The July 2020 cover of Australian Foreign Affairs. In early 2008, Witness K approached the IGIS, Ian Carnell, alleging that a cultural change within Asis had led to his constructive dismissal. In 2013, the Australian government revealed the allegations of spying. Close. They want to keep Australia, and Australians, safe. “The whole experience of the negotiation from 2000 on and through this whole episode was to see a country that – yes, in many ways focuses on the public good – but where corporate greed was a big part of it, because the Howard and Downer government, they were shills for the corporations,” Galbraith said. He said he would travel to Canberra if necessary, to give evidence in support of Collaery and Witness K, because, he told me, it would be against his conscience not to. Oddly, it was the Gillard government that made the spying allegations public. Fernandes, from UNSW, said the case speaks to another critical institutional failing: the inability for Australia’s parliament to scrutinise intelligence operations. Collaery helped the Timor-Leste government build a case against Australia at The Hague, alleging the bugging had rendered the treaty void. East Timor will abandon the multi-billion dollar oil and gas treaty at the centre of sensational spying claims by Australia. “There’s another aspect to this affair that most Australians haven’t appreciated – the moral injury felt by the people of Timor-Leste,” Fernandes said. While CMATS was publicly applauded as a win by both nations, it was in fact another major victory for Australia, given international law clearly favoured a median-line boundary. Supporters of Bernard Collaery and Witness K outside the supreme court in Canberra. This was the outcome the Howard government was desperate to avoid in the negotiations more than a decade earlier – so desperate that it allegedly diverted intelligence assets from the war on terror to assist Australia’s negotiating team in Dili. And it is arguably what drove Witness K to later raise with the Inspector General of Intelligence and Security disquiet within Asis about the operation. “I can’t think of anything more crass than what has occurred,” he said. Unfortunately for Collaery and Witness K, and the 7,000 staff currently working in Australia’s intelligence agencies, it also shows that opportunities for an operative to challenge a direction to perform an immoral or illegal act are limited and likely to be career-ending. Witness K and lawyer Bernard Collaery helped correct what they saw as a gross injustice. Other potential agricultural crops are vanilla, spices, candle-nut and palm oil. Prime Minister Tony Abbott’s government is intensifying the drive, commenced under the previous Labor government, to shut down East Timor’s legal case and prevent further public exposure of the spying operation, which began in 2004 during negotiations in Dili on the $40 billion oil and gas treaty. In his 2018 book Island off the Coast of Asia, Fernandes writes that the listening devices installed in the Palácio do Governo “were turned on and off by a covert agent inside the building. Instead, secrecy laws should make allowances for disclosures in the public interest, the report said. His efforts to get it back stretched across six years of secret hearings in the administrative appeals tribunal. The following year, with Australia’s covert support, Indonesia invaded Portuguese Timor. It was a good deal for the Australian government, and a boon for the joint venture of multinationals, led by Woodside, seeking to exploit the Timor Sea. The listening devices would reveal Timor-Leste’s bottom line, its negotiating tactics and the competing views of cabinet members. After learning about the spying, the East Timor government wanted to revoke the deal it signed with Australia. David Irvine, the director general of Asis at the time of the Dili maritime boundary negotiations, was then director general of Asio. Timor-Leste’s team was led by former US ambassador Peter Galbraith, supported by a handful of idealistic young lawyers. Australia refused Portugal’s requests for talks and instead negotiated a treaty with Indonesia in 1972. The leading security analyst Desmond Ball warned that “the relationship between intelligence and policy is complex and delicate. Australia’s objective in the negotiations was to retain rights to hydrocarbon-rich areas of the Timor Sea much closer to Timor than to Australia.In the early 1960s, Australia issued petroleum exploration permits in the Timor Sea to Woodside, now Australia’s largest natural gas producer, in areas contested by Indonesia and Portuguese Timor. “Individuals with a conscience and courage, representing the very best of Australians as I know them – instinctively sympathetic to the underdog, the weak and vulnerable.”