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East Timor News Digest 12 – December 1-31, 2013

Human rights & justice

Timor Sea spy scandal Mining & energy Analysis & opinion

Human rights & justice

East Timor: Investigative journalist Jose Belo wins human rights award

Pacific Media Centre - December 16, 2013

Timor-Leste investigative journalist Jose Belo has been presented with one of the 2013 Sergio Vieira de Mello human rights awards by the President, Taur Matan Ruak. David Robie profiled the Tempo Semanal publisher in an interview in Dili a few days before the award.

He was imprisoned and tortured by the Indonesian occupation forces for a period during the 24 years of illegal occupation of Timor-Leste while smuggling out reports to the world from the beleagured resistance movement.

Five years ago he was threatened with a seven-year prison sentence for criminal defamation over allegations of corruption against the then justice minister.

This prompted a high-profile international appeal by journalists, academics and media freedom campaigners to then President Jose Ramos-Horta to have the case dropped.

Threats are common over Belo's campaigns to root out corruption and nepotism in his fledgling Asia-Pacific state – the world's newest nation barely a decade old.

Corruption, nepotism

"Corruption, collusion, nepotism are when people take the state money and make people suffer," he once said in a radio interview.

But Belo is a tenacious survivor and investigator. When I met up with him, he was holding court on a Dili cafe terrace contemplating how best to use another bunch of leaked government documents that had fallen into his lap for his Tempo Semanal ("Weekly Times") newspaper and website.

President TMR: Craras massacre very meaningful for TL

Dili Weekly - December 9, 2013

Ezequiel Freitas – President of the Republic, Taur Matan Ruak (TMR), said the Caras Massacre that took place in 1983 was an event of great significance to the history of Timor-Leste because it served as a catalyst for many other incursions against the enemy and served as a reminder a war was being waged in the country.

The 30th Anniversary of the Craras Massacre took place on 28 November during the Proclamation of Independence Day celebration held in Craras, Viqueque District, in 2013.

President TMR added the people expressed their desire for self determination through difference acts of defiance such as in Dili in 1980 and in Ainaro in 1982.

"We pay homage to all Timorese who sacrificed their lives for our nation's sovereignty, their commitment and their death," said President TMR, during the Proclamation of Independence Day commemoration on 28 November held in Craras, Viqueque District in 2013.

He added the massacre in Craras led to other uprisings in Lospalos, Baucau and other locations across Timor-Leste. President TMR added many heroes died but the Timorese kept fighting untill the end and their determination led to the eventual independence of the country.

"The nation also pays homage to the widows and orphans, for their sacrifice in the defence of the nation and for independence and freedom," said President TMR. "We must continue strengthening a nation that is peaceful and stable and be diligent at work. We must work hard to develop our country so every Timorese has a better life."

Renato da Costa Amaral, a survivor of the Craras Massacre said he was captured by the Indonesian military and taken to the Military District Commando (Kodim) post.

"There 18 of us were meant to be taken out in a car to get killed. I overheard the driver speaking to the Indonesian military commander saying they were doing to tie us all inside the car so I jumped out and hid by sitting down among the population," said survivor Amaral.

He said his friends did not manage to get out of the car and were tied up and taken to Wetutukuru where they were subsequently executed.

Timor Sea spy scandal

Kirsty Sword-Gusmao condemns Australian spying on East Timor

Melbourne Age - December 28, 2013

Tom Allard – For Kirsty Sword-Gusmao, the news that Australia spied on her adopted homeland under the cover of an aid program cut especially deep.

The Melbourne-born wife of East Timor's Prime Minister, Xanana Gusmao, was disappointed and angry. The spying, she says, was a "cynical and reprehensible" act by a supposedly friendly nation. But, on a personal level, it smacked of hypocrisy of the worst kind.

A former aid worker, Ms Sword-Gusmao revealed that, after she was branded a spy for helping East Timor, the Australian government took away her modest allowance as an aid volunteer.

It was 2002. East Timor was still reeling from Indonesia's violent withdrawal ahead of the independence vote. The allowance, a few hundred dollars a month, was the only income for her and Mr Gusmao and their son, Alex, then aged two.

"Xanana had no income. I was the mainstay, the breadwinner at that point," she says. "It was a very small amount but it was enough to live on."

Speaking from the Mornington Peninsula, in Victoria, where she is recovering from successful treatment for breast cancer, she says she quietly agreed to what she felt was an unjust penalty to ensure no schism in relations.

What bothers her about it now is the allegation that former foreign minister Alexander Downer had ordered in 2004 that ASIS agents bug East Timor's cabinet offices during sensitive oil and gas treaty talks.

The spies reportedly came into East Timor under cover of an Australian aid project. The ASIS whistleblower behind the allegation was raided by ASIO last month, along with East Timor's lawyer Bernard Collaery.

Underpinning the espionage is a new battle between Timor and Australia over some $40 billion in revenue locked up in Timor Sea oil and gas deposits.

Mr Downer will not comment directly on intelligence matters, other than to say the latest claims of espionage were "old rumours".

But he flatly denies he had anything to do with Ms Sword-Gusmao losing her job at Australian Volunteers International, as she suspects. "No involvement at all," he SMSed on Friday. "Ask AVI."

Bill Armstrong, then head of AVI, said a senior AusAID official told him to "take her off our volunteer list".

"That meant she could no longer have the allowance," he says. "I was told the foreign minister was upset with the discovery of what Kirsty had been doing. Whether he actually personally said Kirsty should go, or whether the official second-guessed his opinion, I don't know."

Living in Jakarta and doing volunteer work for AVI's predecessor organisation, Ms Sword-Gusmao began helping the Timorese resistance, still under the control of Indonesia at the time.

Code-named Ruby Blade, she smuggling information, documents and telephones to Mr Gusmao, then in a Jakarta prison. She also liaised and sometimes housed other Timorese resistance figures. Her activities were disclosed in an Australian Story program.

Right-wing columnist Andrew Bolt said she was "dumb and dangerous" for "putting at risk the safety and the work of Australian aid workers and possibly a few of our diplomats".

It is Mr Downer who is now accused of potentially jeopardising aid workers by allegedly authorising the ASIS eavesdropping in Dili by agents masquerading as humanitarian workers.

Ms Sword-Gusmao hopes the underlying question of Timor's share of oil and gas is resolved. The country is "much stronger" 12 years after independence but is still racked by poverty.

In the meantime, she is thankful her breast cancer has cleared after a long treatment. "I basically have to live in trepidation for five years, waiting to see with bated breath how things are going, but I'm feeling very healthy and strong."

Her eldest son Alex is now 13. He and brothers Kay Olok, 11, and Daniel, 9, keep her busy. It is, for them and their fellow Timorese youth, that her husband is again fighting with Australia for the Timor Sea reserves, she says.

"A better deal in terms of the oil and gas reserves stands not just to benefit the East Timorese, but Australians."

Australia accused of playing dirty in battle over oil and gas reserves

Brisbane Times - December 28, 2013

Tom Allard – A balmy summer morning, the leafy back streets of Narrabundah in suburban Canberra, and some 15 besuited ASIO agents are ringing the doorbell of a modest red brick home that doubles as the office of lawyer Bernard Collaery.

Across town, a smaller team of operatives has been dispatched to the home of a former Australian Secret Intelligence Service officer, now star witness for East Timor in an increasingly bitter legal dispute with the Australian government over $40 billion worth of oil and gas revenue from the Timor Sea.

The former ASIS agent has revealed an alleged spying operation by Australia on East Timor's cabinet offices under then foreign affairs minister Alexander Downer.

As many as 15 ASIO agents swarmed over Collaery's office, tailed by a cameraman. They brought ladders, laptops and several imposing black cases for storing and copying documents.

Collaery's senior clerk, Chloe Preston, was handed the search warrant but not allowed to copy it. They stayed for six hours and scoured the office, accessing every computer, going through filing cabinets, drawers and searching in the building's cavities for every last skerrick of potential material.

The agents took laptops and USB sticks containing documents for many of Collaery's clients, including the East Timor government.

ASIO and Attorney-General George Brandis, who authorised the meticulously planned action, would have known Collaery was overseas. The lawyer for East Timor, and former ACT attorney-general, believes he would have successfully sought an injunction to stop the raids if he were present. Moreover, the paperwork to cancel the passport of the former ASIS agent was already prepared.

What, exactly, the agents removed or copied remains unclear, but it is believed to include briefs from East Timor's international lawyers and an assessment of the evidence in a contentious arbitration in The Hague over the rich oil and gas fields in the Timor Sea.

Australia is the other party in the arbitration over the treaty governing the reserves, worth at least $40 billion and perhaps much more.

Senator Brandis maintains the raid was about national security, not about the arbitration. Any seized files would not be passed on to its lawyers battling East Timor. To suggest otherwise would be "wild and injudicious".

A former intelligence officer had breached the Intelligence Services Act by divulging classified material that threatened Australia's interests, he reasoned in Parliament, and action had to be taken.

Collaery, the East Timorese government and stunned observers believe it could only be linked to the case, given the Australian government was aware of the former ASIS agent's allegations for more than a year.

"This had nothing to do with national security," Collaery says. "It was to find out what the case we had against them [was], and to hobble our witness."

In truth, the saga is ultimately about East Timor's future, and the wealth of some large oil companies.

As the one major oil field in the Timor Sea that sends royalties to Dili winds down, the fledgling and poor nation is facing a potential collapse in income within a decade and a bleak future of economic misery and political and security instability.

For the leadership that fought the Indonesian invasion in 1975, and took control of the government, this is their final big struggle.

East Timor wants a new and better share of the oil and gas revenue, resources it believes fall well within its sovereign waters. "This is the unfinished aspect of Timor Leste's fight for independence," says Charlie Scheiner, a Dili-based analyst.

Damien Kingsbury, a professor of international relations at Deakin University and long-time observer of East Timor, said the raids proved two things, neither of them particularly flattering for the Australian government.

"It was just monumentally inept," Kingsbury says. "First of all, it was a slap in the face of the judicial process under way in The Hague. And, secondly, it basically confirmed the allegation of spying was well- founded."

From the Timorese perspective, one dirty trick confirmed another. And a tradition of underhand and bullying Australian conduct over the Timor Sea oil and gas deposits dating back before its independence was continuing.

For decades, under governments of both political persuasions, Australia was alone in recognising Indonesia's sovereignty over East Timor during its brutal occupation.

During this time, it signed a hugely beneficial deal for almost complete access to the Timor Sea gasfields thanks to a highly favourable maritime boundary that was close to Timor's land mass.

As independence loomed, Australia promptly withdrew from the Law of the Sea, the convention that determines sea boundaries based on international law.

For countries of close proximity, the median line, equidistant between the countries, is usually the boundary, but Indonesia was happy to acquiesce to its southern neighbour.

It then began pressing East Timor to recognise the maritime boundary. Timor refused and negotiations began, but these were hardly equal partners around the table.

Ravaged by the violence surrounding the independence vote in 1999, when retreating Indonesian forces and militia razed villages as they left, Timor was barely functioning as a nation-state. Its civil service was dominated by Indonesians, who had all left. Of those 900,000 or so people who remained, barely 1000 of them had a high school diploma or better.

Desperately poor, troubled by ethnic tensions and anxious to begin building the institutions of government and wean itself off international aid, East Timor was desperate for revenue.

Pierre-Richard Prosper, a former US ambassador for war crimes, landed in Dili when its buildings were still smouldering in 1999. He has assisted Timor, on and off, ever since, and is now acting for them as a private lawyer with DLA Piper.

"Australia always seemed to be negotiating when Timor Leste is at or near a time of maximum vulnerability," he says. "You have a weakened opponent who will have a sense of desperation and need to take a quick deal."

The amount of the resource at stake was constantly underestimated – or "low-balled" – by the oil companies and the Australian government, he said. A window of opportunity for commercial development.

There were also suspicions Australia was intercepting the communications of East Timor's leaders, although there is no hard proof.

Two treaties were signed. The first in 2002, just when East Timor formally became a nation, split revenue evenly between Australia and East Timor, but left the boundary issue open for later discussion.

The second, in 2006, gave East Timor a 50/50 share of royalties from the big deposit known as Greater Sunrise, worth an estimated $40 billion and to be developed by Australian energy behemoth Woodside.

Overall, East Timor tripled its revenue take, but forfeited the right to discuss the boundary for 50 years, when most of the reserves will be spent. For Australian governments ever since, it was a hard-fought and binding agreement, endorsed by East Timor's parliament.

But East Timor feels it was robbed of its rightful resources and was under immense pressure to ratify it, given the country was grappling with an army mutiny and deadly ethnic clashes.

"At the end of the day, we are not happy with what we got," says Resources Minister Alfredo Pires. "Under the international Law of the Sea, all of these resources would be Timor Leste's. We want to exploit Greater Sunrise for our children."

Greater Sunrise – the oil and gas jewel in the Timor Sea worth $40 billion -- remains undeveloped. Timor believes the pipeline and processing hub should be on its land, providing much needed jobs for its many unemployed youth. It now has the power to block it, and remains in a stalemate with Woodside.

Darwin, which hosts the only pipeline from the Timor Sea, is booming while East Timor is running out of money. Adding to its grievances, it feels the oil companies are evading tax while accessing lucrative helium-3 gas reserves and not sharing the proceeds.

More than 95 per cent of the entire nation's income comes from oil and gas revenue and, Kingsbury says, government spending in Timor is "deeply unsustainable". "If they continue spending at the rate they are spending now, they will run out of money in 10 or 12 years," he says.

Belts are being tightened to stop the budget haemorrhaging and, as a result, a recession looms when infant and maternal mortality remains unacceptably high and youth illiteracy and youth unemployment are the norm.

East Timor, Charles Scheiner says, has not always spent wisely. "Half of the state expenditures pay foreign contractors to build infrastructure, while investing in human resources – health and education – is far below international norms," he wrote in a recent report on his La'o Hamutuk website.

"If the non-oil economy hasn't developed when it runs dry in half a generation, poverty will increase far beyond the current 50 per cent."

The signs are that the Australian government will defend the maritime boundary with all its resources.

Whatever protocols ASIO will follow in securing the documents, the raids in Canberra on December 3 show that Australia is playing hardball, provocatively so. Brandis' contention that it was purely about national security wobbles under scrutiny. Australia has known about the ASIS agent's allegations for at least a year.

Former prime minister Julia Gillard declined to investigate or enter negotiations with East Timor, although there was one low-level follow-up meeting in Bangkok.

The espionage allegations were first made public by Labor ministers Bob Carr and Mark Dreyfus in May but it was only when lawyers in The Hague began talking about witnesses for the arbitration that the ASIO raids were ordered.

Brandis was acting on a recommendation from the ASIO head David Irvine. Irvine was head of ASIS when the alleged bugging operation was ordered in 2004.

Australia has hired some of the world's foremost international law experts and the case in The Hague is being run by Solicitor-General Justin Gleeson, QC. East Timor has some international heavy hitters in its corner too, including the British lawyer and academic Sir Eli Lauterpacht.

As it stands, Collaery says he has copies of most of the documents and files he believes were seized, and more besides.

East Timor's bid to get the seized documents back will be held before the International Court of Justice next month. Further hearings will take place later next year to hear argument about whether the treaty governing the Timor Sea should be annulled because of the spying, an apparent breach of the Vienna convention on treaties.

Within the senior ranks of the intelligence community in Canberra, there is defensiveness. Intelligence gathering during such negotiations are commonplace. Everyone does it, and has done for years.

There is also concern that any redrawing of the sea boundary with East Timor would encourage Indonesia to do the same. In the end, though, it is Australia's perceived economic interests that have driven diplomacy and intelligence gathering with East Timor.

