It may well be Canberra's trial of the decade (sorry, David Eastman). Independent MP Andrew Wilkie told Federal Parliament last week that an unnamed spy (Witness K) faced criminal charges for discussing intelligence operations with his lawyer, Bernard Collaery, who also faced charges for sharing that information publicly.
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The details of this case, insofar as they're public, have been reported elsewhere. But the nub of the matter is whether our overseas spy agency, the Australian Secret Intelligence Service, acted lawfully when it planted bugs throughout East Timor's cabinet office in 2004. Those bugs granted Australian officials, led by then foreign minister Alexander Downer, an advantage in negotiating with East Timorese prime minister Mari Alkatiri's team over how to carve up the gas-rich Timor Sea.
Witness K later raised concerns, internally, that the bugs were not placed to protect Australia's national interests but rather to benefit other parties' commercial interests. In other words, he believed the bugs were illegal.
These matters are more than just news to me. At the time, I worked for federal Labor MP Warren Snowdon, writing speeches, making tea and so on. Snowdon knew most of the East Timorese leaders from their time in exile in Darwin. Some had worked out of his office during the 1999 crisis; he visited Dili often after East Timor's independence.
I met Alkatiri's advisers in Darwin occasionally while the negotiations were under way. The dynamic was clear: time was against impoverished East Timor. It desperately needed a treaty to begin collecting gas royalties. The longer Australia waited, the more concessions Australia was likely to win. Media reports at the time suggested Downer was abusive, "belligerent and aggressive" in those meetings, banging the table while berating Alkatiri and his advisers.
Snowdon used Parliament and the media to criticise the manner in which Australia was conducting the talks. Coalition MPs accused him of treason; of promoting East Timor's interests above Australia's. In our view, it was clearly in Australia's national interest to avoid hobbling our poorest neighbour. Resolving the treaty talks quickly and fairly would give East Timor some of the revenue it needed to develop, and bring jobs to Snowdon's constituents in northern Australia. The main beneficiaries of stacking the negotiations against East Timor seemed to be the petroleum giants that would exploit the gas fields. (One of those, Woodside, would later employ Downer.)
I wondered at the time, given the outlandish cries of "treason!", whether the Howard government was bugging communications between Alkatiri and Snowdon's offices. But I didn't worry. We had nothing to hide: the debate about the negotiations and the national interest was public and open.
Fourteen years on, after not thinking much about the matter at all, it came up in a recent conversation with a public servant who had knowledge of those negotiations from the Australian side. I asked about the bugging, and whether Snowdon was monitored covertly. I doubted it was legally possible, I explained, because the privilege of Parliament protects the work of parliamentarians from the executive.
"Don't be so naive," was the response. "We didn't have to do it; the Americans did it for us."
If true, what a remarkable use of allies. After all, our tricky constitutional problems aren't their problems.
I asked ASIO a simple question: is it allowed to monitor Australian parliamentarians covertly? (ASIS doesn't take calls.) The spy agency responded with the kind of indecipherable non-answer that a cynic would read as "yes we can" (see the response below). Perhaps our intelligence community is so accustomed to getting its way – whether that be new powers, staff or money – that it now believes itself to be immune from the supremacy of Parliament.
I wish Collaery and Witness K all the best, but God help them if their case isn't heard in an open court.
Secret language
On trying, and failing, to get a straight answer from ASIO. My question:
I believe ASIO and other Australian intelligence agencies cannot lawfully collect intelligence from Australian parliamentarians without their agreement (e.g. by covertly surveilling their phones calls or emails). I cannot find reference to this limitation, but I believe covert surveillance of parliamentarians would infringe on parliamentary privilege.
Questions:
- What, if anything (e.g. legislation), prevents ASIO and other Australian intelligence agencies from collecting intelligence from Australian parliamentarians without their knowledge and agreement?
- Do these limitations (if they exist) prevent ASIO and other Australian intelligence agencies from also accessing intelligence about Australian parliamentarians collected by third parties, such as Five Eyes allies?
Its reponse:
- ASIO operates under a strict legislative framework and a comprehensive accountability framework with considerable oversight. ASIO engages transparently with the oversight and accountability mechanisms to provide public assurance of the legality and propriety of ASIO's actions.
- ASIO conducts security intelligence activities in accordance with the ASIO Act and the Attorney-General's Guidelines. Both these publications are publicly available. The guidelines stipulate that ASIO activities must be conducted in a lawful, timely and efficient manner, applying the principle of proportionality – that is, the methods used to investigate a person must be proportional to the threat posed – to ensure the least intrusion necessary into an individual's privacy.
- ASIO external oversight and accountability mechanisms are multilayered and robust. They are designed to provide assurance to the Australian people and the Australian government on the legality and propriety of activities undertaken by ASIO.
