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Chapter Four

Concealing the truth (1)

Absent Justice - Concealing the Truth

One aspect of this more-than-twenty-two-years-old case is still very relevant today, and that is the fact that at least two of the public servants and/or bureaucrats who were heavily involved in concealing the truth about what the Communications Regulator had uncovered concerning Telstra’s unethical conduct towards their customers, were still senior bureaucrats within the current Communications Regulator, in 2015.  Despite the fact that their behaviour, all those years ago, was clearly a breach of their statutory obligations, both to myself and the other COT claimants too, but still, no one has ever transparently investigated any of the claims now exposed on absentjustice.com, which suggest that nothing has changed within the Regulator’s Department.  Just imagine what would have happened if the Regulator and their public servant employees had not allowed Telstra to operate outside of their licensing guidelines but had, instead, told the Communications Minister that at least 120,000 COT-type complaints were being recorded in 1994!  The government would have been forced to investigate just how deficient the Telstra network really was, and that would have resulted in most of the millions upon millions of dollars (in fact it is probably more like a billion dollars or more), of what it has cost the Australian government to fight our legitimate claims would have been saved, because the problems would have been dealt with way back then, twenty-three years ago. In other words, when the Regulator decided not to include the truth in their AUSTEL COT Cases Report of April 1994, those public servants indirectly caused much of the cost blow-out related to the new National Broadband Network in Australia.

Falsification Reports File No/4 dated 22 September 1994 is a transcript taken during an oral interview at the Commonwealth Ombudsman’s Office, with AUSTEL’s representatives, Bruce Matthews and John McMahon.  On page 7 of this transcript the Commonwealth Ombudsman’s officer John Wynack, asked: ‘What was the date the report was issued, the AUSTEL report? And AUSTEL’s representative replied:

“The final report was April – I can’t remember the date in April, but April 1994. The draft report was produced in March 1994 and Telecom received their copy of that at the time.”

While it is clear from the statement made by one of AUSTEL’s two representatives at the hearing (see above), that Telstra received a copy of AUSTEL’s draft findings, ‘NONE’ of the information in this draft report, which enabled the Government Communications Regulator (AUSTEL), to arrive at their adverse findings against the Telstra Corporation, was ever made available to the COT claimants during their arbitrations.

The exhibit Falsification Report File No/8 and in our Introduction File No/8-A to 8-C contains two letters, dated 8 and 9 April 1994, from Telstra’s group general manager to AUSTEL’s chair (see also Arbitrator Part One). These letters suggest AUSTEL was far from truly independent, but rather could be convinced to alter their official findings in their COT reports, just as Telstra requests in many of the points in this letter.

For example, at point 4, on page 3 on the 8 April letter, Telstra’s Steve Black writes to AUSTEL’s Chairman Robin Davey stating:

“The Report, when commenting on the number of customers with Cot-type problems, refers to a research study undertaken by Telecom at Austel’s request. The Report extrapolates from those results and infers that the number of customers so affected could be as high as 120,000.”

And, in the second letter, on 9 April, from Mr Black to Mr Davey he writes:

“In relation to point 4, you have agreed to withdraw the reference in the Report to the potential existence of 120,000 COT-type customers and replace it with a reference to the potential existence of ‘some hundreds’ of COT-type customers…”

And further, on page 3, Mr Black adds:

“Telecom is still concerned that … the proposed reference to ‘some hundreds’ of customers has the potential to be misleading.”

Point 2.71 in AUSTEL’s April 1994 formal report notes:

“the number of Telecom customers experiencing COT type service difficulties and faults is substantially higher than Telecom’s original estimate of 50”.

That Telstra (the defendant) was able to pressure the government regulator to change its original findings for the formal 13 April 1994 AUSTEL report is alarming, to say the least.

Because acknowledgement of the 120,000 COT-type problems, experienced by other Australian citizens, was removed from the AUSTEL formal report, which the Department of Communications Information Technology and the Arts (DCITA) report referenced to determine the validity of COT claims of ongoing telephone problems destroying our businesses, the vastness of Telstra’s network issues does not appear in the DCITA report, either. How many other government-owned businesses have had reports cleansed to prevent the truth from being exposed? (See also Destruction of Evidence / Perverting The Course of Justice/Falsification Report File No/10)

When is a Regulator Not a Regulator?

