Australian Government Goes After Whistle-blowers

Scapegoats for misdeeds, mismanagement and vested interests

By: Murray Hunter

The latest chapter in Australian government deceit is playing itself out in a Magistrates Court in Canberra, where two people, one known only as Witness K, a former Australia Secret Intelligence Service operative, and his lawyer, former Capital Territory attorney general Bernard Collaery, have been caught up in an extraordinary 17-year act of state vengeance.

The defendants disclosed an allegedly illegal act sanctioned by former Foreign Minister Alexander Downer (above) and carried out by the Australian Secret Intelligence Service (ASIS) to aid Australian business interests. National security, however, became a cover for illegal activities by bureaucracies and politicians, a former Australian intelligence operative told Asia Sentinel. All the legal ploys and raids were aimed at punishing those who aspired to tell the public the truth about what they thought was a morally repugnant act against a friendly government.

Collaery pleaded not guilty and intends to continue the case out of a belief that there has been a gross injustice. On June 17, Witness K pleaded guilty in the Australian Capital Territory Magistrates Court and received a 12-month good behavior bond, being spared jail. Although both defendants are treated as traitors in Australia, they are considered heroes in Timor Leste, with groups holding banners and wearing T-shirts in support of their cause.

The two have been caught up in the case because Witness K in 2004 exposed a covert operation against the Timor Leste government when Downer personally authorized intelligence agents to plant listening devices in the cabinet complex in the capital, Dili. The operation was undertaken by operatives posing as members of an aid project to refurbish the Timor Leste government offices.

The agents were eavesdropping on the Timor Leste team on negotiations over the maritime boundary between the two countries, and the division of oil and gas rights in the Timor Sea. The operation, however, had more to do with the business interests of Woodside Energy, Australia’s biggest natural gas producer, and its subsidiaries, than with Australia’s national security. Woodside is a major political donor and the company’s former chairman Charles Goode, sat on the board of the Liberal Party fundraising vehicle that generated electoral funds for the party.

The objective was to find out what the Timor Leste negotiating team’s bottom line would be, the negotiation tactics, and which member of the government thought what about the negotiations. Downer, leading negotiations for Australia, used the information to negotiate terms favorable to Australia, where the oil and gas reserves at the Greater Sunrise Fields would be shared on an equal basis.

Witness K, who was reported to be the head of ASIS technical operations, was said to have felt that the snooping operation breached the agency’s statutory charter, as the operation was to extract information to advantage one side in business negotiations, rather than any matters of national security, or critical to ASIS’s watching brief.

East Timor, as the country was known then, was already the subject of Downer’s tactics. Three months before it became independent in 2002, Downer had withdrawn Australia from the maritime boundary jurisdiction of the International Court of Justice and International Tribunal on the Law of the Sea, preventing Timor Leste from turning to the court with their claim, forcing them to negotiate bilaterally with the Australian government.

Witness K was said to have felt the intelligence service had been used to benefit specific business interests, at the detriment of Australia’s real national interests, and security requirements. Woodside would be the company that directly benefited. Woodside owns a consortium of ventures with rights to explore the Greater Sunrise oil and gas fields, which have massive reserves. Unknown to the Timor Leste government at the time, the Greater Sunrise Field also had substantial deposits of helium, which ConocoPhilips was exploiting, and processing helium from the LNG coming into Darwin through a pipeline.

Woodside management traditionally had close relationships with members of the Australian government. The former secretary of the Department of Foreign Affairs and Trade (DFAT), Dr Ashton Calvert, joined the board of Woodside immediately upon retiring from the Australian Public Service, in 2005. Former Labor MP, Gary Gray, a former minister for Resources under the Gillard government, worked for Woodside as director of corporate affairs before he entered parliament in 2007. Liberal Ian Macfarlane, a minister for Industry, Tourism, and Resources under the Howard government and later under the Abbot government, joined Woodside as a director in 2015, after leaving parliament.

On learning Downer was made a consultant to Woodside, Witness K made a report to the Inspector-General of Intelligence and Security (IGIS), an independent statutory office holder who reviews the six Australian intelligence bodies. He was granted permission to consult with Bernard Collaery.

Soon after Witness K made his statement, the ASIS fired him. He years fighting the decision through the Administrative Appeals Tribunal (AAT), allegedly being harassed, intimidated, and regularly questioned, over those years leading to self-isolation, withdrawal, and deep depression.

Bernard Collaery, also an adviser to the Timor Leste government, investigated the ASIS bugging operation and concluded that it was a crime under Section 334 of the Commonwealth Criminal Code and conspiracy to defraud the government of Timor Leste of oil and gas reserve rights.

The Timor Leste negotiator, Peter Galbraith (a former US ambassador to Croatia) was quoted as saying the bugging was not what you would expect to do to a friendly state, and not something one would do for commercial advantage.

The aggrieved Timor Leste government took the issue to the Permanent Court of Arbitration in The Hague to overturn the agreement that had previously been negotiated with the Australian government. The court invited Witness K to give testimony in The Hague. However, Australian attorney general George Brandis canceled Witness K’s passport to prevent him from appearing before the court. The Australian Security Intelligence Organization (ASIO), then raided the homes of Witness K and Collaery, taking away all documents and files relating to the Timor Leste case.

In Collaery’s case, ASIO waited until he had just left for The Hague to present the case, giving the Australian government a copy of the Timor Leste evidence and case.

In March 2018, a new treaty was signed between Australia and Timor Leste. This time around, Timor Leste had rights to 70 percent of the oil and gas reserves. However, with only one pipeline from the Greater Sunrise Fields to Darwin, Timor Leste has not been able to take advantage of the reserves.

Three months after the new agreement with Timor Leste, the Commonwealth Director of Public Prosecution brought charges against Witness K and Collaery, under Section 39 of the Intelligence Services Act 2001, which criminalizes the communication of information acquired or prepared by any Australian security service in connection with analysis or field operations.

The court was conducted in secret under the National Security and Information Act, 2004, which was intended to prosecute alleged terrorists, and not whistle-blowers. Many legal opinions question the need for a secret trial, because most facts are already known to the public, and few aspects actually relate to national security. The public only found out the two had been charged and would be put on trial because an independent MP, using privilege, brought the issue up in parliament.

Although disclosing information in the public interest is not a legal defense in Australia, the charges led to outrage and protest by Australian academics, lawyers, retired judges, and human rights NGOs. Some within the industry questioned the wisdom of bringing up charges and prolonging the issue in the public domain. However, the government has been consistently intent on punishing whistle-blowers and making an example for those who might be tempted to follow suit.