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).
On 10 August two eminent former U.N. officials, Ramesh Thakur, a former United Nations assistant secretary general, now emeritus professor in the Crawford School of Public Policy at Australian National University, and Richard Butler, a former Australian ambassador to the U.N. wrote about ‘Australia’s immoral behavior toward East Timor’ in The Washington Post. Other mid-August articles discussed ‘Spy row a threat to Australia’s ties with Timor-Leste’, J.Pearlman in The Straits Times, 14 August 2018 and ‘Gangsters for capitalism: Downer, Woodside and Witness K’, J. Plested in Red Flag, 15 August 2018).
On 24 August, after a bitter inside struggle, Scott Morrison replaced Malcolm Turnbull as Prime Minister of Australia and he was congratulated by the Timor-Leste Government.
To help Australians better understand the issue, JusTimor (‘Canberra lawyer faces charges. Bernard Collaery has been charged with making known intelligence services information over an Australian spying operation on East Timor. He is a former ACT Attorney-General and long-time Timor advocate, and with Witness K, deserves strong support’) and the Timor Sea Justice Forum (‘Witness K and Bernard Collaery’) published fact sheets on the pending legal cases.
The A.B.C. reported on 27 August that the Australian Government had warned Bernard Collaery in March 2018 that he could face imprisonment if his upcoming book had disclosed secret information.
On 7 September Australian Senator Rex Patrick accused Attorney General Christian Porter of breaching Senate Rules by refusing to answer his questions about the case.
As the 12 September court date for Collaery and Witness K approached, Prime Minister Morrison indicated that he was confident that ‘justice will be served’ (‘PM confident of East Timor bugging justice’, Australian Associated Press, 12 September 2018) and small parties urged the Labor Party to promise to drop the prosecution if it won government (The Guardian, 12 September 2018). Protesters gathered outside the Canberra courtroom, where the process was over in 15 minutes, and the case was adjourned until 29 October. The events, including the parties’ disagreement about how much of the case would be heard in open court, were reported by the A.B.C. and The Canberra Times. (A. Back, ‘Witness K scandal: Case makes first appearance in court’, The Canberra Times, 12 September 2018).
As the process continued, commentators highlighted its importance: Prof. Clinton Fernandes (‘As Witness K trial opens, questions over how much of Timor-Leste spying case to keep secret from public’, The conversation, 13 September 2018) and Bernard Keane (‘Trial of Witness K and Bernard Collaery begins amid Midwinter Ball’, Crikey Insider, 13 September 2018) and M. Miller (‘Why the Trial of ‘Witness K’ and Bernard Collaery Should Concern All Australians’, New Matilda, 25 September 2018).
The Movement Against the Occupation of the Timor Sea began gathering signatures on 13 September, as covered by Green Left Weekly. They presented a banner-petition signed by more than 1,300 people to the Australian Embassy on 17 September.
On 18 September Julian Hill became the first Australian Labor Party M.P. to raise concerns about the case (K. Murphy, ‘Labor MP Julian Hill criticises Witness K prosecution’, The Guardian, 18 September 2018), while Warren Snowden M.P. and Luke Gosling M.P. also asked questions. The following day, independent Senator Rex Patrick continued his outspoken criticism of the prosecution (C. Knaus, ‘Senator asks why prosecutors sat on Witness K evidence for three years’, The Guardian, 19 September 2018), wondering if they intentionally delayed the case for three years to allow negotiations to proceed (Commonwealth of Australia, Senate, Hansard, 19 September 2018, at 98) A few days later, in the Legislative Assembly of the Australian Capital Territory (where Bernard Collaery once sat), Greens Member Caroline Le Couteur was warned not to comment on the legal proceeding in process. (‘Statement by Caroline Le Couteur, Green Party Member of the Australian Capital Territory (ACT) Legislative Assembly’, 23 September 2018).
