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The Conviction and Sentencing of Witness K

After tormenting the man for years, it became clear that the Australian authorities were willing to, for want of a better word, compromise. The more accurate word would be compromising. Instead of banishing former spy turned bean spiller Witness K to a cell and throwing away the key, there was preference for a softer, more hypocritical mode of punishment. He would be spared jail time, showing that the national security state can, when it wishes to sit in judgment, show some mercy.

For those familiar with the case, there was nothing merciful in the finding. A punishment had been levelled for exposing an unlawful operation against a friendly and fledgling state. In 2004, Australia’s then foreign minister Alexander Downer authorised the bugging of the cabinet offices of Timor-Leste by officers of the Australian Secret Intelligence Services (ASIS).

The surveillance of Timor-Leste’s negotiators was an act of economic espionage and fraud, intended to give the Australians the upper hand in discussions between the countries over their maritime boundary. At stake were the oil and gas-rich deposits in the Timor Sea. Unaware of the surveillance operation, the East Timorese went ahead to sign a treaty which distinctly favoured Australia: a 50-50 division of the Greater Sunrise fields.

Eventually, the truth outed. The operation was revealed. Former US ambassador to Croatia, Peter Galbraith, who was the chief negotiator on behalf of the Timor-Leste government, was stunned by Canberra’s commercial rapacity. “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.”

This is where Witness K’s role becomes important. As the former head of technical operations at the agency, he felt sour by the prioritising of resources against Timor-Leste over other security matters. When he became aware of Downer’s consultancy with the multinational Woodside, who stood to benefit from a general divvying up of the Greater Sunrise fields, the red mist descended.

Exercised by the matter, Witness K made an internal compliant to the Inspector-General of Intelligence and Security (IGIS) about the bugging. Showing how such internal complaint mechanisms only serve to expose the complainant to retribution, Witness K’s saw his employment terminated. With the consent of the IGIS, Witness K secured the services of an ASIS-approved lawyer and former ACT attorney-general, Bernard Collaery. Collaery did some digging and came to the conclusion that the espionage operation was not only unlawful but probably a conspiracy to defraud the government of Timor-Leste under section 334 of the Criminal Code.

Timor-Leste, aggrieved by the bugging incident, went to the Permanent Court of Arbitration in The Hague intent on overturning the sham arrangement they had reached with Canberra. In 2013, aided by Collaery’s efforts, an invitation was extended to Witness K to give evidence. Disclosures regarding the surveillance operation were made in two affidavits. Alarmed, Australia’s attorney-general George Brandis sprang into action. Witness K’s passport was cancelled. The domestic intelligence service, ASIO, raided the homes of both men.

Brandis flirted with prosecuting both Witness K and Collaery. But it was only in May 2018, a mere two months after Canberra’s conclusion of a renegotiated treaty with Timor-Leste, that the Commonwealth Director of Public Prosecutions formally brought charges under section 39 of the Intelligence Services Act 2001, which criminalises the communication of any information or matter acquired or prepared by or on behalf of ASIS in connection with its functions or relates to its performance.

Law academic Spencer Zifcak, in writing about the matter with some horror, saw an “Alice in Wonderland quality about all this” (Kafka would have been more appropriate): the defendants in a criminal case were the very men who “acted in the national interest by disclosing alleged unlawful activity by Australia’s intelligence service.” The prosecutors were the very individuals who initiated the covert operation.

In 2019, Witness K suggested that he would plead guilty. On June 17, concealed behind a wall of black panels, he formally entered a guilty plea in the ACT Magistrates Court. The next day, magistrate Glenn Theakston concluded that the former ASIS agent would not face the bars of a prison and would be subject to a 12-month good behaviour bond. Adding his bit to the Alice in Wonderland farce, Theakston claimed that, “It cannot and should not be up to … former staff members to unilaterally depart from those security obligations” though he admitted that this “was not a breach that was going to go hidden for some time.” That said, it was “express” and “deliberate.” It compromised the agency’s effectiveness, safety and security and jeopardised Australia’s relationships and reputations.

