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Federal

Jun 12, 2015

Open and shut: ASIS' crime, and the Labor-Liberal cover-up

Our foreign spy agency blatantly broke the law in 2004 when it bugged the East Timorese cabinet. But those who lawfully revealed it have been smeared and attacked.

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The lawyer at the centre of the East Timor cabinet-bugging scandal has finally broken his silence to defend himself and his client against attacks by Attorney-General George Brandis and Abbott government lawyers.

Lawyer Bernard Collaery says Australia’s foreign intelligence service, ASIS, blatantly breached Australian law in bugging the East Timorese cabinet in 2004 and that the Abbott government, perpetuating a cover-up that began under Julia Gillard, is deliberately smearing his client, the former ASIS officer at the centre of the scandal (known as Witness K), and himself to suppress information about the crime. Following an ASIO raid on Collaery and Witness K in late 2013, Witness K was barred by the government from leaving Australia to give evidence to the International Court of Justice about the East Timorese matter, and he remains blocked from leaving Australia to this day.

Presenting a paper at ANU’s School of Law, Collaery, a former ACT government attorney-general who has handled intelligence and defence clients for over 30 years without incident, provided a step-by-step discussion of how ASIS broke the law when it decided to bug the East Timorese cabinet room to advantage Australia in negotiations between the countries and joint venture parties for what became the CMATS Treaty between the fledgling nation and Australia. He also explained how Witness K legally came to be involved in the case, and how the government raided Collaery and Witness K, seized documents and smeared both of them. Facing legal defeat at the International Court of Justice, the government agreed to return the documents this year.

ASIS’ decision to bug the East Timorese cabinet (4 Corners provided some detail on the operation last year) was made in 2004 in its Canberra headquarters. Regardless of the fact that the bugging took place in another country, ASIS’ decision was clearly a conspiracy to defraud under s.334 of the ACT Criminal Code, which applies if a person conspires with someone else with the intention of dishonestly obtaining a gain from, or causing a loss to, a third person. And in any event, the relevant ACT law can extend beyond the borders of the territory, provided there is a “geographical nexus” between the ACT and the event.

The critical legal issue is whether ASIS is permitted to break Australian law like s.334. Section 14 of the Intelligence Services Act 2001 provides the basis for ASIS, which like the Australian Signals Directorate operates under that act, to avoid criminal liability if certain conditions are fulfilled — namely, that the crime is “is done in the proper performance of a function of the agency”.

The word proper is crucial, argues Collaery, and doesn’t apply in this case — and he has none other than Alexander Downer, who was the minister responsible for ASIS at the time, on his side. When he introduced the Intelligence Services Act in 2001, Downer explained “occasionally, [ASIS and ASD] are inhibited in the conduct of their activities outside Australia by the unintended consequences of Australian laws”. And as the explanatory memorandum signed off by Downer for the then-Intelligence Services Bill notes, section 14:

“… provides immunity from civil and criminal liability for activities, carried out by the agencies for the purpose of collecting intelligence information about the capabilities, intentions or activities of people or organisations outside Australia, as intended and required by the Government, which might otherwise be prohibited by the unintended consequences of certain Australian laws … It does not provide a blanket immunity from Australian laws for all acts of the agencies.”

The ACT Criminal Code’s application isn’t “unintended” in the case of ASIS’ spying on East Timor — it directly applies to the behaviour of ASIS (then headed by David Irvine, who as head of ASIO ordered the raid on Collaery and Witness K in late 2013). The bugging operation thus wasn’t a “proper performance” of a function of ASIS, and therefore isn’t exempted from criminal liability.

Collaery goes on to spell out how the functions of ASIS — national security, Australia’s foreign relations or Australia’s national economic well‐being — don’t apply to the bugging of East Timor either, though the arguments for the latter two are more complex and less convincing. But he very firmly establishes a long history not merely of Australia’s highest courts but of the Australian government itself accepting that the executive does not have an unfettered right to break the law or instruct its agencies to break the law (drawing, in particular, on the notorious Sheraton Hotel case, following ASIS’ illegal training exercise in 1983).

