Marian Wilkinson and Peter Cronau – Late last year the office of Canberra lawyer Bernard Collaery was raided by agents from ASIO and the Federal Police.

They were looking for documents that linked his client, a former top Australian spy, to disclosures that Australia had bugged East Timor's Prime Minister and his advisors during crucial treaty talks a decade ago. Those talks resulted in a treaty that carved up billions of dollars worth of oil and gas reserves in the Timor Sea.

Now both the lawyer and former spy are threatened with criminal charges for breaching national security laws.

Next on Four Corners, reporter Marian Wilkinson investigates the events leading up to the ASIO raids on Bernard Collaery and the former spy and reveals the growing friction between Dili and Canberra over the row.

Attorney-General George Brandis defends the head of ASIO, David Irvine, for his advice on the warrants and tells Four Corners: "the intelligence case that ASIO put before me was a very strong case."

But East Timor's lawyer, Bernard Collaery, says he is concerned the Government is trying to stop the former spy, codenamed 'Witness K', giving evidence about the espionage operation in legal proceedings launched by East Timor.

East Timor's advisors are now arguing Australia spied for commercial reasons. Former treaty negotiator Peter Galbraith tellsFour Corners: "the Australian Government was shockingly close to the oil companies."

The stakes are high. East Timor wants to invalidate the treaty it signed with Australia in 2006 and has taken its case to the Permanent Court of Arbitration in The Hague.

The tiny nation is calling on Australia to finally negotiate permanent and fair maritime boundaries that will give it more control over the oil and gas wealth in the Timor Sea.

'Drawing the Line' is a revealing insight into national security in the post-Cold War environment. Do governments too freely use espionage for economic advantage? And is it in the national interest?

'Drawing the Line', reported by Marian Wilkinson and presented by Kerry O'Brien, goes to air on Monday 17th March at 8.30pm on ABC1. It is replayed on Tuesday 18th March at 11.00am and 11.35pm. It can also be seen on ABC News 24 on Saturday at 8.00pm, ABC iview and at abc.net.au/4corners.

Transcript: Drawing the line - Monday 17 March 2014

Kerry O'Brien: Another spy saga involving another near neighbour, welcome to Four Corners.

Australia and East Timor have a chequered history, many Australian soldiers who fought the Japanese soldiers there in World War Two say they owe their lives to the Timorese. But then Australia essentially ran dead when Indonesia invaded the small island nation just north of Darwin, only to put its Indonesian relationship when it strongly backed East Timor after it voted for independence in 1999.

So would Australia then choose to bug the offices of East Timor's Prime Minister and his team as has been alleged? When the two friendly countries were sitting down to negotiate a new deal over the immensely rich Timor sea oil and gas deposits, the poverty stricken island nation is desperate for what it says is a fairer share of the commercial spoils. And after learning of the espionage and Australia refused to come back to the table, East Timor sought international arbitration at The Hague on the grounds that Australia had not negotiated that deal in good faith by spying on East Timor's negotiators.

Then, last December, ASIO agents and Australian Federal Police raided the home of a former Australian intelligence agent, whose evidence is central to East Timor's case and a Canberra lawyer acting for both. This story from Marian Wilkinson.

Marian Wilkinson, reporter: It's a chilly winter morning in London.

But Bernard Collaery isn't troubled by the cold. He's worried about being under surveillance. Collaery is not a terrorist. He's an Australian lawyer, one of his clients is a former veteran Australian spy.

Bernard Collaery: I had someone come to me with a work place grievance. That person came to me with full authority.

Marian Wilkinson: What the former spy told Collaery has huge legal ramifications.

Bernard Collaery: What I heard was just simply shocking and I was most concerned about it and of course it took a long time before the issue matured into the decisions that now have the ramifications that you speak of.

Marian Wilkinson: Collaery and his client are now threatened with criminal charges for breaching Australia's national security laws.

Marian Wilkinson: So you don't fear being charged?

Bernard Collaery: I don't like being threatened and I'm from Wollongong and I don't intimidate easily.

(Reconstruction of officers conducting a raid)

Marian Wilkinson: Collaery is lucky he's bold. Because late last year, ASIO officers and federal police descended on his home office in Canberra – startling his legal assistant who was there alone.

Chloe Preston, legal assistant, Collaery Lawyers: They told me as soon as I opened the door that they had a warrant. There were parts that were blacked out on it, which I couldn't read. And I was denied a copy due to national security reasons.

Marian Wilkinson: What was the clearest statement they made to you as to why they were doing this raid ah on your employer?

Chloe Preston: The only, the only statement that I got was national security. I was given no further information.

