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Corruption Allegations in International Arbitration

Introduction

A Matter of Public Interest – Telstra

 

While this particular Senator Hansard dated 20 September, 1995 has been addressed elsewhere in absentjustice.com the relevance of the statement made by Senator Ron Boswell regarding how the four COT Cases (which I am one of the four) were on their knees financially has not been addressed elsewhere and the following statement by Senator Boswell is only documented here because it supports the next Senate Hansard segment which relates to me being charged for assault in the Portland Magistrates Court. And as Senator Ron Boswell states we were (the four COT Cases were going down fast - see download Senate Evidence File No/1-A)

 

PLEASE NOTE: our Senate evidence file is still being edited

 

Senator BOSWELL – They complained even to the point of not paying their bills and having their phones cut off, which they desperately needed for their businesses, all in a desperate plea to Telecom to fix their lines.

Eleven years after their first complaints to Telstra, where are they now? They are acknowledged as the motivators of Telecom customer complaint reforms. But, as individuals, they have been beaten both emotionally and financially through an 11-year battle with Telstra. Now their bankers have lost patience with their lengthy dispute settlement and they are going down fast”.

 

At the time of my altercation referred to in the following 24 June, 1997 Hansard my bankers had already lost patience and had sent the Sheriff to make sure I stayed on my knees.

 

24 June 1997: Senate Hansard, page 76 and 77, Senator Kim Carr states to Telstra’s main arbitration defence Counsel (also a TIO Council Member) Re: Alan Smith: see download (Senate Evidence File No/1-B)

 

Senator CARR – In terms of the cases outstanding, do you still treat people the way that Mr Smith appears to have been treated? Mr Smith claims that, amongst documents returned to him after an FOI request, a discovery was a newspaper clipping reporting upon prosecution in the local magistrate’s court against him for assault. I just wonder what relevance that has. He makes the claim that a newspaper clipping relating to events in the Portland magistrate’s court was part of your files on him”. …

Senator SHACHT“It does seem odd if someone is collecting files. … It seems that someone thinks that is a useful thing to keep in a file that maybe at some stage can be used against him”.

Senator CARRMr Ward, we have been through this before in regard to the intelligence networks that Telstra has established. Do you use your internal intelligence networks in these CoT cases?”

 

The most alarming situation regarding the intelligence networks that Telstra has established in Australia is who within the Telstra Corporation has the correct expertise i.e. government clearance to able to impartially filter the raw information collected before that information is catalogued for future use?  More importantly, when Telstra was fully privatised ,which organisation in Australia was given the charter to archive this very sensitive material?

 

PLEASE NOTE: No punches were thrown by me during this altercation with the Sheriff who was about to remove catering equipment from my property, which I needed to keep trading. I actually placed a judo hold ‘Full Nelson’ on this man and walked him out of my office. All charges were dropped by the Magistrates Court on appeal when it became obvious there were two sides to this story.

 

Bad Government Bureaucrats 

 

On page 3 of the Herald Sun, newspaper dated December 22, 2008 it clearly states: under the heading Bad bureaucrats

 

“Hundreds of federal public servants were sacked, demoted or fined in the past year for serious misconduct. Investigations into more than 1000 bureaucrats uncovered bad behaviour such as theft, identity fraud, prying into file, leaking secrets. About 50 were found to have made improper use of inside information or their power and authority for the benefit of themselves, family and friends”

 

The question still remains unanswered: why do so many Ministers blindly accept what the government bureaucrats say (see our Home page which also raises the same bureaucrat issue)?

 

It is very important to link this 2008 sacking and demoting of ‘bad bureaucrats’ to a number of events that had earlier taken place during the Casualties of Telstra arbitrations.  Firstly, Telstra admitted – to the Regulator’s office – that they had not conducted the service verification tests at the Cape Bridgewater Holiday Camp on 29 September ,1994  even though they had produced an arbitration report that said they had.  Secondly, on 29 November, 1994 Telstra notified the office of the Government Telecommunications Regulator that, while the Casualties of Telstra arbitrations continued, the Regulator’s office was obliged to seek Telstra’s permission before releasing any service verification test results to the Casualties of Telstra group.  Thirdly, on 2 February,1995 public servants from the Regulator’s office decided that the Communications Minister was not to be told the truth about what they (the public servants) had uncovered through their Casualties of Telstra investigations of 1993 and 1994.

 

Over the years since 1992 I have had many dealings with various politicians, Senators and the like, and the one thing I have learned along the way is that it is not the men and women at the coal face of our elected government who are dishing out pain and suffering to many Australian citizens, it is the public servants; the faceless bureaucrats who go from one political master to another, no matter who wins office.

 

Documents held in Government archives show, for instance, that there were at least three communications advisors to the Labor party when they were in Government in the early nineties until they were replaced by the Liberal/Coalition partly, when they took over governing Australia in March 1996.  Then, when the Liberal/Coalition party lost to the Labor party in November 2007, at least two of these previous communications advisors, who were in place from 1992 onwards, continued in their positions and so were, once again, advising a Labor government in relation to communications matters, at least through 2007.

 

So whose loyalties did those three public servants give priority to?

 

 

Three Telstra / Government Files

 

Three File notes dated 16 January, 1998 Senate Evidence File No/2, which the Department of Communications Information Technology and the Arts (DCITA) bureaucrats received technical data from what was then Telstra’s most recent investigation at my Cape Bridgewater business, on 14 January, 1998 indicated that the problems raised in my 21 April, 1994 arbitration claim had indeed continued after my arbitration.

 

Senate Evidence File No/3 is a letter dated 21 of January, 1998 from Telstra’s government liaison officer to the Government Department of Communications, Information Technology and the Arts with Telstra’s file notes of 16 January,1998 attached. The file notes confirm that my 1800 freecall arbitration problems continued for at least two years after the end of my arbitration and, as Senate Evidence Files No/6 and No/7 show, the government was then asking whether my claims of serious problems with my 1800 freecall line were valid even though the government had already been told, more than two years earlier, that those claims certainly were valid.

