Tag Archives: Timor Leste

Bernard Collaery: The spy case that ignited an Australian secrecy row


For a decade, Bernard Collaery has been at the centre of an extraordinary legal saga in Australia.

It involves one of the country’s biggest diplomatic scandals – a tale of spies, oil and accusations of greed.

An esteemed lawyer, Mr Collaery had been staring down a possible jail sentence for helping to expose allegations of Australian wrongdoing in East Timor.

But last week, the case reached an unexpected conclusion.

“The whole things reads like some sort of bad novel,” says senior barrister Geoffrey Watson.

Bugging operation

It all began in 2004, when Australia allegedly bugged the government offices of East Timor, one of its most impoverished neighbours.

It did so to gain the upper hand in negotiations over lucrative oil and gas reserves – and it walked away with a sweet deal.

“This is the most appalling and terrible thing that Australia has ever done… to another nation,” said Mr Watson, a director of Australia’s Centre for Public Integrity.

“And it is the most venal of all sins because we did it for money,” he told the BBC.

When East Timor found out in 2012 what Australia had done, it was furious.

Mr Collaery and his client – an Australian spy known only as Witness K – were the ones who told East Timor, prosecutors later alleged.

The tiny country went to Permanent Court of Arbitration at The Hague in the Netherlands to pressure Australia into reopening negotiations.

But as The Hague court prepared to hear the case, Australian police controversially raided Mr Collaery’s home and legal practice in 2013.

A brief prepared by Mr Collaery – who was acting for East Timor in their case – was seized, despite it being subject to legal privilege.

“Seeing any investigation of a lawyer for pursuing a case is absolutely extraordinary,” says Australian constitutional law expert Rebecca Ananian-Welsh.







Australia: Bernard Collaery’s leaking charges over East Timor operation dropped on Mark Dreyfus’ orders


Attorney-General Mark Dreyfus has ordered the Commonwealth to drop the prosecution of lawyer Bernard Collaery, four years after he was charged with leaking classified information about Australia’s alleged spying operation in East Timor.

Collaery, a former ACT attorney-general, was facing the prospect of jail and his trial date had finally been set for October 24 in the ACT Supreme Court after years of delays.

“Having regard to our national security, our national interest and the proper administration of justice today, today I have determined that this prosecution should end,” Dreyfus announced at a press conference in Sydney.

Describing the Collaery case as “exceptional”, Dreyfus said his decision was informed by the government’s commitment to its “relationship with our neighbours”.

“All prosecutions involve a balancing of interests. The balance of interests can change over time. This is such a case,” Dreyfus said.

He said the decision did not represent a move away from the longstanding practice of protecting government secrets.

“Governments must protect secrets, and this government remains steadfast in our commitment to keep Australians safe by keeping secrets out of the wrong hands. The long-standing practice of government has been to neither confirm nor deny claims made about intelligence matters and I will strictly adhere to that practice,” he said.

Dreyfus discontinued the prosecution under section 71 of the Judiciary Act, overturning the authorisation that was given by in 2018 by then-attorney-general Christian Porter for the Commonwealth Director of Public Prosecutions to pursue charges against Collaery and Witness K.

Collarey was charged under the National Security Information Act with five counts of leaking classified information for allegedly helping his client, an ex-spy known only as Witness K, to reveal information about Australia’s bugging operation of East Timor’s government during commercial negotiations in 2004 to carve up the oil and gas resources in the Timor Sea.








Statement by Bernard Collaery:

Australia/Timor Leste: Whistleblowing and the high cost of speaking up


Three men are presently before Australian courts charged with revealing information about the inner-workings of government agencies or the conduct of our armed forces. Such prosecutions say plenty about the lack of protections afforded to whistleblowers – yet what is the price for our democracy? Why a change of government must signal a new approach for Australia’s treatment of whistleblowers.

