news Labor Senator Stephen Conroy has obtained legal advice that the NBN company’s referral of whistleblowers to the Australian Federal Police was illegal, and has demanded that NBN chair Ziggy Switkowski resign from his post as a result and that the AFP cease its investigations into the matter.

Several weeks ago, AFP offices raided the Melbourne office of Conroy — a former Communications Minister and the current Shadow Defence Minister — as well as the house of at least one Labor staffer working for Shadow Communications Minister Jason Clare, in an apparent attempt to ascertain the identity of whistleblowers who have leaked a series of key documents from within the NBN company.

In the wake of the raids, Conroy claimed Parliamentary Privilege with respect to documents seized at the time. Those documents have now been sealed by the Senate and cannot be opened by the AFP unless the new Senate allow the agency access.

However, speaking on ABC Radio’s Drive program last night, Conroy said he had now obtained legal advice that the NBN company’s referral to the AFP in the closing months of 2015 was actually illegal.

Delimiter recommends that readers click here to listen to the full ABC broadcast. The NBN segment starts at about 23:40.

Conroy’s legal advice appears to be based on the fact that NBN staff are not officially Commonwealth officers. The AFP raids were based on alleged breaches of the Crimes Act, which specifically mentions Commonwealth officers.

“I’ve written to the Federal Police on Friday, asking them to end their ludicrous investigation into links from the NBN on the basis of legal advice that says NBN Co have incorrectly called the police in,” Conroy said on air yesterday afternoon.

“They are not Commonwealth officers, and I’m seeking and demanding an end to the investigation and an apology from Ziggy Switkowski, an apology from Mitch Fifield who’s overseen this, and that Ziggy Switkowski resign over it.”

Conroy added that he had also written to the AFP requesting that other information associated with the raids, such as recorded telephone calls and emails, be also held under Parliamentary Privilege.

“I’ve received no response whatsoever to that, and now I’ve written again to them, saying that NBN Co have illegally authorised them to conduct this investigation and their raid on my office is illegal,” Conroy said.

In response, Communications Minister Mitch Fifield said on the same ABC program that he would not apologise to Conroy.

“I didn’t raid Stephen’s office; the Australian Federal Police did. The referral from the NBN to the AFP was a matter for NBN, and the AFP determine what is and is not within their jurisdiction. I’m someone who has confidence in the integrity of the AFP. It’s something that’s been called into question by the Australian Labor Party,” the Minister said.

In answer to a question from ABC host Patricia Karvelas about whether he believed it was “appropriate” for the AFP to raid Opposition offices during an election, Fifield said:

“It’s entirely a matter for the Australian Federal Police; they have national independence, and to question the AFP and their motives is to question the integrity of that organisation, which is something that Labor continues to do.”

Fifield claimed that the NBN company was “entitled” to have made the referral to the AFP.

opinion/analysis

I’ve seen the ‘Commonwealth officer’ legal angle speculated about quite a bit online over the past several weeks. If any legal minds are interested in digging into this for Delimiter to provide some expert commentary, here’s a PDF copy of the warrant which the AFP served on Labor (published by the ABC’s Media Watch program).

It will be fascinating to see if Conroy gets anywhere with this legal angle. The Labor Senator is not known for being easy to deal with. I suspect the AFP may be about to find itself on the wrong end of action by a bunch of Labor lawyers.

But then, they probably should have expected that. Raiding the offices of the Opposition — especially a senior Labor figure and former Minister such as Conroy — during an election was always going to result in a standoff between lawyers at 20 paces. Personally, I can’t imagine why the AFP thought that was a good idea.

Image credit: Parliamentary Broadcasting