On 26 September 2018 Senator Patrick distributed a letter to the 193 members of the U.N. General Assembly in New York. (R. Patrick, ‘Witness K’s plight raised with United Nations delegates’, 26 September 2018) When Timor-Leste’s Ambassador Maria Helena Lopes de Jesus Pires addressed the General Assembly on 1 October, she praised the U.N.’s key role in resolving the boundary dispute, and her speech was highlighted in a U.N. press release. (‘U.N. News, Timor-Leste exemplifies continued U.N. help in settling dispute with Australia General Assembly told’, 1 October 2018)
On 27 September Attorney-General Christian Porter wrote to Senator Rex Patrick, acknowledging that the Director of Public Prosecutions had requested consent to prosecute on 17 September 2015, but the consent was not granted until 11 May 2018. A.B.C. News wrote about this development on 5 October (S. Cannane, ‘Government sat on Witness K prosecution for years despite advice’, A.B.C. Investigations, Exclusive by Steve Cannane, A.B.C. Investigations, 5 October 2018).
On 5 October Crikey‘s Bernard Keane reviewed Professor Clinton Fernandes’ new book Island Off The Coast Of Asia, (Monash University Publishing, Melbourne 2018) pointing out that the Witness K scandal is part of a long history of Australia pandering to resource companies.
As the 29 October court date neared, Professor David Dixon recalled the case of Clive Ponting, a British civil servant who gave information to Parliament about the British sinking of an Argentinian warship in 1981. After being prosecuted for violating the Official Secrets Act, Ponting was acquitted by a jury. Prof. Dixon pointed out that neither Witness K nor Ponting were “whistleblowers who went to the media, but rather responsible public servants who sought to use proper channels to complain about wrongdoing by their superiors.” (‘Defining the national interest – A history lesson’, by David Dixon, U.N.S.W. Law School, on Facebook, 8 October 2018). Jonathan Perlman wrote about ‘The fight to keep the Witness K case secret’ in The Saturday Paper, and Justin McPhee wrote about how the case interacts with the Economy of Espionage in Counterpunch. (Justin T. McPhee, ‘Uberrima Fides? Witness K, East Timor and the Economy of Espionage’ Posted by Justin T. McPhee, Counterpunch, Petrolia, Cal. U.S.A., 15 October 2018).
On 19 October the Australian Lawyers Alliance awarded their 2018 Civil Justice Award to Bernard Collaery. (I. Bushnell, ‘Bernard Collaery wins Civil Justice Award for East Timor work’, The Riot Act, 23 October 2018).
Bernard Collaery and Witness K were due in Canberra Magistrates Court on 29 October, but the appearance was postponed again, until 1 November. Writing on Crikey.com, Bernard Keane listed the Timor-Leste 12 who could benefit from the Witness K cover-up. (B. Keane, ‘Meet the Timor-Leste 12 who could benefit from the Witness K cover-up’, Crikey. com, 29 October 2018).
They are, in order of appearance on a list of possible witnesses:
1) John Winston Howard, who – as Prime Minister – approved Downer’s decision to redirect resources from the fight against terrorism to looking after Woodside’s commercial interest. Howard, even less than Downer, has never been held to account for his actions, or his broader policy of bullying Timor-Leste over its energy resources. Perjury could be in the air at the trial.
2) Alexander John Gosse Downer, the Foreign Minister who ordered A.S.I.S. illegally to bug the Timor-Leste cabinet, taking resources away from the fight against terrorism in Indonesia to do so. Downer later took a well-paid position on the board of Woodside, which resulted in favouring the behemoth in the exploitation of undersea oil and gas reserves actually belonging to Timor-Leste. Downer became His Excellency The Honourable Alexander Downer, Australian High Commissioner to the United Kingdom from 2014 to 2018. He could make an interesting witness at the trial.
3) Woodside Energy’s chairman and C.E.O. who presided over the advantage given to the company by the whole scandal. Woodside would employ many former officials of the Department of Foreign Affairs and Trade; the company had the former D.F.A.T. secretary, Ashton Calvert, on its board of directors and later would ‘take advice’ from the ‘retired’ Downer. At the trial they could be asked about the extent to which the commercial interests of Woodside and other resources companies had influenced – if not determined – the conduct of Australia’s foreign policy, with particular reference to countries such as Timor-Leste.
