East Timor bugging scandal: Attorney General’s push for secret trial diminishes us as a nation

by | Aug 19, 2020 | Government

The Attorney General is waging war against lawyer Bernard Collaery and his client in pushing the line that the sky will fall in if the Commonwealth has to admit in open court that ASIS bugged Timor-Leste. Yet the allegation has been widely noted in hundreds of reports over many years, including by the International Court of Justice, and nobody seems in any doubt it is true. Lawyer Ian Cunliffe reports on the latest judgment in the saga that has cost taxpayers nearly $2.5 million before the trial has even started.
It took a revelation in Parliament by Independent MP Andrew Wilkie in late 2018 for Australians to find out that federal Attorney-General Christian Porter had authorised a criminal prosecution against former ACT Attorney-General and Deputy Chief Minister Bernard Collaery and Witness K over the leaking of information that in 2004 Australia had bugged the Cabinet office of tiny Timor-Leste.

Australia did so to enable it to eavesdrop on the Timorese as they prepared for negotiation sessions with Australia over the massive liquid gas resources in the Timor Sea. Despite Porter’s best efforts to keep the prosecution secret, most interested Australians are now aware of this David and Goliath battle in the Supreme Court of the ACT.

To date there have been seven judgments on preliminary aspects of the case.

The most recent judgment became public in late July, a whole month after Justice David Mossop ruled for Christian Porter that essential parts of Collaery’s criminal trial would be held in secret.

Normally judgments go up on a court’s public website the day they are handed down – transparency being a key aspect of the rule of law and justice must be seen to be done and all that.

Month-long delay posting court decision

Porter had sought rulings from the Supreme Court that much of the trial should be held in secret. The month-long delay in posting the decision had apparently been a result of the prosecution vetting the judgment and saying what parts of it should not be published.

Porter has invested a great deal in prosecuting Collaery and doing so out of the public gaze. Nearly $2.5 million has been spent on legal costs yet the trial is still a long way off.

Reputationally, Porter has much on the line as well. In pushing so strongly for a largely secret trial, Porter gave evidence that disclosure of information during the trial was “likely to prejudice national security”.

He channelled Henny Penny, Ducky Lucky, Goosey Loosey, Turkey Lurkey and all the rest of the characters in Chicken Little (AKA the heads of ASIS, ASIO, the Office of National Assessments (ONA), the Department of Homeland Security, and the Department of Foreign Affairs and Trade, ASIO’s Deputy Director, and a former head of ONA) to give evidence that the sky would surely fall down if the Commonwealth had to admit in open court that ASIS bugged Timor-Leste.

This is despite the fact that the bugging allegation has been widely reported over the years. In fact, Justice Mossop noted evidence that more than 600 media reports, publications and records of the International Court of Justice referred to the allegations. Four of the five charges against Collaery are for reports broadcast on ABC programs including 7.30 and Four Corners, which are still available on the web.

Since when is it a crime to report a crime? Bernard Collaery exposes the Timor Sea betrayal

Bugging allegation widely accepted

Nobody seems to be in any doubt that the allegation is true: under the guise of refurbishing the Cabinet room through an aid program, the Australian Secret Intelligence Service, with the approval of the Australian Government, bugged the aid recipients all the better to screw them in the resource negotiations.

Pleading for openness against the Chicken Little crowd was an impressive group of defence witnesses: former foreign minister and attorney-general Gareth Evans, former chief of the Australian Defence Force, Admiral Chris Barrie, former Ambassador to the US and Indonesia John McCarthy, and former NSW Supreme Court judge and ICAC commissioner Anthony Whealy QC.

Former East Timor presidents Xanana Gusmao and Jose Ramos Horta also gave evidence for Collaery’s bid for the trial to be in public. It is particularly remarkable that the judge ruled that it was too sensitive for Australians to know that Gusmao and Horta did not consider relations between Timor-Leste and Australia would be prejudiced by the world knowing Australia bugged their Cabinet room.

