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Chapter 4 Falsified Reporting Continues

Concealing the truth (1)

Absent Justice - Concealing the Truth

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

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

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

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

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

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

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

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

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

And further, on page 3, Mr Black adds:

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

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

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

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

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

When is a Regulator Not a Regulator?

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

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

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

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

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

Telstra FOI folio 101115 to 101117 states:-

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

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

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

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

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

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

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

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

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

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

Fudged exchange reporting 

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

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

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

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

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

On 15 July 1995 AUSTEL’s previous General Manager of Consumer Affairs  provided me with an open letter noting:

“I am writing this in support of Mr Alan Smith, who I believe has a meeting with you during the week beginning 17 July.  I first met the COT Cases in 1992 in my capacity as General Manager, Consumer Affairs at Austel. The “founding” group were Mr Smith, Mrs Ann Garms of the Tivoli Restaurant, Brisbane, Mrs Shelia Hawkins of the Society Restaurant, Melbourne, Mrs Maureen Gillian of Japanese Spare Parts, Brisbane, and Mr Graham Schorer of Golden Messenger Couriers, Melbourne. Mrs. Hawkins withdrew very early on, and I have had no contact with her since.

The treatment these individuals have received from Telecom and Commonwealth government agencies has been disgraceful, and I have no doubt they have all suffered as much through this treatment as they did through the faults on their telephone services.

One of the striking about this group is theur persistence and enduring beleif that eventually there will be a fair and equitable outcome for them, and they are to admired for having kept as focussed as they have throughout their campaign.

Having said that, I am aware all have suffered both physically and their family relationships. In one case, the partner of the claimant has become seriously incapacitated; due, I beleive to the way Telecom has dealt with them. The others have al suffered various stress related conditions (such as a minot stroke.

During my time at Austel I pressed as hard as I could for an investigation into the complaints. The resistance to that course of action came from the then Chairman. He was eventually galvanised into action by ministerial pressure. The Austel report looks good to the casual observer, but it has now become clear that much of the information accepted by Austel was at best inaccurate, and at worst fabricated, and that Austel knew or ought to have known this at the time.” 

After leaving Austel I continued to lend support to the COT Cases, and was instrumental in helping them negotiate the inappropriately named "Fast Track" Arbitration Agreement. That was over a year ago, and neither the Office of the Commonwealth Ombudsman nor the Arbitrator has been succsessful in extracting information from Telecom which would equip the claimants to press their claims effectively. Telecom has devoted staggering levels of time, money and resources to defeating the claiams, and there is no pretence even that the arbitration process has attemted to produce a contest between equals.

Even it the remaining claimants receive satisfactory settlements (and I have no reason to think that will be the outcome) it is crucial that the process be investigated in the interest of accountabilty of publical companies and the public servants in other government agencies. 

Because I am not aware of the exact citrcumstances surronding your meeting with Mr Smith, nor your identity, you can appriate that I am being  fairly circimspect in what I am prepared to commit to writing. Suffice it to say, though, I am fast coming to share the view that a public inquiry of some discripion is the only way that the reasons behind the appalling treatent of these people will be brought to the surface.

I would be happy to talk to you in more detail if you think that would be useful, and can be reached at the number shown above at any time. 

Thank you for your interest in this matter, and for sparing the time to talk to Alan. (See " File 501 -  AS-CAV Exhibits 495 to 541 )

Amanda Davis would not reveal more in her letter because I had already advised Ms Davis that I thought it was best she not know the name of the person who had agreed to meet with me, in the public interest. By operting in this manner it protected all parties from being accused of collusion or compromising a situation that was alarming top say the least. The fact that neither the Australian Federal Police, the Commonwealth Ombudsman, Telecommunications Industry Ombudsman, the arbitrator and the Australian Senator had been able to stop Telstra threatening me during my previous arbitration or hold Telstra accountable after they carried out those threats was the reason I was being careful (See Senate Evidence File No 31)

On 28 September 1992, when Amanda Davis was AUSTEL's General Manager of Consumer Affairs, she telephoned me to discuss evidence I had mailed to AUSTEL some days previous (see two File 14 - AS-CAV Exhibit 1 to 47. The first document in File 14 is a typed Telstra fault record showing several faults experienced on my incoming phone service line 055 267 267, including three calls from Amanda Davis. It is clear from the discussion on this typed fault record that the first two S-D long-distance calls both calls dropped out where it is noted Amanda Davis only heard the pips on the line but did not connect on either call. Her third call was successful. However, it is confirmed from File 14 that Amanda Davis was charged for both no-connected calls. The second File 14 is the handwritten fault recording from Telstra of the events shown on the printed File 14. 

It is further confirmed from File 122-A to 122-G - AS-CAV Exhibit 92 to 127 that AUSTEL and Telstra knew a national billing problem in Telstra's 008/1800 billing software as early as 1993. 

