The Collaery Case and Australia's National Interests

Panel Presentation to Gilbert & Tobin Seminar, 'Lessons from the Collaery Case', Sydney, 6 October 2022

It is difficult to conceive of a set of government decisions purportedly aimed at protecting Australia’s national interests that have been more comprehensively destructive of them than those made by successive Coalition governments in the Timor Leste case. Everything about the initial espionage operation, if reported at all accurately, and the conduct of the criminal prosecutions involving Bernard Collaery and Witness K which followed it, served not to enhance but to shred our reputation and status as a decent, principled – and competent – country.

May I make clear at the outset that everything I say today about what may have happened in Dili in 2004 is based on the assumption that the ‘Reported Facts’ on which I was asked to comment as a witness were basically true. They are not based on any actual knowledge on my part – and certainly not anything I may have learned from my participation in the court proceedings. Australia has neither denied nor confirmed the allegation that a bugging operation occurred and, with the prosecution being dropped, the chance of any clarification through the courts of what may actually have happened has been lost. The claims remain allegations.

That said, given the widespread reports that some kind of operation occurred, combined with the widespread perception that criminal prosecutions are not normally initiated against deluded fantasists, the outcome for our foreign relations is likely to be the same whether the official neither-confirm-nor-deny stance is maintained or not.

What is required from intelligence agencies, senior officials and their ministers in sensitive national security matters is, above all, balanced judgment. And that seems to have gone spectacularly missing not only in the conduct of the operation in Dili – if, again the Reported Facts are at all true – but in the decisions made in 2018 to initiate the prosecution of both Witness K and Bernard Collaery, and, over the course of the next four years, to run the court proceedings in almost total secrecy. The decision of Attorney-General Mark Dreyfus in July this year to terminate the Collaery case, one of the first made by incoming Albanese Government, was the right thing to do from every moral and rational perspective.

In commenting about what went wrong under the previous governments, and what we can learn from its mistakes, I speak as someone who learned the hard way, having had ministerial responsibility over nearly a decade, as Attorney-General and later Foreign Minister, for both ASIO and ASIS, and having been badly burned politically in my first year in each job for taking too much of their doom-saying at face value – most painfully in the Combe-Ivanov affair in 1983, but also going along with attempts by ASIS in 1988 to get court injunctions against imminent press disclosures of some of their more embarrassing activities.

Both these agencies, and the intelligence community more generally, have become more sophisticated in recent decades – as their roles have changed to focus more on counter-terrorism, cyber-security, and perhaps more insidious, and less comic-strip, forms of foreign influence. But all of them continue to need serious adult supervision.

The alleged espionage operation. No intelligence operation should ever be considered unless the value to the national interest of the intelligence being pursued outweighs the damage likely to be done to our international relations and security interests if that operation is ever publicly revealed. No bugging operation of the kind alleged here could meet that criterion: it would involve taking maximum risk for minimum reward.

Assuming, again, the Reported Facts to be true, the rationale for whatever operation may have been mounted in Dili in 2004 had nothing to do with national security. It would have been economic: to understand the East Timorese internal position in the negotiations between Australia and Timor Leste for a petroleum and gas revenue sharing agreement. Any action would have been primarily for the benefit of Australian private commercial interests, but also – I acknowledge – have public interest consequences to the extent that government royalty and other tax returns, and the value of the nation’s exports, might be enhanced. Australia did also have a larger geopolitical interest in the negotiations to the extent that they embraced not only economic returns but also the long-fraught issue of international boundary definition – but there was hardly any mystery about the Timorese position in that respect.

In the unsentimental world of international competition a prima facie case can certainly be made for securing national economic advantage in any way one can. But the cost-benefit calculation runs wholly the other way in cases where you have a friendly country posing no threat of any kind, with a power imbalance all Australia’s way, and any revelation bound to do Australia significant reputational harm internationally.

That potential harm was certainly abundantly clear after 2012, when Timor Leste, believing that spying had occurred, initiated proceedings to terminate the treaty in the Permanent Court of Arbitration (PCA), with this damage further compounded by the order in the International Court of Justice in 2014 prohibiting the use in that Arbitration Court case of material seized by ASIO in its raid on Bernard Collaery’s office.

Overall, any Timor bugging operation along the lines alleged would rank as just as stupidly wrong-headed as the tapping of private telephones of Indonesian President Susilo Bambang Yudhoyono and his wife in 2013, which – I know from direct conversations with his senior ministers in Jakarta at the time – caused great pain to a government which was strongly pro-Australian, in a country which was and remains an unthreatening, open and democratic society, one in which information flows freely and for all but the most sensitive of issues is available for the asking to a friendly neighbour like Australia.

The operational agencies will always be tempted to mount technical intelligence-gathering operations simply because they can. It is the role of ministers not to encourage them, but to keep them under control.

