Senate

PLEASE NOTE: Senate was created on 21 May 2015 and is a work in progress. Last edited September 2019. 

Chapter One

As the trailblazers the Australian Government, Government Communications Regulator (AUSTEL) and the Telecommunications Industry Ombudsman advised the four original Casualties of Telstra:  Graham Schorer, (COT Spokesperson), Ann Garms, Maureen Gillan and Alan Smith (myself) would, if we did push for a full Senate Estimates hearing into our claims, receive via AUSTEL a facilitated non-legalistic Fast Track Settlement Proposal.  Upon receiving this advice, we four COT cases collectively agreed not to continue this pursuit through the Senate (believing we would finally be treated in a fair and honest manner) – unaware that once we relented this push, we were destined to be crucified by the very government we were about to put our trust in!

An important note to the reader 

When I first started to put absentjustice.com together, back in January 2015, the main aim was to explain the story of the Casualties of Telstra (COT) group as clearly as possible, both from my own perspective and from the perspective of the other COT members too. We decided that it was also important for the public to know that none of us are looking for vengeance, even though we have all been damaged by our experiences with Telstra, even though we may have lost our businesses, even though the telephone problems that sent us to arbitration in the first place are, mostly, still occurring. As the website name indicates, we are just looking for justice. As part of our plan, and because we are all considerate people, we therefore decided to blank out (sometimes called ‘masking’) the names of those who, as part of our arbitration process with Telstra, had been prepared to be involved in numerous crimes that were committed against us. From the very beginning of our search for the justice that our arbitrations didn’t achieve we have left the door open for those people to explain their contributions to our dilemma, but not one of them has yet come forward; not one of them has even attempted to explain why they did what they did.

Telstra’s Corporate Secretary wrote to AUSTEL’s Chairman to him on 18 November 1993 (FOI document number R10799), pointing out that:

“only the COT four are to be commercially assessed by an assessor. For the sake of convenience I have enclosed an amended copy of the Fast Track Proposal which includes all amendments.

To facilitate its acceptance by all or any of the COT members I have signed it on behalf of the company. Please note that the offer of settlement by this means is open for acceptance until 5 pm Tuesday 23 November 1993 at which time it will lapse and be replaced by the arbitration process we expect to apply to all carriers following the Regulator’s  recommendations flowing from this and other reviews.”

On the 23 November, 1993 Graham Schorer (COT Spokesperson) Ann Garms, Maureen Gillan and I signed the FTSP, trusting in the Regulator’s verbal assurances that all of the ongoing telephone problems currently being investigated by AUSTEL and Telstra would be rectified / fixed and addressed by the assessor before his findings are handed down. The four signed FTSP agreements were forwarded to Telstra’s corporate secretary. I included a letter with his agreement, clearly putting my expectations of the process:

“In signing and returning this proposal to you I am relying on the assurances of …, Chairman of the Regulator, and …, General Manager of the Regulator’s Consumer Affairs Department, that this is a fair document. I was disappointed that … was unwilling to put his assurances in writing, but am nevertheless prepared to accept what he said.

I would not sign this agreement if I thought it prevented me from continuing my efforts to have a satisfactory service for my business. It is a clear understanding that nothing in this agreement prevents me from continuing to seek a satisfactory telephone service.”

The four COT members felt some sense of achievement, although Maureen’s health was beginning to fail. The rest of them tried to ring her as often as they could because she was not getting much support from her business partner, who often seemed a bit put out when they rang Maureen to ask how she was coping.

The pressure on all four of them had been immense, with TV and newspaper interviews as well as their continuing canvassing of the Senate. The stress was telling by now but I continued to hammer for a change in rural telephone services. The Hon David Hawker MP, Alan’s local Federal Member of Parliament had been corresponding with me since 26 July 1993.

“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”

and on 18 August 1993

“Further to your conversations with my electorate staff last week and today I am enclosing a copy of the correspondence I have received from Mr Harvey Parker, Group Managing Director of Commercial and Consumer division of Telecom.

I wrote to him outlining the problems of a number of Telecom customers in the Western Districts, including the extensive problems you have been experiencing”.

During the period between July and August 1993, I had been providing the Hon David Hawker MP, and the Hon Senator Richard Alston, Shadow Minister for Communications evidence including which proved that Telstra had been misleading and deceiving me regarding the handling of his telephone complaints.

Chapter Two

A 12 February 1997 letter from Telstra to John Wynack (director of investigations in the Commonwealth Ombudsman’s office) concerns my original 1994 request for arbitration FOI documents (which I have still not received to this day). This letter states:

“You comment that you believe Telstra ‘should have taken steps to protect documents covered by [Mr Smith’s] request whilst it consulted with Mr Smith in an attempt to scope down the FOI request’.

“It is the case that Telstra did indeed take such steps, as Telstra wished to retain all of the files created by Mr Black relating to the CoT claims. … As a result a large number of files (86 in all) were forwarded to the FOI Unit. Unfortunately, at the time the files in question were apparently not recognised as files relating to CoT matters, rather they were thought to be simply files of miscellaneous material.

