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senate vote 2021-08-11#3
Edited by
mackay staff
on
2021-08-20 08:19:53
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Title
Committees — Legal and Constitutional Affairs References Committee; Reference- Committees - Legal and Constitutional Affairs References Committee - Reference
Description
<p class="speaker">Rex Patrick</p><p>I move:</p><p class="italic">(1) That the Senate notes that:</p>- The majority voted against a [motion](https://www.openaustralia.org.au/senate/?id=2021-08-11.160.2) introduced by South Australian Senator [Rex Patrick](https://theyvoteforyou.org.au/people/senate/sa/rex_patrick) (Independent), which means it failed.
- ### Motion text
- > *(1) That the Senate notes that:*
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- >> *(a) a former officer of the Australian Secret Intelligence Service (ASIS), known as Witness K, provided the Government of the Democratic Republic of Timor-Leste with an affidavit that contained information relating to an intelligence operation carried out by ASIS in Timor-Leste;*
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- >> *(b) the Government of Timor-Leste stated in proceedings before the International Court of Justice that Witness K's affidavit 'describes the covert bugging in 2004 of the Timor-Leste Cabinet room on the instructions of the Australian authorities';*
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- >> *(c) the Australian Government informed the International Court of Justice that Witness K had served as an ASIS officer and that his affidavit contained information the disclosure of which would constitute an offence under section 39 of the Intelligence Services Act 2001; and*
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- >> *(d) in the Australian Capital Territory Magistrates Court, on 18 June 2021, Witness K was convicted of an offence under section 39 of the Intelligence Services Act 2001.*
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- > *(2) That the following matters be referred to the Legal and Constitutional Affairs References Committee for inquiry and report by 21 October 2021:*
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- >> *(a) was the intelligence operation disclosed in Witness K's affidavit an activity authorised by a Minister in accordance with the statute;*
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- >> *(b) was the intelligence operation disclosed in Witness K's affidavit an activity authorised by the Director-General of ASIS in accordance with the statute; and*
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- >> *(c) in respect to the authorisation under paragraph (a) or (b) what legal and policy related due diligence was carried out as part of the authorisation process.*
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- > *(3) That the Senate calls on the Australian Government, including the Minister for Foreign Affairs, the Director-General of ASIS and the Inspector-General of Intelligence and Security, to cooperate fully with the Legal and Constitutional Affairs References Committee inquiry.*
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- > *(4) That the Senate further calls on the former Minister for Foreign Affairs, the Honourable Alexander Downer AC, and the former Directors-General of ASIS, Mr David Irvine AO and Mr Nick Warner AO, to cooperate fully with the Legal and Constitutional Affairs References Committee inquiry.*
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- > *Notice of motion altered on 23 June 2021 pursuant to standing order 77*
<p class="italic">(a) a former officer of the Australian Secret Intelligence Service (ASIS), known as Witness K, provided the Government of the Democratic Republic of Timor-Leste with an affidavit that contained information relating to an intelligence operation carried out by ASIS in Timor-Leste;</p><p class="italic">(b) the Government of Timor-Leste stated in proceedings before the International Court of Justice that Witness K's affidavit 'describes the covert bugging in 2004 of the Timor-Leste Cabinet room on the instructions of the Australian authorities';</p><p class="italic">(c) the Australian Government informed the International Court of Justice that Witness K had served as an ASIS officer and that his affidavit contained information the disclosure of which would constitute an offence under section 39 of the Intelligence Services Act 2001; and</p><p class="italic">(d) in the Australian Capital Territory Magistrates Court, on 18 June 2021, Witness K was convicted of an offence under section 39 of the Intelligence Services Act 2001.</p><p class="italic">(2) That the following matters be referred to the Legal and Constitutional Affairs References Committee for inquiry and report by 21 October 2021:</p><p class="italic">(a) was the intelligence operation disclosed in Witness K's affidavit an activity authorised by a Minister in accordance with the statute;</p><p class="italic">(b) was the intelligence operation disclosed in Witness K's affidavit an activity authorised by the Director-General of ASIS in accordance with the statute; and</p><p class="italic">(c) in respect to the authorisation under paragraph (a) or (b) what legal and policy related due diligence was carried out as part of the authorisation process.