2016-2020: Australia Prosecutes Bernard Collaery and Witness K
18 June 2020. Updated 3 July 2020.
Contents of this page
Australia stubbornly refused to resolve its maritime boundary with Timor-Leste for decades. Although oil exploration in the Timor Sea goes back more than 40 years, and although Indonesia, Australia and Timor-Leste made a series of illegal and interim revenue-sharing agreements, there was no boundary before the 2018 treaty came into force in August 2019. The 2013 revelation that Australia had spied on Timor-Leste during negotiations in 2004 was a key turning point in that process. The former Australian intelligence officer known as 'Witness K' and his lawyer, Canberra attorney Bernard Collaery, played a critical role in making that information available. The long boundary process is described on other web pages, and this page chronicles the actions and prosecutions of Witness K and Bernard Collaery, and on the Australian government's vindictive efforts to put them in prison, and support for their rights from both Timor-Leste and Australia.
On 23 April 2013, Timor-Leste's government formally notified Australia that it was exercising its right to arbitration under Annex B of the Timor Sea Treaty, arguing that CMATS is invalid because Australia conducted espionage in 2004 and did not negotiate the treaty in good faith. Timor-Leste accused Australia of bugging Australian hotels and Dili government offices while Timor-Leste's negotiators were discussing their strategy. The Australian government and media (also audio) reported the notification on 3 May, and three days later Timor-Leste Petroleum Minister Alfredo Pires (also audio) explained his reasoning.
Australian lawyer/priest Frank Brennan, a long-time supporter of Timor-Leste, visited Dili and wrote Time to draw the line between Australia and Timor-Leste on 13 May. On 23 May, ABC radio interviewed Alfredo Pires and Australian Resources Minister Gary Gray. On 26 May, Pires informed local media that Timor-Leste is preparing to take Australia to an international court in April 2014, after the CMATS arbitration process is finished. A few days later, Prime Minister Xanana Gusmão clarified that Timor-Leste will wait for Australia's response before taking court action. On 29 May, The Australian published Aussie spies accused of bugging Timor cabinet with information about Timor-Leste's complaint against Australia, with comments from Timor-Leste Petroleum Minister Alfredo Pires, his lawyer Bernard Collaery, former Australian Foreign Minister Alexander Downer and others.
The process of arbitration continued slowly throughout 2013, with both sides naming representatives to the panel, as described in detail on another page.
As Timor-Leste celebrated the 38th anniversary of its Proclamation of Independence on 28 November 2013, many were discussing Australia and the U.S. eavesdropping on other governments, including Timor-Leste and Indonesia. Minister of State Agio Pereira re-opened the public debate on maritime boundaries with interviews on Australian radio (audio, transcript) and television (video, transcript). The Australian grassroots organization Timor Sea Justice Campaign also urged Australia to establish a boundary with Timor-Leste. Former Australian Foreign Minister Alexander Downer belittled Timor-Leste's effort to advance its national interest (audio), while TSJC's Tom Clark urged Australia to "Heed law of the sea and set a fair Timor border" in the Age. The World Socialist Web Site provided context.
On 3 December 2013, Australian media reported that the Australian Security Intelligence Organization (ASIO) had broken into the Canberra home of Bernard Collaery. Australian agents also detained and searched an Australian whistleblower who planned to provide evidence for Timor-Leste to the tribunal, seizing his passport. Timor-Leste supporter Clinton Fernandes, a former Australian military officer, wrote that "Dealing fairly with East Timor is not charity, but justice". The following day saw more articles about Australia's actions (Tempo Semanal, Guardian, Sydney Morning Herald, Radio Australia), including questions from the Labor and Green parties and justifications by Prime Minister Tony Abbott and Attorney General George Brandis (Ministerial statement and press release). Timor-Leste's Prime Minister "deeply regretted" the "counterproductive and uncooperative" actions of the Australian Government, while Ambassador to Australia Abel Guterres was "deeply disappointed," as he explained on ABC Lateline.
An ABC "Fact Check" used Australian sources to conclude that what Australian intelligence did was legitimate because "one of the functions of ASIS is to engage in espionage in relation to negotiations between Australia and a foreign state to protect Australia's economic interests" and because Australia had passed a law allowing its intelligence services to undertake actions which would be crimes if done by civilians. Similar state self-justification has legitimized a wide range of atrocities, from drone assassinations to Guantanamo Prison to the Nazi Final Solution to Indonesia's occupation of Timor-Leste. The Australian also lost perspective, editorializing in favor of stealing from Timor-Leste to advance Australia's political and economic interests. Debates in the Australian Parliament show a range of views.
However, as Australian Frank Brennan explained, the raids were "designed to show Timor who's boss." Although Clinton Fernandes defended the legitimacy of the raids as protecting Australian intelligence agents (audio), Brisbane Times columnist John Birmingham lamented that the former ASIS officer who blew the whistle on the 2004 spying is likely to be unjustly punished. Lawyer Bernard Collaery, whose offices were raided, explained that the whistleblower had tried to work through channels without results, although Australia's Inspector-General for Intelligence said she knew nothing about this, hardly surprising given her office's limited coverage. The Australian Senate Privileges Committee later published responses from Brennan and Collaery to Brandis' accusations against them.
More than half a dozen Australian journalists and producers contacted La'o Hamutuk on 4 December. We explained that the long history of Australia's theft of Timor-Leste's oil begins with Woodside's discovery of the Sunrise field in 1974, which encouraged Australia to support Indonesia's invasion the following year, followed by the 1989 Timor Gap Treaty signed over the corpses of Timorese people. Australia's refusal since 2002 to recognize Timor-Leste's sovereignty by establishing maritime boundaries demonstrates their desire to continue to profit from territory gained as part of Indonesia's illegal occupation. In light of this history and the continuing theft of 40% of Timor-Leste's oil and gas, the latest spying incidents were almost background noise, as La'o Hamutuk's Charles Scheiner explained on ABC Radio National (audio).
The 5 December papers included two articles by former Timor-Leste advisor Paul Cleary, on the history and dreams of Timor-Leste gas. As the initial arbitration hearings began in The Hague, it emerged that Timor-Leste has four whistleblowing witnesses and had told Australia their names two weeks ago. Many papers described the upcoming battle (World Today, Lateline, Herald Sun). After the day of meetings, ABC radio interviewed Timor-Leste Ambassador Joaquim Fonseca.
