It reads like the outline for a John le Carré spy novel but this one is real and it actually took place in our own backyard. It has all the ingredients : crooked politicians, spies masquerading as aid workers and dressed up in high-viz jackets and hard hats – you can get in anywhere in that kit and a clipboard gives you real authenticity – the planting of electronic listening devices in the parliamentary offices of a neighbouring fledgling nation, a good guy and his lawyer and a vindictive government minister.
You are probably across the main story but as the matter is now going before the courts, possibly in a closed hearing, here are some of the details which, of course are highly confidential and should go no further than you and me.
2004 It appears that ASIS operatives including Witness K posed as aid workers, deployed by Ausaid who were involved in the construction of the Palacio Governo in Dili, Timor-Leste. This was the building in which the Timorese Prime Minister and Cabinet held their meetings. During the course of construction, it seems that ASIS agents placed surveillance devices in meeting rooms which allowed them to listen in to Timor Leste’s Cabinet discussions. This is where it departs Le Carré and takes on a script directly from Maxwell Smart. We cannot reveal the name of the minister involved for legal reasons but let’s call him Dolly. What Dolly wanted was to listen in on the deliberations of the Timor Leste government and their legal advisors and glean information on Timor Leste’s negotiating position on the maritime boundary and the future carve up of the Greater Sunrise revenues in the oil and gas negotiations. This ploy would it was hoped give the Australian Government critical information about Timor Leste’s negotiating strategy, providing it with a substantial but hugely unfair advantage.
2005 The negotiations continued and, in May, a joint agreement was reached on a formula for revenue sharing from Greater Sunrise. Timor Leste got more money but caved in to Australia’s demand that the maritime boundary issue should be indefinitely deferred.
As a safeguard to any external interference, Dolly then ensured that Australia withdrew from the maritime boundary jurisdiction of the International Court of Justice and the International Tribunal for the Law of the Sea. We were concerned that any determination by such international forums could result in the bulk of the oil reserves being allocated on the Timor Leste side. So the cards were stacked against Timor Leste and the negotiations inevitably favoured Australia on the maritime boundaries covering the Greater Sunrise oil and gas fields in the Timor Sea. The chief beneficiary of this action appears to have been the private consortium led by Woodside, which eventually ended up with exactly what it was after.
2007 Following the Howard Government’s loss at the 2007 election Dolly left parliament and purely as a remarkable concurrence of events and circumstances obtained a highly paid consultancy with Woodside, the company responsible for exploiting the oil and gas reserves in the Timor Sea : they call it serendipity, but is that another word for corruption ?
Witness K, who had been part of the ASIS team engaged in bugging the Timor Leste government’s offices was evidently concerned about what had happened in Dili and whilst not a whistle blower, he took the ethical route and reported the events to his statutory watchdog – the Inspector-General of Intelligence and Security (IGIS) – concerned about the legality of the operation. The Inspector-General agreed that Witness K’s evidence could be disclosed in any related legal proceedings.
2012 – 2013 The Timor Leste Government still not satisfied that the boundary issue had been resolved briefed lawyer Bernard Collaery (Collaery was a former Deputy Chief Minister and Attorney-General in the ACT legislative assembly) to represent its interests in relation to the Sunrise dispute. Witness K briefed him on his complaint to the Inspector-General covering disclosures he might make in any future legal proceedings.
The Timor Leste government took its concern about Australian surveillance and the commercial disadvantage it had suffered to the only available international forum, the Permanent Court of Arbitration in The Hague. It declared that it wished to withdraw from existing treaty commitments, citing the surveillance activity as evidence of Australia’s bad faith in the conduct of the preceding negotiations as to the maritime boundary.
The Timor Leste Government decided to call Witness K to strengthen its argument at Court. However, the Australian Government acted quickly to cancel K’s passport to prevent him from leaving the country and providing his evidence and ASIO officers raided both Witness K’s and Collaery’s homes and offices and removed computers and documents including an early draft of Witness K’s affidavit on the surveillance of East Timorese Cabinet deliberations, together with Collaery’s legal advice as to Timor Leste’s entitlements and suggested legal arguments to support their claims.
The former ASIS officer Witness K was supposed to give evidence at the permanent court of arbitration in the Hague, but was unable to leave Australia because his passport had been seized in 2012 (it was later returned on appeal).
2017 Finally, in September of 2017 the dispute over Timor Sea oil and gas revenues that has been depicted as a David and Goliath struggle was settled after conciliation proceedings in the Permanent Court of Arbitration sitting in Copenhagen, and a deal that satisfied both parties was finally achieved.
2018 But that was not to be the end of the matter. In June 2018 the commonwealth director of public prosecutions laid criminal charges against Witness K and Collaery for conspiring to breach section 39 of the Intelligence Services Act 2001. Under this Act, it is prohibited to even reveal instances in which ASIS breaks the law.
There were clearly grudges held by the Liberal Party and they were out to show that they would not be snubbed. So, it seems that the minister for Home Affairs Peter Dutton (the man who would be our prime minister today had not Scomo come through like Steven Bradbury when other contestants had fallen by the wayside), referred the matter to then to Attorney General George Brandis to go after the messengers, Collaery and Witness K. Brandis put the thing in his bottom draw and as the matter could not proceed without his approval, as the chief law officer in the land, nothing further happened. However, as soon as he had vacated the position of AG to take up the role of our man in London – coincidentally, taking over from our old mate Dolly – the question of shooting the messengers was again raised with the incoming AG, Christian Porter who had no problems in approving the prosecutions.
Perhaps one of the most chilling aspects of this whole affair was when reporters asked Porter why the real perpetrators of this squalid act were not being prosecuted. He gazed into the distance and replied, in an act of wilful ignorance, that he did not understand the question. “I am not the prosecutor, nor is the government the prosecutor,” Porter said. “I am not the judge nor the jury in this matter, and nor is the government.”
So, these two men of good conscience are to be prosecuted for bringing to the notice of the authorities and the Australian people that an act of debased political infamy and overreach had been committed in what amounts to international commercial espionage far worse than the Watergate revelations that brought down an American president. This has the imprimatur of our minister for Home Affairs all over it and like a Queensland copper gone rogue he is letting us know that he will not tolerate troublemakers.
At the present the matter is before the ACT magistrates court where Witness K and Collaery were charged with conspiring to share information covered by section 39 of the Intelligence Services Act, covering secrecy and the unauthorised communication of information. The charges could see each man spend up to two years in jail.
Much of the case is shrouded in secrecy, and both Witness K and Collaery have been served with a national security order preventing them from discussing the case or court proceedings. Whilst the preliminary hearing was open to the public, the Federal Attorney-General is expected to request that much of the evidence be heard in secret.
Welcome to the Brave New World of Australia in 2018 where the rule of law is used to cover up wrong-doing, keep us in our places and protect those in power !