Australia Ordered to Air Timor Bugging Case in Public After Spy Agency Loses

An Australian tribunal has ordered the government to open up parts of a secretive court fight over whether the nation's spies bugged Timor-Leste's government two decades ago. The administrative review tribunal ruled Friday in favour of Rex Patrick, the former senator turned transparency campaigner, forcing unclassified sections of a three-day hearing in late November to be held in public.

The commonwealth had argued even the supposedly open portions should stay behind closed doors, in case an intelligence official let something slip. Deputy chief solicitor Justin Davidson told a preliminary hearing the stakes were very high and that he was, in his words, not beyond making a mistake. He also suggested unclassified details might be interesting to the public without being in the public interest. Tribunal deputy president Peter Britten-Jones wasn't convinced, writing that the risk of inadvertent disclosure was negligible given how qualified and experienced the witnesses are.

Patrick called the whole affair a farce, saying the 2004 bugging is the most open secret in the history of Australian spying, and joked the bureaucracy was replaying an Austin Powers movie. Only Asis and Dfat think the operation is still a secret, he said, adding it would be funny if it weren't so serious, or if taxpayers weren't footing the bill for the barristers arguing the government's case.

The government's position is a Glomar response: it will neither confirm nor deny that the bugging happened, or that any documents about it exist. Patrick's push began with a request for 2004 cabinet papers held by the National Archives of Australia. Asis contends that even acknowledging the records could undermine national security and Australia's standing with other countries. The documents concern Australia's strategy for the Timor Sea after Timor-Leste broke free from Indonesia in 2002, negotiations that shaped control of the Greater Sunrise gasfields, estimated to be worth more than $50bn.

The operation itself saw Asis operatives plant listening devices in key Timor-Leste government offices in 2004 to learn the country's bottom line and negotiating tactics. Two years later, Australia locked in a 50/50 split of Greater Sunrise, which sits 450km north-west of Darwin and 150km south of Timor-Leste. The bugging surfaced publicly in 2013 when a former Asis officer known as Witness K approached lawyer and former ACT attorney general Bernard Collaery, who was also acting for Timor-Leste. The pair tried to help Timor-Leste's case at The Hague before Collaery's office was raided and Witness K's passport seized.

Timor-Leste withdrew its espionage claims in 2017 as a confidence-building measure, and a new maritime border was signed in 2018. Prosecutions against Collaery were dropped in 2022. In a 2019 affidavit, Timor-Leste president Jose Ramos-Horta said full disclosure of what may or may not have happened in 2004 would benefit the two countries' relationship rather than prejudice it. Patrick has been chasing these records for years, winning a 2021 tribunal fight that stripped redactions from a 2000 cabinet submission on Australia's negotiating strategy. Asis deputy director general Ewan McMillan and Dfat deputy secretary Michelle Chan are set to testify when the full hearing lands in late November.