AFP staff raiding Parliament House earlier this morning

The NBN leak investigation by the Australian Federal Police is once again set to roil politics, with AFP officers, citing “national security”, this morning raiding Parliament House to secure emails from the staff of Labor Senator Stephen Conroy, including emails sent to journalists.

The investigation — initiated by a humiliated NBN Co in response to leaks last year detailing rollout delays, cost blowouts and infrastructure failures in the government business’s implementation of Malcolm Turnbull’s scaled-back broadband project — erupted during the election campaign. Conroy’s Melbourne office and the home of staff member for then opposition communications spokesman Jason Clare were raided in May by AFP officers in the company of an NBN Co employee. Conroy had been Labor’s communications minister in government and point man on communications matters in the Senate in opposition.

[What you need to know about NBN raids — and why it could help Labor]

In an extraordinary breach of protocol, the NBN employee accompanying police officers took images of files and sent them to his employer even though the materials were the subject of an immediate parliamentary privilege claim by Conroy, which should have ensured the materials were sealed until the Senate could determine a position on his privilege claim.

This morning’s raid, conducted by AFP officers who arrived at Parliament House just after 10am, was aimed at Parliament House email servers that contain the accounts of Conroy’s staff. Parliament House staff, led by the Serjeant-At-Arms, tried to prevent journalists from seeing and filming the activities of the AFP officers in the basement area of Parliament House — the vast network of tunnels, storage areas, kitchens and offices that forms an underground mini-city beneath the ground floor of the building (and to which journalists and other APH workers are permitted access).

The raid reached the point of absurdity when Labor staffer were ordered not to film a briefing that AFP officers were intending to give them about the warrant and the search, on the basis of “national security” — despite the search relating to Labor staffers’ own emails, exchanged while they were working in opposition. The “national security” claim also contradicts NBN Co’s consistent claim that the investigation it initiated related to theft of intellectual property.

The warrant served this morning also targetted journalists in addition to emails exchanged between Labor staffers, with emails sent to journalists from Delimiter, The AustralianThe Australian Financial Review, The Sydney Morning Herald and “the Australian Broadcasting Commission” (sic) also sought. Under data retention laws, attempts to identify journalists’ sources are subject to special warrant procedures; as this warrant demonstrates, such requirements are straightforward to circumvent by pursuing sources of communication to, rather than from, journalists.

Even before any claim of privilege for the seized documents is adjudicated, Labor says it has strong legal advice that the entire investigation is beyond the power of the AFP given NBN Co staff are not public servants under the NBN legislation and therefore not covered by standard public service confidentiality requirements. This would make the AFP raids illegal.

[The truth behind the NBN raids: whistleblowing is in crisis]

“Its own enabling legislation … clearly and unambiguously states that NBN Co is not a public authority, not part of the Commonwealth and not entitled to any of the immunities or privileges of the Commonwealth,” Conroy said in a statement on the raid early this morning, citing section 95 of the NBN Companies Act, which states the company is not “a public authority or an instrumentality or agency of the Crown (however described); and not to be entitled to any immunity or privilege of the Commonwealth”.

Communications Minister Mitch Fifield told the ABC this morning that it wasn’t up to members of Parliament to determine what the AFP investigates:

“Well, it’s not for members of Parliament to determine what the jurisdiction of the Australian Federal Police is. The Australian Federal Police determine what is and what is not within their jurisdiction. The Australian Federal Police have accepted this investigation, they are undertaking it.”

The government sought to distance itself from the controversial raids, insisting initially it was unaware of the investigation or plans to seize Labor’s documents, until Fifield was forced to admit he had known of the investigation for several months but, he claimed, never informed the Prime Minister. In a major breach of caretaker conventions that went unpunished by the government, NBN Co chair Ziggy Switkowski also ignored advice from his portfolio department, Communications, not to publicly defend the raids during the election campaign.

The Abbott and Turnbull governments have dramatically escalated the pursuit of whistleblowers since coming to power, conducting a series of investigations of leaks to journalists about asylum seeker policies and the abuse of asylum seekers detained by Australia, legislating harsh penalties against whistleblowers (now described as “insider threats”) and instituting a mass surveillance scheme and harassing Witness K, the former ASIS officer who revealed Australia’s illegal bugging of the East Timorese government, and his lawyer, Bernard Collaery.

Peter Fray

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