news Labor Senator Stephen Conroy has obtained legal advice that the NBN company’s referral of whistleblowers to the Australian Federal Police was illegal, and has demanded that NBN chair Ziggy Switkowski resign from his post as a result and that the AFP cease its investigations into the matter.
Several weeks ago, AFP offices raided the Melbourne office of Conroy — a former Communications Minister and the current Shadow Defence Minister — as well as the house of at least one Labor staffer working for Shadow Communications Minister Jason Clare, in an apparent attempt to ascertain the identity of whistleblowers who have leaked a series of key documents from within the NBN company.
In the wake of the raids, Conroy claimed Parliamentary Privilege with respect to documents seized at the time. Those documents have now been sealed by the Senate and cannot be opened by the AFP unless the new Senate allow the agency access.
However, speaking on ABC Radio’s Drive program last night, Conroy said he had now obtained legal advice that the NBN company’s referral to the AFP in the closing months of 2015 was actually illegal.
Delimiter recommends that readers click here to listen to the full ABC broadcast. The NBN segment starts at about 23:40.
Conroy’s legal advice appears to be based on the fact that NBN staff are not officially Commonwealth officers. The AFP raids were based on alleged breaches of the Crimes Act, which specifically mentions Commonwealth officers.
“I’ve written to the Federal Police on Friday, asking them to end their ludicrous investigation into links from the NBN on the basis of legal advice that says NBN Co have incorrectly called the police in,” Conroy said on air yesterday afternoon.
“They are not Commonwealth officers, and I’m seeking and demanding an end to the investigation and an apology from Ziggy Switkowski, an apology from Mitch Fifield who’s overseen this, and that Ziggy Switkowski resign over it.”
Conroy added that he had also written to the AFP requesting that other information associated with the raids, such as recorded telephone calls and emails, be also held under Parliamentary Privilege.
“I’ve received no response whatsoever to that, and now I’ve written again to them, saying that NBN Co have illegally authorised them to conduct this investigation and their raid on my office is illegal,” Conroy said.
In response, Communications Minister Mitch Fifield said on the same ABC program that he would not apologise to Conroy.
“I didn’t raid Stephen’s office; the Australian Federal Police did. The referral from the NBN to the AFP was a matter for NBN, and the AFP determine what is and is not within their jurisdiction. I’m someone who has confidence in the integrity of the AFP. It’s something that’s been called into question by the Australian Labor Party,” the Minister said.
In answer to a question from ABC host Patricia Karvelas about whether he believed it was “appropriate” for the AFP to raid Opposition offices during an election, Fifield said:
“It’s entirely a matter for the Australian Federal Police; they have national independence, and to question the AFP and their motives is to question the integrity of that organisation, which is something that Labor continues to do.”
Fifield claimed that the NBN company was “entitled” to have made the referral to the AFP.
opinion/analysis
I’ve seen the ‘Commonwealth officer’ legal angle speculated about quite a bit online over the past several weeks. If any legal minds are interested in digging into this for Delimiter to provide some expert commentary, here’s a PDF copy of the warrant which the AFP served on Labor (published by the ABC’s Media Watch program).
It will be fascinating to see if Conroy gets anywhere with this legal angle. The Labor Senator is not known for being easy to deal with. I suspect the AFP may be about to find itself on the wrong end of action by a bunch of Labor lawyers.
But then, they probably should have expected that. Raiding the offices of the Opposition — especially a senior Labor figure and former Minister such as Conroy — during an election was always going to result in a standoff between lawyers at 20 paces. Personally, I can’t imagine why the AFP thought that was a good idea.
Image credit: Parliamentary Broadcasting
Crazy stuff, the AFP lawyers have clearly dropped the ball on this one and should never have accepted the NBN Co request to investigate the Leaks.
I’d say the ball was dropped back in December when Ziggy, and any Liberal influence that might have been a part of it, decided to call the AFP into things in the first place. It was such a breach of protocol and such an unknown territory (simply because this just doesnt happen) that it was always going to be a test case.
Which always meant lawyering up and getting courts involved.
The timing of the actual raids was just coincidence.
On the surface, the AFP would have had no reason to question the request, the NBN does superficially appear as some sort of Govt department, so the fine detail of whether they are actually Commonwealth officers or not probably wasnt even considered at the time. It looked like a duck, it had webbed feet like a duck, why check to see if it quacked or honked?
In a few ways I hope this goes to court and gets tested because its a hell of a precedent to set.
Royal Commission needed into loitering in the halls of parliament for false profit(?$?) methinks!
The separation of Policing (Law) and Government in Australia is “really not so”. The AFP is also a very young and therefore, inexperienced Police organisation, in Australia and on a world wide basis. The Commonwealth Criminal Code (Crimes Act) does not have the “depth of law” that say, the Queensland Criminal Code has.
Sadly, politics is very much involved, in the AFP (opinion).
37 years in operation is hardly “very young”.
Probably the biggest flaw is that it is seen as a sinecure for ex-Defence Force types and shares their right wing, extremely authoritarian viewpoint and disregard for abuse of power when it’s in their favour.
When we do, inevitably, get a federal ICAC a great deal of caution and thought will have to be expended in its formation or we’ll end in the same boat. Thankfully as it seems the LNP will have nothing to do with its creation we’ll probably avoid the worst pitfalls.