Following several days of peaceful demonstrations in Dili, some Australian media deepened their understanding. An editorial in the Melbourne Age concluded "If Australia has exploited such imbalances in power for commercial gain, and done so through espionage, then we should be deeply ashamed." Letters and columns by Donald Anton in the Age (longer version) and Richard Ackland (in the Sydney Morning Herald) include historical background and raise doubts about Australia's behavior, and Michael Leach pointed out that Australia's democratic self-image is damaged by its actions in the Timor Sea. From the activist side, Shirley Shackleton warned that Bernard Collaery's "spark of justice and dignity" won't be easily intimidated. On the other hand Australian academic Sarah Heathcote "explained" that spying is normal, so the tribunal is unlikely to invalidate CMATS.
On 10 December, Timor-Leste asked ASIO to return all the materials they had seized from Bernard Collaery's office. Former president Jose Ramos-Horta added his voice to those condemning Australia's actions, as did Petroleum Minister Alfredo Pires (English audio or written Tetum). The Australian Government updated its travel advice, warning visitors to Timor-Leste to "exercise a high degree of caution in Timor-Leste because of the uncertain security situation. The situation could deteriorate without warning. ... You should avoid demonstrations, street rallies and other large public gatherings as they may turn violent." As readers of this website probably know, there has not been a violent demonstration in Timor-Leste for many years.
The last daily protest, on International Human Rights Day (December 10), was the largest so far, issuing this statement (also Tetum). Click on each photo below to see it larger, or here for more. The sign in the second photo says "we don't like Australia."
The next day the Melbourne Age called Australian spies pretending to be aid workers "beggarly." The shameful behavior is becoming known globally: British/Canadian Gwynne Dyer's article "Australia’s surveillance of East Timor too shameful to share" has been published worldwide, while Mong Palatino's piece in the Diplomat gave basic background. Australian Josephites published a flyer, Turmoil on the Timor Sea, explaining how Australians can communicate with their elected representatives.
On 17 December, Timor-Leste brought Australia to the International Court of Justice (TL's application and requested measures, ICJ press release, Court's message to Australia, logistics; also AAP), demanding the return of documents taken when ASIO raided Collaery's office, and SMH's Tom Allard explained the legal issues. Predictably, former Foreign Minister Downer was defensive. The court heard the case on 20-22 January 2014, as foreshadowed in an ABC radio interview with TL Ambassador Joaquim Fonseca and La'o Hamutuk's Juvinal Dias (2MB audio).
On 28 December, Kirsty Sword-Gusmão, the Australian-born wife of Timor-Leste's Prime Minister, wrote of her "disgust" at Australia's "act of hostility towards the people of my adopted homeland." On the same day, the Sydney Morning Herald revealed additional details of the raid on Collaery's office, including an analysis of the history and motivations of both nations.
Timor-Leste had spent close to $20 million on legal fees for boundary-related cases by early 2014 (including $5.8 million in March 2014), and expenses will continue. The $11.8 million spent in 2013 exceeded the $10 million budgeted for legal services that year, and expenses in 2014 will almost certainly be more than the $10 million appropriated. The Procurement Portal contains a little information on $2.3 million in contracts awarded to Bernard Collaery since 2010 (including $289,000 last November) and the $1.5 million contract signed the same month with DLA Piper Australia, but other contracts are not on the Portal. In addition to legal fees, Timor-Leste has spent significant amounts on travel, consultants, and government officials' time, but less information is available.
On 3 March, the International Court of Justice issued its preliminary Order (summary, press release) for provisional measures, accepting most of Timor-Leste's claims but declining to instruct Australia to return the seized materials. Twelve of the 16 judges ordered that:
Judge Cancado-Trindade (Brazil) agreed with the Order but wrote a separate opinion recommending that Australia be ordered to turn the seized materials over to the ICJ for safekeeping. Judges Keith (NZ), Greenwood (UK), Donoghue (USA) and Callinan (Australia) wrote dissenting opinions, suggesting that Australia should be given more trust or flexibility regarding the seized materials.
The decision is provisional and only relates to Timor-Leste's request for "urgent measures," and "in no way prejudges" the final outcome which will take at least six months more. As a compromise, it was diplomatically appreciated by both the Australian government, the Timor-Leste government and the Timor Sea Justice Campaign. Australian media began jingoistically (the AAP story on 7 News was initially headlined "Australia wins UN court fight" but later changed to "Aust to keep docs but not spy on Timor: ICJ"), but later coverage was more accurate. ABC Radio National interviewed Clinton Fernandes (audio) who put the ruling in context. The SMH called it a "major setback" for A-G Brandis, while ABC and the Guardian were also reasonably objective, as was most reporting the following day, including Stop Spying On Timor, Court Tells Australia (New Matilda by Tom Clarke from TSJC, also longer version), ICJ orders Australia to stop spying on East Timor (SBS; also audio interview with Ambassador Joaquim Fonseca and Tom Clarke), Timor Leste’s request for provisional measures: ICJ orders materials seized by Australia sealed until further notice (Matthew Happold on the EJIL blog), Australia ordered by The Hague to stop spying on Timor-Leste (UK Telegraph) (longer version), Xanana Gusmão: Ita Manan Ona Australia (Suara Timor Lorosa'e) and UN Rules against Australia in Favour of East Timor (International Business Times), as well as in Vietnam and around the world.
In April 2014, the CMATS arbitration panel ordered Australia to allow Witness K to provide evidence to their proceeding. Australia had cancelled the former agent's passport four months earlier in an effort to prevent him from travelling to testify to the panel, but technology could allow other options.
While legal processes continued in the Hague, Australia's Parliament was active. In April, The Senate Committee of Privileges published formal responses by two Australian supporters of Timor-Leste, Frank Brennan and Bernard Collaery, to Attorney General George Brandis' December 2013 accusations against them. On 28 May, Australian Senator Kim Carr asked Attorney-General Brandis whether Australia had apologized to Timor-Leste for the ASIO raids, while Senator Nick Xenophon questioned Inspector-General of Intelligence and Security Vivian Thom and ASIO representatives about the raids.
