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.
Nevertheless, 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