AFP NBN raid documents to be kept confidential

Documents confiscated during AFP's NBN raids on Jason Clare in August will remain confidential and under parliamentary privilege, and will be returned to the former shadow communications minister.

The House of Representatives Committee of Privileges has recommended that the National Broadband Network (NBN) leaked documents seized from the offices of former Shadow Communications Minister Jason Clare during raids by the Australian Federal Police (AFP) will be kept confidential under parliamentary privilege, and returned to Clare.

The sealed documents, seized under warrant in August following the initial raids in May, are currently being held by the House of Representatives under Clare's claim of parliamentary privilege.

"In the committee's view, the terms of the search warrant are wide ranging and coincide with the nature of the Member for Blaxland's parliamentary responsibilities, including as shadow minister," the committee found [PDF].

"As the NBN falls within the subject matter responsibilities of the Communications portfolio, during the critical period defined in the search warrant, the Member for Blaxland had parliamentary responsibilities in relation to this subject in the usual course of his role as shadow minister for communications.

"In these circumstances, the committee considers that it is likely that the records of the member seized under the search warrant, which are specified as relating to the NBN, would relate to his parliamentary responsibilities.

"The committee recommends that the House rule to uphold the claim of parliamentary privilege ... and that the material held by the clerk of the House be returned to the Member for Blaxland."

The AFP's investigation into the leaked NBN documents was kicked off in December after NBN referred the matter to the federal police.

It culminated in the execution of two search warrants on the office of former Communications Minister and Senator Stephen Conroy and the home of a communications staffer for Clare, followed by further raids on Clare's office in Parliament in August.

The raids came in response to a number of leaks over the last year: In November, a leaked document revealed that Optus' hybrid fibre-coaxial network was "not fully fit for purpose", with 470,000 premises in the footprint needing to be overbuilt; and in December, a leak divulged that the cost to replace or repair the legacy copper network would amount to AU$641 million.

In February, a document alleged that the rollout was seriously delayed and costing more to connect each premises; in March, a document stated that NBN had conducted trials of fibre to the premises (FttP) with skinny fibre that had found FttP was no more expensive than fibre to the node (FttN); and in April, a leaked document alleged once again that 40 FttN areas were behind schedule.

The raids led to a political clash between the two major parties: Conroy argued that the raids were illegal, as NBN is not a Commonwealth officer and therefore cannot make referrals, and asked that NBN chair Ziggy Switkowski and Communications Minister Mitch Fifield resign over the matter.

The Department of Prime Minister and Cabinet (PM&C) also subsequently found that an opinion piece penned by Switkowsksi defending the AFP investigation was a breach of the caretaker conventions that dictate how government departments and businesses are to behave during an election.

Last week, however, Switkowski told Senate Estimates that he does not believe he breached caretaker conventions.

"I've never viewed this as advice about my breaching the caretaker convention. It was advice about how the caretaker convention might be interpreted in the light of my opinion piece," Switkowski said in response to a question from Senator Sam Dastyari on Friday.

"I don't believe I breached the caretaker convention.

"If there was a conflict, it was with the spirit of the caretaker convention. I understood that might be the case."

The NBN chair also revealed that the opinion piece went through NBN CEO Bill Morrow, the entirety of the NBN board, the Department of Communications, and PM&C before Switkowski had it published in the media.

Switkowski said he used the opinion piece as a vehicle for correcting "misinformation" being spread by media, which he said gave him "justification" to go ahead with publishing the piece despite advice not to from PM&C, despite Prime Minister Malcolm Turnbull previously claiming he had no knowledge of the raids before they occurred.

Switkowski's opinion piece stated that documents seized during the AFP raids had been stolen from NBN.

"When dozens of confidential company documents are stolen, this is theft," Switkowski wrote.

"The process is a form of political rumourtrage -- the circulation of misinformation to diminish an enterprise for political gain."

Updated at 5pm AEDT, November 28: The documents being returned under parliamentary privilege are only those claimed by Jason Clare from the August raids. Those held by the Senate clerk are still being looked at.

With AAP

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