In mid-July, the Northern Territory Bar Association held its biennial conference in Dili, including Australian attorneys Christopher Ward and Bernard Collaery as speakers. Conference participants adopted resolutions calling on the Australian government To give up its unlawful and unjust claim to a boundary north of the median line; To support the immediate commencement of negotiations to settle the lateral boundaries of the Timor Gap; and To require Australia's Parliament to conduct a full and proper inquiry into allegations that the Australian Secret Intelligence Service unlawfully entered and eavesdropped on Timor-Leste during the CMATS Treaty negotiations. A few weeks later, the Victoria Local Government Association Working Together with Timor-Leste conference in Melbourne adopted similar resolutions.
On 1 September 2014, the Sydney Morning Herald reported that the Australia's government has asked their police to investigate bringing criminal charges against Bernard Collaery and the unnamed whistleblower, although the Guardian reported that Attorney General Brandis denied making such a request. Australian Senator Nick Xenophon questioned Brandis, and Clinton Fernandes described the controversy on Crikey.com. Mark Pearson explained the implications for freedom of the press. This controversy has motivated the Australia government to propose new laws punishing whistleblowers for talking with the media, as discussed by journalists Richard Ackland and Brendan Nicholson. Timor Sea Justice Campaign coordinator Tom Clarke explained ho Australia is still screwing the East Timorese in New Matilda.
On 1 March 2015, media reported that Australian Federal Police are still investigating the whistleblower, known as Witness K, who informed Timor-Leste about Australia's spying on government offices in 2004.
On 3 May, Timor-Leste's government "appreciated" Australia's decision (also Tetum) to return all the documents and data seized from Bernard Collaery's Canberra office in December 2013. Australia had written to the ICJ stating its wish to return the materials, and on 22 April the court agreed. However, Timor-Leste lamented that "there had been little progress" in scheduling boundary negotiations, although the six-month adjournment of the ICJ case expired on 3 March. Australia's partial change of heart was reported by the Sydney Morning Herald, ABC, The Australian and the Guardian, although the Timor Sea Justice Campaign continued to urge Australia to enter boundary negotiations in good faith. On 6 May, the ICJ issued a press release with background, text and separate opinions on their 22 April order, reported by 9 News.
On 12 May, Timor-Leste's government announced that Australia had returned the materials taken from Collaery. Crikey.com wrote that Australian Attorney-General George Brandis makes a mockery of IGIS' vaunted 'independence' and wondered why outgoing Inspector-General of Intelligence and Security Vivienne Thom "gets to leave without ever explaining why she blatantly maintains something contradicted by the public record on the most serious spy scandal in decades."
On 3 June, Timor-Leste said (also Tetum) that it would ask the ICJ to terminate the Timor-Leste v. Australia case about the raid on Bernard Collaery's office. At the same time, Dili is reopening the case it filed in April 2013 with the Permanent Court of Arbitration, asking that the 2006 CMATS treaty be annulled because Australia spied on Timorese officials while it was being negotiated. These developments were reported by the Sydney Morning Herald and ABC.
On 11 June, Bernard Collaery delivered an address at the Australian National University on 'National security, legal professional privilege, and the Bar Rules', detailing the events and legal issues connected with the Australian intelligence raid on his office. Crikey.com summarized Collaery's 47-page lecture.
Australian authorities continue to prepare for criminal prosecution against "Witness K," the former ASIS agent who exposed the 2004 Australian bugging of Timor-Leste's offices. As reported by Tom Allard in Fairfax newspapers on 22 June, their ongoing seizure of his passport could prevent the whistleblower from testifying before the arbitration panel in The Hague. Attorney Collaery, who represents Witness K, called the case "a showdown between good and evil" and "an unprecedented attack on the Rule of Law", but is confident that "justice will triumph so long as our courts are able to operate." However, as reported by the Guardian, proposed legislation which could strip whistleblowers of their Australian citizenship.
In the Australian Parliament on 20 October, Attorney General Brandis took pains to evade questions about the settlement of the ICJ case, ASIO's reasons for raiding Bernard Collaery's office, and how much Australia had paid in legal costs related to the case.
In November, Mark Aarons put the boundary debate in historical perspective in a feature article in The Monthly.
The Lateline news program on ABC-TV covered the spying scandal in three in-depth reports on 25-27 November 2015, including interviews with Timorese leaders and Bernard Collaery, former advisor Peter Galbraith, attorney Nicholas Cowdrey and Senator Nick Xenophon (video podcasts on ABC's website). Following this extended exposure of alleged illegal activity by Australian officials and intelligence agents, Senator Xenophon called for a royal commission and Crikey.com dubbed the lack of accountability "an international embarrassment." However, when independent Senator Xenophon and Greens Senator Scott Ludlam tried to have the Senate resolve to return Witness K's passport, the government blocked it. On 4 December, Xenophon revealed that the Australian government may charge Witness K and Bernard Collaery, perhaps cancelling their citizenship if they have dual nationality.
On 2 February 2016, the ABC television program Lateline (video) reported that Australian Foreign Minister Julie Bishop had declined to restore Witness K's passport that had been cancelled in 2013, continuing to prevent him from leaving the country. On the same day, the Socialist Alternative newspaper RedFlag published How Australian imperialism rips off Timor-Leste and the Crikey website editorialized that Witness K must be freed. On 11 February, Australia's Department of Foreign Affairs told a Senate hearing that it would allow Witness K to give evidence in the Hague but would not restore his passport.
Protests were held in February and March in Dili, Canberra, Melbourne, Adelaide, Sydney, Jakarta, Manila, Kuala Lumpur and elsewhere. The first was outside Parliament House in Canberra on 15 March (photo at left), and included speeches from Kelvin Thompson (ALP MP for Wills), Senator Scott Ludlam (Greens foreign affairs spokesperson) Senator Nick Xenophon (independent SA), Senator John Madigan (independent VIC), Bernard Collaery (lawyer for ASIO whistleblower 'Witness K') and historian Dr Adam Hughes Henry. Bernard Collaery's speech was picked up by the Canberra Times, which ran one article on Australian intelligence bugging his Canberra office, and another on his statement that high Australian officials knew of the 2004 bugging of Timor-Leste's cabinet rooms. All speakers emphasized the importance of seeking a just settlement with the people and government of Timor-Leste.
In April 2016, whistleblower "Witness K" was recognized at the Blueprint Prize for Free Speech awards in London, as described on Crikey.com. During the same week, Kathleen Noonan wrote in the Courier Mail We know East Timor is poor. But this poor? contrasting Australian greed and Timorese poverty.
