Secrets, Spies and Trials: National security vs the public's right to know | Four Corners

well my dear friends this is a difficult day of course for myself and my family and all of my good friends in the nation's capital a momentous legal case is unfolding this trial will enable the Australian people to indicate the moral and political values that they expect from their political leaders the man at the center of it a lawyer and former AC T Attorney General could soon be facing a jail sentence usually traditionally it's simply not in the public interest to prosecute this kind of thing there is that I think overall perception that this sort of litigation is a payback firstly secondly that the secrecy provisions are perceived to be a cover-up I fear we're living in very dangerous times here in Australia there is clearly a reduction in civil liberties I would characterize it as being in a pre police state burner calorie in a former spy known as witness K helped expose one of Australia's most controversial intelligence operations in which Australian secret agents bugged the government of one of our closest allies it was a very ugly it's not worthy of Australia's rich democratic country it's not what we knew about Australia you know fair-minded people a fair-minded society I think it is about the most despicable piece of trickery that I know of that Australia has committed fifteen years later that secret operation is about to have its sequel in what could be one of the most secretive trials in Australian history it's a trial not of those who had the plan to bug this building but of the two men accused of revealing it happened tonight on four corners the extraordinary steps the Australian government is taking to punish these men and to keep them silent this is a very very determined bush to hide dirty political linner that's what this is all about dirty political linen under the guise now of national security imperatives [Music] [Music] in 2004 in Canberra as winter crept up on the capital one of the top surveillance experts with Australia's Foreign Intelligence Service basis was called into a secret meeting the agent was ordered to undertake a mission that would change his life forever and become one of the most infamous spying operations in Australian history he was told to bug the office of the prime minister of one of our closest neighbors the new nation of timor-leste formerly known as East Timor well by now it's been well reported that in 2004 the Australian Secret Intelligence Service bugged the east team Roos in order to give Australia an unfair advantage during the treaty negotiations that were going on at that time it was done under the cover of an aide project the Australian Government was offering assistance to East Timor on one of the ways that were offered assistance was to refurbish the Prime Minister's residence in Timor and his offices and that was on a Renault side program the bugging of the Prime Minister's office in timor-leste occurred at a very difficult time for the government on this day our fledgling government they just come out of the u.s. mandate to just got independence after decades of struggle timor-leste had gained its hard-fought independence from Indonesia in 2002 its new leaders faced the massive task of rebuilding the country Timo had just come out of a genocide they had lost 31 percent of their population during the Indonesian occupation of Timor that's the largest loss of life relative to population since the Holocaust Timor was a destroyed country at this stage I saw with my own eyes the destruction of Timor and I have seen the Australian Government's assessment of the infrastructure destruction and it varies from 20 percent in some areas to the capital Dilley being a hundred percent destruction the whole thing was destroyed all the public buildings and the services for the people sister Susan calmly had been working on aid projects in timor-leste since the 1990s the poverty and malnutrition really was huge I met people who really were lucky if they had a meal a day the best hope for this poor country were tens of billions of dollars worth of oil and gas that lay beneath the floor of the Timor Sea East Timor was really desperate for a good deal with Australia in April 2004 negotiations between the two countries began in Dili to resolve who owned the vast oil and gas fields already there was bad blood after Australia had withdrawn from the International Court of Justices jurisdiction resolving maritime boundaries by withdrawing from the mandatory jurisdiction of the International Court of Justice Australia in effect forced East Timor to negotiate withdrawing from the jurisdiction composite original ICJ here you have you know only Donald Trump does these things you wouldn't expect previously any other country doing that in addition to blocking a judicial resolution of our my time dispute at the first round of talks timor-leste's Prime Minister Mario Kart Irie came out swinging for us a 20 year negotiation is not an option the molestin lose 1 million dollars a day due to the Australia unlawful exploitation of resources in the disputed area the Timor Leste it can not be the private for its rights or territory because of a crime it was so annoyed with Alkatiri target it was a tough negotiator a man of principles and so he really annoyed John Howard annoy a lives on the donor this is my style I think they've