Labor staffer could be jailed merely for receiving NBN docs


news The Australian Federal Police has alleged there are reasonable grounds to suspect the Opposition broke the Official Secrets provisions of the Crimes Act, with a penalty of up to two years’ jail, for merely receiving internal documents belonging to the NBN company.

Late on Thursday night AFP officers raided the Melbourne office of former Communications Minister Stephen Conroy, and 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.

On Saturday, Communications Minister Mitch Fifield confirmed he had known about the AFP investigation since it was kicked off in December last year, although he did not tell Prime Minister Malcolm Turnbull about the investigation.

Last night the ABC’s Media Watch program broadcast a segment analysing the situation.

The segment added little new information to the public’s knowledge of events surrounding the AFP raids.

However the program did publish a full copy of the search warrant issued by the AFP in the conduct of the raids. This is significant because this document had previously been referred to — but not published online by any other media outlet. You can view the document online here in PDF format.

The document reveals that the AFP believes it has reasonable ground to suspect that the whistleblowers who leaked the documents from within the NBN company breached subsection 70(1) of the Crimes Act 1914.

This section of the Crimes Act prohibits any Commonwealth Officer from publishing or communicating documents which came into their possession by virtue of their position. It comes with a penalty of imprisonment for two years.

However, the AFP’s search warrant also noted that the AFP believed it had reasonable ground to suspect that a person or persons believed to be Australian Labor Party staffers had also breached the Crimes Act, merely by receiving the documents concerned.

The section of the Crimes Act quoted in the search warrant is Section 79(6), which deals with Official Secrets and also carries with it a penalty of two years’ imprisonment.

If the AFP successfully prosecutes the offences listed in the search warrant, this implies that one or more Labor staff members could see jail time merely for receiving leaked documents relating to the NBN company.

Shadow Attorney-General Mark Dreyfus has argued that the work involved in receiving the leaked NBN documents was a part of the role of Labor Senator Stephen Conroy (and Labor staffers), given that Conroy sat on the Senate Select Committee into the NBN, which was tasked with investigating the NBN rollout.

In addition, it is generally considered part of the performance of any Senator’s duties to deal with whistleblowers, in the role of holding the Government of the day to account — especially given the Senate’s role reviewing legislation and government expenditure.

On last night’s program, Media Watch host Paul Barry stated that media outlets had been complaining about the relevant sections of the Crimes Act for years. The show stated:

“In 2007, the Australian media, including the ABC, Fairfax and News Corp, formed a coalition called Australia’s Right to Know, which demanded our secrecy laws be changed so that: “… criminal penalties should only apply to unauthorised disclosures of information … where there is an overwhelming public interest in preventing disclosure, and the consequences of disclosure affect national security or public safety …”.”

The Australian Law Reform Commission had also called in 2009 for the laws to be changed, Media Watch noted.

The release of the warrant also confirmed that Delimiter was cited in its pages. The context in which Delimiter was cited was that the AFP wanted to be able to seize any documents from Labor which related to Delimiter, as well as other media outlets such as The Australian, The Australian Financial Review, The Sydney Morning Herald and the ABC.

The AFP’s investigation appears to be ongoing, although two NBN company staff have so far been stood down over the leaks.

Opinion/analysis to follow


    • Fact Check – demonstrably untrue. They get shot, that’s hardly protection. Unless you mean protection from a life free of torture, breathing and generally experiencing existence…

  1. I just sent the leaked documents to Malcolm Turnbull…
    Turnbull you going to jail if you open that email!

  2. and TurnBull, Morrow et al so far get away scott free after using blatant fraud to justify their destruction of the NBN, we need a Royal Commission if the ALP manages to win the next election!!!

  3. @Renai,
    You miss an important point (like most news outlets, including ABC’s mediawatch).

    The search warrant stated s70(1) and s79(6) as indictable offences. That is odd to say the least.

    Using of both these offences assumes that the leakers (read NBN Co staff) are in fact Commonwealth Officers. However they are not.

    s3 of the Crimes Act states two relevant subparagraph’s (aa) and (c).

    (aa) requires that NBN Co is a public authority. NBN Co is not on the basis of s95(b) of the NBN Companies Act 2011.
    (b) requires the performance of services for on behalf of the Commonwealth. s95 of the NBN Companies Act 2011 clearly states that NBN Co is not incorporated for a public purpose or a purpose of the Commonwealth.

