It’s 21 years since the Howard Government spied on Timor-Leste’s sea boundary negotiation team, but the National Archives is refusing to even say whether they hold documents relating to the spying. Rex Patrick puts to bed any doubts about the fact that the spying took place.
In 2004, the Australian Secret Intelligence Agency spied on Timor’s sea boundary negotiating team, seeking to defraud the world’s newest and most impoverished country of its right to access and benefit from its own resources.
The spying occurred despite a 2002 written commitment by the Australian government to negotiate the sea boundary in good faith.
A maritime boundary treaty was signed between Australia and Timor on 12 January 2006. The Timorese, however, found out about the spying and, after unsuccessfully approaching the Australian government to resolve the issue, commenced proceedings in April 2013 in the Permanent Court of Arbitration in The Hague to overturn the fraudulently negotiated treaty. In their statement of claim, they said:
“The circumstances… are that during the negotiation of the 2006 Treaty between Timor-Leste and Australia in 2004, Australia covertly spied on the Timor-Leste negotiating team by means of listening devices surreptitiously and unlawfully placed by Australian personnel in the Timor-Leste government offices. This enabled the Australian negotiating team to become aware of the private discussions of the Timor-Leste negotiating team and of its position in relation to various issues arising in connection with the 2002 Treaty and the attempt to amend it by the drafting of the 2006 Treaty … “
They went on to accuse Australia of violating customary international law though its bad faith conduct and because the spying was carried out on the territory of Timor-Leste by Australian officials and/or governmental personnel who’d entered Timor-Leste while concealing the true and unlawful purpose of their visit, and with the intent to violate the law of Timor-Leste.
They also added that the complicity of the Australian Embassy in Dili in these actions was incompatible with the Vienna Convention on Diplomatic Relations.
A voice for Timor and whistleblowers keeps up the good fight
Witness ‘K’
On 3 December 2013, the Australian Security Intelligence Organisation raided the offices of Timor’s legal representative, Bernard Collaery, and the home of Witness ‘K’, a former officer of the Australian Secret Intelligence Service and a client of Collaery Lawyers, and seized legal documents related to the arbitration.
The raids gave rise to new proceedings in the International Court of Justice (ICJ) to recover Timor’s unlawfully seized legal documents. The documents seized included earlier versions of an affidavit made by Witness ‘K’. According to documents filed by Timor in the ICJ,
“The affidavit describes the covert bugging in 2004 of the Timor-Leste Cabinet room on the instructions of the Australian authorities. This affidavit was the key evidence in the Timor Sea Treaty Arbitration.:
Just over a month later, on 31 January 2014, the Australian Government asked the Arbitral Tribunal to disallow the giving of evidence of Witness ‘K’. The Australian Government also confirmed in the ICJ proceedings in their formal submissions:
“The facts on which the current dispute turns clearly show that the acts of Mr Collaery and one of his clients, known as ‘K’, constituted an unauthorised disclosure of Australian national security information, which posed serious threats to Australian lives and national security.”
Australia’s line of defence in the ICJ centred on the right of States and stated that the seizing of the documents involved an exercise of territorial sovereignty over an Australian national to protect Australia’s national security. That ‘protection’ centred on laws enacted to prohibit the disclosure of national security information.
The accusations of criminal acts raised included offences under the Intelligence Services Act and the Criminal Code.
Criminal charges laid against Witness K
After the ICJ proceeding commenced, both the ICJ and arbitration cases were suspended for consultations seeking to resolve the differences between Australia and Timor-Leste. Both proceedings were eventually discontinued, and the two countries reached an agreement on a treaty delimiting the maritime boundary and addressing the legal status of the Greater Sunrise gas field.
After a new Maritime Boundary Treaty was signed, charges were brought against Witness ‘K’. The charges were described in the summary of facts in the Magistrates Court of the ACT.
“Witness K has pleaded guilty to the offence of conspiracy to communicate ASIS information between about 1 February 2013 and 20 November 2013 in the Australian Capital Territory and/or elsewhere contrary to section 11.5 of the Criminal Code and section 89 of the Intelligence Services Act 2001 …”
The charges related to the spying operation that took place in Timor between April and October 2004. The statement of facts confirms:
“On 23 April 2013, the Republic of Timor-Leste instituted arbitral proceedings in the Permanent Court of Arbitration against the Commonwealth of Australia, alleging the negotiated Treaty on Certain Maritime Arrangements in the Timor Sea was invalid because Australia failed to conduct the treaty in good faith by engaging in espionage. Collaery was involved as a legal advisor to Timor-Leste and the evidence of Witness K was central to the Timor-Leste case.”
Criminal charges laid against Collaery
Charges were also brought against Collaery under the Intelligence Services Act, and the Criminal Code included a charge that,
“Between 1 December 2012 and 31 May 2013 at Canberra and elsewhere, the defendant conspired with a person known to him as Witness K to communicate information or matter to the government of Timor-Leste that was prepared by or on behalf of the Australian Secret Intelligence Service in connection with its functions or related to the performance of those functions.”
Spies Like Us: how Timor’s oil and gas delivered justice to Bernard Collaery
Wong’s nuanced confession
On 7 July 2023, Australia’s Foreign Minister, Senator Wong, addressed Timor-Leste’s Ministry of Foreign Affairs and Cooperation in Dili and with a nuanced confession:
“There have been past instances in which Australian governments have acted in ways that Timorese people – and many Australians – found disappointing.
“Timor-Leste was right to initiate compulsory conciliation, as you were entitled to do under the United Nations Convention on the Law of the Sea.”
Neither confirm nor deny
When I asked the National Archives for 2004 ASIS documents relating to the spying, they refused to confirm or deny the existence of such documents.
The problem is that, as outlined above, there is a straight and unbroken line that can be drawn through all of this formal government documentation showing that the spying took place.
In Australia, it would not be possible to bring charges against Witness K and Collaery for communicating fictitious spying information.
Admit it, And Let’s Move On
In the Collaery case in the ACT Supreme Court (which was eventually stopped after Senator Wong had travelled to Timor) Xanana Gusmao deposed:
“I believe that the [spying operation facts] can be discussed in public audience in these proceedings, without risk of prejudicing the national security of Australia and the international relations, because they are already a matter of public record and, in the perspective of Timor-Leste, generally are considered true, independently of whatever official position is adopted by Australia in relation to them …”
He went on to state:
“It is my opinion that the public evidence about the [spying operation facts] would be a positive development in our bilateral relationship and that this would be well received by Timor-Leste. This would happen because a public discussion of these measures would strengthen our trust in Australia and in its Government.”
Gusmao concluded his affidavit by saying:
“… It is my opinion that the mistake on the part of Australia in confirming or denying openly all or part of the [spying operation facts] is a bad example and reflects negatively on the commitment made by Australia to transparency, justice and the rule of law in the international community.”
Gusmao is currently the Prime Minister of Timor-Leste. What he said must be listened to.
Not listening
But the Australian Government is foolishly not listening.
While the Government refuses to confirm or deny the spying operation, Australians can’t talk to their government about it. While the Government refuses to confirm or deny the spying operation, we will not have a proper, trusted relationship with Timor.
I have appealed the National Archives decision. This is a case that may well end up in the High Court.
Meanwhile, Timor is cuddling up to China.
Rex Patrick: will Timor-Leste become China’s latest aircraft carrier?