“As you will see from the above these files were inadvertently disposed of.” (See Senate Evidence File No 7)

Mr Wynack wrote to Telstra, concerning my FOI issues, on 11 March 1997:

“On 7 March 1997 I sought information from three Telstra officers about one aspect of your response to that complaint viz the disposal of some of Mr Black’s papers after Mr Black left the employ of Telstra.” (See Senate Evidence File No 7)

A further letter from Mr Wynack on 13 March 1997 to Telstra, concerning my FOI issues, states:

“During the course of her interview, Ms Gill informed me that the papers dealing with Mr Black’s role in establishing the Fast Track Arbitration Procedure were on an ‘arbitration file’ and that that file is one that is missing. Ms Gill said that ‘.. I don’t recall having sent it to anybody and I don’t recall having put it in the bin..’. Ms Gill said that the ‘arbitration file’ was a manila folder ‘..but a fairly thick one.’ …

“On the basis of the information given to me by [Telstra] and Ms Gill, it is extremely improbable that Ms Gill disposed of the documents in the ‘arbitration file’, or indeed any other documents from Mr Black’s office which would have been included in Mr Smith’s FOI application of 18 October 1995.″ (See Senate Evidence File No 7)

Telstra has still not provided me with a copy of their ‘arbitration file’ despite Mr Wynack’s letters referring to it.

The fourth 14 March 1997 letter from Mr Wynack to Telstra states:

“I refer to my letter of 13 March 1997 concerning the complaint by Mr Alan Smith alleging that Telstra unreasonably has delayed providing documents requested under the FOI application of 18 October 1995.

“I should be grateful if you would notify [Telstra employee], Mr Kearny and Ms Gill of my opinion that ‘On the basis of the information given to me by [Telstra employee] and Ms Gill, it is extremely improbable that Ms Gill disposed of the documents in the ‘arbitration file’ or indeed any other documents from Mr Black’s office which would have been included in Mr Smith’s FOI application…’ ” (See Senate Evidence File No/59)

Senate Hansard dated 24 June 1997, pages 76-77, show Senators Kim Carr and Schacht discussing my still outstanding arbitration matters, including:

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 this is a useful thing to keep in a file that maybe at some stage can be used against him.” … . . . .

Senator CARR – “Mr 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?” (See Senate Evidence File No 2A & 2B)

PLEASE NOTE. Re the newspaper clipping and charges against me: No punches were thrown by me during this altercation with the sheriff who was about to remove catering equipment that I needed, to keep trading, from my property. I actually placed this man in a ‘full nelson’ and walked him out of my office. The Magistrates’ Court dropped all charges on appeal, when it became obvious there were two sides to this story.

Starting on page 5163, this link SENATE official Hansard – Parliament of Australia, dated 25 of June 1997, shows Telstra employees rorted millions upon millions of dollars from Telstra shareholders: i.e., the government and Australian citizens, who then owned Telstra. The pressure Senators Alston and Boswell applied, for a Senate investigation into the Casualties of Telstra (COT cases) phone fiascos, was one of the reasons Telstra agreed to settle the COT cases’ issues in a proposed Fast Track Settlement Proposal signed by Telstra and the four claimants in the third week of November 1993. Telstra, it seemed, could not afford a further investigation into its operation: NSW was not the only state where this rorting, and others, was taking place. Many people made threats against the COT cases because our persistence, in order to gain fully functional phone systems, was about to expose other unethical behaviour at Telstra, including at management level. The fact that both the Telstra CEO and board knew millions upon millions of dollars (again, see 5163 of SENATE official Hansard) were being unlawfully siphoned from the government coffers is unbelievable. In fact, figures running into the billions have also been quoted.

Furthermore, although it is astonishing, page 5163 of > SENATE Official Hansard – Parliament of Australia shows that, even before COT members and a number of senators applied pressure, both Telstra’s CEO and all the members of the Telstra board had already known, for some time, about the millions of dollars that Telstra was unlawfully withdrawing from government coffers. Perhaps even more unbelievable is that the COT cases received no recognition, from either the government or Telstra, for our stand for honesty and truth; instead, we have been treated in the worst possible way, labelled as vexatious litigants and our lives have been ruined, simply because we believed that what we were doing would eventually benefit all Australians.

COT members pleaded with the Telecommunication Industry Ombudsman (TIO) not to force us into arbitration with Telstra whilst Telstra was under investigation by the Australian Federal Police for unauthorised interception of COT cases’ telephone conversations – this was undemocratic. The TIO ignored our concerns. What we did not know, was that the TIO and arbitrator had secretly agreed with Telstra to use their drafted arbitration agreement and NOT the independent agreement the government was assured would be used to assess our matters. Even worse, although the arbitrator wrote to the TIO, advising him the arbitration agreement was not credible to use in the arbitrations, it was still used. This letter from the arbitrator was then concealed from the claimants during their designated appeal processes, regardless of its value.

