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Chapter Twelve - The twelfth remedy pursued

Absent Justice - 12 Remedies Persued - 12

The twelfth remedy pursued ended in May 2011.

Although we address my Australian Communications Media Authority and Administrative Appeals Tribunal hearings throughout absentjustice.com, we thought it important we again highlight these two hearings at this stage of our story so you can form your own opinion as to whether I am a vexatious litigant or someone seeking the justice they were denied.

26 May 2011 (No 2010/4634) show I maintained my Freedom of Information applications to ACMA should be provided free of charge, in the public interest, including all of the requested information both Telstra and AUSTEL withheld during my government-endorsed arbitration process. Senior AAT member Mr G D Friedman considered this AAT hearing and it is now apparent that Mr Friedman was unaware that the government solicitors (AGS) and ACMA based their defence of my claims on the inaccurate DCITA COT archival documents, including the sanitised public AUSTEL COT report released in April 1994. Neither document includes the true (and very adverse) findings that AUSTEL had originally reached in relation to Telstra’s dealings with me (see AUSTEL’s Adverse Findings).

ADMINISTRATIVE APPEALS TRIBUNAL

 

Statement of Facts and Contentions

ALAN SMITH

Introduction Part 1

It is important that the AAT understand that, back in August 1992, five ordinary small business operators, three from Victoria and two from Queensland, came together in an attempt to force Telstra to supply them with telephone services comparable to their business competitors. This group originally called themselves the Casualties of Telecom (later changed to the Casualties of Telstra) or COT Cases for short. One of the five, Shelia Hawkins, left the group at the end of 1992. After an audit of Telstra’s fault handling process by Coopers & Lybrand in late 1993, and a Government investigation into the COT’s complaints, which had by then escalated to some sixteen small businesses, it was clear that Telstra needed a testing process to would determine if the faults being lodged by Telstra customers were genuine or not. Together with AUSTEL (the Government Communications Regulator), Telstra then set up a process called Service Verification Testing (SVT), designed to meet all of AUSTEL’s mandatory specifications regarding the success of calls going out of a customer’s premises and, more importantly, the success of calls coming into the customer’s premises. The AUSTEL / COT Cases public report that was provided to the Hon Michael Lee MP on 13th April 1994 confirms that, in a pending settlement process for the Difficult Network Fault (DNF) COT Customer complaint, this SVT process was to be used to prove that there were no more problems affecting the customer’s service.

Introduction Part 2 

This current sixteen-page Statement of Facts and Contentions has been condensed from a draft document entitled Section 70 of the Crimes Act 1914 (Australia), which totals 283 pages and 834 accompanying exhibits, including earlier letters I have written to the Australian Communications and Media Authority (ACMA) between 7th February and 20th October 2010, which the ACMA (the Respondents) have compiled as The Respondents Section 37 Documents.

In my 20th October 2010 letter to the AAT I have claimed that the ACMA has a conflict of interest in my FOI matters and that AUSTEL (now the ACMA) have concealed, from both the Government and the public, that in some cases at least, AUSTEL knew that Telstra’s SVT process was fundamentally flawed (see below) but still AUSTEL allowed Telstra to submit these flawed SVT reports to the TIO-appointed arbitrator.  Evidence contained in documents 103 and 104 in The Respondents Section 37 Documents, namely CCAS data from the 29th September 1994, the day Telstra conducted their SVT process at my business, has been analysed by Brian Hodge MBA who worked for Telstra for twenty-nine years as a technical specialist before going out on his own.  Mr Hodge’s report dated 27th July 2007, which was provided to the ACMA in 2008, states that Telstra did not perform the mandatory incoming Service Verification Tests into my business. 

On page 12 below I suggest a way that, using the AAT platform, the ACMA can prove once and for all that they have no conflict of interest in relation to protecting past Commonwealth Officers who allowed Telstra to submit their flawed SVT reports, under oath, to an arbitrator.  My suggestion is that the ACMA simply appoint two independent technical consultants to assess Telstra’s CCAS Data for the 29th September, 1994 and provide advice as to whether Telstra did carry out the mandatory AUSTEL incoming tests to my service lines 055 267 267, 055 267 230 and 055 267 260 on 29th September 1994. After all, the general public has a right to know whether the current ACMA Chairman, Mr Chris Chapman, and the ACMA Board are truly independent and are prepared to show their independence by having this CCAS data assessed because it will be of public interest if the ACMA, which is overseeing the present splitting up of Telstra’s network, is truly an independent regulator, protecting the rights of ALL Australians.

If Mr Chapman refuses to have the ACMA involved in this elimination process because of Section 70 of the Crimes Act 1914, which prohibits a Commonwealth officer from disclosing any fact or document which has come into their possession by virtue of them being a Commonwealth officer, then it is in the public interest that Section 70 of the Act is revised. I believe most Australians will be horrified to learn that because of an old and out-dated Crimes Act the ACMA has been unable to disclose publically their knowledge of how Telstra knowingly submitted false information under oath to an arbitrator and how that submission stopped the claimant from having his ongoing telephone faults rectified during and after his arbitration.      

Section 70 of the Crimes Act 1914

Since my arbitration was endorsed by the Government Regulator, AUSTEL, on behalf of the Federal Government, then I believe it is certainly in the public interest (see page 13, following) for Australian citizens to know that, in Canberra, on 21st March 1995, two Commonwealth officers advised me that AUSTEL knew that Telstra, the defendants in my arbitration process, had knowingly relied on two flawed reports to support their defence of my claims (the Cape Bridgewater Bell Canada International (BCI) test report and the AUSTEL-facilitated Cape Bridgewater Holiday Camp Service Verification Test report), but AUSTEL was powerless to intervene.

I believe it is a matter of public interest that during a Government endorsed arbitration process:

  1. Three senior Telstra executives held positions on the TIO Board and the TIO Council at the same time as one of them was the subjects of the TIO-administered COT arbitrations.  We believe the positions that these Telstra executives held on the TIO Board and Council may well be why there has never been a proper or transparent investigation into Telstra’s conduct during the COT arbitrations, for example:  when two of the first four original COT claims were being assessed by the TIO-appointed arbitrator, a Senate Committee had already been investigating one of the Telstra TIO Board members for misleading the Senate regarding the telephone exchanges that the businesses of these two COT claimants were connected to – exchanges that were then also part of the COT arbitration investigations. 
  2. In 1994, AUSTEL (now called ACMA), investigated and prepared draft reports regarding the telephone complaints that had been lodged by eight COT claimants including me.  It took sixteen years before Graham Schorer COT Spokesperson and me were finally given copies of these draft reports, in November 2007 and October 2008, and it was then clear that, back in 1994, AUSTEL had found, in both cases, that Telstra had misled and deceived us both concerning our ongoing telephone problems.
  3. That Australian citizens can be assured that the legally binding arbitration agreements they have signed were drafted by the arbitrator in consultation with the Special Counsel attached to the TIO, only to learn, after the agreements were signed, that the defendants in the case (Telstra) had actually drafted the agreement so as the claimants had no chance of accessing FOI documents during the period allowed in the arbitration agreement.
  4. Documents released in late 2007, years after the arbitration, proved that covert changes had been made to the ‘final’ version of the arbitration agreement, after it had been sent by the arbitrator to the Solicitor representing the claimants for his opinion but before the Solicitor’s clients (the claimants in the case) had signed it, without the Solicitor or his clients ever being notified of the changes on the day it was signed

Document 381 in the Respondent Section 37 Document

Is a report prepared by me totalling 164 pages and 486 supporting exhibits dated 4th May 2010 to Simon Clearly, Acting (TIO) transcribed onto a CD disk. Various exhibits and statements in this report confirm that secret meetings with Telstra, Telstra’s Corporate Directorate, Dr Hughes (Arbitrator), Warwick Smith (TIO) and Special Counsel Peter Bartlett convened a meeting on 22nd March 1994, without the COT Cases having representations to discuss the arbitration agreement. Telstra’s transcript of this meeting FOI folio 000136/000138 states under the heading Exclusion of Liability for Arbitrator’s Advisor that:

