PLEASE NOTE: Australian Federal Police Investigations was created on 6 May 2017 and is a work in progress. Last edited February 2020.
in September 2019, there were reports in the media in relation to whether Australia should allow commercial operators to use facial recognition technology or whether use of this technology should be restricted to the Australian Government’s counter-terrorism agencies only. Even in an average, mostly trusting world, this type of surveillance would be deemed to be an unacceptable path to take, regardless of which type of electronic surveillance is used, but it was not so long ago that the then-Government-owned telephone network used similar types of secret surveillance to collect inside information about us, during the COT arbitrations with the Telstra Corporation, because that surveillance provided Telstra with a significant advantage. This advantage meant that Telstra could then make educated decisions in relation to, for instance, when to release previously illegally-acquired arbitration documents and when to withhold them from the arbitration process, as we have shown on throughout our story so far.
In my case, as described from theses pages, Telstra’s illegal interference with the arbitration process meant that vital evidence, which would have changed the whole outcome of my arbitration, was deliberately withheld from me until after the arbitrator had made his final decision. The question we now need to ask is – how many other litigation processes will suffer in the future, if commercial businesses that are involved in a litigation process have what could become legal access to the opposition’s private affairs? This has to be taken into account now because of the serious risk that this proposed surveillance system may well be used for the wrong purposes, just as various, perhaps not-so-legal, processes were used during the COT arbitrations
Privacy issues not addressed
On 3 June 1990, The Australian 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. …
The AFP were 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.
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 prior to and during my government-endorsed arbitration process.
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 until 28 January 1994.
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.
A 12 August 1993 letter (see AFP Evidence File No 8) from a singles club client to me, describes the constant engaged signal she experienced when trying to book a weekend during April and May 1993. A Telstra FOI document (see AFP Evidence File No 8) dated 17 June 1993, refers to the same to ladies whose names. Not only does this document record 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.
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 during 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 5.30pm 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: Graham Schorer of Golden Messenger Courier Service and I were still having problems sending faxes between our respective offices. This Telstra internal FOI document K01489, confirms that while Telstra were 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 AFP Evidence File No 9)
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:
- 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.
- 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?
- 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 eaves-dropping, 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):
- Could you guarantee that no Parliamentarians who have had dealings with ‘COT’ members have had their phone conversations bugged or taped by Telstra?
- 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?
- On what basis is Telstra denying copies of tapes to those customers which it has admitted to taping?
- (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?
- 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?
- 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?
- 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.
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.
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 Alan’s 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. (see AFP Evidence File No/3)
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 is held in government archives)
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 that 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 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. 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.
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 in Arbitrator Part One, Chapter Three to Six, 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 absentjustice.com 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. The 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 audio tapes 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 absentjustice.com/Australian 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 ex-prime minister of Australia broadcast my interception issues to the public.
My 3 February 1994 letter to Michael Lee, Minister for Communications (see Hacking-Julian Assange File No/27-A) and a subsequent letter from Fay Holthuyzen, assistant to the minister (see Hacking-Julian Assange File No/27-B) to Telstra’s corporate secretary, show I was concerned that my faxes were being illegally intercepted.
An internal government memo, dated 25 February 1994, confirms that the minister advised me that the AFP would investigate my allegations of illegal phone/fax interception. (See Hacking-Julian Asange File No/28)
25 February 1994: This 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. (AFP Evidence File No 4)
18 March 1994: This letter from Steve Black, Telstra’s appointed arbitration liaison officer to my arbitration process wrote to Robin Davey, Chairman of AUSTEL AFP Evidence File No 6 under the heading Tape Recorders – Use In Locating Fax Faults noting: 25 February 1994: When this letter to Telstra’s Corporate Secretary from Fay Holthuyzen, Assistant to the Minister for Communications, Michael Lee, is compared to the letter dated 3 February 1994 Exhibit that I sent to the Minister’s office it is clear that I was concerned that his faxes were being illegally intercepted (AFP Evidence File No 5)
“In a small number of cases, where the customer indicates that the problem is specific to transmission between two particular facsimile machines then, with the consent of the customers controlling those facsimile machines, the test transmission between these facsimiles machines will be taped and analysed.
In these cases, recording would be carried out in circumstances where:
- the customer’s consent has been confirmed in writing by facsimiles or otherwise;
- the recording would be of signals generated by a test message;
- there is no B party involved.” (see AFP Evidence File No 6)
I was never warned, either prior, during his arbitrations or, during the seven years after his arbitration, that Telstra was intercepting his faxes as part of their testing process – or for any other reason for that matter – and neither did I ever provide Telstra with written permission for this interception to occur, even though this letter to Mr Davey (AFP File 6) is quite clear that it was mandatory for Telstra to apply for written permission to use tape recorders when intercepting phone calls and/or faxes.
