By Dr George Venturini
(Much of the material in this page is drawn from the work of La’o Hamutuk, the Timor-Leste Institute for Development Monitoring and Analysis, which has monitored and campaigned for Timor-Leste’s rights for two decades. For more detailed information on this and related issues, see www.laohamutuk.org. Current and updated information on the maritime boundary dispute with Australia is at https://www.laohamutuk.org/Oil/Boundary/18ConcilTreaty.htm).
… et cetera
On 28 June 2018 Mr. Andrew Wilkie M.P. told the Australian Parliament that Australian prosecutors had filed criminal charges against attorney Bernard Collaery and his client, known as Witness K, for conspiring to breach the Intelligence Services Act by communicating information they obtained while working with A.S.I.S. Mr. Wilkie called this an “insane development” worthy of a “pre-police state”. (Commonwealth of Australia, House of Representatives, Hansard, Thursday, 28 June 2018, Timor-Leste, Mr. WILKIE (Denison) (11:31): Australia bugged East Timor’s cabinet rooms during the 2004 bilateral negotiations over the Timor Sea Treaty). The Guardian blogged about this revelation made possible under Parliamentary privilege. The circumstances were confirmed by Attorney-General Christian Porter, who declined to explain his decision. (Guardian Blog, 28 June 2018) [Attorney General] Christian Porter’s office released this statement on what Andrew Wilkie was talking about earlier in the day:
“I can confirm a former staff member of the Australian Secret Intelligence Service and a Mr. Bernard Collaery have been summoned to appear in connection with offences under section 11.5 of the Criminal Code and section 39 of the Intelligence Services Act 2001 (the IS Act).
The former staff member will be charged with an offence of conspiracy to communicate ASIS information, contrary to section 11.5 of the Criminal Code and section 39 of the IS Act.
Mr. Collaery will be charged with an offence of conspiracy to communicate ASIS information, contrary to section 11.5 of the Criminal Code and section 39 of the IS Act, and with further offences of communicating ASIS information contrary to section 39 of the IS Act.
Procedurally, the IS Act provides that a prosecution under section 39 may be instituted only by, or with the consent of, the Attorney-General or a person acting under the Attorney-General’s direction.
In this matter the Commonwealth Director of Public Prosecutions considered the brief of evidence and subsequently made an independent decision that a prosecution was the appropriate course of action having due regard to the matters requiring consideration under the Prosecution Policy of the Commonwealth.
Accordingly, the Director sought my consent to that decision to prosecute, which consent I provided.
There are also two matters that are very important to note.
First, the former staff member’s identity continues to be protected by section 41 of the Intelligence Services Act 2001; as such, it would be an offence to identify the former staff member.
Second, having formally confirmed the process regarding these matters, I can also confirm that I will not be providing detailed comment on their substance and that is because the matters are now before the Court.
I would also encourage any member with an interest in this case to be conscious of the fact that the priority must be to allow judicial processes to be conducted without commentary which could impact on the fairness and regularity of those proceedings.”
Mr. Bernard Collaery wrote a response. It is contained in a 28 June 2018 Media release.
“Former [Australian Capital Territory] Attorney-General and lawyer, Bernard Collaery, has disclosed today that he, and Witness K, have received a Summons returnable before the ACT Magistrates Court charging them with conspiring to breach Section 39 of the Intelligence Services Act 2001. As Section 39 stood at the relevant time, it provides for a two-year or 120-unit penalty. Section 39 makes punishable the revealing of information of any kind, even arguably unlawful activity, concerning ASIS. There is no allegation by the Commonwealth Director of Public Prosecutions of any national security breach. “Fourteen years after the bugging of the Dili cabinet during revenue negotiations between Australia and Timor-Leste as joint venturers, over four years after the raid on my chambers and Witness K’s home, and three years after I gave a public address in which I explained that no issues of national security were compromised, Witness K, a loyal Australian patriot, and myself are to be put before the Court on a charge of conspiracy for revealing what a former NSW DPP Nicholas Cowdery QC has described as a ‘conspiracy to defraud.’ The charge of conspiracy against Witness K and myself is Kafkaesque. I have no more to say about it. It will be vigorously defended. The thought that I will appear as a defendant in the Court in which I have practised for most of my career is devastating for myself, my family, and our legal team.