“...Mr Bartlett (Special Counsel) stated that he was unhappy that Telecom did not appear prepared to allow his firm an exclusion from liability. Mr Smith (Warwick Smith) stated that he thought it was reasonable for the advisors to incur some liability, and that the only matter left to be negotiated on this issue was the quantum of the liability caps. Mr Black (Telstra) said that he thought the liability caps proposed by Telecom in the amended rules were already reasonable”

Exhibit AS 333-a, also on the CD, is a letter dated 12th April 1994 from Dr Hughes to Peter Bartlett, noting:

“I appreciate that one claimant has already executed the agreement in its current form. The others will no doubt be pressed to do likewise over the next few days. I further appreciate you will be reluctant to introduce additional changes to the draft procedure at this delicate stage of negotiations but it is of course also fundamental that account be taken of the concerns raised by members of the Resource Unit. Perhaps the agreement should be executed in the current form and then agreement sought from the parties to vary the terms to take into account any proposals by Ferrier Hodgson or DMR which you agree are reasonable”

Although the 12th April, 1994 letter was only copied to the TIO (Warwick Smith) and J Selek & J Rundell of Ferrier Hodgson (the Arbitrators Resource Unit), it now has a Telstra FOI number folio (A59257) allocated to it, confirming that Telstra saw this letter, probably either before or shortly after we signed the agreement.  Since it was not officially copied to Telstra it would seem that perhaps Telstra (or their lawyers) noticed the alterations to clause 24 and the removal of the liability caps for Ferrier Hodgson (inc clause 25) and DMR the technical consultants (in clause 26) when Peter Bartlett (Special Counsel) couriered the agreement to Telstra on 21st April 1994, after we had signed it.  Or did Dr Hughes and Peter Bartlett allow us to execute the agreement “in the current form”, as Dr Hughes suggested in his letter of 12th April, and then allow Telstra themselves to alter the agreement while they still had it in their possession?  Although Peter Bartlett wrote to COT spokesperson Graham Schorer on 22nd April 1994, advising him that Telstra had signed the agreement on 21st April, we did not get the Telstra signed arbitration agreement until eight days later.  Could it be that the changes were made some time during those eight days perhaps?  What we do know for certain is that Graham Schorer, our lawyers and I believed we were signing the same agreement that the first claimant, Maureen Gillan, had executed on 8th April because our lawyers had received the same (unsigned) version for their comment, faxed from Dr Hughes’ office, on 19th April 1994.

The fax imprint on these two identical agreements Exhibits AS 429 and 430 on the CD were faxed from Dr Hughes’ office by his secretary, Caroline Friend, to Mr Alan Goldberg QC and William Hunt, solicitor between 1:20 and 2:00 pm on 19th April 1994.  Each fax included an unsigned copy of the arbitration agreement, the same agreement that had already been executed by Maureen Gillan on 8th April 1994 (the claimant referred to by Dr Hughes in his 12th April letter to Peter Bartlett). It is these two identical agreements that Alan Goldberg QC, William Hunt, Graham Schorer COT spokesperson and I believed were signing on 21st April 1994.

Document 232 to 244 in the Respondent Section 37 Document

This document, which includes a copy of a letter dated 22nd June 1994, from Telstra’s Steve Black to Peter Bartlett and an attached copy of the arbitration agreement that was to be used for the following twelve COT claimants (with the $250,000.00 liability caps replaced) was faxed to AUSTEL/ACMA from the TIO’s office which seems to indicate that the Government Telecommunication Regulator, AUSTEL/ACMA was also involved in the collusion referred to immediately above.

Document 35 to 48 in the Respondent Section 37 Document 

On page 5 of my 7th February 2010 FOI request I explain that AUSTEL was advised that Telstra was secretly altering FOI documents so as to minimise Telstra’s liability, before they were released to the COT claimants and that Telstra’s Steve Black had been named as the ringleader of that process.  This was the same Steve Black who signed the altered arbitration agreement and the same Steve Black who sent a copy of the new version of the agreement (prepared for the following twelve COT claimants, with the liability caps replaced) to Peter Bartlett on 22nd June 1994.

Exoneration from liability

Attachments to my letter to Julian Burnside QC dated 9th December 2010 (copied to the AAT and ACMA) and on the CD in The Respondents Section 37 Documents clearly prove that the arbitrator’s Resource Unit did not investigate at least 3,000 of my submitted claim documents.  Some of those documents are referred to in the conclusion of this Statement of Facts and Contentions, which explains how Telstra laid optical fibre they knew was faulty, and redeployed back into circulation hundreds of thousands of EXICOM TF200 touchphones even though they knew that both the optical fibre and the touchphones had serious faults associated with them.  My arbitration claim recorded all this but the Resource Unit ignored these two vital issues and I suspect they decided to ignore these matters because they knew they had been exonerated from any liability in relation to my arbitration.  This is a matter that is in the public interest because, if the arbitrator and special counsel had not made those secret alterations to my arbitration agreement then the Resource Unit would have been compelled to address these matters and this faulty equipment would have been recalled sixteen years ago; and who knows how many members of the public would have therefore been supplied with telephones and telephone lines that worked as it was meant to, instead of battling for years with seriously faulty Telstra equipment.

Document 303 in the Respondents Section 37 Documents

This is AUSTEL’s draft of their Alan Smith Cape Bridgewater Holiday Camp report dated 3rd March 1994.  The following points are particularly relevant:

Point 209 states:

 “Cape Bridgewater Holiday Camp has a history of service difficulties dating back to 1988. Although most of the documentary dates from 1991 it is apparent that the camp has had ongoing service difficulties for the past six years which has impacted on its business operations causing losses and erosion of customer base”.

Point 210 states:

“Service faults of a recurring nature were continually reported by Smith and Telecom was provided with supporting evidence of this in the form of testimonials from other network users when were unable to make telephone contact with the camp”.

Point 212 states:

In view of the continuing nature of the fault reports and the level of testing undertaken by Telecom doubts are raised on the capability of the testing regime to locate the causes of faults being reported”.

In relation to this type of testing regime, it needs to be noted here that it seems as though the failure of the testing regime to “locate the cause of faults being reported” may be linked to AUSTEL/ACMA allowing Telstra to limit their mandatory parameter testing regime.  If this matter is not in the public interest then please consider a Telstra email dated 20th December 1993 (FOI document A00354) which discusses this same testing parameter performance standards noting: 

“I understand there is a new tariff filing to be lodged today with new performance parameters one of which commits to 98% call completion at the individual customer level. Given my experience with customer disputes and the recent BCI study, this is cause for concern. We will not meet this figure in many exchanges around Australia particularly in country areas”. 

My records show that, during the period when AUSTEL allowed Telstra to limit this testing regime, AUSTEL and Telstra received over 2,644 customer complaints from just one survey and 4% (105) of the customers who responded to that survey stated they had experienced one or more of the COT type service difficulties and faults.   

Telstra v Golden Messenger Federal Court Action

On 3rd November 1990, during Graham Schorer/Golden Messenger’s Federal Court proceedings against Telstra, Telstra’s Trevor Hill advised Telstra’s Peter Gamble (FOI folio C04550/C04551) that: 

“The Australian Government Solicitors, on behalf of Telecom, has written to the solicitor acting for Golden Messenger seeking their undertaking not to disclose to their client or others the content of the report on the North Melb exchange. To date, there has been no response.”

Graham Schorer, official spokesperson for COT, has told me that he did not receive a copy of the North Melbourne Exchange report from his solicitor at any time during his Federal Court action.  One of the two solicitors representing Graham Schorer in his Federal Court action was Dr Gordon Hughes, who later became TIO-appointed COT Arbitrator and then covertly sanctioned the alterations to the COT arbitration agreement after it had been faxed, unchanged, from Dr Hughes’ office to our lawyers, for their legal opinion.  Dr Hughes never did reveal his previous involvement with Golden Messenger in relation to Graham Schorer’s telephone matters and this must be a matter of some concern considering that Dr Hughes then chose to allow Mr Schorer more than two years in which to reply to Telstra’s arbitration defence of Golden Messenger claims, which included the North Melbourne Exchange matter, but only allowed me fifteen days to address Telstra’s defence.  Could it be that Dr Hughes subconsciously but compassionately provided Mr Schorer with more time because he (Dr Hughes) had already read the North Melbourne Exchange Report during Mr Schorer’s Federal Court case and was therefore aware of how bad the Exchange really was?

