What you need to know about NBN raids — and why it could help Labor

Australian Shadow Attorney-General Mark Dreyfus speaks to media about AFP raids

The Australian Federal Police’s decision to raid the offices of former Labor communications minister Stephen Conroy and the home of a senior ALP staffer overnight has thrown the National Broadband Network directly into the 2016 election campaign for the first time.

Late yesterday evening the Australian Federal Police raided offices in East Melbourne and a home in Brunswick as part of an execution of two warrants related to the investigation of a leak of sensitive documents from NBN.

NBN referred the matter to the Australian Federal Police on December 3 last year, and it appears to be related to a leak, from late November, of a document outlining that Optus’ cable network — acquired by NBN as part of the so-called multi-technology mix — might be in worse condition than expected and NBN might need to roll out a new network in areas where the Optus cable network was in such poor condition.

That document was first leaked to Fairfax, before being quickly trumpeted by opposition communications minister Jason Clare in a press release. A second leak was given to The Australian a week later, outlining that the cost to repair the legacy Telstra copper network for fibre-to-the-node services could be $640 million. Again, Clare issued a press release shortly after the news story was published. The leaked presentation in that release remained on Clare’s website this morning.

The third damaging leak from NBN came in February, and it was leaked to Fairfax, which reported delays in NBN’s internal roll-out targets for fibre-to-the-node services. Yet another Clare release followed shortly after with a link to the document. This document is now no longer online.

The fourth was given to Lateline in March, related to trials of fibre-to-the-distribution-point technology — believed to be the technology that would be a key component of Labor’s NBN policy.

The warrant makes reference to stories in The Australian, the AFR, on the ABC, technology site Delimiter and in The Sydney Morning Herald and seeks access to emails, computers, phone records and official documents.

As Crikey reported at the time, the leaks were highly damaging to NBN, and to Prime Minister Malcolm Turnbull — who was the communications minister for the majority of the past three years and spearheaded the controversial change in policy for the network from Labor’s 93% fibre-to-the-premises (FttP) to a mixture of FttP, fibre-to-the-node and cable.

It’s unclear why the AFP waited more than six months from the first leak and two months since the most recent leak to conduct the raids on Conroy’s offices at the Commonwealth Parliamentary Offices in Melbourne and a staffer’s house — not to mention in the second week of an election campaign. The AFP this morning issued a press release claiming that its decision was “independent of government” and part of a “phased approach” the AFP had taken to the investigation:

“The next phase of this investigation involves the examination and analysis of material collected during these search warrants. The federal government and opposition were appropriately notified and advised of operational activity regarding this matter after it commenced yesterday.”

Crikey understands the timing has more to do with the AFP moving on preventing potential future leaks.

The investigation is into whether there has been a breach of the Crimes Act by leaking documents of the Commonwealth.

The two Labor staffers believed to be under investigation are Ryan Hamilton, Jason Clare’s media adviser, who is currently Labor’s campaign director, and Andrew Byrne, a policy adviser in Clare’s office, who used to work for Conroy. AFP officers left Byrne’s home at 5am today. The AFP confirmed that an NBN staffer was on site for the raids and was appointed as a constable assisting police during the raids.

Crikey understands that more than a dozen NBN employees have been interviewed as part of the police investigation. AFP Commissioner Andrew Colvin this morning refused to state whether metadata had been accessed as part of its investigation. NBN previously refused Crikey‘s freedom of information request into whether it had referred leaks to the AFP for investigation.

Labor has argued that the documents in question are covered by parliamentary privilege because they are part of Conroy’s work on the Senate Select Committee on the National Broadband Network. Conroy often raised the leaked documents during committee hearings or when NBN appeared before Senate estimates hearings.

AFP commissioner Andrew Colvin told journalists this morning that because parliamentary privilege had now been claimed, the documents were now sealed and it would be up to the Senate to decide whether the documents were subject to parliamentary privilege.

This means, effectively, that the AFP cannot continue its investigation until after the election, when Parliament resumes.

Shadow Attorney-General Mark Dreyfus has also said the government needs to answer questions on whether it pressured NBN into referring the matter to the AFP for investigation. Coalition election spokesman Mathias Cormann ducked the question three times during interviews this morning. Prime Minister Malcolm Turnbull said he was only made aware of the investigation yesterday.

Questions on whether other government ministers or staffers were aware of the investigation have so far gone unanswered by the Coalition’s campaign media team. NBN declined to comment.

NBN CEO Bill Morrow told Crikey in March that he believed it was likely that the leaks were political.

“Is this a function of someone who believes in one party or another and therefore wants to help them get back into office? I don’t know, but it would sure suggest that the volume going out near an election period that that’s more what this issue is than any sort of disgruntled nature,” he said. “I get the fact there are a lot of people who have a lot of belief systems, and I respect that. We have a policy when it is confidential, that you break that policy if you leak that sort of stuff, there’s some laws and some cases where you are breaking the law. We emphasise that.”

He said that NBN had corporate security to try to ensure that leaked documents weren’t getting out.

“And that’s all we are really doing to try and keep the attention and the awareness.”

While the NBN has not been an election issue for quite a while, the AFP’s raids have put it front and centre. Labor is already making an issue of why the AFP raided Labor over this leak yet has not raided anyone else over the 20 or so leaks from the Coalition government over the past few years, including the leak of the draft defence white paper to The Australian. Colvin said that the AFP had not been selective in choosing which leaks to investigate.

Colvin said that claims of political bias over the investigation of the leaks had been referred to the professional standards branch in the AFP for investigation.