Indeed, they want nothing to do with it at all. We all know why…
Organisationally the AFP is quite young, and compared to the state police forces possibly has a lot of character-forming institutional experience still in front of it.
The commonwealth police force dates back to world war 1, it’s hardly young!
Commonwealth Police, yes, the AFP was created in 1979 though.
Check the AFP Act federal aspect, in relation to an offence against a law of a State or of the Australian Capital Territory, has the meaning given by subsection 4AA(1).
Note: This subsection defines State to include the Northern Territory.
Then check s.9 of the same Act. The AFP have the powers to look into this reference ..
What state offence do you think the whistleblowers committed?
As the article states, there is a lot of doubt that an NBN employee is a “Commonwealth Officer” (if they aren’t a “Commonwealth Officer”, then they haven’t broken that law). The warrant was issued for an alleged breach of subsection 70(1) of the (federal) Crimes Act 1914, so I’m not sure where you’re going with the state stuff?
AFP Act is Conmonwealth law. The NBN is all there due to Commonwealth funding & legislation. Also Id rather put my faith in a Magistrate than an article from a journo when it comes to facts presented.
They are both Commonwealth law. What’s your point? Have you read any of them?
Corruption rife everywhere. Australia NEEDS a Royal Commission/ICAC.
Both, really. A Royal Commission into the mismanagement and over-politicisation of the NBN project in specific, and a Federal ICAC in general.
And while we’re at it… some additional political integrity legislation. If any kind of incident occurs (eg Jamie Briggs in HongKong or Brownyn Bishops helicopter flights) politicians are immediately suspended and lose all post-parliament benefits.
Yeah, but what happened to the Costigan RC (aka Painters and Dockers)?
It was doing real well until the poo started piling up. Then the Vics created a Corruption Commission which seemed to put the brakes on…
Yes we need the RC’s & etc. We do NOT need an ICAC.
RC’s come and go, but an ICAC is forever ;o)
And the one in NSW is both popular and done a very good job.
RCs are forever: the media needs them!
RC’s are a one shot deal, ICAC is the gift that keeps giving (Australian people a clean government)…
I disagree entirely – there’s too much stench around our political leaders (on both sides) that an ongoing ICAC would clear up.
I wish Senator Conroy all the very best. But I would also advise him it appears the LNP or AFP don’t do apologies.
Why don’t you wait till it’s over. Nobodies been charged..
He didn’t even suggest they were, he just said the AFL/LPA don’t apologise. What’s your problem dude?
Well LNP see its politics just as ALP politicise this type of issue as well.. Theirs is the political game & they never (both that is) ever apologise. As far as police why would they? Apologise for what? They’re doing their job – geez cops would be apologising all day every day Hyundai forever & a day if they apologised for every matter that wasn’t even brought to a conclusion..as they see it they’re just going there job. It hasn’t gone to Court yet.. May never.. no problem in this point .. Let it unfold.. Don’t just take words of any pollie…early days..& “dude” is soo American thank fuck we don’t have their corrupt system..
Seriously, what the fuck do Hyundai have to do with anything at all???
Get a grip man.
Well you’re a FW “man”. Bloody hell is it s full moon or something? Good bye & good night all you paranoid Pete’s.. I give up..
Good idea, go sleep it off.
Go home Jabtothechin, you’re drunk!
They did so because they felt the weakness of the case was offset by the protection they would get from doubling down on the LNP, who at the time the investigation was kicked off seemed a shoo-in to win.
“to question the AFP and their motives is to question the integrity of that organisation, which is something that Labor continues to do.”
What, the AFP are now above question, are they? Even when they’ve demonstrated a terrible lack of judgement with such a clearly partisan decision? When their actions are not consistent with the actual law, and might in fact be illegal themselves? No, to question the actions of the AFP is nothing but logical when those actions seem incorrect. People make mistakes. Now, if turns out these decisions were made at the very highest levels of the AFP, then it becomes simple logic to question the integrity of an organisation *that has demonstrated* its integrity is suspect. But you can’t establish whether or not it was an institutional decision until you start an investigation of the incident, something the facts clearly demonstrate is now necessary.
Gee’s the closeness of the election must have really spooked the flat earther, usual suspects here!
As such, it looks like I owe HC another dollar, as I could have sworn one of them would have said…
“Well what about Mediscare, Mediscare, Mediscare” (yes 3 words ;)… by now.
Yep haven’t seen or heard from Dick. He will be out guns blazing if Libs form government though i imagine.
Incapacitated by failed suicide attempt.
Hehe, I literally lol’d when I read your post mate, epic! ?
Maybe his contract expired, because his employer only required him until the election.
Indeed. That makes us even… for now ;-)
interesting that every thing the libs called a Labor scare in 2013 actually happened (sometimes worse than the accusation too) except the GST but only because it was the lucky last one and the political capital had dried up.
an example most of us are familiar with is fibre on demand, who has it ? Nobody last I checked, Labor pegged it at costing possibly 3000-5000 dollars and Malcolm was of course outraged! the quotes for extending a connection to a node just for VDSL are around 15k and fibre optic all the way? up to 90k but look what Malcolm left up on his site!!! http://www.malcolmturnbull.com.au/media/clarification-on-fibre-on-demand-costs WHOOPS!