 

This clearly suggests that there was something radically wrong with the administrative operations of our government bureaucrats, at least back then.

 

If hiding these three files notes from me in 1998 (and as it appears,) also from both my Federal Member of Parliament The Hon. David Hawker and the Hon Senator Richard Alston) was not bad enough, but perhaps even worse is that one of the same bureaucrats who had been handling my arbitration complaints since at least 21 August, 1996 (Senate Evidence File No/4) was then put in charge of my 2006 Department of Communications endorsed assessment process, which Senator Barnaby Joyce had organised with the Minister for Communications in late 2005, in return for his crucial vote to privatise Telstra. Although these various bureaucrats had in-house, government evidence that they had received in January 1998 (see Senate Evidence File No/2 & No/3), which confirmed that my claims of ongoing, unaddressed telephone and fax faults had been validated by Telstra, they still found that my claims raised in that 2006 DCITA government assessment process were ‘without substance’.

 

Commonwealth Ombudsman Office

 

During 1997, Mr Wynack flew from Canberra to Melbourne to search for this Telstra file himself and then wrote again to Telstra, on 4 October, 1997 reminding him that Telstra had not responded to his 13 March, 1997 letter where he refuted Telstra’s claims that they had lost or destroyed this file. It was highly likely that this file would have included a copy of Telstra’s preferred rules of arbitration, the same rules that, in discussion with Ms Pauline Moore, the TIO had admitted refusing to supply the COT claimants. Various COT claimants have since received a copy of these elusive ‘Telstra preferred rules of arbitration’ and, sure enough, it can be seen that those rules had been faxed to the first TIO’s office on 10 January 1994 see (Senate Evidence File No 13) and this is the agreement that the first four COT arbitrations were based on.

 

This means that the TIO and the arbitrator not only knowingly misled the four COT claimants, they also misled Barry O’Sullivan (now Senator Barry O’Sullivan), Senator Richard Alston (then then Shadow Minister for Communications), Senator Ron Boswell (The Whip in the Senate for the National Party) and various other Government Ministers, into believing that the COT Arbitration Agreement had been drafted independently.  If any of these people had been aware that the TIO and arbitrator had allowed Telstra (the defendants) to draft the agreement, surely they would not have allowed the COTs to sign it until the entire document had been professional checked by a truly independent party who may well have uncovered what the arbitrator eventually uncovered before he brought down his first determination on 11th May, 1995 that the agreement had not allowed enough time for ‘… the production of documents, obtaining further particulars and the preparation of technical reports’.

 

If the various lawyers representing the four COT claimants had known that their clients were signing an agreement that had been drafted by the defence, they would have demanded to know why this was being allowed. When Graham Schorer and I met, together, with our lawyer Mr Hunt, on the evening of 20 April, 1994  Mr Hunt commented that, since the President of the Institute of Arbitrators Australia had drafted the entire agreement for the COT claimants then, as far as he was concerned, we could not possibly have chosen anyone better. Both Mr Schorer and I firmly believe that this was why Mr Hunt did not send the agreement to an external graded arbitrator for assessment.

 

Questions On Notice

 

Although this letter of the 24 October, 1997 from the Telecommunications Industry Ombudsman to Ms Pauline Moore, Secretary to the Senate Environment, Recreation, Communications and the Arts Legislation Committee has also previously been addressed in my manuscript ‘Ring for Justice’ and in the Casualties of Telstra Chronology of Events, we have linked another sinister set of ill-deeds committed against the COT claimants.  This letter, clearly stamped CONFIDENTIAL (see Senate Evidence File No/7) included the following statement:

 

“The COT Arbitration Procedures contain provisions relating to the confidentiality of the proceedings which bind the parties. Those provisions also bind the Arbitrators, the Resource Unit, the Special Council and the TIO in my role as Administrator. Accordingly, I ask that the answers given below to the questions on notice be treated as confidential by the Committee and not published.

  • Yes, from time to time I have received complaints from foundation COT members, concerning a range of matters, including alleged non-compliance with the rules of the Fast Track Arbitration Procedures by Telstra and/or the Arbitrator and/or the Technical and Accounting Resource Unit.
  • Yes, I have refused to provide COT members with a copy of “Telstra’s Preferred Rules of Arbitration”. A copy of this document was not provided because it was of historical interest only, and the COT members did not advance any argument as to why it was relevant to their arbitration”.

 

The TIO insisted in this letter to Ms Moore, that the agreement was not provided to the COT claimants because: “…it was of historical interest only, and the COT members did not advance any argument as to why it was relevant to their arbitration”, is a total misrepresentation of the truth, hiding the fact that it was Telstra’s arbitration agreement that was used and so as to protect Telstra at all cost to the detriment of the claimants.

 

Graham Schorer in his capacity as COT spokesperson, first asked for a copy of the ‘Fast-Track Proposed Rules of Arbitration’ some time before 17 February, 1994 so it must have been decided that it would be kept from the claimants a full two months before they signed the final version of the Arbitration Agreement and it was therefore entirely “… relevant to their arbitration”.   It was absolutely farcical for the TIO to tell Ms Moore that the document was not provided to the claimants because it “… was of historical interest only”  because the COT claimants were legally entitled to know whether the arbitration agreement was drafted independently or crafted by the defence, to suit the defence. That original version of the Agreement should have first been provided to the claimants before any of them signed for arbitration and then also provided to them during their arbitrations and during the appeal periods of those arbitrations.