made a very big mistake thinking that the best way to handle this negotiation is trying to shame Australia is mounting abuse on our country accusing us of being bullying and rich and so on when you consider all we've done for his team or we wanted to say that this is really important to East Timor we wanted to put it in their face we didn't want to have negotiations that lasted 30 years Peter Galbraith a former US ambassador was Timor Leste's lead negotiator in the talks I was very concerned about Australian intercepts of cell phones including cell phones when they weren't being used but we're still on and I was very concerned about intercepts of emails but I did not imagine one that they would break into a building and bug it or that they would have access to the building to bug it it was during a six-month halt in negotiations that a team of Isis agents arrived in Dili to install covert listening devices inside Timor Leste's Palace of government I understand that the bugs replaced him the conversations were then beamed via a line-of-sight microwave transmission to a listening post which is about 500 meters away they're listening post was in a floating hotel in Dili Harbor called the central maritime hotel that listening-posts collected the transmissions and then they were then Korean across town to the Australian Embassy so that our negotiating team would have had real-time access to the internal deliberations of the Tuileries side successive Australian governments have refused to confirm or deny that this spying operation took place an operation like this would need to have been authorized by the national security committee of cabinet ordered in turn by the responsible minister the Foreign Minister Alexander Downer and then the direct order to witness Kay would come from the director-general of Asus David Ervine the greatest benefit that Australia would have achieved from the bugging is to know what East Timor is bottom line is what we were prepared to settle for because once you know that then you never have to offer anything more your entire negotiating strategy is to go below the bottom line the war is over Australia helped restore in Tamura freedom peace we are negotiating in good faith as mature adults and then they bug our offices to try to obtain advantages in the negotiations when I think back now that here we were talking to schools running concerts sending out messages in newsletters saying give us money give us money give us money all the time at the same time our government is plotting and implementing a fraud against these very same people because Timor is really important to a lot of Australians because we know we sold them out in 1975 we haven't paid the second world war debt and here we are in our name in my name government's foreign ministers various ones were would stoop so low as to spy on their negotiators under the guise of a taxpayer-funded refurbishment or it is it is despicable that's all I can say after two years of intense negotiations a deal was signed in 2006 advocates for timor-leste say the bugging swung the final deal in Australia's favour this is a oil and gas field in between Australia and Timor which is located 150 kilometres from Timor Leste shore and 400 kilometers from Australia's shore and yet because of its industrial espionage the deal came out as 50/50 now no drawing of any maritime boundary anywhere in the world between two countries would result in that sort of outcome as if Australia didn't have enough already enough health enough money trillions of dollars economy and still wanted you know us to accept their continental shelf claims and give to them all of Greater sunrise although the Timor Sea the bugging operation is likely to have remained a secret except for one man he was the head of technical operations for Asus and the team leader of the dilly bugging operation his identity is top secret he's now known as witness cake this is not a person who goes as it were to the tabloids or the scandal sheets and then tries to cover up with a fig leaf of public interest this is the very opposite of all of that Brett Walker is the former independent monitor of Australia's national security legislation and has previously acted for witness Kay confining myself for the public record it's clear that witness Kay's the kind of person in whose favour there will be lots able to be said about a long honorable career that making him a person who's rendered great service to this country who is now being prosecuted as if he has committed a great disservice to the country witness k retired from aces after a long career in late 2006 two years later he took a grievance about being sidelined and passed over for promotion to the Inspector General of intelligence and security [Music] he was given clearance to consult a lawyer the lawyer he chose was Bernhard Clary Canberra is a very small place Burma Clary is the former attorney general of the AC T but Asus is always known about culeros commitment to the right of self-determination of the people of East Timor burn a calorie has worked with the team Murray's in legal cases since the 1980s and has also been given clearance to represent members of the Australian intelligence community Bernhard Colleary is not just some two-bit lawyer from up the street you know just on the make he has been the Attorney General of the Australian Capital Territory he has held high position