It is amazing that the NBN investigations went for only six months and the AFP are already investigating the Medicare texts, while the investigation into Wyatt Roy and Mal Brough’s involvement into the Peter Slipper diary has been going on for over 3 years with no result
It seems to me that the AFP may be controlled by the LNP
“I can’t imagine why the AFP thought that was a good idea.”
I don’t believe they had any say in the matter, they were just being good little LIberal lap dogs and doing what they were told to do by senator Fuckhead opps meant Fifield and Ziggy.
The Crimes Act itself defines it:
http://www.abc.net.au/mediawatch/transcripts/0833_crimesact.pdf
While this is a state one, it’s pretty close and gives people an idea of what is intended:
https://www.icac.nsw.gov.au/about-corruption/definition-public-official-authority/definitions-public-official-public-authority
But of course, the real clincher is that Ziggy seems to think the Caretaker Conventions doesn’t apply to nbn™…he kinda painted himself into a corner…
And isn’t it great to have mates in the LPA, they are more than happy to drop you in it when things aren’t going well, eh Ziggy?
On an unrelated note i did ring the AFP to inform them that Mals “motorcade” on his way to give his unhinged speech on election night, both cars did infact go straight through a red light, which was caught on camera by some lackey from one of the tv stations following him on a motorbike. I was told to go bother someone else…
I remember when the terrorism hotline was set up, and thinking that a lot of the signs they used to suggest calling applied to John Howard…
There is no requirement for those above the law to follow the law…
Regarding the issue whether the NBN employees are “Commonwelth Officers”:
NBN is a Corporation, not a government department, plus the employees are employed under employment contracts with NBN Corporation, not under the Public Service Act (or any other act). The Act setting up the NBN doesn’t mention the ability to hire staff or that they will be employed by a department or under the act. The act does actually talk about Commonwealth officers and the like receiving information from NBN (in the context of selling NBN, etc). i.e. The legislation frames Commonwealth Officers are being outside the NBN.
They also have their own code of conduct, etc, etc.
Unless they leaked National Security or Defence information (as defined in following the Official Secrets section of the Crimes Act), I think it’s clear that government information hasn’t been leaked – in the context of the Crimes Act, unless the information came from the government rather than being generated by the NBN.
My personal feeling is the government wants to walk both sides of the street. They want all the benefits and legislative protections of it being a government department while wanting it to be an independent Corporation whose shareholders happen to currently be the related ministers.
As for the NBN employees that were raided by the AFP (and I assume have been terminated), I will be interested to see if they have some recourse, particularly if the AFP shared metadata or other telephone intercepts for the basis of employee suspension or termination. i.e. The police don’t get to spy for the purposes of passing on information, particularly if it amounts to a Code Of Conduct issue in a private contract with an Corporation.
If the NBN were a government department, and hence have Commonwealth Officers as employees, it wouldn’t need the various exemptions in the act. Section 95 of the main NBN act includes “not to be entitled to any immunity or privilege of the Commonwealth”
Interesting docs are:
http://www.nbnco.com.au/content/dam/nbnco/documents/foi-no-1213-12-standard-senior-executive-employment-contract-released-27-february-2013.pdf
http://www.nbnco.com.au/content/dam/nbnco/documents/redundancy-and-redeployment-policy.pdf
http://www.nbnco.com.au/content/dam/nbnco/documents/code-of-conduct.pdf
My 2c worth.
Indeed, and anyway, that’s a job for ASIS…
https://en.wikipedia.org/wiki/Australia%E2%80%93East_Timor_spying_scandal
Maybe they are accusing the Labor Staffer of leaking the documents… Labor staffer is presumably employed by Conroys office and is a government officer.
Its all very messy. The AFP did themselves no favors.
Conroy again showing his ignorance. If the AFP (like State police) felt a complaint was outside their jurisdiction they would have said so and refused to investigate. Obviously they didn’t.
Last time Conroy received “expert” advice he began down the path of a financial blackhole; 8th year, $20+b sunk, 20% complete, delivering 1.05mbps / customer CVC.
Your comment is blatantly factually baseless and thus invalid. Crawl back under your bridge.
Personally, I’d go with factually inadequate, and he’s even starting to merge his own cooked books with SR13 (which most of his fantasy is based on anyway….nice recursion Richard…have you regressing tested it recently?)
Not that you both pointed out what was factually inadequate/baseless, but that’s par for the course.
Looks like it could be another three years of trying to keep the Labor 2013 FTTP dream alive, although using out of date CP 2012 figures to help support the case through to 2019 is going to be hard work, but hey lashings of abuse will help compensate, as usual.
@r they can’t. They squeal “baseless” when they have little knowledge of the topic.
See the random links get another go throughout the comments.
@ Richard,
IMO, this pretty well sums up all of your comments…
http://www.urbandictionary.com/define.php?term=trumperbate&defid=9875719
Or in your case Delimiter rather than Twitter
You’re welcome
See the random links get another go throughout the comments.
…and just to prove your point along comes Fizz with yet another one.
lol
Another incoherent thought bubble from devoid
@ alain.
Regardless of my link demonstrating clearly, what I think of Richard’s driveling whiny bitch waffle, I nonetheless also think Richard’s comments are way more adult, coherent and of course less contradictory than your’s.
You’re welcome
I’m impressed you can tell the difference Rizz ;-)
ahh the mindless puppet tag team , business as usual.
