Chapter 12 Summing up the years
There is something in me that won’t let me walk away, that won’t accept defeat. For several years after my ‘award’ was handed down, I continued to make my case against the issues in my arbitration that were never addressed by the arbitrator; in every case to no avail.
Over the same years, the COT members have sent updated information supporting our various claims to Warrick Smith, Richard Alston, Amanda Vanstone and other appropriate ministers, officials, politicians and senators. I have provided documented proof, again and again, that my arbitration was not carried out according to the principles of natural justice. In 2014, I briefed the Hon. Tony Abbott, Prime Minister, the Hon. Malcolm Turnbull, Minister for Communications.
I have twice gone to the Administrative Appeals Tribunal seeking documents I had been promised for my arbitration, with limited success.
Three times I have complained to the Institute of Arbitrators. The first I have already described in Chapter 9. Then in 2001 the Institute agreed to investigate fresh evidence. This was the time Mr Nosworthy informed me the arbitrator was not qualified in the course of my arbitration. Despite this, the Institute found there was no case to answer. Finally in July 2009, the Institute of Arbitrators Mediators Australia (IAMA), again agreed to investigate further fresh evidence. Among other items of evidence I submitted the words of the TIO at the Senate Estimates Committee, that the ‘process conducted entirely outside the ambit of the arbitration procedure.’
In October 2009, I sent the IAMA further evidence from forensic technical consultants attesting that someone with access to Telstra’s network had been screening and intercepting claim documents pertaining to at least four separate COT arbitrations. This material showed that for at least seven years after my arbitration was concluded someone was screening and intercepting faxed documents leaving my residence and my business before redirecting that information on to its intended destination. The arbitrator had officially agreed to address this issue of interception, but he did not. Under the terms of arbitration, he was legally bound to provide findings on all materials, but he made no reference to interception at all. This was clearly a matter for the IAMA. But their response when I proffered the supporting documentation was less than enthusiastic:
Presently, IAMA does not require this further documentation to be sent. However, the investigating persons will be notified of these documents and may request them at a later date …
No one has requested them.
I have had to ask myself, is it only me who sees the enormity of this interception of confidential, arbitration-related documents? Is it only me who is bothered about how many other Australian arbitration processes may be subject to this type of hacking, secretly and illegally screening documents before they arrive at their intended destination?
But I am not alone. One of the two forensic technical consultants attesting to the validity of their findings in that report, wrote to me on 17 December 2014:
I still stand by my statutory declaration that I was able to identify that the incoming faxes provided to me for review had at some stage been received by a secondary fax machine and then retransmitted, this was done by identifying the dual time stamps on the faxes.
The last I heard from the IAMA Ethics and Professional Affairs Committee was in 2014 . Despite their agreement to investigate, they refused to hand down any findings. I have asked them on many occasions and their refusal is implacable.
I went to the TIO to complain, but his response was brusque: ‘Your arbitration is over.’
One bright note did follow from the AFP investigation into the COT cases. Even though I was unable to benefit from their work, when the AFP reported to the Minister that COT claimants’ phone conversations had been intercepted, this led to amendments in the Telecommunications Interception Act in 1995, aimed at protecting users’ privacy.
So, it is true, my arbitration is over. Even so, I am still hopeful for justice from a system that promised to give it to us. Warrick Smith, when he was the TIO, exercised no duty of care for COT members, but appeared always to act in favour of Telstra, from the moment he forced the four original COT claimants to abandon the commercial assessment process for a costly and legalistic arbitration procedure presided over by an unqualified arbitrator.
We COT members feel we have been let down by every government office we have approached for help in the face of a stonewalling Telstra and an uncooperative TIO. It is as if we are too small fry. Our problems don’t matter. We may receive replies from the relevant minister or department, but there is no follow up, no teeth in them. Only the Commonwealth Ombudsman has consistently performed its role in accordance with the principles of what is lawful and just. Ministers when in Opposition are helpful, but once they are in government, we become non grata again.
When I look back over the years since my ‘award’ was handed down I recall many moments when I contemplated giving up the fight. But how could I when the ‘award’ left out, ignored or dismissed so much? When the terms of the ‘award’ were based on fabrications and lies as blatant and easily uncovered as saying tourism numbers in my region had dropped over the period of my claim, when all the statistics showed an increase. When the chairman of Austel promised us consequential losses would be included in any awards made, but this did not happen? How could I after all the financial loss involved in preparing my case, and the business I lost, so that I was forced to re-mortgage three times just to stay in the fight to bring these matters to the attention of the Australian public and the communications minister?
If Telstra had addressed the issues of lost faxes and eavesdropping, I would probably have accepted the award — indeed, if the arbitrator had addressed the issue of lost faxes and eavesdropping, I would probably have accepted, albeit reluctantly. If the arbitrator had addressed the incorrect charging I would have accepted. And if the arbitrator had raised the issue of Telstra using falsified and impracticable documents as part of their defence I would not have questioned his integrity. If he had been appropriately qualified, I would have had more grounds for confidence in him. As it is, on so many grounds outlined in this book, the arbitrator was far from impartial and therefore not an independent adjudicator in my arbitration. But on all of these issues my claims were effectively silenced — by being ignored.
Summary
Please note: the following exhibits (which we might have missed into the text of the chronology of events above) can be accessed by placing the cursor over the relevant number range in order to access that exhibit.
AS - CAV 1 to 47 - AS-CAV 48-A to 91 - AS-CAV 92 to 127 - AS-CAV 128 to 180 - AS-CAV 181 to 233 - AS-CAV 234 to 281 - AS-CAV 282 to 323 - AS-CAV 324-A to 420 - AS-CAV 421 to 469 - AS-CAV 470 to 486 - AS-CAV 488-A to 494-E AS-CAV 495 to 541 -AS-CAV 542 to 588 - AS-CAV 589 to 647 - AS-CAV 648 to 700 - CAV Exhibits 701 to 756 AS-CAV 765-A to 789 - AS-CAV 790 to 818 - AS-CAV 819 to 843 - AS-CAV-923 to 946 AS-CAV 1150 to 1169 - AS-CAV 1069 to 1102 - AS-CAV 1103 to 1132 AS-CAV-1002 to 1019 - AS-CAV-996 to 1001 GS-CAV 1 to 88 - GS-CAV 89 to 154-A - GS-CAV 155 to 215 - GS-CAV 216 to 257 - GS-CAV 258 to 323 - GS-CAV 410-A to 447 - GS-CAV 448 to 458 - GS-CAV 459 to 489 - GS-CAV 490 to 521 - GS-CAV 522 to 580 - GS-CAV 581 to 609
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