Then there’s Witness K and his treatment. Witness K is not, as some outlets (including Crikey) have described him, a whistleblower. Instead, he sought to bring an action against the government for being refused a senior position in ASIS on the basis, he was told, that the agency wanted “generational change”. Witness K interpreted this to mean ASIS wanted officers without any moral scruples. Witness K went to great lengths to secure from the then-Inspector General of Intelligence and Security, Ian Carnell, approval under the highly restrictive framework governing intelligence officers to conduct, inter alia, “private legal action” in relation to his workplace complaint, with Collaery approved to act for him. Witness K’s statements about the bugging of East Timor form part of this IGIS-approved complaint. Given Witness K at no stage has revealed his own identity or that of any other ASIS officers, and neither has Collaery, both have acted completely in accordance with the law.

But according to Australian Solicitor-General Justin Gleeson in a presentation to the ICJ, both breached secrecy laws — an accusation made with the express permission of George Brandis that the government has never produced any evidence to back up. Was the accusation intended to force Collaery off the case? Neither Collaery nor Witness K have been prosecuted since, despite threats to do so by Brandis.

Another player in the attempt to discredit Witness K has been Inspector General of Intelligence and Security Vivienne Thom, whose refusal to discuss Carnell’s interactions with Witness K have produced moments of almost Kafkaesque absurdity. Thom insists that no one from ASIS has ever approached the IGIS, either in her time or in Carnell’s about East Timor. Thom was careful to use the phrases “with respect to East Timor” and “activities in East Timor” repeatedly in her public statement about Witness K, which appeared to discredit the entire claim by Collaery about the circumstances around Witness K, and confirm the government’s insistence that Witness K was merely a Snowden-like whistleblower.

In fact, Witness K did approach Carnell not in relation to East Timor, but in relation to his employment grievance, which in part sprang from the East Timor bugging operation but was a separate matter.

As Collaery notes in his lecture, there would have been no point in Witness K raising the East Timor bugging with IGIS — Witness K might not have been able to lawfully describe details of the operation to Carnell or Thom, and in any event, IGIS lacks the independence to look at such matters. Thom told independent Senator Nick Xenophon  in 2014 she wasn’t going to conduct any inquiry into the bugging affair, despite having much-vaunted “royal commission-like powers” to obtain documents (in fact, if ASIS had been ordered to conduct the operation by Downer, a copy of the order is required by law to have been given to IGIS, and would have been sitting on its files since 2004). But Thom, who is shortly to leave the role, has showed no interest in investigating what appears to be a clear breach of the law.

While yet again demonstrating that Australia’s system of intelligence oversight is little more than a joke, Collaery’s analysis raises a crucial question. ASIS breached the law a decade ago. East Timor raised the matter with Australia in 2012, but it was treated dismissively by then-foreign minister Bob Carr and then-attorney-general Mark Dreyfus. The Abbott government has gone further and lied in court and in Parliament about Collaery and Witness K breaking the law, in an effort to discredit them. The fact remains that the executive arm of the government has deliberately broken the law, and those responsible have not been brought to account. Indeed, in David Irvine’s case, he was permitted to initiate a raid on his former ASIS employee, Witness K, over the matter.

We’re at a crucial point where a government desperate to exploit hysteria about terrorism is demanding unfettered power for the executive and its agencies. If that unfettered power is to include immunity from the consequences of breaking the law, then there is no rule of law in Australia.

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21 comments

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21 thoughts on “Open and shut: ASIS’ crime, and the Labor-Liberal cover-up

  1. leon knight

    Unbelievable stuff, thanks again for the good reporting Bernard.
    What chance of Brandis being sacked for misleading parliament, if he is beyond the law directly?

  2. paddy

    The complete contempt for the rule of law is simply breathtaking. We’re entering scary waters.
    Keep at it Bernard.

