Transcripts from my two Melbourne Administrative Appeals Tribunal hearings(Respondents - ACMA) on 3 October 2oo8 (No Vzoo8/r836) and z=6 Miy zou(No ioro/+6a+) showthat I maintained that both of my Freedotnof l4fortna,tionFOI applications to the Australian Communications Media Authority (ACMA)

should 6e provided in the Public Interest and therefore free of charge all of therequestedinformation both Telstra andAUSTEL (nowACMA) withheld during mygovernment endorsed arbitration process. Both of these AAT hearings wereionsidered by Senior AAT Member Mr G D Friedman and it is now apparent that MrFriedman was not aware that the Government solicitors (AGS) and ACMA had based

their defence of my claims on totally inaccurate Department of CommunicationsInformation Technology and the Arts (DCITA) COT archival documents, includingthe sanitised, public AUSTEL COT report released in April 1994, none of whichincluded the true (and very adverse) findings that AUSTEL had originally reached inrelation to Telstra's dealings with Alan (see Open Letter File Nos 4 to 7).

On z6 July zoo8, during first AAT hearing (No Vzoo8/r836) I provided Mr G'!.Friedman, Senior AAT Member hearing my case a statutory declaration (which thenbecame a public document) see absent iustice.com / Falsification Report FileNo/ro (aLo attached at the end ofthis three page Linkedln documents) notes:

"On z6 August 2oo7, I rarote to Mr Tong Sho.u of the ACA (nouACMA). llie full letter, uhich tu:,o.s prepared on the aduice of aSenator, is attached to rny Sto:ternent of Facts o:nd. Contentions asExhibit (AS 278-b. I hooe not get receioed pennission to identifu theSenortor in relation to these tnolter:s but I ho:ae, hotoetser', prooidedthe Senator's nanne to tny legal aduisot c:nd. roillpass the name ontothe AAT at the appropriate tirne, in confidence. Thot q Senototuould c,ctually iuggest that I fonaard this quote to the Chainnon ofthe Australiai Cotrrrrnunico,tiorts Authority @CA) indicates just houconcented this particular Senator uaq in relation to the uay that aGouertunent Agencg, Iike the ACA (nou ACMA) didnot sddressTelstra's unlanoful behauiour during a Gouerntnent-endotsedarbitrction process that the Regulator hadfacilito,ted. The

follouing quote is takenfrorn rng lettet to Mr Sho:u:

"...We suggest that any Regttlotor antd or agent of theFederal/-Croton, toho possessed knouledge of the no,ture ofthese unlano{ul acts oind euents bg Telstra during the AUSTELfscilitated COT olrbitrorion procedure, and specifically-coneeoled

these octs bg not broailcastirtg to the opptopria:telano e4forcement agencies, uould be acting outside of the low,arnd uould be engaging in prinafacie o,buse of ofice, antdobstruction ofiustice.

In all th*e resptects, the lano is clear, irprohibits suchconduct."

z6 September zooS: In my correspondence to Ms Regina Perton, AdministrativeAppeals Tribunal I noted:

"I ann sure gou ote ot tare, the T?ade Practices Act directscornpornies to toithdrano faultg goods or sertsices itnrnediatelg uponbecornirlry aiutore of problems related to those good.s and/or seruicesand, ot the sanne tirne, to bring the problems to the notice of theitcustonters ond the Austroliorn public in g eneral. If theg do notfolloro these directions theg ane in breach ofthe T?ade PracticesAct.

ACMA lcnonrs that, on at least trlto occosiotts, Telstro used theregulator to 'r'ubber stannp' tltoo technical reltorts that Telstra kneuuire rnore than justflolul,ed but uhich toere then prouided to theanbitrator during my arbitro:tion. ACMA has not published theirknouledge of this ma,tten

On t6th October tgg5 the regulator alloued. Telstra to address one ofthe billirtg issues.;E om my arbitration, outside the legal arena of rngorrbitra;rton. Since tny anbitrotion uas a priuate tnottel" betueenTelstra arnd rne. the regulator did not haue the authority to allouarrbitrrrtion tno:tter:s tobe addressed in such a confidentioJ uag,outside the clrbitro;tiorr- process' thus disallotoing rne mg legal rightunder the Comrnercio,l Arbitro,tion Act 7 g I 4, to challeng e the falsei4fonnation that Telstra kneu u as false ond misleoding ". (AS rroZ)