Yet the judge agreed with Porter’s crowd and made orders for secrecy. Open trials have always been a foundation stone of the Australian criminal justice system as they are a key way to maintain public confidence in the system.

Court’s conclusion unconvincing

Justice Mossop’s conclusion that secrecy was required seems remarkably insipid and unconvincing. He said the risk of prejudice to Australia’s national security “is neither immediate nor catastrophic”, and that it was not possible to determine “precisely how those risks will manifest themselves”.

He said that any reputational harm from the trial being largely secret would be discounted by “the general perception that Australia has an independent and fair judiciary”. Yet that very reputation is being seriously tested by Canberra’s secret trials.

He also acknowledged there was a risk that a government might assert concerns about national security to avoid being embarrassed politically or to avoid legitimate scrutiny of its conduct. But the judge did not say why that risk should not lead to a different result on secrecy.

Wrong legal test

Yet Justice Mossop seems to have applied the wrong legal test. He stated the question was whether there would be “a risk of prejudice to national security” if the trial was held in public. But that was not the question he was required to decide. The proper question was whether openness was “likely to prejudice national security” which the judge himself acknowledged required a higher threshold.

Allowing the prosecutor a lower threshold than the Intelligence Services Act stipulates in relation to the very serious offences which Bernard Collaery is facing is likely to be an appeal point.

When Andrew Wilkie revealed the prosecution of Collaery all those years ago, Wilkie argued that senior government officials were the “real criminals — the people who ordered the illegal bugging”, and that they should be investigated by the Australian Federal Police. That appears not to have happened. Therefore Bernard Collaery and Witness K are in the dock and not Alexander Downer and John Howard.

ABOUT THE AUTHOR

Ian Cunliffe

Ian Cunliffe

Lawyer, formerly senior federal public servant (CEO Constitutional Commission, CEO Law Reform Commission, Department of PM&C, Protective Security Review and first Royal Commission on Intelligence and Security; High Court Associate (1971) ; partner of major law firms. Awarded Premier's Award (2018) and Law Institute of Victoria's President's Award for pro bono work (2005).

13 Comments

  1. Avatar

    The Liberal Party seeks to protect Howard and Downer. And will stop at nothing to do so. Not so different to China.

    And create a warning to any intending whistle blower.

    • Avatar

      Howard and Downer have a history of engaging in treasons against the people of Australia.
      The East Timor massacres being just one of them.

  2. Avatar

    Australia can no longer afford to host this treason-like Liberal/National coalition party, let alone permit this same governmenrt to stay quiet about the volume of Australia’s revenue (I refer to the taxpayer unearned monies) that is being gifted to the new American subsidiary arms and weapons manufacturing corporations… to help their becoming established in this of our former proudly unique sovererign nation.

    • Avatar

      Meanwhile Porter is seemingly not being held to account for the waste of public funds. They, politicians, are supposed to be our servants not acting to hide their dirty deeds. It’s just more corruption and so where is our federal ICAC? Needs to be powerful, independent and not a toothless tiger.

  3. Avatar

    Let’s get to the heart of this matter.
    The reason for secrecy has nothing to do with Australia’s security, it is all to do with protecting the bunyip aristocrats who screwed up big time in firstly authorizing this nasty deed, and secondly in how they handled being discovered.
    What the hell is wrong with these bunyip aristocrats, they are so much less than the real UK and European aristocrats, and that is probably because the Australian bunyip aristocrats made their money from dispossessing the First Nations people from their lands in the Frontiers War that started in 1788 and continues to this very day.

  4. Avatar

    A question for Mr Cunliffe. Was the act of espionage against East Timor illegal under Australian law? If it was how should redress take place. Please briefly sketch out the procedures that the people responsible might be tried and punished. If it is not illegal, then does not the whole problem fade away? In that case there would have been no crime, no great need for whistle-blowing, and the usual reasons for keeping the activities of the intelligence services concealed are as valid as ever. Or perhaps the issue in your mind is that if it was not illegal to bug the East Timorese government then it should be illegal?