 

At an official arbitration meeting on 17 February, 1994 when Mr Schorer noted that he wanted assurances from the TIO and the arbitrator that the agreement he, and the other COT claimants were being pressured to sign, was not Telstra’s Proposed Rules of Arbitration.  Telstra’s own transcript of this meeting (FOI folio M33449 – Senator Evidence File No/8 confirms the arbitrator and the TIO Special Counsel “both stated they had not received this document and had not read it and that it was irrelevant”, even though the documents see Senate Evidence File No/9 confirms that the arbitrator had been provided with a document called “Telstra Corporation Limited – ‘Fast Track’ Proposed Rules of Arbitration” sometime before 18 January, 199, one month prior to this pre-arbitration hearing on 17 February 1994.

 

The following FOI issues concerning Telstra’s ‘Fast-Track  Proposed Rules of Arbitration’ has not been fully addressed in our Chronology of Events because we have had to limit sections of our story because the COT Cases saga is voluminous.

 

It is important to note here: I had massive problems during my arbitration as well as five  months after my arbitration in October 1995 when trying to access Telstra’s proposed Rules of arbitration both from the TIO and Telstra. During this 1995 to 1997 period John Wynack, Director of Investigations in the Commonwealth Ombudsman’s Office in Canberra, wrote a number of letters to Telstra, confirming that, since the end of my arbitration, I had lodged numerous requests for a copy of a Telstra arbitration file related to my arbitration.  Mr. Wynack’s four separate letters to Telstra (Senate Evidence File No 10) noted that he did not believe Telstra’s many statements that they had ‘disposed’ of their arbitration file on my matters.

 

Between late 1995 and early 1997, during the pending appeal period, and while I was asking both Telstra and the Telecommunications Industry Ombudsman to provide me with copies of all the pre-arbitration negotiation material, including Telstra’s proposed draft arbitration agreement (rules) and all arbitration procedural information, the Ombudsman responded (as I thought he would) in the same way that Telstra had been responding to similar requests I had lodged there, starting in October 1995. This was why the Commonwealth Ombudsman came onto the scene (see Senate Evidence File No 10).  The then current Telecommunications Industry Ombudsman’s letter dated 10 January, 1996 to me (Senate Evidence File No 11), notes: I do not propose to provide you with copies of any documents by this office”, a response that is almost exactly the same as the response that Graham Schorer (COT spokesperson) and I had been receiving from the previous TIO, since February 1994.

 

In fact, on one occasion before we signed the arbitration agreement, but after the TIO had refused to give Mr Schorer any of the documents we needed, I telephoned the TIO’s office myself, while I was in Mr Schorer’s office in Melbourne, and, after some delay, eventually reached the TIO, whose shouted, angry response was “that his office would NOT provide a copy of Telstra’s proposed Rules of Arbitration”.

 

Back then though I did not know that the TIO had seconded a Telstra employee to handle calls coming in from customers regarding phone faults, including those customers who were already involved in the formal Fast Track Settlement Proposal (FTSP) which, of course, included myself.  Letters from this seconded-Telstra-employee, including letters he had signed on behalf of the TIO when he was dealing with my FTSP/ongoing faults, are discussed in more detail in the Chronology of Events.

 

It is quite clear that Telstra controlled the TIO’s office and much of the arbitration information that came into that office, even before the first four COT claimants were pressured into signing the Arbitration Agreement that, as is shown elsewhere on absentjustice.com.  The TIO and the arbitrator must have realized at least half way through the arbitration process that when Telstra’s lawyers crafted the original agreement, they had done so to benefit Telstra at the expense of the four claimants.

 

This theory is backed up by the arbitrators own letter to the TIO on 12 May, 1995 see our (Main Evidence File No/44) titled ‘Not A Credible Arbitration Agreement’.  It is clear from the statement made in this letter the day after the arbitrator brought down his first COT award on 11 May 1995 (my award), he knew then, he should never have used it as the following statements made to the TIO show.

 

“The time frames set in the original Arbitration Agreement were, with the benefit of hindsight, optimistic;

In particular, we did not allow sufficient time in the Arbitration Agreement for inevitable delays associated with the production of documents, obtaining further particulars and the preparation of technical reports; …

In summary, it is my view that, if the process is to remain credible, it is necessary to contemplate a time frame for completion which is longer than presently contained in the Arbitration Agreement”.

 

On receipt of this letter, as the administrator of the Arbitration Agreement, the TIO should have abandoned the process and intervened to allow a review to allow me more time to obtain further particulars, produce documents and prepare his technical report. Not only did the arbitrator and the TIO decide to conceal this document from me during my designated appeal period, they also later allowed the following three COT claimants more than thirteen  months over and above the time they had allowed me in which to prepare my claim and obtain further and better particulars, even though the resource unit had officially requested extra weeks in which to complete their findings in relation to my case as our absentjustice.com Chronology of Events show.

 

Correspondence exchanged between the Government Regulator and AUSTEL, Telstra and the TIO, including privileged Government / COT information that the TIO had been quietly providing to Telstra executives, and the Ombudsman’s decision to allow Telstra’s executives to attend TIO Board and Council meetings, even when arbitration issues were discussed (as the TIO later told the Senate), eventually led the new TIO to advise a Senate Estimates Committee, in his 26 September,1997 report, that:

 

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

 

On 20 August, 1997 while in Senator Ron Boswell’s Parliament House Office in Canberra, my lawyers, M Brereton & Co, (Melbourne) faxed me C/- of Senator Ron Boswell a letter detailing how the process had failed me and even going so far as to state Senate Evidence File No/17 that:

 

“The Conduct of the arbitration which followed was highly dubious and open to attack as inviting questions of bias since the arbitrator ruled out may relevant documents to the detriment of Mr Smith’s claim. All 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”.