Marian Wilkinson: Chloe Preston watched as the ASIO officers systematically searched every room, taking confidential legal files.

Chloe Preston: They were placed into a plastic bag and then placed into an envelope, they were sealed with an AFP sticker.

Marian Wilkinson: The raid dragged on for six hours before Preston could contact Collaery.

As ASIO no doubt knew, Collaery was in The Hague acting for his other client, East Timor. He was preparing for the first stage of legal proceedings.

Bernard Collaery: I was in my hotel room at The Hague when I received a telephone call, this was an extraordinary event. I mean they went straight to my East Timor binders and and spent hours going through ring binder after ring binder.

Marian Wilkinson: The ASIO officers took one document in particular – a draft statement from the former Australian spy. Codenamed Witness K, he was set to be a witness in the East Timor proceedings in The Hague.

Did they manage to get the statement of Witness K?

Bernard Collaery: Yes. They managed to get a statement that may have formed, been a draft, but they certainly have been informed from the word go that there are no names mentioned in it that relate to serving ASIO or ASIS personnel and certainly nothing of any technique that's not in a John le Carre novel. I mean, the Australian Government has known that there is no risk to national security.

Marian Wilkinson: Witness K is a former senior officer with Australia's Secret Intelligence Service, ASIS. We can't tell you who he is, or indeed where he lives without risking prosecution. But what we can tell you is that both Witness K and his lawyer, Bernard Collaery, face the real possibility of criminal charges.

What suspected breech of national security laws did you think had occurred?

George Brandis, Attorney-General: Well, I'm of course not at liberty to go into the details of the particular case, but might I just make the point that this was, the intelligence case that ASIO put before me was a very strong case.

Marian Wilkinson: Federal Attorney-General George Brandis authorised the ASIO raids.

George Brandis: It was a clear case that the national security interest, which ASIO is responsible for safeguarding, was served by me authorising the execution of this search.

Marian Wilkinson: The legal proceeding with the Permanent Court of Arbitration in The Hague triggered the intense security response over Witness K.

(Bernard Collaery arriving at The Hague)

Reporter: What are you expecting today?

Bernard Collaery: More justice.

Marian Wilkinson: Last year, East Timor's lawyers, including Collaery, approached the Court saying an eight year old maritime treaty with Australia should be torn up. The reason – Australia had spied on East Timor's negotiators at the time the deal was done. At stake is billions of dollars worth of oil and gas deposits in the Timor Sea.

Bernard Collaery: Why undertake the getting of a treaty in such unfair terms that when one party walks away from the card table, it knows it's done a bad deal, it doesn't know it's been cheated, but when it finds out it's been cheated it, it knows full well what happened.

Marian Wilkinson: Witness K knew firsthand about the spying operation on East Timor's treaty negotiations. ASIO believes if this evidence was passed to the Timorese, Witness K and Collaery could have breached Australia's national security.

(Collaery and Wilkinson walking London streets)

So have there been breaches of the national security laws?

Bernard Collaery: Not in the least. I mean since when has cheating been a State secret? There've been no revelations that could in any way reveal the identity of any serving ASIS Officials. There's been no...

Marian Wilkinson: You're clear about that?

Bernard Collaery: Oh absolutely, absolutely. The Australian Government's put no evidence forward to suggest it has...

Marian Wilkinson: The Abbott Government is now trying to legally block Witness K's evidence being admissible in the dispute.

[Talking to Collaery] How crucial is he to East Timor's case?

Bernard Collaery: Very important. We're investigating further as to whether the raid on my house and these other issues are obstructing the course of justice. I won't put it any higher than that, but I think it's important that I make clear that that at the end of the day, we will see whether the raid on my office and the potential intimidation of our witness is itself a part of a pattern of conduct that we need to have examined properly by a proper judicial process.

Marian Wilkinson: ASIO raided Witness K's home the same morning as Collaery's. Witness K's passport was seized which would prevent him travelling to The Hague to give evidence. In East Timor, even the Prime Minister's wife, was stunned.

Kirsty Sword Gusmao: I felt that the raids were not only an act of aggression and hostility towards Timor-Leste's legal representative, but given that the documents are the possession of the Timor-Leste Government, it was also quite a direct act of hostility towards Timor-Leste itself.

Alfredo Pires, Minister, Petroleum and Mineral Resources, Timor-Leste: I was quite shocked. But it gives a sign of the new government. We're upset that a raid did take place and documents were seized.

Marian Wilkinson: East Timor took Australia to the International Court of Justice, the ICJ, over the ASIO raids in January.

(International Court of Justice)

Judge: Good morning, please be seated.

Marian Wilkinson: They wanted their legal files seized by ASIO, returned. And they accused Australia of threatening to silence Witness K.