Even before the arbitrator brought down his first deliberation, both he and the TIO were warned, on 18 April 1995, that there were “forces at work” derailing the arbitrations. They both ignored this written advice. This letter to the TIO, from the arbitration project manager, was also concealed from the claimants during the same designated appeal process.

Both Telstra’s 14 April 1994 letter, to the Australian Federal Police (AFP), that admits at least one Telstra employee was intercepting my telephone conversations, and my 9 September 1994 response, concerning this unauthorised interception over an extended period, are now stamped “Protected AFP” material. The SENATE official Hansard clearly refers to Telstra’s conduct, stand-over tactics and threats towards the COT cases. The Senate Hansard, AFP transcripts (of conversations with me concerning these threats) and the Commonwealth Ombudsman’s records, all confirm Telstra carried out those threats against; yet neither the arbitrator nor the TIO addressed this during my arbitration. Why has no one ever addressed this unethical conduct publicly? Why is there no record, in the arbitrator’s award, exposing these threats? Why was Telstra allowed to make these threats and commit similar unlawful acts against the COT cases during their arbitrations? Neither the TIO nor arbitrator came to my aid or demanded answers to why a corporation can take control over arbitrations in a government-endorsed process. This has been the hardest thing for the COT cases to accept, after having given so much to the people of Australia.

 Melbourne lawyers, Michael Brereton & Co, sent this 20 August 1997 letter to Senator Ron Boswell, detailing how the process had failed me:

“The conduct of the arbitration which followed was highly dubious and open to attack as inviting questions of bias since the arbitrator ruled out many relevant documents to the detriment of Mr Smith’s claim… All of these circumstances and the fact that the entire arbitration was conducted in a highly legalistic manner much in favour of Telstra on rules it forced into place suggest that Mr Smith was less than fairly dealt with by Telstra and the arbitrator.” (See Senate Evidence File No/58)

Senator Ron Boswell’s son Steven immediately suggested that this letter clearly supported COT cases’ claims against the conduct of the arbitration process. I was, by then, included as one of the group that the Senate estimates committee working party was going to investigate. At this stage, however, in August/September 1997, the Senate working party had not yet divided the 21 COT claimants into two groups, the A (or ‘litmus’) group and the B group.

Again, on 4 October 1997, My Wynack writes to Telstra stating:

“I refer to my letter to Telstra dated 13 March 1997 (copy attached for your convenience) in which I asked you to inform me of the specific file which Ms Gill described as the ‘arbitration file’, and whether Telstraasked [sic] Mr Black whether he has any knowledge of the whereabouts of the file.

“I have no record of receiving a response to my inquiries. Please inform me when I might expect a reply.” (See Senate Evidence File No 7)

I’m still waiting for a copy of this ‘arbitration file’, despite discussing it with Senator Ron Boswell on 20 August 1997 and despite Graham Schorer and I being told it would be provided to us once the Senate estimates committee started their FOI investigations.

On 23 October 1997, the office of Senator Schacht, Shadow Minister for Communications, faxed Senator Ron Boswell the proposed terms of reference of the Senate working party for their investigation into the COT arbitration FOI issues. This document shows 23 COT-type complainants, protesting about Telstra’s lack of cooperation in providing FOI documents, were arbitrarily divided into two groups: Schedule A and B (see Arbitrator File No 67 Senate). Five members of the A group went on to become the ‘litmus test’ cases. The 16 members of the B group were advised that, if the A group’s claims were successful, then any decisions and remedies that followed would equally apply to the members of group B. For reasons never explained, I was not included on the A list; Garry Dawson, from Melbourne, took that position instead, even though it eventuated that he did not actually take part in the investigation. In all, two COT cases did not have the energy to keep going and pulled out of the investigation.

A number of senators, Graham Schorer (COT spokesperson, and on the A list) and the Commonwealth Ombudsman’s Office were all told that, if the five on the A list proved their cases, then the remaining 16 would be treated the same. A litmus test is often used, for the sake of expediency, when there are many people affected by the same circumstances.

However, although the investigation into the litmus cases was initially intended to be completed quickly, the investigations ended up taking 20 months to complete and the remaining 16 were denied access to the remedies that were provided to the first five cases. The 15 other Schedule B COT claimants and I have never been given the chance to access the same relevant documents that the five test cases were provided, even though all our names were on the Senate estimates committee Terms of Reference schedule. The Coalition Government limited the investigation into Telstra’s conduct during the processing of the outstanding COT FOI issues to the first five litmus test cases.

If I had been included in the Schedule A list of COT cases in 1997, I would have asked the Senate working party to access a copy of Telstra’s arbitration file (see above) from the TIO or Telstra. With this file in hand, it would be just about impossible for Telstra to convince the senators that Telstra had destroyed their own major arbitration file. If I had been able to show the Senate estimates working party that the TIO’s special counsel, the arbitrator and Telstra were all involved in concealing the covert alterations to my arbitration agreement, following investigations would have also uncovered that the arbitrator continued to use the altered version of the agreement after he declared it was not a credible agreement. Those two issues (the covert alterations and the arbitrator branding the agreement as not credible) would have been enough for the Senate estimates committee to demand explanations for that unconscionable conduct. Surely no Australian senator would condone an arbitrator’s use of an agreement he knew was not credible? The arbitrator’s letter stating this was hidden from the Senate to prevent the TIO office falling into disrepute.