 

Senator Ron Boswell, and his son Steven immediately suggested that this letter clearly supported various other COT Cases claims against the conduct of the arbitration process. I had, by then, been included as one of the group that the Senate Estimates Committee Working Party was going to investigate, although for some still unexplained reason, I was later delegated to the Senate “B” list. At that stage, in August/September 1997, the Senate Working Party had not yet divided the twenty-one COT claimants into two groups, the “A” or ‘litmus’ group and the “B” group. It was some weeks later that I was informed I was on the “B” Senate list.

 

As Senator Harris’ press release shows, but, on top of receiving their long-awaited discovery documents, the five favoured, ‘litmus test’ claimants also received millions of dollars in compensation, not just as a result of their business losses, but also because of the unethical conduct they had suffered at the hands of Telstra.

 

In Camera Senate Hansard 6 & 9 July 1998

 

If I had revealed what was in these Hansard records back in 2000, when I was inadvertently provided these records by the Major Fraud Group Victoria Police, and consequently had been charged for contempt of the Senate (which has a maximum two year jail term), and if I had been given that full sentence, I would have been out within eighteen months for good behaviour and the truth would have been revealed for all to see. Looking back to 16 August, 2001, Senate Evidence File No/13 when I received the first threat from Senator Eggleston, I remembered that it did cross his mind that perhaps I should have exposed the truth then, so that anybody with an interest in the COTs and their fight against Telstra would know, even though Government officials knew what the Telstra Corporation had done to so many innocent citizens under the nose of the Telecommunications Industry Ombudsman (Administrator to the arbitration), the Chairman of the TIO Council who was also the then President of the Federal Liberal Party (which the Hon Richard Alston now is), and of course the arbitrators and mediators who sat back and did very little to assist the claimants while those inactions allowed Telstra to squeeze the lives out of those sixteen COT claimants.

 

Imagine how I felt, on 6 December, 2004  when I received that second threat from Senator Alan Eggleston (also attached to our (Senate Evidence File No/13), on top of the threats I had, by then, also received from Telstra, after I had assisted the Australian Federal Police in their investigations into Telstra’s unlawful interception of my telephone conversations.  All those threats are linked to the one single issue of the rights of all citizens in a democracy to have access to documents classified as ‘discovery’, in relation to any legal process.

 

The strange thing about these in-camera Hansard records was that although the Major Fraud Group agreed to courier my four storage boxes of evidence back to my residence, two senior officers asked to see me before those boxes were sent out, so they could make sure that I took with me a half-size, cut down, A4 storage box of documents.  Although I said I was happy to pack that information into one of the four existing storage boxes, the police officers were adamant that I should take this small parcel with me.  They wished me well and, rather oddly, actually apologised for the way in which the Major Fraud Group had abruptly concluded their investigations without handing down a finding.  At the time I did think their behaviour was a bit strange, and I wondered why two such senior detectives were so concerned.  Perhaps, I thought, it had something to do with me being one of the sixteen COTs who had still not received their documents, unlike the five ‘litmus’ test cases who HAD received some of the documents that the Telecommunications Industry Ombudsman had promised them ALL they would receive, if they signed the TIO arbitration agreement.

 

It was only after I had left the St Kilda Road (Melbourne) offices of the Major Fraud Group and arrived at Graham Schorer’s office in North Melbourne that I discovered that the parcel I had been given included the 6 & 9 July 1998 in-camera Hansard records that showed how so many Senators, including Senator Boswell – the most vocal of all the Senators in relation to the appalling way that Telstra had treated the COTs – were supportive of the COTs.  It was then that I realised that I had been given these documents because the Major Fraud Group hoped they might help me to finally get hold of the discovery documents that had so far been concealed from all of the COT Cases (use the in-camera Hansard as our tool). Of course, at that stage, no one would have expected Senator Alan Eggleston to then threaten me in the way that he did.

 

Five Claimants and the Litmus Tests

 

While the Government might be of the opinion this FOI ‘litmus test’ for five of the 21 COT Cases is a government matter, I have asked the reader to take note of how discriminative this process of giving free technical advice to some COT cases concerning their FOI requests and refusing/failing to assist the other sixteen COT cases who had also suffered at the hands of Telstra has been.

 

Correspondence to the Commonwealth Ombudsman from various technical experts who had been appointed, via the Senate Working Party, to assess the relevance of a number of FOI documents that the ‘litmus five’ COT claimants had asked Telstra to provide a letter dated 17th February, 1998 from Qyncom IT & T Business Consultants Pty Ltd (Victoria) to Mr. John Wynack, Chair of the Working Party, c/o the Office of the Commonwealth Ombudsman (Senate Evidence File No/15).  It is clear from the covering page of a fourteen-page letter, and from many other letters to the Commonwealth Ombudsman, that the first five litmus COT claimants were provided, free of charge, with qualified technical assistance from the independent technical consultants appointed by the Government, both during their individual arbitrations and during their appeal processes, but the other sixteen claimants were denied these same privileges. This fourteen page report has been provided to the office of the Prime Minister, the Hon Malcolm Turnbull and various other Liberal Government members of parliament as Exhibit (AS 831) on a CD.

 

When this Exhibit (AS 831) is compared with the Commonwealth Ombudsman and Senate Estimates Committee COT material, it is clear that the five ‘litmus test’ cases had at least part of their arbitration funded by the Telstra Corporation (the defendants in the arbitrations) because of Telstra’s disgraceful conduct towards those five, a funding process that, I might add, was a worthy one. In a democracy like Australia however, assisting only one third of a group of people without providing the same assistance to the other two-thirds, when the whole group had suffered the same fate, was actually astonishing, on every level, particularly since it was overseen by the Federal Government. The present Minister for Communications, the Hon. Malcolm Turnbull, should surely correct this appalling situation as soon as possible.

