The raids were due to national security: George Brandis. Photo: Alex Ellinghausen
Attorney-General George Brandis is refusing to return to the East Timor government ''highly sensitive'' legal advice from an eminent international law expert seized during ASIO raids this month, prompting the fledgling nation to launch action in the International Court of Justice.
East Timor will argue the seizure by Australia of the documents and data is a violation of its sovereignty, property and other rights under international law
East Timor and Australia are in the midst of a dispute, at present in arbitration in The Hague, about a treaty governing oil and gas deposits in the Timor Sea worth $40 billion. The advice, from British QC Vaughan Lowe, outlines the strengths and weaknesses of East Timor's case.
Stephen Webb, head of energy at global law firm DLA Piper and its lead partner advising the East Timor government, said the advice from Mr Lowe on the ''prospects'' of the case was vital.
''Such internal advice documents would never be shown to the other side, in this case the Australian government, during legal proceedings,'' he said. ''Internal legal advice is legally privileged and obviously highly sensitive.''
As it launched proceedings for the documents' return, East Timor also asked the ICJ to secure an undertaking from Australia not to intercept communications between the tiny country and its advisers, and to apologise for the raids.
East Timor's case relies on allegations that Australian spies bugged its cabinet offices during negotiations over the treaty on the instruction of former foreign minister Alexander Downer.
The star witness for East Timor is a former Australian Secret Intelligence Service officer, who allegedly led the eavesdropping operation under cover of an aid program. Knowing that East Timor would request assurances that the former spy and other witnesses not be arrested or prevented from testifying, Senator Brandis approved ASIO agents raiding the man's property and the seizure of his passport on December 3, days before the arbitral tribunal was due to hear argument on the matter.
Also raided was the office of lawyer Bernard Collaery, who is representing East Timor. It was from his office that Mr Lowe's legal advice was taken, along with other documents and electronic files.
Senator Brandis told Parliament the raids were due to national security concerns around the alleged leak of classified intelligence information, and not related to the arbitration in The Hague.
He said any material obtained would not be passed on to the solicitor-general and other lawyers running Australia's case in The Hague.
But the Australian government had known about the allegations of espionage against East Timor by the former ASIS agent for at least a year before the raids, suggesting it was linked to the arbitration.
East Timor will argue the seizure by Australia of the documents and data is a violation of its sovereignty, property and other rights under international law.
Its lawyers wrote to Senator Brandis on December 10 requesting a list of the documents seized in the raids, the return of the documents, and the destruction of any copies, including any passed on to third parties and other nations.