NBN document leak: Opposition may prevent AFP from using documents in NBN investigation

Updated

The Federal Opposition looks increasingly likely to have enough support in the Senate to prevent the Australian Federal Police (AFP) from using thousands of documents as part of its investigation into damaging leaks from the company building the National Broadband Network (NBN).

Labor has claimed parliamentary privilege over the material sought during a lengthy search at Parliament House yesterday, and in a separate search in May of Senator Stephen Conroy's Melbourne office, and the homes of two Labor staff members.

The claim means the Senate will ultimately decide if the material should be released to the investigation, or whether it relates to the work of parliament.

"I'm expecting Liberal and National Party Senators to uphold the privilege," Shadow Attorney-General Mark Dreyfus told Lateline.

"That is something that is central to parliamentary democracy, it's not something that should be reduced to some parliamentary political calculation."

But even if the Government votes against maintaining the claim of privilege, Labor could have enough support regardless.

It has 26 votes in the new Senate, and would need the support of another 13 Senators to prevent the release of the documents.

The three South Australian Senators from the Nick Xenophon Team will back the claim.

"What's at stake here goes beyond a particular dispute over documents relating to the NBN," Senator Xenophon told AM.

"It goes to the heart of what privilege should be, in terms of the Senate being able to do its job to keep the executive arm of government accountable."

At this stage, Tasmanian Senator Jacqui Lambie is also likely to support the claim, meaning the Greens could contribute the remaining nine votes Labor needs.

The Greens party room has not yet met to discuss the issue, but its co-deputy leader Scott Ludlam said he was personally inclined to consider Labor's request "favourably".

"There is a century of practice that's built up around parliamentary privilege and it's an important body of work," Senator Ludlam told AM.

"It's designed to protect the work of parliamentarians from obstruction; from time to time that work means we will be in contact with whistleblowers, and people who have information to share.

"But the Greens party room hasn't had the opportunity to discuss it face-to-face yet."

Concerns over AFP search at Parliament

Senator Ludlam said politicians were not "above the law" and that parliament should not be a "sanctuary" against allegations of serious corruption or misconduct.

Sorry, this video has expired Video: Federal police officers enter Parliament House (ABC News)

But he said that was not the case with yesterday's search at Parliament House.

"I think NBN Co need to take a good hard look at its internal document security, and they have every right to call the police in to try and establish what happened," he said.

"But I am very, very troubled by the precedent that's been set, that this material has been in the hands of political advisors, who in the course of their parliamentary work would have use of that kind of material in the public interest; that's what parliamentary privilege is for."

Cabinet minister Simon Birmingham said the claims of parliamentary privilege would be "very carefully" examined when parliament returned.

Senator Birmingham told the ABC that claims of privilege were very serious matters.

"It should be used sparingly and cautiously and, of course, we will have to look very carefully at the precedents that exist for claims of this nature and the exact nature of the claims the Labor Party and Senator Conroy are making," he said.

"It is not there to simply cover up illegal activity. It is not there to cover up basic leaks of information."

Liberal Democrat Senator David Leyonhjelm has called for police to only be allowed into parliament in cases of national security or extreme urgency to prevent a crime.

"I also am very well aware of how much work the AFP has to do, much of it at very high priority, terrorism related, and I wonder whether chasing around in Parliament House for documents is particularly good use of their time," he said.

Xenophon to propose public interest defence

Senator Xenophon said he planned to release a draft bill in the next two to three weeks to create a public interest defence for people who leak confidential Commonwealth information, like the NBN Co documents.

"It's important that we resolve this issue once and for all," he told AM.

"This particular issue involving Senator Conroy's office and the NBN highlights the importance of this legislation, and whilst the Government may not like any changes I'm sure they will think very differently if they're ever in opposition again.

"It's very much in the public interest that we reform this."

Glossary

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Parliamentary privilege

Parliamentary privilege refers to

According to AFP guidelines, "parliamentary privilege applies to any document or other thing which falls within the concept of 'proceedings of parliament'". That includes "documents sent to a senator, which the senator then determined to use".

NBN Co

NBN Co is a Government-owned corporation, charged with constructing the National Broadband Network. The company's constitution states "the company's objects are to roll-out, operate and maintain a national wholesale broadband network while working closely with the Commonwealth during the implementation study in order to facilitate the implementation of Australian Government broadband policy and regulation".

Whistleblowers

There is no global definition of whistleblowing, but a 1994 Senate Select Committee described it as “the disclosure by organisation members (former or current) of illegal, immoral or illegitimate practices under the control of their employers to persons that may be able to effect action".

Another definition describes a whistleblower as a person with insider information of misconduct who makes a decision to report or disclose that information. They are different from a customer, members of the public, or others who have evidence of and report organisational misconduct. Parliamentary privilege refers to special legal rights and immunities which apply to each House of the Parliament, its committees and Members. These provisions are part of the law of the Commonwealth.According to AFP guidelines, "parliamentary privilege applies to any document or other thing which falls within the concept of 'proceedings of parliament'". That includes "documents sent to a senator, which the senator then determined to use".NBN Co is a Government-owned corporation, charged with constructing the National Broadband Network. The company's constitution states "the company's objects are to roll-out, operate and maintain a national wholesale broadband network while working closely with the Commonwealth during the implementation study in order to facilitate the implementation of Australian Government broadband policy and regulation".There is no global definition of whistleblowing, but a 1994 Senate Select Committee described it as “the disclosure by organisation members (former or current) of illegal, immoral or illegitimate practices under the control of their employers to persons that may be able to effect action".Another definition describes a whistleblower as a person with insider information of misconduct who makes a decision to report or disclose that information. They are different from a customer, members of the public, or others who have evidence of and report organisational misconduct.

Topics: federal-government, federal-parliament, government-and-politics, political-parties, law-crime-and-justice, australia

First posted