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Federal Police toss nbn™ under a bus over leaks to Senator

'Who leaked the leak? Not us', claim feds, 'talk to them'

By Richard Chirgwin, 28 Mar 2017

The Australian Senate's Committee of Privileges decided yesterday that documents seized from former Senator Stephen Conroy and a staffer last year are covered by parliamentary privilege, and can't be used in any police investigation into who leaked them.

The report was triggered by last year's raids of the offices of opposition MP Jason Clare, former opposition senator Stephen Conroy and the home of a Conroy staffer. Australia's opposition Labor Party (ALP) immediately claimed parliamentary privilege over the documents, which put the documents under the control of Parliament.

In the wake of the raids, nbn™, the organisation building Australia's national broadband network (NBN) keel-hauled a couple of staff it believed were Conroy's contacts.

Now the report, here, shows that during the inquiry into the 2016 raids, which happened during last year's election campaign, the Australian Federal Police (AFP) put a lot of room between itself and nbn™.

nbn™ staff were drafted into the raids as “constables assisting” to help the AFP decide whether it was trawling the right documents during the raids. Conroy believes their presence gave them inside information they used to punish the staff, something nbn™ denied in its submission to the inquiry.

The company claimed it was already investigating one of the staffers, and had identified the other as being able to access the leaked documents (but hadn't started an investigation).

The committee seems confident that nbn™'s action arose from information obtained in the raids, but its investigation didn't quite get to the bottom of who to blame.

During the raids, the report says, “certain emails were seen that appear to show that two nbn™ employees had been communicating with [Conroy's staffer] about matters pertaining to nbn™. The submission does not address who it was that saw the emails, nor how this information was communicated to NBN Co” (emphasis added).

Not quite contempt of parliament

That uncertainty, it seems, was the slim lifeline that saved nbn™ and the AFP.

The senate committee walked up to the edge of a cliff marked “contempt of parliament” and took a long, hard look over the edge before pulling back.

The report says the conduct of the raids raids “may have enabled information gleaned from this process to be communicated to, and used by, persons in a manner not authorised by the warrant.”

It doesn't recommend any action against nbn™, but it states that the company's action represented an “improper interference” in Conroy's role as a senator.

And the AFP? During the inquiry preceding this report, it tossed nbn™ under a bus: “The AFP submission disclaims involvement in any disciplinary or other adverse action” and assumes any findings should “be directed at NBN Co”.

Further: “The AFP can confirm that the AFP did not authorise the use of information from the warrant premises for any purpose other than the execution of the warrant”.

The senate isn't so quick to clear the AFP, saying the nbn™ staffers acting as “constables assisting” were “acting under the direction of AFP officers and may not, themselves, have appreciated the strictures which ought to have applied”.

The Register notes that the committee's recommendations – including that the Senate not find the AFP or nbn™ in contempt – could still be overturned by a vote in the Senate.

nbn™ remains unbowed by this report, as it has been throughout the investigation.

In spite of the committee clearly upholding peoples' right to take information to parliamentarians (“the protection of members' sources and the possible chilling effect”, the report says) nbn™ told the Australian Broadcasting Corporation (ABC) it “will continue to take a zero tolerance approach” to whistleblowing.

Conroy is predictably pleased with the outcome, telling the ABC “The Parliament has drawn a line in the sand and said you can't use police to intimidate whistleblowers from giving information to politicians. I think that's an incredibly important principle.”

“The whole purpose of this was to send a chill through the staff,” Conroy told ABC Radio this morning.

The Register notes that while the committee has said all documents should be returned, it's reserved “for now” a decision about whether it might publish the whole cache.

It cites the ongoing AFP investigation as a reason for withholding the documents. With a clear determination from both houses of parliament that it can't use the seized documents in any investigation, it's hard to see how the AFP can investigate anything. ®

Bootnote: Any confusion between whether the company should be called NBN Co or nbn is the fault of the Senate committee. The Register has faithfully recorded the usage in the report. ®

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