On 3 October zoo8, Mr G.D. Friedman, Senior AAT Member hearing my case (NoVzoo8/r886) noted:

"Let nte just sag, I don't cottsider gou, personallg, to befriuolous oruercfious - far frotn it. Yes. I suppose all thtfi r.ernoinsfor rne tosag, Mr Smith, is that gou obuiouslg o:r.e uery tenacious o;ndpirsistent inpursuing the - not this mo,tter before me,-but theuhole- the uhole qiestion of what gou see as a grol)e injustice, o:nd I 9anonlg appktid people toho houe persistence and the detertnino,rton tosee things through uhen theg belieue it's irnpottant enough".

During my second AAT hearing GI92AIOI4@d on z6 May zon, Mr G.D. Friedman,Senior AAT Member noted:

"Mr Srnith still belieues that there are moirty urn,a nstoeredquestions bg the regulatory authorities or bg Tebtra,t-hat herrrishes to pursue antd. he belieues these documents uill shotothot his uihorppiness roith the uay he has been treatedpersonallg also uillfloro to other o:reas such as it utill expose'the practices by Telstra and regulatorg bodies uhich qffectsnot onlg hiln but other people throughout Austrclia,

Mr Srnith said todag thaf he had concerns about the equiprnentused. in cabling d.one at Cape Bridgewater bolck in the tggos. IIesaid that it s hould - the equiprnent or sorne of the equiptnentshould horue a life ofup to 40 Aeoirs but, infact, because of the

terrain c:nd the toet surfaces o:n,d othel. things doun there theu)rlortg equiptnent l,l.:,o.s ttsed".

During this second AAT hearing in May zorr I again raised the telephone problemsthat had affected my business from before my arbitration in 1993 to 1995, stressingthat the arbitrator had failed to investigate or address most of those problems, whichtherefore allowed them to continue for a further eleven years after the end ofthearbitration. Since that second AAT hearing, and as a result of Australia's NationalBroadband Network (NBN) rollout, which began in mid-zorr and is still continuingin zor5, numerous faults, just like those that I raised during my arbitration and bothmy AAT Hearings in zoo8 and zorr, have been proved; this can be confirmed by asimple Internet search for "Australia NBN".

STATUTORY DECLARATIONVICTORIA

I, Alan Smith of Cape Bridgewater in the State of Victori4

do hereby solernnly and sincerely declare that: On 21a March 1995, at a Senate Committee

Hearing into the Tllecommunications (lnterception) Amendment Bill 1994. in Padiament House,

Canbeiq I lnt.oau"ed a nu.Gr of documents, including two pages from a transcript ofan

interview conducted by the Australian Federal Policeon 26s September 1994. These two pages

are attached to my Administrative Appeals Tribunal Statement ofFacts and Contentions as

Erhibit (As 332).

Shortly before this Senate Commiflee Hearing I had discussions with AUSTEL'S Cliff Mathieson

regarding flaws I had discovered in t}l€ Bell Canada lnternational (BCI) 'CaDe Bridqqy/-atgr .

(Aldend-um)' Report. During this discussion, Mr Mathieson informed me that AUSTEL had

i.itt.r, to f"trt-during the fireparation ofthe AUSTEL COT Report into the tests carried out by

BCI at both Cape Bridgiwatir and at the Glen Waters Fish Fa,,,, (Victoria). Mr Mathieson also

told me that none oftl; tests described in the 'cape Bridsewater (Addendum) ReDort' could

possibly have been conducted at either the times or on the dates included in the report' My

respon;e to Mr Mathieson was to confirm that nothing had changed and my business was still

plagued by phone problems. Mr Marhieson the r commented thar he understood my frustration

witf, the aibitration process but AUSTEL could not become involved, as these were matters for

the arbitrator and the arbitration consultants. Mr Mathieson appeared to be reluctant to broadcast

his knowledge that the BCI Cape Bridgewater tesls were flawed, even though he advised me that

AUSTEL w; fully aware that Telstra were using the known flawed BCI tests in the COT

arbitrations. This, together with other information in my statement of Facts and contentigns, is

further proof that AU-STEL deliberately hid their knowledge ofthe way Telstra had submitted, to

the arbiiration process, swom witness statements that Telstra knew were flawed.

