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East Timor News Digest 1 – January 1-31, 2014

Human rights & justice

Political parties & elections Disability rights Foreign affairs & trade Timor Sea spy scandal Invasion & occupation Analysis & opinion

Human rights & justice

HR activist Pequinho: Government failed to implement CRC recommendations

Dili Weekly - January 28, 2014

Paulina Quintao – Human Rights Activist, Joao Soares Pequinho, believes the Timor-Leste's government failed to implement the recommendations of the Committee on the Rights of the Child (CRC) for better legislation protecting the rights of Timorese children and in providing children with adequate social assistance.

He said the Timorese Government back in 2007 presented the first report to the CRC in Geneva, receiving altogether 48 general recommendations to develop policies that address the challenges affecting children in the country across all sectors.

"The justice sector is empty in terms of legislation. The education sector lacks facilities, infrastructure and teachers. The health sector registers increasing levels of malnutrition. Child mortality is high," said Pequinho, in Fatuhada, Dili.

He added the CRC recommended the Timorese government prioritize legislation and laws protecting children such as the development of a Children's Code, the Juvenile Justice Law and resourcing judicial entities so these can deal with children's issues.

The activist is also concerned with the statutes for the National Commission on the Rights of the Child (KNDL), that hasn't yet been established by the government, having a direct impact on the ability of the KNDL to protect children.

"The Ministry of Justice has not established [KNDL] with an autonomous statute so violation cases involving children and ministerial interventions linked to the budget cannot be addressed," said Activist Pequinho also.

Meanwhile the Program Coordinator for Child Protection, at NGO Forum Tau Matan, Honorio Almeida, agrees the government failed to address the concerns raised by the CRC.

"The government in not sincere about children's issues because it has been five years and there still isn't a juvenile justice law, a children's code, students are still sitting on hard floors at school. Malnutrition is still high and children are still working," said Coordinator Almeida.

In the meantime, Vice Minister of Justice, Ivo Valente, noted the government has not fulfilled children's rights 100% but has undertaken some initiatives whilst some others are underway.

VM Valente said Timor-Leste as a member of the CRC is committed and obliged to implement the recommendations of the CRC and improve the lives of children in the country.

"The Juvenile Justice Law and the Child Code has been in the National Parliament, waiting for debate and waiting to be approved. The government also intends to build a detention centre for children who commit serious crimes. Construction will start next year," added VM Valente.

AFAD: Timor needs to ratify convention on involuntary disappearances

Dili Weekly - January 22, 2014

Paulina Quintao – The Asian Federation for Involuntary Disappearances (AFAD) composed by Nepal, Thailand, Philippines, Indonesia, South Korea, El Salvador and Timor-Leste, urge the Timor-Leste State to urgently ratify the Convention on Involuntary Disappearances.

AFAD President Mugiyanto said ratifying the Convention is very important and constitutes a positive step for the Timorese State to prevent past human rights violations from taking place in future.

He added once Timor-Leste ratifies the Convention, and as a member, it will receive technical and financial support from other nations to search for those Timorese who disappeared during the war for independence from 1975 to 1999.

"If Timor-Leste ratifies [the Convention], it would get technical and financial support. For example health experts would help with the very expensive DNA testing," said AFAD President Mugiyanto in Dili.

He added apart from the technical and financial support from other member nations, ratifying the Convention will also ensure the implementation of the recommendations contained in the reports from the Commission for Reception, Truth and Reconciliation (CAVR) and the Commission of Truth and Friendship (CVA).

Meanwhile Human Right Activist, Jose Luis Guterres, said he is disappointed the Timorese and Indonesian States have not progressed on the recommendations of the CAVR and CVA over the past five years to search for those who disappeared in between 1975-1999.

"It has been five years. How many people have we found so far and what type of commission was set," asked Activist Guterres. He added Timor-Leste's Constitution, Article 9, says the country will adopt human rights principles but its implementation is lackingin practice.

In meantime, Member of Parliament MP AraoNoe de Jesus Amaral said the government is obligated to look into these treaties and conventions and submit them to the National Parliament for ratification to prevent past human rights violations from taking place again in future.

"I think treaties about people who disappeared are very important and a priority. The government through the Ministry of Foreign Affairs should look into these treaties and submit them to the Parliament so their ratification is given priority. They are very important," said MP Amaral.

Timor and Indonesia to establish commission on missing children

Dili Weekly - January 8, 2014

Paulina Quintao – The Timor-Leste government through the Ministry of Foreign Affairs and Cooperation (MNEC) and the Indonesian Government intend to establish a commission to look into the issue of missing or separated children from 1975 until 1999 while Timor-Leste was under Indonesian occupation.

Minister of Foreign Affairs, Jose Luis Guterres, said this is a joint initiative by both governments.

He said the commission will include representatives of both governments as well as representatives from civil society and the Red Cross Timor-Leste, working together to collect the data and indentify the children's whereabouts.

"I can tell you the Ministry of Foreign Affairs of Indonesia is also available to support us localizing [the children]," said Minister Guterres after opening a public debate on forcible and non-volunteer missing people organized by the Human Rights Hak Association at MNEc Hall in Pantai Kelapa, Dili, in late 2013.

Minister Guterres said also many of the separated children want to meet their biological parents.

Meanwhile human rights activist, Jose Luis Oliveira, said the children disappeared during the struggle for independent, so the State has an obligation to look for them.

He added many children went missing during the Indonesian occupation because the military recruited them to work for them, taking them when they pulled out from the country in 1999 and many have not returned until today.

"We will look for the missing people but we will not force them to return. They have every right to meet their real parents though."

Victim Victor da Costa, taken to Indonesia by the Indonesian Military when he was four years old, said his interest in finding his biological family and where he comes from started after he met some Timorese students engaged in a university organization in Indonesia.

He arrived in Timor-Leste in 2004 and met some activists from Hak Association who supported him get information about his family. He ended up discovering his family in Laga, Baucau District, but was taken aback after discovering his family had assumed he was dead and marked a grave in their cemetery with his name.

"We have been separated [from our families] for a long time so it is hard on us psychologically. It is not easy that first encounter and we need time to adapt to a new family."

Victor said he is very happy to live in Timor-Leste now because there is still a lot of work to be done to help others who are still separated from their families.

According to a report of the Commission for Reception, Truth and Reconciliation (CAVR) approximately 4.500 children were separated from their biological families during the 24 year struggle for independence in Timor-Leste.

Political parties & elections

Xanana Gusmao to quit as leader of East Timor

Sydney Morning Herald - January 15, 2014

Michael Bachelard – East Timor's resistance leader turned Prime Minister, Xanana Gusmao, has announced he will retire as leader of the tiny republic some time this year.

Observers expect him to go by September at the latest, as jostling for his replacement begins among Dili's political class.

Mr Gusmao, 67, a top military commander of the 24-year resistance against the Indonesian occupation, was elected the new nation's first president in 2002, then became its fourth Prime Minister in 2007. He won a clear new five-year mandate at the head of his CNRT coalition in elections in July, 2012.

But presenting the state budget in parliament on Monday, Mr Gusmao opened his speech by saying: "It is with the greatest respect that, for the last time as the Prime Minister, I come before this Great House to present a state general budget".

It's not the first time Mr Gusmao has hinted at his retirement, but observers in East Timor are taking the latest comment as a serious statement of intent, albeit one which lacks any detail. "It's for real," said former minister, now lawyer, Jose Teixeira. "He has set a deadline of later in September this year but could go earlier."

Mr Gusmao's comments in the past have suggested the need for generational change in the leadership of the country in which all senior leaders, including the president, Taur Matan Ruak, Mr Gusmao, opposition leader Mari Alkatiri and former president Jose Ramos Horta are of the "generation of 1975": veterans of the struggle against Indonesia, and the associated internal politics of that long guerilla campaign.

Many in East Timor believe the country, whose economy is more 90 per cent dependent on oil revenue, now needs new leadership and fresh ideas. Hinting at retirement last November, Mr Gusmao said the older generation "have a different role to play, not to go to sleep but to take care of other things".

To the younger generation – whose political stars are not yet readily apparent – he said at the time: "We will demand that they work with dedication, work with professionalism... We will not interfere by saying, 'Oi! You must do this or do that'. We will not interfere but we will [also] not allow [the] state's institutions to fall," he said, as quoted by local newspaper Tempo Semanal.

This suggests the possibility that Mr Gusmao will stay in the ministry, or take a seat in parliament, after resigning as Prime Minister, to keep an eye on events.

Mr Gusmao's lawyer, Australian Bernard Collaery, said the budget speech could be interpreted as calling his successors to come forward.

"You might see this as an alternative to anointing a successor," Mr Collaery said. The man most commonly mentioned is Agio Pereira, formerly Mr Gusmao's chief of staff, now the president of the council of ministers. However, Mr Pereira is seen as not having an independent political power base.

The formerly bitter opposition between Mr Gusmao and the Fretilin party, led by Mari Alkitiri, has also softened in recent times to the point where Mr Teixeira said there could be a "government of consensus" between the two parties, which, between them control a vast majority of parliamentary seats."There is a lot of collaboration amongst the two sets of leaders now," Mr Teixeira said.

This would mean a "consensus PM," who could well come from the current opposition, Fretilin, he said.

The health minister and deputy Prime Minister under the former Fretilin government, medical doctor Rui Araujo, topped a recent poll for the next Prime Minister, followed by former agriculture minister Fretilin MP Estanislau da Silva. Agio Pereira fell well behind in the polling.

Disability rights

DWG demands TL government ratify convention on the rights of the disabled

Dili Weekly - January 30, 2014

Paulina Quintao – The Disability Working Group (DWG) Timor-Leste President, Joaquin Soares, demands the Government of Timor-Leste ratify the International Convention on the Rights of the Disabled so the rights of Timorese living with disability are protected.

He said the convention serves as a guide to the government so it can develop adequate policies and programs and it will assist the government budget assistance to some 48.243 Timorese living with disability (based on the 2010 family Census).

"Our recommendation is that the international convention be signed. The convention is very important so we can implement the goals contained in the Millennium Development Goals (MDG's)," said DWG President Soares, in Dili.

He also noted the government already developed a national policy on disability and a strategic plan to be implemented across all areas; in health, education, vocational training and employment, social assistance, justice, sports and culture, information and communication as well as gender equality.

He urged the National Parliament to allocate sufficient funds to relevant institutions implementing the policy's priority areas.

The DWG also called on the Ministry of Social Solidarity to work together with the National Statistics Directorate and conduct a specific country- wide survey to identify the total number of Timorese living with disability and the types of disability.

Meanwhile Gaspar Afonso, who lives with a disability, is proud at least of some leaders who are committed to paying attention to the situation and challenges faced by the disabled in the country.

He believes those living with a disability are the most vulnerable in society so they need the moral, technical and financial support from the government in order to be able to contribute towards national development.

"Our minds are not disabled. We will continue to urge and ask you to give us our rights. We will be happy when we are allowed to enjoy our rights." In response to these concerns and appeals, the Minister of Social Solidarity (MSS), Isabel AmaralGuterres, said she will call meetings with the Ministry of Foreign Affairs to look into the issue of Timor-Leste ratifying and signing the International Convention on the Rights of the Disabled.

"There is commitment to sign and ratify the international convention on disability and to establish a national commission for monitoring and ensuring its implementation is adequate," said Minister Guterres.

Foreign affairs & trade

Calls for maritime border with East Timor

Australian Associated Press - January 22, 2014

Prime Minister Tony Abbott is being urged to negotiate with East Timor to establish permanent maritime boundaries with Australia's northern neighbour, determining clear ownership of valuable oil and gas fields.

The Timor Sea Justice Campaign has called on Mr Abbott to show goodwill and draw a divide that gives East Timor fair ownership of resources close to its coastline.

"He needs to sit down in good faith with his Timorese counterpart and show that he's ready to talk about a permanent boundary," Campaign spokesman Tom Clarke said. "No more of these temporary deals that simply short-change East Timor."

The campaign has been launched as the International Court of Justice (ICJ) hears arguments from both countries about Australia's alleged seizure of documents in 2004 during the formation of an oil and gas treaty that East Timor wants annulled. The case continues.

An open letter to Mr Abbott from the Timor Sea Justice Campaign asks that an equitable boundary be determined in accordance with international law.

"Timor is not asking for charity, they are only asking for what they are legally entitled to, no more and no less," Mr Clarke said.

Without such a boundary East Timor would lose billions of dollars in oil and gas revenue, he said.

Timor Sea spy scandal

Timor pours oil on spy fire

The Australian - January 25, 2014

Paul Cleary – It was a case of saving the best to last. On the third and final day of the proceedings brought by East Timor before the International Court of Justice in The Hague this week, vice-president Bernardo Sepulveda Amor put what seemed like a very tough question to Australia's phalanx of 15 legal representatives.

Sepulveda Amor got to the heart of the matter, but his question also brought out the best in Australia's defence.

He asked what evidence Australia had to support its proposition that the documents seized by ASIO on December 3 last year from a red-brick home at 5 Brockman Street, Narrabundah, ACT, indicated that East Timor was "encouraging the commission of crimes under Australian law or otherwise jeopardising Australia's national security", as the Solicitor-General Justin Gleeson SC had argued the previous day.

Aside from the intriguing answer to the question, the proceedings this week reveal a lot more about East Timor's motivation for taking action at the ICJ, and its related bid in another tribunal in The Hague to have a 2006 treaty declared void.

East Timor, with its small army of lawyers led by the octogenarian Sir Elihu Lauterpacht, is evidently using the proceedings to unravel what it perceives to be an unfair settlement over the Timor Sea's petroleum riches.

In this latest episode in the contest over Timor oil, on one side of the ledger Australia is accused of egregious behaviour by planting listening devices inside the office of East Timor's prime minister during treaty negotiations in 2004, and then raiding the office of the country's Canberra-based legal adviser and seizing documents belonging to East Timor.