Questions on Notice (1)

Although we address this 24 October 1997 letter from the TIO to Ms Pauline Moore, (secretary to the Senate Environment, Recreation, Communications and the Arts legislation committee) elsewhere on absentjustice.com, we can link in another sinister set of ill deeds committed against the COT claimants. This letter, stamped CONFIDENTIAL, includes 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 be published. …

“9.      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. …

“10.    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.” (See Senate Evidence File No 14)

The TIO’s insistence 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 misrepresentation of the truth – to hide the fact that it was Telstra’s arbitration agreement that was used to protect Telstra, to the detriment of the claimants.

Graham Schorer, as COT spokesperson, first asked for a copy of the Fast Track Proposed Rules of Arbitration some time before 17 February 1994, so the decision that it would be kept from the claimants was made at least a full two months before we signed the final version of the arbitration agreement. It was therefore entirely “relevant to their arbitration”. The COT claimants were legally entitled to know whether the arbitration agreement was drafted independently or if the defence crafted it, in their favour.

The claimants should have been provided with that original version of the agreement before we signed for arbitration; it should have also been provided during the arbitrations and the arbitration appeal periods. At an official arbitration meeting on 17 February 1994, Mr Schorer said 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 (see Senate Evidence File No/48 ) 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”. Documents (see Senate Evidence File No 6 and File No/49) confirm the arbitrator was provided with (and read) a document called “Telstra Corporation Limited – ‘Fast Track’ Proposed Rules of Arbitration” sometime before 18 January 1994, a whole month before this pre-arbitration hearing on 17 February 1994.

Telstra’s Fast Track Proposed Rules of Arbitration, which the TIO was still refusing to supply us in October 1997, was the same arbitration file that John Wynack, director of investigations in the Commonwealth Ombudsman’s Office, was trying to access from Telstra on my behalf during 1995 to 1997 (discussed above). Powerful people amongst those administering the COT arbitrations wielded power within the establishment to conceal this very important pre-arbitration document.

How can the government who originally endorsed the first four arbitrations continue to ignore that we were entitled to receive Telstra’s rules of arbitration before we signed our arbitration agreement? Do not forget the TIO’s letter to me, dated 10 January 1996, stating “I do not propose to provide you with copies of any documents held by this office,” (see Senate Evidence File No/50) – echoing the responses that Graham Schorer and I had received since February 1994, from the previous TIO, when requesting copies of Telstra’s proposed rules of arbitration.

Questions on Notice (2)

There are further issues surrounding the TIO’s answers to similar Questions on Notice asked by the Senate committee. The TIO’s official response confirms that Ericsson purchased the arbitration main technical consultancy firm, Lane Telecommunications, during the COT arbitrations. All the technical information that I supplied to Lane Telecommunications during my arbitration, confirming the AXE Portland and Cape Bridgewater lockup problems were not just a local problem but a national and international problem, affecting hundreds of exchanges all over the world, was acquired by Ericsson.

At least three other COT claimants also had businesses connected to Ericsson AXE exchanges and their claim material, too, was on Lane’s computer data files when the company was sold.

Australia must be the only country in the Western world that allows a witness (Lane Telecommunications was a witness to what the COT claimants had uncovered) to be purchased during a major litigation process, particularly when even the administrator advised the Senate committee of this, on 26 September 1997 (see Senate Evidence File No/61).

I believe the Australian government have to answer these questions: How long was Lane Telecommuncations in contact with Ericsson, the major supplier of telecommunication equipment to Telstra, before Ericsson purchased Lanes? Is there a link between Lanes and DMR ignoring my Ericsson AXE claim documents and the purchase of Lanes by Ericsson during the COT arbitration process?

In Camera Hansard

Ms Sue Owen, the solicitor assisting the four litmus COT claimants who registered their complaints with the police, met with me after seeing one of the reports I originally prepared for my arbitration. This particular report examines the Telstra-commissioned Bell Canada International Inc. (BCI) tests of the Cape Bridgewater network. Telstra submitted, and the arbitrator accepted, BCI’s official report – although the tests their report claimed they conducted were impossible.

After seeing some of the information I had uncovered, the Victorian Police Major Fraud Group asked me to meet with them at the police complex in St Kilda Road, Melbourne. This led to me spending a number of weeks going through documents and writing more reports.

During that process, at least one high-ranking police officer thought it was ironic that I was helping four people who, between them, had already collected some $15 million in compensation from Telstra, while I – left off the Senate’s Schedule A list of claims to be investigated – received nothing. The truth was that, by then, I was stone broke and hooked up to two mortgages while I helped these four COTs with their fraud case against Telstra.

When the fraud group’s investigation fell through, I was called again into their offices, this time to meet with two very senior detectives.

