LIZZIE O’SHEA. Witness K and foreign interference hypocrisy (Eureka Street 2/7/2018)

Jul 5, 2018

‘This Parliament will not allow interference in our elections or in our democratic processes,’ Senator Penny Wong declared recently. ‘We will not allow these to be subject to foreign interference, and we will not allow the covert subversion of our politics by foreign interests.’ It sounds like a perfectly reasonable aspiration, but not if you happen to be East Timor.

Over this last week, two remarkably contradictory things happened in Canberra. The Australian Attorney-General Christian Porter shepherded through Parliament some of the most significant changes to foreign interference laws in recent times (the subject of Senator Wong’s speech). It was also reported that he signed off on charges laid against Witness K, a former officer of the Australian Secret Intelligence Service, and his lawyer, former ACT Attorney General Bernard Collaery.  

Witness K and his lawyer are alleged to have conspired to share information about ASIS’s illegal bugging of East Timorese offices during negotiations over natural resources in the Timor Sea. East Timor complained the bugging contravened section 39 of the Intelligence Services Act in a case brought in the International Court of Arbitration in the Hague.

In other words, Witness K and his lawyer are accused of conspiring to reveal information about foreign interference in democratic processes and the covert subversion of politics by a foreign power. The kind of conduct they are alleged to have conspired to reveal is the kind of conduct the new foreign interference laws purportedly aim to prohibit.

As East Timor’s resources minister Alfredo Pires said in 2015 of Australia’s actions, ‘if I was to do a similar thing in Canberra I think I would be behind bars for a long time’. This astounding level of cognitive dissonance appears to be a particularly Australian phenomenon (exhibit B being outrage generated by a sports commentator pronouncing names correctly in the proper performance of her duties).

The bugging of the East Timorese during the negotiations over the Timor Sea is a deeply disgraceful part of our national history for many reasons. It is yet another sorry example of how the Australian government’s engagement with Timorese people always unfolds in ways that suit Australian interests. Aid workers have been put at risk, given the bugging was facilitated under the cover of an aid program.

To make matters even more unsavoury, Alexander Downer and other public officials went on to work for Woodside Petroleum, ultimately a key beneficiary of Australia’s negotiating efforts.  There was disquiet reportedly within ASIS that the agency had been diverted from other important work to focus on this matter.

“The treatment of Collaery and Witness K looks a lot like an attack on freedom of speech — except of course that many of the usual free speech warriors have elected to stay silent thus far.”

These developments have implications for us all, not just Witness K and his lawyer. ‘One crucial question here,’ writes Professor Clinton Fernandes, ‘is whether ASIS has been used in other operations to benefit well-connected corporate entities, to the detriment of Australia’s real national security needs.’ But instead of any meaningful response to Fernandes’ question, or proper accounting for the general misconduct, we are witnessing the entire political class doubling down against any person who has worked to make such a reckoning possible.

The treatment of Collaery and Witness K looks a lot like an attack on freedom of speech — except of course that many of the usual free speech warriors have elected to stay silent thus far (curious!). But it is also more than that. As Bernard Keane has pointed out repeatedly, Witness K was not a whistle blower. He sought the appropriate authorisation to disclose what he considered to be wrongdoing to a lawyer and was given it. A lawyer attempted to use his account as evidence to advance a claim in a legal process. This was made impossible when Witness K’s passport was cancelled and he could not travel to provide evidence in the Hague.

The proper adjudication of allegations of misconduct has been thwarted by intelligence agencies and their ever-expanding idea of national security. To paraphrase one senior lawyer, this looks a lot like contempt of court.

We are witnessing the consequences of a rebalance of power away from democratic institutions that respect the rule of law, and towards the sprawling surveillance state. It has been decades in the making. Paul Keating was the last prime minister to cut ASIO’s budget (a consequence of the fall of the Soviet Union) but it is almost impossible to imagine a politician of any stripe proposing anything similar today.

It is imperative that we resist the double standard we witnessed in Canberra. National security, when defined by the surveillance state, means exploiting vulnerable people abroad, putting Australians at risk, crushing dissent, and evading accountability for wrongdoing. It means growing an enormous spy agency that blurs the lines between the interests of the nation and those of corporations. It means protecting a small class of people at the expense of the rest of us.

If we are to force politicians to do their job properly, we must reject the surveillance state’s understanding of what constitutes national security, and demand that these agencies be brought under democratic forms of accountability.

Lizzie O’Shea is a lawyer and writer. Her book on technology, politics and history will be published with Verso in 2019.

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