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

I move:

(1) That the Senate notes that:

(a) a former officer of the Australian Secret Intelligence Service (ASIS), known as Witness K, provided the Government of the Democratic Republic of Timor-Leste with an affidavit that contained information relating to an intelligence operation carried out by ASIS in Timor-Leste;

(b) the Government of Timor-Leste stated in proceedings before the International Court of Justice that Witness K's affidavit 'describes the covert bugging in 2004 of the Timor-Leste Cabinet room on the instructions of the Australian authorities';

(c) the Australian Government informed the International Court of Justice that Witness K had served as an ASIS officer and that his affidavit contained information the disclosure of which would constitute an offence under section 39 of the Intelligence Services Act 2001; and

(d) in the Australian Capital Territory Magistrates Court, on 18 June 2021, Witness K was convicted of an offence under section 39 of the Intelligence Services Act 2001.

(2) That the following matters be referred to the Legal and Constitutional Affairs References Committee for inquiry and report by 21 October 2021:

(a) was the intelligence operation disclosed in Witness K's affidavit an activity authorised by a Minister in accordance with the statute;

(b) was the intelligence operation disclosed in Witness K's affidavit an activity authorised by the Director-General of ASIS in accordance with the statute; and

(c) in respect to the authorisation under paragraph (a) or (b) what legal and policy related due diligence was carried out as part of the authorisation process.

(3) That the Senate calls on the Australian Government, including the Minister for Foreign Affairs, the Director-General of ASIS and the Inspector-General of Intelligence and Security, to cooperate fully with the Legal and Constitutional Affairs References Committee inquiry.

(4) That the Senate further calls on the former Minister for Foreign Affairs, the Honourable Alexander Downer AC, and the former Directors-General of ASIS, Mr David Irvine AO and Mr Nick Warner AO, to cooperate fully with the Legal and Constitutional Affairs References Committee inquiry.

Notice of motion altered on 23 June 2021 pursuant to standing order 77

This is a really important inquiry referral, but before I go to the details of the referral I need to give some background. This is an important matter that goes back decades. It basically relates to Australia trying to get access to oil and gas in waters where typically we would not otherwise have an entitlement. It goes back to negotiations with Indonesia where Australia negotiated a boundary with Indonesia that wasn't on the median line and, in doing so, managed to gain access to additional resources, so we got a much greater economic exclusion zone from which to potentially extract resources.

Timor, which is straddled on both sides by Indonesia, was a Portuguese colony, and the Portuguese were not going to agree to such a term. That created a situation where we had what was called the Timor Gap. At some point in time the Timorese decided, 'Well, we want to become independent.' The Australian government had a different view, at least externally talking about the fact that Timor wasn't able to look after itself and that the best option would be for Indonesia to consume Timor from the Portuguese. We know that back in 1975 there was an invasion. Indonesia invaded East Timor. Sadly, five journalists got killed—the Balibo Five—in that operation, murdered by Indonesian military officers. Hundreds of thousands of Timorese died in a conflict with Indonesia.

Again, I'll just go back and say that the motive for Australia—because Australia was an ally; we were the only ones that wanted to support Indonesia in its annexation of Timor—was that we had our eye on the oil underneath the Timor Sea. We wanted to close the gap on either side of Timor, consistent with the Indonesian treaty that we had, such that we would get access to oil. It didn't happen. In 1999 independence was granted, not formally but through a vote. There were lots of terrible attacks on the Timorese, and the Australian Defence Force got involved and basically assisted INTERFET—and good on them, our armed forces assisting Timor. But of course that worried people back in this building, and in particular it worried people like Mr Alexander Downer, who was the foreign minister at the time. He could see the repercussions of this in that they would have to start negotiations with the Timorese, and the Timorese were not likely to be inclined to adopt the median line, which was the case in international law.

In order to pre-empt the difficulties there, in March 2002 Australia withdrew itself from the jurisdiction of the ICJ in relation to maritime boundaries. We stepped away from our normally very strong position of an international rules based order and withdrew ourselves from the jurisdiction of both the ICJ and the International Tribunal for the Law of the Sea.