On our Hacking – Julian Assange page in the above menu bar, we provide further examples of relevant documents not reaching the arbitration process for assessment. The young computer hackers contacted the COT cases twice in early 1994 to advise they had hacked into Telstra’s email service and uncovered Telstra acting unlawfully towards the COT cases. They asked if we wanted the evidence. We refused to accept this evidence, as we were concerned we were being set-up. We notified the authorities and as these hackers and Julian Assange were caught around the same time, this suggests we unwittingly played a part in his arrest. It is now obvious the hackers were telling the truth about Telstra’s conduct towards the COT cases, but COT spokesperson, Graham Schorer, remembers the hackers implied it was not only Telstra people who were acted inappropriately towards us; they indicated they uncovered other people who were working against us from within the process itself, who were also acting inappropriately. Unless the hackers decide to contact us again now, in 2017, to explain who those other people were, which is of course highly unlikely, we will probably never know for sure.
Did the hackers uncover:
- Evidence Dr Hughes was forced, under pressure from the Establishment, to use Telstra’s drafted arbitration agreement instead of the agreed, independently drafted agreement all relevant parties were told would be used?;
- Evidence the arbitrator agreed with the defendants that he and his arbitration project manager would only assess a limited amount of claim documents in order to minimise Telstra’s liability? (See Arbitrator Part Two, Chapter Nine and Ten);
- Evidence that Telstra and the TIO agreed to secretly appoint a second arbitrator who would decide which arbitration procedural documents would reach the official arbitrator (Dr Gordon Hughes) and which would be concealed? (See Arbitrator Part One, Chapter Seven);
- Evidence confirming someone with access to Telstra’s fax screening process were diverting arbitration claim documents to a designated filing system before they were redirected onto their intended destination? (See Open Letter File No/12, 13, 16 and File No/17).
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 dialed the correct fax number on all six occasions.
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 ridding, 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 have never been able to find a convincing explanation for their employee having this information. Obviously Telstra were 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/13and 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 (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 dialed the correct fax number on all six occasions.
NONE of the COT cases were ever on a terrorist list in 1994 (or since, for that matter) and none of us were 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, 42 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.
The 24 January letter was faxed to the arbitrators’ office
Is there a connection between the loss of my faxed arbitration documents and the TIO’s 28 June 1995 letter stating that his office has no record of my 24 January 1995 letter to the arbitrator requesting him to seek various documents from Telstra under the discovery process? My 24 January 1995 letter requesting a copy of the Cape Bridgewater/Bell Canada information to be provided from Telstra through the arbitration process was received (see Front Page Part One File No/2-A to 2-E).
Why did the TIO advise me that records in his office did not record receiving my 24 January 1995 letter? “Our file does not indicate that you took the matter any further,” When my letter was returned to me, the fax footprint indicates it was received at the arbitrator’s fax machine. The TIO’s 28 June 1995 letter is possibly one of our most damning pieces of evidence, showing that “forces at work” were able to conceal essential arbitration material from being addressed during my arbitration process.
If the arbitrator had acted on my requests for the Cape Bridgewater/Bell Canada test information, which I was legally entitled to have, I could have proved the Bell Canada International could not possibly generate the alleged 13,500 test calls through a Tekelec CCS7 system that they and Telstra stated was installed at the Cape Bridgewater RCM exchange. There was no equipment in place at the Bridgewater exchange to facilitate such tests. The nearest Telstra exchange that could facilitate a Tekelec CCS7 monitoring system in November 1993 was the Warrnambool exchange, which is 112 kilometres from Cape Bridgewater. The TIO and Commonwealth Ombudsman records will confirm I requested the BCI information on at least four occasions.
It is serious enough that an Australian corporation knowingly provided false answers to questions on notice during a Senate committee hearing, however, consider: if the TIO is telling the truth that the arbitrator did NOT receive my 24 January 1995 BCI letter, then who did? And why do the markings on this document show that it arrived at its intended destination? My own BCI report shows Telstra even went as far as knowingly providing false Cape Bridgewater information to the Senate in October 1994. As a result, the Senate estimates committee did not investigate the fundamentally flawed BCI Cape Bridgewater report.
Front Page Part One File No/2-A to 2-E shows this important arbitration documents, faxed by me to the arbitrator on 24 January 1995, did reach the arbitrators’ office. As we have shown on this website other similar documents faxed from my office were never received (assessed) by the arbitrator.
Before we continue this chapter we ask the reader to consider the following:
Open Letter File No/12, and File No/13 prove COT cases’ faxes were intercepted during their arbitrations. So, with that firmly in mind, first try to imagine the people assigned to intercept the many COT arbitration documents, as they left each of our individual premises, heading to the arbitrator, our financial advisors or our technical advisers. Try to imagine what it might have been like for those people, studiously chasing up and illegally intercepting our legal documents as they travelled around the fax circuit. Try to imagine doing this every single day because, particularly at the peak of our arbitrations, most of the COTs were constantly using the fax system to send documents all over the place! Then, change tack a bit, and try to imagine you are one of us, a member of the COT group, just an ordinary Australian citizen, running an ordinary Australian small business: an ordinary person who trusts the government to do the right thing by ALL Australian citizens. And, so, while you work at keeping your small business afloat, you also write up submissions, prepare legal documents (something you have never done before) and work hard to learn your way around complex technical documents, sometimes with an advisor at your side, but mostly alone.
