Timor-Leste Bugging Scandal: Tribunal Orders Part of Hearing in Public as Former Senator Patrick Wins Ruling

Australia's Administrative Review Tribunal (ART) ruled in favour of former senator Rex Patrick on Friday. The ruling means the unclassified parts of a three-day hearing in late November into the alleged bugging of Timor-Leste by Australian spies will have to be held in public. The Commonwealth government had wanted even the open parts of the hearing to take place behind closed doors.

Patrick, a politician turned transparency advocate, is trying to finally lift the lid on the top-secret 2004 mission. Australian intelligence operatives are alleged to have planted listening devices in Timor-Leste government offices to gain the upper hand in sensitive oil and gas negotiations. The mission became a public scandal years later, after a former spy and a former attorney general attempted to mount a case in The Hague.

The Australian government, however, stands by its Glomar response — to neither confirm nor deny, first, that the bugging took place and, second, that any relevant documents exist. The responsible agency, the Australian Secret Intelligence Service (Asis), contends that merely confirming or denying the records could undermine national security and Australia's standing with other countries.

Government lawyers argued the whole saga is so sensitive that even sections of the hearing open to the public should remain behind closed doors, in case someone accidentally says something they should not. The deputy chief solicitor, Justin Davidson, argued last Thursday that the stakes are 'very high' and that it would be nearly impossible to mitigate the risk of an intelligence official revealing something they should not. 'I'm not, frankly, beyond making a mistake,' Davidson said. The Commonwealth had unsuccessfully proposed that the media and the public be barred from the open hearings, but would be able to view a transcript after careful review by the nation's foreign intelligence agency.

On Friday, ART deputy president Peter Britten-Jones ruled against the Commonwealth, noting officials were 'highly qualified and experienced' enough not to let national secrets slip in an open forum. 'The risk of an inadvertent disclosure of certificated material is negligible,' he wrote in his ruling.

Patrick told Guardian Australia the situation was a farce, arguing the bugging scandal is the 'most open secret in the history of Australian spying' — maybe even the world. He said the whole administrative saga felt like a replay of an Austin Powers movie. 'Only Asis and Dfat think the operation is still a secret,' Patrick said. 'It'd be funny if it wasn't so serious, or if the taxpayer wasn't paying for the silk, barristers and lawyers arguing the government's case.'

Patrick's bid to gain further insight into the affair began with a request for cabinet documents from 2004 held by the National Archives of Australia. The documents would relate to Australia's strategy for settling how much of the Timor Sea it could maintain control over, after Timor-Leste officially gained independence from Indonesia in 2002.

The negotiations determined the countries' shared control over the Greater Sunrise gasfields, which hold resources estimated to be worth more than $50bn. Patrick's win on Friday means at least some of the government's defence over why it cannot publicly reveal details of the 2004 bugging — which preceded a commercially favourable agreement for Australia against the impoverished nation — will be heard in public.

The bugging operation occurred in 2004, when Asis operatives planted listening devices in key Timor-Leste government offices to uncover Timor-Leste's bottom line, its negotiating tactics and the competing views of cabinet members. In 2006, Australia ended up securing a 50/50 split of the Greater Sunrise fields, positioned 450km north-west of Darwin and 150km south of Timor-Leste. The deal was a boon for the joint venture of multinationals, led by Woodside, seeking to exploit the Timor Sea.

The operation was later revealed after a former Asis officer, known as Witness K, approached the lawyer and former ACT attorney general Bernard Collaery — who was also acting for Timor-Leste — in 2013 about his knowledge of the operation. Together, the two attempted to help Timor-Leste's dispute against the maritime boundary agreement in The Hague, at the international permanent court of arbitration, before Collaery's office was raided and Witness K's passport seized. Timor-Leste withdrew its Australian espionage claims in The Hague in 2017 as a 'confidence-building measure', and a new maritime border was signed in 2018.

Patrick's latest push to reveal historical documents, or at least the existence of them, comes after years of attempts. In 2021, the former senator took the archives to the tribunal for heavily redacting a cabinet submission from 2000 outlining Australia's negotiating strategy for bartering with its impoverished ally on the Timor Sea maritime boundary, and a related minute. The tribunal later released the document with fewer redactions, which showed cabinet in 2000 was concerned that Timor-Leste's independence process may disrupt access to the oil and gas reserves in the Timor Sea, because Australia's prior agreement with Indonesia for a 50/50 revenue split would be void.

Ewan McMillan, an Asis deputy director general, and Michelle Chan, a deputy secretary at the Department of Foreign Affairs and Trade (Dfat), will offer their testimonies in late November, when the case is heard in full. Davidson had argued the unclassified details they share in an open hearing might be 'interesting to the public' but not necessarily in the public interest. In a 2019 affidavit for the proceedings against Collaery, which were dropped in 2022, the Timor-Leste president, Jose Ramos-Horta, said he believed a full and open disclosure of what may or may not have occurred in 2004 would benefit, rather than prejudice, the relationship between Timor-Leste and Australia.