Timor has received about $13 billion in royalties since 2002, Australia less than half that amount but with all the economic spinoffs of Darwin's LNG and helium-3 plants.

It is an immense challenge for Timor. For the "generation of 1975", the end of their political careers is coming. Jose Ramos-Horta, the smooth diplomat, is no longer president. Xanana Gusmao will retire as Prime Minister within 18 months. There is urgency and determination about their advocacy.

Gusmao was in strife-torn Sudan when he got the news of the raids. Seething, he composed his response as he shuttled back and forth from a village called Malou, damning Australia's "unconscionable and unacceptable conduct". "It is behaviour that is not worthy of a close friend and neighbour or of a great nation like Australia," he said.

Gusmao was in South Sudan as chairman of the G7+, a grouping of 18 fledgling states, many of them perilously fragile and poor, charting their way through nationhood.

As if to prove a point about the vulnerability of these nations, South Sudan imploded into violence less than a fortnight after Gusmao left. The village of Malou fell to the rebels, and 1000 have died and 100,000 have been dispossessed in the wider fighting.

South Sudan, like East Timor, is one of the world's poorest nations and relies on oil and gas revenues for more than 90 per cent of its revenue.

East Timor is more advanced than South Sudan and less prone to violence, but East Timor itself was on the brink of civil war in 2006 after half the armed forces mutinied.

A glimpse into the future without oil and gas revenues can look very grim indeed. For the East Timorese especially, but also for Australia's security interests.

Timor-Leste asks UN court to order Australia to return seized documents

Australian Associated Press - December 19, 2013

Timor-Leste has instituted proceedings in the UN's top court in relation to Asio raids on the office of a Canberra lawyer representing the tiny country.

Australian Security Intelligence Organisation agents raided Bernard Collaery's office this month and seized documents relating to a dispute with Australia over a $40bn oil and gas treaty.

Timor-Leste on Tuesday began proceedings in the international court of justice in The Hague over the seizure of the documents which it says "belongs to Timor-Leste and/or which Timor-Leste has the right to protect under international law".

A statement issued by the court on Wednesday makes clear that Dili wants the ICJ to declare that the Asio seizure "violated the sovereignty of Timor-Leste and its property and other rights under international law and any relevant domestic law".

The documents relate to Timor-Leste's challenge to the treaty on certain maritime arrangements in the Timor Sea. Dili has accused Canberra of bugging its cabinet office during 2004 negotiations on the treaty.

The attorney general, George Brandis, approved warrants for the 3 December raid on Collaery's office and another raid on the home of a former spy who is a key witness in Timor-Leste's case at the permanent court of arbitration.

Collaery said this month that the documents seized included legal opinion by international law experts Sir Elihu Lauterpacht and Professor Vaughan Lowe along with his own correspondence with Timor-Leste's prime minister, Xanana Gusmao.

Dili is arguing at the ICJ that not only was the seizure of the documents unlawful but so too is their continuing detention.

"Australia must immediately return... the documents and data and destroy beyond recovery every copy of such documents and data that is in Australia's possession or control," it is demanding, according to the ICJ statement.

Timor-Leste wants a "formal apology" and for the court to rule that all of the documents seized be immediately handed over to the ICJ. It also wants a list of which documents have been passed to which people and their job descriptions.

Finally, Dili is demanding that Australia not spy on Timor-Leste: "Australia [must] give an assurance that it will not intercept or cause or request the interception of communications between Timor-Leste and its legal advisers whether within or outside Australia or Timor-Leste."

Collaery has said he's considering legal action against the Asio boss, David Irvine, over his involvement in the alleged 2004 bugging of Dili's cabinet office. Irvine was then director general of Australia's overseas spy agency, the Australian Secret Intelligence Service.

Gusmao condemned the raids as "unconscionable and unacceptable conduct". But his counterpart, Tony Abbott, defended them as necessary to protect Australia's national security.

"We don't interfere in [court] cases but we always act to ensure that our national security is being properly upheld – that's what we're doing," he said at the time.

Relatives of Timor ministers stopped by customs, AFP disputes seizures

ABC Radio Australia - December 15, 2013

The Australian Federal Police has denied seizing a computer and phones belonging to relatives of East Timor's finance and resources ministers.

AFP officers charged Palmera Pires at Darwin Airport on Friday for allegedly trying to bring in more than $20,000 undeclared in her baggage. Ms Pires is the sister of finance minister Emilia Pires and resources minister Alfredo Pires, and also the director of the East Timor Development Agency.

She was travelling with her 12-year-old goddaughter, elderly mother and an assistant. The group was stopped by Customs on Friday, and issued with an $850 infringement notice for failing to declare the currency.

Ms Pires has shown the ABC several receipts that appear to back up her claim that several mobile phones, sim cards and memory sticks were also confiscated as part of a "pending investigation".

Ms Pires says the AFP and Customs officers did not tell her why the devices were seized. "They have the right and we don't need to know the reason they kept saying that. They have a right to do anything," she said.

The AFP has confirmed officers and Customs officials questioned three people at the airport, but denies any personal belongings were seized. "The AFP did not seize any currency or material in relation to this matter," a spokesperson said.

"A 50-year-old woman was issued an infringement notice of $850 for failing to declare the movement of $20,000 or more into Australia. A 74-year-old woman and a 42-year-old woman were cautioned for failing to report the movement of $10,000 or more into Australia."

Claims incident was politically motivated

Ms Pires says she believes the airport confrontation was politically motivated. "I think that the only crime was to have a brother and a sister who are ministers and they are fighting for what is right for Timor-Leste," she said.

"What I've been treated, what my mother, my helper and my godchild, who is the first time in Timor-Leste, we didn't have to go through that and then taking the only phone and communication that we have with our family [from us]."

Ms Pires says they have been traumatised by the experience. "Last night we all just slept in the living room because they are too scared, we think someone is going to come here and break it in," she said.

The airport incident comes as East Timor attempts to have a $40 billion oil and gas treaty it signed with Australia quashed in The Hague following spying allegations.

Former president Jose Ramos-Horta condemns Australia over spying claims

ABC Radio Australia - December 11, 2013

Peter Lloyd, staff – East Timor's former president Jose Ramos-Horta says Australia would never have secured a seat on the United Nations Security Council had claims that it spied on its neighbours been known.

Australia is accused of bugging an East Timorese cabinet room in 2004 so it could listen in on senior ministers and officials negotiating a new oil and gas treaty. East Timor has taken the case to The Hague in an attempt to have the $40 billion deal it signed with Australia torn up.

Dr Ramos-Horta has told ABC Radio's AM program that Australia should not underestimate the damage it has done by allegedly spying on East Timor and Indonesia.

"It really undermines 10 years of a relationship and I don't know what Australia can do to restore confidence among East Timorese people and leaders," he said.

Dr Ramos-Horta now acts as a special peace and security envoy for the UN secretary-general. Last year, he helped lobby for Australia to win its seat on the UN Security Council.

But he says that had he known about the spying allegations, the outcome would have been disastrous for Australia.

"Had we known that Australia was spying on us and spying on our friends, the Indonesian president Susilo Bambang Yudhoyono and his wife, well if [that] news had transpired before the vote for the Security Council a year ago, I doubt Australia would have secured the seat," he said.

Australia accused of setting a bad example He says Prime Minister Tony Abbott needs to admit fault.

"Australia should be more sensitive and transparent because Australia likes to lecture Timor Leste and other countries about transparency, about integrity in public life," he said. "Well this has not been a very good example of transparency and honesty."

Dr Ramos-Horta says it would be understandable if Australia had spied on North Korea or China, who are "enemies of the West". But he is angry that Australia would spy on "friendly" countries like Indonesia and East Timor -- who it helped to free in 1999.

"I hope Australia does not underestimate the anger, the disappointment that its spying, its espionage towards Indonesia and Timor Leste is causing," he said.

Meanwhile, East Timor is demanding the Federal Government return all material seized by ASIO during two raids in Canberra last week. Agents took a number of documents from the office of lawyer Bernard Collaery, who is acting for East Timor at The Hague.

The Department of Foreign Affairs has updated its travel advisory to East Timor after peaceful protests were held in the capital, Dili, over the last few days. DFAT says Australians travelling to East Timor should exercise a high degree of caution.

East Timor: We know the identities of the 'spies'

Sydney Morning Herald - December 10, 2013

Tom Allard – East Timor's government believes it has identified the members of a team of four Australian spies who allegedly bugged its government offices, describing it as "very disturbing" that they apparently used the cover of an aid program.

The revelations came as intelligence and development experts expressed their deep misgivings that aid was apparently used as the pretext for installing and then removing the eavesdropping equipment, saying it jeopardised important aid projects and potentially put Australian aid workers at risk around the world.

"We think we have identified the team of people who came in to do the bugging. We have their names," East Timor's Natural Resources Minister Alfredo Pires told Fairfax Media. "They are males, along with a possible lady spy."

East Timor would keep the names secure, he said. But he noted that at least one of them was still working overseas under the same name and may be at risk "if the names get out over the internet". "Australian authorities may have to check on them."

Mr Pires said the names were uncovered by going through flight and other records. The investigation had also uncovered that the listening devices were allegedly smuggled in by "diplomatic couriers".

The alleged bugging was done in 2004 under the auspices of an aid program to renovate East Timor's dilapidated government buildings. The listening devices were allegedly installed in the prime minister's office and rooms used for cabinet discussions. At the time, Australia and East Timor were negotiating the terms of a treaty governing the massive oil and gas reserves in the Timor Sea.

The claims of the spying come from a former Australian Secret Intelligence Service agent who turned whistleblower. East Timor wants the treaty declared invalid, and the ex-ASIS agent has sworn an affidavit detailing the alleged spying operation, which he led.

The retired agent, and the lawyer representing the East Timorese government in arbitration over the agreement, Bernard Collaery, were raided by ASIO last week. Mr Pires said East Timor wanted the return of seized documents.

Timor-Leste spying: Intelligence chief denies concerns were raised

The Guardian (Australia) - December 6, 2013

Lenore Taylor – The inspector general of intelligence and security has issued an unusual public statement to deny that any former spy had raised concerns with her or her predecessor about Australian espionage in Timor.

Vivienne Thom, who oversees Australia's intelligence agencies and investigates complaints, said in a statement that "to the best of my knowledge, no current or former Asis officer has raised concerns with this office about any alleged Australian government activity with respect to East Timor since my appointment in April 2010".

"I have spoken to my predecessor and he has confirmed that, to the best of his recollection, no current or former Asis officer raised concerns with this office about any alleged Australian government activity with respect to East Timor during his term as IGIS and he had no discussion with any former or current Asis officer about any such concerns."

The statement is in response to claims by Timor-Leste's lawyer, Bernard Collaery, that the former spy who is the star witness in the Timor-Leste espionage allegations against Australia received permission from Australia's inspector general of security to take legal advice about his concerns over intelligence gathering during negotiations in 2004 over a lucrative gas treaty.

Collaery said the Australian Security Intelligence Service (Asis) officer -- who has had his passport confiscated after raids by the Australian Security Intelligence Organisation this week at his Canberra home – received the permission from Ian Carnell, who served as inspector general from 2004 to 2010.

But Thom said: "The practice of this office is to make detailed records of any concerns raised with it, whether the concerns are raised in writing or orally, and regardless of whether the concerns are in jurisdiction or followed up. A search of our records since 2004 has revealed no record of any former or current Asis officer having raised concerns with us about alleged Australian government activity in East Timor."

The attorney general, George Brandis, who approved warrants for searches of the former officer's home and Collaery's office, rejected suggestions he was trying to interfere in international arbitration of the case, in which procedural hearings start on Friday in the Hague.

He told the Senate on Wednesday these were "wild and injudicious claims" and the search warrants had been issued, at the request of Asio, to protect Australia's national security.

He said he had instructed Asio not to share any material gathered in Tuesday's raids with Australia's legal team in the Hague "under any circumstances". The former Asis officer has also retained his own senior counsel, Bernard Grose, QC, who is in the Hague.

Timor-Leste's ambassador to Australia said his country was "deeply disappointed" Australian intelligence agencies had resorted to raids and thought "fair-minded" Australians would reject the "national security" explanation given by Brandis as ridiculous.

Collaery, who is one of a team of lawyers representing Timor-Leste in the international arbitration, has argued the raids were a deliberate effort by the Australian government to disrupt the proceedings, in which Timor-Leste alleges that in 2004 Australia improperly spied on the Timorese during treaty negotiations in order to extract a commercial benefit.

Timor-Leste's prime minister, Xanana Gusmao, issued a statement on Wednesday calling on the Australian prime minister, Tony Abbott, to explain himself and guarantee the safety of the witness – who was allegedly directly involved in the bugging of the Timorese cabinet office during the sensitive negotiations of the Certain Maritime Arrangements in the Timor Sea (CMAT) treaty.

"The actions taken by the Australian government are counterproductive and uncooperative," Gusmao said. "Raiding the premises of a legal representative of Timor-Leste and taking such aggressive action against a key witness is unconscionable and unacceptable conduct. It is behaviour that is not worthy of a close friend and neighbour or of a great nation like Australia."

Timor-Leste's ambassador to Australia, Abel Guterres, rejected that assertion and said most Australians would also consider it ridiculous.

"Our country, Timor-Leste, which came out of 24 years of struggle and trauma, and the subsequent mayhem in 1999, do you think Timor-Leste could possibly pose a security threat to Australia," he told Guardian Australia.

"Thousands of people in Australia asked the government to help us [during the violence around the autonomy ballot in 1999] and Australia helped us... are we a security threat to Australia, I don't think so, I think any fair- minded Australian would see this as ridiculous."

The negotiation centred on boundaries to determine how the two countries would share oil and gas deposits under the Timor Sea, called the Greater Sunrise fields, worth tens of billions of dollars. Woodside Petroleum, which wanted to exploit the field, was working closely with the Howard government during the talks.

Timor-Leste alleges Australia inserted bugs in the cabinet room to listen to Timorese negotiators during the talks, under the guise of a refurbishment paid for by an Australian aid program.

Timor Leste also hopes that eventually it can secure a bigger share of any revenues from the gas fields, when they are developed.

The inspector general of intelligence and security monitors the intelligence agencies, conducts inquiries and investigates complaints.

Australian Government was informed about whistleblowers, East Timor says

ABC Radio Australia - December 6, 2013

Peter Lloyd, staff – East Timor says the Australian Government knew it would call upon the testimony of four whistleblowers in its dispute regarding a $40 billion oil and gas treaty.

Delegates from both nations are at The Hague for the first hearing before the International Court of Arbitration, with claims Australia installed bugging devices inside the Timorese cabinet room so it could spy during the negotiations in 2004.

At a preliminary meeting in The Hague two weeks ago, the Timorese revealed to the Australian delegation that they intended to call on the testimony of four whistleblowers to support their case.

East Timor says they told the Government of the whistleblowers as an act of good faith. East Timor believes the disclosure may have prompted raids earlier this week that saw the detention of one whistleblower and the confiscation of key evidence.

The Timorese are now questioning whether or not Attorney-General George Brandis's account of the raids, in which he claimed ASIO approached him and said there was a potential risk to national security, can be supported.

They claim the Attorney-General acted on the basis of information obtained in the normal arbitration process, and they believe these raids should not have taken place.

They are also seeking legal advice to find out whether they can try and overturn the raids and the seizure of documents under the search warrants and have them returned to their owners.

The Timorese have also revealed that at a second preliminary hearing one week ago, the Australian Government agreed not to arrest the whistleblowers before the case was heard when they were abroad. However, they specifically said nothing about arresting them in Australia.