  3. zut alors

    ‘We’re at a crucial point where a government desperate to exploit hysteria about terrorism is demanding unfettered power for the executive and its agencies.’

    Currently I am considerably more fearful of the Australian government than of terrorism.

  4. Patricia Gibson

    Dear me ! Dark days in Australian History.

    Reading this article and looking at the draconian laws this government are bringing in – with may I add the approval of Shorten and Co – one feels we are at the crossroads of our Democratic Rights going out of the door!

  5. klewso

    Just what is the “function of the agency”?
    To spy on behalf of Australian commercial interests, on the competitors in other countries as well as the sovereign governments of other countries?
    Is that what we tax-payers are funding?
    Are they allowed to spy on national competitors within Australian too – on behalf of the highest bidder?

  6. Venise Alstergren

    This AM on radio jock’s program-Neil Mitchell-; when asked about Oz government paying ppl smugglers not to bring boats here Tony Abbott virtually trotted out the old Jesuit saw; ‘the end justifies the means.’???!!! Shades of the great Australian Wheat Board Scandal during John Howard’s tenure.

  7. Venise Alstergren

    Why does the Abbott government want to lock up terrorists when they are solemnly paying people smugglers not to come to our shores?

  8. Hugh (Charlie) McColl

    Venise, next they will be paying terrorists a couple of grand to not come home. Or maybe offering them Newstart, payable wherever they are, indefinitely, to help them make a new start, back where they came from or where they currently are. Still wondering about that Aussie bloke hanging at the Australian embassy in Istanbul, Turkey, waiting for a replacement passport – he lost the old one while ‘working’ to support Syrians in Syria. He’s a proper born-in-the-country Aussie, down on his luck whilst outside the Lucky Country. Is Geo Brandis holding him hostage or just Peter Dutton? How un-Australian is that?

  9. MJM

    Respect to both Bernards – Keane and Collaery.

    The complete disregard for the rule of law is terrifying and, like others, I am much more frightened of terrorism from my own government than from strangers.

  10. James O'Neill

    “If that unfettered power is to include immunity from the consequences of breaking the law, then there is no rule of law in Australia.” And that is exactly the position we have reached. We have decided also for example, that engaging in an unlawful war of aggression (Iraq 2003), the “supreme international crime” according to the Nuremberg Tribunal is something for which its perpetrators should not be held accountable. The response to 9/11 and that war marked the real beginning of an unending slide down the slope of contempt for basic notions of the law, to have now reached the point that Bernard makes encapsulated in the first quote. That Labor are no better only compounds the tragedy.

  11. Neutral

    At the time of the negotiations Downer didn’t want the Timorese to get their fair share as they would “piss it up against the wall.”

    The theory being that it was better to let Australia control the resources, and return some of the money through foreign aid.

    The best that could ever be said about Downer is that he lived up to his name.

  12. AR

    Nice potted history from BK, and Collaery seems sharp as a tack – no hyperbole, just the facts, ma’am.
    However this is just getting the vapours of something we cannot control, not now, not in the future not in the past – spooks do what spooks do, without constraint or hindrance, in the cause of a Higher Purpose, they think themselves the Gentlemen of last Resort – as when Don Dunstan found that they were spying ion him in government but refused to desist on the grounds that they served the Crown, not the workaday government

  13. Adrian Victor

    Apart from the apparent blatant disregard of the law why is Australia acting in such a bullying fashion towards an impoverished neighbor that is trying to emerge from a period of almost complete destruction.

  14. Marion Wilson

    We have a renegade government. It is running wild, way out of control. It can and will strip away citizenship and the right to vote by claiming that they suspect terrorism thoughts. Nobody will be able to protest.

  15. John M Miller

    One correction: The court before which Witness K should testify is the Permanent Court of Arbitration. Timor’s active case to overturn the the CMATs treaty on Greater Sunrise is before that court, not the International Court of Justice. The case, now ended, about the seizure of documents from Bernard Collaery’s law office was before the International Court of Justice. Both courts are in The Hague.

