Australia's greedy and probably illegal theft, through espionage, in 2004 of fledgling, struggling neighbour Timor-Leste’s government’s deliberations on a dispute between the two nations over ownership of oil and gas reserves was a disgrace. The international ignominy is being amplified by the Australian government’s subsequent shameful treatment of the man who brought the scandal to light and of his lawyer.
The informant, referred to in court documents as Witness K, was part of the ASIS team that bugged Timor-Leste’s government. The information there is protected by law. Australia also arguably broke international law by raiding the homes of Witness K and his lawyer, Bernard Collaery in 2013. It confiscated Witness K’s passport (still unreturned) to prevent him appearing as a witness for the Timor-Leste government in legal proceedings there.
Witness K has widely been described as a whistleblower. Whistleblowers, sometimes at terrible personal cost, generally serve the public interest. Witness K is not even open to the attacks supporters of heavy-handed government level towards whistleblowers in so-called matters of national security. He dutifully took his gnawing disquiet about the cynical spying to the Inspector-General of Intelligence, who concurred that the evidence might well be disclosed in any associated legal proceedings. Mr Collaery says both men were given approval to disclose by the inspector-general.
The spying saga began emerging years ago, but it was not until recently we learnt – when independent federal MP Andrew Wilkie, himself a former intelligence officer, revealed, under parliamentary privilege – that Attorney-General Christian Porter has approved a prosecution against both men. Our government appears to be doubling down on its reprehensible position; the case will start on July 25, when the court will also consider whether to hear it in private.
It would, of course, be naive to argue nations do not and should not gather intelligence on enemies or potential threats. That is justifiable on national security grounds. But what Australia did to an ally in need of our support was not about security. It was about denying Timor-Leste – one of the poorest countries on earth – a fair share of the undersea energy resources between our two nations.
Mr Wilkie, with the support of two other crossbenchers, is rightly calling on the the Australian Federal Police to investigate whether ASIS broke the law by installing the surveillance devices. The wrong people, it seems, are being sent to court. Those who ordered and covered up the spying are open to prosecution on a number of fronts.
This grubby case could well end up in the High Court, where, in a 1984 ruling against the proposition governments can order activities that breach laws here or in other nations, Justice Anthony Mason declared: ‘‘For the future, the point needs to be made loudly and clearly that if counter-espionage activities involve breaches of the law they are liable to attract the consequences that ordinarily flow from breaches of the law.’’