Sir Eli Lauterpacht: It hardly needs saying that these are matter of the highest importance to Timor-Leste.

Judge: Mr Gleeson is going to open the argument for Australia, you have the floor sir.

Marian Wilkinson: But Australia's top legal advisor, Solicitor General Justin Gleeson, used the Court to launch an attack on Collaery and Witness K.

Justin Gleeson: The first proposition is that Mr Collaery, as agent for Timor-Leste, has received into his possession a witness statement and an affidavit from a former ASIS officer.

Marian Wilkinson: Gleeson argued the two may have committed a crime in Australia.

Justin Gleeson: It is a crime if a present or former officer of ASIS communicates information concerning the performance of the functions of ASIS acquired as an officer.

Marian Wilkinson: He also argued the identity of ASIS officers could be at risk.

Justin Gleeson: The second key provision makes it a separate crime to make public the identity of officers of ASIS, or information from which identity can be inferred...

Marian Wilkinson: Gleeson's argument came on instructions from Brandis.

George Brandis: All propositions or arguments advanced by Australia in the ICJ proceedings were advanced by the Solicitor General on the instructions of the Australian Government and those instructions came immediately through me.

Marian Wilkinson: Therefore that seemed to imply strongly that that operation did take place in East Timor.

George Brandis: Well, look those are inferences that, that you can draw. I'm not a commentator on these proceedings and I don't propose to be a commentator on these proceedings but in answer to the direct question you've asked me, the Minister in the Government who instructed the Solicitor General was me.

Justin Gleeson: Any breach of Australian law...

Marian Wilkinson: Collaery was furious.

Bernard Collaery: I can tell you on my father's grave that neither Witness K nor myself have revealed the name of any serving ASIS Officer. And I'm not going to use cute words, the short answer is the proposition was nonsense and it was a low act and it was something I won't forget and I expect an apology for in due course.

Marian Wilkinson: Two weeks ago the International Court of Justice made a provisional order that Australia did not have to return the legal documents seized in the ASIO raids. But Australia could not use them against East Timor. The judges also made another extraordinary order.

Judge: By 15 votes to one, Australia shall not interfere in any way in communications between Timor-Leste and its legal advisors...

Marian Wilkinson: In effect they told Australia not to spy on East Timor and its lawyers in any maritime negotiations between the two countries.

Judge: I declare this sitting closed.

Marian Wilkinson: It was a victory for the East Timorese, because fighting the maritime boundary dispute with Australia is their main game.

Alfredo Pires: We basically asked the question, what is ours? If it's ours then it's ours. And who should determine what is ours? And for us, it's very simple, international law.

Marian Wilkinson: Looming large over Dili harbour, a giant statue of Jesus stares out to sea – a gift from Indonesia's president Suharto during the brutal occupation of East Timor by his troops. Timor's seas were carved up for their oil and gas reserves during that bloody occupation.

(Sound of archival footage of the Santa Cruz massacre on November 1991)

Marian Wilkinson: Despite massacres like that at the Santa Cruz cemetery in Dili, Australia accepted Indonesia's occupation.

(Sound of gunfire and sirens)

Marian Wilkinson: Two years earlier, in 1989, then foreign minister, Gareth Evans, signed The Timor Gap Treaty with his Indonesian counterpart; dividing the oil and gas wealth in the Timor Sea between Australia and Indonesia.

(Sound of clapping)

Gareth Evans: Now where's the champagne?

(Gareth Evans and ministers drink champagne)

Marian Wilkinson: Under the treaty, East Timor was left without maritime boundaries, the Timor gap. Instead Australia and Indonesia created an oil and gas zone of cooperation to share the wealth.

It ignored East Timorese calls for the maritime boundary to be at the halfway or median line with Australia. The Treaty was condemned internationally.

Peter Galbraith, former negotiator for Timor-Leste: It was the view of the UN mission ah that the treaty was illegal because Indonesia did not have title to East Timor. Its occupation was illegal, therefore it had no capability to dispose of the oil and gas resources of the, that did not belong to Indonesia.

(Sound of helicopters)

Marian Wilkinson: In 1999 Australia was forced to re-think the Treaty when the East Timorese achieved their independence. Australian troops led the UN intervention force into a grateful East Timor as Indonesia withdrew amidst violence and chaos.

(Archival footage from Four Corners story, 'Rich Man, Poor Man', 2004)

Peter Galbraith: East Timor is the legal owner of this territory.

Marian Wilkinson: Former American diplomat, Peter Galbraith, was chosen by the UN to lead new negotiations with Australia over the Timor Gap Treaty.