 

27 January, 1999: Senator Kim Carr, one of the 27 participating members involved in the COT FOI investigations between 1997 and 1999, wrote to me (Senate Evidence File No/1-D) noting:

 

“I continue to maintain a strong interest in your case along with those of your fellow ‘Casualties of Telstra’. The appalling manner in which you have been treated by Telstra is in itself reason to pursue the issues, but also confirms my strongly 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”.

 

23 March, 1999: after the Senate Estimates Committee Hearing into why Telstra withheld so many documents from the COT Cases had been concluded, the Australian Financial Review reported that the Chairman of the Committee, Senator Alan Eggleston, had stated:

 

“A Senate working party delivered a damming report into the COT dispute. The report focussed on the difficulties encountered by COT 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”.

 

Senator Eggleston’s statement that “The report found Telstra had deliberately withheld important network documents …”, is quite clear:  the TIO Board and Council definitely hid two important issues from the Senate Estimates Committee: (1) The Board and Council knew that the TIO-appointed Resource Unit ALSO stopped the COT claimants from receiving relevant documents during the arbitration process and (2) The TIO and the defendants (Telstra) allowed this to happen by secretly placing the Resource Unit in charge of deciding what documents they thought were relevant for the arbitrator to view and which documents they thought should be withheld from the arbitration process as the various links on absentjustice.com so clearly show was what happened during my arbitration when the TIO-appointed Arbitration Resource Unit failed to address my claims of incorrect charging on my facsimile and 1800 service.

 

We may never know what might have happened if the Senate Estimates Committee had been aware of these facts during their two year investigation into the non-supply of documents to the COT claimants.  Would the TIO have been officially brought before the Senate and made to explain why a secondary arbitrator had secretly been appointed and given the power to decide which documents reached the arbitrator and which were withheld? 

 

Chief Political Advisor

 

Worse was to come however, in the form of a copy of an email dated 3 March, 2006 which I received sometime after the end of my April 2006, government-endorsed assessment process.

This email had originally been sent to an ex-Government Communications bureaucrat who was then working as a Government Liaison officer for Telstra.  It asked this once-very-senior ex-Communications bureaucrat (who had been an official advisor to the Hon Richard Alston Minister for Communications) for his advice on how to go about assessing my 2006 claim (Senate Evidence File No/5).

 

Could there be worse to come? You better believe it because, not long after he had helped the government with my claim and found in favour of Telstra and against me, this same bureaucrat secured a very senior executive position within the Telstra Corporation.

 

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 this person moved to the position as Telstra’s Government Liaison Officer he had been providing the Senator Richard Alston (Minister for Communications) with damning evidence against Telstra and the unlawful way in which they had been allowed to conduct their arbitration defence of the COT Cases claims.

 

In fact, when he wrote to the Principal Advisor to Peter Costello, who was then the Federal Treasurer) on 12 November, 1997 (Senate Evidence File No/18) providing this conclusive evidence of the way Telstra had perverted the course of justice during their defence of my arbitration claims,  On 3 December, 1997 this Principal Advisor to Mr Costello passed my evidence on to the same person (in his position as Senator Alston’s advisor).  How could the 2006 DCITA Independent Assessment process of my claims remain independent if the ex-government bureaucrats were evaluating the claims against his new employer (Telstra), particularly since my claims were against Telstra?

 

Faxes intercepted between Senators, and COT cases

 

This Scandrett & Associates report is attached in our main Evidence File at No/14 & 15 was originally provided to the Hon Senator Ron Boswell in early January 1999. One of the examples in that File  No/15 is the Peter Costello issue described below.

The fax imprint across the top of my two page letter the Hon. Peter Costello (the then Federal Treasurer) Example A in our Senator Evidence File No/20, is the same as the fax imprint that is described in the Scandrett & Associates report, in our main Evidence File No 14 & 15 which it is noted by Steven Scandrett & Associates that:

 

“We canvassed examples, which we are advised are a representative group, of this phenomena, they show that:

 

  • The header strip of various faxes is being altered
  • The header strip of various faxes was changed or semi overwritten
  • In all cases the replacement header type is the same
  • The sending parties all have a common interest and that is COT
  • Some faxes have originated from organisations such as the Commonwealth Ombudsman Office   

      

The modified type face of the header could not have been generated by the large number of machines canvassed, making it foreign to any of the sending services.”   

 

On 11 January, 1999 we also have the sworn testament of  Mr. Peter Ross Hancock contained in the Exhibits (Senate Evidence File No/15) which notes:

 

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 findings”

 

Mr Hancock also noted in more detail that, in his professional opinion, faxes travelling between Golden Messenger’s North Melbourne Office and Graham’s lawyers; and between various members of COT and Alan’s office at Cape Bridgewater, had all been intercepted.

 

 

Fax Interception issues Ignored by Minister

 

In some case, those claims were that persons with access to Telstra’s network had intercepted my Telstra related documents, as well as having perverted the course of justice during that same arbitration.  This person was once a senior bureaucrat of DCITA to the Minister for Communications Senator Richard Alston, as well as an advisor to the Prime Minister, John Howard?

 

This seems to demonstrate that public officials live in a different world to most of Australia – a world where there is no meaning to the term “conflict of Interest” and/or mutual respect for a fellow Australian citizen.

 

The Australian public has a right to know that Telstra’s unlawful conduct towards Australian citizens has been proved, but Government Ministers and officials have concealed those crimes from the public under Parliamentary Privilege and then written to the victim of the crimes, advising that the best thing that victim can do to find any justice is to personally take the huge Telstra Corporation to court (Senate Evidence File No19), even though official Government regulatory reports prepared by AUSTEL on various COT Cases including me have already proved Telstra’s guilt as so clearly shown in our story.