On 14 June 2017, the Timor Sea Justice Campaign brought 'fair minded Australians' to Canberra to protest and lobby Parliament, with a speech by Senator Xenophon and news coverage of Bernard Collaery's call for a Senate inquiry.
Attorney Bernard Collaery is working on a book about the controversy which New Matilda, among others, expects to be "explosive."
On 6 March 2018, the same day the Maritime Boundary Treaty was signed in New York, the Guardian reported that Witness K remains under 'effective house arrest.' The following week, Jose Ramos Horta called on Australia to return K's passport.
On 28 June, MP Andrew Wilkie told the Australian Parliament that Australian prosecutors had filed criminal charges against attorney Bernard Collaery and his client, known as 'Witness K,' for conspiring to breach the Intelligence Services Act by communicating information they obtained while working with ASIS. Wilkie called this an "insane development" worthy of a "pre-police state" (transcript, video). The Guardian blogged about this revelation made possible by Parliamentary privilege (immunity), which was confirmed by Attorney-General Christian Porter, who declined to explain his decision. Bernard Collaery (pictured at right) wrote a response. The defendants, who could face years in prison, must report to court on 25 July. On 3 July, Prime Minister Malcolm Turnbull tried to distance himself from the prosecution.
The surprising prosecution was reported worldwide, including by ABC, the Guardian, the Sydney Morning Herald (also AG signed off on spy charges), Malay Mail (via AFP), Washington Post (via AP), the Financial Times of London, PNG Industry News (TL oil saga gets uglier), UCAN and the Saturday Paper (The dark politics of the Timor spy case).
Many commentators, including Australian Senators, Crikey's Bernard Keane (Staggering attack on free speech, Labor stands shoulder to shoulder with Turnbull on TL cover-up, TL bugging was our Watergate -- except in this version, Nixon wins), UNSW Law Professor David Dixon (Prosecution is a disgraceful act of revenge), Prof. Clinton Fernandes (also ABC Podcast), AFFET's Rob Wesley-Smith, retired senior judge Stephen Charles, ex-judge Anthony Whealy, former TL negotiator Peter Galbraith, former Australian diplomat Bruce Haigh (also ABC audio), Interfet parent Terry Sweetman (The spy scandal we should all be angry about), Binoy Kampmark, Max Lane (Humiliated Australian imperialism lashes out: lawyer and intelligence agent with consciences threatened with gaol), the Canberra Times (Australia's greedy theft from Timor-Leste was a disgrace) journalism professor Johan Lidberg (When whistleblowers are prosecuted, it has a chilling effect on press freedom in Australia) and letter-writers in the Australian Financial Review and Sydney Morning Herald decried their government's action.
Also on 28 June, the same day the charges were brought against K and Collaery, the Australian Parliament enacted a package of legislation to, among other things, "introduce new offences targeting foreign interference."
On 11 July, Bernard Collaery told ABC TV News that the prosecution was 'heartbreaking' (17 MB video news report). The following day, four 'crossbench' members of the Australian Parliament asked the Australian Federal Police to investigate whether the spying operation against Timor-Leste was lawful, as reported by the Guardian, Lawyers Weekly, UCAN and SBS-TV, which also broadcast Collaery's press conference (6 MB video).
On 20 July, the Movement Against the Occupation of the Timor Sea (MKOTT) held a press conference in Dili to release a statement (also Tetum) accusing the Australian government of attacking freedom of expression and democracy by charging Witness K and Bernard Collaery, which was reported by the Guardian. The Dili activists plan a peaceful rally in solidarity with protests planned in Canberra and Melbourne when the two defendants appear in court on 25 July.
As the court date neared, more commentators spoke out, including Spencer Zifcak (The Attorney-General, the ASIS Officer and his Lawyer: The Story of the Shameful Timor Prosecution), Scott Ludlam (The Witness K affair is one of the most debased abuses of power in the postwar era), Human Rights Watch (Australia: Don't Prosecute for Exposure of Misconduct), John Braithwaite (The shaky case for prosecuting Witness K and his lawyer in the Timor-Leste spying scandal), Charles Glass (Oil, Spies and Audiotape in East Timor), Alan Boyd (Australia spy trial carries hidden dangers), Peter Boyle (Timor spy case: How Australia does Big Oil's dirty work) and Tom Clarke (In Australia, Exposing Morally Bankrupt Government Action Could Earn You a Jail Sentence).
Australian Foreign Minister Julie Bishop visited Timor-Leste on 29 July 2018, the first such visit in five years. Her visit was reported by AP, AAP and ABC. Former President Jose Ramos-Horta was in Australia, where he urged Australia to drop the case against Collaery and K, as also reported by ABC (audio). Timor-Leste activists held a vigil for the "death of democracy" outside Bishop's hotel. Australia's Foreign Ministry celebrated her visit as a new chapter in TL-Australia relations, a phrase also used by Sophie Raynor in the Lowy Interpreter, although Michael Sainsbury in Crikey saw the visit in the context of Timorese politics, Bec Strating in the Interpreter was unsure if it was a stalemate or a new chapter, and Sophie Raynor in SEA Globe wondered if neighbourly tension was over.
On 10 August, two eminent former UN officials wrote about Australia's immoral behavior toward East Timor in the Washington Post. Other mid-August articles discussed Gangsters for capitalism: Downer, Woodside and Witness K’ (James Plested in RedFlag) and Spy row a threat to Australia's ties with Timor-Leste (Jonathan Pearlman in The Straits Times).
On 21 August, Timor-Leste's new Foreign Minister, Dionisio Babo, told the Guardian that his government 'valued very much' the support of Witness K, Bernard Collaery and other Australians who had supported Timor-Leste's 'collective effort' to achieve a fair maritime boundary. To help Australians understand, JusTimor and the Timor Sea Justice Forum published fact sheets on the pending legal cases, and Future Directions linked the Greater Sunrise oilfield to food insecurity in Timor-Leste.
On 27 August, ABC reported that the Australian Government had warned Bernard Collaery in March 2018 (letter) that he faces imprisonment if his upcoming book discloses secret information.
On 7 September, Australian Senator Rex Patrick accused Attorney General Christian Porter of breaching Senate Rules by refusing to answer his questions about the case.