Try to imagine what it would be like if, after all that effort, even before your documents reached their intended destinations, the defendant hijacks them as part of its reprehensible plot, so it could assess your documents, before they reach their intended destinations, because what this meant was that the defendant gained extra time along with the critical advantage of knowing, in advance, what was to come in the next part of the arbitration process. This was a huge advantage for the defendant because, of course, that knowledge also gave them time to decide which aspect of the claim would be easy to defend and which it would be best to completely avoid. Now try to imagine what that would have felt like for the claimants, when they eventually discovered what had been going on, in secret. At the same time, remember that, as we record elsewhere on absentjustice.com, some of those documents that we sent off, through what should have been a secure fax system, never arrived at their intended destination at all.
I know this seems too fanciful to be true but I am not Robert Ludlum or John Grisham spinning a story here, not even vaguely, because all this really did happen here in Australia, a supposedly democratic country, not all that long ago – in the years between 1994 and 2001, as Open Letter File No/12, to File No/20 show. In fact, our evidence shows that this fax hacking started at the very beginning of 1994, during the first process, which was called the Fast Track Settlement Proposal. Now, as you read on, imagine you are sitting at your desk in your office, just like the COT members often did. You’ve been up most of the night, working on your claim, and both your privacy and the fax system (which everyone used back then) are about to be violated, yet again, by the defendant, without your knowledge or consent, and the government you pay your taxes to is NOT willing to investigate or assist you, as your business vanishes before your eyes.
NONE of the COT cases should have been forced to sign our 1994 arbitrations while the Australian Federal Police (AFP) were investigating the possibility that our arbitration faxes were being illegally hacking (screened by Telstra) before they arrived at their intended destination. It is clear the rights of the COT Cases were violated in the most deplorable fashion.
It is also important to note that just prior to these hackers contacting Graham, in March 1994, Mr Schorer’s office was broken into in. I 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.
Although the following 22 April 1994 fax issue is addressed above, it relates directly to AUSTEL only receiving three blank pages, even though AUSTEL’s fax report shows these pages took between 1min 20sec to 2min 40sec to transmit. (See Hacking-Julian Assange File No/34-A and File No/34-B)
None of those three blank pages had my fax identification displayed at the top of the received documents nor the time and date that they were sent. However, they all had a single, small square in the top right corner of the page, each with a number inside it.
Even if blank sheets of paper are faxed mistakenly instead of printed documents, they will still arrive with the sender’s identity, the date and the time the document was sent. As I later proved to the arbitrator, these blank documents did not include any sender identification. The arbitrator, however, for reasons known only to him, never investigated this apparent interception of my arbitration claim documents – clearly an invasion of my privacy – just as he didn’t investigate the threats and harassment from senior Telstra executives that I was subjected to throughout my arbitration.
The 22 April 1994 fax issue also relates directly to a fax issue on 29 June 1998, four years after my arbitration, which was supposed to address these faxing problems. My solicitor, Mr William Hunt, sent me copies of two documents that I had faxed from my office, but which had arrived at Mr Hunt’s office as blank sheets of paper except for this strange numbering system, again inside a small square in the top right corner of the page. Mr Hunt also sent a copy of his fax journal for that day (see Hacking – Julian Assange File No /48 and File No/49) confirming their arrival in his office, just as AUSTEL had also done, just one day into my arbitration.
In March 1994, Graham Schorer (COT spokesperson) and another COT member suffered break-ins and lost business-related documents. That made us all much more vigilant. I found no evidence of a break-in, but I did notice two diaries covering the period 1987 to 1989 were missing. I decided to remove my official business diaries from my office, and from that time on, I transferred information to them on a weekly basis from my wall calendar and unofficial notebooks.
The following statements are taken from Graham Schorer’s Statutory Declaration re his break-in. (See Hacking – Julian Assange File No/3)
“In early February 1994, our premises were broken into and all computer cables including the power cables were severed, as well as all power connections to the main server which was in a specially constructed room. The perpetrators forced entry into the building in what the police described as a “ram raid”, where something similar to pneumatic tyre attached to the front of a vehicle was used to hit the front door with enough force to dislodge the steel frame attached to the brick work.
Part of the microfiche copier and viewer was stolen, as well as the PC on my desk which contained all of my COT information and correspondence between regulators, politicians, etc. Also stolen was a book that contained a catalogue of computer file numbers against their description.
