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Chapter 1 - Hacked documents

Bribery, corruption, misleading and deceptive conduct plagued the COT cases government-endorsed arbitrations. 

Absent Justice - Privacy Issues

Faults in their network

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 I recently received FOI documents suggesting Telstra had been monitoring my telephone conversations. The AFP was concerned that Telstra had written the names of various people and businesses I had called on CCAS data records, which collated all incoming and outgoing calls to my business (see Hacking-Julian Assange File No 20). The hand-written notes in the right-hand column of this CCAS data include, against dates, the names of people I telephoned and faxed, e.g., 31 January 1994, GM (Golden Messenger), AUSTEL and the Ombudsman. In one instance, the name Faye Smith appeared on several Telstra documents when I phoned my ex-wife. The writing up of my ex-wife's name on Telstra documentation reflects Senator Jenkin's statements above regarding Telstra's secret surveillance of their employees in 1990 because Telstra used similar tactics in January 1994 while they were in a litigation process with me.

The pressure on all four COT cases was immense, with TV and newspaper interviews and 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 see AFP Evidence File No 8 to Margaret (my office assistant) she advised me that she had not spoken to anyone about leaving the holiday camp (which was at 5.30 pm just as described in this Telstra memo). 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.

Please note: for security reasons I have blackened out the names and phone number as shown on  AFP Evidence File No 8 The AFP have copies of the clear file notes.

29 October 1993, before Graham Schorer and I signed our two arbitration agreements on 21 April 1993, Graham Schorer at his Melbourne Golden Messenger Courier Service and my business Cape Bridgewater holiday camp were still having problems sending faxes between our respective offices. This Telstra internal FOI document K01489, confirms that while Telstra was testing my Mitsubishi fax machine (using the office of Golden Messenger as the testing base which notes:

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

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

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.

By February 1994, was also assisting the Australian Federal Police (AFP) with their investigations into my claims of fax interceptions. Hacking-Julian Assanage File No 52 contains a letter from Telstra’s internal corporate solicitor to an AFP detective superintendent, misinforming the AFP concerning the transmission fax testing process. The rest of the file shows Telstra did experience major problems when testing my facsimile machine when it was tested in conjunction with a facsimile machine installed at Graham’s office.

It is important to highlight how skilfully Mr Row did not disclose to the AFP the problems Telstra had experienced when sending and receiving faxes between my machine and Graham’s fax machine.

Faxed COT arbitration related documents screened and intercepted 

Absent Justice - My Story - Australian Federal Police

Fighting on two fronts 

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

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

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

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

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

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

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

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

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

Absent Justice - Questions on Notice

Before I signed for my arbitration

Before I signed for my arbitration, on 21 April 1994, I used a similar response to questions from the Telecommunication Industry Ombudsman (the administrator of the arbitrations) when I advised the TIO that it would be unworkable for the Arbitrator to start my arbitration while the AFP had not yet concluded their investigation, particularly since the COT spokesperson and I were both seeking compensation from Telstra as part of our arbitration claims and in direct relation to Telstra’s breaches of the Interception Act.  I still clearly remember, as if it was yesterday, that the TIO stated that he would tactfully carry out his own investigations, along with the Arbitrator, and that their investigation would not impede the then-present AFP investigations.  As shown in our Front Page Part One, the arbitrator then allowed Telstra to cross-examine me regarding what the AFP had uncovered during my arbitration.

Telstra’s statement to the Senate Estimates Committee (at point 5) that: “It would be inappropriate for Telecom to make any further comments at this stage about possible breaches of the Telecommunications (Interception) Act while the matter is before the Federal Police”, clearly raises the question of why the COT Cases were forced into arbitration while the AFP were still investigating exactly the same breaches of privacy claims that were to also be investigated by the arbitrator because how can there be two investigations, by two separate bodies, into the same complaints, at the same time? What if the AFP and the arbitrator came up with conflicting findings? Which findings would the arbitrator then use to calculate and pay compensation?

Of course, it was an unworkable arbitration process while the AFP was involved.