. Bracks says Gusmão wanted to know what he could do to support Collaery, who had been his lawyer following Timor’s independence from Indonesia in 1999. Such an approach was recommended in 2010 by the Australian Law Reform Commission’s inquiry into secrecy laws but has not been implemented. They would object to such an immoral operation, but there is no avenue for them to raise concerns.” The former Asis spy Warren Reed argues that most intelligence officers have “a keen sense” of democratic values and “will generally stand firm against attempts by their service’s management to diverge from those widely accepted norms of behaviour”. Bernard Collaery says the head of ASIS ordered a team into East Timor to conduct work which was well outside the proper functions of ASIS. They now face jail time, Last modified on Tue 13 Aug 2019 00.43 EDT. It was pretty shocking.”. The Dili spying operation shamed Australia to the negotiating table. The love for Collaery and Witness K runs deeper still among the Timor-Leste people, according to Prof Clinton Fernandes of the University of New South Wales, who has followed the case closely. Collaery says Witness K was put through “six years of seclusion, harassment and questioning”. The then Timor-Leste foreign affairs minister, Jose Ramos-Horta, and his Australian counterpart, Alexander Downer, after signing the treaty for the Greater Sunrise gas and oil reserve. Australia’s actions would have been buried in perpetuity, had it not been for one Asis operative, known only as Witness K. The senior intelligence officer felt deeply uncomfortable about the operation, which was mounted during a heightened regional terror threat due to the 2002 Bali bombings. These provisions should be adopted in Australia.”. and awarded 90 per cent of revenues from existing projects in that area to Timor-Leste and 10 per cent to Australia. From his viewpoint, they had revealed a crime. “We were no threat to national security; this was a blatant bullying tactic by the Australian government, designed to intimidate.”. But instead of moving to cement this new beginning, in June 2018, four months after the treaty signing, five years after the Dili bugging operation became public and 14 years after it occurred, the attorney general, Christian Porter, in what was now the Morrison-led Coalition government, consented to charges being laid against Collaery and Witness K. This sent a chilling message. “Witness K, as the secret agent became known, and Collaery, are brave Australians,” former Timor-Leste president José Ramos-Horta wrote last month while calling for the pair to be awarded his nation’s highest honour. The raids were just the start. The officers rifled through Collaery’s documents. Labor has, so far, been relatively quiet on the case. Prosecutors have lodged separate criminal proceedings against Richard Boyle, a tax office whistleblower, and David McBride, a military lawyer who leaked documents to ABC journalists. The treaty was signed. This week, Griffith University integrity expert Prof AJ Brown and his team published a major study examining the experiences of whistleblowers. Witness K and Collaery now face jail time for helping correct what they saw as a gross injustice. But does that social licence extend to using espionage for illegal, immoral or corrupt acts? “That was what was really important to them. In 2004, when the Dili bugging occurred, the Timorese remained physically and emotionally traumatised. Australia secured a 50-50 split of the Greater Sunrise fields, positioned 450km north-west of Darwin and 150km south of Timor-Leste. In September, the Coalition, led by Tony Abbott, won the federal election. Australia’s Scott Morrison with Timor-Leste’s Taur Matan Ruak at the Government Palace in Dili on 30 August 2019. Despite UN resolutions calling on Indonesia to withdraw, Australia commenced negotiations with Indonesia in 1979 to agree on a boundary between Australia and occupied East Timor. Oil and gas bubble up from a small bore hole sunk by Australians near Vikeke, Timor-Leste. Peter Galbraith was chief negotiator for Timor-Leste’s government in the oil and gas talks. Overview of the case On 17 December 2013 Timor-Leste instituted proceedings against Australia with regard to the seizure and subsequent detention “by Agents of Australia of documents, data and other property which belongs to Timor‑Leste and/or which Timor‑Leste has the right to protect under international law”. Success would give it a significant share of fields worth $40bn-$50bn, helping lift the fledgling nation out of poverty. Witness K was to be Timor-Leste’s lead witness. Australia defends a raid on the offices of a lawyer representing East Timor in a spying row case against Australia at The Hague. To stay independent, free, and sustainable, our community needs the help of friends and readers like you. Gusmão saw it as a moral issue. The former Victorian premier Steve Bracks emerged into the monsoonal heat and was greeted by staff from the office of Xanana Gusmão, Timor-Leste’s chief maritime boundary negotiator. ... As Australia and Timor-Leste prepare to … Woodside discovered the Greater Sunrise oil and gas fields in 1974. Gusmão led the Timorese resistance against the Indonesian occupation in the mountains of East Timor and, after his capture in 1992, from his jail cell in Jakarta. The case drew immediate condemnation from lawyers, former judges, academics, and civil society groups. Collaery is restricted by national security legislation from talking about the operation. In the summer of 2013, young law clerk Chloe