Former senator Rex Patrick has won a legal battle in the Administrative Review Tribunal, forcing the Australian government to hold unclassified parts of a hearing in public over allegations that Australian spies bugged Timor-Leste's government offices during oil and gas negotiations in 2004. The three-day hearing is scheduled for late November. The Commonwealth had argued the matter was so sensitive that even the public portions of the proceeding should be held behind closed doors.
The ruling on Friday by ART Deputy President Peter Britten-Jones rejected the government's argument that the risk of an intelligence official accidentally revealing national secrets in an open forum was too high. Britten-Jones wrote that the risk of an inadvertent disclosure of certificated material was 'negligible,' noting the officials were highly qualified and experienced.
The affair stems from a 2004 operation in which the Australian Secret Intelligence Service is alleged to have planted listening devices in Timor-Leste government offices. The mission was intended to uncover Timor-Leste's negotiating position as the two countries bargained over their maritime boundary and access to the Greater Sunrise gasfields, estimated to be worth more than $50 billion. The Australian government maintains its stand of neither confirming nor denying the bugging or the existence of any related documents, a policy known as a Glomar response.
Patrick described the situation as a farce, telling Guardian Australia the bugging scandal was the 'most open secret in the history of Australian spying'. He said the administrative saga felt like an Austin Powers movie. 'Only Asis and Dfat think the operation is still a secret,' he said.
Deputy Chief Solicitor Justin Davidson argued the stakes were 'very high' and it would be nearly impossible to mitigate the risk of an intelligence official revealing something they should not. Ewan McMillan, an ASIS deputy director general, and Michelle Chan, a deputy secretary at the Department of Foreign Affairs and Trade, are scheduled to give evidence in the November hearing.
The scandal became public after a former ASIS officer, known as Witness K, approached lawyer and former ACT attorney general Bernard Collaery in 2013. Timor-Leste withdrew its espionage claims from the Permanent Court of Arbitration in The Hague in 2017 as a confidence-building measure, and a new maritime border was signed in 2018. The president of Timor-Leste, Jose Ramos-Horta, said in a 2019 affidavit that he believed full and open disclosure of what may or may not have occurred in 2004 would benefit, rather than prejudice, the relationship between the two countries.
Analysis
Why This Matters
- Challenges Australia's broad use of national security secrecy to shield historical government actions from public scrutiny
- Grapples with the accountability of intelligence agencies and diplomatic negotiations that favoured Australia over a developing neighbour
- The outcome could set a precedent for access to historical cabinet documents and intelligence operations
Background
Timor-Leste gained independence from Indonesia in 2002, triggering a renegotiation of maritime boundaries with Australia that had previously been agreed with Jakarta. In 2004, Australia's foreign intelligence agency, ASIS, is alleged to have bugged Timor-Leste's cabinet to gain an edge in the talks over the resource-rich Timor Sea. The operation was revealed years later through a whistleblower, leading to significant diplomatic tension and a 2018 treaty that settled the border.
Key Perspectives
- Rex Patrick: Called the secrecy a farce, arguing the bugging is the worst-kept secret in Australian intelligence history and the government is wasting public money defending the case.
- Australian Government (Commonwealth/ASIS/DFAT): Maintains its Glomar response of neither confirming nor denying the allegations is necessary to protect national security and its standing with other countries.
- ART Deputy President Peter Britten-Jones: Ruled against the government, finding the risk of an accidental disclosure by experienced officials in an open hearing was negligible.
What to Watch
- The late November hearing, where ASIS deputy director general Ewan McMillan and DFAT deputy secretary Michelle Chan will give evidence
- Whether the government appeals the ART ruling or seeks to heavily redact the public transcript
- The potential for the hearings to force the declassification of the 2004 cabinet documents that Patrick originally sought
Checked
12 claims in this story checked against 1 source: 12 supported.
Show each claim
- SupportedFormer senator Rex Patrick won an ART ruling requiring unclassified parts of a hearing to be held in public.Australia news | The Guardian: “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.”
- SupportedThe three-day hearing is scheduled for late November.Australia news | The Guardian: “forcing the commonwealth to hold unclassified parts of the three-day hearing in late November in public.”
- SupportedThe Commonwealth argued that even the public parts of the hearing should be held behind closed doors because of the sensitivity of the matter.Australia news | The Guardian: “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.”
- SupportedBritten-Jones said the risk of an inadvertent disclosure of certificated material was “negligible”.Australia news | The Guardian: ““The risk of an inadvertent disclosure of certificated material is negligible,” he wrote in his ruling.”
- SupportedPatrick told Guardian Australia that the bugging scandal was the “most open secret in the history of Australian spying”.Australia news | The Guardian: “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.”
- SupportedPatrick said, “Only Asis and Dfat think the operation is still a secret.”Australia news | The Guardian: ““Only Asis and Dfat think the operation is still a secret,” Patrick said.”
- SupportedPatrick said the administrative saga felt like an Austin Powers movie.Australia news | The Guardian: “Patrick said the whole administrative saga felt like a replay of an Austin Powers movie.”
- SupportedJustin Davidson argued the stakes were “very high” and it would be nearly impossible to mitigate the risk of an intelligence official revealing something they should not.Australia news | The Guardian: “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.”
- SupportedThe 2004 operation involved ASIS operatives planting listening devices in Timor-Leste government offices to uncover Timor-Leste’s negotiating position.Australia news | The Guardian: “The bugging operation occurred in 2004 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.”
- SupportedThe Greater Sunrise gasfields’ resources were estimated to be worth more than $50 billion.Australia news | The Guardian: “The negotiations determined the countries’ shared control over the Greater Sunrise gasfields, which hold resources estimated to be worth more than $50bn.”
- SupportedEwan McMillan and Michelle Chan are scheduled to give evidence in the November hearing.Australia news | The Guardian: “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.”
- SupportedA former ASIS officer known as Witness K approached Bernard Collaery in 2013 about his knowledge of the operation.Australia news | The Guardian: “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 2013 about his knowledge of the operation.”