Australia–East Timor spying scandal

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 months later, East Timor officially gained its independence from Indonesia.[3] 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.[11] This enabled ASIS to obtain top-secret information from treaty negotiators led by Prime Minister Mari Alkatiri. This provided the Australian Government with "an advantage during treaty talks".[3] 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.[7] In 2006, Australia and East Timor signed the second CMats treaty.[12]

Before the revelations of ASIS's clandestine activities in East Timor, the 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 Emanuel and Patrick J. Kennedy.[13] Witness K made the Australian Government's spying activities public after the Inspector-General of Intelligence and Security (IGIS) recommended he do so.[14]

David Irvine, ASIS head (2003-2009) authorised the operation. His successor Nick Warner, ASIS head (2009-2017), assisted in an advisory role.[11] Foreign Minister Alexander Downer, who oversaw ASIS was overseas during the operation. According to the lawyer of Witness K, former ACT Attorney-General Bernard Collaery, successive Australian Governments from both major parties have actively sought to cover-up the incident.[11]

Witness K revealed the bugging operation in 2012 after learning Foreign Minister Alexander Downer had become an adviser to Woodside Petroleum, which was benefiting from the treaty.[15]

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 sent by East Timor's Prime Minister Xanana Gusmão requesting an explanation and a bilateral resolution to the dispute, authorised the installation of listening devices in Collaery's Canberra office.[11] 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 Gusmão to have been involved in the bugging.[7] In 2015, Gusmão 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."[7]

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 Gusmão, 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]".[7] 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.[7] 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.[11] 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.[16] 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).[16] Foreign Minister Julie Bishop said in April 2016 that: "We stand by the existing treaties, which are fair and consistent with international law."[17]

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.[3][18] The East Timor government has continued to press Australia for an equidistant border between the two countries.[19] The Australian Labor Party in 2016 suggested a new deal could be struck between East Timor and Australia if it formed government.[20]

Protesters in Brisbane protesting Australia's claim on East Timorese oil, May 2017

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."[21] An article 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.[22]

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".[12] To date (March 2018), the Australian Government has not officially acknowledged the spying claims.[23]

"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," Gusmão, 26 September 2016.[24]

Despite having approval from the Director-General of ASIO to apply for a passport, ASIS and the Turnbull Government deny Witness K right to obtain a passport citing national security. His lawyer maintains that this is "pure retaliation" and that Witness K remains in "effective house arrest" in Australia in violation of the law.[25]

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.[26] 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.[7][11] Australia's Attorney-General George Brandis has since asserted that he had authorised the ASIO raids to protect Australia's national security.[27] The passport of Witness K was still being held as of March 2018.[12][28] 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."[7]

Witness K has since been allowed to give video evidence in the Hague trial given his inability to travel outside Australia.[11]

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