The Major Fraud Group were to courier my four storage boxes of evidence back to my residence. The two senior officers, however, wanted to make sure I personally took a half-size, cut down, A4 storage box of documents and, although I said I was happy to pack the information into one of the four storage boxes, they were adamant that I should take this small parcel with me. They wished me well and apologised to me for the way in which the Victorian Police Major Fraud Group had abruptly concluded their investigations without handing down a finding.

When I arrived back at Graham Schorer’s office and opened the box, we found a number of documents we had never seen before, including the in-camera Senate Hansard records of 6 and 9 July 1998.

Did the Major Fraud Group think it was undemocratic for the Australian government to help 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 I given these documents to help me achieve justice for the remaining COTs, who had been forgotten by the government?

Of course, I doubt the Victoria Police Major Fraud Group would have expected the Senate to threaten me, for more than three years, with jail time if I release those Hansard records.

On 23 March 1999, the Australian Financial Review reported on the conclusion of the Senate estimates committee hearing into why Telstra withheld so many documents from the COT cases:

“A Senate working party delivered a damning 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.”

As chairman of the Senate estimates COT committee, Senator Alan Eggleston’s statement that “The report found Telstra had deliberately withheld important network documents…” is clear. The TIO board and council also hid two important issues from the Senate estimates committee:

• The board and council knew the TIO-appointed resource unit ALSO stopped the COT claimants receiving relevant documents during the arbitration process; and
• The TIO and the defendants (Telstra) allowed this to happen by secretly placing the resource unit in charge of deciding which documents they thought were relevant for the arbitrator to view and which should be withheld from the arbitration process. The various links on absentjustice.com show this is 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.

Supreme Court of Victoria

Neil Jepson (barrister for the Major Fraud Group) suggested I inform the chairman of the Senate estimates committee that I had proof that Telstra had deliberately provided false Bell Canada International Inc. Cape Bridgewater information to Pauline Moore, secretary of the Senate Environment, Recreation, Communications and the Arts legislation committee.

On 18 August 2001, Senator Alan Eggleston wrote to me, noting:

“I am very concerned with your statement in the 6 August letter that you are in possession of two in-camera Official Committee Hansards, relating to this issue, dated 6 and 9 July 1998. Furthermore, that you intend sending these confidential Hansards to Mr Brian Pickard, Ms Sandra Wolfe’s solicitor.

“I wish to remind you that evidence or documents taken in camera or submitted on a confidential or restricted basis cannot be disclosed to another person, unless by order of the Senate. This does not occur often, although the Senate, on 30 August 2000, did authorise the release of the Hansards of 6 and 9 July 1998 to the Victoria Police Major Fraud Group to assist in their investigations.

“The fact that you have received unauthorised confidential committee documents is a serious matter, but if you disclose these documents to another person, you may be held in contempt of the Senate. I would remind you that section 13 of the Parliamentary Privileges Act 1987 provides for penalties in relation to these matters.” (See Senate Evidence File No 12)

While I have never released these two Hansards, in broad terms they cover two important issues.

• First, they prove beyond all doubt that one senator announced that it would be an injustice to the remaining COTs if Telstra paid compensation to only those currently under investigation but not the others. However, Telstra was allowed to compensate only those five litmus test cases.
• Secondly, in October 1997, when Telstra provided the Cape Bridgewater/Bell Canada International Inc. (BCI) report in response to questions raised by the Senate, on notice, Telstra already knew it was false but still no one has ever brought Telstra to account for that decision, even though their actions were in contempt of the Senate.

Chapter Three

Senator Len Harris, who won his senate seat on 2 July 1999 for the One Nation party, then lived in Queensland, 2,977 kilometres from Melbourne. On 25 July 2002, Senator Len Harris travelled from Cairns in Queensland (a trip that took more than seven hours) to meet four other COTs and me, in Melbourne, in an attempt to ensure our claims of discrimination against the Commonwealth were fully investigated. He was appalled that 16 Australian citizens were so badly discriminated against in such a deplorable fashion by the then-Coalition government, despite a Senate estimates committee working party being established to investigate all 21 COT-type claims against Telstra.

He was stunned at how I had collated this evidence into a bound submission. When Senator Harris read the 9 August 2001 letter from Senator Alan Eggleston Liberal Party warning me that if I disclosed the in-camera Hansard records (which supported my claims that sixteen Australian citizens had been discriminated against in the most deplorable manner) I would be held in contempt of the Senate and risk jail, he Senator Harris, was very upset to say the least.

At a press conference the next day, Senator Harris aimed questions at the chief of staff to the Hon Senator Richard Alston, Minister for Communications. 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 clear 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? (See Senate Evidence File No 56 ).

Senator Len Harris is possibly one of the finest men I have ever had the pleasure of meeting, a true man that believes in justice for all, not just those with political clout. The senator could not understand how, despite various senators from both houses of parliament openly condemning Telstra’s unethical conduct towards those five litmus test COT claimants during their arbitrations and the Senate investigation itself, the other 16 were left to their own devices. The in-camera Senate Hansard records indicate that no one seemed to grasp the importance of Senator Schacht’s advice to the committee that, if Telstra only provided compensation to the five litmus test cases and not the other 16, it would be an injustice because they had also suffered similarly at the hands of Telstra.