This serious conflict of interest in relation to Graham Schorer/Golden Messenger’s Federal Court proceedings put Dr Hughes in a precarious position; perhaps Telstra used this situation by threatening to reveal his past association with Graham Schorer/Golden Messenger earlier Federal Court proceedings against Telstra. Could this be why Dr Hughes never challenged Telstra’s false, sworn witness statements that my claim advisor (Garry Ellicott, ex-Detective Sergeant with the Queensland Police and ex-Senior National Crimes Investigator) declared had perverted the course of justice during my arbitration? 

It is important that the AAT and the ACMA carefully consider the ramifications of AUSTEL’s draft report on the Graham Schorer/Golden Messenger/GM Melbourne Holdings Pty Ltd matter, particularly points 38 and 43, (which I provided the AAT in my letter of 20th October 2010), because they show that Telstra had been deliberately misleading and deceiving this company for years and had even hired a private investigator as part of their involvement with GM Melbourne Holdings, which is confirmed by a letter dated 3rd March 1992 from the Australian Government Solicitor to Telstra’s Corporate Secretary, re “Telecom-ats-GM (Melbourne) Holdings Pty Ltd” which states:

I enclose a certified claim for payment for the sum of $295.00 being amount payable to Equity Adjusters for professional services.” 

Telstra FOI document folio C05313 dated 15th March 1993

“re AOTC ats GM (Melbourne) Holdings Pty Ltd”, notes: “Investigator’s Report and enclosing letter from Equity Investigators. I apologise for the state of the handwritten statement in the Investigators Report.”

These two FOI documents prove that Telstra had employed Equity Adjusters over a number of years in relation to Golden Messenger/GM Melbourne Holdings Pty Ltd, but the most important issue here is that Telstra must have misinformed the Government Solicitor regarding the issue of Telstra’s misleading and deceptive conduct towards Golden Messenger, an issue that was later included in AUSTEL’S draft report at points 38 and 43.  It is therefore a matter of public interest that the Federal Government paid the sum of $295.00 to Equity Adjusters, from the public purse, particularly since we now know that Telstra not only misled and deceived Golden Messenger in relation to their ongoing telephone problems but they also tricked the Government Solicitor into handing over public money in relation to a crime committed by Telstra on an Australian citizen

Senate Estimates Committee Investigation re COT / FOI requests

I believe it is a matter of public interest that:

In-camera Senate Estimates Committee Hansard reports dated 6th and 9th July 1998, state that one Senator actually told a senior Telstra Executive that he agreed with:

... the chair. We have a difficulty. In many senses we all say, ‘For God’s sake Telstra, just give the last four all half a million or a million dollars each and stop it immediately.’ But that would be an injustice to the 16 or whatever you have settled.” 

Injustice or not, as a result of the Senate’s involvement, the first five of the sixteen COT claimants did eventually get some of the FOI documents they had asked for and receive compensation as a result of the Senate investigation.  The remaining sixteen COT claimants however, who were also on the Senate Estimates Committee’s list, were not provided all the FOI documents they were entitled to, nor did they receive compensation from Telstra through this Senate Estimates investigation, even though they had been told that, whatever the outcome of the first five ‘litmus test’ COT cases, the following sixteen would be treated the same. If this isn’t discrimination of the worst possible kind against sixteen Australian citizens by the then-Federal Government, then what is?

I believe it is a matter of public interest that three Senators I know of (there could be more) have tried desperately to organise for these claimants to have access to the type of documents that the other five claimants had access to as well as some sought of compensation for those remaining sixteen COT claimants, but this has not eventuated.  In fact, there was one occasion when a Senator phoned my home at 7.45 one morning to inform my partner and me that he had achieved a breakthrough it was a done deal, only to be stopped by those with a vested interest in concealing the type of evidence that is included in my 26th July 2008 AAT Statement of Facts and Contentions and in this current Statement of Facts and Contentions.  All this evidence proves that the COT / Government-endorsed arbitrations were not conducted according to the promises pledged to the then-Labor Minister for Communications, the Hon Michael Lee MP; the then-Shadow Minister for Communications, Senator Richard Alston; Senator Ron Boswell of the National Party; and the Australian Democrats. 

25th March 1994:  The Commonwealth Ombudsman, Ms Philippa Smith, wrote to Telstra’s CEO, Frank Blount, advising him that Telstra’s Steve Black had advised her Director of Investigations, John Wynack, that Alan Smith was not being provided with FOI documents because of:  

“...the need for Telecom to check all documents prior to release so that Telecom is alert to the possible use/misuse of sensitive information. Your officers also informed Mr Wynack that they expected the vetting of the documents would take only a couple of days.”

On 7th July 1994 I wrote to the arbitrator, complaining that Telstra had advised me that they would not supply any more FOI documents because I had previously provided the Australian Federal Police with documents confirming that Telstra had intercepted my telephone calls without my knowledge or consent.  Dr Hughes did not respond, so I then sought assistance from Senator Ron Boswell asking for his help and, on 29th November 1994, at a Senate Estimates Hearing, Senator Boswell asked Telstra: 

“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 investigations?” 

I have never seen Telstra’s official response to this question (if one was ever made) although after ten months later, on 7th September 1995, Telstra did advise the TIO that they had withheld 40% of the FOI documents I had legally requested until two weeks after my arbitration had been deemed to be complete.

12th May 1995: Two hours after Warwick Smith (TIO) received a fax from Dr Hughes advising that the COT arbitration agreement he had just used to deliberate on the first of the COT claimants (Alan Smith) needed revising before it was used for the next three cases because it was not ‘a credible document’ and because: 

“… there are some other procedural difficulties which revealed themselves during the Smith arbitration and which I would like to discuss with you when I return”, Warwick Smith issued a public statement to the media, noting:  “The Administrator noted that the arbitration process, under the direction of the independent Arbitrator Dr Gordon Hughes, appointed with the agreement of the parties, had been run in accordance with principals of natural justice.”  

In August 1995 I discovered just what the “procedural difficulties” that Dr Hughes referred to were, when my claim documents were returned to me and I discovered that, on 30th April 1995, the arbitration technical resource unit had advised the arbitrator that they were still weeks away from finalising their investigation into the full extent of the billing problems that were affecting my business.  This information was, however, withheld from both my technical advisors and me, and Dr Hughes handed down his award in relation to my claims when only 20% of my claim documents had been assessed.  This information has been passed on to the TIO and ACMA Boards numerous times since 1995 and can also be supplied to the AAT on request.

22nd June 1995: six weeks after Dr Hughes brought down his findings using the agreement he declared not credible and a technical report that was incomplete Telstra released under to me under FOI conclusive proof that the Bell Canada international Cape Bridgewater tests were impracticable. When I raised this fresh evidence with the new TIO John Pinnock and Dr Hughes on 21st June 1995 the TIO office faxed their concerns to Peter Bartlett at Minter Ellison stating:

“Re Alan Smith, John (John Pinnock) wants to discuss it on Monday, and what the approach should be re parties seeking to revisit issues post Arb’n (Arbitration) His position is not to open the can of worms, but would like to discuss strategy with you – regards Pia     

11th July 1996: AUSTEL provide their sixth COT Cases quarterly report to Senator Richard Alston, Minister for Communications noting:

“...The TIO believes that Telstra has, in all claims, responded in an overly legalistic manner. It has shown tendency to deny liability under every potential clause of action on the basis of perceived statutory and contractual immunities. In short, while the arbitration procedure has sought to relax the legal burdens, Telstra’s conduct has certainly not”.