What finally happened is that neither the AFP nor the arbitrator produced a record of any findings in relation to the (now proven) invasion of my privacy and it is now twenty-two years later, after no decision was made by either side, and it is the COT Cases who have been left to live with these undecided issues, regardless of the fact that it cost each of us hundreds of thousands of dollars just to take part in this arbitration facade.

Absent Justice - Fax + Telephone Hacking

The Scandrett & Associates Pty Ltd report 

January 1994: A Telstra arbitration liaison officer faxed this document to the TIO in relation to the appointment of an assessor for the Fast Track Settlement Proposal. The words across the top of this document, in the space that should record the sender’s business identification are absent, and it records only the wording “Fax from” then followed by the fax number. The Scandrett & Associates Pty Ltd report discusses this “Fax from” issue (see Open Letter File No/12, and File No/13). The fact that a secondary fax machine installed in Telstra’s network during the arbitration process intercepted this document (see Hacking-Julian Assange File No 26) is another reason why this illegal interception of legal in-confidence documents should have been investigated during our arbitrations, when these illegal acts were first discovered. Who were the faceless people who were soon termed the “forces at work”?

My Fast Track Settlement Proposal (FTSP) Accountant Selwyn Cohen sent me a fax on 21 January 1994 stating:

“I refer to your facsimile of 10.42am on 17th January 1994. The fax cover sheet refers to 7 pages being sent. Unfortunately, I only received 2 pages. Please forward the remaining 5 pages to enable me to begin the required work.” (See AFP Evidence File No 2-A to 2-C)

This was the forth time between the Christmas period of 1993, that Mr Cohen had problems sending or receiving documents from me.

31 January 1994: A copy of my phone/fax account 055 267230, when compared with these two Telstra CCAS document FOI number K01410 and K01411 confirm someone within Telstra has hand-written the names of the people I had spoken to and/or faxed. 

Transcripts from my interview with the AFP 26th September 1994 (see Australian Federal Police Investigation File No/1), confirm that the AFP were alarmed that Telstra had gathered private information about me including documenting on this CCAS data the names of the people who I had telephoned on a daily basis. This CCAS data information was supplied to Warwick Smith, and the Commonwealth Ombudsman’s office.

Stedman Cameron, Lawyers & Solicitors wrote to me on 2 February 1994, stating:

“We note that you did not receive two pages at all and only the number 2 from the third page and the signature from the last page of the facsimile sent to you at approximately 2.23pm on the 1st February, 1994. It was successfully sent approximately two hours later.” (AFP Evidence File No 2-A to 2-C

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

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

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

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

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

‘Specification for Customer Premises Line Monitoring Equipment. 1.0 noting:

“The original direction from AUSTEL in relation to Difficult Fault cases required the installation of equipment to monitor a customer’s line at the customer’s premises as well as the exchange end.  The equipment currently in operation in Telecom has some deficiencies in meeting this requirement.  The Coopers & Lybrand Report recommended the development or purchase of such equipment.  These recommendations are a fundamental foundation for a joint working party between AUSTEL and Telecom to develop the specifications for such equipment.  The specifications should be finalised by December 1994”.

On 25 February 1994:  When this letter to Telstra’s Corporate Secretary from Fay Holthuyzen, Assistant to the Minister for Communications, Michael Lee, (AS 772-a) is compared to the letter dated 3rd February 1994 Exhibit (AS 772-b) that I sent to the Minister’s office it is clear that I was concerned that my faxes were being illegally intercepted.

On the same day of 25 February 1994,  an internal Government Memo confirms that the then-Minister for Communications and the Arts had written to me to advise that the Australian Federal Police (AFP) would investigate my allegations of illegal phone/fax interception. (AS 773)

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

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

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

Leading up to the signing of the Arbitration Agreement, 21 April 1994, and before the final COT report was provided to the Communications Minister on 13 April 1994, I and various other COT Cases attended a two-day, lock-up, confidential viewing of the draft COT Cases report at AUSTEL’s headquarters in Queens Road, Melbourne. At this meeting, Robin Davey, AUSTEL’s Chairman, reminded Graham Schorer, COT Spokesperson, and me of commitments made in a letter dated 23 September 1992, from Telecom’s Commercial Consumer Group Managing Director to Graham, (see at point 5.7 AUSTEL COT Case Report, which stated:

“As I explained at our meeting, we cannot move to settlement discussions or arbitration while we are unable to identify faults which are affecting these services.”

