No prison for Australian former spy who disclosed controversial espionage operation

Bernard Collaery

A FORMER AUSTRALIAN SPY, who prompted international outcry by revealing a controversial espionage operation by Canberra against the impoverished nation of East Timor, has been given a suspended prison sentence. The case against the former spy, known only as “Witness K.”, first emerged in 2013. It is believed that Witness K. served as director of technical operations in the Australian Secret Intelligence Service (ASIS), Australia’s foreign-intelligence agency.

In 2013, Witness K. revealed an espionage operation that targeted the impoverished Pacific island nation of Timor-Leste, also known as East Timor. He alleged that ASIS officers, disguised as a renovation crew, bugged an East Timorese government complex. The information gathered from the spy operation allegedly allowed the Australian government to gain the upper hand in a series of complex negotiations that led to the 2004 Certain Maritime Arrangements in the Timor Sea (CMATS) treaty. The treaty awards Australia a share from profits from oil exploration in the Greater Sunrise oil and gas field, which is claimed by both Australia and East Timor.

In 2013, the East Timorese government took Australia to the Permanent Court of Arbitration in The Hague, claiming that the Australian government was in possession of intelligence acquired through illegal bugging. The claim was supported by Witness K., who argued that ASIS’ espionage operation was both “immoral and wrong” because it was designed to benefit the interests of large energy conglomerates and had nothing to do with Australian national security. It is worth noting that Witness K. said he decided to reveal the ASIS bugging operation after he learned that Australia’s former Minister of Foreign Affairs, Alexander Downer, had been hired as an adviser to Woodside Petroleum, an energy company that was directly benefiting from the CMATS treaty.

Meanwhile, officers from the Australian Security Intelligence Organisation (ASIO), the country’s domestic intelligence agency, raided the Canberra law offices of Bernard Collaery, East Timor’s lawyer in the case, who is also defending Witness K. in court. The raiders took away documents that revealed the identity of Witness K., and then proceeded to detain him for questioning. They also confiscated his passport, which prevented him from traveling to the Netherlands to testify in the case. In the following months, an embarrassed Australian government quietly conceded to East Timor’s claims and agreed to renegotiate the CMATS treaty.

However, Witness K. and Mr. Collaery were each charged with a single count of conspiring to share information that is protected by Section 39 of Australia’s Intelligence Services Act, which forbids the unauthorized release of classified information. The case was heard last week at the Australian Capital Territory Magistrates Court in Canberra, in circumstances that were described by reporters as “extraordinary”. Members of the public and the news media were barred from most of the proceedings in order to protect classified information. Witness K was physically hidden behind a makeshift black screen, which was designed to conceal his identity.

In the end, the Magistrate, Glenn Theakston, decided that the former spy’s actions had been motivated “by a sense of justice, rather than for personal gain”, and were “not intended to compromise Australia’s national security interests”. In the justification of his decision, Judge Theakston said he took into account the former spy’s age —he is believed to be in his 70s. Additionally, he accepted Witness K.’s legal team’s request that he should be offered “judicial mercy” due to suffering from a series of health conditions, including post-traumatic stress disorder and depression.

Witness K.’s three-month suspended jail sentence does not expunge the conviction from his record. Additionally, has is required to pay AUS$1,000 (US$750) as security deposit for good behavior over the next 12 months. Witness K.’s attorney, Bernard Collaery, continues to face charges of conspiring with his client to reveal the Australian spy operation against East Timor. He has argued that his case should not be tried behind closed doors.

Author: Joseph Fitsanakis | Date: 21 June 2021 | Permalink

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