Preston was sitting alone at Collaery’s home practice in Narrabundah, Canberra. “Whatever happens from here, the courage they have displayed is already etched into Australian political history,” she says. Then you have to map the geometry of the office, check the acoustics, work out where to place the listening devices, and because it’s going to go on for several weeks or months, you need a power source.” And in this case, where the cover story involved renovating the government offices under the guise of an Australian aid program, Asis needed skilled tradespeople to carry out the renovations. During these negotiations, Timor-Leste dropped its spying case against Australia as an act of good-will and to further the resolution of the treaty. Australia is accused of spying on East Timor leaders in 2004 when the two countries were negotiating a gas treaty. Collaery will fight on, facing a partially secret trial in the ACT supreme court, the court where he has spent much of his life practicing. Australia gave de jure recognition to East Timor’s incorporation into Indonesia. Collaery helped the Timor-Leste government build a case against Australia at The Hague, alleging the bugging had rendered the treaty void. They drove Bracks to the waterfront café at the Novo Turismo Resort and Spa, where Gusmão was waiting. “They want Australia to be a good neighbour, not an eavesdropper who breaks the 10th commandment repeatedly. Collaery had flown to The Hague 24 hours earlier to ready Timor-Leste’s case against Australia. The agreed boundary skirted the edges of the permits issued to Woodside and other companies – well north of the median line. This week, Witness K pleaded guilty to sharing protected Asis information. Timor-Leste’s Jose Ramos-Horta and Australia’s Alexander Downer shake hands after signing the Timor Sea treaty on 12 January 2006. It can easily become politicised, so demeaning the intelligence process and ultimately risking national security.” This is what happened in Canberra in 2004–05. East Timor had signed an oil and gas treaty with Australia but after the bugging case was publicly reported, tried to have the treaty scrapped on the grounds the bugging was illegal. Witness K’s home was simultaneously raided and his passport confiscated. Clinton Fernandes, an Australian Intelligence Corps officer from 1997 to 2006 now at the University of New South Wales, is not so constrained. When the Democratic Republic of Timor-Leste came into existence on 20 May 2002, the Howard government considered the possibility of Timor-Leste gaining sovereignty to the median line in the Timor Sea such a threat “to Australia’s national security, foreign relations or economic well-being” that it was apparently necessary to direct Asis (and possibly other intelligence agencies) to support Australia’s negotiating team on the maritime boundary. Despite UN resolutions calling on Indonesia to withdraw, Australia commenced negotiations with Indonesia in 1979 to agree on a boundary between Australia and occupied East Timor… The revised deal was far more favourable to the smaller nation, and it is now expected to reap between 70% and 80% of total revenue. Charges against Bernard Collaery and his retired Asis agent client confirm the government has few regrets about an exploitative exercise against a friendly neighbour. In October 2004, the Dili bugging operation reportedly commenced during the second round of boundary negotiations between Australia and Timor-Leste. The digital recordings were then allegedly couriered across town to the Australian embassy, and sent to Canberra for analysis.”. The revelations were splashed across mainstream media, first through the Australian, then the ABC. As Timor-Leste’s minister of state, Ágio Pereira, told a reception after the signing ceremony, the treaty marked a “new chapter in the bilateral relationship”. “The challenge was, and remains, how to ensure the general law protects all persons who might need to justifiably breach confidentiality, by enabling any person to call on and argue a public interest defence in such circumstances – such as traditionally existed under common law principles,” Prof Brown’s report found. Unlike Portugal, which had argued for a median-line boundary, Indonesia suggested joining the end points of the 1972 treaty, which would have put Greater Sunrise entirely in Australian waters. In Timor-Leste, the pair were seen as heroes. ABC Fact Check finds Mr … A treaty was signed at the United Nations in New York in March 2018. Patrick, the crossbench senator, used parliamentary privilege earlier this year to highlight Downer and Woodside’s role in the Timor Sea negotiations. Australia is accused of conducting an operation that targeted East Timor’s Cabinet when the two countries were negotiating a gas treaty in 2004. SYDNEY - East Timor has accused Australia of violating its sovereignty by spying on its impoverished Asian neighbor during negotiations for an oil and gas … But for all the questions, one thing remains clear for Preston, Collaery’s former law clerk. Australia has been accused of “siphoning” millions of dollars a month in oil revenue that should belong to East Timor, because the