It is particularty important to note cliffMathieson's comments that AUSTEL had written to

Telsira during ihe preparation ofthe AUSTEL COT Report, with particular regard to the BCI,Caoe Bridee-watei (Addendum) Reoort, but ACMA's FOI schedule of documents currently

,"der re"l"* by th" AAT d*. not include any mention of this contact in any file notes or letErs

exchanged between AUSTEL and Telstra. This is therefore yet another example of material that

could be sensitive for Telstra, but which ACMA say they cannot find.

On 26u August 200 I , I wrote Mr Tony Shaw of the ACA (now ACMA). The ful I letter, which

was prepadd on the advice of a senator, is attached to my statement of Facts and contentions as

rcxhiUit leSrr8-Uy. I have nor yet received permission !o identiry the Senator in relation to these

matters but I have, however, piovided the Senator's name to my legal advisor and will pass the

name on to the AAT at the atpropriate time, in confidence. That a Senaor would actually

suggest that I forward this quote to the Chairman ofthe Aushalian Communication Authority(ACA) indicates just how concemed this particular Senator was, in relation to the way that a

dovernment Agency, like the ACA (now ACMA) did not address Telstra's unlawful behaviour

during a Government-endoned arbitration proc€ss that the Regulator had facilitated' The

folloiing quote is taken from my letter to Mr Shaw: "...We suggest thet any Regulabrand or ag€,nt of the Fderal/Crown, who possessed knowlqge-ol the netwe ofth*e uilawfut acfs and everlts by Tdsta durtng he AUSIEL fadlttatad COT

CI

obstru ction of i usti ce.

tn ett these ,cslects, tfie ,aw is ctear, it Prohibib such conducl "

ng Telstra's abuse of the Australian

af,Palling mamer in which You hoeues' Yanr manuscript demonstrates

inge upon lhe civil liberties of Australian

accePtable. "

I can say though that, before these Senators offered th less

than haifthe material now provided as attachments to

Stat€ment of Facts and Contentions.

:

Hodges' report in May 2008, they have no1 yet notifid any relevant law enforcement agency

regaiding Telstra's ui of known flawed reports as defence documents'

I have prcpared this Statutory Declaration because it shows that' since ACMA has been prepared

io t ia"i"irt "'. ,nta*t t acs foi so many years, there is a strong possibility they are still

*iitliotOing ,etevant FOI documents t}lat might Prove to be derimental to either ACMA or

Telstra.

bc true in every Parriculsr,

this z,c, r day of tr r^u't

Before me

\,.\-*z:--{(Signalurc of petson before whom the d€€lEation is mad€)

S,tAra.f^-e<SLc -l -J +Rc!, .

(SiSnarurc of DcDlarant)

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And:

ADMINISTRATIVE APPEALS TRIBUNALGENERAL ADMINISTRATIVE DIVISIONMELBOT]RI\IE REGISTRY

Between

No 200E/1E36

ALAN SMITHApplicant

AUSTRALIAN COMMUNICATIONS ANDMEDIA AUTHORITY

Respondent

Alan SmithSeal Cove Guest House1703 Bridgewater Road

Portland 3305Victoria

26th July 2oo8

The Applicants Report Statement of Facts

and Contentions (i.e. written summary offacts and arguments the applicant releies

upon to support the view that the decision

under review is not correct.)

