Australia–East Timor spying scandal

The Timor Sea (blue) is a rich source of oil and natural gas

The Australia–East Timor spying scandal began in 2012 when the Australian Secret Intelligence Service (ASIS) was revealed to have planted covert listening devices in the cabinet office of East Timor in 2004, with the purpose of gathering top secret information related to bilateral negotiations over the Greater Sunrise oil and gas fields in the oil rich Timor Gap.^[1] Witness K, a former senior ASIS intelligence officer who was in charge of the bugging, provided information in 2012 which publicly revealed that the Australian Government had gained the top secret knowledge and used it during negotiations over the Treaty on Certain Maritime Arrangements in the Timor Sea (CMats).^[2] This treaty put a 50-year hold on East Timor's pursuit of expanded underwater territory, an area that has an estimated $US40 billion in oil and gas reserves.^[3][4] East Timor now disputes the validity of the treaty.

In March 2014, the International Court of Justice (ICJ) ordered Australia to stop spying on East Timor.^[5] The Permanent Court of Arbitration in the Hague is presently considering East Timor's claims over the territory.^[2]

The identity of Witness K must be kept secret under the provisions of the Intelligence Services Act and any person in breach of this could face prosecution.^[3]

Background

In 2002, the Australian Government "withdrew" from the United Nations Convention on the Law of the Sea (UNCLOS) clauses which could bind Australia to a decision of the Permanent Court of Arbitration in the Hague on matters of territorial disputes. Two month later, East Timor officially gained its independence from Indonesia.^[2] In 2004, East Timor began negotiating territorial borders with Australia. In response to this, ASIS used an Australian aid project to infiltrate the Palace of Government in Dili and install listening devices in the walls of the cabinet room.^[6] This enabled ASIS to obtain top secret information from East Timor's treaty negotiators, who were led by then Prime Minister Mari Alkatiri, which was in turn provided to Australia's negotiating team. This provided the Australian Government with "an advantage during treaty talks".^[2] The installation of listening devices occurred 18 months after the 2002 Bali bombings, during a time of heightened ASIS activity in the Southeast Asia region.^[3] In 2006, Australia and East Timor signed the second CMats treaty.^[7]

Before Witness K revealed ASIS's clandestine activities, the resulting treaty between East Timor and Australia was ridiculed. Over 50 members of the US Congress sent a letter to Prime Minister John Howard calling for a "fair" and "equitable" resolution of the border dispute, noting East Timor's poverty. Signatories included Nancy Pelosi, Rahm Emmanuel and Patrick J. Kennedy.^[8]

At the time of the incident the head of ASIS was David Irvine, who was head of the Australian Security Intelligence Organisation (ASIO) until recently, and the operation was carried out with the involvement of Nick Warner, present head of ASIS, in an advisory role.^[6] The Foreign Minister, who officially oversees ASIS, was Alexander Downer, who is presently Australia's High Commissioner to the United Kingdom. According to the lawyer of Witness K, former ACT Attorney-General Bernard Collaery, successive Australian Governments from both major parties to the present time have actively sought to cover-up the incident.^[6]

Witness K decided to reveal the bugging operation in 2012 after learning that the former Foreign Minister, Alexander Downer had become an adviser to Woodside Petroleum, which was benefiting from the treaty.^[9]

Reaction to the allegation

Senator Nick Xenophon (right) with Bernard Collaery (centre) and his lawyer Nicholas Cowdery QC (left) calling for a royal commission into the bugging scandal in November 2015.

The Gillard Government, in response to a letter send by East Timor's Prime Minister Xanana Gusmao requesting an explanation and a bilateral resolution to the dispute, authorised the installation of listening devices in Collaery's Canberra office.^[6] After the story became public in 2012, the Gillard Government inflamed tensions with East Timor by denying the alleged facts of the dispute and sending as a representative to Dili someone who was known by Gusmao to have been involved in the bugging.^[3] In 2015, Guamao said of Prime Minister Julia Gillard's response:

"It meant that the Prime Minister of a modern democracy on Timor Leste's doorstep [Australia] did not know what her intelligence service was doing."^[3]