Team arrives at The Hague without key witness

East Timor's team at the international court of arbitration includes the country's ambassador to the UK, Joaquim da Fonseca, and Australian lawyer Bernard Collaery, whose office was raided by Australian intelligence agencies on Tuesday.

The whistleblower arrested on Wednesday – a former ASIS agent – had his passport cancelled, meaning he cannot journey to The Hague to give evidence before the tribunal.

However, Mr Collaery has suggested that they could bring the three-party tribunal hearing to Australia, or evidence could be presented via phone or video link.

Mystery surrounds the identity of the other witnesses, but they are presumed to be the operatives involved in the 2004 bugging operation.

Mr da Fonseca emerged from arbitration talks at The Hague saying it is unfortunate they are happening against the backdrop of current tensions between Australia and East Timor.

However, he says both parties are proceeding with the arbitration in good faith and he is confident in East Timor's case before the tribunal.

Protests in East Timor over raids

Meanwhile, around 100 protesters in East Timor have thrown rocks at the Australian embassy and police responded with tear gas.

The protesters, mostly students and young Timorese rights activists, carried banners reading: "Australia is a thief" and "Australia has no morals".

The demonstrators, calling themselves the Movement Against Timor Sea Occupation, shouted: "Australia, imperialist, capitalist!" and "Australia is a thief of world oil".

"The Australian leaders do not respect the people of Timor-Leste because it's very small, very poor," the group's spokesman Juvinal Dias told AFP.

The embassy was guarded with just four police until a dozen more arrived and fired tear gas at demonstrators, saying they had no permit to protest. Timorese snubbed as they tried to re-open negotiations

The Timorese have also revealed that a year ago their prime minister wrote to then prime minister Julia Gillard stating that they had reservations about the treaty and that they wished to re-open negotiations.

However, they received no response. At a subsequent meeting established between the two countries in London, the Australian delegates did not turn up.

Also, at a follow-up meeting arranged in Bangkok later that year only junior members of the Department of Foreign Affairs and Trade attended, but had no instructions on what to say to the Timorese.

All of this was happening while Australia was trying to get a seat on the UN Security Council with the support of the Timorese.

The Timorese insist that the treaty they signed includes clauses that state if there is a dispute about the treaty then the two parties should try and resolve the issues through fair means. (ABC/wires)

East Timor seeks to scrap oil treaty with Australia over spying allegations

Sydney Morning Herald - December 6, 2013

Nick Miller – East Timor's government will not be deterred in pressing its case to scrap an oil treaty worth billions of dollars over claims of spying by Australia, an international negotiator says.

The country's new ambassador to London, Joaquim da Fonseca, was at the Permanent Court of Arbitration in The Hague, Netherlands on Thursday, in preliminary talks with Australia over a bitter spy row that has erupted over the past few days.

Representatives from East Timor and Australia spent seven hours locked in private talks at the Permanent Court of Arbitration in The Hague, Netherlands – inside the picturesque 'Peace Palace' – as gale-force winds swept through the city.

Mr da Fonseca said the talks, setting procedural guidelines for a dispute that could last almost a year, were held in a "very co-operative and amicable" environment. "We had a very productive proceeding today, unfortunately we had to do this against the background of the events of the past 48 hours," he said.

East Timor is seeking nullification of the 2006 treaty, known as CMATS ('Certain maritime arrangements in the Timor Sea'). It was signed by then- foreign minister Alexander Downer and his East Timorese counterpart Jose Ramos-Horta, and came into force the next year.

CMATS divided revenue 50:50 between the two countries from the Greater Sunrise oil and gas field, where they both claim sovereign rights, about 150km south of East Timor and 450km north-west of Darwin. It contains an estimated $40-50 billion worth of oil and gas.

However, East Timor wants the deal to be wound back, after a whistleblower revealed that Australia's spy agency ASIS planted microphones in the Timorese Cabinet room in 2004 while the deal was being negotiated. East Timor argues that Australia broke international law.

On Monday ASIO raided the Canberra office of former ACT attorney-general Bernard Collaery, a lawyer acting for East Timor in The Hague, and also raided the alleged whistleblower's home. The whistleblower was detained for some hours, and his passport cancelled.

Attorney-general George Brandis said he authorised the raid in response to a request from ASIO director-general David Irvine, who said the whistleblower – reportedly a former senior spy who oversaw the bugging operation – had broken the law by revealing classified information.

On Wednesday East Timor's Prime Minister Xanana Gusmao said "Raiding the premises of a legal representative [Mr Collaery] of Timor-Leste and taking such aggressive action against a key witness is unconscionable and unacceptable conduct. It is behaviour that is not worthy of a close friend and neighbour or of a great nation like Australia."

Mr da Fonseca said his team advised Australia's representatives at The Hague that the raid was a "very unfortunate event" but "we are not going to be deterred by that event."

"In spite of the events of the past 48 hours we are not deterred in proceeding in this case," Mr da Fonseca said. He said he was "very very confident" that East Timor had a strong case, and his country would not do anything to frustrate its relationship with Australia if it did not have something "we were very sure about."

He said the spying claims were not discussed on Thursday, because they were part of the substance of the case that would be heard next year. In 2014 the parties will exchange written pleadings, and there will be an oral hearing later in the year.

"The matter to be settled by this arbitration court should not be used to generalise on the relationship that has existed and will continue to exist between the two countries," Mr da Silva said. "We hope that will be the over-arching principle for both of us in proceeding with this arbitration."

He said East Timor had done all it could to settle the matter before taking it to The Hague. "We have come to The Hague because we have done enough and have not been satisfied with the result," he said.

On Thursday the ABC reported that the raid came after East Timor revealed the existence of three more whistleblowers, possibly connected to the bugging operation, who had also given statements about it.

If the raid was triggered by information that came out of the arbitration, it may provide legal grounds for demanding the return of all material seized in the raid, the ABC reported.

Australia was being represented at The Hague by the Solicitor-General Justin Gleeson and Professor James Crawford, a professor of Public International Law at the University of Cambridge.

East Timor's legal team was led by professors from Oxford and Cambridge – Sir Elihu Lauterpacht and Professor Vaughan Lowe – along with Mr da Fonseca.

Timor says it won't be deterred by raids

Australian Associated Press - December 6, 2013

Julian Drape – East Timor says it won't be deterred from challenging a multi-billion dollar oil and gas treaty with Australia in The Hague despite raids on a lawyer's office and the home of a key witness.

Officials from both countries met in the Netherlands for seven hours on Thursday with a full hearing at the Permanent Court of Arbitration now likely in late 2014.

East Timor's ambassador to the UK, Joaquim da Fonseca, said after the meeting that the raids and seizure of documents could impact on Timor's case.

"(But) despite the events in the past 48 hours we are not deterred to proceed with the case," he told reporters outside the Peace Palace. "We are not going to be deterred."

Mr da Fonseca said the talks aimed to establish the rules for the full arbitration hearings next year. They were co-operative and amicable, he said. There will now be written pleadings, before full oral hearings at the tribunal likely in September or October.

East Timor has accused Australia of bugging its cabinet office during 2004 negotiations regarding the Treaty on Certain Maritime Arrangements in the Timor Sea (CMATS).

This week the domestic spy organisation ASIO raided the Canberra office of a lawyer acting for East Timor, Bernard Collaery, and detained a former spy who has given evidence of the Dili espionage operation. Passports belonging to the former ASIS officer and his wife were cancelled.

Asked whether the arbitral tribunal would be able to hear from the key witness in 2014, Mr da Fonseca said: "I cannot comment."

Attorney-General George Brandis on Thursday told the Senate the treaty East Timor wants set aside required "prior consultation" before arbitration could be invoked.

"One of the grounds on which Australia disputes the jurisdiction of the arbitral tribunal in The Hague is that we contend that the government of Timor-Leste has not sufficiently engaged in or exhausted the prior consultation machinery before referring the matter to arbitration," he said, adding the Australian government stood by the CMATS treaty.

But East Timor's ambassador insists his government is "very, very confident" of its case. "Timor-Leste is aware of that (prior consultation) position and has also made it very clear that we have come to The Hague because we have done enough and have not been satisfied with the result."

Mr da Fonseca concluded: "Australia is a very good friend of Timor-Leste and we would not want to frustrate our relationship – let alone to do that with something that we are not very sure about." Australia was represented at The Hague by Solicitor-General Justin Gleeson and Cambridge University law professor James Crawford. They declined to comment.

Intelligence agency failed to investigate spying claims: lawyer

Sydney Morning Herald - December 4, 2013

Tom Allard – The former senior spy who blew the whistle on alleged Australian bugging of East Timor's government took his case to the intelligence watchdog but it did not investigate and advised him to get a lawyer if he wanted to take the matter further.

Lawyer and former ACT attorney-general Bernard Collaery – whose office was raided on Monday by ASIO along with the home of the former Australian Secret Intelligence Service officer – revealed the unsuccessful attempt to get an official inquiry, as East Timor's Prime Minister Xanana Gusmao lambasted the Australian government.

The Inspector General of Intelligence and Security oversees the intelligence community but is poorly resourced and has been criticised for not following up many complaints.

"The witness saw the IGIS about his concerns," Mr Collaery said. IGIS did not launch an investigation, but "he received official permission to see a lawyer about his grievances".

The approach was made to the former inspector general of Intelligence and Security, Ian Carnell, he added. Mr Carnell finished his posting in 2010.

The current IGIS, Vivienne Thom, told Fairfax Media: "I won't comment on any approach taken by any particular person to my office, or my predecessor."

The former spy headed the operation to bug the East Timorese government offices during negotiations on the $40 billion Timor Sea oil and gas fields in 2004. According to Mr Collaery, it was done under cover of an aid project.

The alleged eavesdropping enraged East Timor, which declared the treaty invalid and is seeking arbitration in The Hague, accusing Australia of multiple breaches of international law, including the Vienna conventions on diplomacy and treaties.

Mr Gusmao said on Wednesday: "Raiding the premises of a legal representative [Mr Collaery] of Timor-Leste and taking such aggressive action against a key witness is unconscionable and unacceptable conduct. It is behaviour that is not worthy of a close friend and neighbour or of a great nation like Australia."

Attorney-general George Brandis denied the raids were an attempt to ruin the legal case of East Timor (also known as Timor-Leste). He said he was only responding to a request from ASIO director-general David Irvine and that the ex-ASIS agent had broken the law by revealing classified information. Mr Irvine was head of ASIS in 2004.

Senator Brandis also suggested Mr Collaery risked breaking the law and wasn't covered by lawyer-client privilege. Mr Collaery challenged Senator Brandis to make his remarks outside Parliament. He said Senator Brandis was trying to intimidate him.

The ex-ASIS agent became aggrieved after he found out that former foreign minister Alexander Downer began working as a consultant to resources giant Woodside after leaving Parliament. Woodside had the rights to develop the Timor Gap reserves, and it was Mr Downer who allegedly ordered the eavesdropping.

Mr Downer declined to comment directly on the allegations of espionage, but railed against the ingratitude of the East Timorese government.

"John Howard, I and other members of the Howard government, and the Australian taxpayers and its military, made a huge, huge effort for the Timorese people," he told Fairfax Media.

"We gave them 90 per cent of the [royalty] revenue from the joint development area [for oil and gas in the Timor Sea]. That's nearly all of it. So thank-you very much."

The Howard government – either intentionally or inadvertently, according to historians – prompted the East Timorese vote for independence. It also provided security for the poll and kept troops in East Timor for more than a decade.

But concerns East Timor got dudded in the agreement, known as the Certain Maritime Agreement on the Timor Sea, remain potent in the fledgling and poor nation. East Timor is especially riled that its wish for a processing facility on its soil was ignored by Woodside. IGIS did not respond to questions on Wednesday.

PM Xanana Gusmao calls for Australia to explain itself over ASIO raids

ABC Radio Australia - December 4, 2013

East Timor's prime minister says he is shocked by the Australian Government's decision to authorise raids on a lawyer and whistleblower who were set to provide evidence against Australia in The Hague.

East Timor will launch a case in The Hague tomorrow to have a $40 billion oil and gas treaty it signed with Australia ripped up.

It alleges Australia had the advantage in negotiations because the Australian Secret Intelligence Service (ASIS) hid listening devices in the Timorese cabinet room in Dili in 2004. It claims the operation was ordered by then ASIS boss David Irvine, who now runs Australia's local intelligence agency, ASIO.

Yesterday, ASIO officers raided the Canberra office of East Timor's lawyer Bernard Collaery – who is currently in the Netherlands preparing for the case – and cancelled the passport for a retired Australian spy expected to give evidence after his house was also raided.

The existence of the whistleblower, a former director of technical operations at ASIS, was a secret known to only a handful of officials and lawyers until the raids yesterday.

This afternoon, East Timor's prime minister Xanana Gusmao issued a statement calling on Prime Minister Tony Abbott to explain himself and guarantee the safety of the whistleblower. "The actions taken by the Australian Government are counterproductive and uncooperative," Mr Gusmao said.

"Raiding the premises of a legal representative of Timor-Leste and taking such aggressive action against a key witness is unconscionable and unacceptable conduct. It is behaviour that is not worthy of a close friend and neighbour or of a great nation like Australia."

The lawyer whose office was raided says the Australian Government is attempting to muzzle "the oral evidence of the prime witness" by cancelling his passport. "What do you think the tribunal [at The Hague] is going to think of it?" Mr Collaery said on Tuesday.

Mr Collaery says the alleged spying during negotiations amounts to "insider trading". "If this had happened in Bridge Street, Collins Street, Wall Street, people would go to jail," he told Lateline.

Attorney-General George Brandis has confirmed he approved the warrants to conduct the raid, but denied it was conducted to affect the arbitration at The Hague.

Australia offered to renovate East Timorese government building

East Timor claims ASIS used the cover of Australia's aid program to spy on sensitive information during the 2004 oil and gas negotiations.

The two countries were working on a deal worth tens of billions of dollars to share revenue from the oil and gas deposits under the Timor Sea, called The Greater Sunrise fields.

Woodside Petroleum, which wanted to exploit the field, was working hand in glove with the Howard government and senior ministers to score the best possible deal.

New details from the whistleblower shed light on the alleged spying. A decade ago, under an Australian aid program, the seat of government on the Dili waterfront was given an expensive renovation. But the gift was allegedly a kind of Trojan horse.

East Timor claims in May 2004 ASIS agents posing as site workers started planting listening devices inside the walls of the cabinet room, two offices away from the chamber occupied by the prime minister.

They returned in July and again in August, presumably to check and maintain their eavesdropping equipment before removing all trace of their activity by December, when the operation ended.

Abbott says raids were in national interest

Prime Minister Tony Abbott has defended the ASIO raids, saying they were in the national interest. "We don't interfere in cases, but we always act to ensure that our national security is being properly upheld. That's what we're doing," he told reporters in Canberra.

A Greens motion in the Senate, calling for Senator Brandis to explain the raids, failed after a short debate.

"This is a very disturbing allegation," Greens deputy leader Adam Bandt said. "If it's true, it seems that George Brandis seems to think he's J Edgar Hoover and is able to throw warrants around like confetti. There needs to be a full explanation from our Attorney-General."

Australia defends raids on East Timor lawyer and whistleblower

Reuters - December 4, 2013

Jane Wardell, Sydney – Attorney-General George Brandis said on Wednesday raids by Australia's domestic spy agency on the Canberra offices of a lawyer representing East Timor over Australian bugging claims were justified on grounds of national security.

The Australian Security Intelligence Organisation (ASIO) had ordered the search warrants executed on Tuesday on the offices of lawyer Bernard Collaery and an unnamed former spy turned whistleblower, Brandis said in a statement.