Don’t be too harsh on yourself and the other Dick, alain ;)
BTW HC, looks like you will be owing me that $1 after all…
As counting goes on and they are getting closer to government, the puppets stupid comments are indeed increasing…lol
Ohhh…look guys, they finally got around to giving their team a name!
“Not that you both pointed out what was factually inadequate/baseless”
You mean for the hundreth time? It is obviously not productive pointing out facts to you and Richard as you appear not to be able to understand them. Your statement boiled down to “they didn’t make a mistake because they don’t make mistakes”…
Now how or why would anyone argue with someone making idiotic claims like that?
Because I never made that claim, you just made it up, why don’t you say something based on fact for a change instead of pretending you do, then to fill the gap in the absence of a factual response insert a fantasy story.
It is obviously not productive pointing out facts to you and Richard as you appear not to be able to understand them.
Where have you done this?
Your comment is invalid.
And has zero evidence to back it up ;o)
Richard, your comments are invalid!
Richard how’s that expect advice of yours with the policy you could have written going btw lol
“If the AFP (like State police) felt a complaint was outside their jurisdiction they would have said so and refused to investigate”
Unless of course they didn’t investigate the actual standing of NBN Co officers. Normally, it would be quite understandable to expect that they were indeed Government Officers…the difference is that they were specifically excluded from that status by some obscure part of their charter.
So it is quite understandable that the AFP made a mistake, and also quite disappointing that they don’t check things out first.
They are clearly being lazy and not bothering to do their Job properly, I work for AusPost and I am not a “Commonwealth Officer” either!
Actually, there are special allowances to include AP people…mail is held to a higher standard (because it comes from a time before the current system became corrupt).
Search Australia Post in here
http://www.austlii.edu.au/au/legis/cth/consol_act/ca191482/s3.html
It includes:
Mail? Not really.
They are officers mainly due to the ID verification services provided to several state and federal government departments, banking sector, etc.
For example, you must goto an australia post retail outlet or business center for a passport, it cannot be done at an auspost franchise.
Really, I checked the Aus post EBA and there’s not a single reference to being a commonwealth officer in there.
AusPost only got the passport gig in 1983.
“The mail” has always been treated very seriously (up to 5 years jail just for “tampering” with it – http://www.sydneycriminallawyers.com.au/blog/what-are-the-penalties-for-tampering-with-mail-in-australia/).
It may not be in your EBA, but it is definitely in the “CRIMES ACT 1914”.
That “1914” should give you guys an idea about how long this has been law…
Fair enuf, you learn something new everyday. ?
True, Morrison has helpfully pointed out the “black holes in the black hole” (http://www.smh.com.au/federal-politics/federal-election-2016/election-2016-the-35-billion-hole-in-scomos-67bn-black-hole-20160524-gp2f04.html) and using the LPA “expert advice” we’ve seen private investment fall 23% (when under Labor from 2007 to 2013, there was a 67% increase in private business investment). Average annual GDP growth is around $1.7bn higher a year in today’s dollar terms and employment growth is around 25,000 people a year stronger with Labor at the helm.
Pop quiz time! How many of these variables have improved since the Labor years, through 33 months of steady global economic recovery?
1. Budget deficit as percentage of GDP
2. Gross debt
3. Net debt
4. Rate of wages growth
5. Jobless rate
6. People unemployed
7. Hours worked per person per month
8. Balance of trade
9. Current account as percentage of GDP
10. Business confidence (NAB)
11. Consumer confidence (Westpac)
12. Small business sentiment (NAB)
13. Interest rates
14. Household savings
15. Household debt to GDP
16. Crude oil production
17. Steel production
18. Value of the Aussie dollar relative to the US$
19. Value of the Aussie dollar relative to the euro
20. Australia’s gold reserves
21. Government 10 year bond rate
22. Credit ratings (S&P, Moody’s, Fitch)
23. Economic freedom (Heritage)
24. Competitiveness ranking (WEF)
25. Corruption index (Transparency)
You can check your answers here:
http://www.abs.gov.au/AUSSTATS/abs@.nsf/DetailsPage/5206.0Mar%202016?OpenDocument
(short answer is none, but please feel free to continue amusing us…)
Wow, thanks for this. Should be posted in the Village Square. How do they get away with all this. Oh, I know, the media protects them.
No worries. The unemployment rate is scarier that they like to make out too, full time employment is actually dropping a lot, the official “employment” figures are only holding “steady” because they average in part time growth (which is growing a lot, but that’s not actually a good thing for the obvious reasons…i.e. Part time folks can’t get a mortgage).
https://www.theguardian.com/business/grogonomics/2016/jun/20/unemployment-figures-suit-turnbull-but-not-those-seeking-full-time-work
Too right they do J, and even the ABC is a liberal party propaganda outlet now! ?
https://newmatilda.com/2016/07/06/decades-of-conservative-pressure-on-the-abc-are-paying-off/
Tin foil on special this week Mr O?
@ alain
Tin foil on special this week Mr O?
Noooo, you haven’t run out have you :)
“Tin foil on special this week Mr O?”
It’s only not immediately obvious if you’re a buffoon with blinkers on.
Last time Conroy received “expert” advice……
lol, ouch, ouch, and OUCH.
Lol devoid and how is Turnbull own expert advice becuase he fully research it all for a fully costed $29B 25Mbps this year
lol, ouch, ouch, and OUCH.