The same day I spoke to Garry Dawson from Dawson Weed and Pest Control (another COT Case) on the phone, who told me that his business premises in Sunshine had been broken into just after midnight and burgled. The only thing stolen was the Dictaphone tape which held a recording he had made of a meeting between him and two Telstra executives on the previous day”. (see also Arbitrator File No/84)
Two months after the above break-in, my arbitration claim adviser Garry Ellicott (ex-National Crime Investigator and ex-Detective Sergeant of the Queensland Police) visited and we spent five nights trying to decipher the pile of Telstra discovery documents. It was then that I discovered further losses: exercise books in which I kept official booking records; a number of bank statements and my bank pay-in books for 1992/93. I cannot account for these losses. It is possible they were also missing in March, and I simply didn’t notice their absence. Without these records, I was hard-pressed to produce full and correct financial statements for my forensic accountant, Derek Ryan, and was reduced to scavenging information from wall calendars and other unofficial sources. When Garry returned to Queensland, I got him to take the work diaries with him for safe-keeping.
In February 1994, Detective Superintendent Jeff Penrose and Constable Melanie Cochrane of the AFP visited my business to discuss my concerns regarding the possibility my telephone conversations were intercepted and my faxes were not being received at the intended destination. During this visit, I spoke to Constable Cochrane regarding my concerns about the privacy issues connected to my singles club records, explaining I had provided the club members with a written assurance that I would not circulate their private information to anyone without first seeking their permission. For this reason, I was particularly concerned that it would not be fair to submit any of their private information into my Fast Track Settlement Proposal. Constable Cochrane commented that the TIO should contemplate suspending our settlement process until after the AFP finished their investigations into Telstra’s unauthorised interception of COT cases’ telephone conversations and in-confidence faxes.
The 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), 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 may have been able to stop Telstra from intercepting the various relevant AFP arbitration documents in March 1994, before any damage had been done
This letter dated 14 April 1994, from Telstra’s Steve Black to Detective Superintendent Jeff Penrose states that Telstra only voice-monitored my telephone service from June to August 1993. This corresponds to Steve Black’s statement in a letter to Warwick Smith, which is recorded below, are various pages from a transcript of an AFP interview with me on 29th September 1994, which records the police asking me about a hand-written reference to a bus company that Telstra appeared to have added in the top right corner of a letter I had written previously, on 10th September 1992, to Telstra, when that name was not mentioned in that letter. It is true that I was tendering to a number of bus companies during 1992, including Nuline Bus Services, Centre Road, Bentleigh, Mooney Valley Bus Lines, Money Valley, Warrnambool Bus Lines and O’Meara’s (the name that had been hand-written in the corner of this letter). I had contacted all four companies for the same tender in an attempt to use one of their services to bring people from Melbourne to Cape Bridgewater, but since O’Meara’s was not mentioned anywhere in the letter it had been added to, it would seem that Telstra was actually voice monitoring my phone calls or intercepting his faxes as early as September 1992.
On 26 September 1994, Detective Superintendent Penrose again visited my business with a still-serving officer of the AFP (hence I will not name that officer) for a second interview regarding the same matter. By then I had told the AFP about threats I received from Telstra executives, who were refusing to supply any further FOI documents to help me in my arbitration because they knew I was assisting the AFP with their investigations. Senate Hansard records, dated 29 November 1994
Screening In-Confidence Faxes
The Australian Government has since been provided with a report confirming that confidential, arbitration-related documents were secretly and illegally screened before they arrived at their intended destination. It has now been confirmed some never arrived at all.
One of those documents, dated 18 April 1995, and which appears to have been secretly screened and withheld from the claimants and only provided to them seven years after the arbitrations concluded, is discussed in Arbitrator / Part Two Chapter Eight. This three-page letter from the arbitration project manager to Warwick Smith (arbitration administrator) and copied to Dr Hughes (arbitrator) advised:
“It is unfortunate that there have been forces at work collectively beyond our reasonable control that have delayed us in undertaking our work.” (See Call For Justice DCITA File No 9).
The four COT claimants were never told about these forces at work nor were we warned that, under the noses of the TIO, his legal advisor and the arbitrator, these un-named forces were allowed to infiltrate and manipulate the arbitration process. When these three legal experts, namely Dr Gordon Hughes, Warwick Smith and Peter Bartlett, allowed this very important 18 April 1995 letter to be concealed from the four COT cases, they directly assisted those “forces at work” to carry out their intended disruption of the four COT cases’ arbitrations.
Note: the not credible arbitration agreement discussed by Dr Gordon Hughes in his 12 May 1995 letter to Warwick Smith (see Open Letter File No 55-A) was covertly drafted by Telstra (the defendant) and then was used as the final version of the agreement for the first four arbitrations, instead of the independently crafted agreement that was formally agreed to by all parties and various members of government. This Telstra-designed agreement provided numerous benefits for the defence, such as not enough time allowed for inevitable delays associated with the production of documents, obtaining further particulars and the preparation of technical reports;
How can the Australian government engage in a negotiation with the arbitrator, the administrator and the defendant, Telstra Corporation, and allow that corporation – who is also under investigation by the Australian Federal Police for committing crimes against the claimants – to write up its own agreement under which it is to be investigated under by the same arbitrator (who advised the claimants and the government that he drafted the agreement)?