IIIIII

. Alon Smith - Statement ol Facts and Contenlions - Administrative Appeals fritryg! -

l"ironotogt of en"nt{ 2dh Juty 2008 Page I of 157

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Seal Cove Guest HouseI 703 Bridgewater Road

Cape Bridgewater, Portland 3305Phone: 03 55 267 170

26'h Juty 2008

Conference RegistrarAdministrative Appeals TribunalPO Box 9955, MelboumeVictoria 3001

Re: CONFERDNCEREGISTERLETTERDated: 2"d Juty 2008 Comolaint No: 2008/1835

Dear Sir or Madam,

The following attached documents support the applicant's evidence, and the documents uponwhich the applicant relies:

L Document tilled "Stalement ofFacts and Conlentions", referred to throughout as '7heChronologt of Evenls' or 'The Chronologt'. This is the written summary of the facts andarguments that the applicant relies on to support his view that the decision under review isnot correct, as per your point (ii). Please note that the applicant refers to himself in thethird person throughout this 'Chronology', i.e. as AIan Smith or Alan;

2. 339 exhibits, collated into three spiral-bound books, in support of the I 57-page Chronologyof Events (see point I , above), together with a CD of the same. The exhibits are labelled as(As r) ro (As 33e), with the 'AS' representing Alan Smith.

3. A document labelled as "Attachment Two ". This sixty-nine page draft report, dated 3'dMarch 1994, is titled "Re Alan Smith", wds prcpared by Bruce Matthews of AUSTEL (nowACMA) and is referred to on page 3 of this letter. It is enclosed here for your information.

4. A Statutory Declaration swom by the applicant.

The applicant's FOI issues are not the only matters that are currently ofconcem. Theinformation recently provided, both to the AAT and ACMA, proves that the applicant has been avictim ofa crime perp€trated by a Govemment-owned corporation during a Covernment-facilitated and endorsed arbitration procedure that was expected to provide justicr but, instead,provided the exact reverse. Because some of the applicant's FOI issues are linked to thesecrimes; because those crimes were committed by a Govemment-owned corporation; and sinceboth the AAT and ACMA are also Federal Govemment agencies, the applicant believes thatperhaps his present AAT and ACMA FOI issues should be put on hold until the information inthe applicant's Statement of Facts and Contentions and Argument (the Chronology) has beenproperly and fully investigated by an appropriate State law enforcement agency.

ln the applicant's Statement of Facts and Contentions, he has proved the existence ofthe Tclstra-related FOI documents that are not included in the list of FOI documents that ACMA say theyhave retrieved in relation to the matters under review. It is important to note that, in response toprevious FOI requests, ACMA have noted that: "Some Out not all) ofthese documents mayconlain inlormation about business afairs ofa third party ACMA is required to consult the lhirdparty about lhese documents before releasing them under the FOI Act. " The applicanaunderstands that this is a normal position for any Govemment agency to take when assessing the

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validity of any Fol request, and he is aware that ACMA would therefore have had to seekbefore they could release some of the FOI documents the applicant hasmaterial included in the request of2l"tMay, and the FOI issue currently, will prove to be quite damaging for Telstra, and this raises questions of

justice if ACMA has to approach relstra for permission to pass on to the applican! co'pies ofdocuments proving that Telstra perverted the course ofjustice during the applicanfs aibitration.What sort ofjustice is that? It is tantamounl to asking the criminalsio invistigate themselves! Itwould therefore be inappropriate for ACMA to ask relsra for permission to provide documentsthat prove that Telstra committed crimes.

ln mid- 1998, John Wynack, Director of Investigations, Commonwealth Ombudsman's OfIice,provided to an ln-camera Senate Estimates Committee Hearing into cor claimants, Fol issues,a scathing report in relation to Telstra. This report is not available for public comment but couldpossibly be,accessed by the AAT. A number of other statements fiom this In-camera Hearing(made on 6" and 9th July 1998) are however included in the applicant's Statement ofFacts anlContentions - which also describes how a Coalition Minister has twice threatened the applicantwith the possibility ofajail sentence, ifthe applicant publicly releases these In-camera ijansarddocuments, even though rhey only relate to the cor claimants' FoI issues. These two In-cameraHansard reports would be most useful for the AAT and, if the AAT were to ask the applicant,under confidentiality rules, to provide them, they would help to show, more clearly, how the Folmatters Presently under review are linked to Telstra's previous decisions to withhold documentsfrom AUSTEL (now ACMA).

ln the applicants statement of Facts and contentions, he has provided information confirmingthat a number of Senators, during this same Senate Estimates committee Hearings (refer above),dammed Telstra for withholding COT related FOt documents from the Commonwealthombudsman officer assisting the senate Estimates committee investigations. The applicantsStatement of Facts and Contentions also provides evidence showing that Telstra waJwithholdinglechnical information from him at least up to october 199E, under Legal professional privilege(LPP). Some of this same LPP technical information Telstra had already provided AUSTEL iiFebruary/March 1994, see ("Attachment Two"), the same technical information that ACMA nowstate they cannot locate.