Right now, three courageous Australians are on trial for telling the truth – for speaking up about wrongdoing perpetrated by our government. The names of these three have become synonymous with whistleblowing in this country. And yet at the time of writing, they remain on trial. For telling the truth.

There are several ways that these undemocratic prosecutions of whistleblowers in Australia might come to an end. It might be that by the time you read this, the new Attorney-General, Mark Dreyfus QC, has dropped the prosecutions of Bernard Collaery, David McBride and Richard Boyle. That would be a commendable act. But whatever happens in the weeks and months ahead, a close examination of how we got to this juncture, and what lies ahead, is overdue, for the prosecution of three whistleblowers is a symptom of a wider affliction, rather than the disease itself.

The new Albanese government must act swiftly to treat Australia’s secrecy syndrome. That starts with dropping the three prosecutions, but by no means does it end there.

Let’s start with the prosecutions. Collaery is a distinguished Canberra lawyer and former ACT Attorney-General. Together with his client, Witness K, Collaery was charged in 2018 with secrecy offences. The backdrop to the case is Australia’s espionage against Timor-Leste in the early 2000s, when Australian intelligence officers allegedly bugged the Timor cabinet office to gain an upper-hand in energy negotiations with the newly-independent nation. Witness K pleaded guilty and was given a suspended sentence; Collaery, charged with a greater number of offences (mostly relating to disclosures to ABCjournalists), maintains his innocence.

Collaery has endured four years of interlocutory litigation, predominantly over how much secrecy should shroud his ultimate trial. A trial date has been set for this October, although with several appeals pending, that seems unlikely. The case has to date involved almost a hundred court hearings and over a dozen judgments. Every point has been contested by the Attorney-General of the prior government, including, in one particularly Pythonesque moment, going to the High Court to keep secret a judgment that said no to a secret trial. That judgment, from the ACT Court of Appeal last October, refusing a secret trial, still remains unpublished (although a judgment summary noted “a very real risk of damage to public confidence in the administration of justice” if the trial was held in secret, and the importance of open justice in deterring “political prosecutions”).





Australia: Collaery Trial Date Set: Federal Government Continues to Prosecute Whistleblowers


The ACT Supreme Court last week set the date for the trial of Canberra barrister Bernard Collaery for 24 October this year.

ACT Justice David Mossop did this despite the wishes of Collaery and his lawyer Philip Boulton SC, who consider it too early to set a date due to ongoing court battles with the federal attorney general regarding the secrecy measures being applied to the case.

Former ACT attorney general Collaery is facing five charges of conspiring to release classified information, contrary to section 39 of the Intelligence Services Act 2001 (Cth). The offence carried a maximum of 2 years imprisonment at the time that it applies to the lawyer’s case.

Collaery is charged with exposing the Howard government’s 2004 bugging of the Timor Leste cabinet offices. He was made privy to the details, after the Inspector General of Intelligence and Security advised the ASIS officer in charge of the operation, Witness K, to seek his legal advice in 2008.

ASIO raided both men’s Canberra premises in 2013, as K was about to testify at the Permanent Court of Arbitration in the Hague about the incident on behalf of Timor Leste, with Collaery providing legal representation. Yet, then attorney general George Brandis chose not to pursue their cases.

Indeed, it wasn’t until after Christian Porter took over the role of the nation’s chief lawmaker, that the prosecution of the pair was greenlighted in mid-2018, with the new AG applying never-before-used secrecy powers to ensure certain parts of the case would remain behind closed doors.

Kafkaesque is mild

The announcement of the trial date comes four years after the charges were laid, and just a week after the ACT Supreme Court refused an application from Collaery to access a number of documents from various government agencies that detail circumstances surrounding the Timor Leste bugging.












Australia/Timor Leste: Government successfully blocks Bernard Collaery from obtaining documents on legality of spy mission


The federal government has successfully blocked Bernard Collaery from obtaining key documents about the lawfulness of the notorious spy operation against Timor-Leste, arguing that questions about its legality are irrelevant.