he is highly respected and not only in Canberra but across Australia and internationally the team recently hold him in high regard burn a calorie met with witness Kay in 2008 to discuss his grievance calorie later made a written statement to the Senate about what witness Kate's hold him witnessed Kay alleged she had been constructively dismissed from Asus as a result of a new culture within Asus the evidence indicates that the change sought included an operation he had been ordered to execute in Dili Timor Leste burn a calorie is now restricted in what he can say because of his upcoming trial but in 2015 he said witness Kay was appalled by the bugging operation I recall in my instructions a mention being made of the infant mortality rate so this was morally based grievance not on lost promotion or the end of a career which in my view was a very legitimate grievance but as a grievance based on the immorality of that conduct prime minister xanana gusmão found out about the bugging and in late 2012 told Australian Prime Minister Julia Gillard that he knew about the operation and wanted the treaty invalidated they said let that where and she said no we didn't I continue to insist do you think she didn't know that this operation took place I believe so Shannon is incredibly intelligent he studied the issues he had been studying it from day one he was looking for an opportunity so Australia handed over to Shannon the angled excuse the window of opportunity that Shannon was looking to challenge the Timor Sea Treaty [Music] in April 2013 timor-leste launched the case in the permanent Court of Arbitration to overturn the treaty with burn a calorie as one of their lawyers it was the Australian government who revealed that the case was based on allegations of espionage his Timor is going to arbitration and accusing Australia of past espionage in the process well that's the allegation that in the course of negotiating this treaty back in 2004 Australian officials were aware of confidential information belonging to the tea no reason to go sailing and we can't comment further on the matter Timor Leste now had the upper hand armed with knowledge of the bugging they could make the case that the treaty should be torn up due to negotiations held in bad faith you are negotiating and rules say you don't do these things you are caught negotiations finish burn a calorie headed to The Hague in December 2013 to prepare for the hearings back in Australia the authorities made an extraordinary move officers from a CEO and the AFP was sent in to raid calories home and office while he was out of the country at about 29 and 9:30 in the morning there are about 10 to 15 officers at the door they told me as soon as I open the door that they had a warrant there were parts that were blacked out on it which I couldn't read Lars denied a copy due to national security reasons agents seized confidential legal documents including a copy of an affidavit by witness Kay about the bugging in a raid on witness Kay's home his passport was seized preventing him from traveling to The Hague I was horrified you have two parties engaged in litigation and one party decides that it will raid the solicitor's office of the other party seize its documents and prevent its witness from coming to the court it's the sort of behavior which in an Australian Court would be regarded as the most serious contempt which would almost certainly lead to a lengthy jail term you might be surprised to know that by large parties are not allowed to ransack the files of the other party in any litigation including international litigation Burnet Colleary was furious about the raids this is an attempt to intimidate our witness and to prevent the evidence going forward at the hague of this conduct nothing else is coming out of this case but that there was an operation in league with aid programs to construct listening devices into the walls of a building in Timor to be used by the new government what threat to Australia's intelligence integrity does that disclosure give sender Brandis Thank You mr. president I see in the Senate the day after the raids the attorney-general George Brandis dismissed culeros claims last night rather wild and injudicious claims were made by mr. Cleary but the purpose for which the search warrants were issued was to somehow impede or subvert the arbitration those claims are wrong the search warrants were issued on the advice and at the request of a co to protect Australia's national security astonished by the raids and the seizure of its legal documents from calories office timor-leste rushed to the International Court of Justice accusing Australia of breaching lawyer-client privilege and violating its rights and sovereignty under international law that has caused deep offense and shock in my country it is that that brings us here to this great Hall of Justice to seek justice from the world court over the seized documents and they done Australia had clandestinely been intercepting the internal discussions of the timorous government by means of bugging devices in a stunning decision the International Court ruled that Australia could not access the documents it had confiscated from Colleary by 15 votes to one Australia shall not interfere in any way in communications between timor-leste and its legal advisers it was seriously humiliating and an indication of what each of the judges who