20th August 1997: Ben Dunn, Barrister Michael Brereton & Co wrote to Senator Ron Boswell Re: Alan Smith v Telstra Corporation noting:

“...It seems clear that at the time of reaching the initial settlement with Telstra, Mr Smith had not been fully informed by them of the extent of the problems with the exchange and that Telstra, wittingly or unwittingly, withheld information relevant to the settlement to Mr Smith’s detriment, The conduct of the arbitration which followed was highly dubious and open to attack as inviting questions of bias since the arbitrator ruled out many relevant documents to the detriment of Mr Smith’s claim. All of these circumstances and the fact that the entire arbitration was conducted in a highly legalistic manner much in favour of Telstra on rules it forced into place suggest that Mr Smith was less than fairly dealt with by Telstra and the arbitrator”.

26th September 1997: During the Senate Estimates Committee investigation into the COT Cases FOI issues John Pinnock (TIO) advised the Committee that: 

“...the arbitrator had no control over the process, because it was a process conducted entirely outside the ambit of the arbitration procedures”. 

27th January 1999: Senator Kim Carr, Manager of Opposition Business in the Senate (and now Minister for Science) wrote to me noting: 

“The appalling manner in which you have been treated by Telstra is in itself reason to pursue the issue, but also confirms my strong held belief in the need for Telstra to remain firmly in public ownership and subject to public and parliamentary scrutiny and accountability.   Your manuscript demonstrates quite clearly how Telstra has been prepared to infringe upon the civil liberties of Australian citizens in a manner that is most disturbing and unacceptable.” 

23rd March 1999: after the Senate Estimates Committee Hearing into the COT arbitrations had been completed, the Australian Financial Review reported that the Chairman of the Committee, Senator Eggleston, had stated:   

“A Senate working party delivered a damming report into the COT dispute. The report focussed on the difficulties encountered by COT’s members as they sought to obtain documents from Telstra. The report found Telstra had deliberately withheld important network documents and/or provided them too late and forced members to proceed with arbitration without the necessary information. Senator Eggleston said: “They [Telstra] have defied the Senate working party.”   Their conduct is to act as a law unto themselves”.

The above statement made by Senator Eggleston that: “They [Telstra] – is to act as a law unto themselves”, coincides with a letter I received two days previous dated 21st March, 1999 from J R Perry of Perry & Associates Pty Ltd addressed to the Casualties of Telstra C/- The Small Business Show Channel Nine noting:

...I watched your show on Sunday morning carrying the piece of Telstra. I was interested to hear of Telstra’s lies under oath, destruction of evidence, etc, etc. I started a law suit 21/2 years ago against Telstra for breach of contact during their cable TV rollout. They have placed every obstacle in our way and dragged the case out to try to bleed us dry. They sent dozens of contracting companies such as mine to the wall by manipulating markets and breaching contracts. Only 3 companies have had the resources to fight them. Unfortunately two company owners have allegedly committed suicide due to the loss of their homes and families as a consequence of Telstra’s actions, although this would be difficult to prove. We also have found the following: – Destruction of evidence from the first day of the suit – False affidavits from Telstra management – Withholding discovery documents”

Australian Democracy Telstra Style  

On 12th December 1994, Telstra declared to the arbitrator (under oath), that the Telstra Corporation had no case to answer in relation to my claims.  In support of this statement Telstra submitted twelve witness statements, five bound volumes of supporting documents, a highly legalistic submission, two fundamentally flawed technical reports, a request for further and better particulars and a demand that I respond to Telstra’s interrogatories.  It cost me close to $200,000.00 to submit professionally prepared financial and technical claims and a response to Telstra’s interrogatories but, before I even began that expensive process, AUSTEL had already found strongly against Telstra in their draft report (see document 303 to 379 in the Respondents Section 37 Documents). Since 1995 I have invested a further $240,000.00 in expenses in (so far) an unsuccessful attempt to have these matters investigated.  I am now auctioning my family home on 12th February 2011 due to this ongoing financial and emotional stress.  

I believe it is in the public interest and the public certainly has a clear right to know that, during a Government-endorsed legal arbitration process, a Government-owned corporation (as Telstra was in 1994) could submit so many sworn documents in support of their claim that they had no case to answer when:

  1. AUSTEL had already provided Telstra with AUSTEL’s draft findings in relation to my matters, on 3rd March,1994 noting: “...it is apparent that the camp has had ongoing services difficulties for the past six years which has impacted on its business operations causing losses and erosion of customer base;  
  2. Before Telstra submitted all these documents to the arbitration they already had a document titled Telecom Secret Folio C04006/7/8 which recorded:  “...Many letters stating the problem of not getting through to Alan Smith. Legal position – Mr Smith’s service problems were network related and spanned a period of 3-4 years – given his evidence and claims. I do not believe it would be in Telecom’s interest to have this case go to court. Overall, Mr Smith’s telephone service suffered from poor grade of network performance over a period of several years”.

Document 35 to 75 in the Respondent Section 37 Document (Under surveillance)

These include a copy of my FOI request of 7th February 2010, which records how transcripts of a meeting with the Australian Federal Police on 26th September 1994 confirm that evidence given to the AFP by AUSTEL proved that my telephone conversations had been intercepted over an extended period.Documents 81 and 63, sworn affidavits from Robert Hynninen of the ATO (previously an ex-Victoria Police Detective Sergeant) and Des Direen, an ex- Principal Investigator for Telstra, show that they both believe that, while the Victoria Police Major Fraud Group was investigating COT issues between 1998 and 2000, Detective Sergeant Rod Kueris, who was in charge of the investigations, was kept under surveillance and that both his office at the Major Fraud Group’s headquarters in St Kilda Road and his private residence telephone services were illegally interfered with.This invasion of Mr Kueris’s privacy finally ruined his life and his police career and he resigned from the police force, as Mr Direen recorded at points 12 and 19 in his affidavit.

I believe Mr Kueris will remember that, between 1999 and 2000, while I was assisting the Major Fraud Group with their enquiries, I advised him that faxes from my office to his office (on two occasions) did not arrive and that I believed, on at least one occasion, that I was followed from my Queens Road (Melbourne) unit on route to the Major Fraud Group’s St Kilda Road offices.

Document 43 in the Respondents Section 37 Document

On page 9 of this document I provided advice that, on 7th January 1999, Scandrett & Associates Pty Ltd, Telecommunications Consultants (Queensland) wrote:

In our opinion these additional “facts” would make it almost certain that COT persons did not perform any alteration to the headers of the faxes involved. The second possibility is that a party or parties with access to the Telstra network on a national basis and the ability to selectively intercept and resend facsimiles have interfered with or used the national network of Telstra to intercept and resend these faxes. In summary then it appears to be almost certain that faxes are being intercepted and resent, with an attempt to hide the same, to the receiving party”;

and on 11th January 1999, Peter Hancock of Total Communications Solutions (Victoria) wrote in his statutory declaration that:

“It is my opinion from the evidence provided that a third party has been intercepting all of the faxes referred to above. In my experience there is no other explanation for the discrepancies in the facsimile footprints in question. I have read the report of Scandrett & Associates Pty Ltd and concur with its contents”.

My 2010 FOI request of 7th February asks the ACMA to provide all the documents referred to in the Australian Federal Police transcripts as being provided to the AFP by AUSTEL.I believe it is important for the AAT to know that no-one has ever addressed the issue of the invasion of my privacy, even though AUSTEL (a Government Regulator), Dr Hughes (arbitrator) and Warwick Smith (TIO) assured all the COT Cases that these privacy issues would be addressed during their arbitrations. Although I now have conclusive proof that Telstra knew when my secretary left my office at various times when I was away in Melbourne including, on one occasion, noting the dates I would be away from my office weeks before those trips occurred, and in one occasion Telstra was able to document that one of my regular callers happened to telephone me from a different location than normal.

