“Just think of it. After years and years of assisting the Timorese resistance … to have Witness K. come to my office and tell me something so marked with treachery, words still fail me. … So immoral. So unethical. … so counter to all of our national interests!”
In July 2022, Attorney-General Mark Dreyfus QC discontinued the long running case against Canberra lawyer and former ACT Attorney-General Bernard Collaery, a prosecution that threatened immense harm to Australia’s international reputation.
The roots of the Collaery prosecution date back to 2004 when an employee of the Australian Secret Intelligence Service (ASIS), identified only as Witness K, oversaw bugging operations in Timor-Leste ordered by Australia to gain a commercial advantage during negotiations with the East Timorese over oil and gas reserves in the Timor Sea that promised enormous profits.
Australia’s actions might have remained hidden had it not been for Witness K, a senior intelligence officer who felt deeply uncomfortable about the operation. He eventually approached the intelligence watchdog, the Inspector General of Intelligence and Security (IGIS) about his concerns and obtained permission to talk to an approved lawyer, Bernard Collaery, a prominent barrister experienced in security matters who had previously been trusted by the intelligence agencies to handle similar complaints.
The meeting of these two men would have profound consequences for the Australian Intelligence community, consequences that are still playing out.
Collaery’s address to the QCCL
On October 5, Bernard Collaery delivered his first speech since his discontinued prosecution to the Queensland Council of Civil Liberties (QCCL) in the All Saints Hall in Brisbane. Since the details he could now reveal about this important case promised to be fascinating, I was eager to attend and was disappointed ─ though not surprised ─ to find I was the only journalist there! When it comes to defending whistle-blowers and the standards of democratic governance in Australia, you can rely on the mainstream media to be missing.
Collaery had strategically chosen the QCCL for his first speech, declining several earlier offers because he was aware that Australia’s civil liberty lawyers had formed the base of his support during the ordeal of his persecution. He was addressing his base to argue the case for a royal commission into what happened in Timor Leste in 2004 to lance this festering sore on Australia’s relations with its neighbours.
Jose Ramos-Horta, former president of Timor-Leste and Nobel Peace Prize winner, described Collaery as a man with courage and a conscience, who represented the very best in Australians as he knew them – ‘instinctively sympathetic to the underdog, the weak and vulnerable’. Besides seeking justice for Timor Leste, Collaery was seeking to remove a cancer from the body of Australian politics and to restore honour to our foreign policy.
Collaery’s fascination with Timor and its people began in his twenties when he undertook a training course from a former Z force commando who had been caught behind the lines when the Japanese overran Timor in World War 2 who told him extraordinary stories about how Australians soldiers were assisted by the Timorese. This sense of a debt that needed to be repaid led Collaery to advise and advocate for the East Timor resistance for more than thirty years. So when he was assigned to the Witness K case, what Collaery learned about what had happened in Dili profoundly disturbed him.
“You can imagine it,” Collaery told the meeting, ‘Just think of it. After years and years of assisting the Timorese resistance, and working with the leader of the resistance Shanana Gusmao, and developing what I could in terms of the trust … to have Witness K. come to my office and tell me something so marked with treachery, words still fail me. So marked with treachery,” he repeated. “So immoral. So unethical. But worse still, so counter to all of our national interests! This was putting 30 pieces of silver – money for corporate mates! – ahead of our interest in ensuring that we develop good relations with the Timorese and outplay those others who were interested, particularly China.”
As Collaery and his team investigated, they uncovered an enormous scandal: because of the unusual wording of the agreement, tens of billions of dollars of the rare element helium had been given away for free to two companies, ConocoPhillips and Woodside, a company who would later employ Alexander Downer, the Foreign Affairs minister who oversaw the agreement, as a consultant. While he was investigating the helium scandal for the government of Timor Leste, Collaery’s office was raided by ASIO, and his brief and other matters were taken.
The Australian government was forced to renegotiate the deal with Timor Leste. In 2018 Attorney-General Christian Porter made the consequential decision to charge Collaery and Witness K under the National. Security Information Act (NSI Act) with unlawfully disclosing information about the ASIS mission in Timor-Leste.
“It never entered our heads that a law being introduced to deal with terrorism, actually would be employed against us first and foremost,” said Collaery. “I am the only person to be prosecuted under that legislation to have been treated to the full measure of it.”
The provisions of the NSI allow what is called judge-only evidence; evidence can be led against an accused that neither the accused nor their lawyers can see. On numerous occasions over the four years of his prosecution, Collaery and his lawyers had to leave the courtroom so secret evidence about him could be given to the judge.
On what moral basis, he asked, does Australia complains about secret trials of Australians in Iran and China when the same thing happens in Australia?
What happened in Dili in 2004 is the greatest scandal in the history of ASIS. It exposes how damaging the blowback from covert actions can be, an important lesson that the covert cowboys of ASIS seem in no hurry to learn.
Powerful forces will oppose Collaery’s call for a royal commission into the events in Timor Leste. Those who approved the Dili bugging do not want an investigation. Their friends are enormously influential. As Hamish McDonald observed, the Dili operation tainted not just the diplomatic and intelligence figures, but the entire government of the time. He concluded:
“Could Downer and his department head, Ashton Calvert, have authorised the bugging without seeking approval from cabinet’s national security committee, whose other members would have been prime minister John Howard, deputy prime minister John Anderson, treasurer Peter Costello, attorney-general Philip Ruddock, and immigration minister Amanda Vanstone?
The LNP government wasted four years and millions of dollars prosecuting Bernard Collaery and Witness K. It’s time the mates who trashed Australia’s reputation faced the consequences.
Dr John Jiggens is a citizen journalist. He was the founding editor of The Westender and The Cane Toad Times and currently works in the community newsroom at Bay-FM in Byron Bay. His PhD was Marijuana Australiana: Cannabis use, popular culture and the Americanisation of drug policy in Australia. He has published several books on the history of cannabis prohibition.
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