On 12 May 1995, 13 months into my arbitration and one day after he brought down my award, Dr Hughes condemned the Telstra-drafted arbitration agreement as not a credible document to use in the process; however, he used it to my detriment as a claimant and stated:
“…as far as I could observe, both Telecom and Smith co-operated in the Smith arbitration;
“the time frames set in the original Arbitration Agreement were, with the benefit of hindsight, optimistic;
“in particular; we did not allow sufficient time in the Arbitration Agreement for inevitable delays associated with the production of documents, obtaining further particulars and the preparation of technical reports; …
“In summary, it is my view that if the process is to remain credible, it is necessary to contemplate a time frame for completion which is longer than presently contained in the Arbitration Agreement.”
The fax imprint across the top of this letter (Open Letter File No 55-A) is the same as the fax imprint described in the Scandrett & Associates report (see Open Letter File No/12 and File No/13), confirming faxes were intercepted during the COT arbitrations. The question the Telecommunication Industry Ombudsman (TIO) and the Federal Attorney-General has still not answered is:
Was this letter actually faxed to my office by the TIO. to assist me in any pending appeal process and, if not, why was such an important letter deliberately kept from me during my designated appeal period?
If I had received a copy of this letter, declaring the agreement used in my arbitration process was not credible, then of course, I would have appealed the arbitrator’s award. After all, how could an appeal judge argue against the arbitrator’s own findings that the agreement was not credible, even though he used it anyway?
How could Dr Hughes even contemplate making a statement like: “…as far as I could observe, both Telecom and Smith co-operated in the Smith arbitration”, let alone decide to include it in his 12 May letter, when he and the Senate had already been warned that Telstra was threatening to withhold further relevant documents from me, simply because I had agreed to assist the Australian Federal Police with their investigations into Telstra’s unauthorized interception of my phone conversations and faxes and, even worse than that level of Telstra treachery, Telstra then actually carried out those threats? And what about the advice that both the arbitrator and Warwick Smith had received on 18 April 1995 (see above), which stated clearly that there had been ‘forces at work’ that had ‘derailed’ my arbitration? This 12 May statement shows that Dr Hughes was quite clearly choosing to protect those ‘forces at work’, regardless of the serious problems that created for me.
Interception of this 12 May 1995 letter by a secondary fax machine:
Whoever had access to Telstra’s network, and therefore the TIO’s office service lines, knew – during the designated appeal time of my arbitration – that my arbitration was conducted using a set of rules (arbitration agreement) that the arbitrator declared not credible. There are three fax identification lines across the top of the second page of this 12 May 1995 letter:
- The third line down from the top of the page (i.e. the bottom line) shows that the document was first faxed from the arbitrator’s office, on 12-5-95, at 2:41 pm to the Melbourne office of the TIO – 61 3 277 8797;
- The middle line indicates that it was faxed on the same day, one hour later, at 15:40, from the TIO’s fax number, followed by the words “TIO LTD”.
- The top line, however, begins with the words “Fax from” followed by the correct fax number for the TIO’s office (visible
Consider the order of the time stamps. The top line is the second sending of the document at 14:50, nine minutes after the fax from the arbitrator’s office; therefore, between the TIO’s office receiving the first fax, which was sent at 2.41 pm (14:41), and sending it on at 15:40, to his home, the fax was also re-sent at 14:50. In other words, the document sent nine minutes after the letter reached the TIO office was intercepted.
“We canvassed examples, which we are advised are a representative group, of this phenomena [sic].
“They show that
- the header strip of various faxes is being altered
- the header strip of various faxes was changed or semi overwritten.
- In all cases the replacement header type is the same.
- The sending parties all have a common interest and that is COT.
- Some faxes have originated from organisations such as the Commonwealth Ombudsman office.
- The modified type face of the header could not have been generated by the large number of machines canvassed, making it foreign to any of the sending services.”
One of the two technical consultants attesting to the validity of this fax interception report emailed me on 17 December 2014, stating:
“I still stand by my statutory declaration that I was able to identify that the incoming faxes provided to me for review had at some stage been received by a secondary fax machine and then retransmitted, this was done by identifying the dual time stamps on the faxes provided.” (Front Page Part One File No/14)
It is also clear from Front Page Part One File No/1, File No/2-A to 2-E, File No/3, File No/4 and Front Page Part One File No/5, that numerous documents faxed from my office to the arbitrators office did not reach their intended destination.
Many 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, although it does raise a number of important questions:
- 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.
- While all the COT cases attempted to keep their individual small businesses going while their arbitrations continued, how could we be expected to submit complex submissions to an arbitrator and, at the same time, assist the AFP with their investigations?
- Who decided that this situation would be allowed to continue?
(see Senate Evidence File No 1), record this fact.
When I reminded Detective Superintendent Penrose about my previous concerns regarding the privacy issues of females who joined my singles club weekends at Cape Bridgewater, I explained I had uncovered a document, showing Telstra recorded the names and phone numbers of two of my singles club female members. When this was added to other documents I supplied to the AFP, it was clear I could not submit any of my singles club information in my arbitration without some security measures being applied by the arbitrator.