government is yet to ratify last year’s maritime border treaty. After a border dispute and spying scandal, can Australia and Timor-Leste be ... invasion and forced integration of East Timor in 1975-76. In 3 of those 5 (including the current Timor Leste case), Australia has appointed a former High Court judge as its ad hoc judge. A provisional agreement, the Timor Sea Treaty, signed when East Timor became independent on 20 May 2002 defined a Joint Petroleum Development Area – J.P.D.A. East Timor’s government will not be deterred in pressing its case to scrap an oil treaty worth billions of dollars over claims of spying by Australia, an international negotiator says. Prof Clinton Fernandes says civil society groups have printed ‘solidarity with Bernard Collaery’ T-shirts and banners. “And yet our plan was to deprive them of oil revenue.”. The cases have opened a debate about the adequacy of Australia’s whistleblowing protections. He said Australia could consider adopting the US model, where intelligence and judiciary committees are regularly briefed about intelligence collection programs. Witness K lawyer Bernard Collaery to appeal against secrecy in Timor-Leste bugging trial. And it was not something you do for commercial advantage.”. Outside, the suburban streets were quiet, save for the gentle hum of the beehives Collaery keeps in his front garden. Australia is under further pressure over spying in the region, with East Timor accusing spies of bugging its cabinet room for commercial advantage, and threatening to scrap a … He eventually approached the intelligence watchdog, the Inspector General of Intelligence and Security (IGIS). He saw them as “honourable men” who should have been lauded for their actions. It found less than 1% of whistleblowers ended up going to the media, which Brown described as “far less external disclosure than we actually want or need” if wrongdoing was to be properly addressed. Three months after the treaty was signed, independent MP Andrew Wilkie revealed the Australian government had approved the prosecution of Witness K and Collaery. That East Timor has succeeded as far as it has is remarkable, and comes thanks to the courage of the East Timorese, and enormous sympathy for East Timor and its people within the Australian community. Gareth Evans, foreign minister under the Hawke Labor government, finalised the deal; he and Suharto’s foreign minister Ali Alatas flew over the Timor Sea to sign the deal and … It was 2004 and, in the Dili heat, the distinguished US diplomat sat opposite Australian officials, bartering over a nation’s future. including agents from the Australian Security Intelligence Organisation, section 39 of the Intelligence Services Act, David McBride, a military lawyer who leaked documents, Australian Law Reform Commission’s inquiry into secrecy laws, used parliamentary privilege earlier this year, Australian security and counter-terrorism. “The bottom line here is that Downer (and Woodside) wanted to force East Timor, one of the poorest countries in the world, to surrender most of the revenues from Greater Sunrise, revenue it could have used to deal with its infant mortality rate – currently 45 out of 1,000 children in East Timor don’t live past the age of one,” Patrick told parliament. This amounted to Australia formally recognising Indonesia’s sovereignty in Timor, the only Western nation to do so. She is a researcher and author of Crossing the Line: Australia’s Secret History in the Timor Sea. East Timor is battling Australia in The Hague over Australia's alleged spying and violation of East Timor's sovereignty in a dispute over an oil and gas treaty between the two. It focused attention on Australia’s hypocritical criticism of China’s South China Sea claims and made a mockery of Australia’s backing of the “international rules-based order”. “I didn’t see it as a national security issue then and I don’t now,” Preston tells Guardian Australia. Lawyer Bernard Collaery arrives at the ACT law courts in in August 2019. n the first week of January 2019, a private jet landed at Presidente Nicolau Lobato International Airport in Dili, the capital of. Timor-Leste’s government, with Galbraith as its chief negotiator, was desperate to get a fair deal from the bountiful underwater oil and gas reserves that lay between it and Australia, a trusted ally and regional powerhouse. The prosecution of Collaery and Witness K throws a spotlight on the nexus between politics and intelligence, and the unfettered power of ministers in Australia’s intelligence regime. Files from the house and office of Canberra-based lawyer for the East Timorese government, Bernard Collaery, were removed by ASIO in the raid. Support Global Voices. A second raid was taking place at the home of Witness K, who was preparing to give evidence at The Hague. Civil society groups have printed “solidarity with Bernard Collaery” T-shirts and banners, which Fernandes says will soon be a visible presence across Dili. The revelations were … In Australia, it confirmed that the government will not tolerant dissent, and had few regrets about an exploitative operation against a friendly neighbour. Gusmão planned to go to Canberra to