The raids have angered East Timor on the eve of the start of arbitration in The Hague over allegations that the Australian Secret Intelligence Service (ASIS) bugged East Timorese government offices in Dili during the 2004 negotiations over the maritime boundary between Australia and East Timor and the revenue split from the Greater Sunrise gas fields.

East Timor alleges that ASIS, whose spies gather foreign intelligence, breached international law and Timorese sovereignty.

Australia's Woodside Petroleum is contracted to develop the Sunrise LNG plant but is stuck in the middle of the dispute. While Woodside prefers a floating LNG plant, East Timor is pushing for an onshore plant that will provide jobs for locals, leaving the project at a stalemate.

Collaery said Tuesday's raid included the cancelation of the passport of his star witness – the unnamed former spy – making it impossible for the witness to give evidence at The Hague. Brandis said suggestions by Collaery that the search warrants were issued to impede or subvert the arbitration were "rather wild and injudicious."

"Those claims are wrong," he said in the statement. "The search warrants were issued, on the advice and at the request of ASIO, to protect Australia's national security."

East Timorese Prime Minister Kay Rala Xanana Gusmao said the raids were "counterproductive and uncooperative," and called on Australian Prime Minister Tony Abbott to explain the government's actions and "ensure the safety of our witness for a prompt, just and fair resolution of this important matter."

"Raiding the premises of a legal representative of Timor-Leste and taking such aggressive action against a key witness is unconscionable and unacceptable conduct," Xanana Gusmao said in a statement. "It is behavior that is not worthy of a close friend and neighbor or of a great nation like Australia."

Brandis said the ASIO would analyze the material seized in coming days, and he was not personally aware of details.

Timor-Leste spy case: 'Witness held, and lawyer's office raided by ASIO'

The Guardian (Australia) - December 3, 2013

Katharine Murphy and Lenore Taylor – A first-hand witness to alleged Australian spying against Timor-Leste in 2004 has been detained and searched at his Canberra home, according to a prominent human rights lawyer and academic, Frank Brennan.

Brennan told Guardian Australia the senior retired Australian Secret Intelligence Service (ASIS) agent, who is a prime witness in the Timorese espionage case against Australia in the international courts, was detained and searched, as was his wife.

He told the ABC the whistleblower intended to provide "credible direct evidence" of the bugging of the Timorese cabinet rooms in 2004. Brennan described the Australian government's actions as "cowboy antics".

A lawyer at the heart of those proceedings, which centre on the negotiations about a billion-dollar oil and gas treaty in 2004, also had his Canberra law office raided by two agents from the Australian Security Intelligence Organisation.

Bernard Collaery told the ABC on Tuesday evening his senior law clerk had informed him two agents identifying themselves as ASIO had raided his office while he is in the Hague. Collaery is seeking witness protection in the Hague for the former ASIS whistleblower.

"As I understand it, agents of ASIO executed a search warrant on my law practice and spent some hours there seizing all manner of documents and other records on the basis there was a national security issue," Collaery told the ABC.

He suggested the raid "may be an intimidatory gesture towards others" inclined to assist in the Timor case, which involves allegations Australia listened in during high-level negotiations over the lucrative oil and gas treaty.

Collaery told the ABC he believed the key witness had been arrested in Canberra – the former intelligence official who had come forward as a whistleblower in the Timor case.

"The agents who effected the warrant refused to give to my senior law clerk of my practice a copy of the warrant, saying it contained national security secrets," Collaery told the ABC of the afternoon's events.

"I mean how absurd. I have no way of knowing at this moment the legal basis for this unprecedented action of raiding my law offices to procure evidence which is about to go on the table in the Hague." Brennan said young women in Collaery's office felt intimidated during the search.

Timor-Leste was preparing to present an international court with new evidence of spying during the critical 2004 negotiations over a gas treaty.

Alexander Downer, who was foreign minister at the time, accused Timor-Leste of an opportunistic publicity stunt by renewing its claims, but Agio Pereira, the president of the Timor Leste council of ministers, said the evidence was compelling.

International arbitrators have been appointed to review the 2006 treaty amid concerns of commercial advantage gained by Australia's alleged eavesdropping. Timor-Leste says Australia has failed to provide an explanation for the allegations.

The attorney-general, George Brandis, issued a statement late on Tuesday night: "I confirm that today, ASIO executed search warrants at addresses in Canberra, and documents and electronic media were taken into possession."

"The warrants were issued by me on the grounds that the documents contained intelligence related to security matters," Brandis said.

"I have seen reports this evening containing allegations that the warrants were issued in order to affect or impede the current arbitration between Australia and Timor-Leste at the Hague. Those allegations are wrong."

"I have instructed ASIO that the material taken into possession is not under any circumstances to be communicated to those conducting those proceedings on behalf of Australia."

Claims ASIO raided office of lawyer representing East Timor in spying case

ABC Radio Australia - December 3, 2013

A lawyer representing East Timor in its spying case against Australia says his office has been raided by the Australian Security Intelligence Organisation (ASIO).

Bernard Collaery says two agents seized electronic and paper files this afternoon from his law practice in Canberra. He says the agents identified themselves as working for ASIO, and would not show his employees the search warrant because it related to national security.

East Timor has accused the Australia Secret Intelligence Service (ASIS) of covertly recording Timorese ministers and officials during oil-and-gas negotiations in Dili in 2004.

Mr Collaery also believes that a key witness in the Timorese case – a former spy turned whistleblower – has been arrested in a separate raid in Canberra. The ABC is trying to confirm the raid and the arrest.

The negotiations led to the lucrative Certain Maritime Arrangements in the Timor Sea (CMATS) treaty, with both countries agreeing to a 50-50 split of an estimated $40 billion in revenue from the gas development. But the treaty is now under threat, with East Timor launching a case to an arbitration panel at The Hague.

Mr Collaery, who is currently at The Hague as part of his work on the case, told PM that the ASIO agents spent "some hours seizing all manner of documents and other records on the basis that there was a national security issue".

He says the ASIO agents gave his staff no details of their search warrant because it dealt with national security matters.

"I mean how absurd," he said. "I have no way at this moment of knowing the legal basis upon which these unprecedented actions [took place] – raiding my law offices to procure evidence which is about to go on the table in The Hague."

Mr Collaery says the raid is a "blatant, disgraceful attempt" to impede justice being done for East Timor.

"I left Australia just 24 hours ago. There was ample opportunity, I am sure, for the warrant to be executed and for the attempt to be made whilst I was in Australia and could handle the situation," he said.

"This can only relate to the proceedings against Australia over the bugging of the Timor Leste cabinet offices during the negotiations for a petroleum and gas treaty in 2004, so this is a further step in the actions by Australia to shore up its illegally procured treaty."

Mr Collaery says the seized documents include evidence of Australia inserting listening devices into the wall of the East Timor government's cabinet room ahead of the negotiations. However, Mr Collaery says he has the evidence with him in The Hague and the raid will do "very little" to hinder East Timor's case.

"The evidence is here. I can't see what the Government hopes to achieve by this aggressive action," he said. "It can attempt to nullify the whistleblower's evidence, but that evidence has flown – the evidence is here, it's abroad, it's ready."

But he says the raid may act as a measure of intimidation against anyone else who wanted to come forward against the Australian Government.

"What it may of course do is restrict the flow of evidence; it may impede others to come forward who were unfortunately pressed into the service of the minister at the time, Alexander Downer, to effect this bugging operation," he said.

ASIO's official response on the raid is that it has "no comment on the matter".

Last week, the man tipped to be East Timor's next prime minister became the most prominent leader to go public with the accusation against Australia. Agio Pereira says the bugging took place and it gave Australia a massive advantage.

"Insider trading in Australia is a crime. And when you bug the negotiating team's evaluation of the impact of their negotiations, you do have an advantage," he said last week.

"It's more than unfair, it actually creates incredible disadvantage to the other side and according to international law, the Vienna Convention and the law of treaties, you're supposed to negotiate in good faith."

"It's not about money; it's about sovereignty. It's about certainty, and it's about the future of our future generations. It's very important for Timor."

Mining & energy

Government urged to halt a contract with company CNI22

Dili Weekly - December 18, 2013

Paulina Quintao – NGO La'o Hamutuk's representative Charles Scheiner urged the Timor-Leste government to halt two contracts to the Chinese Nuclear Industry Construction No. 22 (CNI22) Company that was awarded funds totaling $1,047,559 to provide tables and chairs for schools, as this company does not have experience in the delivery of the equipment.

Based on information from the National Commission for Procurement (CNA) published to ask the public to comment, it showed the government intends to award two contracts to CNI22 Company of $803,049 to supply small and big chairs for schools in Lautem, Viqueque, Baucau and Manatuto Districts and another contract worth $244,510 to provide chairs and plastic tables for schools across the territory.

According to Scheiner CNI22 Company is undeserving of getting the contracts from the government because he deems the company incapable to undertaking the task.

"There is no evidence CNI22 Company has experiences in the supply of tables and chairs. It is not a business. They just find opportunities to get money," said Scheiner.

He added there is no need to award projects to international companies when there are local companies capable of implementing the projects and that many schools in the country use tables and chairs supplied and distributed locally.

Scheiner also raised concerns with the government blacklisting of national companies. "These companies should not be blacklisted. We don't understand why the Timorese government blacklists national companies while international companies aren't."

La'o Hamutuk's researcher Adilson da Costa also questioned why the government does not award contracts to local companies and why international companies are in charge of all big projects.

"Concerns have already been raised about the way in which CNI22 Company implemented the electricity project in Timor it was awarded. The quality of the work has also been questioned," said researcher Da Costa.

In October 2008 the government of Timor-Leste awarded a contract to CNI22 Company valued at $367 million to build a power plant.

According to Researcher Da Costa, the company failed many times to fulfill its commitments on time, the quality of the materials used was in question, had issue with hiring locally, did not provide a safe working place for workers and did not do adequate environmental management. In the end when it could not complete the work the government handed over the implementation of the works to another company Puri Akraya Engineering.

NGO La'o Hamutuk submitted a formal complaint letter to the National Procurement Commission (CNA) that has oversight over big government projects.

Meanwhile the Director General of the Ministry of Education, Antoninho Pires, said the tendering process for the supply of tables and chairs was divided into five line items, with four of these to be processed through the CAN and one line item of less than one million dollars processed by the Ministry's procurement system.

"I cannot comment on the process used by the CNA to tender its projects because they have their own system," said DG Pires.

He said also the total budget allocated to purchase tables and chairs out of the 2013 State Budget was of $3.5 million. TDW tried to get confirmation on the above issues with the Director of Procurement of the National Commission of Procurement but was refused.

East Timor 'ready to go' with Sunrise gas

Ninemsn.com - December 10, 2013

East Timor is ready to develop the Greater Sunrise gas fields "tomorrow" but refuses to bend to Woodside's preference for a floating project.

Secretary of State for Natural Resources Alfredo Pires says he has major reservations about floating LNG technology, questioning whether the massive vessels could withstand extreme weather. "Things can go wrong with new technology and we don't have money to burn," he said.

East Timor instead wants a processing plant on its shores and says that will cost about $13 billion, not $18 billion as suggested by Woodside.

In September, the impoverished nation offered to contribute $800 million from its $14 billion petroleum fund towards the pipeline costs.

"We can sit down, discuss, maybe cover a few more things," Mr Pires told AAP. He said the results of front-end engineering and design studies for the onshore option would be revealed next month.

"Timor Leste continues to press on with the option. It's much more viable than what we have been led to believe." Gas could be taken from an onshore plant 365 days a year, compared to 320 days a year "at best" out at sea, depending on where the vessel was positioned, he said.

Floating processing was good for stranded fields, but that wasn't the case with Greater Sunrise, situated about 150km from East Timor but some 230km from Australia, Mr Pires said.

Gas from the Bayu-Undan field in the Joint Petroleum Development Area between the two nations had been piped to Darwin, but it was East Timor's turn to have its way.

"I think it's only fair that we get this other one," he said. "We're ready to go tomorrow."

Woodside chief executive Peter Coleman – who Mr Pires described as "refreshing" compared to his more difficult predecessor Don Voelte – decline to speculate on how the impasse would be resolved.

"I might wake up one morning and it's all done," Mr Coleman told an analyst teleconference on Tuesday. "Our relationship with the Timorese has been a solid one throughout this."

Mr Pires is in Australia to discuss investment in a planned $300 million- plus cement production facility in East Timor and will meet with Mr Coleman while here.

An unavoidable topic for discussion will be arbitration underway in The Hague, instigated after East Timor alleged Australian spies had bugged its Cabinet rooms while a treaty covering the Sunrise project was being negotiated in 2004.

Mr Pires said it was up to the Dutch court to determine whether the treaty remained valid. Under the terms of the treaty, if a development plan is not approved within six years, either party can terminate.

Analysis & opinion

What ever happened in Kraras, Timor Leste, 'Pak' Prabowo?

Jakarta Post - December 20, 2013

Aboeprijadi Santoso, Amsterdam – One of the most interesting – and most controversial – presidential hopefuls is, no doubt, Lt. Gen. (ret.) Prabowo Subianto. He is among the few who have both attracted public attention and offered new ideas and policy initiatives. But he also was once closely connected with president Soeharto's family and allegedly involved in a number of human rights violations.

Yet one would be left wondering why we know little about his role in Indonesia's former 27th province, now Timor Leste, where his later military career was shaped. In the late 1970s he was proud to have eliminated Fretilin's first president Nicolau do Reis Lobato.

Prabowo's name has often been associated with a village called Kraras – the place where recently Timor Leste commemorated both the 38th anniversary of its declaration of independence and the 30th anniversary of the worst massacre in the nation's history.

Kraras, some 300 km from the capital Dili, in the district of Viqueque, is beautifully couched in a wide valley with a river near the forest. When I visited in April last year, I found it almost an empty field with a few dispersed houses containing fewer than 100 inhabitants. Friendly villagers welcomed us as we asked about the locality, its people and its history.

Nothing – except the memorial monuments – suggests it was once the locus of a bloody massacre. But in neighboring areas called Bibileo and Klalerek Mutin, one will find houses and various relics of the recent past that indicate militarization. One building, now a school, must have been a center of command with signs for the platoons once stationed there.

Some villagers even decorated their houses with wanted posters of 19 generals seen as being responsible for the country's bloody past. Among them are photographs of generals Soeharto, Benny Moerdani, Wiranto, Kiki Syahnakri and Prabowo.

With the tragedy still fresh in the area's memory, the depth of the trauma caused by the atrocities can be seen in villagers' narratives and resentments.

Unlike East Timorese elsewhere, most people here never learned Indonesian or if they have they are reluctant to use it.

The years 1983-1985 were critical. In March 1983, then Indonesian military chief Gen. M. Jusuf sent Col. Gatot Purwanto to meet with then Falintil guerilla leader Xanana Kay Rala Gusmao. In a place near Kraras the two agreed to hold a cease-fire and celebrated it with a dinner party for soldiers and guerillas.

However, the euphoria was soon dashed. The circumstances that led to renewed violence remain largely unclear.

For one thing, the expectation that the United Nations' condemnation of Indonesia's invasion would result in a negotiation toward self- determination had been frustrated all along. The diplomatic status-quo remained and tension arose despite the truce, with reportedly some shootings. The Falintil planned levatamento, a national uprising.

At the same time, the special Kopasandha military units (later named Kopassus or special forces) seemed to have been consolidated in Falintil's most important command area, the Region II (Eastern), in Viqueque, and started to recruit a greater number of Timorese.

In an oppressive conflict situation – as in later-day Aceh – it's only common that locals recruited to assist the Army covertly developed empathy with their compatriots in the resistance.