I believe most Australians would be astounded to learn about the following documents and the events they relate to:  

  1. On 29th October 1993 a Telstra FOI document (folio K01489) confirmed that Telstra knew that faxes sent from my office were arriving at their intended destinations as blank sheets of paper, without the imprint of my business identification or the date it was sent displayed on the received document;
  2. On 18th March 1994 Telstra advised AUSTEL that they would only intercept faxes after receiving permission from the customer;
  3. On 14th April 1994 a Telstra file note admitted that Telstra intercepted my telephone conversations over an extended period.  I certainly never gave my permission for this to occur; 
  4. On 15th April 1994, an article in the Herald-Sun newspaper reported that:  “Former Prime Minister Malcolm Fraser yesterday demanded Telecom explain why his name appears in a restricted internal memo. He said he had never contacted Telecom about the subject of the memo. Mr Fraser’s request follows the release of a damming government report this week, which criticised Telecom for recording conversations without customer’s permission. Mr Fraser said 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”;     
  5. On 22nd April 1994 AUSTEL wrote to me, confirming that, although their fax journal showed three separate faxes from me arriving at their office, with each process recorded as lasting between 1 minute 30 seconds and 2 minutes 40 seconds, the documents arrived completely blank, and did not include the imprint of my business identification or the date it was sent (see also point 1);
  6. On 26th September 1994 I met with the AFP in relation to my Telstra matters.  Transcripts of that meeting indicate how shocked the AFP officers were to see Telstra file notes from as far back as 1992 showing that Telstra was recording my activities, including noting the name of a bus company that I had tendered to for a contract (which I did not win); 
  7. During my Government-endorsed arbitration) an internal Telstra email, from Bruce Pendelbury to David Stockdale, notes that:  “Mr Smith is absent from his premises from the 5/8/94 to 8/8/94”;
  8. On 23rd January 1997 an internal Telstra email from Stephen Mead of Telstra’s Corporate Directorate asks:  Do we have (name deleted) under surveillance?
  9. On 27th June 1997 a private detective agency (International Detection Services) hired by Telstra, wrote to Telstra’s Corporate Security to report that:  "We have been attending this address on other matters as you are aware. The home is a low set brick residence and appears neat and tidy. There is a weldmesh security door at the front of the home”, proving that another COT claimant was clearly also under surveillance;
  10. Between 1994 and June 1998 two different secretarial services and an education consultant confirmed problems receiving faxes from and sending faxes to my office; 
  11. On 30th January 2000 a third secretarial service, Dial a Secretary, confirmed problems receiving faxes from my office;
  12. On 23rd December 2002 I wrote to Tony Shaw Chairman of the ACA. A copy of this letter has since been returned to me from the ACA and it is clear that this letter was also intercepted before being redirected on to the ACA.  The markings on this document and those described are same type of documentation assessed by Scandrett & Associates and Peter Hancock (see above) which they labelled as having been intercepted; 

 

Document 303, the Respondents Section 37 Document 

Point 9 of this document describes how it is of public interest that, as a result of AUSTEL deciding NOT to survey other Cape Bridgewater residents in 1994 Mr Barry Sullivan lost his Cape Bridgewater building business during this period.  On the 8th November 2002, I received a letter from Mr Sullivan, in which he advised: 

“I am writing to you following viewing the Channel 9 Sunday Program on 3/11/02. After viewing the Sunday program, I realised the similarities your business and others had with Telstra some ten years ago with the similarities our building business had, when we lived at Bridgewater. During a period of time between the late 1980s and early 1990s we had a considerable amount of difficulty with our phone. Our phone problem had such a negative effect on our building business over a period of time that our work dried up and our business shut down. Our business had been running successfully for several years prior to the phone problems”.

Like Mr Sullivan, the ongoing telephone problems that were not investigated during my arbitration had such a negative effect on the viability of our business my partner and I had to sell the holiday camp in December 2001, to Darren & Jenny Lewis. Had AUSTEL chose to force Telstra (under their licensing conditions) to investigate why my business was still suffering from the same ongoing phone problems that had forced Barry Sullivan out of business the same ongoing phone telephone problems that AUSTEL acknowledged in their covert draft report (see Document 378 in The Respondents Section 37 Document) at point 209, which states:   “...it is apparent that the camp has had ongoing service difficulties for the past six years which has impacted on its business operations causing losses and erosion of customer base”, both Barry Sullivan and I might still be in business today.

I believe most Australians would be aghast if they were shown the statement in AUSTEL’s draft covert Alan Smith report of 3rd March 1994 that:“… doubts are raised on the capability of the testing regime to locate the causes of faults being reported” by Brian Hodge MBA in his 27th July 2007 technical report regarding the ongoing telephone problems inherited by Darren & Jenny Lewis’ after they purchased my business in December 2001 noting:

“CCAS data over recent times (e.g. 2004-2006) indicates a continuing & worsening level of “Outgoing Released During Setup” calls (ORDS). These reports on the CCAS data indicate that the calls are not successful in the call up set up stage of the connection or are lost in the network”

Document 290 to 292 in the same Respondent Section 37 Document

This letter dated 28th January 2003, from TIO Investigator Gillian Mc Kenzie to Telstra, notes: “Mr and Mrs Lewis claim:

The comment at point 2 That:

“...a Telstra technician “Mr Tony Watson” is currently assigned to his case, but appears unwilling to discuss the issues with Mr Lewis due to his contact with the previous Camp Owner, Mr Alan Smith”, is ambiguous to say the least because I have lived next door to the Holiday Camp since 1994 (and therefore next door to the Lewis’ and the Lewis’ drew their water from my bore), so of course we were in regular contact.  Plus, this same Tony Watson had been in charge of the phone problems at the Camp both before and during my arbitration in 1994/95 and, we now know, provided the arbitrator with misinformation in relation to lost faxes, even though Mr Watson knew those faxes had never arrived at their destination because of problems with the fax system in Cape Bridgewater, yet here we have the same Tony Watson harassing the Lewis’ in relation to their faxes that were being lost or not received, just as he had harassed me, dismissed my complaints as frivolous eight years before. 

Senate Hansard

Hansard records of a Senate Estimates Committee Meeting on 24th June 1997 confirm that, during cross examination by Senator Schacht and Senator O’Chee, Mr Lindsay White, a senior Telstra technical expert, stated under oath that part of his COT arbitration work was to assess technical information and that during his induction he was told about five complainants, including me, who, according to Peter Gamble, had to be stopped.  According to Mr White, Mr Gamble actually said:

“… we – we being Telecom – had to stop these people, to stop the floodgates being opened.” The Hansard report then records Senator Schacht asking: “Stopped at all costs – that was the phrase?  Can you tell me who, in that induction briefing, said ‘stopped at all costs’?  To which Mr White responded: “Mr Peter Gamble, Peter Gamble.”

On 16th November 1994 AUSTEL wrote to Telstra, condemning the way the SVT process had been carried out at my business.  On 28th November 1994, one month after Peter Gamble had been forced to abandon the SVT procedure at my business, Mr Gamble responded to AUSTEL’s letter, advising AUSTEL that the information he was providing to AUSTEL regarding my matters, and other SVT results, was being: “… supplied to Austel on a strict Telecom-in-Confidence basis for use in their Service Verification Test Review only and not for any other purpose. The information is not to be disclosed to any third party without the prior written consent of Telecom”, even though that information was being used by Telstra as arbitration defence material during the Government-endorsed, AUSTEL-facilitated COT arbitrations, AUSTEL still went along with Mr Gamble and concealed their knowledge that Telstra had relied on SVT results they knew were fundamentally flawed, because they knew those false reports would stop any arbitration investigation into why my business was still experiencing ongoing problems with the Cape Bridgewater telephone network.

I therefore ask that the AAT carefully consider:

DICTA Independent Assessment

On 15th September, 2005 Senator Barnaby Joyce wrote to me noting:

“I am pleased to inform you that the Minister has agreed there needs to be finality of outstanding CoT cases and related disputes. The Minister has advised she will appoint an independent assessor to review the status of outstanding claims and provide a basis for these to be resolved.