Turnbulls “expert advice” was Google and a guy he knows at BT. You get what you pay for…
Well Labor liked it, they took it virtually unchanged pulled 1 billion out of a hat, added it to the CP 16 estimates and Bingo there you have it, Labor NBN policy in 10 minutes.
Kind of like the Liberals “fully costed” (LOL) plan in 2013 that would deliver 25 Mbps to 93% of the population by 2016.
Only difference is the Liberal “plan” has had a chance to be proven as bullshit.
They changed it after SR 13 which you are aware, the 2016 election is over and the MtM rolls ever onward unchanged until 2019.
Actually 25mbps for “every household and business” by the end of 2016 GongGav. 176 days to go, getting ADSL2+ speeds sooner was of paramount importance for the coalition clowns, let’s see if they can get it done ;-)
Don’t you like how he said “unlikely” :o)
“This promise is broken” – http://www.abc.net.au/news/2014-07-27/nbn-speeds-promise-check/5543512
So it was OK for the Liberals to pull a plan out of their arse, but not OK for Labor to come up with a draft, float the idea only to find out it wasnt going to work, then come up with a new plan. Good to know you’re still as hypocritical as ever. Also nice to see you didnt disagree with the Liberal plan being proven bullshit.
And as it seems you’re oblivious to the world around you and still havent picked up I live in an area thats already mostly FttP, I dont have to give a rats about the MTM. I already have 100/40, and as a result, access to any improvements on that speed when they are offered by my ISP.
Lol thanks for pot that out devoid took only 3 months to be bullshit
Obviously that ‘guy Turnbull knows at BT.’ was the janitor going by his results.
” 25mbps for “every household and business” by the end of 2016″
That’s changed from what Abbott & Turnbull promised us prior to the election when they launched their Faster and Cheaper Fraudband policy at Fox Sports:
“A minimum 25mbps for All by End of Their First Term”
https://www.youtube.com/watch?v=N2QUvcShNzg
That first term is now over.
Seems that way Gav, and I’m sure Reality and Richard think it’s “a good thing” that Malcolm is going do a deal with Katter. Our country is screwed, if it isn’t going to be run by the minority hard core christian right, it’ll be run by fucking nutcases…Malcolm has sold the centre out to get his crown…
Oh look whiny bitch Richard and his lap dog alain have come to life since it looks as though their worst fears of the socialists being elected have been dismissed.
GOLD
Interestingly, neither of them even attempted to argue, let alone address Tinman’s 1-25 points (points I was unaware of) which I find telling…
None of which has nothing to do with the NBN, but hey a desperate diversion is a diversion, you might as well copy and paste tomorrow’s weather state by state, at least that would be useful.
“None of which has nothing to do with the NBN”
English fail…lol
Anyway now that I have “you” back on topic…
Perhaps you can finally explain why you called HFC FAILED HFC but now laud it and why you objected daily to being forced onto a monopoly FTTP network but have no problems being err, forced onto a monopoly MTM/FRAUDBAND network?
GO
Apology accepted.
Very true, people in FttN area’s will know if they have internet that day or not then!
“he began down the path of a financial blackhole; 8th year, $20+b sunk, 20% complete, delivering 1.05mbps / customer CVC.”
Let’s just scumfully brush over the fact that Conroy had nothing to do with $14b+ of that money sunk.
Well, it looks like the coalition will be forming government. So Ziggy will not experience any repercussions except perhaps a knighthood or something.
Even the government’s pets in the department of prime minister and cabinet had to agree that Ziggy did the wrong thing. But consequences are only for the other side. After all, loyalty must have privileges, otherwise why even bother?
The Short version: Conroy doesnt seem to have good legal advice. Also he should know better he was involved in the NBN legislation to begin with. They might be able to place a GBE outside of judicial review by using a corporation (see AWB v NEAT) but we arent talking about the ADJR, we’re talking about whether an employee is an officer of the commonwealth.
The NBN Act is actually quite particular about control of the company. Read the act in conjunction with case law regarding the definition of an officer of a company (see s9, corporations act; see also Solomon; see also Smith Stone & Knight; and so on) its pretty clear about what an officer will be.
s43 of the NBN act outlines the control of the NBN company will be that of the commonwealth. Thus if the Commonwealth must retain ownership, a person who is deemed an officer of the company (see above) will also be a officer of the commonwealth.
However to be extra clear we just turn to the PGPA Act 2013, ss 10-13. These sections define what commonwealth entity is, the types of entities and of course, the magical s13 which outlines what an officer of the commonwealth is.
s 10 – (1) A Commonwealth entity is:
(d) a body corporate established by a law of the Commonwealth.
s 13 Officials
(1) Each Commonwealth entity has officials.
(2) An official of a Commonwealth entity is an individual who is in, or forms part of, the entity.
(3) Without limiting subsection (2), an official:
(a) includes an individual who:
(i) is, or is a member of, the accountable authority of the entity; or
(ii) is an officer, employee or member of the entity; or
(iii) is an individual, or an individual in a class, prescribed by the rules
So, the NBN is a commonwealth entity, and those involved in the data breach were employees of said entity making them commonwealth officials.
Even if the NBN act used “officers” instead of “officials” the Acts Interpretation Act would suggest these are the same and can be read this way.
And they do, as a shareholder.
An officer of a company is a totally different kettle of fish to a “Commonwealth Officer”.
