NBN Co's unconventional breach needed for staff morale

By Harley Dennett

June 16, 2016

After revelations on Wednesday that NBN Co sought advice and was warned against defying the caretaker conventions — but did so anyway — the government business enterprise offered several lines of defence.

The first defence, in a hasty response to media inquiries, was that it needed “to respond to inaccurate statements in the media”. That obviously wasn’t going to wash. Election campaigns are filled with divergent claims about government entities and policy that bear little relationship to reality — but the convention remains that those entities stay out of the debate during the caretaker period.

And the NBN Co pledges to abide by those conventions, as it interprets them, in its Twitter bio:

“During the caretaker period, nbn is carrying out the current Government’s policies, subject to caretaker conventions. We will not engage with political material.”

The second defence argued caretaker conventions don’t apply to them in this case, because what the NBN Co is doing is important and criticism that comes with being a government entity jeopardises its efficacy, therefore it must intervene in the election debate. That second statement to the media, on Wednesday afternoon, needs reading in full:

“The Caretaker Guidelines state that: ‘[government companies] … should observe the conventions and practices unless to do so would conflict with their legal obligations or compelling organisational requirements’.

“Building the nbn is an unprecedented task and can only be achieved with a highly engaged and motivated staff. Inaccurate comments that accuse the company of deliberately misleading, deliberately concealing, and then persecuting innocent whistle-blowers have a tremendously corrosive effect on morale and jeopardise the great gains made over the last few years. The opinion piece addressed misleading claims to restore the trust of its 5000 employees.

“Any accusation that the company’s staff, management, its board and (by implication) its shareholder departments have conspired to keep large cost increases secret from the Australian people is not only plainly and demonstrably false, but is a serious accusation in light of the Corporations act (for example section 184). This is obviously not acceptable and the opinion piece addressed the allegations in a manner commensurate with the mode in which they were made; that is, publicly in the national media.”

The Department of the Prime Minister and Cabinet determined Switkowski breached caretaker conventions in his opinion piece defending a crackdown on an embarrassing leak, which was referred to the Australian Federal Police.

But there’s nothing PM&C could do about that because the conventions have no legal force, its secretary Dr Martin Parkinson wrote to Labor’s finance spokesperson Tony Burke.

Prime Minister Malcolm Turnbull backs Switkowski’s judgement and says his position on the NBN Co board is safe.

“He felt he had to set the facts [of] the matter straight,” Turnbull said this morning, saying he respected Switkowski’s decision to write the controversial op-ed and describing him as “one of our most distinguished corporate leaders”.

Cabinet Secretary Arthur Sinodinos also offered qualified support to Switkowski after the news of the findings was made public on Wednesday. Sinodinos said: “I don’t think he did anything wrong, but I think he should have realised he was walking into a minefield.”

Labor leader Bill Shorten, however, described the opinion piece as a “shameful breach” of the conventions.

NBN Co’s relationship with the ALP has broken down since last month’s AFP raids on Labor party members’ homes for leaked company documents. ALP Senator Stephen Conroy has claimed, and maintains, that all the documents seized in the raid are protected by parliamentary privilege. That question remains unresolved for now, and will be decided by the Senate when it sits after the election.

Our sister publication Crikey has reported that NBN CEO Bill Morrow’s efforts to reach out to the Labor party to discuss policy have been rebuffed twice, possibly related to concerns about NBN Co neutrality and abuse of process during the raids.

Switkowski has strongly defended NBN Co actions and performance. In particular, he denies that the documents in Labor’s hands are the result of genuine whistleblowers as nothing had been raised through the channel for whistleblowing.

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