I would like you to understand that I could only have achieved this positive outcome on your behalf if I voted for the Telstra privatisation legislation”.

On 12th March 2006, before I agreed to be a part of Senator Barnaby Joyce’s independent assessment process, I wrote to Liz Forman of the Department of Communications, Information Technology and the Arts DCITA noting:

“In your last letter to me you advised that the proposed independent assessment will not include “...an investigation of whether the law was broken by Telstra” and yet you are asking me to supply any information I can in support of my unresolved claims against Telstra. The issue of Telstra’s illegal activities and my unresolved claims cannot be separated. Quite aside from the Minister’s legal obligation to have Telstra’s conduct investigated by the Federal Attorney General, the reason my claims are still unresolved, after ten years, is directly because of Telstra’s unlawful behaviour plus the lack of assistance provided by either the TIO or the arbitrator, either during my arbitration or since, in relation to these acts.

How can we separate these issues when they were entwined even before my arbitration began, when I was forced to sign the original arbitration agreement without being told that the terms had been secretly changed to favour the defendants (Telstra)?

How can DCITA expect some issues to be separated from others when they are so inextricable intertwined?

How can the proposed Independent Assessment process be deemed to be independent and impartial if the (DCITA) investigator and/or investigators do not investigate all the facts?” 

It is alarming to note that a Nikki Vajrabukka from Senator Helen Coonan’s office sent a Department Communication Information Technology and the Arts (DCITA) internal email to David Lever on 3rd March 2006, informing him that she had emailed David Quilty (then Telstra’s Government Liaison Officer) at david.quilty@team.telstra.com, asking for Telstra’s assistance in addressing my 2006 DCITA submission which proved how, during my arbitration, Telstra had knowingly submitted the fundamentally flawed Cape Bridgewater Bell Canada International (BCI) and SVT reports as official arbitration defence documents.  Sending this email is much like asking a criminal if they should be charged in relation to crimes they have committed.  It is also interesting to note that, before Mr Quilty moved to Telstra, he was Chief of Staff to the DCITA Minister (then Senator Richard Alston) during the very same period in which I provided the Senator with this same type of BCI / SVT evidence.  In fact, when I wrote to Philip Gaetjens (Principal Advisor to the Federal Treasurer, then Peter Costello) on 12th November 1997, providing similar evidence Mr Gaetjens was so concerned that, on 3rd December 1997, he passed this evidence on to Mr Quilty (then still in his position as Senator Alston’s Chief of Staff), and Senator Amanda Vanstone (then the Minister for Justice).

PLEASE NOTE: David Quilty is now a very Senior Executive within the Telstra Corporation.

A letter dated 17th May 2007, from Senator Helen Coonan (DCITA) notes:

“I have now made both formal and informal representations to Telstra on behalf of the CoTs. However, Telstra's position remains that this is a matter that is most appropriately dealt with through a Court process. Telstra is not prepared to undertake an alternative means of pursuing this matter. I also appreciate the depth of feeling regarding the matter and suggest you consider whether any court proceedings may be your ultimate option.”

The Australian public has a right to know that bad government bureaucrats have concealed those crimes from the public under Parliamentary Privilege and then allowed elected Government Ministers to write to the victim of the crimes, advising that the best thing that victim can do to find justice is to personally take the huge Telstra Corporation to court, even though secret Government reports have already proved Telstra’s guilt.  As proof of this I have a letter written to me some time after my March/April 2006 DCITA Independent Assessment process had failed to address Telstra’s unlawful conduct. 

Document 29 in the Respondent Section 37 Document is a Herald Sun newspaper article dated 22nd December 2008 reporting under the heading Bad Bureaucrats that: “...Hundreds of federal public servants were sacked, demoted or fined in the past year for serious misconduct”.

It is clear that there are many secrets held by Members of our Parliament and their public servant advisors, secrets that have ruined the lives and businesses of honest Australians and which raise the following questions:

The Australian public has right to know that some people previously employed in Government Ministerial offices, who are known to have been involved in deflecting allegations regarding Telstra’s behaviour over the years, have ended up holding executive positions within Telstra, the ACMA and the TIO Board. This is the same ACMA and TIO Board that continues to refuse to address the validity of my claims

The Australian public has a right to know that people employed by a Government Minister failed to follow up on evidence provided to another Minister, with the result that this conduct was never transparently investigated.

The Australian public has a right to know that a Government Regulator concealed evidence from claimants who were participating in an arbitration process facilitated by that same Regulator and endorsed by the Federal Government, particularly if the evidence being concealed proved that the defendants in the case were using fundamentally flawed reports and altering information in discovery documents in order to minimise their liability in that Government-endorsed process.

Document 103 and 104 in the Respondent Section 37 Document

These two documents are Telstra’s CCAS data records from 29th September 1994, the day that Telstra claim to have successfully carried out all the required incoming Service Verification Tests at the Cape Bridgewater Holiday Camp.  I believe the Australian public would consider it to be a gross miscarriage of justice, an abuse of power, and a major matter of public interest if they were to learn that public servants, paid from the public purse and working for a Government regulatory body (AUSTEL), would allow the defendants (Telstra) in a legal process such as my arbitration to hide behind their Government employer by falsely stating that all the incoming tests carried out at my business, on each of my service lines, had met all of AUSTEL’s specifications, when Documents 103 and 104 clearly confirm that none of the required incoming test calls to my business were carried out, on any of the three phone lines 055 267 267, 055 256 260 and 055 267 230 AT ALL. 

If we can prove that, during a Government-endorsed arbitration process (even if it was sixteen years ago), AUSTEL, which was then the Government Telecommunications Regulator, knowingly allowed the defendants in the process (Telstra) to state, under oath, that their Service Verification Tests had met all of AUSTEL’s requirements, even though both Telstra and AUSTEL knew this was not true, and that they then concealed their knowledge from the relevant Communications Minister (then the Hon Michael Lee MP), then I believe the Australia public would definitely believe it was in the public interest for this information to be revealed.   I am therefore now placing on record, as part of my AAT Statement of Facts and Contentions, a formal request for Mr Chris Chapman, Chairman of the ACMA, to appoint two independent technical consultants to assess the two pages of CCAS data records referred to above for the purpose of determining the actual level of ACMA’s independence in relation to my matters.  I also ask that Mr Chapman then provide the results of that investigation (which should not take any more than thirty minutes) to the Federal Government Attorney General, the AAT, and me.  If Mr Chapman refuses to do this he will simply confirm my claims that the ACMA has a conflict of interest in relation to my matters and the ACMA should therefore not be left in charge of determining which documents they can locate and which they cannot.  I am therefore also respectfully asking that the AAT pass a copy of this Statement of Facts and Contentions to the Federal Attorney General because it is quite clear that a crime was committed against me seventeen years ago and the Government Regulator has continued to conceal the associated evidence ever since.  It should also be noted that there is no statute of limitations in relation to exposing a crime.

The Incestuous Link (1)

On the 18th June 1993 Michael Elsegood, AUSTEL’s Manager of International Standards, wrote to Telstra in relation to my billing issues.  I had explained to AUSTEL that there seemed to be two related problems caused by a lock-up problem in the Ericsson AXE software (which Telstra already knew about).  The Portland, manned AXA Exchange, which the Cape Bridgewater, unmanned Remote Multiplexer Exchange is routed through, had been experiencing these problems from at least August 1991, a situation that is supported by numerous Telstra FOI documents, one of which (L23848) notes: 

“These numbers indicate to me the poor standard of Ericsson software. For as long as we have had AXE we have been having software lockups and almost every CNA/ISU that comes along promises a solution to this problem but they still occur”

Then an internal Telstra email to the infamous Peter Gamble (FOI folio A13980) notes: 

“...you are quite correct in your thoughts that the anecdotal reference applies more to AXE than ARE-11 ‘Lock-ups’ are generally was well-known as a problem in AXE exchanges not only in Australia but in countries overseas as well”. 