Mr Penrose then suggested that I submit a letter to the arbitrator, explaining that the AFP was investigating matters associated with these privacy issues and my arbitration, and ask if I could submit my Singles Club information directly to the arbitrator, under confidentiality, and as a separate arbitration issue, because it would not be considered appropriate for me to release this private material into a process where others could have easy access because that would raise serious concerns: also suggested that the arbitrator would be well aware of the need to keep this information ‘under wraps’ so to speak.
Well, I did exactly what Superintendent Detective Jeff Penrose suggested and that the arbitrator responded some days later informing me that he would accept this part of my submission at a proposed oral arbitration hearing on 11 October 1994.
Constable Melanie Cochrane stated I should not release the singles club members’ private information to Telstra and Superintendent Detective Penrose suggested I provide the private singles club information to the assessor under confidentiality and advise him the AFP was also investigating this same material that appears to have been hacked by Telstra.
Constable Cochrane also stated that as I had assured my singles club members their private information would not be disclosed without their consent, I also needed to discuss this with the assessor, Dr Hughes. I believe Superintendent Detective Penrose stated the assessor would be aware I could not divulge this private information via mainstream documents with Telstra, while the AFP was investigating.
It was due to these types of facts, and Superintendent Detective Penrose’s advice, that I sought a clearance, from the arbitrator, to allow me to have this information accepted under confidentiality
Transcripts from my 11 October 1994 oral arbitration hearing confirm Telstra advised the arbitrator they thought my singles club information was irrelevant and therefore should not be accepted into the arbitration process. This evidence supported that I had lost two businesses due to my ongoing telephone problems, i.e., the school camp bookings as well as the more-lucrative singles club bookings. The transcripts, which I can supply the AFP if requested, show Dr Hughes was badgered into accepting Telstra’s insistence that my singles club material be not assessed during the arbitration process. Why did Dr Hughes allow Telstra to decide not to view my singles club evidence as a business loss, even though he had previously understood the advice given to me by Superintendent Detective Penrose and had agreed the singles club material could be submitted under confidentiality during the oral hearing? That he went back on his word.
Question 24, in the 20 September 1994 interrogatories shows I answered the following question 24 by stating to Telstra and the arbitrator:
“This matter is currently under investigation by the Federal Police. In the interest of fair justice I believe that I should not further comment apart from what I have already stated that it is true that I was told this by Detective Superintendent Penrose. It the Australian Federal Police are prepared to disclose the details of their investigations and of their conversations with myself, then Telecom will be able to obtain the same”
In our Front Page) for the date of 11 October 1994, during my five-hour, nonstop, oral-arbitration hearing, Telstra’s Mr Benjamin and Telstra’s other arbitration liaison officer, Steve Black, discussed along with the arbitrator and me my claims regarding Telstra’s unauthorized interception issues noting:
Mr Benjamin: “In respect of Detective Superintendent Penrose.”
Mr Black:“There has been an allegation that Detective Superintendent Penrose says that the Plummers’ telephone was allegedly unlawfully tapped” —
Me: “I believe Telecom is playing on words – the word “illegally tapped” – it’s like asking me – I’m not a —
Dr Hughes: “Sorry, if I can interrupt both of you, the issue here is that your answers – your answer to question 24, you indicate that you were told something by Detective Superintendent Penrose.”
Dr Hughes: “Is there any documentation to support that statement or is there any other light that you can shed upon that statement you have made in relation to Detective Penrose?”…
Me: “I have spoken to Detective Penrose on two occasions and he has stated that my phones had been listened to.”
I raise the interrogatories and the oral arbitration hearing because of the main question they raise: how could it possibly be ethical, or moral, for Dr Hughes to expect me to disclose further personal and private information about the female members of my Singles Club, for all to see, when the AFP were still investigating Telstra in relation to how they were able to separately record the names and phone numbers of various other female Singles Club members when that information had only ever been sent by fax or discussed over the telephone. NONE of my singles club lost revenue due to my ongoing proven telephone faults were ever recorded by Dr Hughes (arbitrator) or Ferrier Hodgson Corporate Advisory (arbitration resource unit) in their final Cape Bridgewater Holiday Camp findings.
Page 180 ERC&A, from the official Australian Senate Hansard, dated 29 November 1994, reports Senator Ron Boswell asking Telstra’s legal directorate:
“Why did Telecom advise the Commonwealth Ombudsman that Telecom withheld FOI documents from Alan Smith because Alan Smith provided Telecom FOI documents to the Australian Federal Police during their investigation?”