    Neither (aa) or (b) are express provisions as stated in s95 of the NBN Companies Act. Note that Australian Post has a express provision under (d) of s3 of the Crimes Act.

    My guess is that the magistrate signing off on this search warrant overlooked s95 of the NBN Companies Act.

    I trust that I do not have to explain the consequences of this. :)

    • Yes, do please explain. Not all of us understand the legal niceties ;)

      I get the feeling the only reason is so they can link Labor with jail (which they just did)

      • Seek a legal opinion, it would be actual news if the warrant was, in addition to being a political witch hunt, basically worthless.

          • No, it wouldnt. Just that the warrant was issued under the Crimes Act, with no relevance given to the NBN Companies Act. There could be a number of reasons no relevance was given, the most likely being they simply didnt think of it.

            Its a procedural flaw, and one that could go against the whole process, but it doesnt mean that it was a witch hunt ‘beyond doubt’.

            The AFP would have been investigating this for a long time, and its going to just be coincidence that it happened now. Its a coincidence thats convenient for the conspiracy theorist, but the AFP would be pretty much the most politically neutral public service you could find.

          • “Its a coincidence”

            Yes, a politically neutral “coincidence” ;)

            I’m sure Slipper and Thomson agree.

            So, you are going with the “ineptness” defense. Fair enough. They have proven that over time.

          • Not going with ineptness, just that the AFP has taken roughly 6 months to investigate, which isnt uncommon.

            Some of the work I do takes 6 months or longer before a decision is made, and even then it can be another 3 months before things are finalised. Investigations arent quick.

            NBN Co’s initial request was probably politically motivated, but the AFP and the timing of the raids wouldnt be. Also consider that details will be available under FOI, so a timeline can be built. There will be enough general information that wont be redacted to get an understanding of the process.

            People are conflating the original biased request with the unbiased timing, and its working in Labor’s favor. I dont mind that, I think it was disgusting that the request was made in the first place, but I hope the AFP arent tarnished with this. They’re just doing their job.

            Any political shenanigans are on NBN Co and the Lib’s back when the leaks happened.

            Only question to ask is what happens if Labor wins.

          • “Investigations arent quick”

            Neither are the investigators, if they couldn’t work out to wait another 6 weeks after a 6 month lead in. At best, it’s ineptness. Even then, it is ineptness coated in conspiracy. Because, NOBODY can be that inept.

          • OK, a different example. Craig Wright, the current favorite to be the creator of Bitcoin. When the story first broke, the ATO happened to do a raid the following day.

            I can say with total certainty that the timing was pure coincidence, and nothing to do with the breaking story, but an internal process after a dispute with him from months before. This AFP raid is the same, these things just dont get organised as quickly as people want to think they are.

            They take weeks and months of investigating, then would need signoff at a pretty high level, which also takes time.

            Then a raid happens. The timing of this would have been decided before the election was announced. Its coincidence, and an election period isnt going to change plans that would have been months in the making.

            People want it to be different, but its not. In the end I am happy its happened right now, because its given more emphasis than if it happened outside an election campaign, and shows up the NBN Co board as being politically biased.

            If we were heading to an October or November election, do you think there would be anywhere near as much chat over this as there has been?

          • “The timing of this would have been decided before the election was announced.”

            We have been sure for months the election would have been around now. Turnbull telegraphed it. Do these guys live in a cave?

          • Again, you’re going with a conspiracy theory. Public servants dont just stop working during an election campaign. Yes, the timing could have been better, but its not a politically motivated one.

            I’m a public servant. If I had this case, then yes, I’d be pushing to delay it, but what happens if Labor wins? Does this just go away? Can this just go away?

            It may have been considered that for this to happen under the proper rules of political neutrality, it HAD to happen regardless.

            All I’m saying is that the AFP is as politically neutral as you’re going to see. The rest, not so much, but the AFP themselves wouldnt have timed this for any political reason.

            To think otherwise is tinfoil hat territory.

          • “All I’m saying is that the AFP is as politically neutral as you’re going to see.”

            I’m sure James Ashby agrees. Years waiting for Labors questions over the Slipper diary, Abbott loses his job, and bang, they’re onto it.

            That’s in addition to Slipper and Thomson.