Indeed, following the invasion war (1975-1978), some guerilla units changed tactics by surrendering only to rebuild forces from within the Army. The Falintil may have planned an uprising throughout the country, but when mass desertions and guerilla attacks occurred only in Viqueque district on Aug. 8, 1983, it was not clear whether these were part of the plan, or provoked by violence against Timorese women, or both.

On that day, a deserted unit of hansip (local civil defense) led by Commandante Ular Ruhik, launched an attack and killed 16 Indonesian soldiers. One survivor – a medical officer – hiding on the top of a tree, escaped days later and reported the event.

A month later, in mid-September, an unspeakable tragedy occurred. An Army unit with hansip went to Kraras in search of the killers, burned the houses and persecuted the families and others who ran into the forest. There were several massacres at different times; at one point some 180 men were executed near Wetuku River. A priest's note listed 287 people among the dead – young and old, mostly male, and a baby. An uncounted dozens more disappeared.

It was a massacre of targeted groups of unarmed civilians – an Indonesian variant of US army reprisal killings in My Lai, Vietnam, in 1968.

The Kraras massacre, then, is only second to the most disastrous and infamous clash at Mount Matebian in the late 1970s, and, for Indonesia, the worst atrocity since independence – second only to the 1965 killings.

Strangely, however, it's not clear who the commander(s) of unit(s) involved in the massacre around Sept. 17 were, even though Prabowo's Chandraka 8 unit was seen in the region around that period.

As early as April, Col. Purwanto had warned governor Mario Carrascalao that "the peace process is already being sabotaged by Capt. Prabowo" who went in and out of Timor.

The villagers I met three decades later, mostly 1983 survivors, all had heard of Prabowo, but none said to have seen him in the area during the horrific events. But earlier witnesses, including those interviewed by UN police in the early 2000s, claimed he did command the operation.

Curiously, though, the villagers claimed two Timorese hansip leaders, generally known to have been Prabowo's loyal bodyguards, had directed the killings that turned Kraras into a village of widows. In short, sources and researchers suspect Prabowo was directly involved, although his whereabouts and exact role remain unclear.

With an international tribunal seeming unlikely in the foreseeable future, no one should wish for any hope – such as one raised by the 2008 Truth and Friendship Commission (CTF) – that the people of Timor Leste will bury and forget those painful events. Never.

It's of great importance, then, for Indonesia and its future generation to be absolutely clear about what sort of president they would have if Prabowo, given his past controversies, was elected.

Time has come to resolve the legacy of human wrongs. As exceptional the dignity of the nation may be at stake, it's important to learn and scrutinize any response he would give to the principal question that must be asked yet again.

That is: What happened in Kraras, and where were you then, Pak Prabowo?

[The writer is a journalist.]

Australia's surveillance of East Timor too shameful to share

Capre Breton Post (Canada) - December 12, 2013

Gwynne Dyer – And now for something completely different: A spy story that isn't about Edward Snowden's disclosures and the US National Security Agency's surveillance of everything and everybody. This one could come straight out of a 1950s spy thriller: A microphone buried in a wall, a listening post manned by people with headphones, and transcripts of secret conversations delivered to negotiators.

Now it's true that Australia is a member of the "Gang of Five," more formally known as the "Five Eyes" (the United States, Canada, the United Kingdom, Australia and New Zealand), which share most of the information that they acquire through hi-tech mass surveillance. That's the kind of spying that Snowden's leaks are about, and whatever Australia picks up through this process it presumably shares with its co-conspirators.

It was in this context that Australia listened to the phone conversations of Indonesia's president, Susilo Bambang Yudhoyono, his wife and eight potential successors. When Indonesia recalled its ambassador from Australia's capital city of Canberra and protested, Australian Prime Minister Tony Abbott swatted the protest away with the line they are all using now: "All governments gather information and all governments know that every other government gathers information."

The Indonesian reply was a classic. "I have news for you," said Foreign Minister Marty Natalegawa. "We don't do it. We certainly should not be doing it among friends." He was, he said, deeply unhappy about the "dismissive answer being provided" by the Australian government. So Australia has managed to alienate its biggest neighbour, probably for no advantage to itself, just as the United States has alienated Brazil with the same tactics.

But the kind of spying under discussion here was too shameful to share even with the other four countries of the "anglosphere." It was an Australian- only operation mounted in 2004 to gather information about the negotiating position of a very poor neighbouring country, East Timor (which shares the island of Timor with Indonesia), so that Australia could rip its neighbour off in a treaty that divided a rich gas field on the seabed between them.

The treaty in question – "Certain Maritime Arrangements in the Timor Sea" -- always seemed a bit peculiar. The CMATS treaty gave Australia a half share in the massive Greater Sunrise field, which is said to be worth $40 billion. But that field lies just 100 kilometres south of East Timor, and 400 kilometres from Australia.

The normal rule on international seabed rights would put the boundary equidistant between the two countries, but that would have given East Timor sovereignty over the entire gas field. Instead, CMATS postponed a final settlement of the seabed boundary for 50 years, and in the meantime gave Australia 50 per cent of the revenue from the Greater Sunrise field.

The existing gas field off East Timor's coast has only about 10 years' life left, and the East Timor government depends on gas revenues for 95 per cent of its income, so it was very vulnerable in those negotiations. The Australian negotiators could exploit that vulnerability because they had daily updates on how desperate their Timorese opposite numbers were: The Australian Secret Intelligence Service had bugged the prime minister's and the cabinet offices.

Four ASIS operatives did the job, pretending to be part of a team of Australian aid workers that was renovating East Timor's government offices. The man who gave the order was Australia's foreign minister at the time, Alex Downer, who now runs a public relations firm that represents Woodside Petroleum, a major Australian company that was the main beneficiary of the treaty. Funny how things work out.

The operation would never have come to light if the former director of technical operations at ASIS, who led the bugging operation, had not had an attack of conscience on learning of Downer's link to Woodside. He told East Timor about it, and the Timorese government then brought an action before the Permanent Court of Arbitration at The Hague demanding that the CMATS treaty be cancelled.

The Australian government's response was to arrest the whistleblower and cancel his passport last week so that he could not travel to The Hague to testify, and to raid the Sydney offices of Bernard Collaery, the lawyer who is representing East Timor before the court.

The documents seized include an affidavit summarizing the whistleblower's testimony at the court and correspondence between Collaery and his client, Timorese President Xanana Gusmao. It's more of the same sort of behaviour: The Australian government has decided to brazen it out.

Can Australia get away with this? Not legally. As Collaery says, "It was a carefully premeditated, involved, very lengthy operation with premeditated breaches of the Vienna Convention on the Law of Treaties, and premeditated breaches of the Vienna Convention on Diplomatic Relations. This is a criminal conspiracy, a break-in on sovereign territory and a breach of Australian law." And he has three more whistleblowers lined up to testify too.

But the case may still be settled out of court, because East Timor is still desperate. Woodside has not yet started developing the Greater Sunrise field, and it will never do so if there isn't a deal. Offer East Timor another 10 per cent and a promise to go ahead, and it will probably drop the case. The poor cannot afford justice.

[Gwynne Dyer is an independent journalist whose articles are published in 45 countries.]

Timor-Leste, it's spies like us... or like them, anyway

Crikey.com - December 11, 2013

Damien Kingsbury – Australia and Timor-Leste are in a diplomatic lull following the revelations that Australia spied on Timor-Leste's cabinet via agents working through its aid program. Prime Minister Xanana Gusmao is in South Africa for the funeral of Nelson Mandela, who had visited him in prison in Jakarta and thus helped elevate his international status.

But one senior minister, left to mind the shop, chuckled quietly. By spying on Timor-Leste, he believes that Australia has provided the mechanism required to invalidate the unequal Timor Sea treaty between the two countries.

There is official insistence that Australia and Timor-Leste remain close friends, despite the occasional angry comment. This particular dispute, the Timor-Leste government believes, should remain quarantined from the wider relationship.

Australia's official perspective is similar, with ambassador Miles Armitage taking a soft line towards recent demonstrations outside the Australian embassy. He was dismayed by riot police over-reacting and firing tear gas at a small group of protesters, also gassing ordinary police who had the situation well under control.

But it is not as though spying in Timor-Leste is much of a secret. One minister privately joked that the Chinese-built foreign affairs building is full of listening devices. And then there is the Chinese-built presidential palace and defence forces headquarters.

Australia is far from alone in its close interest in the Timor-Leste government. It is also far from alone in keeping tabs on the other representative offices here. Embassy row, along the seafront west of the town centre, boasts compounds that would look impressive in much larger capitals.

The substantial presence of China, the United States, Australia, Indonesia, Japan, Russia, Portugal and the other Lusophone states – Malaysia, Thailand, Singapore, New Zealand – reflects Timor-Leste's strategically important location astride oil and gas fields, a critical submarine deep sea route between the Indian and Pacific Oceans and being in the middle of the world's largest archipelago.

It also reflects the simple fact that, with everyone here and paying attention, everyone else also feels they need to be here and paying attention to everyone else. East Timor-Leste itself demurs on this question, claiming that it does not have the capacity to spy.

Yet in its 24-year struggle for independence, the Timor-Leste guerrilla army's intelligence network surpassed even that of the notoriously extensive intelligence network of the Indonesian military. The old networks, like the old clandestine names – of which Prime Minister Xanana, President Taur Matan Ruak and parliamentary speaker Fernando Lasama are but a few – remain intact.

Information – about everything and everyone – always has been and remains the richest of prizes in Timor-Leste. To the extent that intelligence gathering activities have changed since Indonesian times, it is only their much greater scope that is different.

[Professor Damien Kingsbury is director of the Centre for Citizenship, Development and Human Rights at Deakin University.]

Eroding the propriety of the Timor deal

Melbourne Age Editorial - December 11, 2013

Whatever merit the Australian government might discern in spying on the ministers of East Timor in 2004, it is beggarly that its operatives apparently went about their work in Dili using the cover of aid workers. It is certainly not the first time aid workers have been accused of spying, but deceit of this kind brings suspicion on all non-government aid workers, irrespective of who they are and what they do. It runs the risk of endangering all legitimate aid workers who seek to help the disadvantaged.

East Timor says it has identified four Australians who visited the newly independent nation in 2004, when the two countries were in the early stages of negotiating a treaty on dividing the substantial revenue that is expected to be derived from gasfields operations in the Timor Sea. East Timor's government says bugging devices were installed in its prime ministerial office and cabinet rooms by the Australians, who it says posed as workers on an aid project renovating the building.

Aid agencies operate in extreme and difficult conditions, often on the front line of danger and often in countries where they are constantly at risk from brutal regimes. They dare to help when no one else will. To deploy intelligence agents under the cover of aid workers is to exploit the fragile trust that aid agencies must forge with their host country. It weakens their security because it discredits their altruism.

The allegations have emerged as Australia and East Timor enter the first stages of arbitration to resolve a dispute over the gasfields treaty, and they come less than a week after the Australian Security Intelligence Organisation raided the Canberra home and offices of an Australian lawyer working for East Timor. ASIO also raided the home of a former Australian Secret Intelligence Service officer who is said to be prepared to blow the whistle on the 2004 operation.

East Timor believes it was short-changed in the treaty because, in its view, Australia acted in bad faith by spying on its negotiators. As The Age has said, it is morally repugnant for a wealthy nation such as Australia to take advantage of a deeply impoverished one by spying on it for commercial advantage. To excuse such actions as being in the national interest is breathtakingly cynical.

Indonesian lessons for choppy East Timor waters

Crikey - December 6, 2013

Damien Kingsbury – The new government is not off on the right foot in foreign policy terms, with the Indonesian spying scandal dominating headlines. But a bigger problem looms: East Timor.

The Coalition government's first months in office have been a crash course in regional politics, with somewhat more emphasis on the "crash". Foreign Minister Julie Bishop has now put in place the first of what is expected to be six steps to repair Australia's damaged relationship with Indonesia, while relations with East Timor are being battered by clumsy handling of that country's claim for arbitration over the Timor Sea.

Bishop's visit to Jakarta and her softer approach to Australia's culpability over spying on Indonesia, including its President, was exactly what was needed to keep this critically important relationship on track. Unfortunately, it was needed more than three weeks ago, when such an approach could have averted the subsequent fallout.

Had Bishop gone to Jakarta with exactly her current approach when the spying scandal first broke – but before President Susilo Bambang Yudhoyono was involved – the issue would have been neutralised. Instead, Prime Minister Tony Abbott weighed in via Parliament, making a bad situation worse.

That lesson about pre-emptive diplomacy has now been learned. But Indonesia will have to take the lead and shape a re-established relationship.

With East Timor, the government – and its predecessor – have known for years that Australia would face a legal challenge over the forced carve-up of the Timor Sea. The East Timorese government has long signalled that its claims against Australia included allegations of Australian spying in order to gain an unfair advantage.

With the first hearing on the matter in the International Court of Arbitration known well in advance, it is deeply puzzling why Attorney- General George Brandis would wait until almost the eve of the hearing before ordering raids on the office of East Timor's lawyer, Bernard Collaery, and the home of a former Australian Secret Intelligence Service officer.

Brandis claims the raids were not intended to try to thwart East Timor's case, but were rather focused on preventing the release of classified information. But given the timing, that is not how it looks.

In any case, most of the relevant material was already in The Hague and will be available to the court. The raids and cancelling of the passport of the former ASIS officer are a minor glitch for East Timor's case, but will be counted against Australia's argument before the court.

So, too, being counted against Australia will be former foreign minister Alexander Downer's support for Woodside Petroleum – the major player in proposed Timor Sea gas extraction – and the economic benefit it stands to receive as a consequence of the Timor Sea carve-up. That Downer has since been put on Woodside's payroll looks, at best, like a conflict of interest.

At stake in the hearing is the legality of Australia's CMATs agreement with East Timor which, if it is found to be invalid, will also invalidate two previous treaties which are "read together" with CMATS. Up for grabs, again, will be the issue of a permanent sea border between the two countries, and control over more than $40 billion worth of gas and oil.

Should this claim be successful, not only will the sea border with East Timor be up for grabs, the previously related sea border with Indonesia will then become out of synch. One border will reflect a median point between two countries, the other the edge of a continental shelf.

Of major concern to Australia is that it could now lose territorial reach and control over a good proportion of the Timor Sea's resources. Of at least equal concern is the flow-on effect this could have for the border with Indonesia. A dispute between Australia and tiny East Timor over their sea border is troubling. A subsequent territorial dispute with Indonesia would make the recent spying row pale into insignificance.

[Professor Damien Kingsbury is director of the Centre for Citizenship, Development and Human Rights at Deakin University.]

Stoush over alleged Australian spying on East Timor has a long history

Sydney Morning Herald - December 6, 2013

Donald K. Anton – Claims of Australian spying on East Timor are only the latest chapter in a saga of clashes over treaties.

In the last installment of Keating, the recent series of interviews on ABC, former prime minister Paul Keating claimed he tried to do everything possible for the people of East Timor, but that his government never "got any credit from the East Timor lobby, of course". The reason for this lack of credit – not only for the Keating government, but for governments of all political persuasions – has a long history.

It is a history that is bound up with the present attempt by East Timor to have an arbitral tribunal declare invalid the 2006 Treaty on Certain Maritime Arrangements in the Timor Sea. This history has been ably recounted in many places. It need be only briefly rehearsed here for one to understand the dissatisfaction of East Timor with CMATS.