As the 12 September court date for Collaery and K approached, Susan Connelly and the Australia East Timor Friendship Association (SA) expressed support for the defendants, while Prime Minister Morrison was confident that 'justice will be served' and small parties urged the Labor Party to promise to drop the prosecution. Protesters gathered outside the Canberra courtroom (right), where the process was over in 15 minutes, adjourned until 29 October. The events, including the parties' disagreement about how much of the case would be heard in open court, were reported by ABC and Canberra Times. The Timor Sea Justice Forum reported on the protest and launched an online petition.
As the process continued, commentators highlighted its importance, including Madeleine Miller (Why the Trial of 'Witness K' and Bernard Collaery Should Concern All Australians), Clinton Fernandes (As Witness K trial opens, questions over how much of Timor-Leste spying case to keep secret from public) and Bernard Keane (Trial of Witness K and Bernard Collaery begins amid Midwinter Ball).
Timorese supporters of a fair maritime boundary rallied in Dili to demand that the charges against Bernard Collaery and Witness K be dropped. The Movement Against the Occupation of the Timor Sea (MKOTT) began gathering signatures, as covered by Green Left Weekly. They presented a banner-petition signed by more than 1,300 people to the Australian embassy on 17 September.
On 18 September, Julian Hill became the first Australian Labor Party MP to raise concerns about the case, while Warren Snowden and Luke Gosling also asked questions. The following day, independent Senator Rex Patrick continued his outspoken criticism of the prosecution, wondering if they intentionally delayed the case for three years to allow negotiations to proceed (transcript). A few days later, in the Legislative Assembly of the Australian Capital Territory (where Bernard Collaery once sat), Greens Member Caroline Le Couteur was warned not to comment on the legal proceeding.
The following week, Senator Patrick distributed a letter to the 193 members of the UN General Assembly in New York. On 27 September, Attorney General Christian Porter wrote to Senator Patrick, acknowledging that the Director of Public Prosecutions had requested consent to prosecute on 17 September 2015, but that the consent was not granted until 11 May 2018. ABC News wrote about this development on 5 October and reported it on their AM radio program the next day. Senator Patrick described the issues at length in the Senate Chamber (3 MB audio, YouTube video).
On 5 October, Crikey's Bernard Keane reviewed Clinton Fernandes' new book Island Off The Coast Of Asia, pointing out that the Witness K scandal is part of a long history of Australia pandering to resource companies.
As the 29 October court date neared, UNSW Law Professor David Dixon recalled the case of Clive Ponting, a British civil servant who gave information to Parliament about the British sinking of an Argentinean warship in 1981. After being prosecuted for violating the Official Secrets Act, Ponting was acquitted by a jury. According to Dixon, neither Witness K nor Ponting were "whistleblowers who went to the media, but rather responsible public servants who sought to use proper channels to complain about wrongdoing by their superiors." Jonathan Perlman wrote about The fight to keep the Witness K case secret in the Saturday Paper, and Justin McPhee wrote about how the case interacts with the Economy of Espionage in Counterpunch.
Although Bernard Collaery and Witness K had been due in Canberra Magistrates Court on 29 October, the appearance was postponed again. Writing on Crikey.com, Bernard Keane listed the Timor-Leste 12 who could benefit from the Witness K cover-up (which LUSA recounted in Tetum), while AAP cited Senator Rex Patrick and MPs Andrew Wilkie and Rebekha Sharkie calling for the charges to be dropped in what Sharkie called 'Australia's Watergate.' The UK Financial Times reported on the upcoming trial.
The Juice Media's satirical 'Honest Government' series has produced a video 'Visit Timor-Leste' recounting the hypocrisy of Australia's dealings with Timor-Leste from 1975 through the current case. Download the script or a 6 MB low-res video here, or view on YouTube. A version with the swear-words removed is downloadable here or on YouTube.
Several Australian Senators and MPs asked Margaret Stone, Australia's Inspector-general of intelligence services, to investigate whether Australian spying on Timor-Leste violated Australian laws.
Although the scheduled 1 November court hearing was postponed until 7 November, supporters of K and Collaery gathered outside the court (left). Long-time activist Rob Wesley-Smith recounted the two-decade struggle for a just maritime boundary.
On 6 November, the Financial Review described government efforts to continue the case in secret, although the Collaery/K legal team asked that it be in open court. They failed to reach agreement at the 7 November court appearance, and adjourned for two days. On 9 November, the judge asked the Attorney-General to determine if the trial would involve national security material (also Canberra Times). Radio National broadcast an interview with Jonathan Pearlman (3 MB audio), and Madeline Miller described the situation in Crikey.
On 28 November, Bernard Collaery gave the keynote address at the annual dinner of the Australia East Timor Association in Melbourne, entitled "Disequilibrium."
On 19 December 2018, the blog Crikey.com named Witness K and Bernard Collaery as their "2018 Person(s) of the Year."
On 4 January 2019, the Australian Financial Review reported ASIS's efforts to keep the proceedings of Collaery/K trial secret, which Attorney General Christian Porter said was likely. The Guardian reported on the unfair actions of the prosecutors in providing evidence to the defense on the evening of the last working day of the legal year. Proceedings are expected to continue in mid-February.
As the undisclosed date of the preliminary hearing approached, Clinton Fernandes gave a comprehensive talk on its history and implications (5 MB MP3) at a Melbourne bookshop. Legal scholar Ernst Willheim wrote Secret Trials: The illegal bugging of the Timor Leste Cabinet and the extraordinary prosecution of Bernard Collaery and Witness K, and gave a talk in Canberra on the topic. Civil Liberties Australia pointed out the hypocrisy of MPs claiming that “the ability to report freely and fairly on national security is a vital part of our democracy”.
On 28 February, the Canberra Times reported that a preliminary hearing on the Collaery/K trial, now scheduled for 6-8 August, could decide to have the trial before a jury or in open court.
On 25 March, Bernard Keane wrote How the Witness K/Collaery case is being delayed into oblivion in Crikey, describing political and personal pressures on the process. Two days later, former judge Anthony Whealy told The Guardian that the delays represent an “absolute abandonment of the principles of open justice."
Mainstream Australian media coverage virtually ceased after March. However, Susan Connelly wrote Kafka in Australia: the trial of Witness K (Eureka Street, 6 April), Paul Gregoire wrote We prosecute whistleblowers who expose government misconduct (The Big Smoke, 8 May), Mark Westcott wrote ‘National security’ and the protection of mining interests (Green Left Weekly, 24 May) and Bernard Keane wrote ABC missing in action on Witness K and Bernard Collaery persecution (Crikey.com, 30 May).
