The Australian Federal Police (AFP) raids raise a number of questions about the use of Police resources to identify documents leaked from NBN Co. The AFP raids appear to have been carried out incorrectly and there is reason to criticise the AFP's interaction with NBN Co whilst carrying out the raids. Today in Innovationaus.com the need for Parliament to review what has happened is discussed.
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The Australian Federal Police (AFP) investigation into documents leaked from NBN Co could galvanise politicians from both sides of Parliament to put a stop to this dangerous effort to undermine whistleblowers and intimidate opposition political parties and staff from taking action to hold the Government to account for financial waste, mismanagement and misleading the public.
Labor Senator Stephen Conroy told AFP that "our obligation to the people of Australia is to expose waste and mismanagement by the government and what we are seeing here is an attempt to intimidate people to not actually do their parliamentary duties".
The Coalition Government made a raft of NBN related promises in the lead-up to the 2013 and 2016 Federal Elections that it has failed to achieve and it is well aware that the bad news could become a tsunami over the next three years so it is not hard to see why NBN Co has been directed to take steps to stop the flow of bad news, and to ensure that a rosy picture was presented in the lead-up to federal elections.
In the past week, NBN Co has announced that it will reduce the Hybrid Fibre Coax (HFC) rollout by 1.2 million premises due to an increase in the cost to remediate the HFC network. As a result, the total number of households that will now receive the obsolete and inferior Fibre to the Node (FTTN) has jumped to more than 50 per cent of Australia’s 12 million premises.
NBN Co should be condemned for sitting on this information in the lead-up to the last federal election. The disclosure of the HFC cost blow-out and shift to more FTTN was predicted well in advance by Australian experts.
NBN Co appears to have known before the 2016 federal election campaign that it would need to cut the number of premises connected using HFC and this information could have cost the government a number of seats in affected area,s resulting in a Coalition loss.
In response to a request from NBN Co that was made in November 2015, the AFP has now conducted raids during the federal election campaign and in the week prior to the first session of Parliament since the federal election.
The timing of the AFP raids beggars’ belief. Surely the AFP would not seek to influence the outcome of a federal election or to intimidate politicians that will, in coming days be asked to vote on whether or not parliamentary privilege should be extended to the documents leaked from NBN Co and correspondence that may be found on the Parliamentary mail system, computers and the phones of Labor politicians and staff.
Or is this dystopian view of Australian society becoming a reality?
Senator Conroy has pointed out that Section 95 in the National Broadband Network Companies Act 2011 states that “NBN Co is not a public authority” and as yet the AFP has failed to respond to requests that the AFP provide legal advice on the basis for the criminal investigation.
The warrant for the earlier AFP raids invokes Section 70 and Section 79 of the Crimes Act 1914. Section 70 makes it an offence, punishable by imprisonment for up to two years for a ‘Commonwealth Officer’ to disclose information to a person not authorised to receive the information.
Section 79 makes it an offence, punishable by imprisonment for up to seven years for intentionally “prejudicing the security or defence of the Commonwealth or a part of the Queen's dominions”.
Some of the documents leaked from NBN Co over the past year are working papers without a security classification and other documents contain the commonly used security classification “nbn-Confidential: Commercial”. This appears to be a run of the mill security classification used by NBN Co for most of its internal documentation, including documents released to the public such as the recently released Corporate Plan 2017 and presentation.
The AFP is still to explain why documents relating to NBN trials, costings and rollout timelines have been linked with national security and how the AFP investigation can be justified.
As yet the AFP has failed to identify that any of the documents leaked are identified using Defence or national security classifications including “Secret” and “Top Secret” so the question remains in what way are these documents national security related.
Claims of “national security” may benefit the AFP in the prosecution of its investigation but the result could be a reduction in the transparency needed to ensure the executive is held to account.
There appears to be no suggestion that NBN Co has implemented internal security systems consistent with Defence national security requirements. NBN Co’s internal document management systems appear to be similar to other government agencies, such as Australia Post.
Senator Stephen Conroy did not try to hide the documents, many of which were leaked during 2015, and on several occasions earlier this year, during Senate Select Committee hearings, asked NBN Co to explain why documents in his possession did not agree with NBN Co’s public statements or contained information that should have been in the public domain.
So why did the AFP decide to take action during the Federal Election campaign and not earlier?
The AFP raid carried out on 24 August on the Department of Parliamentary Services, which is located in Parliament House, appears to have been timed to coincide with the beginning of the Spring session of Parliament.
In coming days, members of both houses will be asked to vote on whether parliamentary privilege should be extended to documents seized by the AFP during the investigation.
Labor’s formal claim of parliamentary privilege has now been lodged with the clerks of the House of Representatives and the Senate. Mr Jason Clare, Shadow Minister for Communications at the time the document leaks occurred, and Senator Conroy have both written to the AFP Commissioner Andrew Colvin stating that the claim of parliamentary privilege is maintained and action has commenced to have rulings made on the claim in both houses.
The Government has form when it comes to misleading the public over the NBN’s performance, cost and delays and it appears the Government is prepared to take draconian action to shut down debate over its failed telecommunications policy.
If national security is such a pressing issue for the Government, why has it failed over the past three years to act on the recommendations of the Parliamentary Joint Committee on Intelligence and Security for national security amendments to the Telecommunications Act 1997?
It is time for the Parliament to put an end to the Government’s NBN folly and to pull it back from the brink in its unacceptable efforts to hide what is going on at NBN Co and to punish those that would seek to bring to light government waste and mismanagement.
Dr Mark Gregory is a Senior Lecturer in the School of Engineering at RMIT University and Managing Editor of the Australian Journal of Telecommunications and the Digital Economy