The trouble begins after 1972, the year Australia was able to use the law of "natural prolongation" based on the geophysical characteristics of its continental shelf to extract a lopsided agreement from Indonesia by which it obtained, by one estimate, nearly 80 per cent of a maritime area that had been subject to overlapping claims by Indonesia. The rub was that Australia was unable to extract a similar agreement from Portugal, the UN administrative authority of East Timor.

After the illegal invasion and forcible acquisition of East Timor by Indonesia in 1975, further agreement on a seabed boundary between the coasts of Australia and Indonesian-controlled East Timor was impossible. Indonesia insisted on using the "equidistance" principle, now an accepted rule of delimitation, which requires states with opposite coastlines closer together than 400 nautical miles to draw a median line between them, at least as a starting point for negotiations. Australia would not have it.

This stalemate persisted until 1991, when the notorious Timor Gap Treaty entered into force. Under its provisions Australia and Indonesia purported to set up a zone of co-operation to divvy up – between them alone – oil resources belonging to East Timor.

The Timor Gap Treaty, however, was illegal because Indonesia had used military force to assert control over the territory of East Timor, an act that is prohibited by one of international law's most fundamental prohibitions. As a result, Indonesia had no title to the East Timorese territory or the oil resources of its exclusive economic zone over which it could deal with Australia.

From 1991 to 1995, Australia fought hard to preserve the Timor Gap Treaty in the International Court of Justice against a challenge to its legality by Portugal. The successful Australian defence was not based on the merits of the validity of the treaty, but involved the use of a procedural argument that precluded the ICJ from hearing the case because Indonesia refused to appear.

Four years later, however, the Timor Gap Treaty was terminated after East Timor was allowed to exercise its right of self-determination to become an independent state.

Australia did not wait long to begin to reposition itself in connection with the petroleum resources covered by the defunct Timor Gap Treaty. First, it lodged a new reservation to the jurisdiction of the ICJ and the International Tribunal for the Law of the Sea clearly intended to preclude East Timor from suing Australia over the disputed maritime zone.

Then, Australia and East Timor entered into the Timor Sea Treaty, followed by a number of related instruments over the next year. Under the new arrangements, the largest known petroleum deposits, collectively known as "Greater Sunrise", were apportioned in a manner whereby Australia received about 82 per cent of the total resource, leaving newly independent and impoverished East Timor with 18 per cent.

This brings us to the negotiation of the CMATS treaty. CMATS is notable for its duration until 2057, its extension of the Timor Sea Treaty until 2057, its moratorium on all claims to sovereign rights and maritime boundaries for the period of the treaty, and its relief from any obligation to negotiate in good faith over permanent boundaries until 2057.

Significantly, it also provides for an equal share for East Timor and Australia of the revenue derived from upstream exploitation of petroleum from the Greater Sunrise deposits. While this revenue sharing arrangement seems much more generous than previously, the problem now appears to be the way in which East Timor's consent to the CMATS treaty was procured.

If the recent media reports are accurate and Australia bugged the cabinet room of the East Timor government from 2004, when the CMATS treaty was being negotiated, then it is very likely that CMATS (and the extension of the Timor Sea Treaty) is invalid and thus void. While it is impossible to know the basis of the claims East Timor is asserting against Australia in the current arbitration because these proceedings are closed to public view, it is possible that CMATS could be declared invalid or void on three separate grounds.

First, under the Vienna Convention on the Law of Treaties, which binds Australia and East Timor, a state that is induced to conclude a treaty by fraudulent conduct may invoke the fraud to invalidate its consent to be bound by the treaty.

The definition of fraud under the Vienna convention is much broader than that found in domestic law. It includes deliberately deceitful behaviour. It seems clear that secretly purloining confidential cabinet information to gain advantage in treaty negotiations is deceitful behaviour. Less certain is whether this deceitful behaviour actually induced East Timor to enter the CMATS treaty. That will depend on what the evidence discloses. If a deceitful inducement is disclosed, Australia will apparently have the dubious distinction of being the first known state to have a treaty declared invalid on account of its fraud.

Second, it appears that the sort of spying that is reported to have taken place is a breach by Australia of its obligation of good faith under international law. Good faith is a broad rule of international law that requires fair dealing between states generally.

In the context of treaty negotiations it requires fair proceedings in the creation of legal obligations between the parties. In the case of CMATS, Australia already had a vastly superior bargaining position with its sophisticated experience and expertise in diplomacy and the science relevant to reserves and apportionment. To seek to gain a further upper hand by way of spying is the antithesis of good faith.

Finally, if the spying reports are true, it seems clear that Australia has breached international law by illegally intervening in the most intimate domestic affairs of East Timor without its consent.

International law prohibits one state from spying on another state because international law prohibits states from interfering with matters within the sovereignty of other nations. Despite all the claims from the United States and Australia that all states spy, it remains illegal under international law. This is confirmed by the vigorous protests that invariably and immediately follow as soon as a state publicly learns that it is being spied on.

This saga is likely to continue absent goodwill on the part of both parties. The most just course of action at this point could be to allow an independent third party to finally make a judicial determination of the seabed boundaries between East Timor and Australia to achieve an equitable solution.

[Donald K. Anton is Associate Professor of Law at the Australian National University College of Law.]

Turbulence in the Timor Sea

Inside Story - December 6, 2013

Despite the usual diplomatic niceties at the celebration of the thirty- eighth anniversary of Timor-Leste's declaration of independence in Canberra last week, the raid on that nation's legal counsel in Australia, Bernard Colleary, probably says more about the current state of the relationship between the two countries.

It may be true, as attorney-general George Brandis asserts, that ASIO was more concerned about the potential identification of Australian intelligence activities and identities than in undermining the forthcoming arbitration in The Hague over an oil revenue sharing treaty. In practice, however, it is difficult to peel those two apart. This is especially so given that Timor-Leste's star witness in the arbitration - an ASIS agent turned whistleblower - has had his passport removed, an act that will inevitably affect the presentation of Timor-Leste's case.

The key allegation is that Australian intelligence operatives spied on the Timorese negotiating team in 2004, and that the surveillance was aimed at securing a commercial advantage in revenue-sharing talks. Especially damaging is the allegation that the exercise involved planting listening devices under the guise of an aid project to renovate government offices, rather than more routine communications surveillance, which - though damaging - might more easily be represented as incidental to a security purpose. This raises wider issues about the regulation of intelligence agencies, the opaque enforcement of these laws, and the lack of adequate independent judicial oversight.

The possibility that AusAID may have unknowingly been used for intelligence gathering activities is very disturbing, and raises concerns over the ability of that agency to function free of suspicion in the region. Former foreign minister Alexander Downer was dismissive of these allegations as "old news," though his current role as a lobbyist for Woodside Petroleum does little to inspire confidence in his commentary.

In Timor-Leste itself, where it is seen as a matter of national sovereignty, the controversy has united the often fractious political parties. It should first be understood that although Australia and Timor- Leste still have no settled maritime boundary, a complex series of revenue-sharing agreements has allowed some oil and gas developments to proceed. The complicated history of how that situation arose helps explain why tensions are so high at the moment.

In 1972, Australia settled a very favourable deal with Indonesia on maritime boundaries, based on "continental shelf" principles that were little favoured in international law at the time, and are scarcely credible today. As a result, the boundary was much closer to Indonesia than to Australia. Portugal - then the administering colonial power in East Timor - refused to join the negotiations, preferring to wait for the international process which, in 1982, resulted in the UN Convention on the Law of the Sea, or UNCLOS. Portugal's decision created the "Timor Gap" in the Australian-Indonesian sea boundary.

In 1989, Gareth Evans famously sealed a deal with Indonesia for joint exploitation of oil and gas in the Timor Gap and for 50-50 revenue sharing in the "Zone of Cooperation." Such an agreement was dependent on Australia being the only Western nation to offer de jure recognition of Indonesia's forced annexation of East Timor. Portugal challenged that treaty in the International Court of Justice, but the action lapsed in the face of Indonesia refusal to recognise the court's jurisdiction.

With the restoration of East Timorese independence in 2002, these arrangements had to be renegotiated. In the meantime, international law had sharpened considerably. Since the UN Convention on the Law of the Sea in 1982, standard international practice has been for maritime boundaries to be established at the median point between nations. This is not an idealist principle of international law, emanating abstractly from Geneva or New York, but a specific convention to which Australia voluntarily acceded in 1994.

Australia withdrew from the maritime boundary dispute resolution procedures of UNCLOS, and the equivalent jurisdiction of International Court of Justice, two months before the restoration of East Timorese independence in May 2002. These unilateral actions - which showed little confidence the strength of the "continental shelf" argument - left Timor-Leste without the option of internationally arbitration. The withdrawal was conducted in secret, with the Australian parliament only informed after the reservations took effect.

After independence, a section of the old Zone of Cooperation, now renamed the Joint Petroleum Development Area, or JPDA, was renegotiated to give Timor-Leste 90 per cent of revenues. Though this might appear generous at first blush, Timor-Leste had a respectable claim to the entire area, and the JPDA notably excluded other existing fields, such as Laminaria- Corallina and Buffalo. The JPDA's life span is limited, moreover, and the picture was complicated by subsequent negotiations over an undeveloped field - Greater Sunrise.

Under the next in the series of treaties, the Sunrise International Unitisation Agreement, 20 per cent of that field was declared to be within the JPDA boundary - giving Timor-Leste rights to only 18 per cent of its total revenues under JPDA principles. The subsequent and now contentious Certain Maritime Arrangements in the Timor Sea treaty, or CMATS, then did two things: it increased Timor-Leste's share of upstream revenues in Greater Sunrise to 50 per cent, but on condition that permanent maritime boundary negotiations were delayed for fifty years. Though Timor-Leste acceded to the treaty in 2007, it is worth noting that it didn't have the option of an arbitrated settlement: Australia's withdrawal from two international dispute resolution jurisdictions put the negotiations outside the realm of international law and firmly in the realm of power politics. A median point maritime boundary determination would see a far larger percentage of these resources in Timor-Leste's exclusive economic zone.

Timor-Leste has since been in a standoff with Woodside Petroleum, whose preference for a floating LNG processing facility in the Timor Sea clashes with the Timorese desire for a processing facility on Timor's south coast, to boost development of that region. Regardless of the merits of that plan - and they are in some respects debatable - the Timorese leadership is united in that position. Although Timor-Leste or Australia had the right to suspend the treaty in February 2013 if a Greater Sunrise development plan had not yet been approved, the revenue sharing and boundary moratorium provisions in CMATS would come back into force whenever the field is developed. This, in effect, made certain aspects of the CMATS treaty irrevocable.

The significance of the current arbitration is that Timor-Leste is seeking to have the treaty nullified under the wider principle, codified under the Vienna Convention on the Law of Treaties, that negotiations should take place in "good faith." Although the world of realpolitik promotes cynicism of such concepts, the issues here are now quite stark ones: if Australia was spying on the Timorese negotiating team, the issue of good faith is already in question. If it could be established that Australia was doing so for the purposes of gaining unfair commercial advantages, for Treasury itself, or for Woodside Petroleum, the question becomes all the more pertinent.

This is a difficult path for the young nation. If CMATS is annulled, negotiations over the maritime boundary could resume, but the former treaty - which gives Timor-Leste only 18 per cent of Greater Sunrise revenues - would effectively prevail in the meantime. To some, the contest over CMATS might also raise fears about the sovereign risk of investing in the Timor Gap, though the Timor-Leste government would counter, with considerable justification, that they have not abrogated any treaty and are merely using dispute resolution provisions that Australia signed and ratified. Importantly, from the Timorese perspective, a permanent maritime boundary offers the prospect of increasing Timor-Leste's share of the only resource available in the short-term to deal with massive issues of poverty, illiteracy and underdevelopment. This issue is becoming totemic of national sovereignty.

For the Australian government, the risks are less obvious. A good relationship with Timor-Leste is certainly at stake, and those cynical of its importance might reflect on the failure of Julia Gillard's "East Timor solution." The court of Australian public opinion is another issue. The public is relatively well-informed about East Timorese people's support for Australia's Sparrow Force during the second world war and Australia's subsequent abandonment of the East Timorese until 1999. Australians' rightful pride in the Australian government's leadership of the INTERFET mission is widely viewed as an historical corrective. It is unlikely that the public wants to see this tarnished by unfair treatment of Timor-Leste's finite oil and gas revenue base.

Australians are also unlikely to be impressed that Australia withdrew from the two maritime boundary dispute resolution mechanisms in 2002. That Australia then settled its maritime boundaries with New Zealand along median lines only two years later in 2004 is less well-known at present. A new campaign is likely to highlight this, and public questions will be asked about the differing standards applied. Any evidence that Australia extracted an unfair commercial advantage during treaty negotiations could further undermine public sympathy.

Another path is possible in the negotiated settlement of maritime boundaries in good faith - settling the major irritant in the relationship for good. If this approach is adopted, Australia may well find Timor-Leste willing to negotiate transitional arrangements over existing and future oil and gas wells in its waters, providing for commercial certainty and, potentially, continuing revenue sharing, on fairer terms.

[Michael Leach is an Associate Professor in Politics and Public Policy at Swinburne University of Technology.]

East Timor or Timor-Leste? Evolving terminology explained

Crikey - December 6, 2013

Gordon Peake and Piers Kelly – With allegations of Australian chicanery during the Timor Sea negotiations, a definitional question emerges for the media: just what is the correct name of our northern neighbour? East Timor or Timor-Leste?

The ABC and The Guardian seem to be working off different style guides on the question. In the main, journos tends to use the former, with talking heads more frequently opting for the latter.

The "-Leste" part is a Portuguese-derived term meaning "East", and its position after the word "Timor" is consistent with the rules of both Portuguese and the national language Tetun. Why then is it becoming habitual to use this term in English-language contexts? After all, we tend not to talk about going on holidays to Italia or Deutschland, for which well-established and better-understood English counterparts are available.

It turns out that there are good reasons for this. First of all, it's what the Timorese government calls itself. Despite the fact that "Leste" is a word of Portuguese origin – and Portuguese remains an official language of Timor-Leste – this is very much a local word. The use of the term "Timor- Leste" in local Timorese languages is perfectly natural, just as Latin-via-French derived words like "local" and "language" have long sounded native to English-speakers. The emblematic power of "Timor-Leste", even in English-speaking contexts, is also important as a way of emphasising a hard-won sovereign identity. There are precedents in other former colonial enclaves: in 1986 The Republic of the Ivory Coast was officially changed to Cote d'Ivoire in English-language publications. And elsewhere, terms such as Eire for Ireland and Aotearoa for New Zealand are used by some activists as markers of political legitimacy.

Up to about 2006, you often heard Timorese refer to their country via the Tetun word Timor Lorosa'e (literally Timor "sun rises"), but that phrase seems to have dropped out of use. That's probably because, during the country's crisis of that year, "lorosa'e" came to be a signifier of difference rather than unity. Lorosa'e was one of the words used to refer to people from the east of the country, as opposed to those from the west, who were referred to as Timor Loromonu ("Timor sun down").

Second, it's what the Australian government now officially calls the country, the name switch coming during Bob Carr's tenure as foreign minister. The first time we've found an official preference in English for "Timor-Leste" over "East Timor" was in a bright-eyed blog piece he (or, probably more accurately, a staffer) penned in May 2012 on the 10th anniversary of the restoration of the country's independence. Prior to that, there did not seem to be much rhyme nor reason as to what name was deployed.

(Etymologists might also want to point out that both Timor-Leste and East Timor are a form of translation tautology, given that timur is a widely understood term for "east" in regional lingua francas like Indonesian. Thus "Timor-Leste" would literally mean "East-East", in the same way that Lake Titicaca means "Lake Lake".)