But on the other side, it emerged this week that East Timor may have encouraged a former Australian spy to divulge highly sensitive information, which is a criminal offence, and used this information to determine the identity of as many as five security agents.

The question was asked by Sepulveda Amor just after 11am on Wednesday in The Hague, and Gleeson returned with a response that demonstrates why neither side is likely to emerge with its credibility unscathed.

The Australian team had just six hours to prepare its response, despite not having any knowledge of the contents of the documents, given they remain sealed with ASIO. Gleeson apologised for the late arrival of supporting documents for the 15-member panel of judges.

Gleeson explained that Australia was putting the proposition about the threat to national security at the level of "reasonable apprehension", and that in the interests of not inflaming an already tense situation, "Australia does not want to allege anything more".

Australia's "apprehension" was that East Timor, allegedly through its legal adviser Collaery, may have obtained information from a former ASIS agent and then used this as a "springboard" to make further inquiries. This resulted in East Timor identifying four men who it claims carried out the bugging operation in 2004, while a fifth agent, a woman, was also involved. The East Timor government has now said publicly there is a risk to the safety of these people.

Under section 39 of the Intelligence Services Act 2001 it is a criminal offence for a present or former security officer to communicate information concerning the performance or function of the Australian Security Intelligence Services without the approval of the director-general, Gleeson explained to the court. Further, under section 41, it is a crime to make public the identity of ASIS officers, or information from which their identity can be inferred, he added.

Gleeson went on to allege that East Timor and Collaery appear to have encouraged an officer to commit the first offence, while the government of East Timor was at risk of committing the second offence.

He cited an interview given by East Timor's natural resources minister, Alfredo Pires, in Singapore last year in which he said the country had "irrefutable proof" that Australia's spy agency had illegally obtained information during negotiations in 2004. Pires's lawyer, Collaery, said the Timorese prime minister's offices were bugged.

Separately, Gleeson then quoted from an interview Pires gave to AAP after the ASIO raid in which he said the government had identified the people who carried out the bugging operation. He said the government knew the date of the operation and had "names that we have been able to deduce".

"Those names are inside some of our computers and in today's age, no one with a computer is safe. If those names wind up in the wrong hands, if those people may be still active in other parts of the world, maybe working on some aid project, they have to take extra precaution not to be identified.

"There are dangers involved. We don't want anyone else to get hurt in this thing," Pires told AAP journalist Rebecca Le May.

As a result, Gleeson asserted that East Timor's lawyer had not only encouraged the former ASIS agent to divulge security information, but the government had then used its own records to identify the names of the people involved in the operation.

"There is an apprehension that the Timorese government has used the information as a springboard to ascertain the identity of Australian officers, potentially putting their lives at risk," he said.

Australia did not assert that Pires intended to publish the names of the officers or cause them harm in any way, but that East Timor's actions created a situation where Australia was now relying on the good conscience of various people not to divulge their identities.

"I trust you will now see we have a situation where the conscience of Mr X (the former ASIS agent), the conscience of Mr Collaery and the conscience of senior Timor-Leste officials is to be the guard of safety of Australian lives and Australian security information," Gleeson said. This situation, he said, was manifestly unacceptable.

Further, after the ASIO raid of December 3 last year, Collaery was interviewed for an ABC program which disclosed some of the affidavits sworn by the former agent. This included the statement that the newly arrived head of ASIS, David Irvine, who is now the head of ASIO, had instructed the agent to plant the listening devices inside the PM's office.

Gleeson said: "These are the documents they now want protected. I trust the court will appreciate the apprehension that we have." He added that this conduct "is wrongful, is unlawful, is damaging to our security".

At this week's three-day hearing, East Timor was seeking to have provisional measures – essentially an injunction – that would require Australia to give all of the seized documents to the court. But a parallel action involves the country's bid in the Permanent Court of Arbitration to have the 2006 CMATS (Certain Maritime Arrangements in the Timor Sea) treaty declared void, because it says it has irrefutable proof that Australia engaged in espionage during the negotiations.

While spy games have certainly proved to be a good source of drama this week, they are a trivial, though entertaining, part of the proceedings at The Hague.

In a series of tense and perhaps unscripted exchanges, the bigger picture in the dispute emerges. At the heart of what is likely to be a costly and prolonged legal campaign is East Timor's pursuit of a permanent maritime boundary which it believes would deliver it a much larger share of the Timor Sea's spoils. The country's leaders are also wanting to ensure that the settlement with Australia includes greater onshore development in East Timor after having seen how the LNG plant in Darwin has turned the city into a boom town.

On the first day of proceedings, East Timor's counsel described the 2006 treaty as "seriously disadvantageous" to the country.

Gleeson took issue with these remarks and pointed out that the 2006 CMATS treaty increased East Timor's share of the Greater Sunrise field from 18.1 per cent to 50 per cent.

When summing up East Timor's case, the country's agent in the proceedings, ambassador to the UK Joaquim da Fonseca, said he could not allow the remark by Gleeson to go unchallenged.

"Mr Gleeson criticised Timor-Leste for omitting to mention the profitable revenue-sharing arrangement for the Greater Sunrise fields under the CMATS Treaty. This is not the place to debate CMATS, but we cannot let that remark pass without pointing out the following.

"Both the Timor Sea Treaty and CMATS Treaty are meant as temporary arrangements for the exploration and exploitation of maritime resources in the Timor Sea. But under no conceivable maritime delimitation would the Greater Sunrise fields lie within Australia's territory. They are located within 200 nautical miles from the coastline of Timor-Leste, far closer to Timor-Leste than they are to Australia.

"So, in the absence of a permanent maritime boundary, the question remains. To whom actually do the resources currently shared at 50:50 per cent between Timor-Leste and Australia really belong? And who is being generous to whom?"

[Paul Cleary was an adviser to the prime minister of East Timor on the Timor Sea negotiations from 2003-05. His book on these events is Shakedown: Australia's Grab for Timor Oil.]

International Court of Justice adjudicating on troubled waters

Sydney Morning Herald - January 25, 2014

Tom Allard – In the International Court of Justice this week, as lawyers from Australia and East Timor traded barbs and legal argument in equal measure, the emotions have been raw.

There is plenty at stake. Billions of dollars in oil revenue for starters, and the standing of Australia as a good citizen and global moral force. Throw in multiple allegations of spying and dirty dealing, and the ICJ's imposing court and 16-strong panel of judges have rarely seen drama like it.

At issue is the unprecedented seizure by the Australian Security Intelligence Organisation last month of the tiny country's legal documents and the confiscation of the passport of its star witness, a decorated former officer of the Australian Secret Intelligence Service.

The raids, says counsel for East Timor, were "unconscionable", the theft of another nation state's property to manipulate an international arbitration over a $40 billion oil and gas treaty.

Its lead counsel Sir Elihu Lauterpacht, the octogenarian eminence grise of international legal scholarship, said it was no different to the annexation of Timorese territory. "There is no difference between the taking of territory and the taking of property... a taking is a taking," he said, adding that Timor was "much poorer" than its neighbour.

Australia's lawyers told the court they were "wounded" by East Timor's assertions and Attorney-General George Brandis "offended", firing back by accusing East Timor of risking the lives of its spies.

"The sniping by both sides has been pretty extraordinary," says Ben Saul, a professor of international law at the University of Sydney.

East Timor is demanding the legal documents, laptops and USB stick seized in the ASIO raids on a former Australian Secret Intelligence Service agent and the Canberra office of East Timor's lawyer Bernard Collaery be sealed and handed over to the ICJ. It wants the material then returned to it, and any copies destroyed.

Moreover, 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".

This final extraordinary demand flows from the revelation of the former ASIS officer, reputedly the head of its technical operations, that Australia installed listening devices and microphones in the walls of East Timor's government offices in 2004.

The bugging operation occurred during negotiations for the oil and gas treaty that is the subject of the international arbitration that has been under way in The Hague for several months.

The alleged espionage underpins East Timor's entire case that the treaty – the Treaty on Certain Maritime Arrangements in the Timor Sea or CMATS – should be declared invalid.

CMATS divides the revenue from the Greater Sunrise field 50-50, even though the resources are closer to East Timor than Australia. The fight over the resources is, ultimately, what this dispute between East Timor and Australia is about.

The hearing at the ICJ is about the ASIO raids themselves, and Australia's case relies on convincing the court the legal documents and data obtained in the ASIO swoop are not protected by international law in the way diplomatic correspondence and embassies are.

To claim they should be treated the same, as East Timor does, would fundamentally expand the concept of sovereignty, Australia argues.

It contends the revelations by the ASIS agent were a clear and serious breach of its national security laws. A classified operation had been disclosed to a foreign state, Australia's spy trade craft exposed and its intelligence officers put at risk.

And the information passed on by the agent, which includes a written affidavit, was owned by it, not East Timor, and was no different to the documents taken by National Security Agency whistleblower Edward Snowden from the US.

"If Edward Snowden flees America containing information in documents that he has stolen, and if he gives that information to a foreign state or to a media outlet, that would not deprive the United States of ownership in those materials," Australia's Solicitor-General Justin Gleeson said.

Brandis has given multiple undertakings to the ICJ, some drafted in the middle of proceedings, promising that no one on the Australian side involved in either the ICJ hearing or the arbitration would have access to the documents.

He even gave an unusual personal undertaking not to read the material himself. Whether these undertakings are enough clearly exercised the judges, who asked pointed questions about how they would be enforced.

The timing of the raids was also the subject of scrutiny because it goes to the heart of Australia's case that they were driven by national security concerns rather than thwarting East Timor in the arbitration proceedings.

The raids, on December 3, came two days before a hearing in the arbitral tribunal. Yet Australia had known that the allegations of the ASIS bugging operation had been passed on to Timor for more than a year. The details had become public in May, more than six months before the raids.

Gleeson maintained there was no link between the timing of the ASIO swoop and the arbitration, but revealed Australia planned to block the former spy giving evidence before the tribunal, which, like the ICJ, is in The Hague.

It appears contradictory, even more so given the man's passport was cancelled and Australia feared he was going overseas "within days".

"I do not need to remind the court of other instances of which we are aware publicly of persons who have fled their country with dangerous information they should not have taken with them for exposure and when it is then too late to act," he said.

It was another reference to Snowden, and also a reminder that the ICJ will consider its verdict amid widespread suspicions around the world about the overreach of intelligence agencies.

If it rejects East Timor's application, the ICJ could set a precedent that sanctions spy agencies seizing documents and data from other nations with which they are in dispute.

By accepting East Timor's position, it may have implications for states that assert the right to protect the disclosure of classified information, a provision in most countries' national security laws.

The panel of ICJ judges has much to consider and is expected to hand down a provisional verdict within six weeks. A final ruling is likely to take a year or more.

Timor-Leste rejects 'outrageous' claim in Australian spying dispute

The Guardian (Australia) - January 23, 2014

Daniel Hurst – Timor-Leste has told the international court of justice it rejects the "careless and outrageous" suggestion it was encouraging the violation of Australian laws about intelligence secrets, as Australia warned lives could be put at risk by the disclosures.

In their final arguments to the UN court in The Hague, Timor-Leste and Australia disagreed over the adequacy of undertakings given by the Australian attorney general George Brandis that documents seized from Timor-Leste's Canberra-based lawyer on 3 December would not be used for any matter other than national security.

Australia's legal team said the raid by the Australian Security Intelligence Organisation (Asio) was motivated by real concerns that a former officer of the Australian Secret Intelligence Service (Asis) had disclosed the identities of serving or former officers, potentially endangering them and their families.

Timor-Leste has said it has irrefutable proof that Australia bugged the country's cabinet room to gain an unfair advantage in the lead-up to a 2006 agreement extending the length of a crucial oil and gas treaty. Those claims are being examined by a separate arbitration tribunal.

Timor-Leste is seeking urgent orders from the UN court that Australia surrender the documents seized from the offices of its Canberra-based legal adviser, Bernard Collaery, to prevent further harm ahead of a proper examination of the case at a later date. Australia argues the provisional measures sought by Timor-Leste are unnecessary, in part because of the "comprehensive" undertakings designed to address the country's concerns.

Sir Elihu Lauterpacht, for Timor-Leste, acknowledged the right of a state to protect itself, but asked whether Australia was "protecting itself from the likely revelation that Australia's security seriously and illegally entered Timor-Leste under false pretences" and "surreptitiously placed devices in the government offices of Timor-Leste, eavesdropped, and extracted information to which they were not entitled".

During Wednesday's closing arguments, Lauterpacht reaffirmed Timor-Leste's claim that it owned the documents that were seized on 3 December.

Timor-Leste's ambassador to the UK, Joaquim da Fonseca, told the court he objected to Australia's suggestion that Timor-Leste may be encouraging the commission of crime that threatened Australia's national security.

"My government is committed to pursue justice in this court. It is equally committed to pursue mutual interests between Timor-Leste and Australia through broader bilateral co-operation. Such expression of distrust falls short of a recognition and appreciation of our broader relationship. I must firmly reject this careless and outrageous suggestion," he said.

But Australia's solicitor general, Justin Gleeson SC, said he had expressed his concerns as a "reasonable apprehension" rather than an assertion of fact. Gleeson pointed to news reports and interviews which suggested disclosures had been made about the identities of Australian intelligence officers and operations.

"The first proposition is that Mr Collaery, as agent for Timor-Leste, has received into his possession a witness statement and affidavit from a former Asis officer who I will for convenience label as X," Gleeson said.

"The second is that although the precise content of that document is not known to us it is apparent from what Mr Collaery has said publicly that the subject matter contains information relevant to an alleged operation of Asis in Dili in 2004, which would be information caught by section 39. The third, perhaps even more concerning, is that Mr Collaery as agent for Timor-Leste has chosen to republish that information, the information he says was obtained from the agent widely in the media in Australia, thereby accessible throughout the region and the world.