Peter Galbraith: Australia did not want to have a maritime border at all, because ah they were concerned if they accepted what was by 2000 absolutely bright line international law – which is the border should be halfway between the two countries – that this could undermine their border with Indonesia. So what Australia wanted to do with regard to the Timor Gap was to set aside the border issue and to have an arrangement about the management of the oil resource.

Marian Wilkinson: Alexander Downer was foreign minister in the Howard government, directing the negotiations with the UN.

Alexander Downer, Foreign Affairs Minister, 1996-2007: And if we had made special provisions for East Timor, then naturally enough the Indonesians would've come back to us and said, well, in that case why should we adhere to these earlier treaties? And then in that context all of our maritime boundaries and seabed agreements would unravel, and that would be diplomatic folly for Australia.

Marian Wilkinson: But Peter Galbraith also remembers Australia was strongly pushing the case of the oil and gas companies.

Peter Galbraith: The Australian government was shockingly close to the oil companies and this I, I saw most dramatically at the beginning in, when I went down and I saw foreign minister Downer and I presented the East Timor position.

Alexander Downer: We were close to all stakeholders and we would've been derelict in our duty had we not been. Galbraith was working for the United Nations, that's a different thing; the United Nations doesn't have an oil company. But of course when we're involved in negotiations we maintain contact with Australian companies. The Australian government isn't against Australian companies, or if it is it's derelict in its duty. The Australian government supports Australian business and Australian industry. The Australian government unashamedly should be trying to advance the interests of Australian companies.

(Sound of singing and dancing in East Timor Independence celebrations 2002)

Marian Wilkinson: In May 2002 officially celebrated its independence.

(Sound of fireworks)

Jose Ramos Horta: John Howard, you are a friend of East Timor. Your support to our small nation is invaluable.

Marian Wilkinson: Desperate for income, East Timor signed a new Timor Sea Treaty with Australia 'to get the gas money flowing'. But the tough arguments over a maritime boundary and who owned what were put on hold.

In 2004, East Timor's first prime minister, Mari Alkatiri, made a fresh attempt to negotiate the maritime boundary with Australia. He hired Peter Galbraith as East Timor's lead negotiator.

Despite a show of ceremonial friendship, the talks between Australia and East Timor were hostile. Alkatiri bluntly accused Australia of plundering the oil and gas in the Timor Sea.

Dr Mari Alkatari, former prime minister of Timor-Leste (addressing conference): Timor-Leste loses $1 million a day due to Australia's unlawful exploitation of resources in the disputed area. Timor-Leste cannot be deprived of its rights or territory because of a crime. Thank you.

Marian Wilkinson: The response from Australia, at the time, was indignation.

Alexander Downer (archival interview): I think they've made a very big mistake thinking that the best way to handle this negotiation is trying to shame Australia, is mounting abuse on our country... accusing us of being bullying and rich and so on when you consider all we're done for East Timor.

Peter Galbraith: The Australians were faced with a dilemma, which is that they were obliged under international law to negotiate in good faith for a maritime boundary, but they didn't actually want to have one.

Alexander Downer: Our argument has been the more traditional argument in relation to international maritime law, that you take into consideration the continental shelf and ah a whole range of other factors by the way. So it isn't simple, it's a fairly complex formulation that had been used, had been agreed to by Indonesia and we didn't want to change um that formulation.

Marian Wilkinson: At stake in the 2004 maritime boundary talks was the biggest oil and gas field ever discovered in the Timor Sea. It's called Greater Sunrise.

(Minister Pires showing Marian o map of area)

Alfredo Pires: So Greater Sunrise here and we have expert opinion that ah there's a pretty good chance that all of Sunrise would fall under Timor- Leste's jurisdictions.

Marian Wilkinson: Petroleum minister, Alfredo Pires, was advising East Timor's government back in 2004. The arguments were the same as they are today. Who owns the estimated $40 billion Greater Sunrise field – East Timor or Australia?

[Talking to Pires] And the critical boundary that everyone talks about in this is what's called the eastern boundary. Is that right?

Alfredo Pires: That's right, that's a part because it involves the big field.

Marian Wilkinson: A joint petroleum development area was in place in 2004 shared between East Timor and Australia. Greater Sunrise lay 20% in that area and 80% in Australian waters.

East Timor argued a fair reading of international law would not only put the maritime boundary south to the median line with Australia, it would also, critically, push the boundary east, putting most, if not all, of Greater Sunrise into its territory.

[Talking to Pires] And what's your view on Greater Sunrise?

Alfredo Pires: It belongs to Timor-Leste, all of it.

(Four Corners archival, 2004)

Peter Galbraith: So from the top of the agenda...

Marian Wilkinson: Back in April 2004 Peter Galbraith and the East Timorese negotiators pushed their case hard.

