“Shameful” AFP NBN raid may be illegal, says Conroy

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news The Australian Federal Police (AFP) raid on the Department of Parliamentary Services yesterday was possibly illegal, according to Senator Stephen Conroy, Deputy Leader of the Opposition in the Senate and Shadow Special Minister Of State.

The AFP search was “intended to access the emails of Labor staff members”, Conroy said, and related to “alleged unauthorised disclosure of Commonwealth information relating to the NBN Co”, according to an AFP statement made before the raid.

The Labor senator said the raid was a “shameful attempt” by Prime Minister Malcolm Turnbull to “hide his incompetent administration of the NBN”.

“It is an extraordinary attack on the Parliament and its constitutional duty to hold the government of the day to account,” he added.

Conroy further claimed that NBN Co has “initiated this investigation” based on a claim that it is entitled to special protections from disclosure of information about its operations because it is part of the Commonwealth.

This is contrary to its own enabling legislation, according to Conroy, which he said “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”.

The Senator cited the government’s own website as evidence, quoting Section 95 of the National Broadband Network Companies Act 2011 – “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

(c) 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.

Conroy stated that NBN Co should explain how the AFP search has “any legal justification”.

He further suggested that NBN Co “initiated” the raid to “cover up Malcolm Turnbull’s gross mismanagement” of the NBN.

“Under Mr Turnbull, the NBN has been beset by lengthy delays and cost blowouts,” he said. “In fact, the cost of the Mr Turnbull’s second-rate copper NBN has nearly doubled to up to $56 billion.”

“I will continue to assert parliamentary privilege over all material and information gathered as part of this investigation, including in the raid this morning,” Conroy concluded. “It is my duty as a Senator to hold the Government to account. That is what I intend to do.”

Image credit: Parliamentary Broadcasting

55 COMMENTS

  1. No arguing with Conroy’s points…even Fifield didn’t argue the legal case, all he said was that the AFP should be the only ones who can determine what cases they can take. That would make us a police state, yes?

    This is probably the most shameful act I have seen from the LNP yet, and that is saying something…

    • No arguing with Conroy’s points…

      Indeed. But given how disastrous the MTM patchwork clusterfuck already is I’m not surprised the coalition clowns and GimpCo would go this far to try and hide their incompetence. Expect the squealing copper fanboy knuckle draggers to defend the AFP raids. When there is little to show for the MTM clusterfuck policy they endorsed blaming someone else gives them some comfort… 127 days to go ;-)

  2. Poor Conroy, his bullying not working on the AFP. Coming from a Senator that believed in his “”unfettered legal power” his latest position is surprising. Red undies headwear anyone?

    “possibly illegal” or possibly not;-)
    AFP chose to take up the investigation after NBNCo made their compliant. Appears they will conduct one. Conroy wants such investigations for us regular citizens only (plenty of company in parliament).

    Conroy’s right about the NBN cost blowouts (sorry Murdoch we don’t need to wait to completion). However he’s less forthcoming about his own;-) The policy folly a disaster; Conroy its instigator.

    • “AFP chose to take up the investigation after NBNCo made their compliant”

      I see, so to you that makes it alright? I think the only “possibly” about its illegality is whether or not the AFP knew it at the time. It most certainly was an illegal search and should not be allowed to be performed by the AFP. NBNCo have no legal standing to make a complaint to the AFP…
      The whiff of political interference in due process is massive!

      • There’s no “certainty” pertaining the illegality or otherwise of the search.

        Why do you believe NBNCo had “no legal standing” to report the leaks?

        • The same reason they rebuffed Mr Conroy back when he enquired about the same questions about leaks… except they were embarrassing to the previous Labor government as opposed to these fresh new leaks which are painting the current government in a bad light?

          IIRC NBNCo basically said “nope can’t do anything, hands tied” when pressed by the Senate about those leaks.

          And yet now all these bonds have mystically gone away?

          • @rm I’m all for as many leaks as possible (stated in comments when Renai covered them). They offer a valuable insight into this massive waste of taxpayers money (all models).

            Enjoyed the wikileaks as well. They publicly exposed the contempt for the general public most in high office hold (like Conroy’s $4.7b NBN policy: “not a cent more”).

          • @ Richard,

            You know that the $4.6 Billion was for a way-way-back then, FTTN build,(not the later design & future-proof FTTP build to 93% of the population) as a contribution to the builder & for the builder to properly & fairly allow isps upon building the nodes access at decent,(non-rippoff) prices.