voted in favor of imposing this orders on Australia thought about Australia's conduct after a year Australia agreed to hand back Timor Leste's legal documents and Timor dropped its case about the raids we'll never know how the ICJ would have decided that case because these Timor was satisfied ultimately with the return that was made to it of documents by Australia some very powerful arguments were put on behalf of East Timor concerning the inappropriateness of that conduct by Australia in March last year the two countries finally resolved their long-running dispute signing a new agreement over a permanent maritime boundary this treaty reflects a new chapter in Australia Timor Leste relations congratulations to all involved in this process we thought that when we withdraw the complaint against Australia from the inter support of justice that Australia would also likewise not only negotiate with us but would forget about the witness gay and burn our polarity but Australian authorities had not forgotten about the spy and his lawyer I was cooking a meal here when evening and two police officers came to the door I thought was relation to another case I was pursuing at the time and I got served with a summons and I found that the understatement to say a surprise it was I was dismayed to be quite frank this was a summons alleging that in providing a professional legal advice I had become an accused criminal 14 years after the spying operation and four and a half years after their homes were raided burner calorie and witness Kei were facing prosecution I let my dinner go cold I went upstairs and I had to apply the medicine I had told a generation of clients accused of criminal activity to myself to focus on their betterment to be positive and not to create worrying their families and the rest and I said to myself I've got to apply my own medicine I am going to face almost certainly a trial in this matter on that same evening witness Kay had also been issued with a summons I just knew probably how he would be feeling the officers told me they just serve similar process on my client and I I I felt as unimaginably unprecedent unprecedentedly such a duty and obligation to that person the plan to charge witness K and calori remains secret until Andrew Wooky disclosed it under parliamentary privilege deputy speaker Australia bugged these team all's cabinet rooms during the 2004 bilateral negotiations over the Timor Sea treaty the operation was illegal unscrupulous and remains unresolved now Deputy Speaker I can explain today that the scandal has just gotten a whole lot worse because the Turnbull government has now moved to prosecute the intelligence officer who blew the whistle on the secret operation along with his legal counsel Bernhard clearing Hilarion witness caper accused of breaching the Criminal Code and the intelligence services act by conspiring to communicate secret information to the government of timor-leste burner calorie was also accused of disclosing restricted information in media interviews with v ABC journalists [Music] it's intimidation intimidation evades us agents intimidation of journalists against matters of this kind it's an act of vengeance directed at the people who chose to expose Australia's appalling behavior in intelligence cases like this the prosecution has to have the consent of the Attorney General it's only the second time that consent has been granted under the intelligence services Act the public interest of any prosecution has to be considered in matters of this type there's a requirement have the consent of the Attorney General but the decision to prosecute was an independent decision made by the Commonwealth Director of Public Prosecutions based on their consideration of the evidence the law and their prosecution policy and guidelines it'll be nice to know why the Attorney General Kristian Porter thought it was in the public interest to proceed on these matters against witness K & burna Cleary I mean if it was right and proper to proceed they would have proceeded the point at which they had this material which was several years ago the Commonwealth DPP first sought consent to prosecute back in September 2015 when George Brandis was Attorney General for over two years he considered advice from two different seedy PPS and the Solicitor General Brandis left office in December 2017 to become High Commissioner to London he never provided consent to prosecute well I imagine the former attorney senator Brandis that didn't find this a straightforward case to say yes to if I may say so as a matter of my opinion I'm not quite sure why why it wasn't a straightforward case to say no to but that's just my opinion but on any view of it that's a very long time for something to be sitting on an attorney's desk I imagine it was not for what of thinking about it that that time elapsed within six months of becoming attorney general Christian Porter consented to a prosecution something his predecessor didn't do in the two years and three months after he first got advice from the DPP four corners understands that the former Attorney General George Brandis had misgivings about approving a prosecution and that there were divisions amongst the national security agencies about the wisdom of prosecuting burn a calorie and witness cave the suggestion that the former attorney general had misgivings about pursuing witness Kay and burner