The Senate committee helped those five litmus test claimants gain access to documents previously withheld from them, as Senator Harris’ press release shows. These claimants, on top of receiving their long-awaited discovery documents, also received millions of dollars in compensation; not only as a result of their business losses but also because of the unethical conduct they suffered at the hands of Telstra. In 2015 however, the remaining claimants from the 16 on the B list (some have now died) are still waiting for the justice that was denied them.

Imagine how I felt, on 6 December 2004, when I received the second threat from Senator Alan Eggleston on top of the threats I received from Telstra, after I assisted the Australian Federal Police in their investigations into Telstra’s unlawful interception of my telephone conversations. All these threats are linked to the one single issue: the right of all citizens in a democracy to have access to documents classified as ‘discovery’, in any legal process.

The Major Fraud Group’s two senior officers were adamant that I take the small A4 storage box of documents with me after the police were pressured to close down their investigations. Perhaps, it had something to do with me being one of the 16 COTs who had still not received their documents, unlike the five litmus test cases who HAD received over 150,000 documents between them – documents that the TIO initially promised ALL of the COT cases they would receive if they signed the TIO arbitration agreement. That agreement appears to have been deliberately crafted by the defendants (Telstra) to include a limited period for the production of documents and the obtaining of further particulars. These were the same issues that the arbitrator confirmed had affected my arbitration (see Main Evidence File No 34).

Over the last 20 years I have had a number of conversations with people who were closely associated with my arbitration; it appears the person who held the position of TIO during my arbitration claimed his political career would be over, along with the careers of some others associated with my arbitration, if my arbitration evidence ever surfaced as part of a Senate estimates investigation. That TIO later became a very senior front-bench minister in the John Howard Liberal/Country Party Government.

So, is this only hearsay? Or could there be some truth to it, considering that the vacant position on the “A” list was never filled after Garry Dawson withdrew?

Author’s Note:

From 1993 through to 2008, the Hon David Hawker MP, Federal Member for Wannon (in South West Victoria), clearly knew just how badly corroded the existing copper wire was in telecommunication systems, particularly in his electorate, even while he was the Speaker in the House of Representatives. Mr Hawker was tireless in his attempts to ensure that his coalition colleagues in the Australian government saw the many documents that I had given to him over the years. Like me, most of the COTs wrote many letters to the Australian government, particularly between mid-1996 and 2002. We warned that to continue with the push to privatise the Telstra Corporation, while the copper wire network was in such bad shape, was almost criminal because the shareholders would be left with the bill to replace the ailing network in years to come. Senator Len Harris began to accumulate evidence from different sources, including at least three of the COTs, as his 14 November 2002 media release shows (see Senate Evidence File No 57). He tried, as an independent senator, to explain to the Minister for Communications that this information should be released into the public domain. No one seemed interested in listening to him, or the COTs. The privatisation went ahead, and the rest is history.

Now in 2018, Telstra shareholders are footing the bill and the NBN rollout is a disaster. On 21 January 2016, a Telstra shareholder told me that he was not informed that the Telstra network was in such a state, either in writing or at shareholders’ meetings, when he purchased his shares 10 years ago. The NBN rollout of 2014-2015 has revealed the copper wire network to be in a far worse state than the Telstra Corporation has ever acknowledged. How do Telstra’s shareholders feel about this non-disclosure by the government prior to the privitisation?

Many bureaucrats who commented on our fight for justice branded the members of COT as frivolous and vexatious litigants, but they missed a number of important facts. Firstly, most bureaucrats have never attempted to run a small business of any sort, particularly a business where the loss of four or five telephone calls a day is enough to completely destroy that business (especially if those lost calls continue to occur). The arbitrator handed down his findings based on Telstra’s claim, sworn to under oath, that the complaints raised during arbitration were fully rectified. This was not the case.

Those same bureaucrats also fail to understand that my ongoing telephone problems were not investigated or fixed, even though the Australian government promised me that ALL the problems would be fixed as part of the arbitration process.

One of the foundation four members Ann Garms on 14 July 2018 sadly past away We have farewelled Ann in our segment below (see In Memory of Ann).  Graham Schorer (COT Spokesperson) is ill and will no longer take part in assisting telling our story. Maureen Gillan appointed a power of attorney to handle her COT matters long ago which in August 2018, leaves me to take up the baton.

Chapter FOUR

In Memory of Ann Garms 

Please click onto the following link and view Ann’s own story of survival >The Ultimate Betrayal

Thank you Ann for being part of the COT group from August 1992, when the COT group first met with AUSTEL (then the Australian Communications Regulator), an organisation that, along with various Australian Senators was, back then, prepared to stand up for all Australians; they helped us pave the way for change. It is such a pity that those in power, who built their own platforms on what we four were able to uncover, did not see the problem through to the end, as Ann tried to do.

