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Chapter 5 - Criminal conduct

Although this segment is addressed on our Arbitrator Part One page it is again raised here because of its direct link to Telstra’s unethical conduct towards the COT cases.

14 April 1994 letter from Telstra’s arbitration liaison officer to a detective superintendent states that Telstra only voice-monitored my telephone service from June to August 1993.

Australian Federal Police Investigation File No/1 is the transcript of my interview with the AFP on 26 September 1994, which records the police asking me about a hand-written reference to a bus company that Telstra appear to have added in the top right corner of a letter. I wrote this letter on 10 September 1992, to Telstra, and that name was not mentioned in the letter (See Hacking-Julian Assange File No/33). At the time, I was tendering to a number of bus companies, including Nuline Bus Services, Centre Road, Bentleigh; Mooney Valley Bus Lines, Mooney Valley; Warrnambool Bus Lines and O’Meara’s (the name that had been handwritten in the corner of this letter). I had contacted all four companies for the same tender in an attempt to use one of their services to bring people from Melbourne to Cape Bridgewater. O’Meara’s was not mentioned anywhere in the letter; the name was added. It appears Telstra was actually voice monitoring my phone conversations or intercepting my faxes as early as September 1992

This fax from AUSTEL to me dated 22 April 1994 – the day after I signed the arbitration agreement – explains that AUSTEL received three blank faxed pages (from my fax line 55 267 230) and determined they had come from my office by checking their fax journal (see Hacking-Julian Assange File No/34-A and 34-B). On this occasion, all three pages had a very small outline of a square at the top left side of each page. AUSTEL’s fax journal shows transmission times for these blank pages of 01.40, 02.13 and 2.22 minutes. My fax account (Hacking-Julian Assange File No/34-A and 34-B - See File 34-B) includes charges for these pages, even though there was no identification on the pages that AUSTEL received, to show where they had come from. (I have drawn three arrows pointing to my fax number on this account.) It is important to discuss this blank-page episode at the beginning of my arbitration, because I was continuing to report the ongoing problems I was having with faxes to the arbitrator. And, in addition, my suspicions that faxes I had sent to the Arbitrator, never arrived.

A Telstra email, dated Thursday 7 April 1994, raises concerns, with information indicating the defendants in the litigation process were able to document when claimants would be away from their premises. This following document refers to a time when I would be away from my business during this pending arbitration process. The author of the email states:

“Mr Alan Smith is abscent [sic] from his premmisses [sic] from 5/8/94 – 8/8/94. On other occassions [sic] when he has been abscent [sic] there have been documented complaints received [usually months later] involving NRR etc. I called the premmises [sic] at aprox [sic] 4:55 pm 6/4/94 the answer time was 41 secs.

“I intend on this occasion to document his abscence [sic] and file al [sic] data I can collect for the period. That way we should be prepared for anything that follows.” (See Hacking-Julian Assange File No/3)

The writer knew, in April of 1994, that I planned to be away later that year, in August. He knew of my movements, four months in advance. Telstra have never explained how they came by this information. At other times, this same person has also stated that he knew I spoke to former Australian prime minister Malcolm Fraser on the phone and when that conversation took place. (AS 1022)

He insists I informed him about this conversation, but this is a falsehood. Again, Telstra has never been able to give a convincing explanation for their employee having this information. And of course, this employee knew who callers were even when they phoned from a different location, as discussed earlier. This information had to come from illegal monitoring. Obviously, Telstra were still actively monitoring my private calls because I was involved in litigation with them and their lawyers.

Absent Justice - Listening In

Listening to private conversations is appalling enough, but the following information is even more damning.

Page A133 of the official Senate Hansard dated 25 February 1994 states that the then-Shadow Minister for Communications questioned the regulator’s chairman, asking:

“Why did not Austel immediately refer COT’s allegations of voice recording to the federal police instead of waiting for the minister to refer the matter to the Attorney-General and then on to the federal police?” (See Hacking-Julian Assange File No/45)

Although this segment is addressed thoughout our website, it is again raised here because of its direct link to Telstra’s unethical conduct towards the COT cases.

I was overwhelmed by the mountain of paperwork I had to prepare on my own. Finally, I sought out the TIO and his legal counsel and explained my lack of confidence. I reiterated AUSTEL’s chairman’s reasons for initially facilitating a non-legalistic commercial assessment process. He and many government officials had always believed this would be the best and fairest way for the COT cases to present their claims.

The TIO could only console me by telling me to ‘do the best I could’. The TIO’s legal counsel reassured me the new process was fair and advised me to ‘give it a go’. And so, I had no choice but to seek help from professionals in the field.

I began by approaching a local firm of loss assessors in nearby Mt Gambier, just over the border in South Australia. An insurance agent headed this firm. When I phoned and spoke to this agent and explained who I was, giving my location and what I hoped to have help with, there was quite a long pause before he asked me if I had suffered storm damage at the camp about four or five years earlier. I had. It turned out that this Insurance agent had acted as the loss assessor back in 1991. He remembered that he had a lot of trouble trying to contact me by phone at that time. Finally, he had to resort to writing to me, to notify me when they were coming to assess the storm damage.