Collaery, a lawyer and one-time attorney general of the Australian Capital Territory, is awaiting trial on charges of conspiring to reveal classified information while working with his client, the former spy Witness K, in relation to a 2004 operation to bug the offices of Timor-Leste’s government during oil and gas negotiations.

To aid his defence, Collaery attempted to subpoena documents from the Australian Secret Intelligence Service, the Office of National Intelligence, the Department of Prime Minister and Cabinet and the Department of Foreign Affairs and Trade which he hoped would show whether the mission was conducted unlawfully and outside of the proper functions of Asis.

He argued he would be entitled to be acquitted if a jury had any reasonable doubt about the lawfulness of Asis’s activities, making the documents relevant to his case.

But the commonwealth resisted the subpoenas, saying the material and questions about the legality of Asis’s mission – the existence of which it has steadfastly refused to confirm or deny – were irrelevant to the case.

On Monday, Justice David Mossop agreed with the federal government and set aside Collaery’s subpoenas.

He said the burden on the prosecution was only to prove that an offence had been committed by Collaery’s alleged disclosure of protected Asis information. That “does not extend to a requirement to prove compliance with every provision of the [Intelligence Services] Act relevant to the activity of Asis which gives rise to the information or matter disclosed”, Mossop said.








Australia: Bernard Collaery’s trial needs to remain open


THE LATEST DISPORT by the Federal Government to further erode the rule of law was confirmed in court this week, with the actions of lawyers representing Attorney-General Michaelia Cash causing Justice David Mossop to describe the continued obfuscation as a “perpetual vortex”.

I have written several times on the trial of former A.C.T. Attorney-General Bernard Collaery, who has been charged over his alleged role in exposing the bugging of Timor-Lester and the current Government’s willingness to go to extraordinary lengths in order to prosecute him.

The latest in this Machiavellian piece of governance was performed on the floor of the A.C.T. Supreme Court on Wednesday when lawyers for the Attorney-General told the court they wanted to introduce updated evidence that would show there would be severe national security issues posed if the trial went ahead in the public sphere.

Despite the appeals court last month finding that there was minimal risk posed to national security in their decision to allow much of the Collaery trial to be adjudicated in the open, lawyers argued that the situation has altered dramatically in the proceeding 20 months that it has taken for Collaery’s appeal to be heard and resolved. The fact this length of time has been entirely the Government’s own doing was unsurprisingly left off the remit.

It wants to produce new evidence that only the court, not Collaery, can see. This will entail the security risks that they believe to be prevalent if the trial is to remain in the open. It also, in one of the more sinister moves, wants to appoint a special counsel – paid for by the taxpayer – to view these documents on Collaery’s behalf.

This Kafkaesque move shows a shocking lack of judgement from a government that is mired in issues of transparency and secrecy.







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Australia: ‘Win for transparency’: ACT court rules in favour of Bernard Collaery’s challenge to secrecy order


Lawyer Bernard Collaery is being prosecuted for allegedly helping his then client, Witness K, reveal aspects of an alleged secret bugging operation against East Timor.

Sensitive details surrounding Australia’s alleged bugging operation of East Timor will be heard in public after the ACT Court of Appeal ruled that requiring large parts of the case against Bernard Collaery to be heard behind closed doors created a real risk of damaging public confidence in the legal system.

The unanimous judgment has been hailed as a “win for transparency” because it overturns a previous ruling made under national security laws which would have required large parts of the hearings into his alleged efforts to expose a secret Australian operation to bug East Timor’s government to be held behind closed doors.

Mr Collaery has always accepted that some sensitive information should not be publicly disclosed but wanted the disclosure of six specific matters during the trial.

The former lawyer for an ex-spy known as Witness K challenged an order made by the ACT Supreme Court last year to accept former attorney-general Christian Porter’s application to invoke the National Security Information Act, which governs how courts should handle sensitive information. The act requires the court to give “greatest weight” to the Attorney-General’s views about the national security implications of a case, which has resulted in large portions of the hearings being held in secret.

