World Press Freedom Day 2019 : Australia’s prosecution of Witness K and his lawyer

by Davey Heller 16th April, 2019

World Press Freedom Day on May 3rd is an opportunity to highlight the plight of Australia’s most well know targeted journalist Julian Assange, but it is also a day to consider the plight of other journalists and whistleblowers in Australia. published an article on the imprisonment of Iranian Kurdish refugee and journalist, Behrouz Boochani, imprisoned by Australia on Manus island. This is the second article in our series on some of these cases in Australia in the lead up to May 3rd.

The prosecution of Witness K and Bernard Collaery

The case of “Witness K” involves a trial being held in secret, a lawyer and ex-spy charged under “War on Terror” legislation, covert bugging operations by the Australian Government of its poorest neighbour Timor Leste and a sixty year old pursuit by the Australian ruling class to profit from the tens of billions of dollars worth of oil in the Timor Sea. The Australian Government is determined that the public remain in the dark over these matters. Those who allegedly leaked information are punished so that other government offices understand the cost of telling the world about the criminal acts of the Australian Government. It is a part of the global trend of using “National Security” legislation to criminalise whistle blowing to keep the international working class in the dark as to the predatory nature of their capitalist governments.

Bernard Colleary

In line with the secrecy surrounding this case the prosecution of the former Australian intelligence officer from ASIS, who can only legally be called “Witness K” and his lawyer Bernard Collaery under Intelligences Services Act, 2001, only became public in June 2018 when Independent MP Andrew Wilkie revealed it under Parliamentary privilege.

A short time earlier they had been charged over allegations they had conspired to to communicate secret information to Timor-Leste’s (East Timor’s) government sometime between May 2008 and May 2013.

A sixty year grab for oil

The information that the two men are alleged to have shared was the fact that under a guise of an aid operation to renovate the cabinet room of the Timor-Leste Government in 2004, ASIS had installed listening devices. This was then used by the Australian Government to get an unfair advantage in the negotiations with the then newly independent  and desperately poor nation over how to divide the oil in the Timor Sea.

To understand how sensitive this information was and how it cuts at vital strategic and commercial interests of the Australian ruling class, one has to see this action within the context of a sixty year grab for oil.

Australia’s largest oil and gas producing company, Woodside Petroleum, was first granted a licence to explore for oil and gas in the Timor Sea in 1963. The massive profits to be reaped from what was found drove the Australian Whitlam Labor Government’s decision in 1975 to give the green light to Indonesia’s invasion of the newly independent former Portuguese colony. On the eve of the invasion, the Australian Ambassador to Indonesia cabled Canberra “this Department might well have an interest in closing the present gap in the agreed seabed border and this could be much more readily negotiated with Indonesia … than with Portugal or independent Portuguese Timor.”.

The same motivations led to Australia becoming the only country in the world to officially recognise Indonesian sovereignty over Timor-Leste and to turn a blind eye and to deny the brutal reality of an occupation that led to an estimated 90,000 to 200,000 deaths by violence and famine. In 1989 the Indonesian Government signed a Treaty with Australia.

It is worth noting that the Australian government’s machinations over East Timor have involved suppressing the truth and a war on journalists and the public right to know from the start. As Indonesian troops flooded into East Timor in 1975 they killed six Australian Journalist, Roger East and the Balibo 5, to prevent reporting of the invasion. The Australian Government knew right away they were executed in cold blood but maintained for decades the fiction they were “killed in cross fire”.

Australia sent troops into Timor in 1999, supposedly as an act of humanitarian intervention, but in reality to continue to be able to project its power and influence in the region and ensure access over the resources of the Timor Sea.

When Timor became independent in 2002, the Australian Government was still nervous about losing its generous access to resources to its North and immediately announced it would no longer submit to the arbitration process of the United Nations Convention on the Law of the Sea (UNCLOS).

In this context the Howard Government gave the order to bug the cabinet room of the Timorese Government. Witness K was the Technical Officer in charge of the bugging operation. The bugging operation enabled the Australians to have access to the Timorese discussions to drive a hard bargain with their poor neighbour. The key issue in the negotiations was where the boundary should be drawn in the Timor Sea for right to exploit oil and gas. Under international convention, the boundary should be drawn halfway between Australia and East Timor but Australia wanted to maintain the generous deal it had got in return for supporting the Suharto Government where the boundary lay on the continental shelf instead, which left the majority of resources in Australia’s hands. Timor obviously wanted the boundary at the halfway mark. The 2004 bugged negotiations, which resulted in the CMAT 2006 Treaty, left the issue of the border unsettled and left Australia with access to and the ability to profit from the majority of the resources in the Timor Sea.