After discussing my current position in more detail, the agent decided that my problems were outside their area of expertise. I continued to search for assistance in the Melbourne metropolitan area, approaching four different companies specialising in communications. Three didn’t respond, and the fourth company simply wished me luck in finding someone who would be brave enough to go up against Telstra.

I then approached George Close, a technical advisor in Queensland, who finally agreed to assist. He was already working on Ann Garms’s case and she had suggested I talk to him. It was just a shame that he was so far away geographically.

When Telstra discovered that we had secured this expert’s help, they approached Mr Close and offered a very lucrative contract. It appeared the Telstra Corporation was still trying to close off all avenues for the COTs. This man, however, in his 60s, was having none of that. He made it quite clear that, if he took up Telstra’s offer, it would create a definite conflict of interest and severely disadvantage the COT members, so he declined their offer.

With the assistance of George Close, I located a loss assessor company, Freemans, also 1200 kilometres away on the Sunshine Coast in Queensland. Then I spoke with an ex-National Crime Authority detective, Garry Ellicott, who also agreed to help me. The only payment he expected upfront was reimbursement of travel expenses, so he could travel to Cape Bridgewater. Garry was advised by his business partner, Freemans’ Barry O’Sullivan (now Hon Senator Barry O’Sullivan) who had co-signed my arbitration agreement, as he did Ann Garms’ and Graham Schorer’s agreement, and stood by their claims as having merit.

Once all these professionals were in place I needed to raise the finances to bring the detective, Garry Ellicott, to the camp. With my business still in tatters, I was caught like a butterfly in the web: the consequential losses resulting from the poor phone service meant that my financial situation was getting worse and worse, but I badly needed money to keep up the fight. The only alternative was bankruptcy, and I was determined not to lose the camp because of Telstra.

At about this time, 900-1000 discovery documents arrived from Telstra in response to my December 1993 and February 1994 FOI requests. Telstra had supplied the documents 60 or so days late. According to the FOI act, Telstra were required to supply the documents in a specified chronological numbering system, so as I could see the date significance and relevance to what I had requested.

Absent Justice - Telstras FOI Game

Telstra’s FOI game had only just started and with no arbitrator in control of the process. (See official statement by the TIO to the Senate Estimates Committee Arbitrator File No/71) My claim of ongoing telephone and faxing problems was doomed before I had even submitted it. Not only were all these documents supplied without any numbering system and they were not the documents I had requested. There was no explanation of what the documents actually represented and there was no documentation of the complaints I registered with Telstra’s lawyers the year before. Many were unreadable; with so much information blanked out that they were totally worthless and unusable.

I managed to borrow enough money to bring ex-Queensland detective Garry Ellicott to the camp for a couple of days to observe what was going on with the phones and to assist with my claim. During his stay, Garry noted short-duration calls, dead lines and problems trying to send faxes to his Queensland Maroochydore office. His previous experience as a national crime investigator, as well as a Queensland detective sergeant, also led him to believe I was being watched. He was sure I was under electronic surveillance, as well as physical, with documents later received under FOI (including document K01006) showing that Telstra were aware of my movements at this time, as well as the movements of my staff.

While Garry was staying with me, I discovered I could not locate a number of important camp documents. Missing were exercise books, in which I kept official booking records, a number of bank statements and my bank pay-in books for 1992/93. Also missing were two diaries that were keepsakes, because they were in my ex-wife’s handwriting (from the two years she spent at Cape Bridgewater before our marriage broke up). These diaries covered the period of 1988 to 1989 and they have never been seen since. I was left with my rough diaries and the wall planners that I used to register bookings as they came in, and before they were registered in the official exercise books. This issue is discussed further elsewhere.

Because these records were missing, I was hard-pressed to produce full and correct financial statements for my financial advisor. In fact, I had to resort to using information from my wall planners and diary that I compared to the bank statements I still had. Where these missing records really went, is anybody’s guess.

Graham Schorer found himself in a similar position. Thieves smashed a concrete pillar at the side of his office to gain access to his business. Interestingly, the only things stolen were Telstra-related documents. (This is discussed more fully in 2012 events.)

My stress levels rose enormously over this period. It was extremely difficult to produce a readable claim when the story was so complex and without much technical knowledge. My phone and fax lines became lifelines to the detective in Queensland. By this time I was not only relying on the phone lines, I was also, unfortunately, relying more and more on the Scotch bottle, consuming up to three or four drinks a night in an attempt to calm my nerves. My personal life suffered through the impact of the stress of these combined events. As my partner was in Ballarat and unavailable at times, I confided in a close female friend who also began to experience telephone problems around the time she became my confidante. Her customers started complaining that her phone was continually engaged. FOI documents indicate that Telstra investigated this.

I was often aware of a particular car sitting on the road above my house. Were they frequent admirers the picturesque view of Cape Bridgewater Bay, I wondered, or were they watching me? Even though I was aware that my mind could well be playing tricks on me, this was certainly worrying.