The response of the Gillard Government led to East Timor's application to have the case heard in the Permanent Court of Arbitration. According to Gusmao, Prime Minister Tony Abbott sought to assuage East Timor's concerns over the spying scandal by assuring X that "the Chinese are listening to [Australia]".^[3] In 2015, the bugging scandal received renewed interest after the Australian Broadcasting Corporation ran a story revealing the level of concern amongst senior intelligence officials in the Australian intelligence apparatus.^[3] Foreign Minister Julie Bishop banned Witness K from using his or her passport. As Collaery has pointed out, such security assessments are usually conducted by ASIO and not, as in the case of Witness K, by ASIS.^[6] Attorney-General George Brandis, under lengthy questioning by a panel of Australian senators, admitted that new national security laws could enable prosecution of Witness K and his lawyer, Collaery.^[10] Further, Australia's Solicitor General, Justin Gleeson SC, claimed in a submission to the ICJ that Witness K and Collaery could have breached parts of the Criminal Code pertaining to espionage and could be stripped of their Australia citizenship if they are dual-nationals (as, indeed, Collaery is).^[10] Foreign Minister Julie Bishop said in April 2016 that: "We stand by the existing treaties, which are fair and consistent with international law."^[4]

The Turnbull Government has recently (August 2016) indicated it will consider any decision made by the Permanent Court of Arbitration binding. Some suggest this "softening" is linked to the territorial dispute over the South China Sea between China and neighbouring states.^[2][11] The Timor-Leste government has continued to press Australia for an equidistant border between the two countries.^[12] The Australian Labor Party in 2016 suggested a new deal could be struck between Timor-Leste and Australia if it formed government.^[13]

In September 2016, The Age newspaper in Australia published an editorial claiming East Timor's attempts to resolve this matter in international courts "is an appeal to Australians' sense of fairness."^[14] An articles in the Global Times in China on 6 September 2016 said:

[Australia] should not involve itself in the South China Sea arbitration while challenged by the maritime boundary disputes itself...The Australian government should not do what it would not like the international community to do to itself.^[15]

On 26 September 2016, Labor Foreign Affairs spokesperson Senator Penny Wong said, "In light of this ruling [that the court can hear East Timor's claims], we call on the government to now settle this dispute in fair and permanent terms; it is in both our national interests to do so".^[16] To date (September 2016), the Australian Government has not officially acknolwedged the spying claims.^[17]

"Just as we fought so hard and suffered so much for our independence, Timor-Leste will not rest until we have our sovereign rights over both land and sea," Gusmao, 26 September 2016.^[18]

ASIO raids

The Australian lawyer Bernard Collaery, who was representing the East Timorese government in a dispute against the Australian Government over the bugging of cabinet offices during the negotiations for a petroleum and gas treaty in 2004, alleged in 2013 that two agents from the Australian Security Intelligence Organisation (ASIO) had raided his Canberra office and seized his electronic and paper files.^[19] Three months after the election of the Abbott Government in 2013, ASIS was authorised to raid the office of Collaery and the home of Witness K, whose passport was seized.^[3][6] Australia's Attorney-General George Brandis has since asserted that he had authorised the ASIO raids to protect Australia's national security.^[20] The passport of Witness K was still being held as of February 2016.^[21] Collaery said of Witness K's ability to travel overseas and appear before the Hague:

"For the East Timorese, it will be crucial that Witness K's passport is returned so he can travel to The Hague to testify in the case."^[3]

Witness K has since been allowed to give video evidence in the Hague trial given his inability to travel outside Australia.^[6]

International law

International Court of Justice (ICJ)

On 3 March 2014, in response to an East Timorese request for the indication of provisional measures, the ICJ ordered Australia not to interfere with communications between East Timor and its legal advisors in the arbitral proceedings and related matters.^[22] The case was officially removed from ICJ's to-do list on the 12th of June 2015^[23] after Timor-Leste confirmed that Australia had handed back the goods: "the Agent of Timor-Leste explained that, “[f]ollowing the return of the seized documents and data by Australia on 12 May 2015, Timor-Leste [has] successfully achieved the purpose of its Application to the Court, namely the return of Timor-Leste’s rightful property, and therefore implicit recognition by Australia that its actions were in violation of Timor-Leste’s sovereign rights”.^[24]

Permanent Court of Arbitration

In 2013, East Timor launched a case at the Permanent Court of Arbitration in The Hague to pull out of a gas treaty that it had signed with Australia as it accuses the latter of having ASIS bug the East Timorese cabinet room in Dili in 2004.^[25]

In April 2016, East Timor began proceedings in the Permanent Court of Arbitration under UNCLOS over the sea border it shares with Australia. The Department of Foreign Affairs and Trade released a statement condemning the move, which it said was contrary to the previous treaties it had lawfully signed and implemented.East Timor believes much of the Greater Sunrise oil field falls under its territory and that it has lost $US5 billion to Australian companies as a result of the treaty it now disputes.^[4] Hearings before the court commence on 29 August 2016.^[2] The court dismissed Australia's claim that it did not have jurisdiction to hear the case on 26 September 2016.^[26]

See also

• Treaty on Certain Maritime Arrangements in the Timor Sea
• Australia–Indonesia spying scandal

References