The “Economy” of Espionage: Witness K, East Timor and Reframing Whistleblowers

Intelligence and the law ought to work together. Often they do synchronise. Sometimes they clash.   Indeed, it was with some levity that Justice Mason commented on this vexed relationship when ruling on the Australian Secret Intelligence Service’s (ASIS) botched training session at the Sheraton Hotel, Melbourne, in November 1983.

Here’s Mason J: “There is an air of unreality about this stated case. It has the appearance of a Law School moot based on an episode taken from the adventures of Maxwell Smart”. In that case, the High Court decided the identities of the ASIS operatives could be disclosed to the police, but, perhaps, ought not be. While their identities remained concealed, their antics were revealed: thus Mason’s comments.

It’s now three decades later. ASIS operatives are again in the public spotlight and before the courts. Although this time the hijinks has been revealed by one of their own. Moreover, the consequences of this case are more solemn than the Sheraton incident. It is a story about blowing-the-whistle on the entanglement of intelligence, politics and commercial interests. It is also a story about exposing where all three unite, and what happens when they do.

To set the scene some context is in order. It’s 2004. The government of John Howard authorises ASIS to clandestinely bug the offices of the East Timorese Prime Minister and his cabinet in Dili. By doing so Australian officials are able to covertly record internal discussions revealing the East Timorese negotiating position and strategy over the maritime boundaries of an oil and gas treaty known as ‘Certain Maritime Arrangements in the Timor Sea’ (CMATS). Over its lifetime, that treaty is estimated to have a multi-billion-dollar value, and it was a much-needed source of revenue to the East Timorese government and people.

At this point, keep in mind East Timor is not a hostile country toward Australia. It’s more ally than adversary. Also keep in mind that the Timor bugging operation occurred not too long after the Bali terrorist bombings in Indonesia had killed over 200 people. It also occurred shortly after the bombing of the Australian Embassy in Jakarta, by the terrorist group, Jemaah Islamiyah. Terrorism in the region was thus imposed on the minds and screens of the public and security agencies alike. One might, then, ask legitimate questions about where Australia’s intelligence priorities lay and how intelligence resources were allocated.

Key point (1): Private economic priorities tend to prevail. It would appear that ever-malleable concept, national security, became a metonym for private commercial gain. The covertly obtained information clearly gave the Australian government an advantage over the East Timorese, in the negations. Indeed, the direction and authorisation to conduct the Timorese bugging operation was rationalised under the justification that it was in the interests of Australia’s ‘economic well-being’ (could one even say: advantage?). But this is highly contentious. Specifically because the principal beneficiary of the treaty, to which Australia obtained an undue (possibly illegal) advantage through the intelligence gleaned from the negotiations, would have gone to a private consortium led by Woodside Petroleum. But more on this shortly.

First, a deeper question needs addressing: how is covertly bugging the East Timorese government in the interests of Australia’s economic well-being when the pecuniary benefits of the treaty would have gone to a private consortium? Answers, indeed, became rather vague.

When quizzed on this very issue, the former Inspector General of Intelligence and Security (that supposed impartial body responsible for oversight of the intelligence community), Dr Vivian Thom, had trouble explaining the difference between spying for national security and spying for private commercial gain. ‘National economic well-being’, Thom averred, ‘is a broad umbrella’ and the differentiation is not always clear. ‘Australia’s national security, foreign relations or national economic wellbeing are overlapping categories. You cannot always clearly differentiate between the three’, she said.

Matters of setting intelligence priorities are just as nebulous. As Dr Thom stated, it is up to the Executive or National Security Committee of cabinet (NSC) to decide what is an appropriate intelligence requirement. ‘Let us first remember’, Dr Thom reminds us, ‘that it has to reach the threshold of being in accordance with the government’s requirements. The government’s requirements for intelligence are set by the National Security Committee of cabinet’.