After receiving a hollow response from Telstra, which the senator, the AFP and I all knew was utterly false, the senator states:
“…Why would Telecom withhold vital documents from the AFP? Also, why would Telecom penalise COT members for providing documents to the AFP which substantiate that Telecom had conducted unauthorised interceptions of COT members’ communications and subsequently dealt in the intercepted information by providing that information to Telecom’s external legal advisers and others?” (See Senate Evidence File No 31)
Thus, the threats became a reality. What is so appalling about the withholding of relevant documents is that no one in the TIO office or government has ever investigated the disastrous impact this had on my overall submission to the arbitrator. The arbitrator and the government (who at the time fully owned Telstra) should have initiated an investigation into why an Australian citizen, who assisted the AFP in their investigations into unlawful interception of telephone conversations, was so severely disadvantaged during a civil arbitration Page Part One File No/14)
NONE of the COT Cases were ever on a terrorist list in 1994 (or since, for that matter) and nor were any of us ever listed as suspects in relation to any crimes committed against any Australian citizens. This means that we must therefore ask: why were these innocent claimants’ in-confidence arbitration and Telstra-related documents hacked by Telstra while Telstra was defending the various COT cases arbitrations? In my own case, 42 separate sets of correspondence faxed to the Arbitrator’s office (some with attachments) are not listed on the Arbitration Schedules of Material received by the Arbitration process. It is clear from Front Page Part One File No/1 that even though the Arbitrator’s secretary advised Tony Watson (part of Telstra’s Arbitration Defence Unit) that on 23 May 1994, six of my claim documents were never received at the Arbitrator’s fax machine. It is clear from my Telstra account I was charged for those six faxes as having left my office, yet no one from the Arbitrator’s office nor the TIO’s office when this matter was exposed, allowed me to amend my claim so that these proven “non received” claim documents were valued by the Arbitrator in support of my claim.
During the infamous UK phone-hacking scandal (see opposite), the Daily Mirror printed an apology in that newspaper, admitting that “such behaviour represented an unwarranted and unacceptable intrusion into people’s private lives”. Why hasn’t the Australian government compensated the COT Cases who clear proof that: an unwarranted and unacceptable intrusion into their private and business lives during their arbitrations ruined any chance they had of having a proper assessment of their arbitration claims i.e. an arbitration process originally endorsed by the government?
The COT cases should never have been forced into arbitration while the AFP was investigating Telstra for unauthorised phone and fax hacking issues. Evidence showing in-confidence COT cases privileged client to lawyer and arbitration procedural documentation was hacked into during the COT arbitrations.
Telstra clearly achieved their objective, which was to ensure that NONE of the intercepted singles club material that Telstra employees intercepted went before Dr Hughes (arbitrator) for assessment. Had the arbitrator’s technical resource unit viewed, as part of their evaluation process, the 26 September 1994 transcripts, prepared by the AFP and showing the AFP indeed uncovered evidence showing Telstra was intercepting my telephone conversations without my authorisation, they would have seen the AFP findings proved my claim was correct (See Front Page Part Two File No/2). Had the arbitrator allowed the consultants to address my singles club loss of business they would have uncovered the fax interception. With this evidence, alone, Dr Hughes would have had to make an award against Telstra concerning these matters. He also would have to accept my singles club members’ privacy was also violated, as well my own. Viewing this evidence, which the AFP uncovered, meant that he would have to accept that I was indeed running two businesses and that Ferrier Hodgson Corporate Advisory was grossly negligent in their reporting by ignoring 47 per cent of my clientele, i.e., the singles club members. My revenue loss, from the much-higher tariff of those patrons should have been included in their final report.
When Telstra stopped me from submitting that singles club material as part of my claim, on 11 October 1994, it had a dual domino effect on my overall losses: Telstra did not have to address the evidence of intercepting my telephone conversation.Telstra minimised their liability by not having to pay out the losses of the revenue I lost due to singles club patrons being unable to contact my venue at will.Telstra did not have to answer to the arbitrator why they were intercepting faxes during the arbitration process. Open Letter File No/12, and File No/13 show arbitration documents were intercepted during the COT arbitrations.
There should have been NO arbitration until the Australian Federal Police (AFP) completed its findings. No other Western nation allows two legal processes to run at the same time (i.e., the AFP investigation as well as arbitration) as one impedes upon the other. This is exactly what happened. It was unconstitutional to force a citizen into this type of no win situation. Even worse, if that is at all possible, once I began to assist the AFP in their interception investigations Telstra stopped supplying my requested FOI documents.
In 1999, while I was working on the draft of Ring for Justice, I provided it to Rupert Murdoch’s sister, Helen Handbury. She was aghast at the blatant denial of natural justice that I had received. Helen twice visited my holiday camp and, after reading the draft, stated that she would have Rupert publish it. She believed he would be shocked.
Helen was astounded when she discovered just how much evidence I had accumulated over the years, partly because it proved just how long ago both the illegal fax hacking and the discrimination had started, serious discrimination that was handed out by those who had administered my arbitration process. She said that she had been really upset to even contemplate how much suffering and stress had been piled on to the members of COT, just because we persisted with our battle to get a reliable phone service, not just for ourselves, but also for other phone-dependent businesses in South West Victoria. After reading the many supporting letters I had received from The Hon David Hawker MP, when he was our local Member of Parliament, and seeing that those letters also showed quite clearly that many individuals from the towns around Hamilton (which was not far from where Helen and her husband ran their farm) had also written to Mr Hawker about the phone problems they were suffering, and that he had passed those letters on to me, so I could take them with me, to Parliament house, in Canberra. It was then that Helen asked if she could read my book, particularly when I told her that the manuscript included actual proof of how someone with access to Telstra’s network had severely disrupted the fax process of numerous claim documents that I had attempted to fax to the arbitrator during my arbitration.