Peter Galbraith: Nuno will outline the legal case...

Marian Wilkinson: Within weeks their talks with Australia were bogged down in acrimony. Four Corners now understands this is when the Australian government decided to launch the top secret bugging of East Timor's prime minister and his negotiating team.

Peter Galbraith: It's like a burglar; it's like the Watergate and the famous case in the US that brought down Richard Nixon. You know when you when you actually break in to somebody's office and you plant a bug, that's a kind of a true intrusion that is, it feels different certainly than if you're listening to somebody's cell phone or intercepting their, their email.

(Marian in Dili outside the Government Palace)

Marian Wilkinson: The operation to bug the inner sanctum of the government offices here in Dili directly involved Witness K and a team of ASIS operatives. East Timor's negotiators now believe that spying operation gave the Australian side in the talks a big advantage.

Four Corners understands Australian intelligence agents were able to install the bugs in the Palace of Government, right inside the Prime Minister's conference room while it was being renovated under an Australian aid project.

Peter Galbraith: What would be the most valuable thing for Australia to learn is what our bottom line is, what we were prepared to settle for. There's another thing that gives you an advantage, you know what the instructions the prime minister has given to the lead negotiator.

And finally, if you're able to eavesdrop you'll know about the divisions within the East Timor delegation and there certainly were divisions, different advice being given, so you might be able to lean on one way or another in the course of the negotiations.

Marian Wilkinson: It's believed the four ASIS agents stayed at this floating hotel moored Dili Harbour after they entered East Timor with false identities.

And the prime minister's meetings were monitored when negotiations resumed in Dili in October 2004. We also understand Australia's embassy in Dili was directly involved in the operation; feeding the product of the bugging to the Australian side.

Peter Galbraith: It is the sort of thing that you would expect from the Soviet Union. I you know, it's hard to imagine that would really be done by a friendly government and especially for what were essentially commercial negotiations. That, that really seems – there wasn't a national security issue here for Australia. It wasn't as if you know the Timorese were posing some kind of military threat or hatching some kind of plot. This was really bugging for commercial advantage.

(Archival footage from March 2002, John Howard greeting people)

John Howard, former Aust. prime minister: Hello how are you?.

Marian Wilkinson: The ASIS chief who oversaw the bugging was David Irvine, handpicked to head the spy agency after a successful stint as ambassador in China.

John Howard: We have a very good relationship...

Marian Wilkinson: Irvine had spearheaded the Howard government's efforts to seal a $25 billion gas deal with China for a group of companies led by Woodside Petroleum.

When Irvine took over ASIS, Woodside was had at lot at stake in the Timor Sea. It headed a consortium with huge oil and gas leases at Greater Sunrise. Woodside's then chief executive Don Voelte, was determined to get it developed.

Alexander Downer: Woodside is a huge Australian company and they were proposing to invest billions of dollars in Greater Sunrise to create wealth, which would inter alia have been wealth for Australians, but obviously substantially for the East Timorese as well. So I was all in favour of that. I was all in favour of it.

Marian Wilkinson: Woodside's Chairman, Charles Goode, was close to the Howard government. He also sat on the boards of top Liberal Party fundraising vehicles that generated millions of dollars in political donations.

Alexander Downer: I know Charles Goode. I don't remember talking to Charles Goode about this issue because it was Don Voelte, the CEO, who came to see me.

Marian Wilkinson: Woodside executives led by Voelte lobbied the government strongly during the 2004 negotiations.

Alexander Downer: Me, for my part, I reckon, I don't know, I mean I haven't checked, but I would've had certainly more than one, I should think three or four meetings with the CEO of Woodside and no doubt he had a couple of other people there and I would talk to them about how the negotiations were progressing. Well, of course I did. But I mean like there's some...

Marian Wilkinson: I guess...

Alexander Downer:... additional secret, I can't think what there would've been...

Marian Wilkinson: Okay specifically...

Alexander Downer:...I mean they wanted... I can tell you what they wanted. They wanted a stable investment regime if they were to exploit the Greater Sunrise field. That's essentially what they wanted, so that's what they were lobbying us for, and we were happy to talk to them about that.

Marian Wilkinson: A key issue in East Timor's legal case today is whether the 2004 bugging here at the Palace of Government was done for Australia's national security interests, or for commercial interests. The lawyer for Witness K and East Timor argues it was not done in Australia's national interests.

Bernard Collaery: Our security services must operate within the legislation establishing them and in particular national interest objectives that are set by Parliament must be met and clearly it behoves the current Government to examine the national interest imperatives that drove this affair.

Marian Wilkinson: The Attorney-General rejects Collaery's argument.