 

I remind the reader, the Hon. Richard Alston, discussed in the above segment is currently the President of the Liberal Party, which is in government with the Liberal National Party (LNP).  The Hon. Tony Abbott, Prime Minister of Australia endorsed the Hon. Richard Alston into the position of trust he now holds.  A position where he has the influence and the ear of the Prime Minister to ensure that justice is done for those sixteen COT Cases (those that are still alive) who have never received all of their promised discovery documents.

 

Independent Assessment process?

 

It is also important to point out that before I signed the 2006 assessment process I asked that the same fax hacking/screening issues that I had previously raised with Senator Barnaby Joyce (see below) would be investigated by the government.  In our Senator Evidence File No/! it is confirmed that the main Communications bureaucrat in charge of my 2006 independent assessment process wrote to me on 17 March, 2006 (Senate Evidence File No/6) noting:

“If the material you have provided to the Department as part of the independent assessment  process indicates that Telstra or its employees have committed criminal offences in connection with your arbitration, we will refer the matters to the relevant authority”.

 

NONE of the criminal conduct issues, including the submitting of known fabricated evidence to the arbitrator under oath, or the submission of known false witness statements and the phone and faxing interception material provided in my 2006 claim, clearly articulated that criminal offences were committed against me during my arbitration.

 

The Australian public has a right to know that Telstra’s unlawful conduct towards Australian citizens has been proved, but Government Ministers and their official bureaucrats have concealed those crimes from the public under Parliamentary Privilege and then written to the victim of the crimes, advising that the best thing that victim can do to find any justice is to personally take the huge Telstra Corporation to court.  (Even though official Government regulatory reports prepared by AUSTEL (now ACMA) have already proved Telstra’s guilt as so clearly shown in our story to date).

 

The question still remains unanswered: why do so many Ministers blindly accept what government bureaucrats  say (see our Home page which also raises the same bureaucrat issue)?

 

It is very important to link this 2008 sacking and demoting of ‘bad bureaucrats’ to a number of events that had earlier taken place during the Casualties of Telstra arbitrations.  Firstly, Telstra admitted – to the Regulator’s office – that they had not conducted the service verification tests at the Cape Bridgewater Holiday Camp on 29 September, 1994, even though they had produced an arbitration report that said they had.  Secondly, on 29 November, 1994 Telstra notified the office of the Government Telecommunications Regulator that, while the Casualties of Telstra arbitrations continued, the Regulator’s office was obliged to seek Telstra’s permission before releasing any service verification test results to the Casualties of Telstra group.  Thirdly, on 2 February 1995, public servants from the Regulator’s office decided that the Communications Minister was not to be told the truth about what they (the public servants) had uncovered through their Casualties of Telstra investigations of 1993 and 1994.

 

In our absentjustice.com/Casualties of Telstra Chronology of Events list, between October 1994 and February 1995, you will find documents that show how Telstra advised the Communications Minister that not only had they carried out all the service verification tests as directed by the Regulator, but all those tests had met all the Regulator’s specifications.  But this situation was actually even worse than it appeared at first because, in his witness statement of 12 December , 1994 the same Telstra person who told the Regulator’s office that they had to seek permission from Telstra before releasing service verification test results to a third party, swore under oath that he had carried out the service verification tests at my premises and they had exceeded all the Regulator’s specifications. As if that is not enough however, on 24 June, 1997 this particular Telstra Chief Engineer had been named by a Telstra whistleblower as the person who told him that Telstra ‘had to stop the Casualties of Telstra group from proving their claims no matter what it cost’.

 

 

 

Threats from the Senate

Senator Alan Eggleston

 

According to two in-camera (in-confidence) Hansard records for 6 and 9 July, 1998 a Senate Estimates Committee found that Telstra had not only caused considerable heartache for a number of COT claimants but had also acted unethically towards the COT claimants.  I have been threatened twice due to me wanting to use this damming Hansard information to support an action against Telstra and the arbitrator.  Once in a letter dated 16 August, 2001 and again in a another letter dated 6 December, 2004.

 

Both these letters came from the Chair of the Senate Estimates Committee Senator Alan Eggleston himself, who threatened me that I would be held in contempt of the Senate (a crime that carries a jail sentence) if I was to release these in-confidence Hansard records into the public domain and so reveal the truth about what the Senate Estimates Committee really thought of Telstra’s undemocratic treatment of the COT claimants during the period of their arbitrations and a Senate Estimate Committee Investigation.

 

 In other words, these truths are to be concealed under Parliamentary Privilege for at least thirty years. The two actual letters are attached as Senate Evidence File No/13.

 

Who was really behind these threats?

 

We ask the present Senate, the present Government and its Cabinet ministers to view our main Evidence File No/16 and try to imagine, even though I had not been provided with a copy of this document before or during his 1994/95 arbitration, what would have happened if I had instead been afforded the privilege of seeing AUSTEL’s more adverse findings against Telstra during the Senate Estimates Committee Working Party investigations that took place between 1997 and 1999.

 

The time frame which was still within the statute of limitations and therefore, I could have used those findings as a base from where I could have appealed the arbitrator’s award.  Imagine what might have happened if I, and the other fifteen COT Cases had been afforded the same privileges as the litmus tests cases, and had been provided this document or something of similar content to which the five litmus tests cases received; there would have been no need for “Ring for Justice” because, in my case I would have certainly won my appeal against the arbitrator’s award, as know doubt some of the other remaining fifteen COT cases likewise would have achieved the same.

