NBN’s witch hunt for whistleblower highlights need to scrap Australia’s draconian leaking laws

Two years*. That’s the amount of jail time facing the person or people who leaked in February damaging documents demonstrating Prime Minister Malcolm Turnbull’s National Broadband Network was facing mounting delays and rising costs.

What happened Thursday night, when Labor staffers and former Labor communications minister Stephen Conroy’s Melbourne office was raided over the leak, was a disgrace. But not for the reasons you might think.

The NBN leaks have not stopped, as documented brilliantly by Crikey journalist Josh Taylor. Time and time again documents have been leaked from inside the company building the National Broadband Network showing Prime Minister Turnbull’s NBN promises won’t be met.

But why was Labor the one being targeted in Thursday night’s raids you might ask. A sensible question from those not in the know about how government leaks tend to work nowadays.

It’s quite simple: often whistleblowers will now go to the Opposition to leak documents, using them as a proxy to bring to journalists what they see as important information in the public interest. Unlike 2014’s Senator ‘car crash’ Brandis, the leakers know what telephone “metadata” is, but they often don’t know how to contact a journalist without leaving a trace.

Leakers, particularly NBN Co employees, do, however, know how to contact the Labor party and Senator Conroy, especially considering he was their boss when he was Australia’s communications minister.

Now back to why Thursday night’s raids were a disgrace.

While some are still busy blaming the Turnbull government for the raids, they were actually to do with a draconian law in Section 70 of the Crimes Act, which states:

A person who, being a Commonwealth officer, publishes or communicates, except to some person to whom he or she is authorised to publish or communicate it, any fact or document which comes to his or her knowledge, or into his or her possession, by virtue of being a Commonwealth officer, and which it is his or her duty not to disclose, shall be guilty of an offence.

The punishment? “Imprisonment for 2 years.”

The Australian Law Reform Commission has called for this section to be repealed and replaced. And so too has the union representing journalists, the Media, Entertainment and Arts Alliance. But no one had heeded the call. It’s the same law that led to federal police trawling through Guardian Australia journalist Paul Farrell’s telecommunications records in an attempt to uncover his sources for reporting on Australia’s asylum seeker policies.

And it’s the same law that led to former Fairfax journalist Phillip Dorling having his home raided over the leaking of a large number of secret Australian intelligence reports dealing with the tumultuous events leading to East Timor’s 1999 independence ballot.

Thursday night’s raids have yet again shone a spotlight on why these laws need to be repealed. Whistleblowers exist for a reason: to unearth the truth. Without them government claims remain unchallenged and we as a society are worse off. Given 20 NBN Co staff were reportedly interviewed as part of the leak investigation in addition to Thursday night’s raids on Labor offices, the truth about the NBN’s progress is now likely to be suppressed as a result.

It’s relatively clear now that the referral to the federal police about the leak did not come from Prime Minister Turnbull, nor did it come from his communications minister Mitch Fifield or Attorney-General George Brandis. It came from NBN Co, which, as pointed out by RMIT University’s Dr Mark Gregory, a prominent commentator on the NBN, has had an “adversarial” relationship with media, specifically tech journalists, for some time now.

NBN Co has been overzealous in tracking down recent leaks, especially given it never took such drastic action (that we know of) over leaks when the Liberals were in Opposition and internal documents from unhappy NBN Co employees were leaked regularly to the Australian Financial Review when Labor was in power.

Malcolm Turnbull, a former communications minister himself who oversaw the NBN’s rollout, has many personal friends who were appointed to NBN Co, or not sacked from the board, when he became communications minister, including JB Rousselot, Justin Milne, Bill Morrow and Kerry Schott. All want him to succeed. Rousselot even shares ownership in a boat with Turnbull. The three key questions that need to be answered now are:

• Who at NBN Co referred the complaint about the leak to the federal police and are they a mate of Turnbull’s?
• Why did they see it as necessary to do so?
• What was commercially sensitive about the information that was leaked?

If satisfactory answers cannot be provided to the above, particularly the third point, then NBN Co risks looking as though it is just protecting another embarrassing Turnbull government leak concerning the NBN. While it might not have been its intent, it certainly could be perceived that way, as Australian Financial Review tech editor Paul Smith observed on Friday:

The leaks in question did not impact NBN’s ability to sell broadband services, they raised operational issues … which were much more damaging from a political than a commercial point of view.

Now, more so than ever, the below extract from a Fairfax Media story about government leaks referred to the federal police is more relevant than ever:

A former senior federal police source told The Age there was wide acknowledgement within the AFP that leak investigations were generally politically motivated and of little importance. Still, federal officers were forced to investigate. ‘’If the government want us to do it, they’re our masters, so we do it,’’ the source said.

“We take leaks very seriously as any business would,” NBN Co corporate affairs spokeswoman Karina Keisler said on Thursday night as the raids were still unfolding.

The author is a former Sydney Morning Herald technology editor. The opinions expressed here represent his own and not those of his employer.

*UPDATE:

ABC News reports that federal police are using Section 79 of the Crimes Act to pursue the leaks. Like Section 70, Section 79 has offence categories which can result in up to 7 years for leaking or receiving leaked information.

For example:

(2) If a person with the intention of prejudicing the security or defence of the Commonwealth or a part of the Queen’s dominions:

(a) communicates a prescribed sketch, plan, photograph, model, cipher, note, document or article, or prescribed information, to a person, other than:

(i) a person to whom he or she is authorized to communicate it; or

(ii) a person to whom it is, in the interest of the Commonwealth or a part of the Queen’s dominions, his or her duty to communicate it;

or permits a person, other than a person referred to in subparagraph (i) or (ii), to have access to it;

(b) retains a prescribed sketch, plan, photograph, model, cipher, note, document or article in his or her possession or control when he or she has no right to retain it or when it is contrary to his or her duty to retain it; or

(c) fails to comply with a direction given by lawful authority with respect to the retention or disposal of a prescribed sketch, plan, photograph, model, cipher, note, document or article;

he or she shall be guilty of an indictable offence.

Penalty: Imprisonment for 7 years.

And

(5) If a person receives any sketch, plan, photograph, model, cipher, note, document, article or information, knowing or having reasonable ground to believe, at the time when he or she receives it, that it is communicated to him or her in contravention of section 91.1 of the Criminal Code or subsection (2) of this section, he or she shall be guilty of an indictable offence unless he or she proves that the communication was contrary to his or her desire.

Penalty: Imprisonment for 7 years.