It is also important to note from File 210-C AS-CAV Exhibit 181 to 233 a three-page internal report prepared by AUSTEL on 26 February 1996, which was derived from the evidence AUSTEL collected from my business on 19 December 1995 that they acknowledge my claims of ongoing 008/1800 billing problems was a valid claim. File 210-D AS-CAV Exhibit 181 to 233 dated 2 August 1996 confirms the 008/1800 billing short duration lock-up billing problems were still apparent. In other words, the 008/1800 billing problem I raised with AUSTEL in June 1993 was still in the Telstra network for more than three years.

This letter from Telstra to AUSTEL dated 23 July 1993 confirms I raised the oo8/1800 billing issues at least by June 1996 (see File 596 GS-CAV Exhibit 581 to 609.

The following link  CAV Exhibit 92 to 127) confirms Frank Blount, Telstra’s CEO, after leaving Telstra he co-published a manuscript in 1999. entitled, Managing in Australia. On pages 132 and 133, the author exposes the 1800 problems that Telstra did not addressed during my arbitration: 

“Blount was shocked, but his anxiety level continued to rise when he discovered this wasn’t an isolated problem. 

The picture that emerged made it crystal clear that performance was sub-standard.” (See File 122-i CAV Exhibit 92 to 127)

Frank Blount's Managing Australia https://www.qbd.com.au › managing-in-australia › fran can still be purchased online. 

I reiterate, the fact that the Telstra Board knew Telstra had a systemic network billing software problem and still advises the government on 11 November 1994 (see File 46-G - Open letter File No/46-A to 46-l, they would address these 008/1800 problems during my arbitraton and neither Telstra or the arbitrator adressed my 008/800 billing claim documents during my arbitration allowing them to be addressed secretly five months after my arbitration had not addressed them (see Absent Justice Part 2 - Chapter 14 - Was it Legal or Illegal? is testament Australia's government minders need to step up and admit how wrong they have been concerning my 008/1800 claims.  

According to Section 52 of the Australian Trade Practices Act under Part V - Consumer Protection Division 1 - Unfair Practices - Misleading or deceptive conduct:

-          52.  (1) "A corporation shall not, in trade or commerce, engage in conduct that is misleading or deceptive or likely to mislead or deceive"

Telstra has continued to conceal their knowledge that I had a valid claim against Telstra under the Trade Practices Act, when that false 008/1800 billing advice was provided to AUSTEL 16 October 1995. The current government regulator ACMA and the Minister The Hon Paul Fletcher should treat this misleading and deceptive conduct towards me as a matter of some concern. The government regulator breached their statutory obligation to me, by concealing their knowledge that Telstra misled and deceived the government under the Trade Practices Act when supplying this false 008/1800 submission. Espercially since Frank Blount's book (See File 122-i CAV Exhibit 92 to 127) confirms Telstra did have a major 008/1800 problem and yet Telstra concealed their knowledge of this from firstly the arbitrator, secondly from me the claimant and the government who owned Telstra.  

There is no statute of limitations under Section 52 of the Trade Practices Act under the citcumstances of which this misleading and deceptive conduct that took place on 16 October 1995, when the entire Telstra board mislead and deceived  AUSTEL concerning my 008/1800 billinging problems when Frank Blounts book Managing in Australia shows my claims were valid. 

Had the Government Communications Regulator AUSTEL/ACMA not concealed their Cape Bridgewater Holiday Camp covert report from the Minister for Communications and the arbitrator, the arbitrator would have been compelled to investigate as to whether my claims of ongoing problems was a valid claim. Below are just some examples of the information concealed from the arbitrator.

Although we have raised the following points in the introduction to introduction to Absentjustice / My Story because of the importance of what these various points show we have again added them directly below.

I also show below, that, instead of assisting me with deciphering this material, Dr Gordon Hughes and TIO John Pinnock embarked on a campaign of the deceit of the worst possible kind (see Open letter File No/45-D, E, F, G,  and File No/49. We are talking about to people, two fellow Australian citizens who knew my quest for justice was my right and yet denied me that right and in doing so led me and my partner Cathy to where we are today with our lives totally destroyed. Twenty-Five years which we will never get back no matter how much compensation we might eventually receive.

Absent Justice Ebook

Read Alan’s book

My name is Alan Smith. This is the story of my battle with a telecommunications giant and the Australian Government. This battle has twisted and turned since 1992 through elected governments, government departments, regulatory bodies, the judiciary, and the Australian telecommunications giant, Telstra, or Telecom, as it was known when this story started. The quest for justice continues to this day. Nine publishers from all around the globe have published Absent Justice, which is now available for free in several languages.

Read about 'Mr Bates vs the Post Office' who took on the British government-owned Post Office, http://rb.gy/8399e3i.e., who found similar irregular activities by public servants who tried to hide the truth surrounding the valid claims registered by Mr Bates and his Post Office friends who dared tackle the British owned Post Office. 

 

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“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

“…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

“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

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