As the two letters of 8 and 9 April 1994 show, Telstra pressured AUSTEL, and AUSTEL agreed, to dramatically change the actual findings that were included in the first version of AUSTEL’s public COT Cases Report, which would then be used in the COT arbitrations.  In response to that pressure from Telstra, AUSTEL removed all reference to the 120,000 COT-type complaints that they had located and included in the original version of their report and changed that figure to read instead that they had only found fifty or so COT-type complaints.  Surely this was illegal, particularly since it is obvious that that one change would definitely provide considerable assistance for Telstra in their arbitration defence of the COTs’ claims?

At point 2.68 in the AUSTEL Cot report, the 120 thousand COT-type complaints were changed to read 50 or more, therefore the official AUSTEL COT report, provided to the minister, says 50 or more

9th April 1994:  In this letter, Mr Black states:-

“In relation to point 4, you have agreed to withdraw the reference in the Report to the potential existence of 120,000 COT-type customers and replace it with a reference to the potential existence of ‘some hundreds’ of COT-type customers.”

As noted immediately above, the official report refers to 50 or more COT-type faults, confirming that Mr Davey was further pressured to change his real findings.

Telstra FOI folio 101115 to 101117 states:-

“A total of 8% of all businesses stated they had experienced problems themselves; 5% had, by inference from comments made by callers assumed they had problems; and 8% claimed they had both experienced problems themselves and also received comments from callers regarding difficulties in getting through to the business. …

73% of customers who felt the problems associated with incoming calls has seriously affected their business had reported the problems to Telecom with varying degrees of success regarding resolution.”

On 6th December 1993 (see above), Telstra’s Ted Benjamin warned Telstra’s Group Managing Director, Harvey Parker, that 4 per cent of the 2,644 commercial business customers surveyed by TELCATS (on behalf of Telstra) reported experiencing significant phone problems that affected their businesses.

Four per cent of 2,644 means 106 businesses experienced COT-type problems – a significant number.  Four per cent of all Telstra’s commercial business customers, nationwide, would be well over 120,000 – the number that AUSTEL’s chair, Robin Davey, wanted to include in the AUSTEL COT report, rather than the 50 or more customers Telstra insisted on.  Robin Davey’s original calculations were correct.

Once the altered version of AUSTEL’s April 1994 report then indicated – completely falsely – that there were only fifty or so COT-type problems registered with Telstra, instead of the actual figure of 120,000, and this altered report was made available to the public, we must then ask what effect that hugely minimised figure would have had on the “value” of Telstra, when it was floated to the public.  Surely the number of reported “problems” would influence that “value”? (see the comment, at the end of this, about share price fluctuations) Furthermore, when the Government/NBN later paid Telstra $11 Billion (see Telstra hands over copper, HFC in new $11bn NBN deall) for their network, just two years ago (in 2016), this same suppression of true information would also have been extremely useful in relation to the valuation, or the reliability, or the real value of the cable, to properly and effectively support communication systems around the country?

Forget the value of compromised network infrastructure, e.g. a seriously deficient system, and consider the other side of the equation, i.e. that it is not the value placed on the network that is most important per se, it is the capability of the network to be an efficient communications service for the customers that should be front and centre here.

If Telstra was such a terrific investment, then surely the value of the shares should have improved over the years, but they certainly have not!  Moreover, the current value of Telstra is, in part, based on timed calls and mobile communication but, remember the uproar when timed fixed line calls were suggested!!!!  This same business model is carried over to the NBN with the exception that there are retailers who take the profit while the NBN is just a “wholesaler” of infrastructure.  We could have had this with Telstra, if only there was a true separation of the wholesale and retail arms.

