A closer look at the AFP's shady Labor raid

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It's been two weeks now since the Australian Federal Police raided the offices of the official opposition, as well as one of its senators. The raids got a certain amount of coverage at the time.

Australian Federal PoliceNevertheless, despite the 24 hour nature of the news cycle and the consequent deficit in journalists' attention spans, it has puzzled me that the constitutional implications of what was acknowledged to be an unprecedented event were not explored in more detail.

Even viewed in the most benign light, the raids raise important questions about the overlap between the roles of the public and private sectors in government and the nature of Westminster government itself — questions which the media has generally refused to ask.

The AFP said the raids took place independently of government and there was no question of political interference in their decision-making. NBN Co Ltd is a private company which asked the police to investigate the leaking of documents, and the fact that the raids happened during an election campaign was, we were led to believe, completely coincidental, as that's where the evidence led at the time. This narrative has, in large part, been accepted by Bill Shorten.

The matter is not quite so simple, though. NBN Co Ltd is not just any private company. It is wholly owned by the Commonwealth (represented by the Ministers for Communication and Finance). The company's website itself acknowledges that it is subject to the caretaker conventions and to the Freedom of Information Act — all of which bind government, rather than private entities.

There are, it is true, limits to this accountability — Parliament has exempted NBN Co from disclosing matters which are commercial in confidence — but it is nevertheless true that the company is generally regarded as an arm of government for the purposes of information disclosure.

That NBN Co is not just any company is also apparent from the resources which they have been able to command in launching this investigation.

Regardless of what lay behind the timing of the raids themselves, 'ordinary' companies do not generally have access to the resources of the Federal Police to deal with their intellectual property issues. Unauthorised use or disclosure of trade secrets or commercial documents is generally a matter for internal company investigation or, at worst, civil litigation.

 

"The media seems to have known about the raids before the Labor Party, as they were conveniently on hand to greet the arriving police."

 

Indeed, the police statement says that the reason the AFP claimed jurisdiction to conduct the raids in the first place is that the information is effectively owned by the Commonwealth — an implicit admission that this is not 'any' company nor is it 'any' complaint.

On the other hand, as the raids did happen during an election campaign, the fact that the police were supposedly exercising their powers to protect Commonwealth data should have required the impending raids to be at least disclosed to the opposition under the caretaker conventions to which NBN Co is subject — something which does not seem to have occurred even though the Minister for Communications has said that he was aware of the pending raids well in advance. Interestingly, the police deny this, raising the question of who is telling the truth.

The caretaker conventions, while not legally enforceable, are rules which require the public service to act neutrally during the pre-election period and the opposition to be kept informed of major decisions. Indeed the media seems to have known about the raids before the Labor Party, as they were conveniently on hand to greet the arriving police. There seems to be no allegation that the Labor Party or its officials acted criminally and therefore needed to be kept in the dark. It is therefore difficult to see why Sky News were informed of the raids before the opposition.

The next inexplicable thing about the raids is the way they were conducted. The police took a member of NBN Co along with them to identify documents (although he was said to not actually be conducting the search). It is most unusual (to put it mildly) for a complainant to be invited along to assist the police exercise a search warrant. If the police were hunting particular documents, then it is unclear why an employee needed to be on hand. If they were not, then the raid begins to look like a fishing expedition.

Finally, the raids were conducted on the offices of a senator who was conducting a parliamentary enquiry into the NBN. While the police have stated they sealed the evidence once the Labor Party had claimed parliamentary privilege, it would be most surprising if privilege were not claimed in respect of documents seized from a senator's offices in such circumstances. Most bizarrely of all, after all this, the AFP advised that the NBN representative on the raid took photographs of documents found at the raided premises and distributed them to persons unknown. Again, there seems to have been little follow up.

The uncomfortable fact is that the leaks about which NBN Co is complaining are not damaging because they relate to competition (there is none as the NBN is a statutory monopoly) nor to national security, but rather because they expose cost overruns and reflect badly on the government of the day — the same government which holds all the shares in NBN Co. That comes very close to using the police for party political purposes, whatever the police or the politicians themselves might say — and raises a lot of questions which have so far failed to be asked, let alone answered.