"The fourth is that Timor-Leste proposes to tender and rely upon documents which would appear to be these same disclosures as its evidence in the arbitration. The fifth is that Timor-Leste has argued vigorously that the arbitration should not be subject to confidentiality so that the claims should be made further public.

"The sixth and last point which is of particular concern to Australia is that there is an apprehension that Timor-Leste through Mr Collaery, having obtained information from X, has used that information as a basis as a springboard... from which to make further enquiries, the result of which it now says publicly has led it to identify four persons who it says were involved in an operation against Timor-Leste in 2004. It further has said publicly it now accepts there is a risk to the safety of those persons because they have been identified and if their names were revealed publicly."

Gleeson said he was not saying senior Timor-Leste officials had an intention to publish the names of officers or harm the lives of those persons.

"But I trust you will now see we have a situation where Australia is being asked to accept that the conscience of Mr X, the conscience of Mr Collaery, and the conscience of senior Timorese officials is to be the guard of the safety of Australian lives and Australian security information. I must say to you... that is unacceptable."

The Australian legal team was asked why the search warrants were executed on 3 December, several days before the arbitral hearing. Gleeson said this was because Australia had information about a real risk that X had made disclosures of information to Collaery, would make further disclosures, might leave Australia within a matter of days with no certainty of return, and might destroy documents or data relating to such disclosures.

This led to the cancellation of X's passport and the execution of warrants on X's premises and on Collaery's premises.

Lauterpacht said it was "a cause of regret" that he should have offended the Australian government and former colleagues when he remarked on Monday that standards had slipped since the time he worked as a senior official in the Department of Foreign Affairs in the 1970s.

"If I may have sounded harsh, there was no intention to hurt; but the word 'inexplicable' was the only word I could think of to describe the what and the why and the when of the seizure of the property in Canberra – property belonging to the government of Timor-Leste," Lauterpacht said.

Lauterpacht said in balancing the interests at stake in this matter, Australia placed all the emphasis on its own interests. Noting Australia had made "indirect threats" aimed at Collaery and a witness, Lauterpacht said it was possible a prosecution could be started in Timor-Leste against those responsible for the bugging operation.

He said Brandis's undertakings on the non-use of the materials for anything other than national security and criminal prosecutions "should be backed up by an order of the court".

The court will make a decision on Timor-Leste's request for provisional orders on a date to be announced. Gleeson said Asio had sealed the documents pending the outcome.

Australia concedes bid to block spy from giving evidence in Timor case

Sydney Morning Herald - January 23, 2014

Tom Allard – The Australian government has admitted it wants to block a former spy turned whistleblower from giving evidence to an international tribunal where East Timor is challenging a treaty between the two countries splitting lucrative oil and gas revenues.

The former senior Australian Secret Intelligence Service operative had his passport cancelled last month after ASIO raids on his house and the Canberra office of East Timor's lawyer Bernard Collaery.

East Timor has taken Australia to the International Court of Justice to get legal documents and data seized in the raids returned to it, with oral submissions concluding overnight.

One of the panel of 16 judges hearing the case at the ICJ, Morocco's Mohamed Bennouna, asked Australia about the timing of the ASIO action, coming just two days before a Permanent Court of Arbitration tribunal in the Hague was to hear argument on the treaty dispute.

Solicitor-general Justin Gleeson responded by denying the raids were linked to the case, even as he revealed that Australia opposed the former spy – dubbed "X" – giving evidence at the arbitral tribunal. "Australia would intend to object to the admissibility of that evidence," he said.

Australia feared the former agent "would make further disclosures that Australia could not confine", he added. "Mr Collaery and Officer X should not be the guards of Australian lives and information," Mr Gleeson said.

Mr Collaery has accused the Australian government of taking unprecedented action to "muzzle our prime witness" as the former spy was planning to go to the Hague to give testimony for East Timor in the treaty case.

But Mr Gleeson defended the raids as being driven by national security concerns, especially the risk the revelations could identify and "endanger" spies and expose the tradecraft and technical capabilities of Australia's intelligence services.

He cited media interviews given by Mr Collaery and East Timor's resources minister Alfredo Pires detailing that the agent was the head of the bugging operation, a decorated officer and had worked with a team of four people as evidence of the leak of classified information into the public domain, a criminal offence under Australian law.

But East Timor's lawyers retorted that the media coverage came after the raids had taken place and shouldn't be used to justify them.

Australia has known for more than 12 months about the allegations of espionage by the agent, with East Timor first raising the matter with then prime minister Julia Gillard in late 2012.

The agent says ASIS bugged East Timor's cabinet offices in Dili during talks for the oil and gas treaty, which the tiny nation now claims was unfair and negotiated fraudulently and in bad faith.

East Timor, meanwhile, told the court that it was "outrageous" for Australia to suggest during an earlier hearing that it may have encouraged the commission of a crime by enticing the spy to reveal classified material.

"Such expression of distrust falls short of the recognition and appreciation of our broader relationship," said East Timor's agent at the ICJ, Joaquim da Fonseca. "I must firmly reject this careless and outrageous suggestion."

Mr Fonseca also objected to Australia's characterisation that the impoverished nation did well out of the oil and gas treaty at the heart of the dispute, the Treaty on Certain Maritime Arrangements of the Timor Sea or CMATS.

While the treaty split revenue from the $40 billion Greater Sunrise reserves 50-50, he said the oil and gas field was closer to East Timor than Australia.

East Timor argues that, if a standard maritime boundary between the nations was in place, almost all the resource would be in its territory. "Who do the reserves belong to, and who is being generous to who?," Mr Fonseca said.

On Thursday, the Timor Sea Justice Campaign called on Prime Minister Tony Abbott to show goodwill and draw a divide that gives East Timor fair ownership of resources close to its coastline. An open letter to Mr Abbott from the Timor Sea Justice Campaign asks that an equitable boundary be determined in accordance with international law.

Both sides will be able to make final written submissions to the ICJ by the end of the week, with the court to rule "as soon as possible" on whether the documents and data should be sealed and delivered to it by Australia as an interim measure.

A final ruling on whether the documents should be returned to East Timor is expected in 12-18 months.

Timor-Leste v Australia: what each country stands to lose

The Guardian (Australia) - January 23, 2014

Kate Lamb – At the international court of justice in The Hague this week, the tiny half-island nation of Timor-Leste has accused Australia of violating its sovereignty in a souring battle for natural resources.

The case relates to a protracted dispute over the Greater Sunrise field, an estimated $40bn worth of oil and gas reserves in the Timor Sea.

Timor-Leste has called for Australia to be internationally condemned after it authorised a raid on the office of Bernard Collaery, Timor-Leste's Canberra-based lawyer, from which documents were seized, and the home of a former Australian spy last December.

The former spy, now a key witness, alleges that Australia bugged the Timor-Leste parliament to listen in on Sunrise talks in 2004. Timor-Leste has told international arbitration in a separate case that that move should see a subsequent 2006 treaty nullified.

Streamed live on the ICJ website – in contrast to the behind-closed-doors arbitration over the treaty – the first days of the ICJ case were marked by a battle for international image.

Timor-Leste has attacked Australia's standing as a good global citizen, while Australia has defended the raids as a matter of national security, and rejected the "inflammatory" remarks of its tiny neighbour.

James Crawford, a professor of international law at the University of Cambridge, the final speaker for the Australian legal team on Tuesday, criticised Timor-Leste for bringing the case to the ICJ at all.

Given the public nature of the ICJ hearings, Crawford argued that Timor- Leste was seeking to "maximise the opportunity for publicity and comment prejudicial to Australia".

Some analysts suggest Timor-Leste must have had an idea that Australia would be spying, but others argue that, at a time when Edward Snowden was yet to be part of the global consciousness, and in a post-conflict society emerging from decades of bloody occupation, it may have been caught off- guard.

"I didn't know for sure then if we were being spied on but I am convinced now," said Ricardo Ribeiro, the former head of Timor-Leste's intelligence agency, "especially because we were so technologically behind Australia."

Ribeiro recalls Australian agencies revamping the government buildings post-independence, including the office of his intelligence team.

The most galling aspect of the spying claims, Timorese say, is that Australia purportedly spied not for political, but commercial gain – and on a relatively impoverished nation.

"If we draw a line, we are a very poor country, very small, in the middle of nowhere on the map," said Nelson Belo, director of Fundasaun Mahein, a Dili-based NGO, "It's kind of severe of Australia."

The Timorese are disappointed but not angry at Australia and want to sit down and put their legal arguments forward, said Belo, commenting in a personal capacity. "As a Timorese, we see that as a right," he said, "a sovereign right that we should defend."

On the other hand, some observers believe Timor-Leste, which attempted to negotiate the treaty bilaterally last year, is trying to capitalise on a moment it has long been angling for.

Edward Rees, a former special envoy to the United Nations in Timor-Leste in 2002, says the country is "taking advantage" of a broader global debate on the legitimacy of spying to push for a better deal on shared resources with Australia.

"Timor-Leste has been a bit creative because, had WikiLeaks not done its thing, had Edward Snowden not done a thing, this whole business of spying and the controversy around it would not be such a big deal," he said. "It's assumed."

Rees argues it would be naive to suggest Timor-Leste had no inkling the Sunrise talks might be tapped. "As the Timorese have already said, 'We strongly believed they were listening to our conversations, but we didn't think they would actually put bugs in the wall'," said Rees, who recalls returning to the country in 2004 and observing the parliament building had undergone a "no-expenses-spared" transformation.

The 2006 Certain Maritime Arrangements in the Timor Sea, or CMATS, is the agreement that divides the Greater Sunrise field between the two countries. Some in Timor-Leste have long seen it as a raw deal. The treaty stipulates a 50-50 split of the proceeds of the maritime energy fields in the Timor Sea, but is also premised on a contentious gag order.

Then foreign minister Alexander Downer offered Timor what it said was a greater share of the Sunrise resources if it agreed not to dispute any maritime borders, in any forum, for the next 50 years. But analysts say that if standard international norms were applied, the entire Greater Sunrise reserve would fall to Timor-Leste.

Charlie Scheiner, from the Dili-based NGO the Timor-Leste Institute for Development Monitoring and Analysis, says Australia's continental shelf boundary argument is a total fraud.

"People who follow this issue closely and know the history of it see that Australia is profiting tens of billions of dollars from maritime territory that they seized illegally as part of the Indonesian occupation," said Scheiner, "and all of these more recent agreements are just an attempt to legitimise that."

Timor-Leste's resistance to the deal is nothing new. The development of the Greater Sunrise field has been stalled for years because of a dispute between the country and field operators, Woodside Petroleum, about how the field should be developed.

For his part, Timor-Leste's prime minister, Xanana Gusmao, has spent countless hours decrying the Sunrise deal to the Timorese populace. "Xanana has been preparing the Timorese population for a fight with the Australians now for five years... explaining how the Australians have stolen Timorese money and that they weren't going to put up with it anymore," said Rees.

According to Rees, Gusmao used large power point projections in remote areas with no electricity to explain how the nation's oil wealth would transform it from a fragile nation to a stable middle-income country. The presentation featured the famous 1989 photo of then Australian and Indonesian foreign ministers Gareth Evans and Ali Alatas drinking champagne on a private plane over the Timor Sea, the area the 2006 treaty prohibits Timor-Leste from disputing.

Meanwhile, Rees says the real reason Australia is being so obtuse about the border issue is that it fears a renegotiation with Timor-Leste will prompt similar calls from an increasingly pushy Indonesia.

"Entering into a maritime discussion with Jakarta is a totally different ball game than it is with Dili, and much more important to the Australians," he said. "And the Indonesians are increasingly of the opinion that they like to push around Canberra and they are increasingly able to."

For now, as Timor-Leste battles it out in the international courts, it cannot afford to stall on the Sunrise deal forever.

Revenue from the oil and gas fields currently being exploited account for 80% of GDP and without Sunrise are only expected to last seven years. The country is under pressure to reduce its dependency on resources before the money runs out. Spending millions on international lawyers, says Scheiner, is a distraction from the bigger issues Timor-Leste needs to address.

If Australia wins at the ICJ it may be seen as the bully that got away with it. But even if Timor-Leste wins, it will still have to negotiate the maritime border with its wealthy neighbour.

The ruling by the international courts is final and binding, but Scheiner says the ultimate result is very much in Australia's hands. "It depends on whether Australia wants to be seen as a good international citizen," he said, "And I'm not sure how much it bothers them that they are international outlaws. Maybe it doesn't bother them at all."

ASIO raids: Australia accuses East Timor of 'frankly, offensive' remarks

Sydney Morning Herald - January 22, 2014

Tom Allard – Australia has accused East Timor of making "frankly, offensive" remarks before the International Court of Justice about Attorney-General George Brandis, as its lawyers suggested the tiny nation may have encouraged the commitment of a serious crime here.

The heated testimony to the United Nations pre-eminent judicial body on Tuesday came as East Timor seeks to have legal documents seized by ASIO last month returned.

The documents include correspondence between East Timor's lawyers and an outline of its legal strategy relating to a concurrent international arbitration where the fledgling nation is seeking to have a treaty it signed with Australia over $40 billion in oil and gas reserves in the Timor Sea declared invalid.

The key witness for East Timor in the arbitration is a former Australian Secret Intelligence Service operative who is alleging Australia bugged East Timor during negotiations over the treaty in 2004 and gained an unfair advantage. The ex-agent's office was raided along with the office of East Timor's Australian lawyer Bernard Collaery on December 3.

Senator Brandis has given multiple undertakings to the ICJ that the documents would not be read by himself, nor anyone representing Australia in the contentious arbitration, bolstered by a new vow on Tuesday that the documents would not be passed to any individual or agency that wasn't directly involved in national security or law enforcement.

