Criminal charges have been laid against a former employee of the Australian Secret Intelligence Service (ASIS), ‘Witness K’ (they cannot be identified), as well as his lawyer, Bernard Collaery, for conspiracy to breach Section 39 of the Intelligence Services Act1.
Between 2004 and 2006 the Palacio Governo of Timor-Leste was being refurbished as part of an AusAid project. The walls in these refurbished rooms were later found to have had listening devices placed in them by staff of ASIS, Australia’s overseas espionage organisation, who had posed as AusAid project workers. This enabled ASIS, and thereby the Australian Government, to listen in on deliberations by the Prime Minister and cabinet of Timor-Leste as they discussed their tactics and options for negotiations concerning the agreement on the marine boundary between Timor-Leste and Australia and the subsequent carve-up of its natural gas and oil resources1,2.
The espionage was undertaken while the Howard government was in office, and it was then Foreign Minister, Alexander Downer, who instructed ASIS to undertake the surveillance3. After the Howard government’s loss of the 2007 federal election, Downer retired from politics, forcing a by-election in his seat of Mayo4. Following his retirement, Downer obtained a highly paid consultancy with Woodside Petroleum, the company responsible for exploiting most of the oil and gas reserves in the area concerned. It was this which prompted Witness K, who had been part of the bugging team, to complain to the Inspector General of Intelligence and Security about the legality of the operation. The Inspector -General agreed that Witness K’s evidence could be disclosed in any related legal proceedings. After that, the information made its way into the media3,5.
In 2013, Bernard Collaery began to act for the Timor-Leste government in relation to its interests in the boundary dispute, and Witness K briefed Collaery about the bugging. The Timor-Leste government took its concerns about the surveillance and the concomitant commercial disadvantage it had suffered to the Permanent Court of Arbitration in The Hague. It declared that it wanted to withdraw from the existing treaty because of this. The Timor-Leste government then decided to call Witness K to the court, but the Australian Government immediately cancelled his passport, and raided both Witness K’s and Collaery’s homes and offices and confiscated assorted material which was the property of the Timor-Leste government3. This was a breach of international law.
One could be forgiven for thinking that this is all about Australia trying to cover its tracks because it has broken international law and conventions. However, Justice Anthony Mason put an end to the argument that executive government might condone illegal activity by its intelligence agencies when he said, in the judgement of A v Hayden(1984) that: “For the future, the point needs to be made loudly and clearly that if counter-espionage activities involve breaches of the law they are liable to attract the consequences that ordinarily flow from breaches of the law”3. It could be construed that the raids and confiscation of material come within the province of counter-espionage.
The directions hearing for the trial of Witness K and Collaery was held in the ACT Magistrates Court on September 12th. However, the hearing only lasted 15 minutes and, from this, it is clear that the prosecution, acting for the government, wants the entire proceedings heard in secret. The defence is quite clear that Witness K’s identity should remain secret to keep them and their associates safe, and not to jeopardise the credibility of any current or future ASIS operations6.
Why would the government want to prosecute Witness K and Collaery? Is it to keep a lid on the surveillance? Hardly, because it has now been in the media for a few years. Apart from the government making sure that no other ASIS or other government employees have an attack of conscience and decide to blow the whistle on government transgressions, this is all about protecting Alexander Downer. The complete secrecy requested by the government would prevent the public from hearing defence evidence that the 2004 bugging operation could itself be a crime – a conspiracy to defraud the government of Timor-Leste under Section 334 of the Criminal Code of the ACT6. That might be making Downer a bit nervous.
Liberals protecting liberals, again.
- Media Release, 10 September 2018. Truth tellers facing prosecution, jail by Australian government. Timor Sea Justice Forum.