</p><p class="italic">(3) That the Senate calls on the Australian Government, including the Minister for Foreign Affairs, the Director-General of ASIS and the Inspector-General of Intelligence and Security, to cooperate fully with the Legal and Constitutional Affairs References Committee inquiry.</p><p class="italic">(4) That the Senate further calls on the former Minister for Foreign Affairs, the Honourable Alexander Downer AC, and the former Directors-General of ASIS, Mr David Irvine AO and Mr Nick Warner AO, to cooperate fully with the Legal and Constitutional Affairs References Committee inquiry.</p><p class="italic"> <i>Notice of motion altered on 23 June 2021 pursuant to standing order 77</i></p><p>This is a really important inquiry referral, but before I go to the details of the referral I need to give some background. This is an important matter that goes back decades. It basically relates to Australia trying to get access to oil and gas in waters where typically we would not otherwise have an entitlement. It goes back to negotiations with Indonesia where Australia negotiated a boundary with Indonesia that wasn't on the median line and, in doing so, managed to gain access to additional resources, so we got a much greater economic exclusion zone from which to potentially extract resources.</p><p>Timor, which is straddled on both sides by Indonesia, was a Portuguese colony, and the Portuguese were not going to agree to such a term. That created a situation where we had what was called the Timor Gap. At some point in time the Timorese decided, 'Well, we want to become independent.' The Australian government had a different view, at least externally talking about the fact that Timor wasn't able to look after itself and that the best option would be for Indonesia to consume Timor from the Portuguese. We know that back in 1975 there was an invasion. Indonesia invaded East Timor. Sadly, five journalists got killed—the Balibo Five—in that operation, murdered by Indonesian military officers. Hundreds of thousands of Timorese died in a conflict with Indonesia.</p><p>Again, I'll just go back and say that the motive for Australia—because Australia was an ally; we were the only ones that wanted to support Indonesia in its annexation of Timor—was that we had our eye on the oil underneath the Timor Sea. We wanted to close the gap on either side of Timor, consistent with the Indonesian treaty that we had, such that we would get access to oil. It didn't happen. In 1999 independence was granted, not formally but through a vote. There were lots of terrible attacks on the Timorese, and the Australian Defence Force got involved and basically assisted INTERFET—and good on them, our armed forces assisting Timor. But of course that worried people back in this building, and in particular it worried people like Mr Alexander Downer, who was the foreign minister at the time. He could see the repercussions of this in that they would have to start negotiations with the Timorese, and the Timorese were not likely to be inclined to adopt the median line, which was the case in international law.</p><p>In order to pre-empt the difficulties there, in March 2002 Australia withdrew itself from the jurisdiction of the ICJ in relation to maritime boundaries. We stepped away from our normally very strong position of an international rules based order and withdrew ourselves from the jurisdiction of both the ICJ and the International Tribunal for the Law of the Sea.</p> <p class="speaker">Honourable Senator</p><p>An honourable senator interjecting—</p> <p class="speaker">Rex Patrick</p><p>I'm getting an interjection that Iraq is of a similar view to Australia, but I don't know the full story there. But we withdrew ourselves from the jurisdiction, and then we started to issue exploration licences. This was all in the lead-up to, essentially, what needed to happen, which was a treaty negotiation.</p><p>That leads us to what we now know as the famous bugging of the Timorese cabinet rooms. As the Timorese were sitting down to chat—they were going to negotiate with Australia back in October 2004. The Timorese were discussing exactly what their position was. Unbeknownst to them, ASIS had bugged their cabinet room. Am I revealing something that is outrageous and will harm our relationship with East Timor? The answer is no, because in actual fact anyone who wants to go and look at the memorial of Timor-Leste that was filed in the International Court of Justice—it's very clear that the Timorese are absolutely of that view. They filed in strong belief that ASIS had bugged their cabinet room. We had listened to the bottom line of what the Timorese were willing to do and then we proceeded to close off on the negotiation. Of course, Timor came out the worst for it.</p><p>People might say that countries spy all the time. I accept that we might monitor other countries to make sure that the government is stable, that there's nothing harmful that's going to happen to Australia. I accept that. That's what happens. That's no secret as well. We have an Intelligence Services Act that actually spells out some of the ways our intelligence-gathering operations are to be conducted. It's no secret that we do it. The difference here is that we went into good faith negotiations with Timor-Leste. We shook their hands and said, 'We are going to negotiate with you fairly and try and get a good outcome,' whilst spying on them. At the time Timor was the newest country in the world and one of the most impoverished countries in the world. But you know what? You don't want to stand between Australia and an oil field, no matter how much moral fortitude you have to break down.