 

Unfortunately though, in my case I didn’t get document Senate Evidence File No/16 from the Government Communications Media Authority (ACMA) until it was finally delivered to me, under FOI, in November 2007, thirteen years after Telstra first received their copy and, surprise, surprise, thirteen years after the fact is outside the statute of limitations.  Telstra, on the other hand, received their copy way back before they went into arbitration and it would have provided them with considerable assistance because they would have been able to use it to work out which documents they should hide from me throughout the arbitration process and which they could release without causing too much damage to their defence of my claims. Senate Evidence File No /16 is page 7 from official Commonwealth Ombudsman transcripts of their meeting with AUSTEL representatives on 22 September, 1994 where AUSTEL noted:

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

 

 Article 7 – The Universal Declaration of Human Rights

 

Even now I still have threats of a possible jail term hanging over me in relation to those secret In-Camera Senate Hansards , but I believe it is worth the risk to note here that they show that many Senators must have known that the sixteen COTs on the ‘B’ list had been seriously discriminated against when they were not provided with their discovery documents like the five on the ‘litmus test’ list were. 

 

Furthermore, if those two Hansards were assessed in connection with Article 7 of The Universal Declaration of Human Rights then that discrimination would be even more obvious, because page one of the first of those secret Hansards records how the Senate Estimates Committee Working Party were actually addressing arbitration issues that had previously been addressed ‘under the confidentiality provisions clause in the arbitration’ and had only been seen by the COT arbitrator and those who had participated in the various arbitrations.  Although, according to that first page, those ‘in confidence’ issues were now also being examined by the Senate Working Party to determine their relevance.

 

As has been shown in our Chronology of Events, I was still trying to access my previous withheld discovery documents in October 2008 and again in May 2011, through the assistance of the Administrative Appeals Tribunal.  It was during that process that I uncovered evidence confirming Commonwealth Ombudsman documents show that some 150,000 Freedom of Information documents were provided to those five ‘litmus test’ claimants. All five chose to take compensation from the Telstra Corporation and so those 150,000 documents were discarded after all.

 

If the remaining fifteen Australian citizens and I had been given the same opportunity and had therefore been provided with even just a few thousand of our promised Freedom of Information documents, then at least some of us might have been able to use that material to successfully prove that the Telecommunications Industry Ombudsman and the arbitrator had indeed conducted our arbitrations outside the agreed ambit of the Arbitration Procedures, as the Ombudsman confirmed during his address to a Senate Estimates Committee on 26 September, 1997 (Senate Evidence File No 13).

 

Senator Len Harris

 

Chapter twenty-six in my forthcoming manuscript “Ring for Justice” discusses in detail how Senator Len Harris (from the Australian ‘One Nation’ party) travelled from Cairns, in Queensland (a trip that took more than seven hours), to meet with myself and two of the sixteen Casualties of Telstra group for a press meeting, in an attempt to ensure that our claims of discrimination by the Commonwealth Government were fully investigated, and how shocked the Senator was when he saw all the evidence I had collated. What blew Senator Harris’ mind the most, were the letters discussed above which I received from Senator Alan Eggleston (which included his threats of a possible jail sentence). Senator Harris was shocked that such letters had been sent.

 

All I was trying to do, was appoint an Australian lawyer with constitutional knowledge, to investigate if it was democratic for sixteen fellow Australians to be denied the promised documents which enticed them into their various arbitrations and mediations. I thought that by commissioning a lawyer who could use the 6 & 9 July In-Camera Senate Hansards which clearly prove that at least one Senator said for the Senate Estimates Committee to assist only five of the twenty-one COT cases, ‘…would be an injustice’ to the remaining sixteen, would have been enough persuasion to force the Australian Government to re-think what they had allowed to happen to the remaining sixteen.

 

At the press conference Senator Harris questions were aimed at the Chief of Staff to the Hon Senator Richard Alston, Minister for Communications, Information Technology and the Arts, when he asked:

“Through the following questions, the media event will address serious issues related to Telstra’s unlawful withholding of documents from claimants, during litigation.

  • Why didn’t the present government correctly address Telstra’s serious and unlawful conduct of withholding discovery and/or Freedom of Information (FOI) documents before the T2 float?
  • Why has the Federal government allowed five Australians (from a list of twenty-one) to be granted access to some of the Telstra discovery documents they needed to support their claims against Telstra, but denied the same rights to the other sixteen ?
  • Why has the Federal Government ignored evidence that Telstra withheld many documents from a claimant during litigation?
  • Why has the Federal Government ignored evidence that among those documents Telstra did supply, many were altered or delivered with sections illegally blanked out?”  

 

 

A Government Scandal

 

One of the biggest scandals to hit Australian politics in the last decade relates to a government scheme to install roof insulation into all Australian houses.  Unfortunately the public servants appointed to design the scheme were not given enough time to prepare the plan properly and so pushed ahead without enough research.  In 2009, the then-Labor government advised to go ahead, without putting in place appropriate training or accreditation for the installers, thereby allowing anyone at all to take on the task.  As a result of this badly-thought-out scheme, three untrained Australians died from electric shocks (when nails were accidentally hammered through electric cabling) and a fourth died from heat exhaustion as a result of working under a roof in such a confined space, on a hot day.

Kevin Rudd, who was the Prime Minister at the time, was called before a Royal Commission into this insulation disaster in May 2014 and, to support the evidence he provided, he was given permission by the Federal Coalition Government to use documents that had previously been marked as ‘privileged and confidential government information’.  I, on the other hand, have never been allowed to use ‘privileged and confidential’ government documents to support my claims that some fifteen or so fellow Australian’s were knowingly discriminated against by their own government. 

 

This is just another example of how, in Australia at least, there is one law for ex-Prime Ministers and other powerful people, who can use parliamentary privileged information when it suits them, for their own purposes, perhaps when they need to hide their poor management from scrutiny (as in the case of Mr Rudd and his involvement in the insulation fiasco).  Although the laws for ordinary Australian citizens, no matter how badly they may have been treated by powerful corporations or unqualified arbitrators, are very different indeed.