If what you say ever held in court, things are going to get very, very interesting in Australian corporate law, though if what you contend is true, I think people like the shareholders in Hardie got off very lightly. And…you know what…I think I’d actually like to see corporate law like that, I think corporations would be a lot more ethical if their shareholder were also held to account…
If what you posit is factual, then everyone in the Australian Broadcasting Corporation is an “Officer of the Commonwealth”, and we all know that’s just not valid.
Please let me know which Bar or state admissions board you are registered with. I dont believe you have a firm grasp of how corporate law or law generally works. More importantly, you’ve also ignored how the PGPA works which is the relevant statutory provisions here as they complement any provisions by the NBN act and will supersede any provisions of the corporations act (if they even apply; this is because of the . Case law is also relevant as it has not been excluded by the legislative.
Again i also note ss 20-21 of the AIA which provides interpretation rules for how ‘office’ and ‘officer’ are interpreted.
This expands my points above.
On corporations since you made the commnet; The corporations act itself was designed to prevent individuals escaping liability. See definition of Officer and Directors under s9 definitions. The shareholders have no decision making authority in terms of operation of the business, these are powers reserved for the board of directors (s198A). Shareholders have power to appoint or remove directors but otherwise the actions in Hardie were attributable to officers and directors (see the string of cases, ASIC v Shafron; see also ASIC v Adler).
I’m no lawyer myself, but I have some questions about what you have posted. If ‘officers’ can be read the same way as ‘officials’ then why does the PGPA Act bother listing officials in this specific way? “(ii) is an officer, employee or member of the entity”.
I would have thought that the wording implied that these three are not necessarily the same things. Members are not necessarily employees, and employees are not necessarily officers, etc. Otherwise isn’t that particular section being a bit redundant?
It is an inclusive provision because people use different words but the Act is essentially saying in the eyes of the law they are one and the same. For example, if i said ‘A fruit “is an apple, orange, pear, watermelon”‘ it would suggest that ‘a fruit’ can be all of those things as they are fundamentally all of the same genius. Here officers, employees or members are all one and the same. This is important when attracting liability because (when read with other acts, depending on the factual scenario) its basically saying it doesnt matter if you are an A a B or a C, you are a limb of the entity and therefore attract any protections or liabilities.
This is why I have been making reference to corporations because it doesnt matter if I am necessarily a director, officer, CEO, Managing Director, Legal Counsel, or employee – I can still ground liability for my company, depending on the nature of my role and what I have done (e.g. some very specific provisions apply to all those I have listed, but some only apply to say Directors).
Here are are speaking of officers which is not a niche role like a Director is.
Again the AIA and case law are what gives these words their meaning and effect.
NBN Co is a Commonwealth Company, not a Commonwealth entity.
https://www.finance.gov.au/resource-management/governance/overview/#entities_companies
Means the PGPA Act 2013 sections you were quoting arent relevant, there is a difference between the two.
Very intersting GongGav. That link says “Importantly Commonwealth companies are not Commonwealth entities for the purposes of the PGPA Act.” and also says that “Types of Commonwealth companies currently include: NBN Co Limited and Australian Rail Track Corporation Limited.”
Which makes me think you may be right, and that the above section of the PGPA doesn’t mean that NBN staff are government officers. (That looks as clear as day to me – but I don’t have expertise in these things, and am aware that there are caveats and gotchas)
So where does that leave us?
Its what happens when you deal with tax law for 26 years, you understand the fine detail of law and how it flows. On the surface you’d think NBN Co fits the bill of being Government, but a) the PGPA Act specifically excludes them, and b) so does the NBN Act itself, created exclusively for the purpose of running the NBN.
It was created with the intent of putting it out of reach of the typical Government acts (such as the PGPA), for various reasons, so to try and drag it back goes against the intent of the NBN Act itself.
Typically, if you want to understand what the intent is, you go to the Hansard second readings which are transcripts of the presentation speech. They are what its usually relied on to understand what the laws are trying to do.
I have no idea what the NBN Hansards say, I havent gone looking for them.
Cheers Gav, all very useful and informative info.
All good. I do know generally how law works. I enforce it :)
I cited different provisions to enforce the point. If you actually did tax law you’d know you’d run the multiple arguments.
If the PGPA is excluded, other provisions may apply.
Also I refer you AGAIN (see above) to AWB v Neat. Intention can be considered by a Judge however i AGAIN refer to the AIA.
I dont feel it necessary to provide addition beyond what i have with respect to the intermingling of 3 pieces of legislation and judicial interpretation.
I respect you may have worked in tax and ‘enforced law’, but again please let me know which bar or law board you are registered with because you seem to be ignoring pivitol points, and indeed you’re citing a government website not the legislation itself which is not what one whom is qualified would do.
Commonly it is those whom ‘enforce law’ which create the legal issues in the first place because they lack a holistic understanding of issues, most notably in this case judicial interpretation.
You ask that a lot, but you haven’t stated yours (which I’d assume you’d be happy to share after asking everyone else), you’ve just claimed authority with no proof…I don’t claim to be a lawyer, but you seem to think people should think you are, while offering no proof of that.
Maybe you are, maybe you aren’t, but maybe if you offer your training background people might respect your opinion a bit more? Instead you’ve just suggested people should defer to your authority (while not providing the basis of that authority)…not exactly a winning position when trying to win people over to your argument.