  16. John

    In Cervantes “Don Quixote” We have Don Quixote the 17th Century version of Tony Abbott and his faithful squire George Brandis,who is the 17th Century Sancho Panza, roaming around the world making complete fools of themselves.
    On a number of occasions in the novel, Sancho says to Don Quixote “Laws go where kings want.”

  17. Norman Hanscombe

    The usual suspects showing how ‘fearless’ they are on a website which lets all sorts of trash go through promptly, but censors any contrarian comment which shows how intellectually blinkered Crikey Acolytes are on shaky ground.

  18. Glen Davis

    Attorney General Senator Brandis has emphasised his disappointment that Timor-Leste is pursuing its action before the PCA. He has stated Australia will “vigorously” pursue its response.
    Bernard Collaery’s presentation contains elements of rehearsal for his advocacy on behalf of Timor Leste. A transcript has been published at
    http://law.anu.edu.au/sites/all/files/events/national_security_legal_professional_privilege_and_the_bar_rules_print.pdf
    Collaery feels under attack from Brandis and Commonwealth lawyers. Having his premises raided by spooks who illegally impounded the evidence against themselves may have made him a little touchy. His response conforms to the negotiating dictum “When attack threatens, retalliate first”. Yes, further attack threatens and Collaery’s presentation suggests some of his responses to various arguments which may be deployed by lawyers for Australia to claim the alleged spying by ASIS is somehow legitimate.
    Collaery may have to present all of this analysis and more to the PCA to reach a public judgement. There is no sign yet that the Australian Executive has appreciated the magnitude of the stakes. As Collaery presents them: Is Australia a democracy in which rule of law prevails, or is it a rogue State? Crikey readers have added their outrage that Australia would spy on its friendly neighbour for commercial advantage, in breach of our good faith obligations.
    No solution less than public judgement of the perpetrators can resolve this.

  19. James O'Neill

    It is worth while going back in time to recall some key events. Australia wanted to dominate the gas resources of the Timor Sea. To that end it bugged the Timorese cabinet meeting to gain commercially sensitive knowledge which was then used in imposing a grossly unequal bargain on the Timorese. (This is a major reason for spying). The cabinet minister who authorised the spying was Downer. The company that benefited was Woodside. After leaving office Downer became a director of Woodside. Thus we come full circle in the time honoured way of capitalist corruption.

  20. Glen Davis

    James O’Neill, it is well worth recalling some key events.

    But I don’t know whether any Minister authorised the bugging and certainly the Timor-Leste case before PCA makes no such assumption. It alleges the Director of ASIS conspired with others to bug the Cabinet discussions.

    The CMATS treaty is about revenue-sharing from gas deposits, notably Greater Sunrise. It does not set national maritime borders, does not address pipelines or processing plants and has no influence on defence matters. The Timor-Leste case seeks the nullification of the treaty on the ground that it was not negotiated in good faith.

    Collaery’s presentation considers whether Australia may argue that the bugging was within “the function of the agency”. And Collaery must prepare for that eventuality. But set aside the legal consequences for a moment and consider the diplomacy. Is Australia going to argue this alleged bugging, performed under the guise of our foreign aid gift to Timor-Leste, entitles Australia to wheedle a greater share of the gas revenues? That our foreign aid gift allows us to instal a covert Trojan Horse? How valuable would our foreign aid be to recipients?

    All we know about Australia’s defence is that it will be “vigorous”. Yes, that means expensive. Our taxes paid the foreign aid, our taxes paid the spooks and our taxes pay for their defence. But who governs the spooks? The Inspector General has declined to investigate. The Minister is busy doing synchronised smiling while the PM is busy declaring his people-smuggling tactics effective “by hook or by crook!”

    We need the PCA judgement to clear the air. The Timor-Leste case signals the spooks cannot be trusted with their present powers, let alone the greater powers they now seek.

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