NBN raids by Australian Federal Police were illegal: Conroy

The AFP's raids on the offices of Conroy and a Labor communications staffer were illegal because the NBN is not a Commonwealth officer, Conroy has claimed after seeking legal advice.
Written by Corinne Reichert, Contributor

Senator Stephen Conroy has said that the raids conducted by the Australian Federal Police (AFP) over leaked National Broadband Network (NBN) documents were illegal, as NBN is not a Commonwealth officer and therefore cannot make referrals.

Speaking on ABC's Radio National Drive program on Tuesday night, Conroy called for an apology from Minister for Communications Mitch Fifield, and a resignation from NBN chairman Ziggy Switkowski.

"I've written to the Federal Police on Friday, asking them to end their ludicrous investigation into links from the NBN on the basis of legal advice that says NBN Co have incorrectly called the police in," Conroy said.

"They are not Commonwealth officers, and I'm seeking and demanding an end to the investigation and an apology from Ziggy Switkowski, an apology from Mitch Fifield who's overseen this, and Ziggy Switkowski resign over it."

Conroy added that he has written numerous letters to the AFP over the past six weeks, saying that information gathered through listening in on phone calls and going through emails should also be subject to parliamentary privilege along with the documents taken from his office during the raid.

"I've asked for that to be covered by parliamentary privilege, and I've asked for that to be given to the clerk. I've received no response whatsoever to that, and now I've written again to them, saying that NBN Co have illegally authorised them to conduct this investigation and their raid on my office is illegal," Conroy said.

Fifield, also speaking on the radio program, said no apology would be issued from the government, as the AFP is an independent organisation.

"I won't be apologising to Stephen," Fifield said.

"I didn't raid Stephen's office; the Australian Federal Police did. The referral from the NBN to the AFP was a matter for NBN, and the AFP determine what is and is not within their jurisdiction. I'm someone who has confidence in the integrity of the AFP. It's something that's been called into question by the Australian Labor Party.

"It's entirely a matter for the Australian Federal Police; they have national independence, and to question the AFP and their motives is to question the integrity of that organisation, which is something that Labor continues to do."

He added that NBN's referral was "perfectly entitled" and "very reasonable".

The investigation into the leaked NBN documents, which culminated in the execution of two search warrants in May on the office of Conroy and the home of one of Shadow Communications Minister Jason Clare's communications staffers, was kicked off in December after NBN referred the matter to the AFP.

Amid questions from Labor members over how much the government knew about the ongoing AFP investigation, Fifield admitted that he had knowledge of the investigation from the beginning, but said he did not tell any other ministers or Prime Minister Malcolm Turnbull.

Two NBN staffers were then suspended pending further investigation, after being enlisted by the AFP as a temporary "special constable" to assist in identifying allegedly leaked documents and subsequently taking 32 photos of secret documents during the raid.

It is understood that the AFP had instructed the NBN staffer to take the photos -- which are now sealed under a claim of parliamentary privilege until the Senate sits again after the result of the federal election is determined -- to send to other NBN employees.

In a letter to the AFP, Labor lawyer Paul Galbally said he had been advised that the photos of the documents were disseminated prior to the staffer being forced to delete them due to the privilege claim.

The photos were downloaded onto a USB and handed to the Senate clerk who holds the sealed documents, Galbally was advised. Since being deleted, the photos cannot be retrieved, according to Galbally's letter.

In June, Secretary of the Department of the Prime Minister and Cabinet Martin Parkinson then found an opinion piece by NBN chairman Switkowski defending the AFP investigation to have been a breach of the caretaker conventions that dictate how government departments and businesses are to behave during an election.

"When dozens of confidential company documents are stolen, this is theft. The process is a form of political rumourtrage -- the circulation of misinformation to diminish an enterprise for political gain," Switkowski wrote.

"One rationalisation has appeared that this theft is the action of whistleblowers. No, it is not."

In a letter sighted by ZDNet, Parkinson said that NBN had sought advice from the government on the column in question and was warned that it was "not consistent with the established practices" of the caretaker conventions.

"I understand from my inquiries that NBN provided an advance draft of the article to the Department of Communications and the Arts," Parkinson wrote.

"The Department of Communications and the Arts sought, and received, advice from the Department of the Prime Minister and Cabinet that the publication of the article in that form was not consistent with the established practices associated with the caretaker conventions.

"I understand that view was strongly conveyed to NBN by the Department of Communications and the Arts, as was the view that the conventions apply to the chairman, as well as to the CEO and the company. Our understanding is that this view was passed to Dr Switkowski."

Parkinson noted, however, that the conventions do not have legal force, with the Department of the Prime Minister and Cabinet unable to enforce compliance.

The raids followed a number of leaks over the preceding six months: In November, a leaked document revealed that Optus' HFC network is "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.

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