Key point (2): It might not surprise, then, that the NSC is hardly what could be called ‘bi-partisan’ in constitution. Consider the implications of the ‘quotation marks’. It’s comprised entirely of members of the incumbent government. It’s chaired by the PM. And, it sits within the Department of Prime Minister and Cabinet.  The leader of the Opposition can be asked to sit in on major decisions, but such courtesies do not extend to any Independents or Greens. Likewise, its decisions do not require the endorsement of the full cabinet. The government’s assurances that an intelligence agency has been directed to act in the national interest must be taken a face value — a fool’s gold standard of accountability and transparency. Just as Dr Thom explained. In her view, ASIS collected intelligence in line with requirements set by the government. In short, ASIS did what the government asks it to do. Nothing to see here. Next question, please.

Little wonder, then, that after becoming aware of the bugging the East Timorese government protested. It declared Australia’s conduct had rendered the treaty invalid under international law because the negotiations had not been undertaken in good faith. When it comes to the economics of espionage, Uberrima Fides, (the notion of acting in the utmost good faith) appears as flexible as national security.

Using parliamentary privilege, Andrew Wilkie made his feelings about the matter quite clear. The result, as he aptly put it, was ‘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 oil and gas revenue’. East Timor’s Prime Minister, Rui Maria Araujo, concurred, calling such actions a ‘moral crime’, while former President, Xanana Gusmao, referred to the matter as a ‘criminal act’.

Some intelligence personnel held similar qualms about the operation.  But, just pause for a moment to remember what happens to intelligence personnel that take a stand, or blow that shrieking tin-whistle on the alleged improper use of intelligence.

Still memorable is the resignation of former ONA officer, Andrew Wilkie, due to Australia’s use (or ‘alleged’ misuse) of intelligence to justify the case for the invasion of Iraq in 2003. History tells us what happened here. Does Mr Bolt ring any bells? But that inquiry only took twelve years to become public, and then there was nothing to see there either.

One might also consider the cases of Lance Collins and Martin Toohey or even the most despicable circumstances that led to the death of Mervin Jenkins. And these are just cases that are known to the public.

Now consider the case of Witness K. You might have some clairvoyance of where this is going? K is a former distinguished and decorated ASIS Officer that was directly involved in the Timor bugging operation. K initially sought advice from the Inspector General of Intelligence and Security (IGIS) after being ‘constructively dismissed’ from ASIS in 2008. Again, read between the quotation marks.

But K suspected that his dismissal was more in relation to concerns he raised about the East Timor bugging operation. The IGIS advised K that he could seek private counsel regarding a means of redress. (The IGIS denies having ever received K’s complaint.)

K thereafter sought the advice of distinguished lawyer, Bernard Collaery. After investigating K’s claims, Collaery, determined that the Timor operation likely fell outside ASIS’s remit under the Intelligence Services Act 2001, and likely breached section 334 of the Criminal Code of the Australian Capital Territory 2002. (Alleged reason: the instructions to bug the Timorese buildings were given in Canberra). Collaery and K then sought to have the matter brought before the International Court of Justice, at the Hague.

But the mousetrap slapped. On 3 December 2013, under warrant issued by the Attorney General, ASIO raided Witness K’s home and confiscated his passport, while also raiding the offices of Mr Collaery seizing documents and electronic data relevant to the case. K was thus stymied from leaving the country and providing any testimony.

Key point (3): As Senator Rex Patrick, rightly argues, ‘the government is trying to prosecute people for revealing its crimes’. This is fairly clear: The Commonwealth Director of Public Prosecutions subsequently filed criminal charges against Witness K and Bernard Collaery, for breaching section 11.5 of the Criminal Code and section 39 of the Intelligence Services Act. While the Attorney General theoretically has the power to stop these legal proceedings under the Judiciary Act 1903, he did the opposite.

But, not only did the Attorney General, Christian Porter, consent to the prosecution, the prosecution is now seeking to have the judicial proceeding conducted without commentary, under the provisions of the National Security Information Act 2004. If this occurs, details of the proceeding will remain concealed. The actions of the government may never be heard in an open court. As K might just find out, the law can beat you with its own gavel.

Disturbing point: here is what makes this case so much more distasteful. Aside from the unscrupulous nature of the bugging operation and the persecution of whistleblowers and their legal representatives, there is a glaring impression of government impropriety.