On 5 June, the Guardian published Witness K lawyer says raids on media show Australia becoming ''oppressive democracy" and ABC Radio interviewed Collaery on the recent police raids on Australian journalists. On 25 June, LUSA interviewed Australian academic Clinton Fernandes, who called Australia's 2004 spying on Timor-Leste scandalous because it diverted scarce resources from the war on terrorism.
Kim McGrath's book on Australia's Secret History in the Timor Sea was launched in Lisbon on 26 June, and Xanana Gusmão used the occasion to point out that Australia, a friendly country, had betrayed Timor-Leste (ABC Radio audio). The former Prime Minister made a "public appeal that Australia reconsider and stop the injustice that is being practiced against Bernard Collaery and Witness K."
On 2 July, members of the Movement Against the Occupation of the Timor Sea (MKOTT) held a press conference in Dili (photo at right, statement in English or Tetum) to encourage Timor-Leste's government to call for freedom for Bernard Collaery and Witness K when they celebrate the 20th anniversary of the referendum on 30 August, at which time the Boundary Treaty is expected to be ratified. The event was covered by local media, including Tatoli, RTTL radio and web, and GMN TV (6 MB video).
Although news reports in early July hinted that newly-reelected Australian Prime Minister Scott Morrison might drop the charges against Collaery and Witness K, on 24 July Attorney-General Christian Porter said this would not happen. On the same day ABC Radio interviewed (audio) Ambassador Abel Guterres and professor Michael Leach discussing the history of Australia-Timor-Leste relations, including the roles of K and Collaery. At the end of the month, Green Party Senator Nick McKim and former Timor-Leste President Jose Ramos-Horta described them as heroes and patriots, and called for charges to be dropped.
A hearing was scheduled in Magistrates Court for 26 July, but was delayed until 30 July. At that hearing, the defendants' lawyers asked that the case be split, with Witness K's case remaining in Magistrates Court and Collaery's going to indictment and to the ACT Supreme Court. Another closed hearing was scheduled for 6 August, and protesters planned to attend once again.
Sr. Susan Connelly encouraged people to sign Gareth Smith's petition and watch the teaser for Gil Scrine's forthcoming film "Reluctant Saviour". She produced a Telling the Truth about Timor pamphlet which was circulated to Members of the Australian Parliament. On 3 August, ABC Radio National's Saturday Extra program focused on Witness K's Endless trial (audio), with discussion by Clinton Fernandes and Sen. Rex Patrick.
Witness K to plead guilty; Bernard Collaery will go to trial.
At the hearing on 6 August, Witness K's lawyer said that his client wished to plead guilty to exposing the bugging operation, and the plea was reported by AFP, Canberra Times and the Guardian. Crikey.com published several relevant articles, including Bernard Collaery's It is a national disgrace to see Witness K treated like this, Bernard Keane's Australia's shame: Witness K punished for his service, while the guilty go free, and Madeleine Miller's The big question that has gone unanswered in the Witness K saga (did Australia's bugging break the law?). Other commentary included Sally Whyte's Witness K and Collaery's influence to be felt in Timor Leste in the Canberra Times, a statement by the Australian Lawyers Alliance, and Joseph Fitsanakis's Australian ex-intelligence officer pleads guilty to disclosing spy operation in IntelNews.
In Timor-Leste, the Movement Against the Occupation of the Timor Sea (MKOTT) held a press conference (also Tetum) on 9 August, urging Australia's Attorney General to drop the charges against Bernard Collaery and Witness K, which was reported by Green Left Weekly and Tatoli. They are inviting the public to a photo exhibition about the maritime boundary struggle at the HAK Association in Dili and are selling T-shirts for $20, available at La'o Hamutuk. In Tetum, MKOTT's campaign was covered by Grace Media, while Tatoli wrote about the opening of the photo exhibition.
In Australia, writers continued to address the case, including a comprehensive history by Christopher Knaus in The Guardian, an analysis of legal implications by Greg Barns in the International Law Association Reporter, a report in LawyersWeekly, and a brief comment by Richard Ackland in Saturday Paper's Gadfly. Robert Macklin wrote Collaery battles on, but who cares? in CityNews, and the following week several readers responded 'I care about Collaery'.
On 19 August, Christian Porter issued a press release, purporting to answer nine questions about the case. Nevertheless, he clearly has the authority to discontinue the case, as spelled out in Australian law.
Bernard Collaery was back in ACT Supreme Court for another preliminary hearing on 22 August, accompanied by a rally of his supporters (videos), who heard a speech from Sr. Susan Connelly. The Canberra Times ran two AAP articles, before and after the hearing. There will be another short hearing on 26 September and a three-day hearing beginning on 11 December which will decide the conditions of his trial by jury, which may take place in early 2020.
On 25 August, Tafara reported on MKOTT's continuing solidarity with Collaery and K, including collecting thousands of signatures. Bernard Collaery wrote his appreciation to the Timorese activists (right), as reported by Neon Surat.
ABC-TV's Four Corners broadcast Secrets, spies and trials: national security vs the public’s right to know on 26 August; watch the trailer or the full program on YouTube, read the transcript, or download a 66 MB video. In the program, Xanana Gusmão offered to provide evidence which would support Witness K. Clinton Fernandes explained what the program left out.
On 27 August, The Australian published an interview with former Prime Minister Mari Alkatiri, who said that he knew that Australia was spying on Timor-Leste during the boundary talks before 2006.
On 29 August, Witness K's lawyers appeared in Magistrate's Court, and Australian activists called for a Virtual Demonstration. K's attorneys announced that K's right to a public defender had been denied. Another hearing was set for 13 September, although it was not listed in advance on the Court's calendar.
During the last few days of August, Jose Ramos-Horta repeated his call for the charges to be dropped, and Paul Bongiorno wrote about the implications of the case for Timor-Leste independence and [Australian] press freedom in The Saturday Paper. The Sydney Morning Herald published op-eds Secret whistleblower trial will only add to Australia's shame over spying cover-up by retired judge Anthony Whealy and This immoral act against a decent man diminishes all who pursue it by Chris Uhlmann.