George Brandis: I was not the minister at the time. I wasn't a minister in the government in 2004, but might I remind you that Australia disputes what is alleged against it in the arbitration and in the ICJ proceedings by Mr Collaery and his client.

Marian Wilkinson: Alexander Downer was the minister authorising ASIS at the time and responsible for the negotiations. He won't confirm the spying but says he did act in Australia's national interests.

Alexander Downer: You don't need to ask me about the intelligence operation allegations because you know no Australian government, past or present, will ever get into any discussion about intelligence operations. But suffice it to say the um Australian government was on Australia's side in the negotiations and we did our best to make sure that we were ah able to achieve our objective, which was particularly an objective in relation to the delineation of the maritime boundaries.

(Howard and Downer signing treaty and laughing)

Marian Wilkinson: How much the bugging advantaged Australia is unclear. But in January 2006, both sides agreed to a new treaty covering Greater Sunrise.

(Sound of clapping as Downer shakes hand with East Timorese official)

John Howard: Well done, Alexander... well done. Well very significant moment, we might say something to the media about it.

Marian Wilkinson: The CMATS Treaty came after both made big concessions. In a major backdown, East Timor put on hold negotiations over its maritime boundaries for fifty years, agreeing to leave 80% of Greater Sunrise in Australian territory. In exchange, Australia agreed to split government revenues from Sunrise 50-50 with East Timor, a big jump from the 20% first offered.

Alexander Downer: In the end we settled on giving them much more money than they were, under the Timor Sea Treaty, entitled to, which was fine by us.

Marian Wilkinson: But the Greater Sunrise deal had problems below the surface. Each side could terminate the treaty if there was no agreement to develop the gas field by 2013.

The East Timorese wanted the gas to be piped from Greater Sunrise to their south coast for processing – bringing jobs and development to one of the poorest parts of the country. But Woodside's chief executive, Don Voelte, had other ideas.

Done Voelte: It's the beginning of next week when we deliver to the regulator the very thick and very detailed field development plan for the consideration with the governments of Timor-Leste and Australia.

Marian Wilkinson: Woodside and its partners, including Shell, argued it was cheaper to build a floating platform to process the gas offshore in the Timor Sea.

Alexander Downer: The most expensive proposal was to build a pipeline into East Timor, and the problem with that over and above the cost is that the sovereign risk would be higher for the investor in East Timor. And of course by threatening to abrogate this treaty, they're just underlining the sovereign risk involved with any investment with East Timor.

Agio Pereira, President of Council of Minsiters, Timor-Leste: For Timor- Leste the pipeline to Timor-Leste is very viable. All the arguments be technical or security have been proven to be wrong and Timor-Leste invested a lot in proving it.

(Sound up of cheering from rally)

Marian Wilkinson: After East Timor's one time resistance leader, Xanana Gusmao, became prime minister he led the campaign to build the pipeline. By 2011, he was willing to take on both Australia and Woodside to do it.

With billions at stake, Woodside hired a high profile lobbyist – former foreign minister, Alexander Downer. Australia's Ambassador in Dili set up a meeting with Gusmao, saying Downer wanted a courtesy visit.

Alexander Downer: I mean I wasn't lobbying them. I just asked them where their thinking was.

Marian Wilkinson: Downer had a message from Woodside's CEO saying the company would offer lots of development money if East Timor dropped the pipeline. But Gusmao was unmoveable.

Alexander Downer, lobbyist, Bespoke Approach: I could see that politically he was really wedded to this idea and he wasn't too interested in the floating LNG plant or the pipeline to Australia. So I mean I think basically, by the way, I think it's because of this that the East Timorese have started to get into changing their whole approach to the CMATS Treaty.

Martin Ferguson, Minister for Resources and Energy, 2007-2013: Everyone knows it and it's freely admitted to by representatives of the Timor-Leste Government. It's known in the private sector, it's no secret. This is a particular campaign solely driven by Prime Minister Gusmao.

Kirsty Sword Gusmao: Timor-Leste's leaders not only feel that it's within their rights, but that they have a duty actually to look again at that deal and see whether or not um it couldn't benefit more significantly.

Marian Wilkinson: Bernard Collaery as East Timor's legal advisor, sought out new ways to challenge the CMATS Treaty. He consulted prominent UK barristers, including Sir Elihu Lauterpacht.

They told him Australia's bugging of Timor's negotiators back in 2004 could invalidate the CMATS Treaty by proving Australia had not acted in 'good faith' at the time.

Agio Pereira: The whole legal case is based on the bugging of the government palace in Dili, of the negotiating team. It's entirely the Witness K's statement, no other statement, or names are included.