Cleary it rings true to me because there was no sensible reason for pursuing it at the time agencies will be making their case that it's necessary to protect our methods and the confidentiality of our people to prevent other potential whistleblowers like witness Kay from coming forward and disclosing information classified information about Isis activities that's what they want to prevent former intelligence analyst Allen DuPont worked as an adviser for Josie Ramos Horta for 10 years but he has little sympathy for witness kay you can't really allow people to make individual judgments about the morality or efficacy of their of their work when they voluntarily joined and then take it upon themselves to disclose the information that is privileged to them because I've been working there so you know I tend to understand where the intelligence agents are coming from me and the need to protect these confidentiality is because if you have everybody going out and saying well I don't agree with something and disclosing privileged information then you don't have an intelligence service just weeks ago Bernhard Colleary made his way into the AC T Magistrates Court little did his supporters know that this case was about to take a shock Turner well my dear friends this is a difficult day of course from myself and my family and all of my good friends Bernanke Larry had just heard in court that he's former client and co-accused witness kay was intending to plead guilty I have great empathy for witness kay and the struggle of witness Kay has gone through both spiritually mentally and physically I can understand exactly the position after six long years witness Kay has found the position to be witness Kay intends to plead guilty but only if the prosecution accepts that his sole breach was to prepare an affidavit for the arbitration hearings in The Hague that is for an onlooker a fascinating sharp focus to bring to an allegation of offending by releasing material supposedly that should not be released because the focus is on it being presented for the administration of justice this is a very very determined push to hide dirty political linen that's what this is all about dirty political linen under the guise now of national security imperatives is that decent burner calorie is vowing to fight on but the public may never know the full story of the evidence heard against him thank you this could be in a strange way one of the most secretive trials in Australian history there are some obvious national security matters where protection is required but where where is the national security elsewhere in the proceedings and because that's being shrouded in secrecy it becomes much more secretive than a terrorist trial or something of that nature Clary's trial will be conducted under the national security information act brought in after the 9/11 terrorist attacks the Act allows certain evidence to be heard in secret as a judge Anthony weally presided over Australia's longest terrorism trial heard under these laws I don't think they were designed for this sort of case at all I don't think they're designed for cases involving whistleblowers journalists what the law or the lawyers for whistleblowers I know for the life of me I can't say that this legislation is is really appropriate except in a very minor way where we're dealing with what a really public interest issues the Attorney General has issued a secret certificate which will likely see key details of the bugging operation suppressed in court but ultimately it's up to the judge or magistrate to rule what's made public there is a legitimate public interest in knowing what is being tried and what are the arguments that are being deployed for and against the conviction of a person in this position and that's particularly so where the whole case concerns I suppose adore alleged concern that there has been misbehavior maladministration or worse by Australian authorities every Australian I imagine is interested to know that Australian authorities will be held to account that's difficult to do if a trial at the pointy end will be held secretly Stephen Charles is a former judge of the Supreme Court who was a barrister represented both Azio and Asus he believes key evidence about the dilly spying operation is in the public interest and should be heard in open court it is a fundamental aspect of the rule of law that proceedings take place in public it is difficult to imagine any justification for these proceedings taking place in secret everyone who reads the newspapers is aware that Asus officers entered and bugged the timeles cabinet premises it everyone is aware that the result of bugging those premises was that Australia got a huge and very unfair advantage in the negotiations being carried out between Timor and Australia attorney general Christian Porter declined to be interviewed in a statement he said he has confidence the court will strike the right balance between national security and the principle of open and transparent proceedings and that as far as possible any legal proceedings in this matter should be conducted in open court but Bernhard calorie says the NSI Act is already impacting on his defense I don't know what I'm going to be allowed to say in court I have only just been allowed to speak to my lawyers after 18 months or whatever it is I'm now able to speak to my lawyers but I am circumscribed in even