There's no doubt that "Timor-Leste" is gaining ground. A quick search of Factiva shows that between 1990 and 2000 there were 90,789 instance of "East Timor" in the English-language press and just 4229 instances of "Timor-Leste". From 2000 to 2010 the figures are 151,115 for "East Timor" and 13,835 for "Timor-Leste". But in the past three years alone "East Timor" has been used on 28,320 occasions while "Timor-Leste" has turned up 9249 times. In other words, usage of "Timor-Leste" over "East Timor" has increased from 4.5% in the decade from 1990 to 24.6% today.

A deliberate preference for indigenous words in English contexts may sound alien to our ears, but perhaps that is the point. For new or emergent nations, being recognised as "foreign" is a significant end in itself.

[Gordon Peake is a research fellow at the Australian National University and author of Beloved Land: Stories, Struggles & Secrets from Timor-Leste, published by Scribe; Piers Kelly is a linguistic anthropology.]

Intimidation won't work on Collaery

New Matilda - December 6, 2013

Shirley Shackleton – This week the home and offices of Australian barrister Bernard Collaery were raided, while he was in the Hague seeking arbitration for a fair deal for the Timorese over their share of their own oil.

As Collaery said, soon after the star witness in his case had his passport confiscated on the orders of the Attorney-General George Brandis, Australia's bugging of the East Timorese for Woodside petroleum's commercial interest is tantamount to "insider trading". "If this had happened in Bridge Street, Collins Street, Wall Street, people would go to jail," he said.

Intimidation won't work on Collaery, a respected former ACT attorney- general and deputy chief minister. He has a long history of defending Timorese and Australian citizens who took part in protests for a free East Timor, even when it left him out favour with those in power in both Indonesia and Australia.

One of the first to be invited into East Timor after InterFET forces took over, Collaery witnessed unforgettable events as he accompanied Xanana Gusmao around the countryside.

"Everywhere we went," he told me when I was in Balibo with him recently, "starving people brought us food which Xanana refused to accept. He saw to it that the food was given to the worst of the starving. I have never been so hungry in my life."

When they entered each village, young lads waited to honour their leader, Maun Boot Kay Rala Xanana. These fatherless boys carried objects representing their dead fathers while walking backwards to lead their hero into the centre of their burned villages occupied by orphans and widows.

Each and every morning they came upon processions led by priests followed by Timorese families carrying small bundles containing dead babies and toddlers. It's a pity that oil company executives and Australian bureaucrats cannot be taken to Timor now, because the death-rate of babies and toddlers is still high. In other words, East Timorese need a fair deal from wealthy nations.

Crucial to an understanding of the Australian government's attitude to East Timor today is Alexander Downer's first speech as foreign affairs spokesperson for the Coalition in 1995, which he delivered to Amnesty International on the topic of human rights and Indonesia:

"We cannot simply speak with a loud voice when injustice occurs on the other side of the world, whilst whispering softly or remaining silent when similar events take place within our own region."

Those were his words; but Timorese remember Downer for his bullying actions. He thumped the table and screamed insults at Timor's representatives when they questioned the injustice of the terms of the agreement he was touting over the legality of vast deposits of oil.

Those present have told me that they were not frightened by Downer's bullying. They'd had 24 years of torture and murder. They were disgusted by the disregard for the tenets of democracy shown by representatives of the Australian government, which Clinton Fernandes detailed in the Guardian this week:

So what was the Timor Sea Treaty that Australia went to such great lengths to secure that allegedly places all Australians in danger when they are working in Timor Leste?

Signed in 2002, it replaced the Timor Gap Treaty, a notorious instrument signed in 1989 by former foreign ministers of Australia and Indonesia, Gareth Evans and Ali Alatas, as they clinked champagne glasses in an aircraft over then-occupied East Timor's maritime resources.

Since 2002, when then-foreign minister Downer signed the Timor Sea Treaty, the oil giants Woodside, Shell and Greater Sunrise have become players. Timorese were not surprised when Downer then landed a consultant's job pushing western oil interests.

The intransigence shown by Tony Abbott, Downer and Brandis over the Collaery affair is nothing new. I remember how Whitlam stood by in 1975 while the Timorese Democratic Union (UDT) staged a coup against the remnants of the Portuguese regime. The UDT had a following among the colony's small elite. It was comprised mainly of high-ranking colonial officials, hold-overs from the fascist regime, plantation owners and regional chieftains, whereas Fretilin had the support of the ordinary East Timorese.

Senator Neville Bonner, a Liberal from Queensland, travelled to Dili in September 1975, two months before East Timor unilaterally declared independence. He returned to Australia after 10 and a half hours, and reported that:

"Fretilin representatives appeared to be acting in a very responsible manner and were trying to get the people back to their crops and bring peace to Timor. I've tried to tell Mr. Whitlam this, but haven't been able to get his ear."

The UDT coup was put down in only 11 days by Falintil, the fighting arm of Fretilin. But it was promoted by the Suharto regime as "the Civil War" and this propaganda was manipulated as an excuse for the invasion of East Timor, by western fellow-travellers who became known as the Jakarta Lobby. Twenty-four years of genocide was the consequence.

Thirty-eight years ago, when my husband was reported missing in Balibo along with four colleagues, I received messages from concerned Australian citizens who claimed that their relatives worked for a receiving station for electronic interception in Shoal Bay. They insisted that the journalists had been murdered on 16 October in Balibo and the Australian government knew all the facts.

Everyone seemed to know about our superior electronic intelligence activities except successive Australian governments, who obviously failed to supervise our spy agency, the Australian Signals Directorate's activities.

A succession of lies followed the atrocity at Balibo. Some remain in circulation today. Greg Shackleton was blamed for his own murder at the hands of Team Susi, an Indonesian military assassination squad sent to shut him up.

No Australian government department over the past 38 years seems to have understood that human beings thirst for justice. It's a given and you don't have to be a victim to understand its legacy.

However, you do have to possess a shred of decency sadly lacking in some of our leaders. Bernard Collaery does possess that spark of justice and dignity, as do the Timorese. They know the more repressive the regime the more we crave justice.

Why whistleblowing spies have to go to the media

Crikey.com - December 5, 2013

Bernard Keane – As the United States-style war on whistleblowers and journalists ramps up in Australia, one of the key myths about national security whistleblowers has taken another hammering.

A persistent argument by politicians and friendly national security-aligned journalists is that whistleblowers who go to the media do so unnecessarily, because there are "internal mechanisms" for whistleblowing.

In fact, such mechanisms are usually deliberate dead ends. Several former NSA officials have detailed their years-long efforts to raise concerns about criminal conduct, incompetence and misappropriation within that agency – in one case, a failed project by SAIC costing hundreds of millions of dollars – to no avail.

Today Fairfax's Tom Allard has revealed how the Australian Secret Intelligence Service whistleblower at the centre of the 2004 Timor-Leste spying operation tried to raise their concerns about the matter with the Inspector General of Intelligence and Security, but was rebuffed.

Yesterday Labor and the Coalition combined in the Senate to block a Greens motion that Attorney-General George Brandis explain the raids on the Canberra lawyer representing Timor-Leste (also known as East Timor), Bernard Collaery, and the whistleblower – after which the whistleblower's passport was seized to prevent them from travelling to The Hague, where Timor-Leste's case against Australia is being heard.

But Brandis took advantage of an intervention by Labor veteran John Faulkner, who suggested that while it was long-standing policy that demands for information about ASIO or ASIS not be answered, it was open for a minister to seek leave to make a statement on national security.

Accordingly, Brandis rose before question time to comment further, although not much further, on the circumstances of the raids, noting that they had been initiated by ASIO, not by him, and criticising Collaery. Signally, however, he said nothing about the circumstances of the raid on the former ASIS official (which was reported to have included listening to their music collection for hidden messages) or the removal of their passport to prevent them from travelling.

The Timor-Leste matter is now sufficiently concerning that some form of inquiry is surely appropriate: it appears that ASIS has been used by the Howard government to bug the cabinet rooms of the Timor-Leste government – under the guise of an aid program – in a way intended to assist both Australia and resources giant Woodside over resources negotiations with that government, while the minister in charge of ASIS at that time, Alexander Downer, is now working for Woodside.

Moreover, the head of ASIS at the time is now the head of ASIO, which has undertaken actions seemingly intended to damage the Timor-Leste case relating to that bugging just days before an international tribunal begins hearing the dispute.

There is, however, no mechanism for an inquiry. Labor is refusing to countenance any inquiry into the behaviour of ASIS. And as Crikey noted yesterday, the parliamentary Joint Committee on Intelligence and Security has not been reappointed three months after the election. Labor's frustration at the government's foot-dragging on JCIS – which unlike most parliamentary committees is a statutory committee, required under the Intelligence Services Act – that Labor's Joel Fitzgibbon rose near the end of question time to ask the Prime Minister when it would be re-established. "This week," Abbott said.

In order to fulfil that self-imposed deadline, the government needs to finalise the committee membership today, because the committee doesn't exist until Parliament establishes it. The two key questions are whether Independent Andrew Wilkie will remain on the committee as one of the non- government members, and whether Liberal Philip Ruddock – a national security hardliner with a long record of attacking civil liberties when attorney-general – will be re-appointed and thus become chair.

In the meantime some lessons have emerged from the Timor-Leste case. Other countries in the region should now be suspicious of the delivery of the Australian aid program, given we know it has been used by ASIS to spy. And whistleblowers are certainly wasting their time trying to air legitimate concerns via the "internal mechanisms" established by governments.

Lest Timor forget, we have our national interests too

The Australian Editorial - December 5, 2013

Australia's role in supporting the transition of East Timor, or Timor Leste, to independence in 2002 – making it the first new sovereign state of the 21st century – was pivotal. The promise of a new century was embraced by the Timorese who, over the previous 100 years, had endured a turbulent and bloody journey through Portuguese rule, Japanese occupation, decolonisation and the 1975 Indonesian annexation before a UN-supervised ballot for independence in 1999. Controversially (and some would say prematurely), Australian diplomacy helped precipitate the independence ballot. Whatever the missteps, the people gave voice to their will. When Indonesian-aligned militia reacted with violence and deadly force, Australian troops put their lives on the line to keep the peace. Our troops remained until early this year and our support continues through a generous civilian aid program.

This legacy does not give Australia a leave pass to trample on East Timor's rights, but any differences between our nations need to be considered against this co-operative history. This poor nation of little more than a million people is a predominantly Catholic outpost, with a post-colonial political history steeped in the communist revolutionary spirit of South and Central America. Yet it is steadily developing economic, diplomatic and cultural relationships in its immediate region with the likes of Australia and its former occupier, Indonesia, as well as further afield with other lusophone (Portuguese-speaking) nations such as Brazil and Mozambique.

The vast oil and gas reserves in the Timor Sea are an economic resource of immense importance not only to East Timor but also to Australia and Indonesia. Negotiations over permanent maritime boundaries were fraught enough before the emergence of the new nation complicated the treaty process. The governments of each country are duty bound to extract the maximum rightful benefit for their populations. So the long-running negotiations over the Greater Sunrise field between East Timor and Australia pit each nation against the other. Just as East Timor's economic future is at stake, so too are tens of billions of dollars for Australia. Yet in the joint area the revenue split is a generous 90/10 in East Timor's favour.

Regardless of current specific spying allegations and their veracity, it would be extraordinary to think that any government would not seek to obtain as much information as possible on such a crucial matter of sovereignty. We, unsurprisingly, expect Canberra to work towards our national interest. We should no more give away our gas than our land. Timorese insistence that gas is piped onshore to boost investment, revenue and employment is unrealistic. Investors need to make decisions on commercial grounds and floating LNG platforms now seem likely. Without Australian support and investment, it is unlikely these resources would be developed at all. East Timor would be best served to pursue the project under the generous terms negotiated, rather than join with international activists to pursue politically motivated grievances against their Australian neighbours and partners. Meanwhile, our intelligence and security agencies are obliged to do what they can within the law to protect our nation's interests.

What really happened in the Timor deal?

Melbourne Age Editorial - December 5, 2013

It is disturbing that more than a decade after East Timor secured its independence, with the assistance of Australian forces, our nations now are in dispute. Primarily, the quarrel is about the division of many billions of dollars of revenue that will flow from developing gasfields in the Timor Sea. Underneath, though, are serious concerns about Australia's conduct during treaty negotiations in 2004.

For years, there has been deep suspicion on East Timor's part that Australian intelligence agencies bugged Timor ministers' offices as they negotiated the Treaty on Certain Maritime Arrangements in the Timor Sea. In May, East Timor declared the treaty invalid, saying Australia had not negotiated in good faith. Arbitration is about to begin in The Hague.

East Timor's case, however, has been disrupted to some extent after ASIO, acting on a warrant issued by Attorney-General George Brandis, raided the Canberra premises of Bernard Collaery, an Australian lawyer acting for the tiny nation. ASIO also raided the premises of a former Australian Secret Intelligence Service officer, who, Mr Collaery says, was prepared to blow the whistle on what happened in 2004.

Our concern for now is the timing of this raid. The Australian government and its intelligence agencies have been on notice about the arbitration for months. They have been aware for years of Timor's allegations about covert surveillance. Yet they left this raid until the last minute. While Senator Brandis contends the raid was not designed to interfere with the arbitration, the fact that it has taken place now invites such suspicions. While we respect the need to maintain certain confidences in the interest of national security, many questions remain unanswered. Security agencies must always exercise their sweeping powers responsibly.

Last month, East Timor Prime Minister Xanana Gusmao chastised "powerful countries [that] shamelessly violate the civil rights... of other countries". He said: "Either we are in the presence of an extreme distrust, where everyone is a potential enemy, or we are witnessing the fraudulent use of technology to obtain economic advantage over others, which is even more immoral when those others are weak and small."

If Australia has exploited such imbalances in power for commercial gain, and done so through espionage, then we should be deeply ashamed.

The 40-year battle over Timor's oil

The Australian - December 4, 2013

Paul Cleary – Oil and espionage have gone hand in hand during the past four decades of contestation over the lucrative petroleum resources of the Timor Sea, so the latest revelations should come as no surprise, least of all to East Timor's government.

Despite protests from the country's leaders after learning Australia had bugged the prime minister's office, East Timor operated on the clear understanding it was being spied on during the negotiations with Australia that began in 2000 and ended with the signing of the Treaty on Certain Maritime Arrangements in the Timor Sea (CMATS) in January 2006.

Former US ambassador Peter Galbraith was one of the first advisers to arrive in Dili to assist the government with the negotiations, which began when Dili was still a smoking ruin after Indonesia's scorched-earth departure.

As the son of economist John Kenneth Galbraith, Peter had grown up with the Kennedys in the 1950s. He also had intimate knowledge of Western governments intelligence-gathering activities and advised Timorese leaders that their communications would be intercepted.

This was why staff protected documents with passwords. One of those used was ROMIT – Timor spelled backwards. And it was why the country's first prime minister, Mari Alkatiri, used to turn up the television in his office while discussing sensitive matters.

Timor Sea oil aroused the interest of Australia's diplomats in the late 1960s, when the Portuguese administration gave a US company, Oceanic Exploration, a huge concession over the Timor Sea that extended out to the median line between Timor and Australia.

Then Woodside discovered the Greater Sunrise field in 1974, thus confirming that the region had potentially vast petroleum resources.

Greater Sunrise, which was the subject of the negotiations that sparked the spying allegations, is considered by petroleum engineers to qualify as a "world class" resource that would require billions of dollars to develop, although its five trillion feet of gas makes it one-third the size of Woodside's latest discovery, the Browse field.