give evidence in the trial, until Covid-19 restrictions prevented him from travelling. As a former US ambassador to Croatia, Galbraith had frequent access to US intelligence. “It was not what you do to a friendly state. Failure would blow the tyres of an economy heavily reliant on natural resources. In the first week of January 2019, a private jet landed at Presidente Nicolau Lobato International Airport in Dili, the capital of Timor-Leste. ABC Radio Darwin reported on the statement, but the dispute was ignored by the national media until Leo Shanahan published a story in the Australian on 29 May 2013. Those who blew the whistle externally experienced at least a third more repercussions than whistleblowers who stayed internal, the research found. According to the article, “Downer directly authorised the operation to listen covertly to the negotiations in a cabinet room built with Australian aid”. Never has he seen his country attempt an operation as commercially driven as Australia’s was. The Australia–Indonesia spying scandal developed from allegations made in 2013 by The Guardian and the Australian Broadcasting Corporation (ABC), based on leaked documents, that the Australian Signals Directorate had in 2009 attempted to monitor the mobile phone calls of Indonesian President Susilo Bambang Yudhoyono, his wife Kristiani Herawati, and senior officials. The 2002 Timor Sea Treaty was intended as an interim agreement, that is without prejudice to the position … Peter Galbraith was playing a high-stakes game. The Treaty on Certain Maritime Arrangements in the Timor Sea (CMATS) was signed in January 2006 by foreign ministers Alexander Downer and Jose Ramos-Horta. The report also identified a separate need to reform blanket criminal prohibitions on the unauthorised release of information, similar to those used to prosecute Witness K and Collaery case. “Such a reform would parallel improvements to whistleblower laws, rather than seeking to convert whistleblower protection laws into more general laws aimed at public disclosure of information.”. Many questions remain about the Witness K and Collaery affair, not least about Alexander Downer, the former foreign affairs minister who went on to work for Woodside as a consultant after leaving office. Australia’s spy watchdog is carefully considering a complaint alleging Australia broke the law when it bugged East Timor’s cabinet during lucrative oil and gas negotiations, documents show. “For years to come, Australians, young and old, will learn of the two heroes who revealed the farce of politics in this country.”, Witness K to plead guilty in Timor-Leste spying case but lawyer to fight charges, Bernard Collaery helped the Timor-Leste government build a case against Australia at The Hague, alleging the bugging had rendered the treaty void. Witness K’s passport was seized, preventing him from flying to The Hague. Retired diplomat Bruce Haigh says Asis officers involved in the Dili operation were put in an impossible position: “People in Asis are not devoid of conscience. The most shocking development came midway through last year. Then came the former spy who raised his concern about the involvement of the Australian Secret Intelligence Services (ASIS) in the illegal bugging. Photograph: Lukas Coch/AAP, Witness K and the 'outrageous' spy scandal that failed to shame Australia. Australia has been involved in five cases at the ICJ. The spy obtained permission to talk to an approved lawyer, Bernard Collaery, a barrister and one-time attorney general for the ACT. It has fallen on individuals such as former Victorian premier Steve Bracks and NSW shadow attorney general Paul Lynch to take up the cause. “With the diplomacy out of the way it’s time to bury the bodies,” Wilkie said under parliamentary privilege. As Fernandes explains, installation is a delicate operation. • This is an edited extract of Kim McGrath’s essay Drawing the Line from the latest Australian Foreign Affairs - Spy v Spy, published on Monday. By 2012 Gusmao had become aware of the bugging and initiated confidential proceedings in the Permanent Court of Arbitration in The Hague, seeking to have CMATS declared void because Australia had acted in bad faith by spying during the negotiations. East Timor now wants the treaty scrapped on the grounds that the alleged spying gave Australia an unfair advantage in commercial negotiations. Australia ordered by The Hague to stop spying on island formally known as East Timor during dispute over £21.5 billion oil and gas fields George Brandis, Australia’s attorney-general Photo: … “As a law clerk, a week out from being admitted as a solicitor, and as an Australian citizen, who believed that I lived in a fair democratic country, I lost a lot of confidence in the government, and the law, that day.”. Five years later, in June 2018, the attorney general, Christian Porter, consented to charges being laid against Collaery and his client, a retired Asis agent known only as Witness K, for “conspiring to reveal classified information”. Collaery’s own attempts to publish a book on the affair prompted threats of jail from the Australian government. 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