We (i.e. the Australian Public) personally have some insight into the NBN through what has now been in the media of later, and so we know that there is a substantial investment in technology and expertise that is not evident to the population, and the NBN is actually like a parallel universe, where there is focus on NBN and the real world we live in, but it is almost totally disjointed and attached to the “old” network and to paying retailers for a less-than-adequate service.  And the Chief Engineer/CEO has just been replaced by a marketing person – astonishing!

So, where will this all lead?  We are, personally, no better off with the NBN compared to the ADSL service we had before.  This could be due to the equipment we have, the network we use, the increased volume, the design of “new” websites, the equipment the retailer uses, or some other factor we don’t even know about.  And we will never really know, just like the world will never know about the COT cases.

Actually, in today’s share market there only has to be a hint of controversy and the market value of an individual enterprise falls, at least momentarily, while the mathematical risk-analysis kicks in and is then followed by the human analysis of the reality.  What would be the effect if the public knew about those 120,000 unhappy Telstra customers I wonder?

Fudged exchange reporting 

In the same original, draft report of AUSTEL’s findings they acknowledged that, for the first three and a half years, my business was connected to an outdated RAX exchange with limited access lines.  In the final, doctored version of the report, however, the one with the fudged fifty or so COT-type complaints, the government advised the arbitrator that my business was connected to an ARK exchange at that time:  an ARK is a different and more modern exchange with space for more incoming circuits.

So now, how is it that the government can continue to get away with deliberately hiding such major discrepancies in a report that is so important, not only to the COTs but the entire Australian population?

One aspect of this over-22-years-old case is still very relevant today: at least two public servants or bureaucrats, who were heavily involved in concealing the truth about what the communications regulator uncovered concerning Telstra’s unethical conduct towards their customers, are still senior bureaucrats within the current communications regulator today, in 2017. Despite the fact that their behaviour, all those years ago, was a breach of their statutory obligations to the COT claimants, still, no one has ever transparently investigated any of the claims exposed on abesentjustice.com which suggests that nothing has changed within the regulator’s department.

As we have shown above– just imagine what would have happened if the regulator and its public servant employees had not allowed Telstra to operate outside of their licensing guidelines but had, instead, told the Minister for Communications that at least 120,000 COT-type complaints were recorded in 1994! The government would have been forced to investigate just how deficient the Telstra network really was and that would have resulted in the Australian government saving most of the millions (if not in the billions) of dollars spent to fight our legitimate claims. The problems should have been dealt with way back then, 22 years ago. When the regulator decided to retract the truth, from their AUSTEL COT cases report of April 1994, those public servants indirectly caused much of the cost blowout related to the new National Broadband Network in Australia.

The failure of those same public servants to alert the relevant communications minister to ALL of the alarming facts they uncovered, during their official investigation into Graham’s and my telephone problems, ruined any real chance we had to restructure our businesses. AUSTEL’s investigation into our ongoing telephone problems was conducted under Section 342 of the Telecommunications Act 1991. This section provides that, after the conclusion of such an investigation, AUSTEL must prepare a report covering “the conduct of the investigation concerned” and “any findings AUSTEL has made as a result of the investigation” and provide a copy to the Minister for Communications and the Arts. However, AUSTEL did NOT report ALL of their findings to the minister, therefore, AUSTEL and its public servants breached their statutory obligation under section 342 to all of the COT cases involved in AUSTEL’s official investigation.

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All of the main events as quoted in this unbelievable true crime story are supported by copies of the original freedom of Information documents linked in the text.

Clicking on these links with your cursor will automatically open a PDF of the exhibit/evidence that a crime was committed. Using this method and following the various file numbers discussed in our various pages, you will verify our story. Without those documents, most people would really struggle to believe that public officials and their lawyers committed the illegal offences they did.

Using the acquired evidence the way we have is possibly a world first.

ABSENT JUSTICE HAS IT ALL.

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“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

“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

“…the very large number of persons that had been forced into an arbitration process and have been obliged to settle as a result of the sheer weight that Telstra has brought to bear on them as a consequence where they have faced financial ruin if they did not settle…”

Senator Carr

“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

“All that is required for evil to triumph is for good men to do nothing”

– Edmund Burke