East Timor's contention on Monday that Senator Brandis' undertakings may not be enforced and had to be treated cautiously was described by John Reid, Australia's agent at the ICJ, as "frankly offensive". East Timor's "inflammatory" submissions to the court had "impugned the integrity of the attorney-general of Australia", he said.

Moreover, the remark from East Timor's counsel (and former principal legal adviser to Australia's department of foreign affairs) Sir Elihu Lauterpacht that Australia's standards as a good international citizen were slipping had "wounded" and was without foundation.

East Timor is basing its legal case on the principle that the legal documents, laptops and USB stick confiscated by ASIO were its sovereign property. This was described by another Australian representative before the ICJ, Bill Campbell QC, as "beyond credulity" that, if accepted, would rewrite international law to extend a nation state's right of sovereignty into other nation states.

Australia argues the raids were justified because the alleged disclosure of an intelligence operation to a foreign country by the ASIS agent was a serious criminal offence under Australian law. As such, legal professional privilege did not apply to the material seized and the raids were in accordance with both domestic and international law.

Indeed, Australia's solicitor-general Justin Gleeson – who also spoke at the ICJ – went as far as saying that East Timor "may be encouraging the commitment of that crime".

The final speaker in Australia's heavyweight legal team was James Crawford, a professor of international law at the University of Cambridge. He queried why the matter was being heard by the ICJ at all. He said East Timor's concerns about the raids and demands for the return of its documents could have been ruled upon in the arbitration case on the Timor Sea Treaty, which is also being heard at the Hague.

He noted that the arbitration was being held behind closed doors while the ICJ conducted public hearings, which are livestreamed on its website. Professor Crawford said that, by requesting the matter be heard by the ICJ, East Timor was seeking to "'maximise the opportunity for publicity and comment prejudicial to Australia".

Final oral submissions to the court will be made on Wednesday.

East Timor calls on The Hague to condemn ASIO raids

Sydney Morning Herald - January 21, 2014

Tom Allard – East Timor has called on the International Court of Justice to deliver a "clear, firm and severe" condemnation of Australia for using ASIO agents to raid the office of its Canberra-based lawyer.

As proceedings kicked off in The Hague, the international law expert and academic Sir Elihu Lauterpacht delivered a blistering opening statement on behalf of the fledgling nation.

At issue were the ASIO raids on East Timor's lawyer Bernard Collaery and on a former senior officer of the Australian Secret Intelligence Service. The raids on December 3 were part of an escalating dispute between Australia and East Timor over some $40 billion of oil and gas reserves in the Timor Sea amid allegations of dirty dealings and espionage.

The ASIO raids stunned many observers given they occurred in the middle of legal proceedings between Australia and East Timor over the oil and gas resources and reams of correspondence between the fledgling nation's legal advisers were seized by Australia's spies.

East Timor wants the material – legal documents, a laptop, smartphone and USB – returned to them. Failing that, it wants the material sealed and sent to the ICJ to look after.

East Timor also wants the ICJ to require Australia to cease any ongoing spying on its officials and lawyers. Sir Elihu said the ASIO raids amounted to the unlawful seizure of the sovereign property of East Timor, also known as Timor Leste.

While Australian attorney-general George Brandis said the raids were justified on "national security" grounds, Sir Elihu said the raids were "undoubtedly a violation of the national security of Timor Leste". "What's required is a clear, firm and severe condemnation of what Australia has done," he said.

Sir Elihu was speaking before a panel of the ICJ, which included the surprise addition of Ian Callinan, the former high court judge renowned for his links to conservative Australian politicians.

Sir Elihu rejected the significance of Senator Brandis' extraordinary personal undertaking not to read highly sensitive documents seized by ASIO in the raids, revealed by Fairfax Media. He also discounted the Attorney- General's promise not to allow Australian officials and lawyers involved in the dispute to read the seized papers.

He said the material seized by ASIO included geological surveys and advice on maritime boundaries which would be of great use to Australia in any future litigation between the two nations.

East Timor had moved earlier last year in The Hague for the treaty to be declared invalid, saying it is unfair and not completed in good faith as Australia allegedly eavesdropped on its government's offices during negotiations.

The ex-ASIS agent, who was raided, interrogated and had his passport suspended, is East Timor's key witness in this dispute. The former spy allegedly led a bugging operation of East Timor cabinet rooms during oil and gas treaty talks in 2004.

Senator Brandis, who authorised the raids in December, is both in charge of ASIO and the legal case being run by Australia against East Timor over the Timor Sea reserves in The Hague.

The Senator argues that legal professional privilege did not apply to the documents because they disclosed national security information and "therefore involve the commission of a serious criminal offence under Australian law".

Any objections by East Timor to the raids should be heard in an Australian court or another arbitration tribunal in The Hague, rather than the ICJ, he adds.

Reflecting the seriousness of the case, and the oil and gas revenues ultimately at stake, Australia has a 16-person team of lawyers and assistants representing it at the ICJ, including some of the world's leading international law experts.

Even so, some observers say the optics are bad for Australia, not least because Timor is an impoverished nation and Australia a wealthy one.

"This is going to be pretty hard on Australia's image, it's not exactly glorious for them," international law expert Olivier Rentelink from The Hague's Asser Institute told Agence France Presse.

Australia's lawyers will be heard on Tuesday night, while both sides will sum up on Wednesday.

Australia rejects Timor's demands to return documents seized in ASIO raid

ABC Radio Australia - January 21, 2014

Mary Gearin – Australia has rejected East Timor's arguments that it has the right to demand the return of materials seized in an ASIO raid last year.

East Timor is in the International Court of Justice at The Hague, demanding the return of documents and data seized in raids on the office and house of lawyer Bernard Collaery. The tiny nation says its national security and sovereignty was violated and that Australia has breached international law.

But John Reid from the Attorney-General's office says Australia is disappointed with East Timor's arguments in the hearing. He said the ASIO raids were lawful, justified and respectful of East Timor's rights.

Solicitor-General Justin Gleeson says Attorney-General George Brandis has given further undertakings to satisfy East Timor's concerns about the use of the seized materials. He says the material would not be communicated to anyone in government for any purpose other than for the protection of national security.

Mr Gleeson told the court the raids were prompted by the prospect that a serious crime was being committed, that is that a disaffected former spy was going to put classified information in the hands of a foreign state, relating to East Timor's allegations that Dili's cabinet rooms were bugged during negotiations ahead of the 2006 oil and gas treaty.

East Timor has argued the raids put Dili at considerable disadvantage in a current arbitration process in which it is challenging the validity the treaty and also in negotiating maritime boundaries. The seized material is thought to contain details of allegations that Canberra spied on Timor during the treaty negotiations.

Australia has violated Timor-Leste's sovereignty, UN court told

The Guardian (UK) - January 20, 2014

Daniel Hurst – Australia's "illegal" seizure of documents from a Canberra-based lawyer acting for Timor-Leste falls short of the high standards expected of a nation with considerable international standing, the International Court of Justice has been told.

Timor-Leste's representatives used their opening submissions to the court in The Hague to denounce the raid by Australian Security Intelligence Organisation (Asio), arguing national security interests were "not some magic wand" that allowed a country to wave away its obligations under international law.

The International Court of Justice has set aside three days to hear the dispute between Timor-Leste and Australia over the fate of documents seized by Asio on 3 December. Australia's attorney general, George Brandis, issued warrants to search addresses in Canberra "on the grounds that the documents contained intelligence related to security matters".

Timor-Leste contends that the documents and electronic data removed from the offices of its Canberra-based legal adviser, Bernard Collaery, feature highly confidential, legally privileged correspondence with the government of Timor-Leste, including information about its strategy in the pending arbitration under the Timor Sea Treaty with Australia. In that dispute, Timor-Leste argues a 2006 agreement to extend the crucial oil and gas treaty is void because Australia conducted the negotiations in bad faith by allegedly bugging the Timor-Leste cabinet room to gain an unfair advantage.

Timor-Leste is seeking an urgent ruling from the International Court of Justice ordering Australia to deliver to the court the documents and data seized from Collaery's premises and to destroy any copies. It also wants Australia to "give an assurance that it will not intercept or cause or request the interception of communications between Timor-Leste and its legal advisers".

One of the lawyers appearing at the court for Timor-Leste, Sir Elihu Lauterpacht, said Australia's unconscionable conduct "manifestly distorts the character of the future negotiations by placing Timor-Leste at a considerable negotiating and litigating disadvantage".

Lauterpacht said Timor-Leste aimed "to prevent with immediacy Australia from deriving any further benefit from the internationally illegal seizure" of the documents. He contrasted Australia's status as large, powerful and rich in natural resources with the weaker position of its "much smaller and much poorer" neighbour.

"This unprecedented and improper, indeed, inexplicable conduct, compounded at various times by self-contradictory statements, on behalf of Australia, is not the behaviour of some state that does not subscribe to normal standards of international legal behaviour. Rather, it is the behaviour of a state of considerable international standing," Lauterpacht told the court on Monday.

Lauterpacht said he regretted appearing in a case against Australia as he had served as the principal legal adviser of the Department of Foreign Affairs between 1975 and 1977.

"During that time I conceived a deep affection and a high regard for that country, so it is saddening for me that in this case I'm obliged to confront Australia in respect of conduct which inexplicably falls so far short of the high standards that prevailed in my time," he said.

Apart from Collaery's offices, the raids reportedly included the home of a senior retired Australian Secret Intelligence Service (Asis) agent who was a prime witness to Australia's alleged spying against Timor-Leste during treaty negotiations.

Brandis told the Senate last month he had issued search warrants at Asio's request after satisfying himself that the requests from the intelligence agency met the relevant statutory tests. The attorney general said the Intelligence Services Act prohibited current and former officers of Asis from communicating any information connected with the agency.

Lauterpacht told the court on Monday: "Despite the circumstances surrounding the present case, this is not a case about spying and espionage. The court will not have to pronounce on such activities generally. Rather the case is a relatively simple one: one state has taken the property of another and should be required to give it back, untouched and without delay."

Monday's two-hour hearing was dedicated to Timor-Leste's opening submissions, with Australia set to present its opening arguments on Tuesday. Timor-Leste's lawyers attempted to neutralise some of Australia's arguments, including suggestions that Timor-Leste could have taken action in Australian domestic courts.

Sir Michael Wood, for Timor-Leste, said: "The existence of remedies under Australian law, even if they could be shown to be effective, is not relevant in the present situation where a sovereign state complains about a direct interference with its rights under international law."

Wood said it was also irrelevant that the seized documents were "brought within or created within Australia". "It does not amount to a waiver of the rights which Timor-Leste has under international law in respect to its property," he said. "Were it otherwise it's difficult to see any foreign state seeking advice of lawyers in Australia."

Referring to Australia's national security argument, Wood said: "The court should indeed be prudent but national security and the enforcement of criminal law are not some magic wand that makes the rights and obligations of states under international law vanish."

On 3 December, after the raids were carried out, Brandis rejected allegations the warrants were "issued in order to affect or impede the current arbitration between Australia and Timor-Leste at The Hague". The attorney general said: "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."

But Lauterpacht said Brandis's undertakings were "silent upon the availability of these very sensitive and confidential documents to those Australian officials involved in maritime delimitation matters".

Lauterpacht said the seized iPhone, laptop, USB thumb drive and other documents may contain "a very wide and miscellaneous range of materials" that were legally sensitive including matters not directly related to the arbitration.

He said Collaery's office had been working on many files on behalf of the Timor-Leste government and they were therefore the property of Timor-Leste. "This is fully in line with the generally accepted proposition that the client, in this case the government, has proprietary ownership of documents that had been brought into existence or received by a lawyer acting as agent on behalf of the client, or that had been prepared for the benefit of the client and at the client's expense."

Lauterpacht said Australia failed to recognise "that the seizure of another state's property is as much a violation of international law as would be the seizure of any part of another state's territory – it is a matter of scale, not of quality".

A Timor-Leste ambassador appearing before the court, Joaquim Fonseca, said present-day relations between the two countries were "close and friendly", but national resources of the sea remained a "serious bone of contention".

"The government and people of Timor-Leste feel a real sense of grievance at the manner in which they have been treated by our last neighbour in this respect. To their credit, there are many in Australia who share our discontent," Fonseca said.

"Timor-Leste has now initiated arbitration under article 23 of the Timor Sea treaty. Then, in complete disregard and disrespect of our sovereignty, Australian secret agents have seized papers relating to the arbitration proceedings as well as other important legal matters between Timor-Leste and Australia. That has caused deep offence and shock in my country."

The hearing before the principal judicial body of the United Nations continues.

East Timor demands Australia return documents at court hearing

Reuters - January 20, 2014

Amsterdam – East Timor demanded on Monday that Australia return seized documents relating to the two countries' negotiations over oil and gas reserves thought to be worth tens of billions of dollars.

The dispute brought before the United Nations' top court pits one of Asia's poorest countries against its wealthy giant neighbour, Australia, in a case involving spy agencies, bugging allegations, snatched documents and potentially huge rewards from developing oil and gas fields.

The hearings at the International Court of Justice (ICJ) in the Hague, in a case brought by East Timor against Australia, concern seized documents allegedly showing how Australia may have used intelligence to outmanoeuvre East Timor in talks over the Greater Sunrise oil and gas fields.

The two countries are in dispute over revenue-sharing as well as how best to develop the gas fields, located 150 km southeast of East Timor and 450 km northwest of Darwin, Australia.

The seized documents contained legal advice and details of East Timor's negotiating position and strategy in relation to Australia, Sir Elihu Lauterpacht, East Timor's lawyer, told judges on Monday, putting Dili "at a considerable negotiating and litigating disadvantage".