On his way to Dili, Senator Rex Patrick told ABC that he expected that Morrison would avoid discussion of the Collaery/K case (audio).
On 30 August, Australian Prime Minister Scott Morrison visited Dili to observe the 20th anniversary of the referendum which ended Indonesia's occupation, and to mark the entry into force of the Australia-Timor-Leste Maritime Boundary Treaty. However, as James Massola wrote in The Age, Morrison flies into a storm in East Timor over Witness K prosecution. MKOTT issued a statement (also Tetum) calling on Australia to stop the prosecution of Bernard Collaery and Witness K. Morrison refused to discuss the Collaery/K case, calling it "a domestic matter for Australia."
Activists in Timor-Leste, who were not allowed to demonstrate during Morrison's visit, unfolded a banner at sea, as described by Tempo Timor. MKOTT was not allowed to present their petition with 4,058 signatures to the Prime Minister. However, Australian Shirley Shackleton (the 87-year-old widow of Balibo Five victim Greg Shackleton) handed it to Australian Foreign Minister Marise Payne, as reported in Green Left Weekly and other media.
Coverage of Morrison's visit included Sky TV News and Channel 9 TV News, as well as ABC Radio. A few days later, the Sydney Morning Herald editorialized Stop Punishing Witness K for telling the truth on East Timor.
Prompted by Morrison's visit, many Australian writers recounted the troubled history of the two countries' relationship, including Kim McGrath (speech at book launch), Guardian Workers' Weekly (Apologise), Michael Leach (After a border dispute and spying scandal, can Australia and Timor-Leste be good neighbours?, The Conversation), Binoy Kampmark (Timor-Leste and Australia: A Loveless Affair at Twenty, Dissident Voice), Nick Everett (Facing jail for telling the truth about Australia’s plunder of Timor-Leste, RedFlag), James Massola (Morrison flies into a storm in East Timor over Witness K prosecution, The Age), Yashu Kalera (Timor-Leste to celebrate 20 years since independence from Indonesia, Foreign Brief), Greg Roberts (Australia confronts past with East Timor, AAP) and Sophie Raynor (Australia's true relationship with Timor-Leste, Eureka Street).
Prosecutions and campaigning continue.
After returning from Dili, Rex Patrick told his Senate colleagues that the Collaery/K case is hurting Australia's image in Timor-Leste. Other Australians also called for the cases to be dropped, including Australian Lawyers Alliance spokesperson Greg Barnes and former MP Dr Richie Gun AO.
Upcoming events in Australia will discuss the case, including
On 13 September, ACT Chief Magistrate Glenn Theakston, who is presiding over the proceedings for Witness K, lamented that the case is moving "unnaturally slowly" and adjourned it until 26 September. The prosecution rejected the timetable requested by the defense, further delaying providing a statement to K outlining the harm they allege came from his whistle-blowing.
On 20 September, Australian Defence Minister Linda Reynolds visited Timor-Leste to join the celebration of the 20th anniversary of INTERFET's arrival. ABC Radio's coverage (audio or transcript) discussed the boundary treaty and the Collaery case.
There was a brief ACT Magistrates Court hearing on Bernard Collaery's case on 26 September, for the formal reading of the charges against him, with a gathering outside the court. Collaery's case will be back in court on 24 October. Witness K was to be represented in the afternoon, but it was rescheduled until 8 October, although Haydn Carmichael told the Magistrate that he and other lawyers are representing Witness K for free because the ACT Legal Aid Commission has refused to defend him.
On 2 October, ACT Supreme Court Justice David Mossop expressed concerns that proposed secrecy around Collaery's pending trial could make court staff vulnerable to criminal prosecution.
After human rights lawyers called the prosecution of Collaery and Witness K a 'disgrace', on October 7 Magistrate Theakston told the government to provide a 'harm statement' describing the damage alleged to have been done by their disclosure, as reported by AAP and Canberra Times.
Collaery is scheduled to be back in court on 9, 17 and 24 October, but these volatile dates should be checked on the courts' websites: K is at the ACT Magistrate’s Court and Collaery is at the ACT Supreme Court.
On 17 October, the ACT Supreme Court rejected ANU Law fellow Ernst Willheim's request to be heard as an amicus curiae (friend of the court) in the Collaery case (earlier article by Willheim). Two days later, Alice Drury of the Human Rights Law Centre wrote With greater powers must come greater accountability in the Sydney Morning Herald. On 21 October, the Guardian interviewed Collaery, who warned that many whistleblowers have 'nowhere to go'.
Collaery's hearing on 24 October was very brief. The defense lawyers learned that the prosecution wants some evidence heard by the judge alone, away from the jury, who would not have complete access to the facts. The rally at Parliament House was well attended, hearing from Andrew Wilkie, Senator Rex Patrick, Senator Hanson-Young, Bernard Collaery, David McBride, Jack Waterford, Rod Campbell and Susan Connelly. One of the organizers observed: “This is a dangerous time for our democracy when the government is obfuscating on so many issues and apparently has a tactic of taking questions on notice in Senate Estimates, so that they can avoid answering them while the media is there. ... We need whistleblowers, they are people of integrity who tell the truth and expose misdeeds. Surely that should be welcomed! The government should not get away with crying 'national security' when difficult questions are asked and using that as an excuse for ever more surveillance of the general public.”
As the cases inched forward, columns included I spy something beginning with K: Josephite nun says Witness K and Bernard Collaery are scapegoats (The Catholic Leader), A Secretive State: The Collaery Trial and National Security Disclosures (Keiran Hardy in Australian Public Law), Secret trials in the ACT courts (Ernst Willheim), and Wannabe Spy (Kellie Merritt).
On 15 November 2019, AAP reported that Witness K's plea hearing will be in April 2020, following a March hearing on how secret the proceedings will be.
Prior to the hearing on Collaery's case on 27 November, AAP gave context and Canberra Times interviewed Collaery. At the hearing, Attorney General Christian Porter had the trial delayed once again, as described by Bernard Keane in Crikey.com. Collaery's side said that they intend to introduce testimony at trial from former Presidents and Prime Ministers of Timor-Leste Xanana Gusmão and José Ramos-Horta, as well as Australian ex-Foreign Minister Gareth Evans, ex-head of Defence Admiral Christopher Barrie and ex-Ambassador to Indonesia John McCarthy, as reported by LUSA, ABC and AAP.
