NBN chair Ziggy Switkowski ignored advice that defending NBN raids on ALP headquarters would be in breach of caretaker conventions during an election, according to a letter obtained by Crikey.

Former communications minister Stephen Conroy’s Melbourne office and the Brunswick home of shadow communications minister Jason Clare’s staffer Andy Byrne were raided last month as police sought documents related to a series of damaging leaks from NBN to the ALP and media. In an extraordinary defence of NBN referring the matter to the AFP in Fairfax papers last month, Switkowski said that those who leaked the information from the company were thieves, not whistleblowers.

It now appears that this opinion piece went out despite the protestations of some of the highest public servants in the country, who said that doing so would be in breach of caretaker conventions. In a letter sent to shadow finance minister Tony Burke last week, first reported by Fairfax and also obtained by Crikey, the head of the department of Prime Minister and Cabinet, Martin Parkinson, said NBN had sent the column to the Department of Communications for advice before the article was published. The department then in turn asked PM&C for advice.

The advice returned was that the article “was not consistent with the established practices associated with the caretaker conventions”.

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“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 the CEO and the company. Our understanding is that this view was passed to Dr Switkowski,” Parkinson said in response, noting however that there are no legal obligations around caretaker conventions.

Parkinson said he had formed the view that the opinion piece was not consistent with caretaker conventions and he had told Switkowski this himself.

NBN spokesperson Karina Keisler said in a statement that the company had an obligation “to respond to inaccurate statements in the media”.

“These were having a tangible impact on the company’s brand, employee morale and called into question the company’s governance structures and integrity.  All of these are vital parts of nbn reaching its targets and minimising the use the of taxpayers funds in providing all Australians with fast and affordable broadband. Inaccurate comments that accuse the company of deliberately misleading, deliberately concealing, and then persecuting innocent whistle-blowers have a tremendously corrosive effect on morale and jeopardise the great gains made over the last few years. The opinion piece addressed misleading claims to restore the trust of its 5000 employees.”

It is not the first time an NBN executive or board member has been accused of breaching caretaker conventions. In 2010, then-CEO Mike Quigley was accused by the Coalition’s Paul Fletcher of breaching conventions by talking about plans to offer 1Gbps services on the NBN during that year’s election campaign.

Crikey understands that there has been something of a communications breakdown between the ALP and NBN since the raids. The company had a meeting between ALP officials and NBN boss Bill Morrow lined up for after the raids to talk policy, but the ALP cancelled. A second offer from NBN to the ALP did not get a response. 

Labor has been concerned that some within NBN have had access to the party’s NBN policy before it was announced because photos taken by an NBN staffer during the raids were sent back to NBN. NBN claims the photos have been deleted, and Labor is claiming parliamentary privilege over all documents seized during the raid. The Senate will decide whether parliamentary privilege applies to the documents when Parliament sits after the election.

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