Marian Wilkinson: East Timor's secretly launched its own investigation into the bugging. It found the ASIS officers had left behind evidence in 2004 that could identify them. It convinced Dili the spying had taken place.

Marian Wilkinson: So you initiated an investigation to try and protect your side of this dispute?

Alfredo Pires: Yes. We heard that people are here back in those days, and it doesn't take a genius to work it out that they, they did not swim over. Those names are there. We don't want to put them at risk.

Marian Wilkinson: In December 2012, East Timor dropped its legal bombshell on Canberra. In a confidential letter to Prime Minister Julia Gillard, Xanana Gusmao said the CMATS treaty was "invalid" because Australia had secretly eavesdropped on the private discussions of his predecessor and his advisers in 2004.

Martin Ferguson: I went to Timor-Leste early in 2013 to try and kick-start negotiations again to get it back on an even playing field.

Marian Wilkinson: Martin Ferguson was Gillard's resources minister at the time.

Martin Ferguson: I said to the representatives of the government at the time that if you're not careful, that opportunity is going to pass you by, Sunrise will be stranded. And I must say, unfortunately, that's my view as to where it's at.

(Sound of clapping at Abbott's election victory night, 7 Sept 2013)

Tony Abbott, Prime Minister: My friends, my friends, thank you, thank you so much. I can inform you that the Government of Australia has changed for just the...

Marian Wilkinson: When Labor was swept from office by Tony Abbott last year, the deepening dispute with East Timor was handed over to the new Attorney-General.

(24 February 2014)

Scott Ludlam: We had a rather senseless intervention then from the attorney-general.

George Brandis: No, no you put a proposition to Mr Irvine that was false.

Marian Wilkinson: George Brandis was briefed on the crisis by David Irvine, the former head of ASIS who signed off on the East Timor bugging operation in 2004. Irvine is now the head of ASIO, the domestic spy agency. He advised Brandis to issue the warrants for the raids on Collaery and Witness K.

David Irvine: The object of the warrant was to obtain material that didn't specify specific documents in relation to security matter being investigated.

Marian Wilkinson: But Brandis insists Irvine had no conflict of interest when he gave his advice.

George Brandis: I'm entirely satisfied, in fact, I never had any doubt at all that Mr Irvine was exercising his powers and discretions in seeking this warrant to protect the interests that he was required um by his office and by the act to protect.

Marian Wilkinson: But under administrative law, if he had a conflict of interest shouldn't he have stood aside?

George Brandis: Well, you've suggested to me that he has a conflict of interest and I don't agree with you.

(Brandis speaking in Senate)

George Brandis: More generally you should know...

Marian Wilkinson: Neither Brandis nor Irvine would explain what was behind the warrants at a recent Senate hearing.

George Brandis: Neither confirm or deny...

Marian Wilkinson: But in its legal response to East Timor, the Government is alleging Witness K and Collaery may have disclosed highly classified secrets.

(Marian speaking to Brandis)

Marian Wilkinson: Did it go to the issue of disclosing operational matters and potential names of agents or former agents?

George Brandis: Well, again I just can't... disclose what the particular grounds were. But let me make this point: it has been said that this was to do with the Australia East Timor dispute over the ah oil and gas field in the Timor Sea. That was not the purpose or the ground on which the warrant was sought.

Marian Wilkinson: Collaery rejects the notion Witness K, a decorated veteran, is a whistleblower at large.

Bernard Collaery: This is no Snowden affair. There are no revelations to come beyond the fact that this eavesdropping operation took place. It's been properly controlled and there is a coherence of interests by both parties in having this conduct ah found to be unlawful.

Marian Wilkinson: And in saying that, Witness K is completely comfortable with how you have acted in this?

Bernard Collaery: I must not discuss Witness K's issues in this interview. I can't, I can't do that.

Marian Wilkinson: East Timor's senior minister says no Australian agent has been put at risk.

Agio Pereira: No, no. The government is, all government is conscious of the legitimate concern of Australia about national security and protection of its agents, and the government of Timor-Leste wouldn't do anything to jeopardise that.

Marian Wilkinson: The ASIO raids have clearly taken a toll on Bernard Collaery.

Bernard Collaery: I'm getting grey. I've seen a lot of things...

Marian Wilkinson: He's relieved the International Court of Justice has provisionally ordered Australia to stop interfering with his legal communications with East Timor. But for Collaery this is not enough.

Bernard Collaery: There has to be a proper judicial inquiry into this affair.

Alfredo Pires: We look back at those who have fought for the onshore sovereignty of Timor-Leste and hundreds and thousands have died for our sovereignty back then, and now we still have an issue of sovereignty that needs to be solved.