I am also charged with protesting the search of my chambers and revealing the seizure of my Brief and the unlawful activity of the government to a number of ABC journalists. I do not know the extent to which those journalists who reported my comments may or may not be brought into these proceedings. If their careers are to be affected, I very much regret that such an event would happen in our country. My legal team acted at all times with the support of eminent legal advice.
I was privileged to have sought justice for the poorest country in Asia, for a people with a high infant mortality rate and to whom we owe a debt of honour from the events of World War II. I can reveal that as a young man, nearly fifty years ago when memories were fresh, I received training from an Australian intelligence agency during which a former Z Force commando told me of the sacrifice the Timorese people had made in saving the lives of our young soldiers trapped behind enemy lines, his comrades, in World War II. I have never forgotten that.
I am disappointed that an Australian veteran and very good person, Witness K, has been denied a passport now for more than four years, has been unable in retirement to enjoy life fully, and is to now be tried with me for conspiracy.
This prosecution, approved of by the Federal Attorney-General, can only mean one thing. Namely, that bugging the out-of-session deliberations during revenue negotiations between joint parties to a treaty is a legitimate function of ASIS. I do not believe that the Australian people will support the notion that our Secret Service should join in a conspiracy to defraud the people of the poorest nation in Asia. The Attorney-General expects this hearing to be held behind closed doors. I do not believe the Australian people will support this. It was never, and can never be, a legitimate function of our Secret Service to join in, ‘a conspiracy to defraud.’ This prosecution sends a wrong message to the good men and women in our Secret Service. They do not join the Service to take part in corporate plunder.
Using the terrorist powers to shroud the proceedings in this matter is unbecoming a liberal democracy. The proposition by the Liberal Party that it can use ASIS in plundering the resources of one of the poor nations to our north has to be tested in open court. There must be humanity and honesty in our dealings with developing nations. I call upon the Australian people to stand with me and Witness K in saying, ‘We Care.’ ”
The defendants, who could face years in prison, were to report to court on 25 July.
In his statement 28 June 2018 in the House, Wilkie M.P. also referenced comments by The Australian’s columnist Niki Savva on A.B.C.’s Insiders programme on 1 July 2018. Savva suggested that Attorney-General Porter had no room to move because his predecessor George Brandis had sought information from the Commonwealth Director of Public Prosecutions, which resulted in the recommendation, and if Attorney-General Porter had ignored it he would have “faced a lot of grief”. How did Ms. Savva know? There would be no consequences of sort.
On 3 July Prime Minister Turnbull tried to distance himself from the prosecution. (R. McGuirk, ‘Australian leader distances government from spy prosecution’).
It was a totally pusillanimous performance.
This surprising development was reported worldwide: R. McGuirk, ‘Australian spy and lawyer charged over East Timor scandal’, The Washington Post, 28 June 2018; J. Smyth, ‘Australia prosecutes East Timor spying whistleblower’, The Financial Times, 28 June 2018; and in Australia: M. Seccombe, ‘The dark politics of the Timor spy case’, The Saturday Paper, 7 July 2018.
Voices were raised in Australia by members of Parliament, and academics. Professor D. Dixon wrote: ‘Prosecution of Witness K and his lawyer is a disgraceful act of revenge’, The Sydney Morning Herald, 7 July 2018; Professor Clinton Fernandes wrote: ‘Lawyer and witness face charges under spy laws, raising questions of openness and accountability’, The conversation, 29 June 2018; Prof. Johan Lidberg thought that: ‘When whistleblowers are prosecuted, it has a chilling effect on press freedom in Australia’, The conversation, 20 July 2018. Top lawyers jumped to the defence of former Australian spy Witness K: former judge Stephen Charles on 29 June and Anthony Whealy on 7 July 2018. The Canberra Times minced no words: ‘Australia’s greedy theft from Timor-Leste was a disgrace’, 15 July 2018.
More ominously still, on 28 June, the same day the charges were brought against Witness K and Mr. Collaery, the Australian Parliament enacted a package of legislation on espionage, foreign interference and foreign influence.
On 11 July Mr. Collaery told A.B.C. TV News that the prosecution was ‘heartbreaking’. The following day, four ‘crossbench’ members of the Australian Parliament asked the Australian Federal Police to investigate whether the spying operation against Timor-Leste was lawful: C. Knaus, on The Guardian, 12 July 2018.