 


Justin GlynJustin Glyn SJ is studying for the priesthood. Previously he practised law in South Africa and New Zealand and has a PhD in administrative and international law.

Topic tags: Justin Glyn, NBN, Australian Federal Police


 

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Existing comments

another point. Why have none of the media organisations named in warrants been searched yet? That in itself surely raises some interesting points. Usually raids like this would have "hit" all named people and premises at the one time
Andrew | 31 May 2016


Great analysis, only thing that I would add to this is that the NBN enabling legislation specifically denies them any rights a commonwealth entity has unless expressly legislated. the FOI disclosure is specifically legislated, It is worth looking into to see whether or not NBN Co is actually entitled to those AFP powers because in a cursory glance they are not.
lilstevie | 31 May 2016


How well does the Pm know Ziggy? Probably very well. In those circumstances can we really believe the Pm when he says that he did not know of the raid. Perhaps he did not. But is that the right question? Was the PM consulted about making a complaint to the AFP in the first place?
Lee Boldeman | 01 June 2016


Thank you Eureka Street, it is sad state of affairs now in Australia, where the MSMedia are no longer pursuing illegal or even perceived illegal actions because of political leanings, firing of investigative journalists or whatever other reasons. We, the Australian people are ill-served by our msm including the ABC now. This article should get as much exposure as possible, therefore I am retweeting it, putting it on FaceBook and GooglePlus. I would encourage everyone who reads this to do what they can to revive this extremely important matter. There has been too much breaching of the CareTaker period by this, to me, disgraceful, deceptive government
Rhona Eastment | 01 June 2016


It puzzles me that you appear to be puzzled by what you call the media's failure to explore this issue. What evidence do you have for this charge. No-one familiar with Australian media outlets would expect much from ABC, Murdoch or Fairfax but you might like to look at smaller players like the Guardian or Crikey
barry hindess | 01 June 2016


It is extremely worrying that the AFP are acting on such accusations. The law? Our laws are manipulated to suit those with power and the powerless are trampled. Fairness and equity have gone. What about the important whistle blowers? We need honest and brave people to come forward when things are not right. Demonstrates another scary step backwards for democracy.
Cate | 01 June 2016


For some time now I have had suspicions about the motives of the Federal Police. These recent actions confirm it, especially as the media were informed and showed footage of boxes being brought out of a Labor Senator's office. Great article!
Pauline | 01 June 2016


Thank you Justin for once again sharpening our vision & making us aware of issues swept under the carpet of conformity.
M. Confoy | 01 June 2016


It seems likely that the Labor party has been so intimidated by the threat that they will seem soft on terrorism (and so lose votes) that they are rolling over on this extraordinary intrusion by the Fed police into an election campaign. Given the well known facts detailed in this article, it is very hard indeed to understand this in any other way.
BB | 01 June 2016


Excellent piece. Bill Shorten appears to have missed an opportunity here.
Luke | 01 June 2016


The Corporate psychopaths the equal to Sir Henry Morgan and Cecil Rhodes, both who paid off the Royal Families with treasure stolen from other nations. So they could go about plundering and murdering with impunity, and the royal charter like the British East India Company. Their ilk run corporations today and now are treating police forces as they treat armies in Iraq and Afghanistan making the coffers swell while we pay (taxpayers) fund their wars.
John Ward | 02 June 2016


The AFP could have chosen not to collude by refusing to undertake this task. With their history of how they chose to deal with the two, now dead, Aussie men held as prisoners in Bali, the AFP might need to embed a Code of Ethics for their leadership and the organisation. All so depressing. Thanks Justin ... Excellent insight.
Mary tehan | 02 June 2016


Bravo Justin. The public and the Church need people like you who ask the right questions, do the research, have a good legal background, and have the courage and compassion to expose political corruption. This needs to be front-page news. Are journalists blind to what's going on, or have even those working for the 'independent' newspapers sold their souls to keep their jobs?
Annabel | 05 June 2016


we also do not want international banks in our country acting like predators buying up all our assets and we definatly dont want the likes of rupert murdoch involved in any way with our politics
wayne johnson | 07 June 2016


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