The Senate Standing Committee of Privileges has found that the Australian Federal Police (AFP) raids on the offices of former Labor Senator Stephen Conroy in a bid to recover leaked confidential National Broadband Network (NBN) documents constituted “improper interference” on the functions of Parliament.
“The committee considers that an improper interference has occurred on this occasion,” committee chair Jacinta Collins told Parliament on Tuesday.
While the Senate committee did not make a finding of contempt over the raids, it has ordered the seized documents to be returned to Conroy, noting that the information uncovered during the raids may have identified the person leaking documents to Labor from within NBN.
The Senate has agreed to implement the report’s recommendations, with NBN saying it will maintain its “zero tolerance approach” in future.
“We take seriously any potential crime or breach of employee code of conduct, such as the theft of company materials, and will continue to take a zero tolerance approach in the best interests of the company, its shareholders, and the Australian taxpayers,” NBN said in a statement.
“Importantly, in relation to the raids, our staff followed the direction of the AFP at all times. We acknowledge the committee has conducted an investigation and arrived at a decision. Any ongoing investigation is a matter for the AFP.”
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 former Shadow Communications Minister Jason Clare’s communications staffers, was kicked off in December 2015 after NBN referred the matter to the AFP.
The documents collected during the raids — which Conroy labelled as being “illegal” because NBN is not a Commonwealth officer and therefore cannot make referrals — have been kept by the Senate clerk since, after Labor made a claim of Parliamentary privilege.
Amid questions from Labor members over how much the government knew about the ongoing AFP investigation, Communications Minister Mitch 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.
While NBN on Tuesday claimed that its employees have followed the AFP’s directions at all times, two NBN staffers were suspended pending further investigation following the raids after being enlisted by the AFP as temporary “special constables” to assist in identifying 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 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, also subject to Parliamentary privilege.
The Department of Prime Minister and Cabinet also found that an opinion piece penned by NBN chair Ziggy Switkowski defending the AFP investigation was a breach of the caretaker conventions that dictate how government departments and businesses are to behave during an election, although Switkowski later told Senate Estimates that he does not believe he breached caretaker conventions.
Following the initial raids in May, the AFP also seized further leaked documents under warrant in August from the offices of Clare, with the House of Representatives Committee of Privileges in November recommending that they be kept confidential under parliamentary privilege and returned to Clare.
“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] at the end of last year.
“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 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.