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Introduction

If the government-funded regulator could not officially order Telstra to supply official government records to the government's minister of communications, then what hope did the COT cases ever have of obtaining the same documents?

Authors Note 2021

ACMA Australian Government

On 21st November 2007, I received from the Australian Communications and Media Authority (ACMA), under FOI, a copy of AUSTEL’s original draft findings dated 2nd / 3rd March 1994 (see  AUSTEL’s Adverse Findings ), regarding the telephone problems experienced by the Cape Bridgewater Holiday Camp during 1988 to 1994. Copied below are some of the page numbers and points in the report. The reason I am discussing these issues here in our Manipulating the Regulator page is to show the difficulties that AUSTEL as the Government regulator had in obtaining documents from Telstra (at the time a fully Government-owned Corporation). Given these difficulties, the non-supply of documents to the COT claimants during their respective arbitrations is one of the reasons I was unable to conclusively prove to the arbitrator my telephone faults were still ongoing.  The following list identifies some areas (in the AUSTEL draft report) where AUSTEL had problems with access to Telstra records on the service provided to me:

     Point 43 on page 20 “As no fault report records remain in existence from Cape Bridgewater residents prior to this period, or these records have not been provided to AUSTEL, it is difficult to gauge the level of problems in the area.”

     Point 48 on page 22 “AUSTEL has been hampered in assessing Telecom’s dealings with Mr Smith by Telecom’s failure to provide files relating to Mr Smith’s complaints.”

     Point 71 on pages 28 and 29 “AUSTEL has not been provided with the documents on which the conclusion in this briefing summary were reached, such as fault reports from other Cape Bridgewater subscribers over this period or the details of the final selector fault.  It would have been expected that these documents would have been retained on file as background to the summary.  It can only be assumed that they are contained within the documentation not provided to AUSTEL.”

     Point 140 on page 49 “It should be noted that AUSTEL’s investigation of matters relating to the RCM problem has been hampered by Telecom’s failure to make available to AUSTEL a file specifically relating to the Pairs Gains Support investigation of the RCM.  The file was requested by AUSTEL on 9 February 1994.”

     Point 160 on page 55 “It should be noted that it is hoped that a number of issues in regard to the Cape Bridgewater RCM will be clarified when Telecom provides the documentation requested by AUSTEL.”

Once AUSTEL was fully aware Telstra was refusing AUSTEL relevant information that would allow the government communications regulator to prepare its official report for the minister after the regulator facilitated the arbitration and mediation processes that were to be based on information obtained from Telstra, it is obvious that AUSTEL should never have allowed those processes to proceed. AUSTEL breached its duty of care to the COT cases by permitting the arbitrations/mediations to proceed. After all, if the government could not officially order Telstra to supply records to the minister, then what hope did the COT cases ever have of obtaining the same documents?

By 21 April 1994, still without a copy of Telstra’s arbitration agreement [rules] under duress both mentally and physically worn out, we signed the altered agreement.

Absent Justice - My Story

The COT Cases Report report dated April 1994, prepared by the then government communications regulator AUSTEL (now called the Australian Communications Media Authority – ACMA) was officially submitted to all the parties involved in the first four arbitrations as well as various government ministers. The four original COT cases Maureen Gillan, Ann Garms and me had our ongoing telephone problems assessed by Telstra during an assessment process between December 1992 to February 1993. Graham Schorer (the fourth COT Case) had his ongoing telephone problems investigated in the Federal Court in April 1993. All four processes failed to fix our ongoing telephone problems.

A government-endorsed arbitration process was set up in April 1994 with strict rules so that a repeat of what had occurred between December 1992 and April 1993, did not happen again.

It is clear from this 258-page report, and other similar statements made by AUSTEL, that no finding by the arbitrator could be brought down until Telstra had proved it had fixed all of the ongoing telephone problems being experienced by those entering settlement and/or arbitration. After all, what was the purpose of an arbitration process if the claimants’ businesses were still affected by the ongoing problems that brought them into the process in the first place?

The following link ( Statutory Declarations and Affidavits ) shows a person can be charged for perjury – for swearing a false statutory declaration when they know what they are stating under oath is false. Most people would not sign a bogus witness statement as several Telstra (now ex-Telstra employees) did during my government-endorsed arbitration.

