The former Australian Secret Intelligence Service (ASIS) operative who revealed that Australia was spying on Timor-Leste in 2004 will plead guilty to breaching secrecy laws. However, Witness K’s lawyer, Bernard Collaery, has announced he will the fight charges.

Collaery, who once served as ACT Attorney-General, was appalled by the charges.

“Today is an attack on our absent constitutional guarantee of freedom of expression, it’s an attack on the legal profession, it’s a personal attack on an Australian who can’t speak here today,” Mr Collaery said.

Unlike most democracies, Australia has no express protections for freedom or the press or for whistle-blowers who reveal government wrongdoing.

The bugging

In 2004, ASIS installed listening devices in key offices of the Timor-Leste government. 

Australia and Timor Leste were engaged in negotiations over the distribution of the underwater oil and gas reserves which lay between the two countries.

ASIS bugged the Timor-Leste government offices to access Timor-Leste’s negotiating tactics, their bottom line and the competing views of its cabinet members.

The ASIS operation was conducted in secret.

It would likely have remained a secret had it not been for one ASIS operative, referred to as ‘Witness K’.

Witness K approached the Inspector General of Intelligence and Security (IGIS) in 2012. IGIS allowed Witness K to speak with a lawyer, Bernard Collaery.

Collaery assisted the Timor-Leste government in building a case against Australia.

Raids

Collaery’s home practice was raided by 10 officers in the summer of 2013. The officers presented a warrant, which had largely been redacted. The officers outlined that the raid was being conducted for ‘national security’.

A second raid was conducted at Witness K’s home as he was preparing to give evidence against Australia. Witness K’s passport was seized, which prevented him from flying to The Hague to give evidence.

Witness K and his lawyer are charged

Timor-Leste dropped its case against Australia in 2015. Once the case had been dropped, Witness K and Collaery were charged with conspiring to breach section 39 of Intelligence Services Act 2001 (Cth).

Under section 39, any person who communicates any information that was acquired or prepared by or on behalf of ASIS in connection with its functions or relates to the performance of ASIS or its functions is liable to 10 years imprisonment.

East Timor responds

The Sydney Morning Herald has reported that political leaders in East Timor have called on Australia to drop the prosecutions of Collaery and Witness K.

“If Australia doesn’t show political leadership, moral leadership on this issue, every time we talk to Australian leaders I will wonder if they have a tape recorder in their pocket [or] if my office has been bugged,” Jose Ramos Horta, former Prime Minister and President of East Timor, said.

It is reported that protesters took to the streets of Dili, the capital city of Timor-Leste, in support of calls to have the charges dropped.

Is media freedom under threat in Australia?

The concept of freedom of the press has been a topical issue throughout 2019. Earlier this year, news that the Australian Federal Police had conducted raids on journalists and news outlets caused significant alarm within the media industry.

The Australian Constitution does not explicitly protect press freedom. Australia also has some of the toughest, and least ‘media-friendly’ defamation laws in the world.  

Some commentators believe that establishing an Australian bill of rights could provide a mechanism through which to safeguard media freedom.

Such a view is held by George Williams, a constitutional lawyer, who has outlined that “Australia is the only democracy in the world that does not protect free speech and freedom of the press through a charter or bill of rights”.

Others have called on Prime Minister Scott Morrison to call a parliamentary inquiry into press freedom.

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