A campaign to uncover any documents relating to whether Australian spies bugged Timor-Leste to gain the upper hand in sensitive oil and gas negotiations will be a little less secret after a critical win by the former senator Rex Patrick.
The politician turned transparency advocate is trying to finally lift the lid on the top-secret mission in ۲۰۰۴ that became a public scandal years later after an ex-spy and a former attorney general attempted to mount a case in The Hague.
But the Australian government stands by its Glomar response – to neither confirm nor deny first that the bugging took place and second that any relevant documents exist.
On Friday, the administrative review tribunal (ART) ruled in Patrick’s favour, forcing the commonwealth to hold unclassified parts of the three-day hearing in late November in public.
Government lawyers argued the whole saga is so sensitive that even sections of the hearing open to the public should remain behind closed doors in case someone accidentally says something they shouldn’t.
Patrick told Guardian Australia the situation was a farce, arguing the bugging scandal is the “most open secret in the history of Australian spying”, maybe even the world.
A ‘very high-stakes’ game
Patrick’s bid to gain further insight into the affair began with a request for cabinet documents from ۲۰۰۴ held by the National Archives of Australia.
The Australian government’s position, along with the responsible agency, the Australian Secret Intelligence Service (Asis), remains that any such documents cannot be publicly confirmed or denied.
Asis contends that alone the records could undermine national security and Australia’s standings with other countries.
The documents would relate to Australia’s strategy for settling how much of the Timor Sea it could maintain control over after Timor-Leste officially gained independence from Indonesia in ۲۰۰۲.
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The negotiations determined the countries’ shared control over the Greater Sunrise gasfields, which hold resources estimated to be worth more than $۵۰bn.
Patrick’s win on Friday means at least some of the government’s defence over why it cannot publicly reveal details of the ۲۰۰۴ bugging – which preceded to a commercially favourable agreement for Australia against the impoverished nation – will be heard in public.
At a preliminary ART hearing last week to rule on whether part of the hearings should remain open, lawyers for the archives argued the matter is so sensitive that even sections of the hearing open to the public should remain behind closed doors in case someone accidentally says something they shouldn’t.
Parts of the hearing will already remain closed so top-secret details can be debated, but the commonwealth had argued the open hearings should also be debated in secret.
The commonwealth unsuccessfully proposed the media and the public should be barred from the open hearings but would be able to view a transcript after careful review by the nation’s foreign intelligence agency.
The deputy chief solicitor, Justin Davidson, argued last Thursday the stakes are “very high” and it would be nearly impossible to mitigate the risk of an intelligence official revealing something they shouldn’t.
“I’m not, frankly, beyond making a mistake,” Davidson said.
Ewan McMillan, an Asis deputy director general, and Michelle Chan, a deputy secretary at the Department of Foreign Affairs and Trade (Dfat), will offer their testimonies in late November when the case is heard in full.
Davidson had argued the unclassified details they share in an open hearing might be “interesting to the public” but not necessarily in the public interest.
On Friday, the ART deputy president Peter Britten-Jones ruled against the commonwealth, noting officials were “highly qualified and experienced” enough not to let national secrets slip in an open forum.
“The risk of an inadvertent disclosure of certificated material is negligible,” he wrote in his ruling.
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Patrick said the whole administrative saga felt like a replay of an Austin Powers movie.
“Only Asis and Dfat think the operation is still a secret,” Patrick said.
“It’d be funny if it wasn’t so serious, or if the taxpayer wasn’t paying for the silk, barristers and lawyers arguing the government’s case.”
A decades-long international affair
Patrick’s latest push to reveal historical documents, or at least the existence of them, comes after years of attempts.
In ۲۰۲۱, the former senator took the archives to the tribunal for heavily redacting a cabinet submission from ۲۰۰۰ outlining Australia’s negotiating strategy for bartering with its impoverished ally on the Timor Sea maritime boundary and a related minute.
The negotiations, which predated the bugging scandal by four years, were critical for Timor-Leste and Australia, because they dictated access to the Greater Sunrise gasfields.
The tribunal later released the document with fewer redactions, which showed cabinet in ۲۰۰۰ was concerned that Timor-Leste’s independence process may disrupt access to the oil and gas reserves in the Timor Sea, because Australia’s prior agreement with Indonesia for a ۵۰/۵۰ revenue split would be void.
The bugging operation occurred in ۲۰۰۴ when Asis operatives planted listening devices in key Timor-Leste government offices to uncover Timor-Leste’s bottom line, its negotiating tactics and the competing views of cabinet members.
In ۲۰۰۶, Australia ended up securing a ۵۰/۵۰ split of the Greater Sunrise fields, positioned ۴۵۰km north-west of Darwin and ۱۵۰km south of Timor-Leste. The deal was a boon for the joint venture of multinationals, led by Woodside, seeking to exploit the Timor Sea.
The bugging operation was later revealed after a former Asis officer, known as Witness K, approached the lawyer and former ACT attorney general Bernard Collaery, who was also acting for Timor-Leste, in ۲۰۱۳ about his knowledge of the operation.
Together, the two attempted to help Timor-Leste’s dispute against the maritime boundary agreement in The Hague, the international permanent court of arbitration, before Collaery’s office was raided and Witness K’s passport seized.
Timor-Leste withdrew its Australian espionage claims in The Hague in ۲۰۱۷ as a “confidence-building measure”, and a new maritime border was signed in ۲۰۱۸.
In a ۲۰۱۹ affidavit for the proceedings against Collaery, which were dropped in ۲۰۲۲, the Timor-Leste president, Jose Ramos-Horta, said he believed the disclosure of further details of the operation would not create any new or additional problems for Australia.
“I believe the relationship between Timor-Leste and Australia would benefit from, rather than be prejudiced by, a full and open disclosure in this of what may or may not have occurred in ۲۰۰۴,” he said.
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