Remember those raids on former communications minister Stephen Conroy’s office and a Labor staffer’s home to find out what NBN documents had been leaked to Labor? Conroy has said the raids were not legal because NBN Co staff, while employed by the government via NBN Co, are not technically “Commonwealth officers”. Conroy says that as employees of a government-owned business, NBN Co employees are not classified as public servants under the law and therefore are not subject to restrictions against leaking information.

And what does NBN Co make of it all? We filed an FOI request with the company about whether it had any factual evidence that NBN Co staff are considered Commonwealth officers, but no such evidence exists. This is a good way to get the most out of FOI requests, as if it is simply factual information you attempt to obtain, the responding agency has little ground on which to deny access.

That’s not to say that NBN Co doesn’t have advice on whether its staff are Commonwealth Officers, just that it’s not set in stone — or legislation — as a clearly defined fact. One of the difficult aspects of FOI law is that there are exemptions to prevent people from accessing documents that are considered “legal privilege”. So NBN Co might have advice from its lawyers that staff are considered Commonwealth officers, but we will never know.

It’s something of an oversight in all the legislation setting up NBN Co, when the issue of what constitutes a Commonwealth officer has been made clear in other areas. For example, as Crikey revealed last year, the passage of the Border Force Act into law had the effect of making all contractors and sub-contractors working in Australia’s offshore detention network Commonwealth officers, meaning they can be charged for leaks under the same law that NBN Co using against those it thinks leaked documents to Labor.

In any case, the AFP ultimately made the decision to launch the raids on the basis that it considers NBN Co staff to be Commonwealth officers. We asked the AFP for comment but didn’t hear back.

Peter Fray

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