            The $4.6 Billion FTTN plan had no acceptable takers, so was never started, hence no failure & no blowout in costs, unlike the Coalitions $29 Billion mtm* that’s now upto $56 Billion & on completion might be worth upto $27 Billion,(if they’re lucky) …LOOL XD

            *[The network Richard could’ve/would’ve/(Did?) designed ..Can you say – CLVSTERFUCK]

            After having no acceptable fttn build offers the Labor government then took advice from thier ACTUALLY INDEPENDENT EXPERTS,(unlike Coalition bias-shill supposed experts) to do a nationwide FTTP NBN build for around 90% of the population. With a few more figures tweaked they decided they could get to 93% & so began the REAL NBN.

            Later to be a clusterfvck when Malcolm went mtm on nbn.

            TLDR – Richard’s knowingly being a deceitful knobhead… AGAIN… As usual.

            Later, RIPP.

        • Because in order to request an inquiry, the party must be a Commonwealth Officer. This is common among many companies, and of course among Government offices…however NBN Co is specifically precluded from it as part of the legislation from which they were enacted. It specifically states that they are NOT Commonwealth officers…

          • Not true, anyone can make a report to the AFP.

            The search was conducted using a lawfully obtained warrant making it legal. The use of any evidence found and/or any potential prosecution is not up to the AFP anyway.

          • Please read the details before you make a conclusion next time…

            The warrant was taken out under Section 70 of the Crimes act…
            http://www.austlii.edu.au/au/legis/cth/consol_act/ca191482/s70.html
            “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. ”

            NBN Co is not an instrumentality of the Crown, nor are any of its employees a Commonwealth Officer

            http://www.austlii.edu.au/au/legis/cth/num_act/nbnca2011336/s95.html

            All of this including the warrant are available online…

          • @c search warrants are issued by a judge or magistrate (not the AFP). The warrant was legally obtained, your claim “It most certainly was an illegal search…” is not correct.

            NBNCo is also allowed to report to the AFP.

            The use of any evidence obtained can be contested, as it already is with Conroy claiming parliamentary privilege (surprising given he claims the warrant is without validity).

            Please link to the warrant online.

          • “NBNCo is also allowed to report to the AFP”

            Not under section 70 they are not…please tell us what you think they reported? There was no illegal activity or suspicion of activity. Leaking company documents is not a matter for the AFP except when it pertains to Section 70…

          • @c thank you. The warrant link is for the prior search executed in May 2016.

            NBNCo is allowed to report it, AFP can refuse to investigate.

            Noting the link also a legally obtained warrant (therefore search is legal), the use of any evidence obtained (assuming parliamentary privilege is dismissed) may rely on a judge’s interpretation of the definition of a “Commonwealth officer”:
            CRIMES ACT 1914 – SECT 3
            “Commonwealth officer ” means a person holding office under, or employed by, the Commonwealth, and includes:

            (c) for the purposes of section 70, a person who, although not holding office under, or employed by, the Commonwealth, a Territory or a public authority under the Commonwealth, performs services for or on behalf of the Commonwealth, a Territory or a public authority under the Commonwealth; and

            Performing services for or on behalf of sufficient and not exclude by my reading of NBN ACT 2011 SECT 95 given the commonwealth has funded everything and two ministers the only shareholders.

            Much uncertainty I’d say.

          • “NBNCo is allowed to report it, AFP can refuse to investigate.”

            Investigate what? There is no crime even suggested at that is within the pervue of the AFP. The warrant was legally obtained, but illegal as it assumes NBN falls under Section 70.

            Assuming Section 95, then only the MINISTER may refer to the AFP, not NBNCo…so no, no uncertainty.

            Also, the breadth of section 95 serves to exclude the application of the section unless there’s something related to national security or prohibited places…

          • “Noting the link also a legally obtained warrant (therefore search is legal)”

            Just to be clear, if the warrant is based on untrue facts, then anything obtained by the warrant is inadmissible…
            By untrue facts I mean that they are facts that were not and are not in dispute, nor are they obscurred…so the Magistrate should never have signed it, and the AFP should never have asked.

          • Also R, your point about the interpretation of the status of NBNCo might have validity if it were not specifically ruled out in the legislation…

            “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

            (c) not to be entitled to any immunity or privilege of the Commonwealth; ”

            Part (b) doesn’t leave a lot of wriggle room for interpretation…

          • @c “Investigate what? There is no crime even suggested at that is within the pervue of the AFP.”
            In the first warrant; Crimes Act 1914 Section 70.

            “The warrant was legally obtained, but illegal as it assumes NBN falls under Section 70.”
            Right so the search was legal. As to any evidence obtained it’ll require ruling by a court.

            “Assuming Section 95, then only the MINISTER may refer to the AFP, not NBNCo…so no, no uncertainty.”
            Assuming what? Definition of a “Commonwealth officer” pretty broad (therefore Section 70).

            Section 95 seeks to exclude the NBNCo GBE from many things (I wonder why?). However it isn’t “certain” it excludes their employees from the Crimes Act, the warrant issuing judge or magistrate disagreed with your “facts”.