Back in 2005, when Ann was still a staunch member of the National Party of Queensland, a rookie National Party senator, Barnaby Joyce, won his Queensland seat from the One Nation Party. After having worked tirelessly to ensure that the Queensland National Party won that Senate seat, Ann then brokered a deal with the new senator, not just for herself, which would have been less oppressive for the Liberal National Coalition Party, but for 13 other COT cases as well. Ann arranged for us all to meet the new senator, along with his advisor. The agreed deal was that, if the government wanted Senator Joyce’s most crucial vote in the Senate for the full privatisation legislation of the Telstra Corporation, then the Minister for Communications, Information Technology and the Arts (Senator Helen Coonan) would have to agree to resolve all the still-unresolved COT/Telstra arbitration issues for all 14 members of COT. Senator Coonan and Senator Joyce formally agreed that this would go ahead and our claims would be reassessed under an independent commercial assessor as his letter to me dated 15 September 2005 (see following link > Senate Evidence File No 20)

“As you are aware, I met with a delegation of CoT representatives in Brisbane in July 2005. At this meeting I made an undertaking to assist the group in seeking Independent Commercial Loss Assessments relating to claims against Telstra.

As a result of my thorough review of the relevant Telstra sale legislation, I proposed a number of amendments which were delivered to Minister Coonan. In addition to my requests, I sought from the Minister closure of any compensatory commitments given by the Minister or Telstra and outstanding legal issues.

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

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

privatisation legislation.”(See Senate Evidence File No 20)

Once Senator Joyce had cast that crucial vote, however (the one vote that was hanging in the balance), and had, therefore, made history for the Telstra Corporation and the Liberal-National Coalition Government, Senator Coonan reneged on her promise with a decisive back-flip, as many of the letters collected on this website so clearly shows.  I strongly believe that, if Ann had met with those Senator’s on her own, and had brokered a deal just for her, rather than selflessly including the other thirteen cases, she would have been settled in 2005/2006.  Other parts of this story are now being added to our Senate page.

Before you continue to read on, try to place yourself – as many COT cases have tried to do over the past decade –in the shoes of the then-rookie Senator Barnaby Joyce. He believed the deal he made with coalition minister Senator Helen.

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 14 COTs who were interested in being involved. The Casualties of Telstra – chronology of events (see Arbitrator / Part One and Arbitrator / Part Two describes how, once the government secured Senator Joyce’s vote, 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.

Worse was to come, however. I received a copy of an email, dated 3 March 2006, sometime after the end of my April 2006 government-endorsed assessment process. This email was originally sent to a senior ex-government communications bureaucrat who was a government liaison officer for Telstra for his advice on how to go about assessing my 2006 claim (see Senate Evidence File No 18).

On 3 December 1997, before this executive moved to the position of Telstra’s government liaison officer, the principal advisor to Mr Costello (then Federal Treasurer), provided the executive  (as advisor to Senator Richard Alston, Minister for Communications) with damning evidence against Telstra and the unlawful way in which they were allowed to conduct their arbitration defence of the COT Cases claims.

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. This particular document has been raised in my recent letter to the Hon Mitch Fifield.

How could the 2006 DCITA independent assessment process of my claims remain independent if the ex-government bureaucrat was evaluating the claims against his new employer (Telstra), when my claims were against Telstra? (See Senate Evidence File No 19)

3 November 2006: Senator Helen Coonan wrote to David Hawker, Speaker in the House of Representatives, stating:

“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 Hon Senator Helen Coonan’s advice, I contacted Consumer Affairs Victoria (CAV) through an advisor, who also assisted me in preparing a claim to be provided to a barrister for the CAV. From October 2007 through to late-2008, this un-named advisor, a once very high-ranking Victorian police officer, had a number of discussions with this barrister, who then proceeded to assess our various claims.

The barrister appeared overjoyed that I was able to provide evidence of faxes leaving the Sir Owen Dixon Chambers (the legal hub of Melbourne) being intercepted before they finally reached their intended destination. The barrister was also thrilled to hear that neither the TIO, nor Telstra, ever returned to me the evidence I provided confirming faxes left the Crown casino complex arrived at my Cape Bridgewater business, even though they were not intended for me. Five years after the CAV came into possession of this evidence, it was returned to me in a state of disarray that seemed to me to indicate it had been investigated. Like the IAMA however, the CAV never provided a finding.

Following the Hon Senator Helen Coonan’s advice, I contacted all of the government agencies nominated by the senator, including the TIO’s office, and all declined to investigate my claims.

It became evident there was no one in Australia prepared to tackle Telstra regarding its unethical conduct, prior and during the COT arbitrations.

