Rex Patrick (SA, Independent) Share this | Hansard source

I move:

That the Senate—

(a) notes that:

(i) in 2004 Australia, during 'good faith' sea boundary negotiations with Timor-Leste, one of the poorest countries in the world, spied on their negotiating team with an aim to forcing them to surrender most of the revenue from the Greater Sunrise resource project,

(ii) Mr Bernard Collaery and Witness K have been charged for blowing the whistle on the unlawful conduct,

(iii) the spying has blemished Australia's reputation in Timor and undone much of the good will that stemmed from assisting the nation gain independence,

(iv) the alienation of Timor has the potential to damage Australia's diplomatic and national security interests, and

(v) at the 27 May 2021 estimates hearing of the Legal and Constitutional Affairs Legislation Committee, the Commonwealth Director of Public Prosecutions advised that the impact these prosecutions could have on Australia's relationship with Timor was beyond the scope of the matters they included in their public interest considerations; and

(b) calls on:

(i) the Federal Government to recognise that the prosecution of Mr Collaery and Witness K is not in the public interest, and

(ii) the Attorney-General to decline to proceed further with the prosecutions as per section 71 of the Judiciary Act 1903.

I'm very pleased that the Attorney-General has joined us in the chamber to listen to this debate. It is a very important discussion that we're going to have. I'm going to talk about betrayal—betrayal of a country and then betrayal of whistleblowers. Australia's relationship with Timor-Leste has been a long history of betrayal on our side of the ledger. In 1942 the Timorese people paid a terrible price for supporting Australian commandos fighting the Japanese in occupied Timor. Yet, at the end of the war Australia was content to see the Portuguese military regime resume control of Timor, which was left as an impoverished colonial backwater.

In the 1970s Prime Minister Whitlam gave a wink and a nod to President Suharto's plans to invade East Timor. He put good relationships with Jakarta ahead of international law and basic decency. Prime Minister Fraser's government then watched the Indonesians invade and turned a blind eye to reports of the most terrible massacres and atrocities. The governments of Prime Minister Hawke and Prime Minister Keating then embraced Suharto and scrabbled to negotiate a deal with Indonesia to get the lion's share of oil and gas wealth in the Timor Sea. We can all remember foreign minister Gareth Evans clinking champagne glasses with foreign minister Ali Alatas whilst flying in a VIP jet high above the Timor Sea.

We then go to the negotiations that took place after the independence of East Timor. We must remember that John Howard was initially very reluctant to assist in supporting the Timorese in their independence call and, indeed, only after international pressure and public pressure did we send in Australian troops. The East Timorese people triumphed, so did Australian activists such as Sister Susan Connelly, who so long championed for the cause of East Timor. I was up in Timor for the 20th anniversary and other people were honoured as well, including Michele O'Neil from the ACTU for a lot of work that she'd done in this area. Lots and lot of Australians got involved.

Then what happened was we then entered into negotiations over the sea boundary between Timor-Leste and Australia. Importantly—and we need to understand this—we entered into good faith negotiations as was required by international law. But what did we do? We sent ASIS officers disguised as aid workers into the cabinet rooms of the Timor government and bugged the negotiating team. People might think that I'm revealing some sort of secret here but I'm not. We have Bernard Collaery and Witness K appearing in the courts here in the ACT, not because there was some fictitious operation but because there was a real operation. Anyone who wants to take the time, the trouble, to look at the ICJs website and have a look at Timor-Leste's memorial in relation to its proceedings against Australia, when the Australian government broke into the lawyers of Timor-Leste, raided their offices and took all of their legal documents—which ultimately they had to return, with the Hague ordering, an unusual order, that Australia was not to spy on East Timor. So let's not pretend this didn't happen. It was unconscionable. It was not the way Australians expect us to treat almost our nearest neighbour, a neighbour that helped us throughout World War II, a neighbour that is actually quite an important neighbour to us, noting its geographical location. We dudded them. That's what we set out to do. We dudded them. Then, when someone called them out, what did we do? We went after them.