As it turns out, the minister with statutory responsibility for authorising the ASIS bugging operation, former Foreign Minister Alexander Downer, went on to consult for Woodside Petroleum after he left parliament in 2008. Note that he took a retainer, too. Several other political links can be established. Again, perceptions are important.  Former Secretary of the Department of Foreign Affairs and Trade, Ashton Calvert later obtained a position on its Board of Directors. Other DFAT officers at the time of the Timor operation, including Brendan Augustin and John Prowse, are alleged to have latter worked for Woodside at the managerial level.1 Likewise, the Howard government’s Minister for Resources and Energy, during the Timor operation, Ian MacFarlane, now sits on the Board of Directors. After resigning from his position as National Secretary of the Australian Labor Party, Gary Grey went on to be Woodside’s principal strategic advisor and later joined the Executive Board.2

It is on this point that the proximity between intelligence, policy, and commercial interests seem to have blurred (dissolved?) considerably. By 2007, Grey was holding the Federal position of Minister for Natural Resources Energy and Tourism in the Gillard government. The inequity is clear. Those that speak out are exiled and punished; others appear to act with impunity.

There are significant implications to be realised here. First, there is a conspicuous absence of options available to intelligence personnel that decide to speak out about any impropriety. Whistleblower protections are somewhat muted.

Some protections do fall under the Public Interest Disclosure Act 2013 (PID). But consider what legal scholars, Keiran Hardy and George Williams, have to say about that:

Requirements under the PID will be particularly difficult to satisfy where the information being disclosed relates to the conduct of intelligence agencies. This is because special restrictions on information connected with intelligence agencies due to the greater risk involved to national security.

Essentially what this means: the Australian intelligence community is excluded from any whistleblower protections.

Likewise, limited protections can be found in section 79 of the Crimes Act that provide for disclosures made in the interests of the Commonwealth. But, disclosures about one friendly nation spying upon another are unlikely to be revealed in the Commonwealth’s interest. Overall there are fairly minimal (at best) protections for whistleblowers that disclose security information because of the special status given to intelligence information, and that broad umbrella—‘national security’.

But the Timor case gives rise to other significant issues One is the possibility of an Australian intelligence agency being abused not just for political ends, but also for private commercial gain. One more is the perception that ASIS activities seem to have been aligned with the commercial interests of a private company. Ultimately, the perceived impartiality of ASIS could be diminished.

My key point: the act of whistleblowing is always framed as one of political rebellion, rather than political reform.

Indeed, perceptions of impropriety become evident by posing the simple question: did this ASIS intelligence operation serve the Australian public interest, those of a minister, or a private company? What becomes apparent is that national security is working as a metonym for commercial economic advantage.

There are significant moral and legal questions that need addressing. Witness K and Bernard Collaery are accused of conspiring to reveal secret information. Yet, there in no evidence available that Australia’s national security has ever been compromised by the incident. Nonetheless, proceedings for the case began in the ACT Magistrates Court on 12 September. It lasted 15 minutes before the directives were adjourned. The Attorney General wants that case to be conducted behind closed doors. The defence wants only that which is essential to the preservation of K’s anonymity and national security heard in confidence.

What is remarkable is that three decades ago, Justice Mason, when ruling on the ASIS—Sheraton incident, may have unwittingly summoned a prophecy. ‘For the future,’ he said, ‘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.’  Whether his prophecy comes true remains to be seen. The case was due to resume on 29 October 2018, but it has been ‘delayed’ until November 1.

  1. See, Fernandes, C., Island Off the Coast of Asia, Instruments of Statecraft in Australian Foreign Policy, (Monash University Publishing: Victoria, 2018): 125-126. []
  2. See Cleary, P. Shakedown, Australia’s Grab for Timor Oil, (Allen & Unwin, NSW, Australia, 2007), pp. 93-94. []
Dr Justin T. McPhee teaches at RMIT University, Melbourne. He is currently writing a book about the history of intelligence politicisation in Australia, for Monash University Publishing. Read other articles by Justin T..