At the time of the AUSTEL lockup meeting, Graham and I refused to change from the commercial Fast Track Settlement Proposal (FTSP) to arbitration. It was then that Robin Davey noted that the original agreement to properly identify the phone and fax faults still stood because an assessor (or arbitrator) would not be able to hand down findings if the problems and faults had not been rigorously tested. At this lock-up meeting, I was alerted by Robin Davey to various sections of the AUSTEL report where AUSTEL clarified that Service Verification Testing would be conducted on Difficult Network Fault (DNF) customers, which is how the COT claimants had been classified.

It was also discussed at this meeting, in the company of Graham Schorer, Ann Garms, Maureen Gillan, Graham and me, by Robin Davey, that because our phone and fax interception claims were now in the hands of the AFP, our interception complaints were confidential and MUST not be discussed in the public domain.

At this meeting, which was attended by Ann Garms, Maureen Gillan, Graham and me, Robin Davey also raised the important issue of how, because our phone and fax interception claims were now in the hands of the AFP, those claims were therefore confidential and so MUST NOT be discussed in the public domain.

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

Sometime later, while I was in Melbourne, in July 1994, as part of a discussion I had with John MacMahon, AUSTEL’s General Manager of Consumer Affairs, I reminded him of that two-day meeting mentioned above; I reminded him that it had taken place in AUSTEL’s headquarters in Melbourne, and I reminded him of Robin Davey’s instructions concerning our duty to provide our FOI documents to the AFP during the settlement process (which had now become an arbitration).  I also mentioned the threats I had received from Telstra after they had somehow found out that I was still continuing to help the AFP. During this meeting with John MacMaon, in the company of Bruce Matthew of AUSTEL and another  AUSTEL/ACMA represntative I was asked by Mr MacMahon was I still assiting the AFP with providing them Telstra received documents. 

Later, on 26 September 1994, AFP Detective Sergeant Jeff Penrose told me that the AFP had NOT informed Telstra that I was continuing to provide the AFP with assistance, which clearly means that the only way Telstra could have obtained this information was either from listening to my phone calls to or from the AFP, or by intercepting the FOI documents I faxed to the AFP. Mr Penrose’s off-the-record response was ‘sharp’, to say the least, especially since he was in no way obliged to comment at all.

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

I contacted both Warwick Smith and Gordon Hughes and, as of May 2019, neither of them have provided any advice in relation to this matter.

AUSTEL writes to Telstra on 10 February 1994 stating:

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

“Given the investigation now being conducted by that agency and the responsibilities imposed on AUSTEL by section 47 of the Telecommunications Act 1991, the nine tapes previously supplied by Telecom to AUSTEL were made available for the attention of the Commissioner of Police.” (See Illegal Interception File No/3)

From 10-15 February 1994, we lost any chance we may have had for a Senate inquiry into, what the COT members believed, the unethical way Telstra continued to treat us. By mid-February 1994, it appeared that not only was Telstra treating us with sheer contempt, but also they were doing this in full view of the Senate. The COT members began to believe that no single person or organisation, anywhere in Australia, had the courage to initiate a judicial inquiry into the way Telstra continued to thumb their noses at the government.

Absent Justice - Sheer Contempt

Imagine having to write to Telstra’s solicitors, to lodge my phone complaints! Was this Telstra’s way of breaking my morale? Consider having to report every telephone fault, in writing, to a solicitor.

As discussed throughout this website, the TIO wanted to use a legal arbitration agreement, which he informed the government and claimants his own legal counsel (who was also the then president of the Institute of Arbitrators) drafted, completely independent of Telstra. He maintained that the commercial assessor was fully qualified to arbitrate on the four COT cases, which, as Arbitrator Part Two shows, he was not. Our assessor was to become our arbitrator.