I understand that Witness K may have pleaded guilty to charges in the ACT court today. That's not been confirmed. We saw that at question time. But in the event that that is what has happened, or will happen, we need to understand that witness K didn't go to the media. He went to the Inspector-General of Intelligence and Security and made a complaint. He raised the issue through the appropriate authorities and was then authorised to talk to a lawyer who was approved by IGIS to deal with these sorts of matters; he went to talk to Mr Bernard Collaery. He did everything properly. He called out misconduct and then, when he did it properly, he ended up in the ACT courts.

He has been under extreme pressure. We know that in 2013 the Australian government took his passport from him so that he couldn't travel. This is a gentleman who had served his country. This is a gentleman who was of the highest calibre and who had never presented a problem in terms of anything that he had done, and he had his passport taken from him. Of course he's been fighting that in the AAT, to try to get it back. Those proceedings have been interrupted by the charges that were then laid against witness K. Of course, the prospect of a charge originally sat with former Attorney-General Senator George Brandis, who refused to deal with it. He knew that this was not proper. So it sat on his desk until there was a change of Attorney-General to Christian Porter, who then authorised the prosecution, in a poor lack of judgement.

These are not the only judgements that we call into question with the former Attorney-General, Christian Porter. He approved these prosecutions, he approved the prosecution of David McBride and he approved the prosecution of Richard Boyle. Those were all bad calls. This was the Attorney-General who censored an Auditor-General's report and refused to let the parliament see the conclusions of the Auditor-General's report on the basis of national security. I then had to go to the AAT to get a ruling that said: 'Do you know what? It's not sensitive.' So it has now been made available to the parliament. That's poor judgement, poor judgement, poor judgement. And we have two whistleblowers suffering for this, both witness K and Collaery.

I give credit to Senator Carr for pursuing this at estimates. What is the public interest in this prosecution? These are gentlemen who called out misconduct—an abhorrent breach of good faith with the country of East Timor. I've been to Timor; I've sat and talked with the Timorese and I've had a meeting with the chief of staff of the president. They all consider witness K and Bernard Collaery to be heroes, and they're disgusted with Australia's prosecution of their two heroes. They're disgusted to the point that they're minded to cooperate with countries that we might consider not to be in our interests for them to cooperate with. When I went to the southern plateau of Timor-Leste I could see 32 kilometres of a dual-carriageway freeway that had been built by the Chinese. I saw the power lines that have been built by the Chinese and I saw the ports that are being built by the Chinese. It turns out that the Chinese are a much better friend to East Timor than Australia is, as anyone who looks through the lens of this prosecution would reasonably determine.

Senator Carr asked this question of the CDPP: what is the public interest in prosecuting these two gentlemen? As a supplementary, I asked whether or not our relationship with East Timor had been considered in that public-interest determination. And the answer was that it hadn't been. So we haven't considered this properly. Let's set aside the fact that these two people are heroes; we haven't considered what this is doing to our relationship with Timor-Leste. It is not in the public interest to proceed with this prosecution. It hasn't properly been considered. As I called for in my motion, I think the Attorney-General needs to exercise her powers under section 71 of the Judiciary Act to decline to continue this prosecution.

Now, of course, the answer from the Attorney-General is: 'Well, this power has never been used before.' That's not a reason not to use it properly. It was put in the act because the parliament expects the Attorney-General to have responsibility to the parliament as to prosecution. We give the Attorney-General these powers, and there are times when the Attorney-General should exercise these powers—not simply say, 'The powers have never been used before, so I'm too afraid to use them'. Sure, it might be the fact that it calls for an exceptional set of circumstances. In the case of Richard Boyle, we even got Senator Scarr asking pertinent questions of the CDPP as to whether this was an exceptional case, and getting the answer: 'Yes, it is,' and yet the Attorney-General was still not willing to exercise those powers.

We need to understand: this is not in the public interest. There's a requirement, if you are going to prosecute someone, to establish that there is public interest in doing so. Yet, when Senator Carr has asked the question, and when I asked the question in question time today, no-one could tell the public what that interest is. We've got a public interest that's so secret the public can't even know about it. And that is a problem.

So this government should clearly state what the public interest is in the case of witness K and Collaery—and also in the case of David McBride and that of Richard Boyle. They should clearly state that. I'm calling on the Attorney-General to exercise her power to decline to continue this prosecution, because it serves no public good.