While stern and rigid on the letter of the law – the proscriptions regarding ASIS were “strict and absolute” – the magistrate did note that Witness K had been motivated by considerations of justice, not those of personal gain. The former agent’s disclosures were part of an effort to participate in a “rules-based order of international relations.” (The bitter ironist will detect how this jars with Canberra’s incessant babble of about such an order even has it tries to upend it.)

Richard Maidment QC, representing the Commonwealth Director of Public Prosecutions, swatted Witness K’s efforts to secure a non-conviction order. His conviction would serve a lesson of deterrence. Whether it was “appropriate for him to breach the obligations, which had been brought to his attention many times, does not afford him mitigation.”

The criminals behind the Timor-Leste operation remain at large. The wrong man was convicted. Senator for South Australia Rex Patrick released a sombre statement claiming to be “ashamed to be an Australian.” Collaery, for his part, has refused to plead guilty. His fate, largely being determined behind closed doors, is likely to be a harsher one.

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5 comments

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  1. skip

    yep they remain at large to pillage and thieve.

    thou shalt not steal (cept U was . . . )

    And now to inject us all without INFORMED consent with the special ‘WARP SPEED’ experimental gene concoctions. Hmmmm.

    The Nuremberg Code (1947)

    Permissible Medical Experiments

    The great weight of the evidence before us to effect that certain types of medical experiments on human beings, when kept within reasonably well-defined bounds, conform to the ethics of the medical profession generally. The protagonists of the practice of human experimentation justify their views on the basis that such experiments yield results for the good of society that are unprocurable by other methods or means of study. All agree, however, that certain basic principles must be observed in order to satisfy moral, ethical and legal concepts:

    The voluntary consent of the human subject is absolutely essential. This means that the person involved should have legal capacity to give consent; should be so situated as to be able to exercise free power of choice, without the intervention of any element of force, fraud, deceit, duress, overreaching, or other ulterior form of constraint or coercion; and should have sufficient knowledge and comprehension of the elements of the subject matter involved as to enable him to make an understanding and enlightened decision.

  2. Cando

    Skip, corporate robbing hoodlums, crude exemplars of a mentality centuries in the making, fixated on spoils of the physical world. As for Nuremberg trials, they can’t happen soon enough. I don’t know if you have seen the latest episode of ‘The Highwire’ #220, but there is a cracking interview with Dr Hodgkinson from about the 1 hour mark. The idea that the CDC is not halting this experimental trial for teenagers despite the 100s of cases of myocarditis is an idea that has seen its day, and more than half of Americans know it.

  3. Jack sprat

    Howard has a family history of being ” shills for the corporations ” his grandfather and father illegally dummy fronted for large corporations to take over large copra plantations in New Guinea, left vacant by Germany’s withdrawal after losing WW 1. Howard’s claims that he came from a humble background having a father who was a hard working small business man that ran a garage neglects to tell the whole story of how his family earned its money .

  4. New England Cocky

    Just lay it out as it is; Downer appears to have authorised the bugging of the Timor :Leste rooms before the negotiations took place resulting in Woodside receiving favourable concessions, especially hydrogen gas. Upon retiring from politics Downer received a plumb cushy job with Woodside which may have been payback for services rendered.

    Remember that Nick ‘Goulash” Greiner in NSW in the 80s departed Parliament under a corruption cloud that was resolved on appeal while he progressed into about 40 board positions in corporations that had benefited from Liarbal Nazional$ misgovernment largess and contracts.

  5. Bruce White

    Thanks for the article Binoy.
    So Witness K had been head of technical operations at the aformentioned agency.
    Interesting.
    I really hope that he receives millions in compensation when this all washes up.
    I note the only mainstream media reference that I have seen was on ABC24 in the subtext on Saturday something like ‘Witness K receives 3 months conviction, suspended sentence’.That was it.
    And Collaery is yet to be tried.
    Hopefully the next trials will be Porter, Downer, Howard.
    But I’m not holding my breathe there.
    Keep up the good work.

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