East Timor wants the ICJ to order the return of documents and other material which was seized during raids by Australia's domestic spy agency on the Canberra offices of a lawyer representing East Timor over Australian bugging claims and an unnamed former spy-turned-whistleblower.

The Southeast Asian nation, which gained independence in 2002, says that officers of the Australian Security Intelligence Organisation (ASIO) seized correspondence between the government of East Timor and its legal advisers, including documents relating to a pending arbitration under the 2002 Timor Sea Treaty between East Timor and Australia.

East Timor is also bringing an arbitration case 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.

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.

George Brandis vows not to read documents ASIO seized

Canberra Times - January 20, 2014

Tom Allard – Attorney-General George Brandis has given an extraordinary undertaking not to read highly sensitive documents seized by ASIO agents in a raid on East Timor's lawyer last year as Australia tries to thwart the fledgling nation's bid in the International Court of Justice to have the material returned.

East Timor's objections to the raid are to be put to the International Court of Justice in The Hague on Monday evening amid burning anger in the impoverished nation over the raids.

As well as getting the documents returned to them – and any copies destroyed – East Timor wants the ICJ to require Australia to cease any continuing spying on its lawyers.

The raid on lawyer Bernard Collaery, and a second one on a former senior officer of the Australian Secret Intelligence Service, in Canberra on December 3 were part of an escalating dispute between Australia and East Timor over $40 billion of oil and gas reserves in the Timor Sea amid allegations of dirty dealings and espionage.

The ASIO raids stunned many observers because they occurred in the middle of legal proceedings between Australia and East Timor and included correspondence between East Timor's legal advisers were seized.

Moreover, Senator Brandis, who authorised the raids, is in charge of ASIO and the legal case being run by Australia against East Timor in The Hague.

Court documents obtained by Fairfax Media show the unusual lengths Senator Brandis will go to to justify the raids and keep the documents, which Australia denies are covered by legal professional privilege.

The documents reveal he told the arbitral tribunal in The Hague that he would undertake not to "make myself aware or otherwise seek to inform myself of the content of the [seized] material". If there was any change, he would inform the tribunal and offer further undertakings.

One of the documents reveals that ASIO agents only "briefly inspected" the documents they took during the raids, aware that their conduct was likely to lead to objections by East Timor.

Along with the documents, a smartphone, USB stick and laptop were removed from Mr Collaery's office by ASIO, according to a property seizure record obtained by Fairfax Media.

"With one exception, all materials were then placed in sealed envelopes and have remained sealed to the present day," according to the written observations Australia presented to the ICJ last week.

Senator Brandis argues that legal professional privilege did not apply to the documents because they disclosed national security information and "therefore involve the commission of a serious criminal offence under Australian law".

Any objections by East Timor to the raids should be heard in an Australian court or another arbitration tribunal in The Hague, rather than the ICJ, he adds.

Reflecting the seriousness of the case, and the oil and gas revenues ultimately at stake, Australia has a 16-person team of lawyers and assistants representing it at the ICJ, including some of the world's leading international law experts.

Even so, some observers say the perceptions are bad for Australia, not least because East Timor is an impoverished nation and Australia a wealthy one.

"This is going to be pretty hard on Australia's image. It's not exactly glorious for them," international law expert Olivier Rentelink from The Hague's Asser Institute told Agence France-Presse.

East Timor wants a 2006 treaty that carves up the reserves declared invalid, saying it is unfair and not completed in good faith as Australia bugged its government's offices during negotiations.

The former ASIS agent, who was interrogated and had his passport suspended, is East Timor's key witness. The former spy allegedly led a bugging operation of East Timor cabinet rooms during oil and gas treaty talks in 2004.

Australia's lawyers will be heard on Tuesday night, while both sides will sum up on Wednesday. Senator Brandis' office declined to comment.

Timor takes on Oz in 'rip off' spy case with country's future on line

Pacific Scoop - January 19, 2014

David Robie – When Timor-Leste opens its lawsuit against Australia in a United Nations courtroom spy drama in The Hague this week with the economic survival of this Asia-Pacific country on the line, a small but feisty non- government organisation will be closely monitoring proceedings.

Renegotiation of the great Australian "rip-off" maritime treaty – as some critics have branded it – is at stake in the ultimate end game of the Timorese action against the Canberra government.

La'o Hamutuk, the Dili-based Timor-Leste Institute for Development Monitoring and Analysis, has been a public watchdog on the oil and gas industry and other vulnerable resources since independence was restored from Indonesia more than a decade ago.

It has waged a public education campaign on the fledgling country's annual budgets and an eagle-eyed surveillance of how the Timor Sea oil riches are being spent.

La'o Hamutuk has been committed to a strategy of public information and transparency in an attempt to help Timor-Leste sidestep the ravages of the so-called "resource curse".

This phenomenon is based on the notion that nations that have an abundance of natural resources such as petroleum or mining tend to perform economically worse than countries that are not so blessed.

"We publish the truth, we don't care what the global banks or the government think," says advocate Juvinal Dias, one of the campaigners leading La'o Hamutuk's strategic education programme.

Spy revelations

But the NGO's low-key campaign took a backseat last month after revelations that Australia had used espionage to gain an unfair economic advantage over Timorese negotiators and to pressure them into a desperate agreement over the oddly named Certain Maritime Arrangements in the Timor Sea (CMATS) treaty in 2006.

In a scathing article titled "The poor cannot afford justice", British- Canadian foreign affairs commentator Gwynne Dyer described the spying by Canberra to be "too shameful to share even with the other four countries of the 'Anglosphere'" – its fellow members in the so-called "Five Eyes" hi- tech surveillance cartel, Canada, New Zealand, United Kingdom and United States.

Under the CMATS treaty, Australia wrested a half share in the Greater Sunrise oil and gas field believed to be worth up to US$40 million. However, the field is far closer to the Timor-Leste coastline, which is just 100 km away in contrast to 400 km to the Australian coast.

According to Dyer, Australian espionage was arranged so that it could "rip its neighbour off" in the treaty negotiations.

And a clause prevented "renegotiation" for 50 years – probably long after the oil field would be exhausted. But the espionage revelations opened the door for Timor-Leste to take action.

Timor-Leste isn't as wealthy as it seems. The nation of a million people has a largely undeveloped infrastructure and about 92 percent of its economy depends on the oil and gas industry.

But it has only about six years to develop an alternative economy and to boost agriculture and tourism before the current Bayu-Undan oil and gas reserves run out in 2020 – about four years earlier than previously thought.

Public education

La'o Hamutuk has been on the case in its many public education meetings, driving home the message of how important it is to diversify and to spend current budgets wisely.

But right now the Timor-Leste government, whose Prime Minister Xanana Gusmao, 67, announced last week in his US$1.5 billion state budget speech that he would retire from the top job before the end of this year, is concentrating on its "David and Goliath" battle with Australia in the International Court of Justice.

Timor-Leste wants the court to make a judgment ordering Canberra to return documents its state espionage agency seized last year in raids related to the country's arbitration case seeking the tearing up of the CMATS treaty.

"It's simple – we're asking for our documents back. Australia has unlawfully taken documents that are rightfully the property of Timor- Leste," council of ministers chief Agio Pereira told Agence France-Presse in The Hague.

Four Australian Security Intelligence Organisation (ASIO) agents posing as aid workers reportedly bugged the Timor-Leste government offices while doing renovations.

The former Foreign Minister, Alexander Downer, whose administration had given the go ahead for the spying mission, now heads a lobbying company advising Woodside Petroleum, the Australian company that gained from the CMATS treaty.

In November, the Australian government arrested a whistleblower and cancelled his passport to prevent him giving evidence in the case.

Raided offices

It also raided the Canberra offices of the Australian lawyer acting for Timor-Leste, Bernard Collaery, and seized documents.

Protesters in Timor-Leste last month condemned the Australian actions, accusing Canberra of "stealing our oil" and calling for a maritime "median line now".

Collaery represents the Timor-Leste government in its lawsuit filed last year to seek cancellation of the CMATS treaty in the Permanent Court of Arbitration in The Hague.

The case before the ICJ opening this week is a public hearing and will shed some light on the tug-of-war between the two countries.

The Timor-Leste government seeks handing over the documents crucial for its arbitration case and an Australian guarantee that it will stop intercepting communications between its ministers and lawyers.

"But the case may still be settled out of court," suggests columnist Dyer, "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.

Price of justice

"Offer East Timor another 10 percent and a promise to go ahead, and it will probably drop the case. The poor cannot afford justice."

Whatever happens, La'o Hamutuk will continue its scrutiny of the country's economic affairs. It believes the government is spending too much on consumer goods for the impoverished country and not enough on agriculture, education and health.

It also reckons that the government has been seduced by a grand plan for the south coast of Timor-Leste involving massive investment in an airport, highway and oil refinery based on unrealistic expectations about the oil industry future.

While some government officials appreciate what La'o Hamutuk says in terms of economic analysis, others don't, especially Petroleum Minister Alfred Pires who wants the south coast project to go ahead.

"Some appreciate what we do, but some are not really happy," says advocate Juvinal Dias. "This is normal – a political characteristic of advocacy."

He sees strengths for La'o Hamutuk's work include:

Greater transparency

La'o Hamutuk also strives for greater democracy and transparency about process.

It has criticised a decision this month for an ad hoc committee reviewing the budget – after the opposition Fretilin Party called for the budget to be reduced to $1.2 billion and others proposing 426 amendments – seeking to meet behind closed doors.

The La'o Hamutuk blog described this as a "serious setback for democracy", as citizens deserved to hear the discussion and voting on many "significant issues".

"The public also needs to know what trade-offs, horse-trading and compromises are being made – as well as what the MPs have decided not to talk about."

[David Robie is director of the Pacific Media Centre.]

World court to shine light on East Timor-Australia spy row

Agence France Presse - January 18, 2014

The Hague – Tiny, young East Timor drags its giant neighbour Australia before the United Nations' top court next week in a cloak-and-dagger case with billions of dollars in natural resources at stake.

At the heart of the David and Goliath dispute at the International Court of Justice (ICJ) in The Hague is a controversial oil and gas treaty signed by Dili in 2006, shortly after independence from Indonesia.

East Timor wants judges at the ICJ, which rules on disputes between states, to order Australia to return documents its intelligence services seized last year relating to Dili's bid to get the treaty torn up.

"It's simple: we're asking for our documents back. Australia has unlawfully taken documents that are rightfully the property of Timor-Leste," government spokesman Agio Pereira told AFP ahead of Monday's hearing.

East Timor gained its independence in 2002 following years of brutal Indonesian occupation but has a sluggish economy that is heavily dependent on oil and gas.

Dili wants the key treaty it signed with Canberra in 2006 dividing oil and gas resources ripped up, saying Australia spied on ministers to gain a commercial advantage.

Australia allegedly used an aid project refurbishing East Timor's cabinet offices as a front to plant listening devices in the walls in order to eavesdrop on deliberations about the treaty in 2004.

The treaty, Certain Maritime Arrangements in the Timor Sea, or CMATS, set out a 50-50 split of proceeds from the vast maritime energy fields between Australia and East Timor estimated at 26 billion euros ($36 billion).

Dili signed such treaties "at fragile and vulnerable times in our young nation's history," government spokesman Pereira said. "Now, in 2014, we are acting with a new breadth of information, data and analysis, including information that Australia may have acted in bad faith and in breach of international law."

Australian media have reported that the lion's share of Timor Sea oil and gas would be on Timorese territory if the maritime border were defined according to customary rules of the sea.

But first the half-island nation wants the ICJ to order the return of documents seized in November when Australia's domestic spy agency raided the Canberra offices of East Timor's lawyer, Bernard Collaery.

Collaery is representing East Timor's government in its bid lodged last year to get the CMATS treaty cancelled at the Permanent Court of Arbitration, housed in the same Palace of Justice in The Hague as the ICJ.

While that case is being held behind closed doors, the ICJ hearings will for the first time shine a very public light on Australia's alleged skulduggery.

"This is going to be pretty hard on Australia's image, it's not exactly glorious for them," international law expert Olivier Rentelink from The Hague's Asser Institute told AFP.

The premises of a former Australian intelligence agent turned whistleblower in the arbitration case against Canberra were also raided.

Australia has largely refused to comment on the proceedings, although Prime Minister Tony Abbott has defended the raids as in the national interest.

East Timor Minister for Petroleum and Mineral Resources Alfredo Pires stressed his country's generally good relations with Australia but said: "The only avenue we have as a small country is international legislation."

Dili has asked for "provisional measures" until the ICJ rules on the case, including that the documents be handed to the court and that Australia guarantee it will not intercept communications between East Timor and its legal advisers.

"Timor Leste is a young country, we had the UN here and everyone teaching us transparency, the rule of law, and then we get one of the great teachers not following the rules," said Pires.

Cases at the ICJ can take years to resolve.

Australia's Timor spying row deepens

Straits Times (Singapore) - January 10, 2014

Jonathan Pearlman – Australia faces growing accusations that it spied extensively on Timor Leste during crucial talks over a deal to share gas and oil fields worth an estimated A$40 billion (S$45 billion).

In an embarrassing and deepening scandal that is damaging ties between the two countries, Australian agents are accused of pretending to do work for Canberra's aid arm, AusAID, while conducting widespread espionage on Timor Leste's leaders. The spying was allegedly designed to assist Australia's position during negotiations in 2004 over a division of the oil and gas resources in the Timor Sea.

The negotiations led to a treaty signed in 2006 which included a 50-50 split of the lucrative Greater Sunrise fields. The fields are closer to Timor Leste than Australia, and would belong entirely to Dili if the midway point between the countries were used as the maritime boundary, a marker commonly used in international law.

