Australian Federal Police at Parliament house 2016

The Senate privileges committee has raised concerns that NBN Co may have used evidence obtained during raids on an ALP staffer’s home to sack two whistleblowers, but has stopped just short of finding the company in contempt of the Senate.

The evidence obtained during raids on ALP headquarters and the home of a former ALP staffer in Melbourne, during the 2016 election, on alleged leaks from NBN Co will not be able to be used as part of an investigation into the leaks after a Senate privileges committee recommended the evidence be considered privileged.

But the Senate privileges committee questioned the actions of the government-owned broadband company during the raid on former ALP staff member Andy Byrne. An NBN Co staffer during the raid was seen taking photos of documents on his phone and sending them back to NBN Co. Former ALP senator Stephen Conroy had claimed privilege over the documents before the raid, meaning the AFP would need to wait before being able to use them as part of the investigation into the leaks, but the committee questioned whether the actions of the NBN employee — to both take photographs of some of the documents, and also see emails between two NBN employees and ALP staffers — may have led NBN to fire two of the employees alleged to have been leaking to Labor.

The committee found that in trying to identify if the documents were the ones NBN Co was searching for during the raid, there was a risk that the documents “may be used for purposes beyond those authorised by the warrant”.

NBN Co claimed that only the front covers of the documents were transmitted, but conceded that disciplinary action was taken against two employees after the raids. The company claims that this happened “independently of the AFP investigation” via the company’s own investigation, but elsewhere in the NBN Co submission, the company admits that, during the raid on Byrne’s Brunswick home, “certain emails were seen that appear to show that two NBN Co employees had been communicating with [Byrne] about matters pertaining to NBN Co.”

NBN Co confirmed to the committee that one of the two employees involved was not under active investigation before the names on the emails were communicated back to NBN Co.

The Senate privileges committee found that there had been improper interference in the duties of a senator, but stopped just short of recommending NBN Co be found in contempt of the Senate, stating that the threshold for finding contempt is high, but said that the committee was “concerned at the potential that unauthorised use of this information may have adversely affected an NBN Co employee”.

In a statement provided to Crikey, NBN Co denied it had used the evidence obtained during the leak to sack the employees.

“The grounds for dismissal did not rely on any documents or information uncovered as part of the raids. Breaches [NBN Co] relied on to dismiss the employees did not include any communications with parliamentarians, their offices or their staff. The basis for the dismissal was identified through nbn’s own internal investigation.”

The company said the two employees did not use the company’s whistleblower procedures in their actions to leak documents to the ALP and ultimately the media.

The House of Representatives already found some of the documents seized during the raid in Parliament House — those owned by then-shadow communications minister Jason Clare — to be covered by privilege.

Peter Fray

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