We COT members registered our disagreement with this through the TIO (the appointed independent administrator of the Fast Track Settlement Process). We made it very clear to the TIO that the four of us were already involved in a signed and agreed commercial process and we saw no clear reason for changing that situation. We believed an arbitration process would certainly never be ‘fast-tracked’. It was bound to become legalistic and drawn out and we knew none of us had the finances to go up against Telstra’s high-powered legal team in such a process. We believed the whole idea of arbitration was raised simply to suit Telstra’s agenda.

Between 6-8 February that year, Graham Schorer had a telephone conversation with the TIO. Graham wanted to discuss the reasons the COT four were rejecting the arbitration process. The TIO dismissed our reasons immediately. The TIO said his primary role was Telecommunications Ombudsman and that he had spent too much time focusing on his secondary role as administrator of our FTSP. He was concerned his office had incurred considerable expense because of this administrating role and he told Graham that Telstra was refusing to reimburse those expenses. He also indicated that his office would not continue to incur expenses on our behalf.

Furthermore, he informed Graham that if the COT four did not abandon their commercial agreement with Telstra, then Telstra would pull out all stops to force us into a position where we would have to take them to court to resolve our commercial losses. Telstra, the new arbitrator and the TIO were all aware that none of us had the financial resources to enter into a court case.

My then-accountant Selwyn Cohen informed me that faxes from my office were not arriving complete; pages were missing. He recommended I should neither move from the commercial process into arbitration while these phone problems were ongoing nor sign the agreement while the AFP were investigating this unlawful interception of my telephone and faxing problems.

I met with the TIO in March 1994 after this consultation with Selwyn and said it was an unworkable process while the phone problems were still there and while I was raising interception as a claim issue.

The arbitration process should have been put on hold until it was shown the faults had stopped and the AFP had concluded their findings. It was impossible for the arbitrator to call for interception documents at the same time the AFP was asking for the same.

The TIO’s response was that we must sign the arbitration. As if this wasn’t disastrous enough, the TIO added that if we decided to take legal action in an attempt to compel Telstra to honour their original commercial assessment agreement, then he would resign as administrator of the procedure. This would force the conclusion of the Fast Track Settlement Process and commit us to each taking legal action, with no other alternatives, to resolve our claims. The TIO did not care about the claimants right.

In fact, when I raised these interception issues with AUSTEL’s John MacMahon, General Manager of Consumer Affairs, he told  me that, under Section 47 of the Telecommunications Act 1991, AUSTEL was obliged to  ensure that the Australian Federal Police were assisted with these interception issues, which included the COT Cases who had raised these matters with AUSTEL. Of course Mr MacMahon would not have thought for one minute that, once I started providing the AFP with FOI documents that confirmed that Telstra had been monitoring my private and business affairs, I would be penalized by Telstra, as we have shown below in Chapter Four of the Senate Evidence File No 31.  Regardless of who thought what, however, or what might have been expected to happen once the COT Cases assisted the AFP, Telstra retaliation should have been considered before the COT Cases were forced into arbitration while the AFP investigations were still in progress.

After we four COT cases signed our Fast Track Arbitration Proposal, on 23 November 1993, neither AUSTEL, as the government communications regulator nor the Federal Labor Government warned us that our arbitration fax and phone interception issues would be broadcast to the media as well as discussed in parliament, as the many downloads of Australian Federal Police (AFP) documents on show was the case. As these interceptions were one subject of our four arbitration claims, AUSTEL, as the Fast Track Settlement Proposal facilitator, should have kept these matters confidential. By broadcasting that information or allowing it to be discussed in the media, AUSTEL severely disadvantaged our claims.

Our phone and fax interception issues were headline news over many months, not only in our local newspapers but also in ALL the major national newspapers. On 15 April 1994, ex-prime minister of Australia, Malcolm Fraser, discussed my phone interception issues in the SunHerald newspaper and how FOI documents discuss his and my telephone conversations being transcribed onto Telstra file notes. Herald Sun, newspaper reported:

“FORMER prime minister Malcolm Fraser yesterday demanded Telecom explain why his name appears in a restricted internal memo.