The skullduggery of the Australian Government would have remained secret forever except for the alleged actions of Witness K and Bernard Colleary in informing the government of Timor-Leste. The exact circumstances of how this arose are still secret. What we do know is that Witness K raised his concerns about the 2004 bugging operation within ASIS formerly and was at some stage later dismissed. We also know that he engaged Bernard Colleary as his lawyer. Bernard as well as representing Witness K, also represented the Timor-Leste Government, as his law firm specialises in maritime law.

Whatever occurred by late 2011, the East Timorese Government, at that time led by Xanana Gusmao, learnt of the bugging operation and raised it with the then Labor Government of Julia Gillard. Gillard denied the bugging even occurred. In 2012 Timor launched a case in the Permanent Court of Arbitration to overturn the 2006 Treaty on the basis of the unfair advantage that Australia had due the bugging of its cabinet room. This is when the allegations of bugging first became public knowledge.

In 2013, on the eve of Witness K travelling to the Hague to give evidence of the bugging operation at the Permanent Court of Arbitration, ASIO raided his home and seized his passport. At the same time Colleary’s law office was raided and documents related to Timor’s case were seized. This was a blatant and futile effort to stop more information about the bugging operation coming out and to obstruct Timor’s efforts to hold Australia accountable.

Fast forward five years to 2018 and the Australian Government finally signed a Treaty with Timor-Leste that agreed to locate the permanent boundary in the Timor Sea at the halfway mark between the two nations. The ongoing  embarrassment caused by Timor-Leste’s international legal case against Australia over the bugging was highlighting the hypocrisy of the Australian Government’s confected outrage over China’s unwillingness to submit to international arbitration of disputed areas of the South China Sea. This dispute had become a focal point for U.S. efforts to curtail the rising power of its Chinese capitalist rival and Australia as a junior imperialist partner was playing its role. Given Australia’s 2002 withdrawal from UNCLOS arbitration and its blatant criminal activity in regards to the Timorese, there was pressure to settle.

Then only months after the signing of this new and final treaty in October 2018, the prosecution against Bernard Colleary and Witness K was finally launched. The prosecution could only be launched with approval from the highest level of Government, specifically by the Liberal Government Attorney General Christian Porter. The Federal ALP has supported by prosecution by staying silent. Exploitation of Timor’s oil and attempts to cover up the machinations to obtain it has been a bipartisan project amongst the ruling class.

Once the Treaty on a permanent sea boundary had been signed, it was time for the government to ensure no more details about the bugging operation would leak and those who allegedly leaked the information were punished.

The war on whistleblowers, journalism and a free press

In a further demonstration as to the draconian nature of the case, the Federal Government is prosecuting the case under another piece of “War on Terror” legislation, National Security Act 2004, which mean the trial can largely be held in secret. It even allows for court proceedings to occur even when the defendant and their legal representatives are excluded from the court. In the first hearings in the ACT Magistrates court of the case, the Court accepted the Government’s arguments that it was legal and necessary to run the trial largely in secret.

Whilst the Intelligence Services Act and the National Security Act were brought under the rubric of the phoney “War on Terror”, there has been a recent flurry of draconian legislation introduced in Australia under the equally phoney rubric of “Foreign Interference”. These laws are part of the Australian Governments work both to provide the ideological justification for participation in the U.S. war drive against China and to build the police state architecture necessary to suppress opposition to the growing threat of conflict.

Whilst Witness K and Bernard Colleary face a maximum of two years in jail, this has now been increased to a ten year maximum. Journalists and others can now face prosecution for merely possessing classified documents without even publishing them. Penalties for public servants who leak information has been increased. This is combined with the Federal Government increasing its legal powers to access electronic devices and access metadata records. The clear intent of increased penalties for leaking and receiving classified documents combined with increased surveillance powers is to create a climate where journalists and public servants are intimidated from revealing the crimes of governments to the working class.

It is also in this context that the Australian Government has continued its nine year long support and complicity in the U.S. persecution of Julian Assange, the Australian Wikileaks publisher. Wikileaks was created to get around just such state efforts to prevent transparency. It established a way for whistle blowers to anonymously pass on evidence of state crimes and other information which could then be shared with the public. Assange now faces extradition to the U.S. for Wikileaks publishing of a massive trove of information on U.S. war crimes in Afghanistan and Iraq and the machinations of the State Department. Both the ALP and the Liberal Party have refused to demand the U.K. Government allow Assange to return to Australia free from the risk of extradition to the U.S. because they ultimately support the efforts to criminalise both whistle-blowing and journalism on government crimes.

Join the efforts to unite the international working class in a defence of whistleblowers and journalists and a free press and take part in the May 3rd, World Free Press Day of Action.

Davey Heller

Davey Heller is a Trotskyist from Melbourne and long-time campaigner for Left-wing causes including anti-war, refugee rights, environmental protests and workers' struggles. He is a former secondary teacher who studied history at Monash University and currently works in the environmental field. You can follow him on Twitter at @socialist_davey

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