In the latest espionage revelations, which appeared in The Australian newspaper last weekend, Australia allegedly offered to renovate the residence of Timor Leste Prime Minister Xanana Gusmao in Dili in 2004, and then deployed its foreign spy agency, the Australian Secret Intelligence Service (Asis), to install bugs and surveillance equipment. The renovations included construction of a secure "situation room", which was later used extensively by Timor Leste's negotiating team.

Timor Leste has taken Australia to the Permanent Court of Arbitration in The Hague over the spying claims, and wants the treaty overturned. The affair has badly damaged ties between the two countries, which had become close after Australia played a leading role in Timor Leste's bid to end Indonesia's rule and eventually gain independence in 2002.

Timor Leste, with a population of 1.2 million, is a poor nation with 18 per cent unemployment and 12 per cent inflation. Its economic future largely depends on its underwater oil and gas resources.

According to Mr Paul Cleary, a journalist and former adviser to Timor Leste during the negotiations from 2003 to 2005, Dili will present the court with an affidavit by a former Australian spy to allege that agents planted listening devices inside the walls of the meeting room, which was next to the Prime Minister's private office.

"The (building) contract provided the perfect vehicle to bug the office because it gave unfettered access to the building, including the roof cavity," he wrote in The Australian.

"Throughout these (treaty) negotiations, Timor Leste's ministers and advisers operated on the premise that all of their phone calls and e-mails were being intercepted by Asis, but no one expected that the office would be physically bugged."

Mr Cleary said Australia not only used espionage, but may also have bribed or blackmailed a senior member of Timor Leste's negotiating team.

In a strange twist, Australian intelligence agents last month raided the suburban Canberra office of lawyer Bernard Collaery, who is representing Timor Leste in its case.

On the same day, a separate group of agents raided the home of a former Australian spy who is allegedly the star witness for Timor Leste and plans to speak out about Australian spying. The spy's passport was cancelled, and it is not clear whether he will be able to take part in proceedings at The Hague, possibly later this year.

The raids were described as "aggressive" and "unconscionable" by Timor Leste's Prime Minister. Dili launched fresh proceedings in the International Court of Justice, saying Australia should apologise and destroy the seized documents.

The Australian government denied the raids were designed to interfere with the case, saying they were conducted to protect national security. Attorney-General George Brandis told Parliament last month that such claims were "wild and injudicious".

International relations expert Clinton Fernandes of the Australian Defence Force Academy of the University of New South Wales said there was little doubt Australia spied on Timor Leste during the treaty talks. He said the recent raids effectively proved Canberra's guilt.

"The government has virtually confirmed that it was conducting espionage as a result of ordering raids on the agents involved," he told The Straits Times. He said Australia should agree to a fairer resources deal with Timor Leste, and "risked having a resentful neighbour on our border".

Joining the dots could produce red faces among our spymasters

Sydney Morning Herald - January 10, 2014

Richard Ackland – Let's try to join a few dots.

Dot One: In 2004, David Irvine, the head of the external spy agency, the Australian Secret Intelligence Service, ordered the bugging of rooms used by ministers of East Timor.

The alleged aim of that espionage was for Australia to find out what the East Timorese ministers were thinking about the negotiations over resources in the Timor Sea (the CMATS treaty).

Irvine had been promoted to ASIS from the diplomatic stream by his boss, the minister for foreign affairs Alexander Downer. One of the areas subject to negotiation was to be developed by a consortium of oil and gas companies, including Woodside.

Dot Two: In March 2009, Irvine is appointed head of the internal spy agency, the Australian Security Intelligence Organisation.

Dot Three: In April 2013, East Timor initiated arbitration proceedings in The Hague seeking that the CMATS treaty be declared invalid or void because of illegal activity by Australia.

Dot Four: One of the people directed to do the bugging is a key witness for East Timor in the proceedings before the Permanent Court of Arbitration (PCA), now known as Witness K.

Dot Five: In December 2013, ASIO gets its new boss, Attorney-General George Brandis, to sign a warrant to allow it to raid the premises of Bernard Collaery, the lawyer representing East Timor at the PCA and Witness K – ostensibly on the grounds of protecting national security. Witness K's passport is cancelled and documents relating to the case in The Hague are removed from Collaery's law firm.

Dot Six: Some time after his departure from politics in 2007, the cigar- smoking, pinkie-ring wearing Downer took up as a partner of the lobbying firm Bespoke Approach, one of whose clients is Woodside Petroleum.

That is enough of the dots about stuff we know. However, if you join them all up, a question legitimately arises: in view of the pending proceedings in The Hague touching on illegality, does the protection of Australia's national interest have some synchronicity with the interests of people who ordered the bugging in the first place?

The evidence that East Timor can muster in seeking a declaration that the treaty is invalid or void will be crucial in finding the answer.

Let's look at invalidity first. Australia and East Timor are both parties to the Vienna Convention on the Law of Treaties. Article 49 says that if a country is induced to agree to a treaty by the fraudulent conduct of another party, then it may invoke fraud to invalidate its consent. Here fraud extends to deliberately deceitful behaviour. Spying to obtain confidential information is deceitful, but whether that deceitful behaviour led East Timor to be induced to enter the CMATS treaty is less certain.

Professor of law and the ANU College of Law, and a leading international lawyer, Donald Anton, argues in a recent paper that the answer will depend on what East Timor's evidence discloses (hence the importance of Witness K).

He says: "If the evidence adduced proves a deceitful inducement, it appears that Australia will have the dubious distinction of being the first known [country] to have a treaty declared invalid on account of its fraud."

National security aside, it becomes a little clearer why this case is also of direct importance to the people alleged to have initiated the bugging. If East Timor can't jump the fraud hurdle, it does have other grounds. Again I'm drawing on Professor Anton's research.

Spying by bugging could also constitute a breach of good faith under international law. As he says: "To seek to gain a further upper hand by way of spying is the antithesis of good faith."

Treaties brought about as a result of an absence of good faith may not be invalid, but they may well be void under international law.

Then there is the issue of Australia's alleged intervention in the affairs of East Timor. Anton again: "Deliberately sending spies into another state without permission to secretly obtain confidential, privileged and classified information of the other state is... clearly prohibited by international law."

This makes sense when you consider that countries vigorously protest when it is discovered they are being spied on, diplomats accused of spying are expelled and countries worldwide send spies to jail if they steal state secrets.

In 2011 Rio Tinto was being sued in the US courts by people in Indonesia alleging human rights abuses, torture and so on. Australia argued, as amicus curiae, that these proceedings violate international law because "it would interfere fundamentally with other nations' sovereignty".

As Anton puts it, sending spies into another state without permission to obtain confidential information is a much more significant intervention into the exclusive sovereign domain and is clearly prohibited by international law.

While under Australian legislation ASIS has a wide remit to spy externally, the case at The Hague will be decided by international law or possibly by the terms of the Vienna Treaty. An altogether more difficult kettle of fish with potentially embarrassing consequences for our spymasters.

George Brandis' security clean-up leaves out messy questions

Sydney Morning Herald - January 2, 2014

Richard Ackland – Loose ends tend to clutter our lives and, supposedly, a new year is a good time to tidy them up or burn them to cinders.

So it is with Attorney-General George Brandis' explanation to Parliament about the Australian Security Intelligence Organisation's raid on the office of Canberra lawyer Bernard Collaery, who is representing East Timor, and the home of his former client, now known as Witness K, who had worked for the Australian Secret Intelligence Service.

These raids occurred on the eve of proceedings brought by East Timor at the Permanent Court of Arbitration in The Hague, seeking to unstitch what its government says is an unfair agreement with Australia over a 2006 Timor Sea maritime treaty.

At stake is the revenue sharing from petroleum resources, in circumstances where Australia's claim as to the maritime boundary is uncertain to say the least. The first loose end is an annoying thread that hangs off the Attorney-General's statement about the ASIO raid.

Mostly it was the usual boilerplate stuff: we don't talk about national security issues (except when a political point can be scored or some irritating person can be squelched), the purpose of the search warrants had absolutely nothing to do with the arbitration in The Hague, the search warrants, signed by the Attorney-General, were sought by ASIO on national security grounds, other allegations are groundless, etc.

Then there was this: "Might I finally make the observation that merely because Mr Collaery is a lawyer that fact alone does not excuse him from the ordinary law of the land. In particular, no lawyer can invoke the principles of lawyer-client privilege to excuse participation, whether as principal or accessory, in offences against the Commonwealth."

That's a pretty clear imputation that somehow Collaery, in acting either for East Timor or the former ASIS officer, was running close to the legal wind. But is that so?

Much was omitted from Brandis' ministerial statement, including the allegation that ASIS had bugged offices in Dili used by members of the East Timorese government and its advisers in order to eavesdrop on their negotiating position over the Certain Maritime Arrangements in the Timor Sea.

What was also omitted was something rather fundamental – that Witness K had gained approval to speak to Collaery about complaints and concerns he had in relation to his employment at ASIS.

On February 26, 2008, the then inspector general of intelligence and security, Ian Carnell, met with Witness K. This was followed by a letter on March 3, 2008, from the inspector general to the former ASIS officer setting out various options for handling his complaint. These included an inquiry conducted by the inspector general of intelligence and security, a grievance review panel, representations to the responsible minister or private legal action.

The complainant replied on March 25, 2008, saying he would like the inspector general of intelligence and security to conduct an inquiry into his concerns and also advised that he had spoken to Collaery and provided him with a general brief, conforming with his security obligations.

There was a further letter on April 2, 2008, from Carnell noting that there had been consultations with Collaery and that the lawyer was likely to be in touch with the inspector general to confirm he had a brief to keep watch of the matter on behalf of his client.

Implicitly, Collaery was authorised to act for the ASIS officer. Indeed, Collaery had long been an "approved lawyer" in acting for ASIO, ASIS and other security officers. Documents relating to other officers he represented were not removed by ASIO during the December raid on his office.

The complaints that the inspector general of intelligence and security was to investigate flowed by the bugging of the relevant East Timor ministerial room. Collaery says the witness was personally directed by the then ASIS director general, now the Director-General of Security, David Irvine, to plan and effect the bugging mission.

It emerged that one of the beneficiaries turned out to be Woodside Petroleum, which has the licence to exploit the gas fields, which were the subject of the negotiations.

It is understood that all three personnel connected to the bugging operation were removed from their jobs at ASIS.

The explanation given was the need for "generational change". The complaint that was brought to Carnell and Collaery was that "generation change" was a a tactic for constructive dismissal or being bundled out on spurious grounds.

The complainant was also concerned about the diversion of resources away from proper defence, security and national interest functions. This had nothing to do with intelligence priorities.

In Collaery's words, there was evidence of a conspiracy "to defraud Timor- Leste – a common law crime, which would support proceedings before an arbitral tribunal".

So, it's a puzzle why Brandis would suggest Collaery was engaged in offences against the Commonwealth when he had approval from the inspector general of intelligence and security to act for the ASIS officer. Nor it is easy to see how the proceedings before the permanent court at The Hague, which are held in-camera, threaten our national security.

At least under the Australian Security Intelligence Organisation Act, the definition of "security" is spelt out and does not include looking after the economic interests of Australian corporations.

After the raids and claims by Collaery, the current Inspector General, Vivienne Thom, issued a rare and highly prized statement.

She wasn't aware, to the best of her knowledge, of any current or former ASIS officer raising concerns with her office "about any alleged Australian government activity with respect to East Timor".

She checked with Carnell and he didn't have any recollection about this. Further, there were "no discussions with any former or current ASIS officer about any such concerns". Maybe a bit too cute for words.

Invasion & occupation

Would East Timor documents upset Indonesia?

World News Australia Radio - January 31, 2014

Thea Cowie – The Administrative Appeals Tribunal in Canberra has ordered declassification of a number of documents which the federal government argues may inflame already tense relations with Indonesia.

The Department of Foreign Affairs documents are believed to contain some information about a major Indonesian military offensive in the early 1980s which reportedly ended in the massacre of several hundred East Timorese civilians.

With the documents now more than 30-years old they should have been declassified some time ago, but until now they've been held back on the basis that the Archives Act exempts their release. Thea Cowie explains.

University of New South Wales Associate Professor Clinton Fernandes has been fighting for the documents' release for six-years. Under a ruling made by the Administrative Appeals Tribunal this week most of the top secret files will finally be handed over.

Whether or not Dr Fernandes gets access to the rest of the documents remains to be seen.

The Tribunal will now hear from Australia's Inspector General of Intelligence and Security, who could block their release. He could do this by arguing that declassifying the files could reasonably be expected to cause damage to Australia's security, defence or international relations.

Monash University Indonesian politics expert Professor Greg Barton says given the recent spying row, it's likely the documents' contents could inflame relations between Australia and Indonesia.

"This may make a currently difficult patch in the relationship much worse because it puts the focus back onto just how extensive our capacity is to listen in on Indonesian military and leadership and if anything it's capacity has improved since the 1980s. So if we come out looking like we were privy to everything in the early 1980s. It's going to be making people feel like they have to be making public statements in Jakarta saying this is intolerable and has to change. It's just plain embarrasing. Even if people know it and accept that this is the way the world is. It's embarrassing for it to come out in public."

Federal Attorney General George Brandis subjected the Administrative Appeals Tribunal hearing to what's known as a public interest certificate.

This meant that Dr Fernandes, his lawyer and the general public were banned from hearing evidence from the deputy director general of the Office of National Assessments, and other National Archives witnesses, not publicly identified.

But in open sessions, the Tribunal's president, Justice Duncan Curr, did outline some of the Archives' arguments for keeping the documents secret.

"One of the grounds for redaction... is information supplied in confidence by a foreign government or a foreign government's agencies. Some of the issues would be in relation to documents that reveal the nature and extent of the intelligence relationships between Australia and Indonesia; and the third matter is the degree to which the disclosure of some of the material may affect foreign relationships between Australia and Indonesia against a background that all parties would accept as presently less settled than it has been in some recent time."

