Pearls and Irritations

Australia is leading the Western world in enacting tough new laws to curb foreign interference and influence-peddling in domestic affairs. The primary intended target is China.

Ironically, Australia is now prosecuting a former member of the Australian Secret Intelligence Service (ASIS), who exposed  alleged breaches of Australian, East Timor and international laws by Australian intelligence operatives in East Timor.

Australia, with UN assistance, was the midwife to the bloody liberation of East Timor in 1999. The Timorese were appropriately grateful. But, in the negotiations with Australia, in 2002–04, over maritime boundaries and commercial rights to oil and gas exploration in the Timor Sea, Canberra took a tough approach.

When East Timor suggested the dispute be referred to the International Court of Justice (ICJ), Australia, a self-congratulating champion of a “rules-base order,” withdrew from the court’s maritime boundary jurisdiction.

Meanwhile AusAid, Australia’s foreign aid agency, which then operated under the oversight of Foreign Minister Alexander Downer, was providing post-conflict reconstruction and development assistance to East Timor. Downer was also, of course, the Australian High Commissioner to the UK who met Trump staff member George Papadopoulos in May 2016, in the Kensington Wine Rooms in London, and then passed on to Australian and US authorities what Papadopoulos had told him about the Trump camp and its contacts with Russia.

In April 2004, ASIS placed operatives among aid workers deployed by AusAid to Dilli, in order to embed surveillance equipment in the cabinet and ministerial offices of the Timorese premier, Mari Alkatiri. The main target of the spy operation was Peter Galbraith, a former US diplomat and UN deputy in Afghanistan who was acting as Timor’s chief negotiator. Through this action, Canberra gained sensitive information on East Timor’s strategy. This gave it considerable advantage in negotiations. With its treasury almost empty and in desperate need of the oil revenues, Dilli agreed to a deal, in May 2005.

Aid agencies of donor countries establish a delicate relationship of trust with recipient countries. Intelligence agents deployed under the cover of aid projects exploit that trust and put at risk the freedom and lives of all legitimate aid workers. In this case, many in the Australian intelligence community were also concerned at the blurring of the boundary between public and private sector commercial interest, and the diversion of scarce resources from the investigation of the terrorist bombing of the Australian embassy in Jakarta on 9 September 2004 that killed 9 people. The al-Qaeda linked Jemaah Islamiyah claimed responsibility for the attack.

The spying saga exposes the use of intelligence authorised by the Australian government to obtain information to help it prevail in an inherently lop-sided negotiation: to benefit private enterprise Canberra used its intelligence service to bully its neighbour.

Andrew Wilkie MP is himself a former intelligence analyst who resigned from his job after Canberra distorted intelligence to justify the 2003 Iraq war. He then sought, successfully, election to Parliament. Speaking in Parliament on 28 June, Wilkie drew attention to the scandalous fact that the Secretary of the Department of Foreign Affairs and Trade at the time, Ashton Calvert, after retirement in 2005 joined the Board of Directors of Woodside Petroleum, a key beneficiary of Australia’s negotiating efforts  for access to the oil and gas fields in the Timor Sea. With the defeat of the government of Premier John Howard in 2007, Downer retired from Parliament in 2008 and also landed a well-paid consultancy with Woodside.

Subsequently, following prescribed procedures, the Australian head of the technical unit in the 2004 bugging of the offices – described in court documents only as “Witness K” – communicated his unease about aspects of the operation to the Inspector-General of Intelligence and Security.

On 23 April 2013, Dilli initiated proceedings at the Permanent Court of Arbitration in The Hague to cancel the bilateral agreement, arguing that Australian bad faith in the negotiation had put it at unfair commercial disadvantage. Australia castigated China for defying the same court’s 2016 ruling in its maritime dispute with the Philippines. Canberra-based lawyer Bernard Collaery, representing both East Timor’s interests and acting as K’s personal lawyer, organized for “K” to travel to The Hague to give evidence.

On 3 December 2013, Australian security officers raided K’s home and Collaery’s offices and seized various documents, including an affidavit from K in which he described what he knew of the 2004 operation. The government cancelled his passport to stop him travelling. Journalists who had been contacted by Collaery were summonsed by the federal government and the media was warned not to make comments.

On 17 December, Dilli launched a separate side-appeal to the ICJ against Australian seizure of its confidential communications with its lawyer. In a humiliating rebuke by the world’s top court, on 3 March 2014, Australia was ordered not to use any of the contents of the seized documents by a 12-4 vote of the 16 judges; to keep them under seal (12-4); and not to interfere in communications between East Timor and its legal advisers (15-1).

Arbitral proceedings were formally terminated on March 20, 2017 by the PCA on joint application by Canberra and Dilli following successful conciliation and, in 2018, following a process of compulsory conciliation between East Timor and Australia, a new treaty was signed. Charges were then brought against “K” and Collaery for violating s.39 of the Intelligence Services Act (2001)

On 28 June, under the protection of parliamentary privilege, Wilkie revealed that “K” and Collaery (a former attorney-general of the Australian Capital Territory) had been charged with the criminal offences of conspiring to disclose classified information on ASIS activities by informing the Timor government that its offices had been bugged in 2004. They face up to two years in jail.

Under Australia’s new laws, a journalist could be prosecuted for having a copy of “K”’s 2013 affidavit; publishing it could lead to up to 25 years jail. Greg Barnes, a prominent barrister and spokesman for the Australian Lawyers’ Association, warns: “The effect on media is quite chilling, but in fact that’s the whole idea … It’s part of a pattern.”

A final irony is that PM Malcolm Turnbull first shot to international fame in 1986 as a young lawyer who successfully defended the right to publish Spycatcher, an exposé of the British secret service by ex-spook Peter Wright.

It’s clear the Australian spying was illegal and brutally selfish. Wilkie notes: “One of the richest countries in the world forced East Timor, the poorest country in Asia, to sign a treaty which stopped them obtaining their fair share of the oil and gas revenue.”

Now, in an Orwellian twist, the country is seeking to make it a crime for anyone to reveal its conduct. In the ultimate insult, Timorese activists have compared the prosecution of “K” and Collaery to how they were treated by the Indonesians. under the Suharto regime.

This is an expanded version of an article originally published as ‘’ A spying scandal exposes Australia’s immoral behavior toward East Timor’, The Washington Post, 10 August 2018

Ramesh Thakur, former United Nations Assistant Secretary-General; emeritus professor in the Crawford School of Public Policy, Australian National University.

Richard Butler, former Australian Ambassador to the UN; Executive Chairman of the UN Special Commission to disarm Iraq (UNSCOM).

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