Bernard Collaery, Lawyer for East Timor

Bernard Collaery, Lawyer for East Timor

Updated December 04, 2013 00:10:00

Bernard Collaery whose office and home were raided by ASIO discusses the action and the legal case in The Hague.

Source: Lateline | Duration: 11min 38sec

Topics: oil-and-gas, security-intelligence, law-crime-and-justice, east-timor, australia



Joining us now from Amsterdam is the lawyer for East Timor, whose Canberra home and office were raided by ASIO today, Bernard Collaery. Bernard Collaery has been in the Hague preparing East Timor's case against Australia.

Welcome to Lateline and thanks very much for being with us.


EMMA ALBERICI: So tell us first of all: what were those ASIO agents looking for and what exactly was taken in the raid?

BERNARD COLLAERY: Well, there were many files taken: my correspondence with the East Timor government, the prime minister of East Timor, Xanana Gusm; my correspondence with the learned professors in Cambridge and Oxford, who are assisting and are the leading counsel in the case, Sir Elihu Lauterpacht and Professor Vaughan Lowe, counsel who are of the most eminent status in international law; a variety of other documents and records.

Now, the Attorney-General Brandis suggests that he can separate the two issues. That's a nonsense. This is an attempt to intimidate our witness and to prevent the evidence going forward at the Hague of this conduct.

EMMA ALBERICI: Will that be achieved?

BERNARD COLLAERY: Well, of course it won't. I can't think of anything more crass than what has occurred.

I mean, we go back to 2004, when the present Director-General of ASIO was then the newly-appointed - from Foreign Affairs - Director of the Australian Secret Intelligence Service, when he ordered a team into Timor to conduct work which was well outside the proper functions of ASIS.

Our Australian people don't expect their espionage service to be assisting revenue deliberations and commercial negotiations between partners. East Timor and of course, as your viewers know, and Australia were joint partners in this enterprise. There was a dispute about the revenue split and the responsible Minister, Alexander Downer - responsible also for ASIS, the Secret Intelligence Service - brought about a situation where the internal negotiation deliberations of the East Timorese was bugged. Eavesdropped. Listened.

This had nothing to do with our national security, nothing to do with protecting Australian people. All it's done is to drag our name down in face of the world once again.

EMMA ALBERICI: Just by way of background, if you don't mind, Bernard Collaery, just giving us a little bit of context here for those who aren't familiar with the case: what is the evidence you'll be presenting in the Hague in relation to exactly how Australia went about this spying that you allege on East Timor?

BERNARD COLLAERY: This Director, newly arrived Director, sent a technical team into Dili to liaise with an Australian aid construction team that were effecting renovations in the nation-building idea in East Timor: renovations to rooms that were to be used by the Timorese prime minister and his colleagues.

Eventually, through a series of clandestine missions, bugs were inserted into a hollow wall and, for the actual negotiations that took place, there was a listening post. A transcript was carried across town. And so Mr Downer's negotiators knew what the internal deliberations, as the issues went for over a period of days, knew what the Timorese were thinking and that gives an extraordinary advantage.

Emma, if this had happened in Wall Street, in Collins Street Melbourne, in Bridge Street Sydney, people would go to jail. This is inside trading to get extra revenue. It had nothing to do with protecting our country. It was over what is in relative terms a small amount of gas and oil, very valuable to the Timorese but a minute, minuscule proportion of our national reserves.

But when I come back to that unprecedented activity and we've got someone coming forward to say, "This was not in my proper functions of my service," you've got a very informed comment.

Who ordered that - who ordered that program? Mr Irwin. Who's in charge of ASIO, sent his agents into my office and my home? Mr Irwin. Now, I want Mr Irwin to know this: that we'll see who turns out on the right...

EMMA ALBERICI: You mean David Irvine? Apologies for interrupting.

BERNARD COLLAERY: I mean David Irvine. Yes. I mean David Irvine, currently head of ASIO, who after his newly arrived appointment in ASIS in 2004 ordered this operation. Now, Mr Irvine better consider about who is going to be, in the end of this day, on the right side of the law.

