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The Conviction And Sentencing Of Witness K


After tormenting the man for years, it became clear that
the Australian authorities were willing to, for want of a
better word, compromise. The more accurate word would be
compromising. Instead of banishing former spy turned bean
spiller Witness K to a cell and throwing away the key, there
was preference for a softer, more hypocritical mode of
punishment. He would be spared jail time, showing that the
national security state can, when it wishes to sit in
judgment, show some mercy.

For those familiar with the
case, there was nothing merciful in the finding. A
punishment had been levelled for exposing an unlawful
operation against a friendly and fledgling state. In 2004,
Australia’s then foreign minister Alexander Downer
authorised the bugging of the cabinet offices of Timor-Leste
by officers of the Australian Secret Intelligence Services
(ASIS).

The surveillance of Timor-Leste’s
negotiators was an act of economic espionage and fraud,
intended to give the Australians the upper hand in
discussions between the countries over their maritime
boundary. At stake were the oil and gas-rich deposits in the
Timor Sea. Unaware of the surveillance operation, the East
Timorese went ahead to sign a treaty which distinctly
favoured Australia: a 50-50 division of the Greater Sunrise
fields.

Eventually, the truth outed. The operation was
revealed. Former US ambassador to Croatia, Peter Galbraith,
who was the chief negotiator on behalf of the Timor-Leste
government, was
stunned
by Canberra’s commercial rapacity. “The
whole experience of the negotiation from 2000 on and through
this whole episode was to see a country that – yes, in
many ways focuses on the public good – but where corporate
greed was a big part of it, because the Howard and Downer
government, they were shills for the
corporations.”

This is where Witness K’s role
becomes important. As the former head
of technical operations
at the agency, he felt sour by
the prioritising of resources against Timor-Leste over other
security matters. When he became aware of Downer’s
consultancy with the multinational Woodside, who stood to
benefit from a general divvying up of the Greater Sunrise
fields, the red mist descended.

Exercised by the
matter, Witness K made an internal compliant to the
Inspector-General of Intelligence and Security (IGIS) about
the bugging. Showing how such internal complaint mechanisms
only serve to expose the complainant to retribution, Witness
K’s saw his employment terminated. With the consent of the
IGIS, Witness K secured the services of an ASIS-approved
lawyer and former ACT attorney-general, Bernard Collaery.
Collaery did some digging and came to
the conclusion
that the espionage operation was not only
unlawful but probably a conspiracy to defraud the government
of Timor-Leste under section 334 of the Criminal
Code.

Timor-Leste, aggrieved by the bugging incident,
went to the Permanent Court of Arbitration in The Hague
intent on overturning the sham arrangement they had reached
with Canberra. In 2013, aided by Collaery’s efforts, an
invitation was extended to Witness K to give evidence.
Disclosures regarding the surveillance operation were made
in two affidavits. Alarmed, Australia’s attorney-general
George Brandis sprang into action. Witness K’s passport
was cancelled. The domestic intelligence service, ASIO,
raided the homes of both men.

Brandis flirted with
prosecuting both Witness K and Collaery. But it was only in
May 2018, a mere two months after Canberra’s conclusion of
a renegotiated treaty with Timor-Leste, that the
Commonwealth Director of Public Prosecutions formally
brought charges under section
39
of the Intelligence Services Act 2001, which
criminalises the communication of any information or matter
acquired or prepared by or on behalf of ASIS in connection
with its functions or relates to its performance.

Law
academic Spencer Zifcak, in writing
about the matter with some horror, saw an “Alice in
Wonderland quality about all this” (Kafka would have been
more appropriate): the defendants in a criminal case were
the very men who “acted in the national interest by
disclosing alleged unlawful activity by Australia’s
intelligence service”. The prosecutors were the very
individuals who initiated the covert operation.

In
2019, Witness K suggested that he would plead guilty. On
June 17, concealed behind a wall of black panels, he
formally entered a guilty plea in the ACT Magistrates Court.
The next day, magistrate Glenn Theakston concluded
that the former ASIS agent would not face the bars of a
prison and would be subject to a 12-month good behaviour
bond. Adding his bit to the Alice in Wonderland farce,
Theakston claimed that, “It cannot and should not be up to
… former staff members to unilaterally depart from those
security obligations” though he admitted that this “was
not a breach that was going to go hidden for some time.”
That said, it was “express” and “deliberate”. It
compromised the agency’s effectiveness, safety and
security and jeopardised Australia’s relationships and
reputations.

While stern and rigid on the letter of
the law – the proscriptions regarding ASIS were “strict
and absolute” – the magistrate did note that Witness K
had been motivated by considerations of justice, not those
of personal gain. The former agent’s disclosures were part
of an effort to participate in a “rules-based order of
international relations”. (The bitter ironist will detect
how this jars with Canberra’s incessant babble of about
such an order even has it tries to upend it.)

Richard
Maidment QC, representing the Commonwealth Director of
Public Prosecutions, swatted Witness K’s efforts to secure
a non-conviction order. His conviction would serve a lesson
of deterrence. Whether it was “appropriate for him to
breach the obligations, which had been brought to his
attention many times, does not afford him
mitigation.”

The criminals behind the Timor-Leste
operation remain at large. The wrong man was convicted.
Senator for South Australia Rex Patrick released
a sombre statement claiming to be “ashamed to be an
Australian.” Collaery, for his part, has refused to plead
guilty. His fate, largely being determined behind closed
doors, is likely to be a harsher one.

Dr. Binoy
Kampmark was a Commonwealth Scholar at Selwyn College,
Cambridge. He lectures at RMIT University, Melbourne. Email:
bkampmark@gmail.com

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