Dr Fernandes' lawyer rejected suggestions the documents' release could widen the rift between Australia and Indonesia or undermine security operations.

Lawyer Ian Latham told the tribunal many details about Australia's intelligence gathering techniques would now be useless given technological advances, and the passage of time would reduce Indonesia's sensitivity to the material. That's a view supported by expert in East Timor politics at Swinburne University in Melbourne, Associate Professor Michael Leach.

"There are obviously sensitivities in the Australia Indonesia relationship today but I'm certainly not convinced that events of more than 30 years ago are likely to really undermine that. It's more likely to be recent and contemporary events that are capable of affecting Australia's relationship with Indonesia."

The Foreign Affairs files from late 1981 and early 1982 are expected to reveal how much the Australian government knew about Indonesian military operations at the time – including the so-called "fence of legs".

This operation involved more than 60,000 locals being conscripted to form human chains that moved across the land. The military followed behind to flush out pro-independence guerillas from their hiding places. The operation ended with a massacre, reportedly of several hundred East Timorese.

But Deakin University East Timor expert Damien Kingsbury says the information researchers really want is likely to remain top secret.

"So far it looks like a partial victory for Dr Clinton Fernandes. It's good that some of the documentation has been released and that some of the material is going to be put under consideration. It's very likely that given that we know some of the material will be redacted – or let's use proper language here, censored – it is likely to be that which is most sensitive."

Australia's relations with Indonesia at stake over secret East Timor papers

The Guardian (Australia) - January 30, 2014

Rose Iser – Concerns about Australia's troubled relationship with Indonesia are behind the government's refusal to release secret 30-year-old documents about the war in East Timor.

The fallout from Guardian Australia's revelations about Australia's attempts to spy on the Indonesia leadership has cast a shadow over attempts by University of NSW academic Clinton Fernandes to secure the release of government documents relating to Indonesia's treatment of East Timorese people between 1981 and 1982.

Administrative Appeals Tribunal president Justice Kerr told a hearing in Canberra this week that one of the reasons for keeping the documents secret was their potential to affect the current exchange of intelligence with Indonesia.

The National Archives wants to keep the files secret on the advice of the foreign affairs department and gave evidence to the tribunal in closed session.

Justice Kerr told Fernandes that it had been argued "the material may affect foreign relationships between Australia and Indonesia against a background that all parties would accept as presently less settled than it has been in some recent time" – a reference to the diplomatic freeze between Canberra and Jakarta since the Guardian story was published.

Fernandes, a former military analyst, was told the documents could "reveal information about Australia's intelligence sources, methods, operations and capabilities" according to Fairfax.

However, Justice Kerr, confirmed there was nothing in the documents related to defence signal intercepts (DSD) and, consequently, no argument was made that Australia's intelligence methods would be compromised by releasing the documents.

The documents relate to the "fence of legs" – a military operation conducted by Indonesian forces in East Timor resulting in the deaths of thousands of East Timorese civilians.

Dr Fernandes has argued that government documents from the period reveal a "pattern of concealment" about what was happening in East Timor, about which there had been "bipartisan consensus".

His representative argued before the tribunal this week that he "suspects" the documents will show "the Australian government had knowledge of these atrocities".

Jim Hagan, deputy director-general of the Office of National Assessments, appearing for the National Archives, said foreign nations communicating with Australia must feel confident they can do so confidentially.

Referring to the release of intelligence information by Edward Snowden, Mr Hagan warned of "other parties" drawing conclusions "if confidentiality was breached in another relationship". Following Hagan's remarks, the tribunal heard from the National Archives in a closed session.

Last week, attorney-general George Brandis issued a certificate of public interest to prevent the release of the documents. His predecessor Nicola Roxon issued similar orders. The certificates prevent Dr Fernandes from accessing information, including affidavits, about the reasons for the continued secrecy of the documents.

A spokesperson for Brandis said making public the reasons for confidentiality of the documents would defy logic: "disclosure of the affidavits... would prejudice the security, defence or international relations of Australia."

"The certificates do not prevent the AAT from reviewing the merits of archives' decisions and the AAT will be able to undertake full merits review," he said.

In an affidavit sworn in July last year, the Department of Foreign Affairs and Trade (Dfat) cited the intelligence sharing agreement with the United States as a reason for the continued classification of the documents.

A Senate Estimates hearing in May 2012 had previously heard the National Archives, on the basis of advice from the Department of Foreign Affairs, had determined not to release the documents because of their security- sensitive nature. The hearing is expected to finish on Friday.

Brandis moves to protect what Australia knew of Indonesian war crimes

Sydney Morning Herald - January 27, 2014

Philip Dorling – Federal Attorney-General George Brandis has moved to block the release of secret archives that would reveal the Australian government's knowledge of Indonesian war crimes in East Timor.

Senator Brandis has issued a public interest certificate that will prevent Associate Professor Clinton Fernandes of the University of NSW from being present at the Administrative Appeals Tribunal on Tuesday.

It is the day the government will argue that Justice Duncan Kerr should reject Dr Fernandes' application for access to Australian diplomatic papers and intelligence on Indonesian military operations in East Timor more than 32 years ago.

Consequently, Dr Fernandes will be unable to read, hear or directly challenge the government's arguments for continuing secrecy.

In the latest round in a six-year bureaucratic and legal struggle to secure declassification of records relating to Indonesia's invasion and occupation of East Timor, Dr Fernandes is seeking full access to two Department of Foreign Affairs and Trade files that contain reports about a major military offensive across the island in late 1981 and early 1982.

Known as the "fence of legs", the Indonesian military operation involved more than 60,000 conscripted East Timorese civilians being forced to form human chains that moved across large areas of land with the military following behind them to flush out pro-independence guerillas from their hiding places.

The operation ended with a massacre of several hundred East Timorese civilians. The use of civilians as human shields is also a war crime.

The documents sought by Dr Fernandes include records of discussions between Australian diplomats in Jakarta and a senior officer of Indonesia's state intelligence co-ordination agency – then known as Bakin – as well as Australian diplomatic cables and intelligence reports, and assessments by Australia's intelligence agency the Office of National Assessments (ONA).

The Defence Department has previously acknowledged that the Defence Signals Directorate, now the Australian Signals Directorate, closely monitored radio communications of the Indonesian military in East Timor.

However, the National Archives of Australia has argued that release of some information sought by Dr Fernandes would be contrary to Australia's agreements with the United States for the protection of classified information.

The National Archives also says disclosure of other documents would "reveal information about Australia's intelligence sources, methods, operations and capabilities, including the nature and extent of the intelligence Australia collects from foreign countries".

Last Thursday Senator Brandis certified that disclosure of a confidential affidavit by ONA deputy director-general Jim Hagan and any related evidence presented to the Administrative Appeals Tribunal would be contrary to the public interest because it would "prejudice the security, defence or international relations of Australia".

In a covering letter to Dr Fernandes, Senator Brandis acknowledged that "where a certificate is issued it presents certain challenges to a party that is not allowed access to the certified information".

Dr Fernandes said the Attorney-General "should have provided a better explanation for this unnecessary secrecy, which serves only to prevent the public's understanding of Australia's international relations. After 32 years the only people who have anything to fear are officials who knew of major atrocities and covered them up."

Former prime minister Malcolm Fraser has told Fairfax Media that he would like to see the declassification of all the records of his government that relate to East Timor.

He wrote to the Secretary of the Department of Prime Minister and Cabinet, Ian Watt, late last year but was told the issue was a matter for the director-general of the National Archives, David Fricker. Mr Fricker is a former deputy director-general of the Australian Security Intelligence Organisation. Justice Kerr will begin hearing the matter in Canberra on Tuesday.

Analysis & opinion

Don't allow Timor Leste to follow Indonesia in path to development

Jakarta Globe - January 29, 2014

Tunggal Pawestri – In the second week of December 2013, I visited Dili, Timor Leste. It was not my first visit. Since 2009, every year I go there two or three times a year because of my work in the development sector.

Actually, my first visit to Timor Leste was in 2000, when I was representing Indonesian People's Solidarity Struggle for Maubere (SPRIM) to attend a conference held by the Asian Pacific Coalition for East Timor (APCET) in Baucau.

Yes, my organization was part of the solidarity movement to support the Timor Leste independency a couple of years ago.

At that time, together with the progressive element in Timor Leste, we envisioned a prosperous and just Timor Leste without Indonesia occupancy. I still keep that vision in my head, and I believe my friends in Timor Leste also still keep fighting for it.

Timor Leste is one of the world's most crude oil-export dependent countries, next only to South Sudan and Equatorial Guinea.

In 2011, 81 percent of its economy was derived from oil and gas, and about half of the remaining "non-oil GDP" came from state spending, itself almost entirely dependent on oil income.

Driven by oil wealth, the government's budget in Timor Leste is one of the fastest-growing in the world. Government expenditures have more than quadrupled since 2007, and continue to grow by more 20 percent every year. The state budget is now almost twice as large as the country's non-oil gross domestic product.

Still, more than 50 percent of the population now lives in poverty, receiving less than $1.33 per day.

Meanwhile, the United Nations Development Program estimates that 85 percent of the people experience "multi-dimensional poverty" or are "vulnerable to multiple deprivations". Poverty is concentrated in the countryside, where more than 70 percent of the people live. Most depend on subsistence for their livelihoods, and many experience periods of food insecurity.

The country ranked close to the bottom of the 2012 IFPRI Global Hunger Index, and its food security situation has been categorized as "alarming". The World Food Program has found that one third of people regularly experience food shortages. Health and education are also major concerns.

As the World Bank notes, although important indicators for infant and maternal mortality have improved, others such as for child nutritional status have deteriorated. Timor Leste has the world's highest prevalence of stunting among children under 5 years old.

The only growing sectors of the economy are government and construction, driven by state spending. Big projects to which the state allocates 40 percent of its funds mainly benefit foreign contractors and show little evidence of results or returns.

Productive sectors are stagnating or in decline. Tourism and hospitality, which make an important contribution to the economy, have seen little or no growth. Manufacturing remains tiny. Agriculture is in decline.

As a result, the country is highly dependent on imports, even for products like bottled water and basic food items. Imports were worth $670 million in 2012. This dwarfed the $31 million made from exports in the same year, mainly in coffee.

There is a lack of effort to develop productive sectors of the economy or to mitigate environmental degradation, which threatens food sovereignty. For example, in 2014 only 2.3 percent of the state budget is allocated to agriculture, which is the livelihood of 75 percent of people.

Agricultural policies have also been criticized for relying on a "high cost, high input" model that requires the import of tractors and inputs, and do not properly consider local needs and capacities.

How about the investment to the next generation?

In 2013 Timor Leste invested only 8.4 percent of its budget on education and 4.2 percent on health – less than half of global norms. These issues are even more urgent, given that the country has one of the highest birth rates in the world.

Meanwhile, a huge proportion of the government budget – 15 percent, or $222 million – is dedicated to social assistance in 2014, more than what is spent on either education or health.

The $87 million allocated to veterans alone is larger than annual expenditures on health and is paid to only around 1 percent of the population.

In the meantime, there is little public recognition that Timor Leste faces a future in which it can no longer rely on oil and gas income, let alone any debate about what this will mean.

As the nongovernmental organization La'o Hamutuk (Walking Together) notes, this is a key sign of the "resource curse," of which other symptoms include unrealistic planning, spending and borrowing, inflation, import dependence, inequality, and failure to develop the non-oil economy.

It can't be denied that those issues mention above happen around the world. Every country has problem with it. But have Timorese started to discuss and overcome all of these issues? As far as I can see, the space for dynamic public debate is getting limited. Parliament is mostly passive, with its members lacking resources to scrutinize legislation.

Like Indonesia, government legislation, parliamentary debates and decisions are not always open to consultation or scrutiny. The media is not that critical and does not take on a watchdog role. NGOs previously active in policy discussion and advocacy are said to have become more fragmented and less critical.

Several NGO leaders in Dili said that this was attributed to the drain of NGO staff to government posts or an increased sense of factionalism within civil society after the 2006 crisis. Some also question the credibility of critics from civil society, pointing out that NGOs are unelected, poorly managed and not transparent.

Almost all the former activists I met share their anxiety about the future of Timor Leste. They realize that they can do much more.

Therefore two months ago, several former activists have started to reconnect and re-consolidate through a monthly meeting they call the "fullmoon discussion," a place to discuss the future of Timor Leste.

I am glad to hear this. To be honest I really don't want to see that spirit disappear. Timor Leste people have showed us their persistence to fight against oppression, something that we, as Indonesians, still need to learn from them. It is the Timorese who should decide on which path they want to walk.

I just want to remind everybody that we still have the same dreams, a just and sustainable prosperous country.

If in the past the Timorese people had the courage and spirit to fight against injustice and against Indonesian occupancy then right now I believe that the Timorese have the militancy and power to overcome their internal problems.

However, as a good friend I just want to simply say: please don't follow Indonesia's way in managing the country.

[Tunggal Pawestri is program officer for rights and citizenship at the Hivos regional office of Southeast Asia. The views expressed are her own.]

East Timor aid scandal not the first

New Matilda - January 24, 2014

The East Timor spying scandal currently in the Hague is the latest in a long history of Australian aid being used as a cover for intelligence agencies, writes Greens Senator Lee Rhiannon.

Still reeling from the Coalition's election-eve announcement of a $4.5 billion cut to the aid budget (now the subject of a Senate Inquiry), our country's beleaguered foreign aid program is now having its reputation dragged through the mud.

Australia is at the Hague, trying to defend itself against its reprehensible behaviour in East Timor, where aid was used as a front for spying. Even if only a handful of aid workers are actually guilty, the rest of them will not escape suspicion.

The case appears to be clear-cut. Australia apparently used its spooks against one of its poorest neighbours for reasons of naked commercial advantage. It should be obvious but apparently it needs saying: AusAID should stand for poverty reduction, our moral values expressed in assistance for those in need.