            So many “coincidences” all politically timed. Nothing to see here ;)

            Of course, they are just public servants going about their business.

          • The AFP would have been investigating this for a long time, and its going to just be coincidence that it happened now. Its a coincidence thats convenient for the conspiracy theorist, but the AFP would be pretty much the most politically neutral public service you could find.

            I’d agree if they were actually investigating the other various leaks about actual defence material (subs and immigration specifically), but……nothing….

          • Thats not how it works Tinny. A formal request has to be made before they’ll investigate, and THATS the political angle on this. Not the AFP or the timing of this raid, but why that original request was made.

            I have no problems thinking that was politically motivated, but the investigation itself? Its just the typical timeframe, or near enough, for these sorts of investigations.

            That goes for any leak, which is typically investigated inhouse. We have an entire business line dedicated to that sort of thing here, and they take their job very seriously.

          • “shows up the NBN Co board as being politically biased”

            Or politically naive. Why did NBNCo want to draw more attention to its shortcomings?

            Does the AFP have to investigate every matter which finds its way to them?

    • I was just about to look that up – you saved me the time. Thank you :-)

      What I find surprising is that these documents were covered by the Official Secrets provisions. That must mean that Official Secrets has a rather broad and imprecise definition. How can internal briefing documents meant for managers of a GBE be considered Official Secrets of the Commonwealth? How do they threaten National Security?

      • There are certain sections of NBN’s remit that do come under the Official Secrets Act, simply because they are supplying a network that our intelligence/defence/police agencies will use, both to transmit data and to eavesdrop on traffic (one of the reasons Huawei were banned from supplying equipment to NBNCo by the previous government). Just the same as Telstra currently.

        However, the pricing of a node installation along with the delays in the node placement (and HFC shenanigans), would be highly contestable in court, as to whether they should receive the protection of the OSA. A court challenge would probably also blow the CiC argument out of the water. The good ol’ law of unintended consequences. Start a witch hunt, and you will never know if the witch hunter general will then turn up at your own door! ;)

      • The AFP have specified they are using the Crimes Act (1914), and specifically this part:

        “Disclosure of information by Commonwealth officers
        (1) A person who, being a Commonwealth officer, publishes or communicates, except to some person to whom he or she is authorized to publish or communicate it, any fact or document which comes to his or her knowledge, or into his or her possession, by virtue of being a Commonwealth officer, and which it is his or her duty not to disclose, commits an offence.

        (2) A person who, having been a Commonwealth officer, publishes or communicates, without lawful authority or excuse (proof whereof shall lie upon him or her), any fact or document which came to his or her knowledge, or into his or her possession, by virtue of having been a Commonwealth officer, and which, at the time when he or she ceased to be a Commonwealth officer, it was his or her duty not to disclose, commits an offence.

        Penalty: Imprisonment for 2 years.”

        As the ALRC has been pointing out for a long while now, and requesting it be changed, the Crimes Act (1914) has no provision for “public interest” or whistleblowing.

    • Nice political A-bomb.

      I wonder if Mitch is wearing fire resistant anti-media reporting clothing. lol

    • Correct. NBN Co consistently state that their employees are not government staff, which is why the staff don’t get access to all of the benefits that government employees are.

      They can’t have it both ways.

  4. Because this was a Double Dissolution the normal Senate rules don’t apply and many have missed the fact that the moment the GG issued the writs dissolving the Senate, Mr Conroy became an ex-Chair (all committees are automatically dissolved) and he became an ex-Senator until the 2nd July (assuming he is reelected) . If he had such papers in his possession as part of his “position” he should have lodged any confidential materials in his possession with the Clerk of the Senate. As a normal pleb Mr Conroy has no more right to claim privilege than Mr Diogenes does.

    • I’d assume that just because both houses were dissolved, that doesn’t mean they are no longer elected officials.

      Unless you can refer me to some information that says otherwise?

    • But then again if what you say is true.

      Then all salaries paid to federal politicians and the respective electoral offices would have also ceased on the date of dissolution. This would also include the loss of government funded free travel passes.

      Since that did not happen, care to explain further?

  5. Doing their bit to trash fibre internet and the economy. The economy has become politicised and a football as soon as it was in the hands of the Liberals. While they are too busy defending Murdoch it’s crashing hard.

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