On 20th January 1994 Cliff Mathieson AUSTEL Specialist Advisor Networks and Michael Elsegood co wrote and signed a letter to Telstra on behalf of the Government Regulator AUSTEL under the heading Verification Tests For Difficult Network Fault Cases noting: “...Tests involving the customer’s equipment should be conducted to ensure that there is no fault in the equipment. Where test results do not meet the essential outcome, remedial action should be taken and the relevant tests repeated to confirm correct0 network operation” In fact AUSTEL’s first quarterly COT Cases report to the Hon Michael Lee MP dated July 1994 notes:

“...An important component of Telecom’s 4-stage fault handling process is the Service Verification Tests (SVT). These tests are applied during stage 3 of this process. These tests are important for Telecom to be able to provide objective data about the end-to-end performance or its network in regard to the service of an individual customer on the date the tests are conducted. In its briefing, Telecom indicated (and we will seek confirmation and further detail in writing) that if the SVT indicates an unacceptable level of service then the required replacement of network equipment will be undertaken”.  

Michael Elsegood is currently a member of the TIO Board and both the TIO and ACMA Boards are refusing to investigate why AUSTEL (now the ACMA) deceived the Hon Michael Lee MP into believing that all of the Service Verification Tests had been successful when the attached CCAS data (Documents 103 and 104 in the Respondent Section 37 Document) proves otherwise. One way in which the TIO and ACMA Boards can prove their independence to the general public would be to use the platform of the matters now before the AAT to arrange for documents 103 and 104 in the Respondent Section 37 Document to be properly and transparently analysed to determine whether or not Telstra did generate the required number of test calls in to my business on my three service lines, as directed by AUSTEL, and then make the results public.  It must surely be in the public interest for both the TIO and ACMA Boards to determine whether the ACMA’s predecessors did or did not act in an unconscionable manner by providing an elected Member of Parliament with false information concerning the Cape Bridgewater SVT process. 

The Incestuous Link (2)

Exhibits AS 160, 162, 163, 169, 170, 173, 174 and AS 180, in my AAT Statement of Facts and Contentions dated 26th July 2008, and in my 9th December 2010 letter to Mr Julian Burnside QC (copied to the AAT) confirm the various people and organisations who directly benefited from the secret changes to the arbitration agreement that covertly exonerated them from liability for any act or omission (for their part played in my arbitration), did act in a negligent manner during my arbitration, but those actions could not be addressed due to the covert alterations to the agreement. 

Exhibits AS 160, 166 and 169 in my 26th July 2008 Statement of Facts and Contentions also confirm that, at least by 18th April 1995, all those parties knew that there had been “…forces at work collectively beyond (our) reasonable control that had delayed…” Dr Hughes’ Resource Unit from being able to either address or investigate all the claim documents I had lodged with the arbitrator.  These same Exhibits further confirm that, because of the delays created by those un-named “forces at work”, only 12% of the documents I legally submitted were ever investigated and/or addressed.  If this isn’t bad enough, Dr Hughes then wrote to Warwick Smith, the TIO, on 12th May 1995 Exhibit AS 180 – the day after he had handed down his final decision regarding my arbitration – by which time he also was fully aware of those “forces at work” and the damage they had done to my legally submitted claim.  Dr Hughes’ letter advised the TIO that, as a result of those delays, the arbitration agreement he had just used to reach his conclusions in relation to my matters was not a ‘credible’ document and would therefore need to be revised for the next three claimants so they would have more time for “the production of documents, obtaining further particulars and the preparation of technical reports”. Clearly as a direct result of that letter the TIO then allowed the next three claimants between thirteen months and two years longer than he had allowed me in which to prepare my claim.  Then, again, as if all of that isn’t bad enough, Dr Hughes’ letter regarding the agreement now judged not to be ‘credible’ was withheld from me during the designated arbitration appeal period and was only finally released to me by the TIO’s office in 2002 – obviously well outside the statute of limitations during which I could have appealed Dr Hughes’ award.

The information I am currently seeking under my 7th February 2010 FOI request (which is now before the AAT) is of public interest because it is directly linked to the Government Communications Regulator (AUSTEL) and the TIO’s Special Counsel both being aware, at the very least by 22nd June 1994, of these covert alterations to my arbitration agreement, and how they did nothing to assist me to have these clauses reinstated in the same way they were reinstated, as Clause 11.2, in the new agreement to be used for the remaining twelve COT claimants, and in Rule 31 in the TIO’s ‘Standard Arbitration Rules’ that were used for all other TIO-administered arbitrations.

Section 70 of the Crimes Act 1914

A statutory declaration dated 23rd March 2010 was aexplaining that Frances Wood and Cliff Mathieson had advised me, on 21st March, 1995 two months before the arbitrator handed down his decision in relation to my matters, that AUSTEL knew the BCI and SVT tests at Cape Bridgewater tests were fundamentally flawed.When I asked Mr Mathieson to report this to the administrator to my arbitration however, he stated words to the affect that AUSTEL could not become involved, because I was in arbitration.It is both a matter of serious concern AND of public interest that public servants, paid from the public purse, are afraid to reveal information that will affect court or arbitration decisions.In the SVT case, the arbitrator then accepted as fact three sworn affidavits from Telstra, all falsely saying that the SVT process had met all of the Government Regulator specifications. Are we to assume that because Section 70 of the Crimes Act 1914 prohibits public servants from revealing what they uncover during their regulatory duties this act supersedes Australia’s Constitution that every citizen of Australia has a duty of care to report a crime committed against a fellow Australian? Submitting false testaments and known fundamentally flawed reports to an arbitrator as Telstra did in my case, is a crime.

Two Concerned Victoria Police Officers 

In July 2001, two senior Victorian Police Officers, who had been staggered to discover that the Communications Minister’s officers had stopped the Senate Estimates Committee Investigation in 1997/99 from assessing my Telstra matters, passed on to me a damning document headed Senate Estimates Committee Hansard In-Camera 6th and 9th July 1998, and stamped ‘Confidential.  I am convinced that this document was sent to me after the Victoria Police Major Fraud Group had been in contact with Carlton & United Brewers who had dismissed as total rubbish Telstra’s arbitration report that the Telstra laboratory had found a ‘wet and sticky substance’, which they identified as ‘beer’, inside my EXICOM TF200 phone, and that this had caused the phone to lock up. 

On 28th November 1995, six months after my arbitration, I received evidence confirming that Telstra had actually carried out two separate investigations of my phone, two weeks apart, and that the second test report proved that the first one, which had been provided to the arbitrator, was not a true account of the testing process at all but was a total fabrication because actual photos and graphs proved that, when wet beer was introduced into the TF200 phone by Telstra’s laboratory staff, it dried out completely in forty-eight hours.  My phone however was collected on 27th April 1994 and not tested until 10th May – a gap of fourteen days.  I now believe that the members of the Major Fraud Group who were involved in my case were also staggered to learn about this evidence, but still neither the TIO Board nor AUSTEL would investigate these Telstra tests. If it would help, I can provide the AAT and the ACMA, in the public interest, with a copy of Telstra’s original, twenty-nine-page TF200 EXICOM Report, and the second set of Telstra’s laboratory findings – the ones that denounce the first report as nothing more than a bogus document that stopped a full and proper investigation into why my telephone service was locking up.

When it became known that I had received the In-Camera Senate Hansard of 6th and 9th July COT Cases information I received a letter on 16th August 2001 Senator Eggleston threatened me with the possibility of legal action when he warned me: 

“…The fact that you have received unauthorised confidential committee documents is a serious matter, but if you disclose these documents to another person, you may be held in contempt of the Senate.” 

I am therefore somewhat limited in what I can say about the confidential documents I received the previous month but I can say that they prove, beyond all doubt, that both sides of Parliament have been fully aware since at least 1998, that when the Coalition Government sanctioned the investigation of only five of the twenty one COT Claimants on the Senate Estimate Committee working list those remaining 16 COT Cases were denied natural justice.