Nonetheless, Australia's ambassador to Indonesia, Richard Woolcott, wrote in an August 1975 cable that Australia potentially would get a much better agreement over the Timor Sea with an Indonesia-controlled East Timor than an independent East Timor or with Portugal as the colonial power. "This could be much more readily negotiated with Indonesia by closing the present gap than with Portugal or an independent Portuguese Timor," he wrote.

Woolcott was referring obliquely to the fact Australia had secured a favourable seabed boundary with Indonesia in 1972 that went two-thirds of the way towards the island of Timor, instead of following the median line, as Portugal had claimed.

Australia argued that the boundary should be located closer to Timor because this reflected the end of Australia's continental shelf, an argument that later was proved by geologists and maritime lawyers to be erroneous.

The negotiations for the 1972 treaty should have involved three countries, but because Portugal as the colonial power was left out, the treaty left a gap opposite Timor, which became known as the Timor Gap.

When Indonesia invaded East Timor four months after Woolcott wrote that cable, Australia's diplomats hoped they would now be able to close the Timor Gap and secure the lion's share of the Timor Sea's oil riches.

Indonesia, however, realised it had blundered by accepting Australia's continental-shelf argument. International law had been muddied at the time it negotiated the 1972 treaty, but by the late 1970s Indonesia realised it had a legitimate claim to a median line.

The result of the negotiations that began on Valentine's Day 1979 and ended a decade later with the signing of the Timor Gap Treaty was a coffin-shaped compromise that had three "zones of co-operation". Each offered different rates of revenue-sharing, with the result being a 50-50 split.

Espionage was a prominent feature of those negotiations as well. In their book Oyster, a definitive history of the Australian Secret Intelligence Service that has now been translated into Chinese, Brian Toohey and William Pinwill argue that Australia's spies were able to obtain the negotiating papers of the Indonesian delegation ahead of each meeting.

In fact, when asked to nominate its achievements as an organisation, ASIS listed the obtaining of those highly secretive papers as one of its real success stories.

The papers would have been obtained by ASIS agents who cultivated potential conduits with bribes. Indeed, senior members of East Timor's negotiating team believed one of their members was turned by ASIS during the 2004-05 negotiations over Greater Sunrise.

The influential adviser went from advocating a very strong stand by East Timor in 2004 to urging the government to capitulate and accept a low settlement that was a fixed-dollar amount.

The latest saga in this long history began five months after East Timor voted overwhelmingly for independence in August 1999.

In January 2000, a delegation of high-level Australian officials flew to war-torn Dili for a mission of the utmost importance to Australia's perceived national interest.

Dili swarmed with military personnel and equipment but – in the wake of the militia violence following the August 30, 1999, ballot – it remained a ghost town. Most of the locals were camped up in the mountains to which they had fled.

Amid the devastation, the delegation landed in Dili with the objective of convincing the Timorese leadership they should accept in full the oil treaty the Australian government had spent 10 years painstakingly negotiating with Indonesia.

Foreign minister Alexander Downer believed the Timorese would honour the Timor Gap Treaty, which proved to be an unrealistic assumption given that the treaty came about as a result of the unlawful occupation of Timor.

Led by veteran diplomat Michael Potts, the delegation of officials from the Department of Foreign Affairs and Trade, and the departments of Attorney- General and Industry, booked a conference room on the Olympia cruise ship. This was probably the only place in Dili at the time with the facilities to hold such a meeting.

With the aid of laptops and a PowerPoint projector, Potts and his team ran through the details of the Timor Gap Treaty in deadpan, humourless style. In the heat and humidity of the wet season, the red-faced and bespectacled Potts looked very much the hot and bothered colonial official from a bygone era.

He urged the Timorese to substitute the name Indonesia with that of East Timor. In the audience were Alkatiri, who had returned from Mozambique and would later take a cabinet position in the UN Transitional Administration in East Timor, and Jose Ramos-Horta, who was vice-president of the umbrella independence group CNRT and later would become minister for foreign affairs and prime minister.

At one point during the presentation, a gruff, chain-smoking international lawyer working for the UN, Miguel Galvao-Teles, stood up and told the delegation it had omitted to explain to the Timorese just how unfavourable the 1989 Timor Gap Treaty was when compared with East Timor's entitlement under international law. East Timor would be substantially short-changed by signing on to this treaty, he told the gathering.

Leaving aside rights, the economic implications of this proposal were disturbing to the Timorese. The Australian government's offer would have set up East Timor as a beggar state dependent on aid, a scenario outlined by Downer to journalists during a discussion one even in Bali after a meeting with Indonesian president BJ Habibe.

Oil prices at the time were hovering at about $US20 a barrel; the country's only significant source of revenue for the next 20 years would have amounted to about $US50 million a year or about $US50 a head of population. It afforded the Timorese a mere 20 per cent slice of the oil and gas fields that lay in their half of the Timor Sea, and which under an international maritime boundary would belong to the Timorese.

East Timor's leadership rejected Australia's proposal. The arrival of Galbraith after this meeting brought American righteousness to East Timor's pursuit for justice in the Timor Sea. He infuriated his Australian adversaries to the point where the Howard government tried to have him sacked from his role with the UN in East Timor, and from his teaching position with the National War College in Washington. The Australian ambassador, Michael Thawley, a former adviser to Howard, told East Timor adviser Jonathan Morrow that he had spent most of his time in Washington trying to "get rid of Galbraith".

Australia stuck to its 50 per cent (effectively 20 per cent) offer for the next 18 months, but as tension reached a climax in June 2001, at a meeting in Parliament House in Canberra, Downer asked Ramos-Horta to step outside. In the corridor, Downer said he would agree to East Timor's demand for a 90 per cent share, but the settlement would cover only one of the areas of the 1989 Indonesia-Australia Timor Gap Treaty.

East Timor was forced to make significant concessions. What became known as the Timor Sea Treaty dropped the northern and southern zones of the Zone of Co-operation with Indonesia and excluded potentially richer resources to the east and west of the treaty area. East Timor got a 90 per cent share of the revenue from the treaty area, but only 18 per cent of Greater Sunrise. The deal was meant to be an interim arrangement. It had been negotiated by UNTAET, and the treaty said explicitly that it would cease to exist when a permanent maritime boundary was agreed between the two countries. But Australia hoped the treaty would be the final settlement in the Timor Sea.

On Independence Day on May 20, 2002, East Timor put its bid for a fair settlement into effect when, at the East Timor parliament – a building renovated with Australian aid money – the new government tabled the Maritime Zones Act, which expressed the country's right under international law to a maritime jurisdiction. Under the treaty, a separate agreement was needed for the Sunrise field because it straddled the treaty area.

At a meeting in November 2002, Downer, pressing East Timor to accept an 18 per cent share of Sunrise, thundered: "We don't have to exploit the resources. They can stay there for 20, 40, 50 years. We don't like brinkmanship. We are very tough. We will not care if you give information to the media. Let me give you a tutorial in politics – not a chance."

But East Timor continued pressing Australia for justice, and this was delivered only when ordinary Australians drove home the message of a "fair go" to the Howard government.

Instrumental in the settlement of a 50-50 deal on Greater Sunrise was a slightly amateurish, though effective, advertising campaign run by Melbourne businessman Ian Melrose, who had latched on to the issue after reading a newspaper article about a 12-year-old Timorese girl dying of worm infestation. Her life could have been saved with a 10c tablet. One of the ads featured World War II veterans who said they owed their lives to the Timorese. But the dispute turned into a major problem for East Timor's first government.

When Woolcott launched a discussion paper on the dispute by Jesuit priest Frank Brennan, he said East Timor was a fragile country and that Australia must get behind it to "consolidate Timor-Leste's independence and nurture its fragile institutions".

Instead, the fight for the Timor Sea resources proved to be a huge distraction for the Dili government and culminated in the 2006 riots that pushed the country to the brink of civil war.

Australia's aggressive conduct in the dispute also created a big opportunity for China and other regional powers to form close and potentially lucrative links with a country that should be Australia's best friend.

[Paul Cleary was an adviser to the prime minister of East Timor during the Timor Sea negotiations. His book on these events is "Shakedown: Australia's Grab for Timor Oil".]

Dealing fairly with East Timor is not charity, but justice

The Guardian (Australia) - December 3, 2013

Clinton Fernandes – It is not hard to see why ASIO yesterday raided the office and home of a Canberra-based lawyer, Bernard Collaery, and the house of a former Australian intelligence agent.

Collaery, a former attorney-general of the Australian Capital Territory, is currently providing legal advice to the government of East Timor, which had alleged that Australia had breached international law by bugging East Timor's cabinet rooms during the 2004 bilateral negotiations over the Timor Sea Treaty. An arbitration process between Australia and East Timor is about to begin at The Hague.

The raids were designed to seize and confiscate documents believed to contain intelligence on security matters. Australia's attorney-general, George Brandis, was probably correct to deny that he had authorised the raids in order to impede the arbitration; it is more likely that the intention was to see whether the names of Australian spies who had conducted the espionage would be revealed. Protective measures could be taken in advance.

One aspect of the allegations is extremely disturbing: if the Australian aid program was in fact used as a cover for the espionage operation, then it cynically and callously endangers the safety of hundreds of Australians. These fine young and not-so-young men and women are well-meaning individuals who go overseas to many parts of the globe in order to work with those who are less fortunate. They now risk being suspected of having more sinister intentions, if indeed the AusAID program was misused in this way.

So what was the Timor Sea Treaty that Australia went to such great lengths to secure?

Signed in 2002, it replaced the Timor Gap Treaty, a notorious instrument signed in 1989 by the former foreign ministers of Australia and Indonesia, Gareth Evans and Ali Alatas, as they clinked champagne glasses in an aircraft over then-occupied East Timor's maritime resources.

East Timor's emergence from Indonesian occupation voided the Timor Gap Treaty. Its leaders made it clear that they considered it to be an illegal treaty, and that they wanted to follow international law. Such a settlement would have resulted in a permanent maritime boundary halfway between Australia and East Timor, and East Timor would have been able to use the energy resources within its maritime boundaries to feed its population and develop its economy, which had been devastated by the 24 year Indonesian occupation.

However, Australia's foreign minister at the time, Alexander Downer, adopted strong-arm tactics toward the East Timorese government. In March 2002, just two months before East Timor became an independent state, Australia withdrew unilaterally from the maritime boundary jurisdiction of the International Court of Justice and the International Tribunal on the Law of the Sea. This withdrawal was based on the optional clause of the Statute of the ICJ and Article 298 (1) of the United National Convention of the Law of the Sea (UNCLOS), and reflected its assessment of the weakness of its own legal position.

The current treaty on Certain Maritime Arrangements in the Timor Sea (CMATS), which was signed in 2006, prevents East Timor from determining its own maritime boundary – something to which it is entitled under international law. It also leaves unresolved the issue of "downstream" revenues from refining, liquefying and processing the oil and gas.

Understandably, East Timor would like the gas to be piped to its shore for liquefaction. What's more, government revenues from oil and gas resources in the Greater Sunrise field are shared equally between Australia and East Timor, even though the field is twice nearer to East Timor. If international law were to apply, then East Timor would be entitled to 100% of the oil and gas on its side of the median line in the Timor Sea. This includes the single most crucial resource, namely the Greater Sunrise field, the bulk of which lies just outside the lateral boundary of the Gap.

Beyond the drama of the spying allegations, policymakers ought to consider the proposition that dealing fairly with the East Timorese is not charity but justice – they are entitled to their resources, after all. Such an outcome would also be in Australia's national interest because we would have on our maritime border a friendly state that has enough resources to develop peacefully, not a poor, resentful state whose sole major resource is being stolen by its wealthy, spying neighbour.

Heed law of the sea and set a fair Timor border

Melbourne Age - December 2, 2013

Tom Clarke – Indonesia isn't the only country in our region upset about Australia's spying. East Timor has accused Australia not just of spying on it, but of doing so for economic gain.

Earlier this year, East Timor launched an arbitration process arguing that a key treaty concerning lucrative oil and gas resources in the Timor Sea was not valid because Australia had spied on Timor's negotiating team and bugged the Timorese cabinet room.

The airing of the allegations last week on the ABC's 7.30 along with comments by East Timor's Secretary of State, Agio Pereira, suggest East Timor may even be prepared to scuttle existing temporary resource-sharing agreements in an attempt to bring Australia back to the negotiating table in the hope of securing a permanent and more equitable solution.

It's becoming increasingly clear that the Abbott government must finish the job in the Timor Sea and establish permanent maritime boundaries with East Timor. Only permanent boundaries can put a stop to niggling disputes over contested gas and oil resources and also provide certainty for the companies wanting to exploit them.

Saying Australia has an extremely mixed record when it comes to its role in the history of East Timor is somewhat of an understatement.

Many hoped the Australian-led peacekeeping mission in 1999 would not only be a great redeeming act, but would mark the beginning of a new era in which Australia would finally and unreservedly respect the sovereignty of its tiny neighbour. However, three years later, in 2002, two months before East Timor's independence, Australia made a decision that set a very different tone. It withdrew its recognition of the maritime boundary jurisdiction of the International Court of Justice and the International Tribunal for the Law of the Sea.

By turning its back on the independent umpire, Australia knew East Timor would have no legal avenue to stop Australia from unilaterally depleting contested oil and gas resources in the Timor Sea. This gave Australia an immense advantage when it begrudgingly agreed to sit down at the negotiating table in 2005.

East Timor, understandably, like any sovereign country, wanted to establish permanent maritime boundaries and it wanted to do so in accordance with international law. Australia had other ideas and successfully jostled Timor into yet another temporary resource-sharing agreement that required the establishment of permanent boundaries to be postponed for 50 years.

At the beginning of 2006 the two countries signed the Treaty on Certain Maritime Arrangements in the Timor Sea, which would split 50-50 the upstream revenues to be generated by the massive Greater Sunrise gas field.

The field, which is expected to generate about $40 billion in government revenues, lies just over 100 kilometres from East Timor's coastline. If permanent maritime boundaries were established in accordance with current international law the field would lie entirely within East Timor's exclusive economic zone. Since the 1982 United Nations Convention on the Law of the Sea, international law has strongly favoured median line boundaries between countries less than 400 nautical miles apart – that is, draw a line halfway between the two countries' coastlines.

While there are 80 examples of the median line resolving such claims, there is only one exception; the 1972 Australian-Indonesian seabed boundary.

Further, in 2004, when Australia and New Zealand established a maritime boundary to resolve overlapping claims off Norfolk Island, Australia agreed to a median line boundary. Evidently, adhering to current international law is easier when billions of dollars in government royalties from oil and gas resources are not at stake.

Australia's belated intervention in 1999 is often touted as one of prime minister John Howard's great achievements during his time in office – including by Mr Howard himself. But if the goodwill and spirit of mateship that Australia's peacekeeping missions have helped foster are to mean anything, we must stop short-changing East Timor when it comes to its oil and gas resources.

Since 1999 the Australian government has possibly taken more in contested oil and gas royalties than it has given to East Timor in combined military and humanitarian aid. This is not about charity. It's not about helping East Timor out. The people of East Timor simply want what they are legally entitled to – no more, no less.

Establishing permanent maritime boundaries with East Timor in accordance with international law is Tony Abbott's one chance to preserve the legacy of his mentor's intervention.

Setting permanent boundaries in accordance with international law is the right thing to do, but it will also provide more economic certainty for both countries and for the companies seeking to develop the contested oil and gas resources.

Support in Australia for our East Timorese neighbours runs deep. Calls for a fairer deal rooted in the principles of current international law are likely to resonate with many Australians who will refuse to accept the inherent injustice of allowing a wealthy and powerful country such as ours to try to deprive one of the poorest countries of its own natural resources.

[Tom Clarke is a spokesman for the Timor Sea Justice Campaign.]

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