EMMA ALBERICI: How legal and, indeed, how safe is it for ASIS to use Australian aid workers, as you're suggesting, as a cover for spying?

BERNARD COLLAERY: Well, this is what was done, which makes it so horrible. We have Mr Howard in his memoir saying how proud he is, and justifiably so in many respects, for what he's done for East Timor. You've got massive amounts of our wonderful troops who I saw there over the years, wonderful volunteers and non-government people. And you've got this little operation - sinister, little, sneaky operation - besmirching our country's name and helping to keep this country poorer.

If Mr Irvine could go to East Timor and see the constant infant burials, he'd understand how strongly many of us feel about this conduct, most improper conduct, outside the proper functions of ASIS. And we've got a situation where the man who ordered it is now the man who ordered a raid on my home and my office and other good persons.

EMMA ALBERICI: What can you tell us about the witness who's been questioned tonight? We understand he is a former ASIS agent. Was he directly involved in spying on East Timor, the spying that you're alleging?

BERNARD COLLAERY: This witness was the director of all technical operations of ASIS. We're not talking about some disaffected spy: we're talking about a very senior, experienced, decorated officer who formed a proper view, as would any good person, that this was a wrong operation.

This was wrong. It was commercially motivated and it was motivated in a situation where the Government was anxious to give Woodside Petroleum a window of opportunity. I believe that's in our evidence. The case will be mounted in due course and I think Australians should await judgement.

But I want the documents returned from my office and I certainly want Mr Irvine to be closely scrutinised over this affair.

EMMA ALBERICI: We understand the witness has had his passport seized. Were you expecting him to give evidence in the Hague?

BERNARD COLLAERY: If Australia was going to cease its "neither confirm nor deny." Of course, Emma, you should know that the prime minister of East Timor wrote to Julia Gillard in December last year and pointed out this evidence and gave Australia the opportunity to simply tear up this improperly procured treaty. It would have gone away at that stage.

Timor's not joining this bandwagon of intelligence leaks and the rest. This is not part of what's currently going on. This is a well-developed, well-advised, eminently represented legal case against Australia and it will proceed, Emma.

Let me make clear to you and to Senator Brandis: this proceeding will continue. The evidence is available here in the Hague as I speak. Muzzling the oral evidence of the prime witness is so crass. What do you think the tribunal is going to think of it? It's a contemptuous action.

EMMA ALBERICI: Well, isn't it entirely within the rights of the Australian Government to attempt to protect the integrity of its intelligence agencies and the information they collect in the course of their operations?

BERNARD COLLAERY: Indeed, Emma. But I made clear at the start: there's no objective here in beating ASIS over the head. This is a wrong operation, clearly disagreed to within ASIS, which is a significant issue.

And this witness is not providing evidence at large about operations of ASIS. And Australia would know if it had and it hasn't. Nothing else is coming out of this case but that there was an operation in league with aid programs to construct listening devices into the walls of a building in Timor to be used by the new government. What threat to Australia's intelligence integrity does that disclosure give?

What it requires is a full judicial inquiry into the conduct of ASIS in relation to this matter. Does the Australian public support the use of our intelligence service to adjust the revenue in revenue negotiations over this petroleum and gas oilfield? After all, you should ask the Australian Government: just how much money did it personally get as an Australian Government out of this clandestine mission? You'll find most of the money went to the oil company that was most advantaged by it. Will be advantaged by it, I should say.

EMMA ALBERICI: Former Foreign Minister Alexander Downer says these recent spying allegations by East Timor against Australia are, in his words, an "opportunistic" attempt to undermine a treaty between the two countries over these lucrative gas fields in the Timor Sea?

BERNARD COLLAERY: This is a David and Goliath situation. This is a small country that has... It's an infertile country. Marine clay. It grows very little. This gas and oil is its future. This is nothing opportunistic. The investigation and negotiation of this issue should have been underway for some time. Most unfortunately our litigation timetable has come up at the same time as the other spying disclosures but this is totally unrelated to that.

EMMA ALBERICI: Bernard Collaery, we're out of time. Thank you so much.

BERNARD COLLAERY: It's a pleasure.