The ACT Supreme Court had ruled the public disclosure of certain information would have posed a real risk of undermining national security.

In their judgment handed down on Wednesday, the three judges of the ACT Court of Appeal accepted that the disclosure would involve a “risk” to national security but said they doubted it would be a “significant risk”.

“On the other hand, there was a very real risk of damage to public confidence in the administration of justice if the evidence could not be publicly disclosed,” the judgment summary said.

“The Court emphasises that the open hearing of criminal trials was important because it deterred political prosecutions, allowed the public to scrutinise the actions of prosecutors, and permitted the public to properly assess the conduct of the accused person.”







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Timor Leste/USA: ‘You know we are going to kill you’: Ex-priest’s chilling threat to lawyer


Richard Daschbach has support in high places in East Timor.

A defrocked Catholic priest accused of systematic child abuse in East Timor has been reported to police for allegedly threatening to kill the human rights lawyer representing the victims.

The claim against American-born Richard Daschbach was made in a statement released on Tuesday night by law firm JUS Juridico Social Consultoria.

“At around 11.15am [on Tuesday] inside the Oecusse District Court, the accused of the case of 14 counts of sexual abuse against children, one count of child pornography and domestic violence, ex-priest Mr Richard Daschbach threatened to kill Ms Barbara Oliveira, partner of JU,S Juridico Social,” the firm said in the statement.

“This threat was made inside the court building, directly witnessed by one member of the national police. While Ms Oliveira was sitting and working in the waiting area of the court waiting for the conclusion of the hearing, Mr Daschbach left the defendant waiting room to go to the toilet.

“Upon his return, Mr Daschbach walked across the open area and stood right in front of her while she remained sitting, at a distance of approximately 1.5m to 2m, and clearly uttered in English, ‘Barbara, you know we are going to kill you’. After that, he went back to the defendant room.”

The incident was reported to police and because Oliveira is a Brazilian and Portuguese national, their embassies in Dili have also been informed about the alleged death threat, the statement said.

Miguel Faria, one of the lawyers defending the sacked priest, told Portuguese news agency Lusa his team “were not aware of the situation”.

Daschbach, 84, is facing charges of child pornography, domestic violence and 14 counts of alleged abuse of girls under 14 at a shelter he operated in the country between 1991 and 2018.

The Sydney Morning Herald and The Age last month revealed a letter sent in 2018 by Daschbach to the Rome headquarters of the Society of the Divine Word, the church’s largest missionary order, in which he agreed to comply with any measures it imposed, saying “the victims could be anyone from about 2012 back to 1991”. The church expelled him soon afterwards.

His high-profile criminal trial in mostly Catholic East Timor has been held before three judges in the remote territory of Oecusse.




https://www.rtp.pt/noticias/mundo/organizacao-que-defende-vitimas-de-abuso-diz-ter-sido-alvo-de-ameacas-em-timor-leste_n1335072 (PORTUGUES)

https://www.journaldemontreal.com/2021/06/10/un-ex-pretre-americain-en-proces-au-timor-pour-abus-sexuels-sur-des-enfants (FRANCAIS)

Australia/Timor Leste: Bernard Collaery’s appeal hearing to challenge secret trial closed to the public


Bernard Collaery is being prosecuted for allegedly helping his client reveal aspects of the secret bugging operation against East Timor.

A two-day court hearing into an appeal brought by Witness K’s former lawyer Bernard Collaery challenging a secrecy order is being held behind closed doors after his lawyer didn’t challenge holding the appeal in secret.

The barrister and former ACT attorney-general is facing the prospect of jail for allegedly helping his client, the ex-spy known as Witness K, reveal information about Australia’s bugging operation of East Timor’s government during commercial negotiations to carve up the oil and gas resources in the Timor Sea.

Mr Collaery is challenging a ruling to hold his trial largely in secret under national security laws.