The decision to prosecute. As a former Attorney-General and Foreign Minister I well understand the argument that absolute institutional discipline must be maintained in relation to our intelligence agencies, and its corollary that this requires that legal action be taken against any serving officer or security-cleared associate believed to have disclosed any secret information at all about the operation of any of them. But every case is context-dependent, which is why prosecutorial discretion always exists in criminal cases, and why the Attorney-General of the day should be prepared to exercise it when appropriate.

There are multiple grounds why that discretion should have been exercised here, by the Director of Public Prosecutions in the first instance or by the Attorney-General overriding him, in relation to both Witness K and Bernard Collaery:

• the clearly evident motivation of Collaery, like Witness K, was not to aid an enemy or adversary but to call out alleged official activity which they saw as ill-advised and unconscionable;
• the limited nature of the public allegations in question, which did not name or otherwise put at risk any individual intelligence officers, and did not describe any operational methodology different from that universally assumed to be standard practice for intelligence agencies;
• the very long delay involved in initiating the prosecutions – six years after the disclosures first entered the public domain, and fourteen after the actual events;
• the certainty that the prosecutions would give new life to the reputational damage already suffered internationally by Australia in the Permanent Court of Arbitration and International Court of Justice cases; and
• the even greater certainty that they would again tear open the old bilateral wounds between Timor Leste and Australia, which had been partially healed by the passage of time, and the later negotiation of new treaty arrangements more acceptable to Dili.

George Brandis, as Attorney-General from 2013-17, was acutely aware of all these realities and, wisely if not very bravely, while not completely killing the prospect of criminal prosecutions, at least chose the path of inaction in pursuing them. It was Christian Porter, and his successor Michaela Cash, who chose to ignore them and set the trial proceedings in motion. They should have had more sense.

The conduct of the trial proceedings in almost total secrecy. In insisting that every phase of the Collaery trial, in particular, should be conducted in the most extreme secrecy, the Morrison Government utterly failed to understand or accept the centrality of open justice to the credibility, both domestically and internationally, of our judicial system. In acting as a witness in the proceedings contesting that secrecy, I fully understood and accepted that no-one could seriously object to particular evidence relating to intelligence matters being kept from the public domain.

But keeping effectively almost the entire case secret was indefensible – and quite apart from anything else, exposed the Government to credible claims that it was being employed, in the words of Justice Mossop ‘as a cover to protect from disclosure in a trial material which is merely politically embarrassing to a government or to avoid legitimate scrutiny of its conduct’. (While His Honour was evidently not persuaded that anything so vulgar or untoward had actually happening in the Collaery case, most objective observers have found these words rather acutely perceptive…)

The key point that I sought to make as a witness in the case, drawing on my own decades of experience in international affairs – not just as Foreign Minister – was that the government and its intelligence community witnesses were wildly over-inflating the risks to national security interests that would be posed by more open hearings.

All of my oral evidence was in closed court, and two of my three affidavits were secret, so I cannot talk about those aspects of the case here. But in my open affidavit, in the part where I assumed the Reported Facts to be true rather than false, I argued that:

• assuming an operation took place, and assuming that any disclosures in court did not extend to really sensitive intelligence matters, such as the identification of individual personnel or non-routine surveillance methodology, no new damage would be done to Australia’s national security or international relations, beyond the reputational damage which had already occurred from the allegations becoming public, and which would be seriously reinforced if the trial (which should never have commenced) continued;
• in my experience, disclosure that a sensitive but essentially routine surveillance operation has taken place, in the kind of cases where a government is not widely seen to be misusing its intelligence-gathering capability would not normally generate particularly adverse consequences for a state so caught out. (I gave the example of having to cope, as Foreign Minister in 1995, with press disclosure of a successful bugging operation by ASIO a decade earlier in the course of construction of the new Chinese Embassy in Canberra. I feared the worst, but there was in fact negligible reaction from the Chinese Government or any other state: it was a familiar game which everyone played. And China did reportedly return the compliment in 2013 with its own initially successful intrusion into the ASIO construction site – with the Australian government’s only apparent response being to reconfigure its building plans);
• if the impact of embarrassing evidence in this kind of case being canvassed in open court is to ensure that more intelligent cost-benefit calculations are made in the future – weighing the likely returns of any such operation against the risk of its later revelation – that would be to enhance, not diminish, our national security and international relations interests.

These arguments fell on largely deaf ears at this stage of the court proceedings. But they clearly weighed with the new Attorney-General in his decision to bring to an end Bernard Collaery’s protracted nightmare. It is never easy for any government to reverse course in a high profile issue, and the Morrison Government seemed to find it impossible. But here as elsewhere, the oldest lesson of all is that if you have dug a hole for yourself, and it is getting bigger, the wisest course is to stop digging.