In 2004, Australian Secret Intelligence Service (ASIS) officers disguised as Australian aid workers planted bugs in Timor-Leste’s cabinet building for Canberra to listen in and keep abreast of the nation’s claim to the oil in the Timor Sea.
News that our government sought to defraud our newest and most desperately poor neighbor by using these measures to gain the upper hand in treaty negotiations rocked the conscience of many Australians, as it did for one particular Australian involved in this scandal: Witness K.
Ensnared by broad counter-terrorism laws, Witness K has plead guilty this week to communicating information about ASIS. His lawyer, Bernard Collaery, will now fight his own charges in the ACT Supreme Court.
But through all this, there’s a fundamental question that hasn’t been answered. Could ASIS really do this — was it legal? And if it could, what laws need to be changed to prevent this from happening again?
Unlocking the truth
The key to getting these answers is the watchdog of our intelligence agencies, the Inspector General of Intelligence and Security (IGIS), Margaret Stone.
The role of the IGIS is fundamental. The office has powers akin to a royal commission. It is the office that is responsible for reassuring the public that, despite the shields of secrecy afforded to our intelligence agencies and our government’s uses of them, the secrecy is not a smokescreen to corruption, illegal and unethical behavior.
As Andrew Wilkie and several other parliamentarians discovered last year, an AFP investigation needs to be sparked by a referral from the IGIS. The IGIS has two grounds with respect to Timor that she can use to investigate the actions of an intelligence agency: legality or propriety.
In October 2018, several parliamentarians wrote to the IGIS asking for an investigation into the bugging incident and a consideration of the criminality of those involved. The IGIS’ response was disturbing. Her letter does not come close to answering the question owed to the Australian public.
In her letter, the IGIS claims that even if the “alleged” operation did take place, those involved are immune from the Criminal Code and therefore would not be found guilty of conspiring to defraud.
However, the IGIS neglected to consider whether those involved are guilty at common law (laws that develop in the court as inherited from our British legal system) — in which they would not have immunity. Several important legal questions are raised by this case with respect to our common law: is it a crime to conspire to defraud a foreign government? Is it a crime to conspire to breach the laws of another country?
These are not questions that the IGIS herself can answer. The IGIS is not a judge and cannot say that a crime has or has not been committed. However, it is her role to undertake a proper assessment of legal merit and refer possible criminal actions to the court to consider.
The importance of questions to the power of our parliamentarians and intelligence agencies cannot be overstated.
What is within the IGIS’ power?
The IGIS claims that if the government required ASIS to conduct an operation, such as the bugging of the Timor cabinet, it is not for the IGIS to scrutinise. This limitation on her power is not set out in law.
ASIS is a resource for government, but it is confined by law in what it can do. The law says that ASIS can conduct operations that “are in the interests of national security, foreign relations and economic wellbeing”.
On this, the IGIS makes an astonishing statement:
It seems to me that a government requirement relating to the negotiation of an international agreement would always be in the interests of Australia’s foreign relations.
From this it would seem that the IGIS does not consider that stealing information during an international treaty negotiation was against international law, a stain on our integrity internationally, or reckless to our relationships with other countries.
It would also seem that she does not consider that the safety of Australian foreign aid workers was compromised by intelligence agents using their identity to defraud the country they were there to help.
Nor did she consider the allegation that ASIS’ resources were diverted from investigating the Bali bombings and counter-terrorism operations in Indonesia to the bugging operation in Timor. Couldn’t this have endangered our national security?
Watching the watchdog
The IGIS not only has the power to investigate whether an operation by an intelligence agency is lawful, but also has the power to investigate in circumstances where the actions raise questions of ethics.
There is no question that, in the conscience of many Australians, the bugging of Timor’s cabinet crossed a line in terms of morality. Yet in her response to parliamentarians, the IGIS seems to deprive herself of jurisdiction for considering a question of morality as it would require her to question the requirements of government. Nothing in the law places such a restriction on the watchdog’s power.
As long as the IGIS sticks to a shallow interpretation of the law and refuses to investigate, we will not know if ASIS and government broke the law and if our law needs to change. Perhaps more disturbingly, Australians cannot be reassured that we have an independent watchdog capable of holding our intelligence agencies to account.
This government is rotten to the core and has been so at least since the 1990s. It is one massive web of lies and deceit.
Of course there’s no independence.
“In her letter, the IGIS claims that even if the “alleged” operation did take place, those involved are immune from the Criminal Code and therefore would not be found guilty of conspiring to defraud.
However, the IGIS neglected to consider whether those involved are guilty at common law (laws that develop in the court as inherited from our British legal system) — in which they would not have immunity.”
Umm, no, sorry Madeleine. See section 1.1 of the Criminal Code –
“1.1 Codification
The only offences against laws of the Commonwealth are those offences created by, or under the authority of, this Code or any other Act.”
No such thing as common law criminal offences any more. Hasn’t been for many years.
Sorry K, but you are incorrect. There is case law that indicates that the Commonwealth DID NOT intend to extinguish the crime of conspiracy to defraud at common law and that it continues to exist concomitantly with the criminal code.
I’d be grateful for a citation for the case to which you refer.
The only case that I know of that has come close to the proposition that you advance is Chung v The Queen [2007] NSWCCA 231, but that was dealing with the proposition of the common law offence of conspiracy to defraud continuing as a part of State law notwithstanding the codification of Commonwealth criminal law.
I can’t find any case that suggests that the common law offence continues as a Commonwealth offence that could have been relied upon by the IGIS (even assuming that the immunity extended to ASIS officers doesn’t apply to the common law offence, which is a big assumption).
No wonder I’ve never heard of IGIS. Work from home, phone it in, claim total deniability and the pay rolls in like clockwork.
I think you will find that the legal analysis offered here is misconceived. There is, to my knowledge, no criminal common law in Australia. Criminal law is codified in all Australian jurisdictions. If it is not in the code, it is not a crime.
However, it does seem pretty clear that what happened involved theft, deception and the corrupt preferential treatment of an Australian corporation, Woodside. At the very least, the theft and deception is very probably a breach of international law. I suspect only Timor L’este can prosecute that case. The benefits that obviously accrued to Woodside with the knowledge of the Commonwealth government constitutes straight out corruption, something probably only a Commonwealth corruption commission can deal with. Oh wait, we don’t have one of those.
Only some Australian jurisdictions have criminal codes such as the Commonwealth, Queensland and the NT. Victoria and NSW, for example, retain common law in addition to their criminal legislation.
I have no legal expertise and can only comment as a citizen.
If our laws enable prosecution of these two men, the laws should be changed.
If the system of oversight does not enable the government or responsible agency to be called to task for ordering the malfeasance or prosecuting the whistle-blowers, the system of oversight should be changed.
If we have a government that misuses the laws rather than changing them, and has not set up an effective system of oversight and seeks to benefit from that rather than remedying it, then the government should be changed.
Well said, Richard…I think we will have to wait until your final six words come true for there to be any movement on your other comments…unfortunately.
Totally agree, it is this sort of underhanded, shabby action that brings politicians into disrepute. The stain won’t go away by shifting the blame.
I am so impatient for that to happen!
I am so impatient for that to happen!
Except that Labor and particularly Dreyfus are equally complicit in this disgraceful saga.