopped from investigating the Tivoli Case …

Why did John Brereton start to deny everything and then volunteer for service in New Guinea for 2 years …”

Why did AA of Protective Services initially accede to my request to borrow a Bug scanning device for the 12th Night and Tivoli, then suddenly change heart (See exhibit 1 file Phone/fax bugging 1 to 8)

In January 1994, COT members informed the Minister of Communications of our suspicions of Telstra bugging, after which things happened very quickly. The Minister ordered an investigation by the Federal Police (AFP), and on 10 February 1994 Austel wrote to the Telstra Manager in charge of the COT arbitrations:

Yesterday we were called upon by officers of the Australian Federal Police in relation to the taping of the telephone services of COT cases.

On 25 February, Senator Alston, then Shadow Minister for Communications, asked Austel’s Mr Robin Davey in the Senate Estimates Committee hearing on COT issues:

Mr Davey, Why did not Austel immediately refer COT’s allegations of voice recording to the Federal Police instead of waiting for the Minister to refer the matter to the Attorney General and then on to the Federal Police? 

Be that as it may, when the AFP interviewed Austel, they were provided with documents showing that Telstra had listened in to my phone conversations.

In a letter to Telstra in February 1994, John MacMahon, General Manager, Consumer Affairs, Austel, acknowledges receipt of nine audio tapes from Telstra and notes that these tapes, which are related to the ‘taping of the telephone services of COT Cases,’ had been passed on to the AFP. No warrant was ever issued by the Federal Court for this taping, neither was a warrant issued in either of the Australian states in which the taping took place. Clearly, therefore, this taping was carried out unlawfully. Further, it was carried out during a legal resolution process involving the COT members.

Despite these investigations, no findings of Telstra’s surveillance or monitoring activities have ever been officially presented. At the time of writing, Telstra has still not been held to account, even for those which took place when Telstra was in arbitration with me. If the AFP or the government had pursued these questions, I would not still be searching for answers today.

On a number of occasions during 1994 I was interviewed by the AFP on this matter, and while they were unable to show me the documents and tapes Austel had given them, it seemed to me they were taking my problems with Telstra and my arbitration seriously. In one interview, I showed them an FOI document which conveys that the writer knew where the caller usually rang from even though, on this occasion, the caller was phoning from a different number, ‘somewhere near Adelaide’. The police were concerned about how a caller was able to be identified if he called from another number.

Constable (name deleted) of the AFP affirmed for me that Telstra had provided them with evidence of this ‘live monitoring’, which had gone on for some time:

… you were live monitored for a period of time. So we’re quite satisfied that, that there are other references to it. 

Senator Alston also put a number of questions on notice for the Senate Estimates Committee, to be answered by Telstra. These are the questions most pertinent to the COT claimants:

5.    Could you guarantee that no Parliamentarians, who have had dealings with ‘COT’ members, have had their phone conversations bugged or taped by Telstra?

9.    Who authorised this taping of ‘COT’ members phone conversations and how many and which Telstra employees were involved in either the voice recordings, transcribing the recordings or analysing the tapes?

10.  On what basis is Telstra denying copies of tapes to those customers which it has admitted to taping?

11.  (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-Telstra employees, against Telstra? 

In all the FOI documents I have searched, I have never seen these questions answered.

Other FOI documents I presented to the Australian Federal Police show that Telstra officials were making notes on who I rang and were keeping records including the names of other organisations, clients and friends. Even my ex-wife did not escape — her name was listed also. I kept the TIO informed of such developments, but at no point did he ever make any response on the matter.

An extraordinary intervention

At the end of March 1994, I got an extraordinary phone call. Frank Blount, Telstra’s CEO, their top man, rang me, wanting to know what I thought was the underlying cause of my telephone problems. Presumably, he had taken this upon himself to find the cause of my complaints. He was understanding, respectful and courteous, and I told him I thought that both Portland and Cape Bridgewater exchanges had been suffering from congestion for years. He gave me his word that he would investigate my theory, and it turned out he was a man of his word.

‘Cape Bridgewater COT Case’, an internal Telstra email dated 6 April 1994, shows the result of his influence:

Following previous lost call analysis of the Z route between Warrnambool node and Portland AXE–R (PORX) it was decided to increment this route from 30 to 60 CCTS …

Could you please ‘fast track’ this project due to the sensitivity of the current COT case at Cape Bridgewater (off PORX).

Another, dated 7 April 1994, followed with:

At 4.55 pm on 6/4/94 I was informed by Network Ops that the route into the Portland exchange would be increased by 30%. The work was to be completed prior to midnight that day. This should alleviate any problems Mr Smith or anyone else in the area has been experiencing with congestion into the area for some time. 

(In fact, an extra 30 circuits into Portland (30 to 60 CCTS) represented a 100% increase in the phone route into Portland exchange, not 30%. But either way, the increase in lines was appreciated allowing more 008/1800 customers to finally connect to my business)

It needs to be remembered too that much of the business income that I lost in connection to my social and single club setup was directly related to my then-ongoing telephone free-call 008/1800 service problems and, coincidentally, many of the social club patrons who had been unable to get through to me on the phone (which meant, of course, that they couldn’t book in), came from Ballarat, Melbourne and South Australia.

On one of these many occasions, AUSTEL took up an investigation, on my behalf, and that revealed the problem I had raised with Telstra, in the past, about Ballarat’s telephone public phone system, a problem that had, until then, lasted for more then two years and, as AUSTEL actually states at point 115 AUSTEL’s Adverse Findings), if it had not been for my persistence in demanding that Telstra investigate my complaints about Ballarat’s telephone system (even though I wasn’t even living there then), this fault that turned out to be a problem in Telstra’s public phone system, would have continued to affect the Ballarat region long after the two years it had already existed in the network