So, what incentivised all those Australian citizens to swear to something they knew would affect not just the future of my own business operations but other small business operators in Portland and elsewhere in Australia? In my case, these sworn lies also devalued my compensation claim against Telstra: the corporation was able to convince these several individuals to swear my telephone service was up to network standard when   AUSTEL’s Adverse FindingsTampering With Evidence and  Telstra's Falsified SVT Report  show otherwise.

However, when I alerted the Telecommunication Industry Ombudsman (TIO, the administrator of my arbitration) to this fresh evidence and the several false witness statements, as Chapter Three in our Prologue  page shows he not only refused to investigate the seriousness of these newly released documents, but he and the arbitrator used the arbitrator’s wife to turn the whole sordid story around and paint me as the villain, By clicking onto our Prologue  page you will be able to form your own opinion whether the arbitrator, his arbitration project manager and the TIO need to explain why they collectively mislead and deceived the Institute of Arbitrators concerning my claims.

Point 5.24 to 5.32 and 5.77 to 5.79 in this same report AUSTEL Evidence File 1-A the government states:

The Initial Settlements

Absent Justice - My Story

Mr Smith, Cape Bridgewater Holiday Camp 

5,24   “As observed above, four of the original COT Cases pursuing compensation for inadequate service engaged in a process of negotiation with Telecom with AUSTEL acting as an “honest broker” 

5.25   “Mr Smith was the first of the original COT Cases to reach an initial ‘settlement with Telecom. It is understood that he:

  • identified the type of faults which his business had experienced indicated the incidences of the faults by way of statements by individuals who have sought unsuccessfully to contact him 
  • demonstrating a reduced effectiveness of advertising he had undertaken 
  • Mr Smith has informed AUSTEL that his major concern and stipulated condition at the time of ‘settlement’ was that his service should operate, and continue to operate, at normal standards”.
  • Telecom had knowledge of at least some of the faults impacting on Mr Smith’s business as well as having access to relevant fault records and monitoring data, It was also aware of the extent of problems and difficulties at its local exchange servicing his business”

5.26  “At the end of the process (December 1992) a “settlement figure” was agreed. It was a condition of the settlement that the amount paid by way of settlement was to remain confidential – a condition that applies in the other cases. Although the details of the settlement are confidential, Mr Smith has informed AUSTEL that his major concern and stipulated condition at the time of “settlement” was that his service should operate, and continue to operate, at normal network standards.”

Ms Hawkins, the Society Restaurant

5.27   “In the case of Mrs Hawkins, “settlement” was reached in  January 1993. One of the conditions is understood to be that the business was to receive its telephone service via a modern digital exchange. The business has since been sold”

Mrs Garms and Mrs Gillan

5.28  “The initial “settlement” process involving Mrs Gillan and Mrs Garms is outlined above. It is relevant to mention here that as a result of Telecom’s stance that settlement would only be made once the service was being supplied at normal network standards,  both Mrs Gillan and Mrs Garms informed AUSTEL that they ceased reporting faults in order the hasten settlemnt process”  

Mr Graham Schorer, Golden Messenger 

5.29  “The fifth of the original COT Cases, Mr Schorer, had particular concerns about Telecom’s limited liability and the impact that the limitations was likely to have on any claim he might make for compensation arising from an inadequate telephone service.  

Continuing Faults 

5.30   ” Understandably the “original COT Cases”, having reached an initial “settlement” involving

  • compensation for pass losses 
  • restoration of an adequate telephone service

expected that they might be able to resume their businesses afresh”

5,31  ” Unfortunately that did not prove to be the case, Soon after his initial “settlement” Mr Smith reported continuing problems to AUSTEL. Even prior to her settlement Mrs Garms reported continuing faults to AUSTEL. The decision by Mrs Garms and Mrs Gillan not to report faults to Telecom in order to hasten a financial settlement is noted above. Mr Schorer continued to report faults to AUSTEL throughout the period.” 

5.32   “The fact that faults continued to impact upon the businesses in the period following the settlement shows a weakness in the procedures employed. That is a standard of service should have been established and signed off by each party. It is a necessary procedure of which all parties are now fully conscious and is dealt with elsewhere in this report. Its omission as far as the initial ‘settlement’ of the original COT Cases  were concerned meant that there was continued dissatisfaction with the service provided without any steps being taken to rectify it. This inevitably led to a dissatisfaction with the initial ‘settlement’ and to further demands for compensation. To avoid this sort of problem in the future, AUSTEL is, in consultation with Telecom, developing –

  • a standard of service against which telecom’s performance may be effectively measured;
  • a relevant service quality verification test.