A Telstra whistleblower read out all five of the main COT cases’ names (including mine) during a Senate Estimates committee hearing on 24 June 1997. This whistleblower stated he was advised by Telstra that “we had to be “stopped at all costs” (see Open Letter File No/24). All five of us, during different periods of our lives, believed that we were under surveillance.

Even local Telstra technicians seemed to be involved in this. In one FOI document (K03273), an internal Telstra memo, the writer offers to supply a list of phone numbers that I had rung (I believe this was around the time of the briefcase incident which is described in Ring for Justice). Why were Telstra employees happy to distribute this private information so freely?

Much of this information was forwarded to the TIO, who was, after all, supposed to be the independent administration of the arbitration. Not once did I receive a reply from the TIO’s office regarding this particular matter. And still phone and fax problems continued. Since the problems were still occurring, I was in somewhat of a bind. Legally, Telstra had 30 days to respond to any FOI request I lodged, so how could I provide evidence to the arbitration regarding faults that only happened the day before? The whole process was getting out of hand and, although I raised this issue with both the TIO and the arbitrator, I didn’t get much help. The TIO would only reiterate that I should lodge my claim to the best of my ability.

Telstra’s multiplying legal team were gleaning knowledge of every document I would be sending, which made it easy for them to prepare a defence. My documents were accessed illegally and examined in detail by highly qualified legal experts. For example, faxes I received advising which documents I needed to request were intercepted. Of course, by the time the FOI requests were processed, those technical documents could not be located. As I uncovered more and more evidence of Telstra’s spying, I became more and more agitated. By May/June of 1994, as I battled on with the preparations of my claim, I was sinking deeper and deeper into depression.

Much of this information was forwarded to the TIO, who was, after all, supposed to be the independent administration of the arbitration.  Not once did I receive a reply from the TIO’s office regarding this particular matter.  And still phone and fax problems continued.  Since the problems were still occurring, I was in somewhat of a bind.  Legally, Telstra had thirty days to respond to any FOI request I lodged, so how could I provide evidence to the arbitration regarding faults that only happened the day before?  The whole process was getting out of hand and, although I raised this issue with both the TIO and the arbitrator, I didn’t get much help.  The TIO would only reiterate that I should lodge my claim to the best of my ability.

Absent Justice - Australian Senate

Unbeknown, to the COT Cases a covert arrangement entered into by Warwick Smith the first administrator of our arbitrations was with the very corporation that had already set up with their lawyers (see page 5169 SENATE official Hansard) the “COT Case Strategy” which spuriously advised Telstra how to conceal relevant technical documents from the first four COT Cases under Legal Professional Privileged even though the documents were not privileged. My name Alan Smith and my business Cape Bridgewater Holiday Camp was one of the four cases singled out for this special unlawful treatment as TIO Evidence File No 3-A) so clearly shows.

In other words, not only were we COT Cases being done-over screwed by the defendants concealing the vital documents we needed to prove our claims even the administrator, Warwick Smith had given his officers first choice of what documents reached the arbitrator and claims and which were discarded. Was this one of the alarming pieces of evidence that Julian Assange had warned Graham Schorer (COT spokesperson) about? What I remember from Graham’s conversation to me concerning what these hackers had uncovered was documents showing Telstra’s lawyers were screwing us. It is clear from TIO Evidence File No 3-A that if this was one of the documents the hackers wanted to provide to us, and we had accepted the offer we would have had enough evidence in this one document, to demand the government intervene on our behalf.

Worse, is that these were the same lawyers who not only drafted the COT Case Strategy (see Prologue Evidence File 1-A to 1-C) but also covertly drafted the arbitration agreement which was used during the first four arbitrations  (see exhibit 48-B in Open Letter File No/48-A to 48-D)

Before this COT Case Strategy came into play Telstra had refused to investigate my ongoing telephone problems unless I first registered them in writing with their lawyers, Freehill Hollingdale & Page.  This continual writing up of individual and ongoing telephone faults, to these lawyers, in order to have Telstra investigate them almost, sent me insane. Instead of keeping this evidence, I was providing it to Telstra and copying the same to AUSTEL (the then government communications regulator), believing this would assist them in locating the problems I was experiencing. I was unaware I would later need this evidence for an arbitration process set up by AUSTEL. This arbitration process meant I had to retrieve back, from Telstra and AUSTEL under Freedom of Information, the very same documentation I had previously provided them. Imagine the frustration of knowing that you had provided the evidence supporting your case but it was now being withheld from you. If this wasn’t soul-destroying enough, imagine learning that lawyer Denise McBurnie, who you were being forced to register your phone complaints with, devised a legal paper titled “COT Case Strategy” (see Prologue Evidence File 1-A to 1-C. instructing their client Telstra on how to conceal this same type of technical information under the guise of Legal Professional Privilege even though the information was not privileged.

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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.

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

The Hon David Hawker MP

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

Sister Burke

“…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

“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

“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

“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

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

– Edmund Burke