          • “the warrant issuing judge or magistrate disagreed with your “facts”.”

            You assume that the Judge researched them…it appears that both the Judge and the AFP made mistakes. It happens…
            There is no wiggle room here…

            ” it excludes their employees from the Crimes Act”

            Say what? It defines the nature of NBNCo…and it is quite unambiguous.

          • Yep, essentially if the warrant was illegal, pretty much any evidence found under those warrants is then ruled out isn’t it?

            So even if they do turn up “illegal” activity the fact that the warrant was acquired illegally calls the whole situation into doubt. I know there have been criminal cases that have been lost due to incorrect handling of warrants and searches.

        • Richard

          I think Conroy’s point is that the AFP are there to investigate Commonwealth crimes and, as the enabling legislation points out, NBN is not a Commonwealth entity.

          So why are the AFP investigating a non Commonwealth entity ?

          • exactly. this is a jurisdictional issue; NBN(tm) can certainly report to AFP. but where the item is not within AFP jurisdiction – again as expressly noted in the enabling legislation – AFP should have pushed it back across the desk and asked for a more appropriate legal theory to underpin the raid. mere reporting of an issue does not make it incumbent on the AFP to act, there must be appropriate basis to go through with it.

            the fact that the warrant was issued is immaterial – as noted above many cases have gone to court with warrant sought material that was subsequently invalidated by a fault with the legal underpinning authorising the warrant. that material then becomes inadmissible.

            those invalidated warrants were signed off on by a judge/magistrate as well….the warrant actions still went ahead; just because there was a process followed of obtaining, serving and executing a warrant, there is no automatic conferring of legality to that action. R, please stop insisting that because it was served and executed that there must be some ‘there’ there – as the old song goes it “aint necessarily so”.

          • @nm I’m not insisting “there must be some ‘there’ there”.

            Just pointing out there is less “certainty” re illegality or otherwise of the search. Indeed stated the results of any search may never be used.

            @tm Definition of a commonwealth officer for purposes of the crimes act is much broader than many, including Conroy, believe.

          • @R – “Definition of a commonwealth officer for purposes of the crimes act is much broader than many, including Conroy, believe”

            Sorry, but it’s not…
            The articles describing NBNCo state SPECIFICALLY

            “(b) not to be a public authority or an instrumentality or agency of the Crown (however described)”

            Please tell me how that could possibly be a commonwealth officer???

          • @c seriously, read the definition of commonwealth officers in the crimes act (provided)!

      • If the AFP haven’t done the right thing by Labor, the Commissioner Andrew Colvin’s position is toast when Labor get in at the next election.

    • Yes Richard, the AFP certainly were ‘compliant’ when NBNCo’s masters arranged their complaint.

  3. So, is the ALP fighting the AFP raids in court? Surely it’s an open-and-shut case if the warrants have been issued based on incorrect legal foundations? If that’s the case, is there a legal case being brought against the judge who illegally issued the warrant? Is there also an anti-corruption and internal affairs investigation into the activities of the AFP?

    • “So, is the ALP fighting the AFP raids in court?”

      I don’t know if there’s anything to challenge yet…it is obviously only a bad attempt at a smear campaign to try and obfuscate the poor management of NBN.

      • I don’t think there will be any legal challengers because none of the material taken by AFP will see the light of day and the media coverage (attacking the media as well) will work more in Labors favor than the Coalition. So far the Coalition have fucked up the NBN, they called a double DD election and that stuffed up for them with a one seat majority and a more hostile senate. They won’t get anything through the senate and they will try to blame Labor for it and the rag tag senate which they created. Now they are blaming the unemployed, part-time workers because they don’t pay enough tax. As far as the Coalition is concerned, governing would be easy if they didn’t have to put up with you useless voting citizens.

  4. What’s the point of these raids anyway and what a waste of taxpayer’s dollars. So nbn co can find the whistle-blower/s and the libs can cover there backside and not be found out.

    We are stuck with this crap version of the nbn aka adsl 3, let’s just wait and let these lib fools have enough rope to hang themselves in the next 12 months. I’d rather the AFP use our money to lock up the next terrorist and catch the bad guys if I’m honest and spend anymore money on this rubbish.

    • The point of the raids is that the LNP don’t know who is doing the leaking. Even if no charges come from it(which is looking when they have no evidence to use) they hope to find the source and then silence that person somehow. Just having a finger pointed a person would be enough to either sack them isolate them from important information or manage them out of a job.

      • “The point of the raids” we all know the point; however it isn’t meant to be something which is in the AFP purview.

        This is basically a private company using the AFP as their internal private security force because something embarrassed a political party.