Conclusion

The current WikiLeaks saga provides testament to how people all around the world, Australians included, have had enough of secret deals made by Government Ministers and Regulators (like AUSTEL / the ACMA) and the way Governments conceal information that citizens have a right to know about.  In the COT case issue, the secret information relates to the violation of our rights as an Australian citizen by organisations like Telstra and the TIO’s office, and individuals like Dr Gordon Hughes (the arbitrator) and Peter Bartlett (the TIO’s Special Counsel), none of whom have ever explained why they allowed the COT arbitration agreement to be altered to the determent of the claimants.  I am sure that most Australians would call for an investigation into why a Government Regulator would allow the defence in a legal, Government Regulator-endorsed arbitration process to submit test results that were known to be fundamentally flawed and which had already been covertly condemned as deficient by the same Regulator.

My arbitration submission included references to:

TIO arbitration procedural documents dated 30th April, 1995 confirm this part of my claim was withheld from the TIO-appointed arbitration consultants during the assessment process.

Document 298 to 299 in the Respondent Section 37 Document

It is certainly important that the public be aware that Telstra chooses to install faulty optical fibres into areas they think will not be affected by heat, particularly when this information is added to a statutory declaration dated 4th September 2006, from Darren Lewis (the new owner of the Cape Bridgewater Holiday Camp) which notes, at point 19,

“Telstra informed us we had what is commonly known in technical words as ‘a line in lock-up’ rendering our business phone useless until the fault is fixed.

It was then that the local technician informed me that as strange as it might seem he believed that because our business was on optical fibre and was so close to the Beach Kiosk (junction box) this could very well be part of the problem. Apparently either under powering or over powering was also an issue.   He realised that after testing all the other optical fibre outlets with his testing equipment and still reached this impossible reading (according to the technical guru) he would move us off of the fibre.

It was on this note that the technician informed me that although it was a back ward step he was going to investigate the possibility of moving the business off the optical fibre and back to the ‘old copper wiring’”.

Could Darren Lewis’ telephone and fax problems, or any of the other Customer Access Network-related problems that Telstra hid from AUSTEL during AUSTEL’s COT investigations be connected to the installation of Corning optical fibre cables?  Could Telstra have installed the faulty Corning Inc (US) optical fibre cable in the Cape Bridgewater area because they thought that area was not heat or moisture prone, just like they thought the area was not moisture prone when they installed the faulty EXICOM TF200 telephone at my business during my arbitration in 1994?  How many residences in Australia are connected via Telstra’s Customer Access Network to faulty Corning Inc (US) optical cable? These are major issues that could be badly affecting unknown numbers of Telstra customers, all over the country, and it is certainly important that, in the public interest, this information is now broadcast to Telstra customers at least, particularly since Telstra’s network is about to be divided up.

EXICOM TF200 phones and Faulty Optical Fibre

We already know about the problems caused when Telstra installed EXICOM TF200 phones in areas they thought were not moisture prone and now we have proof that they thought some areas would not be affected by heat and that it was therefore appropriate to install faulty cable into those areas.  In relation to the EXICOM phones, Telstra’s FOI document D01026 states: 

“Whilst I do not have the total deployment of EXICOM phones available it has been assessed that there is approximately 450,000 phones with potential faults. Of these there are 325,000 Serial 550/141 phones deployed in areas of high moisture. Because of the supply problems Exicom phones will still have to be deployed in areas of lower moisture risk”.

I have already given the ACMA and the TIO’s office irrefutable evidence that Telstra installed two of these EXICOM TF200 phones at my business in 1993 and again in 94 and one of these EXICOM’s were still in use just prior to me selling the business to the Lewis’.  One question that has never been answered is whether or not the problems experienced by the Lewis’, after they took over the business, were caused by a combination of the faulty optical fibre and the faulty EXICOM phones.  I do know though that many trash and treasure markets in rural Victoria, and interstate, were selling EXICOM TF200 phones until quite recently, clearly unaware that the product locked up in moisture-prone areas like Cape Bridgewater or in places like, for example, a fish shop, an indoor swimming pool, a pizza parlour, bakery, or almost anywhere moisture is prevalent.

Even with all this proof of problems with the EXICOM phones, Telstra has never publicly recalled them.  Surely the public therefore now have a right to know (in the public interest) that Telstra and the ACMA are hiding the problems with the EXICOM phones and the faulty optical fibre from the Australian public? How many of these EXICOM TF200s will be purchased in Australia in 2011 by unsuspecting customers wanting a cheap second-hand extension phone? 

Thank you

Alan Smith

Cc The Hon Federal Attorney   

Mr Chris Chapman, Chairman of the ACMA / Ms Alison Jermey. Senior Lawyer the ACMA  

It is important to note that during this second AAT hearing (No 2010/4634), Mr Friedman (Judge) hearing my case stated:

“Mr Smith still believes that there are many unanswered questions by the regulatory authorities or by Telstra that he wishes to pursue and he believes these documents will show that his unhappiness with the way he has been treated personally also will flow to other areas such as it will expose the practices by Telstra and regulatory bodies which affects not only him but other people throughout Australia.

“Mr Smith said today that he had concerns about the equipment used in cabling done at Cape Bridgewater back in the 1990s. He said that it should – the equipment or some of the equipment should have a life of up to 40 years but, in fact, because of the terrain and the wet surfaces and other things down there the wrong equipment was used.”

During this second AAT hearing in May 2011, I again raised the telephone problems that had affected my business from before my arbitration to 1995, stressing that the arbitrator had failed to investigate or address most of those problems, and therefore allowed them to continue for a further 11 years after the end of the arbitration. Since that second AAT hearing, and as a result of Australia’s National Broadband Network (NBN) rollout, which began in mid-2011 and is still continuing today, numerous faults, just like those that I raised during my arbitration and both AAT hearings, have been found to have continued unabated; this can be confirmed by a simple internet search for “Australia NBN”.

One of the documents I provided both the arbitrator in 1994 and the AAT in 2008 and again in 2011 is a Telstra FOI (folio A00253) dated 16 September 1993 and titled Fibre Degradation. It states:

“Problems were experienced in the Mackay to Rockhampton leg of the optical fibre network in December ’93. Similar problems were found in the Katherine to Tenant Creek part of the network in April this year. The probable cause of the problem was only identified in late July, early August. In Telecom’s opinion the problem is due to an aculeate coating (CPC3) used on optical fibre supplied by Corning Inc (US). Optical fibre cable is supposed to have a 40 year workable life. If the MacKay & Katherine experience are [sic] repeated elsewhere in the network, in the northern part of Australia, the network is likely to develop attenuation problems within 2 or 3 years of installation. The network will have major QOS problems whilst the CPC3 delaminates from the optical fibre. There are no firm estimates on how long this may take. …

“Existing stocks of Corning cable will be used in low risk / low volume areas.” (See Bad Bureaucrats File No/16)

Were the citizens of Australia entitled to be advised by the Australian government, before it sold off the Telstra network, that, e.g., the aforementioned optical fibre with CPC3 coating, supplied to Telecom/Telstra by Corning Inc (USA), was installed in their area? How many people in Australia have been forced to live with a subpar phone system, i.e., a known poor optical fibre that Telstra should NEVER have installed? How many businesses have gone up against the wall due to Telstra’s negligent conduct of knowingly laying their existing stocks of Corning cable in locations that Telstra believed were low risk/low volume areas?

Chapters one to three in our Tampering With Evidence page show Telstra was also prepared to re-deplore some 450,000 faulty TF200 telephones to locations where Telstra thought moisture was non-existent. The decision-makers regarding where Telstra installed these moisture-prone phones were certainly not trained in meteorology. I doubt that Telstra or the government advised these TF200 customers when Telstra was sold off, that if they were experiencing phone problems that this was no longer Telstra’s problem or the government’s.

The matters discussed on this website absentjustice.com are said according to my interpretation of the  Public Interest Disclosure Act 2013

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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

“…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.”

The Hon David Hawker MP

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

Hon David Hawker

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

“I trust that your meeting tomorrow with Senators Alston and Boswell is a profitable one.”

Hon David Hawker MP

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

– Edmund Burke