 

Senator Barnaby Joyce

 

In July 2005 myself and thirteen other Casualties of Telstra group members met with the then Senator Barnaby Joyce to discuss unresolved issues connected to the undemocratic way in which our arbitrations and mediations had been conducted. The Senator had only just entered the world of politics at this stage.

 

Because of time constraints with all fourteen members required to present our claims, we were asked to limit our presentations to four minutes each, although, understandably, because of the stress we were all under, some claimants took longer than they should have.

At that point we had been battling Telstra and their highly paid lawyers for years.

 

On behalf of three of the other claimants, as well as myself, I hammered home at this meeting the fax hacking/screening of my arbitration related documents via Telstra’s network and this shook not only Senator Joyce, but the advisor who had accompanied him. These were the same fax hacking/screening issues that I raised in my March/April 2006 government endorsed assessment process.

 

Senator Joyce was also staggered to learn that not one single Minister for Communications in either the Labor or Liberal Coalition Governments, had ever independently asked why Telstra had been allowed to submit fundamentally flawed sets of test results to four separate arbitration processes (mine and the other three).  I believe it was the fax hacking evidence we provided, and the BCI false reporting that prompted Senator Joyce to demand Senator Helen Coonan (then the Liberal Government Minister for Communications) to arrange for these BCI issues, and the other COT issues too, to be independently investigated.

 

At the time, Senator Joyce held the one single vote that the Liberal Coalition Government needed to secure the Telstra privatisation legislation, so Senator Coonan promised Senator Joyce that if he cast that crucial vote the government would appoint an independent assessor to review the status of all the outstanding claims against Telstra, and provide a basis for these to be resolved (see Senator Barnaby Joyce’s letter dated 15 September 2005 above).

 

Senator Joyce took Senator Coonan at her word, believed that the government would stand by that promise, but as soon as the Senator had cast his vote, the Liberal Coalition Government went back on their promise.  In an attempt to salvage something from this event, Senator Joyce came to a compromise with the Department of Communications, Information Technology and the Arts (DCITA) who agreed that they would assess the claims of any of the fourteen COTs who were interested in being involved in the Government’s Independent Assessment Process.

 

The next section of our Casualties of Telstra – Chronology of Events will describe how, as soon as the government had secured that vote from Senator Joyce however, they did a back-flip and refused to appoint anyone other than their own government-employed assessors, rather than the independent assessor that had been promised to Senator Joyce and which he had confirmed in his letter to me on 15 September 2005 (see our Evidence File No/?).

 

“Thank you for your representation of 17 August 2006 on behalf of Mr Alan Smith regarding Mr Smith’s allegations that Telstra monitored his phone calls and emails during an arbitration process with Telstra. The interception of emails and monitoring of phone calls is an offence under the Telecommunications (Interception and Access) Act 1979. Mr Smith should consider his dispute through the dispute resolution bodies, including his State Office of Fair Trading, the Competition and Consumer Commission, the Australian Communications and Media Authority state, and the courts”.

 

Following the advice given to me by the Hon Senator Helen Coonan, I contacted Consumer Affairs Victoria (CAV) through my advisor, who also assisted me in the preparation of a claim to be provided to a Barrister for the CAV. From October 2007 through to late 2008, this advisor (who I have not named in my story) was a once very high ranking Victorian police officer had a number of discussions with this Barrister who then proceeded to assess the various claims provided by us.

 

Court may be your ultimate option

 

17 May 2007: The Hon Senator Helen Coonan wrote to me noting:

 

“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”.   

 

Surely it was Senator Helen Coonan’s responsibility, as the Minister for Communications, Information Technology and the Arts, to instigate an official enquiry into why Telstra continued to intercept in-confidence documents leaving either my office (or residence), the offices of various Senators and the Commonwealth Ombudsman’s office during and after the COT arbitrations?

 

Why was it left open to a citizen of Australia to take Telstra to court for intercepting documents during and after their government endorsed arbitration, when the Senate Estimates Committee had also been advised that some of these faxes were also intercepted leaving Parliament house?

 

The Hon Senator Helen Coonan, Minister, for Communications, Information, Technology and the Arts (DCITA) and the Senator’s Independent Assessors were provided Exhibit  AS 639, headed “Department of Communications Information Technology and the Arts – Casualties of Telstra (COT) Background And Information For Ministers Office” as a guide to the validity of the COT case issues including my previous arbitration and fax interception issues, but Exhibit (AS 639) does not include what we have shown in our Chronology of Events and the various links on absentjustice.com.

In other words, the DCITA report that the Department used to decide whether or not I had legitimate claims against Telstra was fundamentally flawed and should not have been used by the Department of Communications Information Technology and the Arts (DCITA) as a guide for the Government assessors.

 

As the next chapters of the Chronology of Events are added to the Exhibits File you will be stunned to discover what those government bureaucrats did next, as part of their ongoing attempts to stop me proving my case.

 

Some of the same illegally blanked out arbitration documents as well as our illegally intercepted Fax related documents were also amongst the information I supplied to Senator Helen Coonan’s office during my later 2006 government endorsed assessment process.

 

As mentioned in the Introduction above, In July 2005 fourteen members of the Casualties of Telstra group (including me) met with the newly-sworn-in Senator Barnaby Joyce, who is now (in 2015) the Minister for Agriculture in the current Australian government.  Back in 2005 we believed this would be our last attempt to prove how been badly we had been dealt with during our various arbitrations and mediations with Telstra. We each provided Senator Joyce with documented evidence to support our claims, he listened closely to some of our stories, told us that he was convinced, and assured us that he would NOT cast his crucial vote for the Telstra privatisation legislation until the government had promised him that all fourteen of our claims would be independently assessed.

 

It is not too late for the Government to intervene in this matter and demand answers as to why these sixteen COT Cases have been discriminated against in such an appalling manner.

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“…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

“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

“…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

“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

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

– Edmund Burke