A,list provided by AUSTEL to some of the second group of COT claimans to go througharbitration includes three documents proving that the Tlo's special counsel (paer Bartlett),AUSTEL and relstra's Steve Black exchanged correspondence during June 1994 in relation toproviding material, free of charge, to the second group of COT claimants. The ACMA listprovided to the applicant in response to his FOI applicalion covering February to June 1994however, does not include any letters from Peter Bartlett or Steve Biaok, even though theapplicant's arbitration was under review between February and April 1994. Surely, sincearbitrations for the first group offour (which included the applicant) and the second group oftwelve cor claimants were all facilitated by AUSTEL, and Steve Black (Telstra) and peierBartlett (the Tlo's Special Counsel) were both involved in all the arbitrations, rhen AUSTELwould have rcceived similar correspondence from Steve Black and Peter Bartlett in rclation to theapplicant's arbitration - so why is none ofthis correspondence included in the ACMA Iistprovided to the applicant?

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A copy ofa letter dated 26s August I993, from Robin Davey, then-Chairman ofAUSTEL, to the

then-Communications Minister, the Hon David Beddall MP, is included in the applicant'sStatement of Facts and Contentions. as Exhibit 1ls ltgy. ln this letter, Mr Davey discusses thecontinuing phone complaints still being registered by the COT claimants. Mr Davey correctlynames allthe claimants except the applicant. Instead of using the applicant's name, Mr Daveyrefers only to 'Cape Bridgewater', where the applicant operated his business at the time, andnotes, on page 4, that, in reference to Cape Bridgewater: "Telecom has admitted existence ofunidentfiedfaults to AUSTEL." Between the reference on page 3 to Craham Schorer, the lastclaimant listed before the applicant, and this reference to Cape Bridgewater on page 4, a numberof paragraphs have been concealed. It would therefore seem that the applicant's name (which is

the only one not included in the letter) is probably included somewhere in these concealedparagraphs, suggesting that, when this document was provided to the applicant under FOI in2001, The Australian Communication Authority (now ACMA), concealed at least someimportant information pertaining to the applicant's claims.

The applicant maintains that, on 6ft and 76 April 1994, during a briefing regarding the drafting ofthe AUSTEL COT Report, the applicant and other claimants were not permitted to le€ve thebuilding without agreeing to strict confidentiality regulations and to being searched before theyleft. The applicant recalls that, during this briefing period, he saw, in a folder, a copy ofthe letterdated 26h August 1993 (see paragraph above); other documents related to his telephoneproblems; and Telstra documents admitting the existence of telecommunications problemsaffecting the Portland AXE exchange and the Cape Bridgewater RCM. The applicant remembers

clearly that some ofthese documents were dated February 1994, a period that is covered by theapplicant's relation to the FOI claim issue that is currentlyunder revie le not specifically included in the timeframecovered by the FOI claim under review, is however directly linked to that claim, demonstratinghow important it is for the AAT to read the applicant's entire Chronologt of Events document.

It is clear that NONE of the ongoing telecommunication problems and faults that (A) Telstra

agreed (in 1993) were then affecting the applicant's business, and that (B) AUSTEL included in

the draft report prepared by Bruce Matthews on 3d March 1994 (see Attachment Two at point 3on page l) were ever investigated or fixed during the applicant's arbitration. The applicantbelieves that, if Robin Davey (past{hairman of AUSTEL) was to leam of this present FOIsituation, he would insist that the applicant immediately be given all the documents he needs free

ofcharge to bring this appalling saga lo an end.

ln support ofthis evidence, the applicant can also provide to both the ATT and ACMA,numerous examples of:

r COT/Telstra-related Supreme Court documents that a lawyer faxed to a COT client at a

different address to his normal business address, as well as other, similar documents faxed in

the same way but to the client's normal address. Those faxed to the different address arrivedwith the lawyer's correct fax identification displayed across the top ofthe document, as

would be expected, but the same documents arriving at the client's normal address anivedwithout the lawyers identification in place.

e Documents faxed by the applicant that arrived with the applicant's correct fax identificationin place when faxed to one location but when the some document was faxed to AUSTEL(now ACMA) five minutes later, the applicant's fax identification was missing.