Aid workers should not be seen as convenient cover identities for our spies. Attacks on humanitarian workers are already at near-record levels with 116 killed so far in 2013. Despots need few excuses to resort to violence; aid workers spying hands them an opportunity on a plate.

This is not the first time that the conduct of the Australian Secret Intelligence Service has come under scrutiny.

In 1999 The Age reported allegations in relation to an Australian Government aid contractor, Lansell Taudevin, who led a team in East Timor for three years. Taudevin says in his book that, "before I even arrived in East Timor I was asked by the political branch of the Department of Foreign Affairs and Trade in Canberra and Jakarta to provide reports on what I saw in East Timor".

More famously, ASIS has come under repeated attack for its role in the Chilean coup against the elected President Salvador Allende in 1973. With the CIA banned from the country, Australian spooks were working as their proxies, "in destabilising the Government of Chile" according to former Prime Minister Gough Whitlam.

Australians also appear to have spied on Serbia during the Kosovo conflict, though not apparently for the Australian Government. Two individuals – one of whom was a former officer in the Australian army – working for CARE Australia were believed to be spying for NATO. Their denials were not helped by a later Canadian Government contract signed by CARE Canada which agreed to help gather intelligence as part of their aid work.

This, of course, is not uniquely Australian. Following the killing of Osama bin Laden in Pakistan two years ago reports began to circulate that the CIA had been operating a fake polio vaccination program in order to gather information and determine his whereabouts. At the time Pakistani General Nadeem Ahmed expressed his anger at this. "No intelligence agencies are supposed to be using NGOs or implementing partners to get some information – this is principally, morally, legally incorrect," he said.

Pakistan remains one of only a handful of countries where polio has yet to be eradicated. The reasons are complex but it cannot help that polio workers continue to be targeted and killed by the Taliban who see them as cover for international espionage. Spies – wherever they are from and whoever they work for – should never be part of our aid program.

The Greens will continue to call for an inquiry into East Timor spying-aid scandal; as a first step in cleaning up the intelligence agencies and making them properly accountable to parliament for their actions.

A 100 billion dollar tale of piracy in the Timor Sea

UCA News - January 8, 2014

Michael Sainsbury, Bangkok – Deep under the Timor Sea, there is a huge reserve of gas. Geologists now believe it is worth upwards of US$100 billion; a figure more than twice the amount estimated by Australia as recently as 2006.

It is perhaps ironic that the nation with the strongest claim to ownership of that gas, by dint of proximity to it, is Timor-Leste, which is also among the world's poorest nations. But will it ever get the benefit of it?

There have been numerous treaties over the last 42 years between Australia, Indonesia and Timor-Leste, regarding the fate of the gas. All of them have heavily favored Australia. None of them have been in accordance with international maritime boundaries and laws. Australia has sought to protect these favorable borders using means that have been illegal and unethical at times – not to mention mighty un-neighborly.

The last treaty signed with Timor-Leste in 2006, known as CMATS, is now under dispute at the UN Permanent Court of Arbitration, the PCA.

CMATS was based on two earlier treaties. These were inked with Indonesia's Suharto dictatorship in 1972 and 1989, and since dismissed by many lawyers as illegal. The treaties carved up the seabed between the two countries at a time when Indonesia was illegally occupying Timor-Leste, an occupation that only Australia among its international peers recognized.

There is much at stake. Impoverished Timor-Leste, which is 95 percent Catholic, would obviously welcome a massive boost in assets and income, as would any country, including Australia.

But Australia has even more to worry about. Its greatest fear is that if its 2006 treaty with Timor-Leste comes unstitched, then Indonesia, its vast northern neighbor, now far wealthier and more powerful than it was in the 1970s and 1980s, may want to renegotiate its own maritime borders with Australia – and that has far reaching strategic and economic implications.

"Well, they didn't have to sign the treaty, no one forced them to," Alexander Downer, Australia's Foreign Minister from 1996-2007, now says of Timor-Leste.

It was Downer who made the key decision, only two months before Timor- Leste's independence in 2002, to "withdraw" Australia from the maritime jurisdiction of the PCA.

Now that some gas revenues are coming in, and under pressure from UN negotiators, Australia has agreed to hand over a larger share of them to Timor-Leste. But it has refused to budge on a 50-year clause that prevents Timor-Leste from challenging the boundaries established with Indonesia; boundaries that one former Indonesian foreign minister described as "taking Indonesia to the cleaners".

Timor-Leste has long been unhappy with CMATS. But then last year, the dispute stepped up several gears when it went public with allegations of spying by Australia during the treaty negotiations.

Timor-Leste claims that Downer authorized the installation of wiretapping equipment in the walls of the new cabinet room in the capital, Dili. The building was being constructed, ostensibly as part of an "aid project," in 2004 as the treaty negotiations were commencing. The allegations originated from an intelligence officer who worked for Australia's overseas spy agency, now known in the PCA case as Witness K, to his government-approved lawyer Bernard Collaery in 2008.

Timor-Leste took the case to the PCA last April. Then on December 3, more than a dozen officials from Australia's domestic spy agency raided Collaery's office and removed many high-level, evidential documents relating to the case. They also raided Witness K's home, canceling his passport. The government claims this was done for national security reasons. The following day, Australia's attorney-general George Brandis, under parliamentary privilege, stated the raid had nothing to do with CMATS.

But Collaery, an approved lawyer for both domestic and overseas intelligence officers, told ucanews.com this claim is rubbish; there were no national security grounds for the search. He added that Witness K "was simply fulfilling his obligation as a Commonwealth officer to report illegal acts".

At the time, Australian and Timor-Leste officials were debating how Witness K would be handled, including a possible witness protection program, so the December raid does look extremely pre-emptive.

It was hardly surprising that later in December, Timor-Leste's Prime Minister Xanana Gusmao sent both an official letter and his foreign minister, Jose Guterres, to Canberra, demanding a re-negotiation of CMATS and an explanation for the alleged spying.

In a piece of especially inept statesmanship the incumbent prime minister, Julia Gillard, sent diplomat Margaret Twomey as her envoy for a three-hour meeting in Dili. Twomey pleaded for the East Timorese to cease their legal actions but it fell on deaf ears. The fact that Twomey was the Australian ambassador in Dili when the alleged spying took place, and the Timor-Leste government nursed its own suspicions about her role, would hardly have helped.

Looming over all this is the cozy relationship between Canberra and Woodside, Australia's biggest home-grown oil and gas company. Woodside controls Great Sunrise, the largest gas field opened so far in the disputed territory. Woodside has been "saved" once before, by government fiat, from a takeover by rival Royal Dutch Shell in 2001. More recently it has also enjoyed consultancy services from Downer's company, Bespoke Approach.

There can be little doubt that the well-connected, armor-protected Woodside will have strongly lobbied the Australian government for the best deal in the Timor Sea; even less doubt that its requests would have been favorably heard.

This furore is just the latest sign of the Australian government's current struggle to understand or deal effectively with its Asian neighbors. In recent months it has fallen out with Indonesia on the question of illegal immigrants. More damagingly, it has emerged that Australia spied on Indonesian President Bambang Susilo Yudhoyono, his wife and others.

Australia's new conservative government, led by Tony Abbott, has also decided to slash its aid budget by a cumulative A$4.5 billion in coming years, the vast majority of which goes to its nearby Asian neighbors.

And in Timor-Leste, Minister for Energy and Petroleum Alfredo Pires has said that the episode is turning hearts and minds against Australia, even though Australia's defense forces came to its rescue in its desperate battle for independence in 1999.

Referring to the spying allegations, Pires said: "It was all done under the cover of an Australian aid project. Now we are even suspicious of Australian aid. Many people, particularly young people, have become very disillusioned with Australia over this."

The bottom line is that once again the people of Timor-Leste, who have been through so much for so long, are just collateral damage.

[Michael Sainsbury is an Australian journalist based in Bangkok.]

How Canberra and Woodside 'bugged' Timor PM to strip nation of oil billions

The Australian - January 6, 2014

Paul Cleary – When Australian workmen turned up with an enormous crane to renovate and reinforce the office of the East Timor prime minister in early 2004, they looked like Paul Hogan in his bridge-painting days as they donned "stubby" shorts and ragged shirts with sleeves cut off.

The workers from north Queensland construction firm JJ McDonald & Sons had been commissioned by the Australian government to renovate the prime minister's office and build a new "situation room" inside the roof cavity of the building known as the Palacio do Governo (Palace of Government).

The room was designed to give the prime minister a safe haven in the event of riots, or more serious situations, and to allow him to control security forces.

Timor's then prime minister Mari Alkatiri must have thought the offer of better security had strong merit because he was feeling insecure at the time. About a year earlier his residence had been torched by a mob of angry protesters.

Australia's spy agency ASIS most likely saw this event as an opportunity to get inside the prime minister's office. It is surprising, however, that Mr Alkatiri agreed to works carried out by an Australian contractor, given his well-founded fear at the time that he was being bugged by ASIS.

ASIS is believed to have used the McDonald contract to bug the prime minister's office just as Timor was ramping up its demands for Australia to come to the negotiating table and agree to a fair division of the oil and gas resources of the Timor Sea.

In an application for international arbitration in The Hague, East Timor will use the affidavit of a former ASIS agent to allege that the construction work funded by AusAID planted listening devices inside the walls of a meeting room adjacent to the prime minister's private office.

Numerous meetings with Mr Alkatiri and East Timor's negotiating team took place in the meeting room, which is adjacent to the prime minister's private office.

The McDonald contract provided the perfect vehicle to bug the office because it gave unfettered access to the building, including the roof cavity. The works were so extensive that the large crane caused traffic jams in the streets running alongside the Palacio.

The family-run company founded in the 1920s by John Joseph McDonald helped to build Victoria's Great Ocean Road using soldiers who had returned from World War I. After Dili was virtually demolished by Indonesia in 1999, the company set up an office there and secured lucrative work.

In 2004 it was owned by Richard McDonald, a descendant of John, who then sold the business in 2007 to the national firm Watpac. Mr McDonald declined to comment when contacted by The Australian.

The East Timor operations were established and managed in 2004 by Richard Sippel, who is now a general manager with a business in Darwin. When asked via email to be interviewed generally about his work in Dili, Mr Sippel said he had spent 12 years in East Timor and did not have a good recollection.

If the former agent's allegations are true, ASIS's timing was impeccable. The bugging coincided with an intensive round of negotiations between East Timor and Australia over Timor's demand for a maritime boundary between the two countries in the Timor Sea.

The first meeting took place in the Hotel Timor in April 2004, and negotiations continued into late 2005. At the time, Australia and East Timor had signed the Timor Sea Treaty, which gave East Timor a 90 per cent share of the area covered by the treaty.

Australia hoped that the treaty marked the end of the affair, whereas East Timor saw the treaty as a stop-gap measure that would be followed by maritime boundary negotiations.

The TST was negotiated by the UN transitional administration, with the involvement of Timorese leaders, and was signed by Mr Alkatiri and John Howard on May 20, 2002, the day East Timor became a nation.

East Timor's only lever against Australia was a related agreement for the biggest-known field in the Timor Sea, the proposed Greater Sunrise development, which is managed by Woodside. The agreement gave an 82 per cent share of the future revenue to Australia and 18 per cent to Timor, with the revenue worth tens of billions of dollars depending on oil prices.

By refusing to ratify this agreement, East Timor was able to bring Australia back to the negotiating table.

The negotiations that began in April 2004 culminated in a treaty known as the Certain Maritime Arrangements in the Timor Sea, which adjusted the revenue split for Greater Sunrise to 50-50. This treaty required both countries to suspend maritime boundary negotiations for 50 years. This treaty was signed in Sydney by Mr Howard and Mr Alkatiri in January 2006.

Throughout these negotiations, East Timor's ministers and advisers operated on the premise that all of their phone calls and emails were being intercepted by ASIS, but no one expected that the office would be physically bugged.

Mr Alkatiri had been warned by former US ambassador Peter Galbraith that he should expect that all his communications were being intercepted by ASIS. Mr Galbraith advised the Timorese on the negotiations from 2000 onwards, and his former role as an ambassador gave him an intimate understanding of what Australia's security service was capable of doing.

In addition to bugging, there's strong evidence indicating that a senior member of East Timor's negotiating team was bribed or blackmailed by ASIS during the negotiations. As well as engaging in espionage, bribery and blackmail are part of the toolkit used by ASIS to achieve its objectives.

It was during talks held in the bugged meeting room that the team member strongly urged Mr Alkatiri to capitulate and accept a very low offer from Australia of $3 billion to settle the dispute, rather than the percentage share that East Timor was pursuing. It's possible that this team member knew the room was bugged and he was letting his paymaster know that he was earning his keep.

None of this would have come to light had the former ASIS agent not felt a sense of betrayal when he learned that the former foreign minister Alexander Downer had worked as a lobbyist for Woodside after leaving parliament in 2008. Instead of his work to facilitate the JJ McDonald contract being for the benefit of Australia's national interest, he realised that it was also for the benefit of Woodside.

East Timor's legal counsel plans to argue at The Hague that the Australian government and Woodside were working together and that the bugging gave the company a commercial advantage.

A preliminary meeting between the two countries was held last month at the Permanent Court of Arbitration in The Hague.

The former ASIS agent's disclosure and East Timor's bid to have the treaty declared void led to an extraordinary ASIO raid on the Canberra office of Bernard Collaery, an adviser to East Timor on the application, in early December.

As it turned out, the situation room proved to be necessary just two years later when Mr Alkatiri sacked half of the 1500-strong army and stirred up another angry mob that brought down his government and plunged the country on to the brink of civil war.

[The author was an adviser to the East Timor government on the Timor Sea negotiations from 2003 to 2005.]

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