4) Julia Eileen Gillard, who – as later Prime Minister – responded aggressively to then-Prime Minister Xanana Gusmão’s attempt to resolve the issue confidentially in 2012, and allowed the commencement of the pursuit of Witness K and Collaery. She could make a good witness.
The questioning at a trial could start with asking Ms. Twomey what did she know about the operation and the Howard Government’s wider policy to bully Timor-Leste on behalf of the oil and gas companies, and whether she raised any concern/s about the behaviour of the Howard Government in Timor-Leste.
6) Robert John Carr, Ms. Gillard’s Foreign Minister, responsible for giving actual confirmation of the bugging allegations two weeks before the news appeared in the media. As a good ‘Labor’ man he actively protected the ‘Liberal’ Howard Government from the embarrassment deriving from the bugging.
7) Mark Alfred Dreyfus, Q.C., Labor Attorney-General who approved the tapping of Witness K and Bernard Collaery.
He could appear at the trial and be asked on what ground did he permit the violation of the legal privilege binding Colleary and Witness K.
8) David Taylor Irvine, who was head of A.S.I.S. when the bugging took place, and subsequently head of A.S.I.O. when K and Collaery were bugged and their premises.
9) Nickolas Peter Warner, presently Director-General of National Intelligence, and head of A.S.I.S. at the time of the Witness K scandal; he vetoed the return of K’s passport despite the fact that A.S.I.O. indicated there being no national security concerns about its return.
10) Sarah McNaughton, S.C., Director of Public Prosecutions, who was handpicked by the Abbott Government for the position after her performance as counsel to the Royal Commission into Trade Union Governance and Corruption, established to inquire into alleged financial irregularities associated with the affairs of trade unions. Five years after the events, Director of Public Prosecutions McNaughton has charged Collaery under s. 39 of the Intelligence Services Act, which prohibits the communication of “any information or matter that was acquired or prepared by or on behalf of A.S.I.S. in connection with its functions or relates to the performance by A.S.I.S. of its functions”, without the approval of A.S.I.S. Witness K has also been charged on one count of conspiring with Coallery to communicate information.
11) George Henry Brandis, Q.C., once Attorney-General, better known now as His Excellency The Honourable George Brandis, who has been the Australian High Commissioner to the United Kingdom since May 2018. As Attorney-General he signed off on the raid on Witness K and Collaery premises, and distinguished himself by threatening Collaery under parliament privilege. His Excellency could be asked several determining questions.
12) Charles Christian Porter, presently Attorney-General, who approved the prosecution.
At a press conference in Perth on 2 July 2018, Mr. Porter acknowledged that the case needed his consent as Attorney-General to proceed, but characterised it as “an independent decision made by the Director of Public Prosecutions based on their evidence and the law and their guidelines”, and that he had consented to the prosecution after “very detailed, very thorough” advice from the same. (P. Karp, ‘Witness K scandal: decision to charge Timor-Leste bugging whistleblower was ‘independent’,’ The Guardian, 2 July 2018).
Asked if the prosecution was an attack on basic freedoms, the Attorney-General replied that “people will take their own views” on the case.
Ms. McNaughton and Mr. Porter could be put some very interesting questions at the trial.
The charge currently carries a sentence of 10 years in gaol but Collaery and Witness K will be charged under provisions in place in 2013 – before then-Attorney-General George Brandis strengthened the penalty – which carries a two-year gaol sentence. It was expected that the Commonwealth would have attempted to have the prosecution conducted in camera to prevent the trial from being scrutinised by the media.
In an extraordinary further move, the Government has also sought to lob a ‘gag order’ on Collaery, to prevent him discussing his defence or aspects of the case without its approval.