As the court date neared, more academics spoke out: Prof. Spencer Zifcak (‘The Attorney-General, the ASIS Officer and his Lawyer: The Story of the Shameful Timor Prosecution’, 25 July 2018, johnmenadue.com).
Former Greens Senator Scott Ludlam wrote: ‘The Witness K affair is one of the most debased abuses of power in the postwar era’, The Guardian, 23 July 2018), Human Rights Watch ‘Australia: Don’t Prosecute for Exposure of Misconduct’, Prof. John Braithwaite wrote: ‘The shaky case for prosecuting Witness K and his lawyer in the Timor-Leste spying scandal’, The conversation, 24 July 2018.
Tom Clarke of Ten Daily said: ‘In Australia, Exposing Morally Bankrupt Government Action Could Earn You a Jail Sentence’, 25 July 2018 and Peter Boyle contributed ‘Timor spy case: How Australia does Big Oil’s dirty work’, Green Left Weekly, 27 July 2018.
The court date for K and Collaery case was delayed until 12 September.
Australian Foreign Minister Julie Bishop visited Timor-Leste on 29 July, the first such visit in five years. Former President José Ramos-Horta was in Australia, where he urged Australia to drop the case against Collaery and K, “The two men acted ‘out of conscience’ – he said – and reflect ‘the very best of Australia’ ”, The Guardian, 30 July 2018.
The Sunrise dispute would continue. On 22 July The Australian Financial Review cited Woodside CEO Peter Coleman as calling for a ‘fresh start’ on the Sunrise LNG negotiations. A few days later, Timor-Leste Government news agency Tatoli reported that Timor-Leste was preparing to bring the Sunrise gas pipeline to its south coast. On 27 July Timor-Leste’s Parliament approved the new Government’s programme, including sections on maritime boundaries and petroleum development. (‘From the draft plan of the 8th Constitutional Government proposed to Parliament, 6.11 Delimitation of Land and Maritime Borders’, on 20 July 2018) and petroleum development (‘From the draft plan of the 8th Constitutional Government proposed to Parliament, 4.2 Petroleum and Mineral Resources’, on 20 July 2018).
On 6 August Damon Evans wrote in Interfax Natural Gas Daily that Timor-Leste is considering buying out the oil companies who hold the Greater Sunrise contract, possibly with Korean financing or money from the Petroleum Fund. Evans pointed to reports by Jubilee Australia showing that Papua New Guinea had failed significantly to benefit from Exxon’s PNG LNG plant, falling far short of benefits predicted by Australia’s Acil Allen consultants. The same consulting firm has advised Timor GAP that the Beacu LNG plant will bring major benefits to Timor-Leste. (D. Evans, ‘LNG East Timor seeks to buy out Greater Sunrise partners’. The country could use its sovereign wealth fund to buy out Shell or Conoco as it tries to push development of an LNG plant on Timorese shores, Interfax Natural Gas Daily, 6 August 2018)
On 13 September The Australian Financial Review reported that Timor-Leste was considering bidding US$5 billion to buy out ConocoPhillips share of the Greater Sunrise field. (M. Sainsbury, ‘East Timor pursues [AU] $7b investment in Woodside-run Sunrise gas project’, The Australian Financial Review, 13 September 2018).
In August the Australian Parliamentary Joint Standing Committee on Treaties had issued the report from its inquiry into the boundary treaty, recommending that “binding treaty action be taken” — that is, that Australia should ratify the treaty. AAP reported that the report ‘fixed’ the long-running border dispute. (A.A.P., Border dispute with East Timor ‘fixed’, 15 August 2018). On 21 August Timor-Leste’s Council of Ministers reappointed Xanana Gusmão as Special Representative for concluding the treaty ratification and the Greater Sunrise agreements. Timor-Leste’s new foreign Minister, Dionisio Babo, told The Guardian that his government ‘valued very much’ the support of Witness K, Bernard Collaery and other Australians who had supported Timor-Leste’s “collective effort” to achieve a fair maritime boundary. (H. Davidson, ‘Timor-Lest praises Witness K’s actions in helping resolve maritime border’, The Guardian, 22 August 2018).
Continued Saturday – The spying on Timor-Leste case … et cetera (part 9)
Previous instalment – The spying on Timor-Leste case … et cetera (part 7)
Dr. Venturino Giorgio Venturini devoted some seventy years to study, practice, teach, write and administer law at different places in four continents. He may be reached at George.email@example.com.
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