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 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 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.