Of course, 1999 was before the hacking scandal linked to the News of the World.
Unfortunately, Helen died in 2004. Some years later, on 26 September 2012, I sent a draft of the original version of Ring for Justice to her husband, Geoff Handbury, and told him about my conversation with Helen. I asked whether he could suggest the best way for me to get a copy of the book to Rupert Murdoch.
Mr Handbury replied on 17 October 2012 in a handwritten letter (with beautiful, old-fashioned penmanship that we no longer see). However, he was then 87 years old and although highly respected for his philanthropic support of many worthwhile projects in Victoria, too much time had passed and, sadly, he wasn’t able to help. Still, I have the memory of how the sister of the biggest newspaper-owner in the world believed my “intriguing story” was certainly one that her brother should publish and I’m grateful for her comments.
Ironically, on 13 October 1993, a Telstra auditor visited Cape Bridgewater with his secretary. By 2015, the auditor had become a very senior executive within Telstra and he is now on the board of Murdoch’s Foxtel. I am sure he remembers how shocked he and his secretary were when they saw the information I presented to them in relation to my Telstra problems; they both commented that they could not believe how badly Telstra treated me for the previous five years. That five-year period was confirmed in a 9 June 1993 letter from AUSTEL (see Arbitrator File No 61); this letter and its suggestion that Telstra knowingly misled and deceived me during my first settlement in December 1992 shocked them the most.
The British Government pulled no punches in relation to the ongoing saga now, six years after it first went viral across the world. But in Australia, although the government knows that not only did many COT members have their phone lines illegally bugged during their arbitration with Telstra (and, after my arbitration was over), but our faxes were ALSO being screened/intercepted by a secondary fax machine (in my case, for at least seven years after my arbitration was concluded.
In Australia, the COTs have suffered too, just like those victims of the News of the World disaster in Britain; for instance, we couldn’t make a phone call or send a personal fax without being aware that somebody was probably listening in to those calls or intercepting those faxes., Scandrett and Associates’ prepared the Fax Interception Technical Report exhibit (see Open Letter File No/12, and File No/13 and Peter Hancock of Total Communications Victoria provided a sworn statement as to the validity that report. HOWEVER, Senator Boswell never contacted me regarding any outcome of the Senate estimate’s investigation or any other government investigation into this report, which is easily comparable to the News of the World hacking scandal.
I have not been contacted by the Federal government concerning this fax hacking/interception issue but, if such hacking had taken place in the halls of Britain’s parliament it would have been even bigger than the News of the World Rupert Murdoch’s hacking fiasco that led to the 2011 shutting down of that newspaper, first circulated in 1847.
George Close, technical consultant for the COT cases, visited my residence in Cape Bridgewater after I showed him Open Letter File No/12, File No/13, Front Page Part One File No/1, Front Page Part One File No/2-A to 2-E, Front Page Part One File No/4 and Front Page Part One File No/5. We discussed the effect of these intercepted/hacked faxes on my overall submission to the arbitrator. Mr Close later sent me an email, on 5 August 2011, to assist me with breaking open this terrible denial of justice to the COT cases (see Front Page Part One File No/26).
Senator Ron Boswell gave me valuable support during my arbitration and he attempted to find out why Telstra was allowed to threaten me and why, when those threats became a reality, no one from the arbitration process, including Warwick Smith (the administrator of my arbitration) and Dr Hughes (the so-called arbitrator) did anything. It was because of Senator Ron Boswell’s decent nature that George emailed the following statement:
“I recall a discussion with Senator Ron Boswell during the late 90’s.
“He had been shown fax’s [sic] which had clear indication of change in the headers, indicating interruption in transmission by a third party or parties.
“He questioned whether it was possible that faxes to and from senators could be interrupted, read or copies.
“My response in the affirmative brought about an expression of extreme anger. Stating that if it could be proven that it occurred the offender(s) would be jailed.
“If required I am prepared to re-state this on an affidavit.”
So far, no one in Australia has even been brought to account, let alone jailed, for the terrible invasion of the COT cases’ private and business lives.
As recently as March 2018, compensation was being paid out in Britain to the victims of this hacking scandal see www.
guardian.com/media/2017/apr/25/mirror-group-settles-phone-hacking-claims-with-undisclosed-damages). All of those victims are entitled to compensation because their lives will never be the same again. The uneasy feeling whenever they pick up the phone as they wonder ‘Is someone else listening in?’, ‘Does someone else now know that I am going away for the weekend?’ Those memories for those British victims will never go away. I know.