</p><p>We ended up in a situation where we did the spying. We were taken to the Permanent Court of Arbitration. That was a confidential arbitration. Timor went there and said, 'We have to cancel this treaty. It wasn't negotiated in good faith.' Part way along the way, and the reason we know of those proceedings, the Australian government decided they didn't really want to play fair in the justice system, and they raided the office of the attorney for East Timor, which was Bernard Collaery. They took all their legal documents.</p><p>That then got sent to the International Court of Justice. The International Court of Justice ruled against Australia and ordered Australia to hand back the legal documents of East Timor. That's where we understood what events were taking place in the Permanent Court of Arbitration, because that needed to be disclosed so that people could understand the context of why Australia had raided the offices of Timor-Leste's lawyers.</p><p>We haven't behaved well in any of this. There's no silver lining here. There's nothing good that we can say about Australia's conduct towards East Timor over the last three or four decades. Remember that Timor is a neighbour of ours. Timor will always be a neighbour of ours geographically. It's not going to move. We want them to be our friend. We've got to recognise that in World War II 40,000 Timorese died helping Australian servicemen, and that's the disgraceful thing about what has happened in relation to our attempts to get access to oil.</p><p>That's the backdrop. That's the story. Moving to the proposal around the inquiry, I think this parliament, this Senate, ought to look at the approvals for this particular operation that did take place. You don't have a court hearing down the road at the ACT Supreme Court for a fictitious operation. There's no question that this occurred. We need to understand how it was authorised, and we need to understand that because it is this parliament that sets the rules on how these operations are authorised. It's spelt out in the Intelligence Services Act.</p><p>It would appear—actually, I can't understand it, because I don't know the details. That's the point of the inquiry: we want to look at how that operation was actually authorised, because I can't imagine, if it had been properly considered, that anyone would have ticked off on that. My understanding is that, in the confidential briefs in the courts dealing with the Collaery matter, there is no authorisation in those files. There's no written authorisation, which is what is required by law. We might end up with Bernard Collaery, who's been persecuted for blowing the whistle on this, walking free of the court—I hope he does; the trial should never have taken place in the first place—because, if indeed it was found that he revealed an operation, he would have revealed an unlawful operation. I don't think you can get charged for that.</p><p>We do need to look at this. This is really important. What happened as a result of this indiscretion, this awful, abhorrent conduct of Australia, is that we've put our neighbour offside. I know this because I went up there as part of a delegation and met with a bunch of Timorese people who feel quite annoyed at Australia, and understandably so. The revenue we took from the fields that we had access to as a result of the 2006 CMATS Treaty was about $5 billion. We returned something of the order of $1.4 billion, I think, to the Timorese. This is a robbery of $3½ billion. You can understand what that could have done for the livelihoods of the Timorese—impoverished and struggling.</p><p>I've been up there, and I've seen the result of our actions. I've seen the Chinese building freeways on the southern plateau. I've seen the Chinese building powerlines. I've seen the port that the Chinese are building. If I were Timorese, I would look and say: 'Do you know what? Australia has never helped us, despite our assistance back in World War II, where we helped Australian troops. The gratitude was never repaid.' Part of the problem here is that we simply won't even admit what we've done. That's a truly disturbing set of circumstances. I refer people to the terms of reference. They simply look to say: 'How was this operation authorised? Was it authorised in accordance with law?'</p><p>I know Labor were considering supporting this if it went to the PJCIS. Unfortunately, the PJCIS is a committee established by statute, and the statute prohibits the examination of operations, so we can't send it to the PJCIS—as opposed to this referral, which goes to a committee of the Senate that is established by the Senate itself. It's not fettered in its ability to conduct this inquiry, and there's no reason the inquiry can't be conducted in camera as necessary. Of course, we always like to have these sorts of things dealt with openly, but, if necessary, we could go in camera and get to the bottom of what happened.</p><p>This is a very important issue. It's important to make sure that the Australian government has complied with the commands of the parliament in respect of collecting intelligence overseas, but we also need to understand how we got into this situation where we've done such a terrible thing to Timor-Leste.</p> <p class='motion-notice motion-notice-truncated'>Long debate text truncated.</p>
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