    • Page 39
      “Annual revenue is expected to grow from $0.4 billion in FY16 to $5.0 billion in FY20, a 12-fold increase.”

      Basically, FTTN has to generate the same or more ARPU than FTTP has to date…don’t see it happening.

      • Well Chad it states an arpu of $52 by y20. Funny that labor average wholesale price $62 (according to Turnbull) by y21 while Turnbull and Richard was had it at $38

          • Fewer users on FTTN, and wholesale revenue capped at $16 (according to Malcolm Turnull last week), means that FTTN will not cost recover.” Costs also lower, less to recover (hence lower wholesale price).

      • Well there is an extra 1.2 million FttN connections since the HFC is turning out to be too expensive in comparison … although not sure a larger install base will help with the average figure though :/

        • @sm Alcatel-Lucent the bigger winner from the revisions. Number of premises covered by FTTP & HFC has been reduced; by 16% & 30% respectively:
          # premises (%) CP17p40 v CP16p39 [%]
          FTTP 2.0m (17%) v 2.4m (20%)
          FTTN 6.1m (51%) v 4.5m (38%)
          HFC 2.8 (24%) v 4.0 (34%)
          FW & Sat 1.0 (8%) v 1.0 (8%)

          The policy continues to morph into Rudd/Conroy’s original FTTN vision (at many multiples the original cost & several years). The use of FTTB for MDUs (>30%) in HFC coverage area a sensible move and explains some of the change. Increasing HFC CPP the rest:
          CPP CP17p52 v CP16p67 (change)
          FTTP (B) $4,400 v 4,400 (0%)
          FTTP (G) $2,100 v 2,100 (0%)
          FTTN $2,300 v 2,300 (0%)
          HFC $2,300 v 1,800 (+27%)
          FW $4,600 v 4,900 (-6%)

          The HFC CPP increase was explained as resulting from the lead-in switch from demand drop to build drop model (deja vu). With costs (again) increasing they’ll be hoping their revenue forecasts are realised.

      • @c “Basically, FTTN has to generate the same or more ARPU than FTTP has to date…don’t see it happening.”

        ARPU (CP17p51) is forecast to increase from $43 (FY16) to $52 (FY20). This represents a small increase over past actuals ($37 (FY13) to $43 (FY16)). You correctly state the past ARPU trend is for FTTP, FTTN introduced 11 mths ago so early adopters likely skewing those speeds higher than longer term average (as we’ve seen with FTTP declining from 39 (FY13) to 31mbps (FY16)).

        ACCC data shows FY16 average provisioned AVC speeds of 28.54mbps (FTTN) & 32.65 (FTTP). There’s a material (14%) difference between the two technologies. Average FTTN speeds are likely to will remain under FTTP (although more urban customers will help), therefore AVC revenue likely to be less for FTTN.

        Therefore CVC growth the target for growing NBNCo revenue. At just 1.09mbps there’s the same capacity for growth regardless of technology. At the very least they’ll need to force RSPs to disclose their contention ratios to create a market for differentiated offerings (currently a race to lowest price).

        By FY20 they’re expecting 8.1m activations (CP17p50). $5b / ((6.9m+8.1m)/2) / 12 = $55 / mth. Given activations is exponential, not linear, its ballpark their ARPU forecasts. Whether it’ll be realised (rollout, uptake, ARPU) will be watched closely.

  5. The most concerning part for me was the prescence of NBN staff during the original raid on Conroy’s office. No civilians should be present on any police raid regardless of the reason.

  6. My guess is that for section 70 to apply in this latest AFP raid (on the Department of Parliamentary Services), it may be suspected that Commonwealth Officers had passed on information obtained from NBNCo, whatever the real reason for the search (such as weeding out the source of the NBNCo leaks).

    As long as that information came “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.”

  7. “it may be suspected that Commonwealth Officers had passed on information obtained from NBNCo”

    Then it would be the Commonwealth who would file the request for an investigation, not NBNCo as was the case…

    • You’d think so, but the gov’t clearly wanted to maintain the perception it had nothing to do with the raids. Section 70 doesn’t seem to preclude anyone from requesting the investigation, just who can be investigated.

      • “Section 70 doesn’t seem to preclude anyone from requesting the investigation, just who can be investigated”

        More importantly, it describes what the offense is. The leaking of a document is not a Commonwealth Offense if it doesn’t involve a Commonwealth Officer…

  8. Following a US payout to an Australian whistleblower in relation to BHP Billiton corporate practices, Kelly O’Dwyer today said :
    “Kelly O’Dwyer, the Minister for Revenue and Financial Services, said she would not rule out a US-style system of rewards for whistleblowers.
    She said the Government had always been “open” to looking at what other international jurisdictions were doing.”

    So, when the AFP track down the NBN whistleblower, he or she could be in for a government reward.

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