/shrug over to you I guess.
What bar or law board are YOU registered with? You cited law. I pointed out that the laws you cited werent applicable, and you decide to attack me?
My god, the arrogance. Is this your first time on the internet?
I dont need to find laws to quote, I am simply pointing out that NBN Co is a Commonwealth company, not a Commonwealth entity, and any lawyer worth what they (over)charge would understand such a basic difference.
A Government website states clearly that there is a difference, and as such its information that can be relied on. If you are a lawyer you’d understand that as well.
For me, this is funny. You’ve come along citing laws, and how they relate to the NBN, but as soon as something comes along that says you’re wrong, you attack the person.
Doesnt change that the Department of Finance have said that NBN Co is NOT a Commonwealth entity.
And if you’re a lawyer, you’d know how significant such a discrimination is.
I dont feel its necessary to provide more than I have. I’m not the one incorrectly claiming s10 and s13 of the PGPA applies to NBN Co.
I AM the one correctly claiming it doesnt.
So, I am having a look at AWB vs NEAT. I am having trouble drawing firm parallels between that case and this current situation.
The similarities seem to be that the NBN and the AWB are both private companies created by legislation. (Is that correct?).
But the gist of the AWB vs NEAT case seems to be that the AWB was not held to be accountable to public law. Three members of the high court held that the decisions of the AWBI were not examples of a ‘decision of an administrative character made under an enactment’.
Although it seems that Kirby (who dissented) determined that the character of the entity needed to be considered – and given that the AWB had private stakeholders while the NBN has the government as a stakeholder, wouldn’t that mean that the character was sufficiently different? I.e. that perhaps the NBN would be accountable to public law (that meaning that the employees can be considered commonwealth officers?) – however he was one of only five judges who made this determination (from my brief scanning) so would that hold up in a new case?
I don’t know – it is all very interesting.
Ok, just found some more stuffs.
Vietnam Veterans’ Affairs Association of Australia New South Wales Branch Inc v Cohen (1996) 70 FCR 419, 432; Businessworld Computers Pty Ltd v Australian Telecommunications Commission (1988) 82 ALR 499, 500 (Gummow J); Broken Hill Pty Co Ltd v National Companies and Securities Commission (1986) 61 ALJR 124, 127 (Dawson J); and R v Murray and Cormie (1916) 22 CLR 437, 452 (Isaacs J). Note, Aronson and Dyer argue that Corporations Law corporations exercising executive-like functions should be considered ‘officers of the Commonwealth’: Aronson and Dyer, above n 40,26.
Apparently AWBI was not an ‘officer of the Commonwealth’. I am starting to suspect that Conroy may actually be onto something.
Hmm. Interesting Job.
I was thinking he was trying something tricky under the Public Interest Disclosure Act 2013 (http://www.apsc.gov.au/publications-and-media/archive/publications-archive/aps-values-and-code-of-conduct-in-practice/whistleblowing) but thought they could be ruled out because NBNCo employees aren’t technically APS (who are employeed by a “department or agency” of the Commonwealth), but the legislation does include an allowance for a “contracted service provider” and as we’ve found, NBNCo employees can be considered a “Commonwealth Officer” anyway.
If the whistleblowers followed the procedure set out in the PID Act then a disclosure “is not considered an unauthorised disclosure of information or an offence under s. 70 of the Crimes Act.”, which means they wouldn’t have breached sect 70.
You can read the actual legislation here: https://www.legislation.gov.au/Details/C2013A00133/Html/Text
It’ll be interesting to see what he’s up to! Labor have some very good lawyers when it comes to IR/Company law, so who knows what they might have come up with.
On further research, you are probably right about Conroy getting bad advice (not for the reasons you laid out though).
The interpretations for “Commonwealth Officer” in s.3 for the CRIMES ACT 1914 (http://www.austlii.edu.au/au/legis/cth/consol_act/ca191482/s3.html) includes anyone that “performs a service on behalf of or for the Commonwealth”:
NBN Co is an ordinary trading company under the Corporations Act, and its own legislation specifically provides that it is not a public authority. So, how can an NBN employee be a Commonwealth officer?
National Broadband Companies act 2011 section 95 explicitly states that NBN Co does not perform services on behalf of the commonwealth.
“NATIONAL BROADBAND NETWORK COMPANIES ACT 2011 (NO. 22, 2011) – SECT 95
NBN Co is not a public authority
NBN Co is taken for the purposes of the laws of the Commonwealth, of a State or of a Territory:
(a) not to have been incorporated or established for a public purpose or for a purpose of the Commonwealth; and
(b) not to be 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;
except so far as express provision is made by this Act or any other law of the Commonwealth, or by a law of a State or of a Territory, as the case may be.”
The warrant refers to receiving the documents, so it appears most are looking at the wrong end of the transaction. Conroy may be able to claim privilege, but I don’t see that his staffers can.
” Conroy may be able to claim privilege, but I don’t see that his staffers can”
The warrant was obtained using the CRIMES ACT 1914 – SECT 70…that can only be in connection with a “Commonwealth Officer”, and nobody at NBN falls under that description. Therefore, the warrant itself was obtained using an affidavit that was most likely quite tainted and the entire search must be thrown out.