“Mr Fraser’s request follows the release of a damning government report this week which criticised Telecom for recording conversations without customer permission.

“Mr Fraser said Mr Alan Smith, of the Cape Bridgewater Holiday Camp near Portland, phoned him early last year seeking advice on a long-running dispute with Telecom which Mr Fraser could not help.” (See Our Saga File No 2)

Who within the Telstra Corporation thought it was important to note that I had telephoned Malcolm Fraser? Is my conversation with the former prime minister on one of the nine audio tapes AUSTEL provided to the Australian Federal Police, but refused to supply copies to the COT cases? I was, at no time, suspected of committing a crime or being a possible risk to Australia’s national security.

AUSTEL knew these matters were confidential and were to form part of our confidential arbitration process; however, AUSTEL provided the AFP with NINE audiotapes of our telephone conversations in February 1994 (see Illegal Interception File No/3) but withheld the same information from us four COT cases. What legal right did the government’s communications regulator have to provide our arbitration evidence to ONLY the AFP and not the four claimants who would need this evidence to secure that part of our arbitration claims? Even Senator Richard Alston (then Shadow Minister for Communications) demanded answers in the Senate as to why this evidence was withheld from us four COT cases.

As I have already shown in our Federal Police Investigations page, Telstra records, which I provided to the AFP during its 1994 interception investigations, showed Telstra was monitoring members of my Over-Forties Singles Club patrons as well as the movements of both myself and staff. The AFP maintained this evidence should only be viewed by the arbitrator and under confidentiality. That all of these arbitration privacy issues were being discussed in the Senate, as well as nationally in the media, was a major security issue and something I had no control over. I was not just being questioned by the AFP and AUSTEL on these privacy issues, but members of my singles club also wanted to know whether private discussions held over the telephone, including faxes sent to and from the holiday camp, were part of the AFP investigations. Of course, I had no alternative but to advise my singles club members, as well as every day patrons, about the security issues.

Nothing was private once the AUSTEL, the TIO (the administrator of my arbitration) and the ex-prime minister of Australia broadcast my interception issues to the public.
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Absent Justice - My Story - Senator Ron Boswell

Threats made and carried out.

Page 180 ERC&A, from the official Australian Senate Hansard, dated November 29 1994, reports Senator Ron Boswell asking Telstra's legal directorate why were my FOI documents being withheld from me during my arbitration:

“Why did Telecom advise the Commonwealth Ombudsman that Telecom withheld FOI documents from Alan Smith because Alan Smith provided Telecom FOI documents to the Australian Federal Police during their investigation?”

After receiving a hollow response from Telstra, which the senator, the AFP and I all knew was utterly false, the senator states:

“…Why would Telecom withhold vital documents from the AFP? Also, why would Telecom penalise COT members for providing documents to the AFP which substantiate that Telecom had conducted unauthorised interceptions of COT members’ communications and subsequently dealt in the intercepted information by providing that information to Telecom’s external legal advisers and others?” (Senate Evidence File No 31)

As I have reiterated throughout this website, the threats against me during the arbitration proceedings came to fruition, and the withholding of pertinent documents is deeply concerning. Regrettably, neither the Telecommunications Industry Ombudsman nor the government has investigated the detrimental impact of this malpractice on my overall submission to the arbitrator. Despite assisting the Australian Federal Police (AFP) in their investigation into the illicit interception of phone conversations and arbitration-related faxes, they never came to my aid.

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“…your persistence to bring about improvements to Telecom’s country services. I regret that it was at such a high personal cost.”

The Hon David Hawker MP

“Only I know from personal experience that your story is true, otherwise I would find it difficult to believe. I was amazed and impressed with the thorough, detailed work you have done in your efforts to find justice”

Sister Burke

“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.”

Cathy Lindsey

“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.”

Cathy Lindsey

“…your persistence to bring about improvements to Telecom’s country services. I regret that it was at such a high personal cost.”

Hon David Hawker

“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.”

Hon David Hawker MP

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