I received a letter, dated 17 May 2007, from Senator Coonan, stating:

“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 most appropriately dealt with through a Court process. Telstra is not prepared to undertake an alternate means of pursuing this matter. …

“I also appreciate the depth of feeling regarding the matter and suggest you consider whether court proceedings may be your ultimate option.” (See DCITA Evidence File 6)

Surely it was Senator Coonan’s responsibility, as the Minister for Communications, Information Technology and the Arts, to initiate an official enquiry into WHY, both during and after the COT arbitrations, Telstra continued to intercept in-confidence documents leaving my office (or residence), AND the offices of various senators AND the Commonwealth Ombudsman’s office? The Australian Federal Police were also reluctant to bring charges against Telstra during my 1994/1995 arbitration process. The Scandrett & Associates Pty Ltd report discusses this COT document fax-interception issue (see Open Letter File No/12 and File No/13).

A secondary fax machine, installed in Telstra’s network during the arbitration process, intercepted numerous in-confidence documents. This illegal interception of legal in-confidence documents should have been investigated during the arbitration processes, when these illegal acts were first discovered. Senator Coonan, writing to me on 17 May 2007 – 12 years after the AFP declined to help me, and suggesting I take Telstra to court in relation to the same issues, just provides even further evidence of the undemocratic and uncaring way in which the COT cases have been treated by their elected government ministers.

The collision we COT Cases have been forced to live with continues to the present day as the following segment shows.

In the attached letter (see Paul Fletcher and Dan Tehan Nov/Dec 2019) dated 9 November 2019 the Hon Paul Fletcher has advised my local member of parliament The Hon Dan Tehan (who proceeded the Hon David Hawker MP) that the DCITA assessment process was independently conducted in 2006, when the following statements below show it was not conducted independently. In fact, the DCITA assessors allowed Telstra the previous defendants in my 1994/95 arbitration to assess whether they had committed crimes against me during that arbitration process.

It is most important for the reader to understand that July 2005, nine years after I had sent this damning evidence to Paul Fletcher, I went with a number of other COT claimants to meet with Senator Barnaby Joyce at the Brisbane Polo Club function centre, and we provided the Senator with similar evidence. At the time, Senator Joyce was clearly distressed at what we had given him.

On 15 September 2005 I received a letter from Senator Joyce: it included a copy of a letter he had received from Senator Helen Coonan, the Minister for Communications at the time (see Open Letter File No/50-A to 50/C), advising him that, as part of the Telstra Privatisation Legislation, Senator Coonan had brokered a deal with Senator Joyce so that the Government would agree to independently assess my outstanding claims – if Senator Joyce would cast his crucial vote for the privatization of Telstra, which he did.

On 10 March 2006 the Hon David Hawker MP (still my Federal Member of Parliament and also the Speaker in the House of Representatives) wrote to me (see Open Letter File No/51-A to 51-G), noting that he had provided Senator Helen Coonan with copies of my letters (to him) on 23 and 27 February and 6 and 9 March 2006. On the same day, 10 March 2006, I replied to a letter I had received from Ms Liz Forman, the Acting General Manager of the Department of Communications, Information Technology and the Arts (DCITA), in Senator Helen Coonan’s office. In my letter I noted that:

“Although you have stated in your letter that “…the assessment process will not extend to an examination of whether the law was broken by Telstra…” I have been advised that it is mandatory, under Commonwealth law, for DCITA and the Minister to notify the Attorney General of any unlawful activities they may uncover during official department investigations” (see Open Letter File No/52-A to 52-G)

On 17 March 2006, just before I signed for the DCITA assessment process, I received a letter David Lever at DCITA stating:

“Thank you for your letter of 10 March 2006 to Ms Forman concerning the independent assessment process” and adding: “If the material you provide 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 matter to the relevant authority” (see Open Letter File No/53-A to 53-D).

I am entirely confident that, if the current government was to access their DCITA archives for the claim material I provided for the 2006 DCITA assessment process, they would find copies of the May 1999 letters that I originally provided to Ziggy Switkowski (Telstra’s CEO); David Hoare (Telstra’s Chair); and the Hon Tony Staley (the Chair of the TIO Council), confirming that Telstra knowingly submitted a false arbitration report to the arbitrator (see Home Page Part One File No/1) alleging that a ‘sticky beer substance’ had been found inside my telephone after it was taken away for testing during my arbitration. I am also equally confident that the two reports now available at Telstra’s Falsified BCI Report and Telstra’s Falsified SVT Report) are also in the DCITA archives. All three of those reports, which I provided to the DCITA, confirm, beyond all doubt, that Telstra and/or its employees did commit criminal offences in relation to my arbitration, but the DCITA assessment found Telstra and its employees did not commit any of the offences that all three of those reports show they did.

A comparison of the two letters available at Open letter File No 54-A to 54-F clearly shows that the two DCITA internal emails from Nikki Vajrabukka to David Lever both refer to my assessment claim and ask ex-DCITA staff member, David Quilty (who was a Telstra government liaison officer) to assist DCITA in the preparation of their findings regarding my DCITA claims against Telstra, a situation that would be just like asking a thief who had been caught in a stolen car if they should be charged for that offence.

It is not so amazing however to learn, first, that the eventual finding that Telstra had no case to answer and , second, that I lost my claim against Telstra not long after, David Quilty was promoted to a very senior executive position with the Telstra Corporation.

To be continued

Copyright © 2016 Alan Smith