As stated above, that arbitration process was intended to ensure that any ongoing telecommunications problems were all fixed before the assessor/arbitrator handed down a finding. See points 1.18, 1.19 5.24 to 5.32, 5.77 and 5.78 in the official public AUSTEL COT Cases Report of 13 April 1994, which notes respectfully:

Settlement and agreement on standard of service

5.77:   “As part of the general approach to settlement, Telecom sought AUSTEL’s agreement to, and assistance in, the development of a defined status for a telephone service. The intention is to obtain an agreement on the operational performance of the service against which the parties might sign off once a financial settlement has been finalised.”

Findings 

5.78  AUSTEL’s findings are that-

“When the initial settlements were reached with the original COT Cases the standard of service then applicable was not objectively established and there is reason to believe that difficult network faults may have continued to affect their services.”
“an agreed standard of service, being developed in consultation with AUSTEL to be applied to any case subject to settlement is essential”.

Recommendations 

5.79 AUSTEL recommends that:

“Telecom implement a proposed arbitration procedure along the lines outlined in paragraph 5.94 as soon as possible 

Telecom specify how it will, under its proposed arbitration procedure, treat losses arising in periods during Telecom had statutory immunity from suit or contractually limited its liability 

Telecom treat the COT type cases referred to it by AUSTEL in conformity with Telecom’s original proposed arbitration procedure and where appropriate the upper limit of that procedure should be waived of the claimants in those cases 

Telecom in consultation with AUSTEL, develop by 1 May 1994

  • a standard of service against which Telecom’s  performance may be effectively measured 
  • a relevant service quality service test”

In the case of at least six of the Service Verification Tests conducted at the COT-cases businesses including my businesses, NO supervised testing of those service lines were carried out by anyone other than the defendants Telstra i.e. NO independent arbitration umpire was present when these tests used by Telstra as defence documents were in attendance when they were conducted.  As shown in my own report titled > [pageevidence/telstra39s-falsified-svt-report/|Telstra’s Falsified SVT Report], Telstra fabricated their Cape Bridgewater SVT arbitration testing.

Absent Justice - My Story


The  Summary of events page here describes how the Hon David Hawker MP, when he was my local, Liberal government minister, elected by his constituents, helped me to uncover exactly how bad the Telstra telephone system was, in our electorate of Wannon, even going to the extent of writing to me, commending me for the efforts I was making to improve the situation, not just so I could have a reliable telephone service, but so that ALL Telstra subscribers in the electorate of Wannon could have a proper, reliable service also.

Eventually, our joint investigations into Telstra’s corrupt practices uncovered, among other problems, the way that Australia had become the designated dumping-ground for inadequate Ericsson telephone equipment that other western nations were decommissioning from their telephone exchanges.  When we revealed to the government that Telstra was NOT decommissioning that faulty Ericsson equipment however but, instead, was actually still installing it here, in Australia, and then, when these facts were also revealed during the COT arbitrations, all support from the government instantly stopped (see Absent Justice Part (1). The government bureaucrats within Telstra, AUSTEL and ACMA then began to dig deep as they searched for ways to stop the COT Cases from proving their claims “… at all cost” (See see:- pages 36 and 38 Senate – Parliament of Australia).

Obviously, this left Mr Hawker with a serious dilemma.  Should he continue to help me to expose this fraud that has been perpetrated against both me and the rest of his constituents, a fraud that had now infiltrated the Australian legal system of arbitration, or should he follow the direction of the government in relation to the choices made by those in senior positions within Telstra? Sadly, Mr Hawker (and the Hon Dan Tehan MP, who eventually replaced Mr Hawker in Wannon) simply stopped supporting any of my claims or my requests to have those claims properly and transparently investigated. Even though over the years, Mr Tehan has now followed Mr Hawker and written many more letters to the Liberal National Party government, in support of my attempts to resolve these serious outstanding issues that I first raised with the government back in the mid-nineteen-nineties, (see 12 Alternative remedies pursued),  they have still not been resolved.

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

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

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

ABSENT JUSTICE HAS IT ALL.

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“…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

“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

“…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

“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