The Government has punished and harassed Witness K and/or Collaery since 2013. Witness K was refused his passport despite the head of A.S.I.O. indicating that the domestic security agency had no concerns about the former A.S.I.S. officer being allowed to travel overseas. To The Hague, for instance to be a key witness in Timor-Leste’s case in the International Court of Justice to overturn the 2006 Timor Sea treaty ultimately imposed by the Australian Government? In effect, Australia, one of the richest countries in the world, forced Timor-Leste, the poorest country in Asia, to sign a treaty which stopped that country obtaining its fair share of the oil and gas revenues. And that is simply unconscionable.
It seems that then-Prime Minister Julie Gillard and A.S.I.S. were behind the decision to withhold Witness K’s passport. Witness K’s lawyers took action to have that decision overturned, but that action has now been pre-empted by the prosecution of Collaery.
Collaery has himself been the subject of constant surveillance by ‘intelligence’ agencies.
The prosecution is being handled by the D.P.P.’s ‘Organised Crime and Counter Terrorism’ unit, as though the former A.C.T. Attorney-General and the former senior A.S.I.S. officer were Islamist militants; it fulfils the threat made to Collaery by Brandis in 2013, in Parliament, that he might be prosecuted. It marks yet another step in the ‘Liberal’ Government’s war on criticism and dissent, and is directly linked to the government’s relentless war on the A.B.C. A.B.C. journalists Emma Alberici, Connor Duffy, Peter Lloyd and Marian Wilkinson, and producer Peter Cronau, are all ‘identified’ in the prosecution as people to whom Collaery passed illicit information.
On their part, Senator Rex Patrick, Andrew Wilkie, M.P. and Rebekha Sharkie M.P. were calling for the charges to be dropped in what Sharkie called ‘Australia’s Watergate.’ The Financial Times reported on the upcoming trial. (J. Smyth, (‘Australia’s Watergate’ set for trial over East Timor spying claims. Former spy and lawyer accused over alleged bugging of Dili cabinet during $40 bn gas talks’, The Financial Times, 31 October 2018).
Several Senators and M.P.s asked Margaret Stone, Australia’s Inspector-General of Intelligence Services, to investigate whether Australian spying on Timor-Leste violated Australian laws. (C.Knaus and J. Bassano,’ Inspector general of intelligence services looks into Senate crossbencher complaint that bugging operation broke law’, The Guardian, 31 October 2018) Senators Tim Storer, Rex Patrick, Nick McKim and MP Andrew Wilkie, M.P. had complained about the Witness K case to the intelligence watchdog.
The court hearing which was due on 1 November was postponed until 7 November.
On 6 November The Australian Financial Review described government efforts to continue the case in secret. (‘Witness K case: East Timor spying claims may be heard in secret’, The Australian Financial Review, 6 November 2018). Nevertheless, the Collaery/K legal team asked that it be in open court. (P. Karp, ‘Witness K lawyers in fight to head off closed court hearing’, The Guardian, 7 November 2018), but they failed to reach agreement at the 7 November court appearance. (A.A.P., ‘Timor spy lawyers fail to reach agreement’, 7 November 2018) and the hearing was and adjourned for two days.
On 9 November the judge asked the Attorney-General to determine if the trial would involved national security material. (‘Setback for whistleblowers in East Timor bugging case’, The Australian Financial Review, 9 November 2018) A week after, Madeline Miller described the situation in Crikey. (M. Miller, ‘The controversial law that will decide the future of the Witness K trial’, Crikey Insider, 15 November 2018).
On 4 January 2019 the federal government flagged the likelihood of the case being held in closed court to protect information it says could prejudice national security. (T. McIlroy, ‘Closed proceedings in ‘Witness K’ case a matter for court: Christian Porter’, The Australia Financial Review, 4 January 2019).
Thinking about Witness K one’s memory goes to another unfortunate: Joseph K of The Trial. There Franz Kafka wrote: “It’s characteristic of this judicial system that a man is condemned not only when he’s innocent but also in ignorance.”
Trouble is that this time even K’s lawyer is on trial!
Continued Wednesday – Our mate: Saddam Hussein al-Tikriti (part 1)
Previous instalment – The spying on Timor-Leste case … et cetera (part 8)
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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