what I can tell my own lawyers it's amazing it's amazing experience the NSI act is one of over seventy laws in the name of national security which have passed since the 9/11 terrorist attacks and many of them interfere with democratic rights and freedoms as Australia's security state has expanded in response to the war on terror so too is Australia's state of secrecy more government documents are being classified more journalists are being monitored more whistleblowers are being charged tonight the abc's sydney headquarters raided by the federal police officers seized thousands of items relating to news reports from 2017 it's the second media organization to be targeted after the home of a news corp journalist was searched yesterday I fear we're living in very dangerous times here in Australia there is clearly a reduction in civil liberties whistleblowers are being pursued in the courts journalists are being raided I would characterize it as being in a pre police state which left unchecked will get even worse and one day we'll wake up and wonder how on earth we got here laws have been passed that can make any work you do affecting Australia's economic activities espionage sabotage conspiracy there are new laws that have quietly slipped through basically unquestioned by the opposition the country generally should have a good hard look with no preconceptions about just what is the scope of information about government that should be kept secret from the people for how long and why I think that for far too long there has been this notion that a very few people will decide what's good for us to know and what's good for us not to know and I for one and not prepared to give them a blank check I've got no doubt that if the public of Australia believed that the national security legislation which has been passed into law would be utilized in this way to ride the ABC to write a news limited to take action against a tax office whistleblower and to also in this case in Bernhard Cleary and witness k2 take action for people who in all conscience were ensuring that democracy was upheld I don't think people would accept it and nor should they senator Rex Patrick an MP Andrew Wilkie are pushing for greater oversight of intelligence agencies and legal protection for whistleblowers some of the changes we'd like to see is the ability for someone to blow the whistle anonymously we'd also like to see changes where if nothing is done after the whistle has been blown people can go to either the media or to a politician it's way beyond time for a government to go back and revisit this and to create effective whistleblower protections so that insiders including security insiders if they are genuinely witness to misconduct they can speak up and if need be they can go to the media burn a calorie we'll face court again later this year in what could be a long trial if found guilty he faces up to two years in prison the prosecution or the persecution of witness Kay and Bernhard Colleary should be discontinued immediately because it is not right under any law to pursue people and charge them when all they have done is told the truth those two men told the truth about what we have done and the people who did the fraud the illegal fraud the spying the lowdown action against Timor they've got away with it they're not being charged with anything and they should be and here we have two truth tellers who are now being charged timor-leste's former prime-minister shenanigans Mel wants the Australian government to drop the prosecution if it goes ahead he says he will come to Canberra and give evidence in court on behalf of witness Kay and Bernhard killari the message is on the appeal please drop this please because I will I will always be on their side that's right I already promised them if it is it was not a secret trail able to be witness and what kind of evidence would you give and all that all the information that they know and is that evidence that the Australian government may not want to hear in court livvie so you saying some secrets that may embarrass previous governments they will do so [Music] next Matilda and can I have my phone to please thanks burner kalari has prepared for trial many times before but never for one like this when he appears in the AC t Supreme Court it will be for the first time as a defendant with the full force of the Commonwealth against him it's shaping up as the fight of his life well my practice earnings have crashed that stopped my practice in a Superior Court effectively it's the effective end of my career are you able to tell us how this prosecution has impacted on witness K I don't dare answer your question because I might pour out a turn of heartfelt views I want to say this when this is over and dusted I will have a lot to say I will have a lot to say and we live in the country that understands the memory there's a boomerang out there it's gonna come back regardless of that outcome [Music] you

Channel: ABC News In-depth

Views: 257,683

Keywords: ASIS, ASIO, ADS, Witness K, Collaery, Chritian Porter, George Brandis, Timor Leste, East Timor, Dili, bugging, listening device, Jose Ramos Horta, national security, spies, spy, secrets, national secrets, abc, abc news, four corners, investigation, justice, law, crime, government, government australia, lawyer

Id: BWdTPKnT7Lg

Length: 43min 48sec (2628 seconds)

Published: Mon Aug 26 2019