  5. Avatar

    All decent Australians know that this is a disgraceful outrage and a blight on our reputation.

    It is simple …do the right thing and end this Court action, award appropriate compensation and restore Australia’s name as a defender of fairness, not a bloody-minded BULLY.

    • Avatar

      No, we don’t know that. Mr Cunliffe has not said, even when asked, that the espionage was against Australian law and no-one is saying Australia’s maritime claims in the Timor Sea were illegal, before or after re-negotiation. We should expect our espionage capabilities to be used legally and in the national interest. It is insinuated that the espionage was motivated to benefit the private company Woodside but there is no reason given to believe that was the true reason as opposed to it being to Australia’s benefit.

      We expect Australia to be benevolent to East Timor as it has been since the time of independence. Ceding the greatest possible revenue stream from oil or gas production is not the only way to help East Timor.

      It is not enough to say that the government is like “Henny Penny” (Mr Cunliffe) or a “BULLY”. There has to be a clear argument that someone did something illegal, or against the national interest, or that our laws are inadequate, to justify breaking laws that protect secrecy in the national interest. We are left to guess what the complaint really is. We should not spy on anyone? Not on small countries? Please tell us.

      The laws that exist to protect the secrecy of intelligence operations serve the national interest. We trust that where laws have to be administered in secret it is done properly, else we do need someone to blow the whistle. That may be what is happening here but let us be clear about the issue, else we might think someone is crying “wolf” and we might not be inclined to take notice one day when there is a real problem.

  6. Avatar

    A rhetorical question: Has any Australian Court ever before allowed a prosecutor to edit a judgement before it was posted? And several serious sequiturs : Can any Australian have faith in a system of justice which allows the political editing of its judgements, which may withhold from the accused some of the evidence against him?

    And an observation. The $2.5m in legal fees is nickels and dimes in this matter. The whole of Australia’s foreign aid program, built assiduously over decades, has been trashed because nobody wants Australia’s Trojan Horses with bugging devices built in. The treaties at the centre of the fiasco contrived to donate to Woodside and partners all of the gases including the helium from Greater Sunrise. That donation is valued at $10-12bn and it was made at the cost of the taxpayers of Australia and the nation of Timor-L’Este.
    This scandal is vast in scale. The issues of ‘national security’ are swamped by issues of national viability. The evidence is now overwhelming that our political system is so corrupted by commercial donations (yes, Woodside donates generously to coalition and Labor parties) that it can no longer act in the national interest.

    We citizens cannot know what are the cases against Collaery and K. Given the permission of secret evidence, and the editing of judgements, we may never know (and, extraordinarily, nor may the accused). But we know the case for the prosecution of those who conspired in Canberra to breach the ACT Criminal code to defraud us all. I am one who can never forgive the corrupt omission of proceedings by government (nor the compliance in this omission of Her Majesty’s Opposition).

  7. Avatar

    Just another reason that I no longer reside in Australia , when you have secret trials and secret prisoners you can no longer call yourself a democracy, also the lack of property protection from government and the banking bailin laws, I was right to completely exit Australia, I will only ever live in democratic countries.

  8. Avatar

    Do our elected representatives live in some parallel universe?
    Rather than prosecute implicated government representatives, the revengeful pursuit by Christian Porter of Bernard Collaery for defending “Witness K” is just cowardly and immoral.
    The illegal bugging of a foreign government, East Timor, was signed off by Alexander Downer.
    That our democracy sought to gain advantage over this impoverished nation – simply defies belief.

    • Avatar

      We don’t know that the bugging operation was illegal. That makes all the difference. Join me in asking Mr Cunliffe to explain this point?

      • Avatar

        We do have legal advice from the former Attorney General of the ACT that the DG of ASIS conspired with others in the ACT to defraud the citizens of Timor L’Este and the taxpayers of Australia in breach of the ACT Criminal Code.
        Mr Cunliffe is fully aware.

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