Also, an AFP referral can only be made by an Australian Government department or agency, which NBN Co is not…
See the discussion above with Anymoomous and others. The debate is WHERE in all this that NBN Co stands. Are they Commonwealth or not?
One Act cited implies they are, until you dig a little and find a difference that looks small, but makes a big difference – commonwealth entity versus company. Entities would be covered, companys arent, and NBN Co is a Commonwealth company. Its little differences like that which catch people out all the time, and why we pay lawyers so much money…
Then you have the NBN Act, which specifically states its not privy to the same protections, for whatever reason, which is a pretty specific act and intent. I can only assume that Act was written that way to prevent it being used as a political tool somewhere…
The Crimes Act then kicks in, but it can only kick in under certain circumstances, and that seems to be the bottleneck in this. What appears to have happened here is that nobody has checked to see if those circumstances have actually been met or not, assuming they have been.
And thats the debate, now diluted down to the expert opinions of a forum on an IT website. None of us are lawyers specialising in this area, so none of us are going to know for sure.
I personally dont think they fit the bill, because I’d expect the NBN Act to take precedence and nullify the other acts, but again, I’m not an expert on this law. Neither would the AFP who took the complaint, likely assuming that Ziggy did his own due diligence and checked whether his complaint was valid or not.
In Ziggy’s defence, he wasnt there when the laws were enacted, so might not be aware that he wasnt directly working for the Commonwealth. Not a defence, he should be, but when somethings on the edge like this its easy to mess up.
The Crimes Act 2014 states that anyone that “performs a service on behalf of or for the Commonwealth” can have section 70 applied to them.
I even provided a link to the relevant sections definitions page above which has the definition for “Commonwealth Officer”.
https://delimiter.com.au/2016/07/06/afp-nbn-raids-illegal-says-conroy-ziggy-must-resign/#comment-751948
Whether they are a Commonwealth company or not is a bit of a red herring, they (NBNCo and it’s employees) are performing a service on behalf of the Commonwealth.
I dont think its that easy Tinny, it never is.
S.95 of the National Broadband Network Companies Act 2011 says NBN Co is not a public authority, with 95 (c) stating its “not to be entitled to any immunity or privilege of the Commonwealth” with exceptions being anything within that Act. Which I’m not going to trawl through.
https://www.legislation.gov.au/Details/C2011A00022
*edit* See Chas’ post above for the full S.95 *edit*
So based on that, unless it says it elsewhere in that Act, they arent entitled to immunity or privilege of being considered Commonwealth Officers.
The way I read it, the various NBN Acts were set up with that specific purpose – remove Commonwealth protections.
This is the problem with GBE’s. At a high level, yes, they are subject to various Commonwealth rules, but at an operational level its usually on a case by case basis.
And as this travels across a range of Acts, none of us here are going to be experienced enough to nut it out. One thing is going to say they are, others are going to say they arent. It’ll take a court to chase that trail.
My experience says one thing, but it also says I could be wrong, because there are likely to be a dozen other Acts that have a say in the matter.
Ain’t that the truth ;o)
My thought was it’d make it easier if they decided to sell it.
It seems to be mostly the Commonwealth public reporting side of things that are applied in the NBN Act.
This bit of the NBN Act is interesting:
NBN Co is taken for the purposes of the laws of the Commonwealth, of a State or of a Territory:
(a) not to have been incorporated or established for a public purpose or for a purpose of the Commonwealth
That would suggest they have specifically removed NBNCo from the provision in section 70 where a Commonwealth Officer can be someone that “performs a service on behalf of or for the Commonwealth”.
If thats the case, then the raid probably was illegal (and super dodgy if they took campaign plans as well).
See what I mean? On one hand, they’re doing Government things, but on the other hand, there are laws that say it doesnt matter.
This is why lawyers get paid so much. So far in this, the PGPA Act’s been mentioned, NBN Companies Act has been mentioned, Crimes Act has been mentioned, and the Companies Act has been mentioned.
Might have missed one or two, but across 4 Acts already, with some saying some generic things that seem to include them, while others say specific things to suggest the opposite.
And people wonder why the AFP got it wrong…
“That would suggest they have specifically removed NBNCo from the provision in section 70 where a Commonwealth Officer can be someone that “performs a service on behalf of or for the Commonwealth”.”
That is how I read it as well, and I have yet to see any law cited that changes that opinion (but as Gav said…”My experience says one thing, but it also says I could be wrong”)
I kinda hope this does go to court, I’m really curious to see how/where they go.
But my guess is it’s quietly get dropped after the Libs get their majority.
You were right Gav, ZDNet has an interview with Conroy where he says:
Which makes sense, as Ziggy seems to think he isn’t held by the Caretaker Convention either.
Looks like the AFP may have really messed up.
http://www.canberratimes.com.au/content/dam/images/g/p/t/v/e/f/image.related.articleLeadNarrow.300×0.gptpiq.png/1467593547179.jpg
A number of state police forces have acquired a long history of corruption (in NSW it goes back to 1805 and the Rum Rebellion!). The AFP, though, has always been squeaky clean. But it also has an amazingly consistent record of incompetence (does the name Haneef ring a bell?), and it’s on full display here.
True dat…
Everything that the lib$ do is done from spite and a knee-jerk reaction. Roping in the AFP to do their dirty work was only ever about getting back into office. Once there, they can run roughshod over the processes and throw up another boogyman to distract sleepy Australia.
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