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This is why the applicant has requested, from ACMA, copies of documents he has faxed toACMA in the past.

Both the AAT and ACMA should find the applicant's information of particular interest because:

a. lt suggests that, at least between April 1994 and 2002, Telstra{OT-related documents,intended for and faxed to AUSTEL and the ACA, were intercepted and then redirected on tothe intended recipients and

b. Raises questions regarding whether or not ALL the intercepted material was actualforwarded on - which is why the applicant has raised this mafter now,

The applicant's Statement of Facts and Contentions provides other examples ofarbitration claimmaterial thal he faxed to the arbitrator but which did not always arrive atlhe arbitrator's officeand shows that Telstra acknowledge this problem in arbitration records.

This AUSTEL and ACMA fax interception issue is directly related to the presenr ACMA Folmatters under review because ACMA has now stated that some Telstra/COT related technicaldocuments that should be included in their list of located documents cannot be found. The AATand ACMA must therefore view the applicants Statement of Facts and Contentions in irs entirety.

Some ofthe documents provided to ACMA by the applicant are attached to the applicant,sStatement ofFacts and Contentions as proofthat (l) Telstra pewerted the course oljustice duringthe applicant's arbitration and (2) AUSTEL (now AcMA) misled the applicant's lawyers in 1995when the lawyers asked AusrEL about Telstra's use of flawed material in their defence of theapplicant's arbitration claims. These documents show why the applicont's Statement of Factsand contentions should be provided to an appropriate law enforcement agency before the processcan proceed any further.

In the applicant's Statement ofFacts and Contentions, the applicant has explained why, insupport of his contention that the decision under review is not correct, it has been necessary toprovide a list ofevents and facts dating back to 19E8. His .Chronology, shows that the FOImatters presently under review are directly linked to previous Fol requests and other documentissucs.

on pages 92 & 93 in the applioants statement of Facts and contentions, the applicant shows quiteclearly that on l6th october I 995, five months after his arbitration was deemed'completgAUSTFI (now ACMA) allowed Telstra, to address arbitration claim documents outside the legalarena of the arbihation procedure. This disallowed him his legal right to challenge Telstra undirthe ageed rules of arbitration. Attached as Exhibit 1as rlr; to the applicants Statiment of Factsand Contentions, is evidence Telstra used confidential arbitration materiat that should never havebeen released outside of the arbitration procedure. The swom witness statement provided toACMA' by Telstra on I6th october I993, which relstra originally used in their arbitrationdefence, has since been condemned by the victoria police Majoi Fraud Group as more thanjust abias document. This l6'h october 1995, issue shows that ACMA has an unhealthy relationstiipwith Telstra when it comes to COT related document issues.

l1 is blatanrly clear from the applicants statement of Facts and contentions that he provides astrong argument in support ofhis contention that some ofthe material that Telstra did not supply

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to AUSTEL (now ACMA) in 1994, during the AUSTEL investigations into the applicant'sprevious phone faults, are directly related to some of the documents that ACMA now mainlainthey cannot locate, even though the applicant has proved they do exist,

The applicant has named Graham Schorer, Director of Golden Messenger Service, as a witness in

support ofthe FOI matters under review.

SUMMARYThe applicant has provided (above) his argument regarding why he believes the AAT should callupon the appropriate State law enforcement agency or agencies before this matters can proceed

any further. The applicanr understands ho\uever that the AAT will have toread all the applicantsStatement of Facts and Contentions before such a decision can be made. The applicant thereforeleaves this matter in the hands ofthe Administrative Appeals Tribunal.

Sincerely,

Alan Smithcc Ms Allison Jermey, Senior Lawyer, ACMA P.O. Box | 3l 12 Law Courts Melboume 8010

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