The hearing in the ACT Court of Appeal was open to the public for about three minutes on Monday morning. ACT Chief Justice Helen Murrell noted there was an application by Mr Collaery’s legal team to lead further evidence and then asked if there was any challenge to the hearing being held in secret.

Barrister Bret Walker, acting for Mr Collaery, conceded it was regrettable the court had to be closed but he was not challenging it, as it was required by the National Security Information Act.

“We do regret the appearance of that, but we can’t see any other way around it,” Mr Walker said.

The decision means most or all of the two-day hearing will be held in secret. A ruling on Mr Collaery’s challenge likely won’t be handed down for months. If it doesn’t go his way, Mr Collaery could then appeal to the High Court, which would further delay his trial.

Mr Collaery is challenging an order made by the ACT Supreme Court last year to accept former attorney-general Christian Porter’s application to invoke the NSI Act, which governs how courts should handle sensitive information. The NSI Act requires the court to give “greatest weight” to the Attorney-General’s views about the national security implications of a case, which has resulted in large portions of the hearings being held in secret.

Human Rights Law Centre senior lawyer Kieran Pender said the secrecy surrounding the prosecution of Mr Collaery was “wrong and undemocratic”.

“We should be protecting whistleblowers, not punishing them. Shrouding this case in secrecy only exacerbates the injustice being done,” he said.









https://intisari.grid.id/read/032698538/seret-nama-mantan-jaksa-agung-kasus-penyadapan-pemerintah-timor-leste-oleh-australia-demi-keruk-tambang-minyak-disebut-mengejek-keadilan-ternyata-ini-pemicunya (INDONESIAN)


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Some of the terrific supporters of justice for Bernard Collaery and Witness K at today’s rally outside the ACT Supreme Court. Telling the truth and exposing government wrongdoing should not be a crime!

Drop the Whistleblower Prosecutions Facebook 17/05/21

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Australia/Timor Leste: ‘Entirely undemocratic’: Lawyer Bernard Collaery to challenge secrecy orders


Lawyer Bernard Collaery and Witness K allegedly revealed Australia bugged East Timor’s cabinet during tense oil and gas negotiations.

Lawyers acting for Bernard Collaery will next week challenge a court order requiring large parts of his trial to be held in secret as the long-running case continues into his alleged efforts to expose a secret Australian operation to bug East Timor’s government.

The ACT Court of Appeal will hold a two-day hearing on Monday and Tuesday into an order made under national security laws to hold the trial largely behind closed doors.

Mr Collaery, the former lawyer for an ex-spy known as Witness K, is challenging an order made by the ACT Supreme Court last year to accept former attorney-general Christian Porter’s application to invoke the National Security Information Act, which governs how courts should handle sensitive information. The NSI Act requires the court to give “greatest weight” to the Attorney-General’s views about the national security implications of a case, which has resulted in large portions of the hearings being held in secret.

Mr Collaery, a barrister and former ACT attorney-general, is facing the prospect of jail for allegedly helping his client reveal information about Australia’s bugging operation of East Timor’s government during commercial negotiations to carve up the oil and gas resources in the Timor Sea.

Witness K, a former intelligence officer for the Australian Secret Intelligence Service, has indicated he will plead guilty to breaching secrecy laws by revealing Australia’s spying on East Timor, but Mr Collaery is continuing to fight the charges against him. The Witness K case is being held up by disagreements over whether he can access his affidavit that was used by East Timor in international proceedings in the Hague, which his lawyers argue need to be before the court for his sentencing.

Mr Collaery is charged with offences relating to the alleged disclosure of information to both the East Timor government and the Australian media.

After East Timor commenced legal proceedings in the International Court of Justice and Permanent Court of Arbitration, the two nations signed a revised energy treaty in 2018 dividing the Greater Sunrise oil and gas fields.

Human Rights Law Centre senior lawyer Kieran Pender said there was no public interest in prosecuting Mr Collaery and Witness K.