On 3 December, Australian MP Graham Perrett announced his support for Collaery, the first federal Labor Party MP to speak out.
The next ACT Supreme Court hearing was on 11 December 2019 to decide whether Collaery's trial next year will be held in secret or in public. Another protest was held outside the court, and the session was held in secret.
Bernard Collaery's book, Oil Under Troubled Water: Australia’s Timor Sea Intrigue, became available on 3 March 2020. According to the publisher, the book 'relates the sordid history of Australian government dealings with East Timor, and how the actions of both major political parties have enriched Australia and its corporate allies at the expense of its tiny neighbour and wartime ally, one of the poorest nations in the world.'
After the book was released, many reviews focused on the 1975 Balibo history (including in The Guardian and Tatoli), because Collaery is not allowed to write or speak about the charges against him. He was interviewed on ABC Radio's Afternoon with Paula Kruger (7 MB audio, 9 March), Late Night Live with Philip Adams (8 MB audio, 13 March), The Wire (3 MB audio, 18 March), and 3CR radio (transcript, 28 March). Former Victoria Premier Steve Bracks interviewed Bernard Collaery (10 MB audio) at a virtual book launch on 15 April.
Collaery and K's cases continue in Australian courts.
A hearing in Collaery's case was held on 13 February in ACT Supreme Court. Although Collaery's trial was scheduled to begin on 6-8 April and Witness K's case was to be heard on 30 March, proceedings were indefinitely delayed because of the Covid-19 virus.
On 14 February, Bernard Collaery appeared in ACT Supreme Court, representing David McBride, a former army lawyer who admits leaking classified documents about Australian military involvement in Afghanistan.
On 28 February, the Australian Department of Home Affairs proposed that prior approval by an independent body should be required before Federal Police can raid journalists. Some legal advocates for press freedom thought the proposal would be ineffective, although Bernard Collaery welcomed it and called for broader consultation.
Some Australians continue to write about the case, including Alison Broinowski (Assange, Collaery, Snowden, Smethurst: criminalising truth), Hamish McDonald (Bernard Collaery's bombshell), Susan Connelly (The World is Full of Scapegoats), Paul Gregoire (It's a Crime to Report a Crime) and Richard Ackland (The court case Australians are not allowed to know about).
On 22 May, the Timor Sea Justice Forum reported "The Commonwealth Attorney-General continues to pursue the prosecution of Bernard Collaery, despite having the power to discontinue the case. The latest in the interminable series of hearings is set down for 25th May to 3rd June in the ACT Supreme Court. This hearing will be closed to the public. A determination will be sought at the hearing for some evidence to be available only to the judge. If that ensues it would mean that the defendant would not have full access to the evidence which will be used against him. It could mean that when the trial occurs, the jury will not be allowed to hear all the evidence. The lack of public and legal scrutiny in the proposed conduct of this trial subverts internationally accepted standards for a fair trial and the right to prepare a defence. Australian governments have exposed their people to the international humiliation of performing an act of economic espionage against a small and impoverished neighbour--Timor-Leste. Prosecuting those who acted in in good faith in bringing the truth to light is a clear indication to the rest of the world that Australia is content to both swindle the poor and persecute those who act according to their consciences."
As the 25-29 May pre-trial hearing began, the Canberra Times wrote 'Sad times': Collaery laments 'now fragile democracy' as hearing held in secret, and Ernst Willheim wrote a letter in response. Green Left Weekly published Susan Connelly: Secret trial a cover up of Australia’s swindling of Timor-Leste. A few days later, Paul Gregoire wrote Good People Break Bad Laws: The Criminalisation of Whistleblowers, The Guardian's Christopher Knaus wrote 'I am unable to say much': anger simmers as Timor bugging hearing goes ahead in secret (Knaus also made an audio podcast), and Paddy Manning wrote No news is bad news: Australia’s free press is on life support.
On 27 May, ex-Foreign Minister Gareth Evans, Admiral Chris Barrie and former Ambassador John McCarthy appeared in court on the Collaery/K case, but media did not cover it. Timor-Leste boundary negotiator Xanana Gusmão and Jose Ramos-Horta also made statements. On 8 June, Xanana told Timorese media that he defends Collaery without reservation, and is ready to testify.
In mid-June, former Victorian Premier Steve Bracks asked Why is Bernard Collaery’s trial a secret? in The Weekend Australian, and ABC's Media Watch program interviewed 'Bernard Collaery who’s at the centre of a secret trial the media can’t cover' (9-minute online video, transcript). The Australian editorialized on Espionage and open democracy, and ABC News interviewed Collaery and some distinguished jurists who support him.
On 22 June, ABC-TV Q&A panel program broadcast 'Secrets, spies and hidden trials' (transcript, audio podcast, video), which was described in The Guardian. Other relevant articles published the same week included The secret trial that could turn pear-shaped for the government (Andrew Clark, Financial Review), Secret hearings aren't the most unusual part of the case against Witness K lawyer Bernard Collaery (Elizabeth Byrne, ABC News), Time for the government - and media - to tell the truth about cyber hysteria (Bernard Keane, Crikey.com), Sub-Imperial State: Australian Dirty Work (Clinton Fernandes in Arena Quarterly) and Coalition spends $2m on prosecution of Bernard Collaery and Witness K, even before trial (Christopher Knaus in The Guardian).
On 26 June, ACT Supreme Court Judge David Mossop ruled in favor of the Attorney-General’s assertion that a public trial will prejudice national security, deciding that essential parts of Bernard Collaery's trial will be held in secret, as described and analyzed by ABC, The Guardian, Crikey.com and Big Smoke and Sydney Criminal Lawyers. After the ruling, shadow Attorney General Mark Dreyfus of the Labor Party called for an open trial, and ABC radio interviewed Steve Bracks (audio). Law Professor Spencer Zifcak called the case One of the gravest threats to freedom of expression, while Binoy Kampmark called The Absurd Prosecution Wasteful, Secret and Vicious.
According to the ACT Court website, the next hearings will be:
On 3 July, an Australian Administrative Appeals Tribunal rejected Kim McGrath's access to historical documents relating to Australia's involvement in Indonesia's 1975 invasion of Timor-Leste.
La'o Hamutuk will continue to update this page and we welcome information from all sources.
The Timor-Leste Institute for Development Monitoring and Analysis (La’o Hamutuk)