Court forces public hearing on Timor bugging
A tribunal ruling rejects the Australian government's argument that a 2004 intelligence operation must remain secret, allowing some details to be aired in court.
By Matthew Brooks ·
The Australian government argued on Friday that a 2004 spying operation was so sensitive that even the public portions of a court hearing about it should be held behind closed doors. An administrative review tribunal rejected that position. Deputy president Peter Britten-Jones ruled that the Commonwealth must hold unclassified parts of the hearings in public.
The dispute centers on whether Australian spies bugged offices in Timor-Leste to gain an advantage in oil and gas negotiations. Former senator Rex Patrick is leading the push to uncover documents related to the mission. The government has maintained a Glomar response for years, refusing to confirm or deny that the bugging happened or that relevant records exist. Patrick called the situation a farce, describing the scandal as the most open secret in Australian spying history.
Patrick’s legal battle began with a request for cabinet documents from 2004 held by the National Archives of Australia. The Australian Secret Intelligence Service, known as Asis, and the government argue that confirming the existence of these records could undermine national security and diplomatic relations. The documents relate to Australia’s strategy for controlling the Timor Sea after Timor-Leste gained independence from Indonesia in 2002. These negotiations determined shared control over the Greater Sunrise gasfields, which hold resources estimated at more than 50 billion dollars.
Government lawyers claimed the stakes are very high. Deputy chief solicitor Justin Davidson argued last Thursday that it is nearly impossible to prevent an intelligence official from accidentally revealing classified information in an open forum. Davidson said he was not beyond making a mistake. The Commonwealth proposed that the media and public be barred from the open hearings but allowed to view a transcript after review by the foreign intelligence agency. The tribunal rejected this idea, stating that officials are qualified enough to avoid letting secrets slip.
The hearings will take place in late November. Asis deputy director general Ewan McMillan and Department of Foreign Affairs and Trade deputy secretary Michelle Chan will offer their testimonies. Parts of the hearing will remain closed to discuss top-secret details. Patrick said the administrative process feels like a replay of an Austin Powers movie. He noted that only Asis and the Department of Foreign Affairs and Trade still treat the operation as a secret. He added that it would be funny if the taxpayer were not paying for the barristers and lawyers arguing the government’s case.
Patrick’s current effort follows years of attempts to reveal historical documents. In 2021, he took the archives to the tribunal over heavy redactions of a 2000 cabinet submission. That document outlined Australia’s negotiating strategy for the Timor Sea boundary. The tribunal later released the document with fewer redactions, showing cabinet concern that Timor-Leste’s independence might disrupt access to oil and gas reserves. The 2004 bugging operation aimed to uncover Timor-Leste’s bottom line and negotiating tactics.
Australia secured a 50/50 split of the Greater Sunrise fields in 2006. The fields are located 450 kilometers northwest of Darwin and 150 kilometers south of Timor-Leste. The deal benefited a joint venture of multinationals led by Woodside. The bugging operation became public knowledge in 2013 when a former Asis officer, known as Witness K, approached lawyer Bernard Collaery. Collaery was acting for Timor-Leste at the time. The two attempted to use the information in a dispute at the international permanent court of arbitration in The Hague.
Collaery’s office was raided and Witness K’s passport was seized during the process. Timor-Leste withdrew its espionage claims in 2017 as a confidence-building measure. A new maritime border was signed in 2018. In a 2019 affidavit, Timor-Leste president Jose Ramos-Horta said he believed a full disclosure of what occurred in 2004 would benefit the relationship between the two countries. He stated that disclosure would not create new problems for Australia.