Marian Wilkinson: The East Timorese have learnt how to fight for what they want over decades. But drawing the line on their maritime boundaries may be an elusive goal. Its powerful neighbour to the south has a history of being a formidable opponent when it comes to deciding who controls the wealth beneath the water.

Kerry O'Brien: The international arbitration between East Timor and Australia and the maritime boundaries is due to begin in The Hague in September, but already according to one well placed source Australia has sent a blunt diplomatic message to East Timor, that the relationship will suffer as a result of their actions.

Next week on Four Corners the scandal that's engulfing the National Gallery of Australia and the international trade in looted antiquities.

Until then, good night.

Source: http://www.abc.net.au/4corners/stories/2014/03/17/3962821.htm

Australia warns Timor saying maritime boundaries case risks relationship

ABC Radio Australia - March 17, 2014

Peter Cronau – The Australian Government has warned East Timor there will be tough consequences over its decision to launch international arbitration proceedings over its maritime boundary with Australia.

The warning, aiming to "send a message" to the Timorese leadership, was delivered through an intermediary in direct language by a highly placed Australian diplomat one week ago.

The senior diplomat repeatedly warned the Timorese leadership they were being "naive to think the arbitration and maritime boundary issue will not affect the bilateral relationship".

The message came a fortnight after Australia applied to the Permanent Court of Arbitration in The Hague to have the evidence of a former Australian intelligence officer, Witness K, struck out of the arbitration proceedings between East Timor and Australia on the maritime boundary.

The evidence relates to an Australian spying operation during 2004 treaty negotiations over the maritime boundary, when agents from Australia's Secret Intelligence Service (ASIS) bugged the conference room of the then East Timorese prime minister.

Tonight, the ABC's Four Corners program examines the events that have seen rising tensions between the two neighbours.

In an interview with the program, East Timor's lawyer Bernard Collaery calls for a judicial inquiry into the 2004 bugging operation in East Timor, saying it was not in Australia's national interests.

The new diplomatic warning to East Timor's leadership comes just days after the International Court of Justice (ICJ) in The Hague delivered an embarrassing blow to Australia's international prestige by provisionally ordering Australia to "not interfere in any way in communications" between East Timor and its legal advisers.

The order, passed by a margin of 15 votes to one, applies not only to present maritime boundary negotiations between the two nations, but to "any future bilateral negotiations concerning maritime delimitation".

East Timor took Australia to the ICJ after ASIO seized documents in a raid on Mr Collaery's legal office and Canberra home last December. The home of the former senior Australian intelligence agent codenamed Witness K was raided at the same time.

The ICJ ordered Australia not to use the seized documents "to the disadvantage of Timor Leste", and to keep all the documents and all copies "under seal" until further notice.

The Australian diplomat who warned the East Timorese that Australia is "unhappy" also suggested the Timorese leaders should note the comments of Attorney-General George Brandis, who has claimed that some of the parties in the case may have acted illegally.

Interviewed on Four Corners, Senator Brandis declined to comment on the ASIS bugging operation in 2004 but said the ASIO raids on Mr Collaery and Witness K were based on "a very strong case" put to him by ASIO.

The spying claims first became public in May last year when then attorney- general Mark Dreyfus and foreign minister Bob Carr dismissed the claims in a press release, saying: "These allegations are not new."

Four Corners has learned this statement was based on advice provided to them that the bugging claims had been previously published.

But a confidential letter delivered to former prime minister Julia Gillard five months earlier had clearly outlined specific details on the new overseas bugging operation.

In an interview with Four Corners, Alexander Downer, the minister responsible for ASIS in 2004, would not confirm or deny the bugging operation.

But the former foreign minister said: "Suffice it to say the Australian Government was on Australia's side in the negotiations and we did our best to make sure that we were able to achieve our objective, which was particularly an objective in relation to the delineation of the maritime boundaries."

While East Timor's relationship with Australia is under strain, its other big neighbour, Indonesia, seems increasingly warming to Dili.

"Our prime minister [Xanana Gusmao] is taking initiatives for us to create a sub-regional economic zone between Indonesia, Timor-Leste and the northern part of Australia, for us to work together as nations," East Timor's petroleum minister Alfredo Pires told Four Corners.

[Producer Peter Cronau recently travelled to East Timor with reporter Marian Wilkinson. Their report can be seen on Four Corners on Monday at 8:30pm on ABC1. You can watch the full Alfredo Pires interview on the Four Corners website from Tuesday, along with interviews with Attorney-General George Brandis and former foreign minister Alexander Downer.]

Source: http://www.abc.net.au/news/2014-03-17/australia-warns-east-timor-over-maritime-boundaries-case/5324192

The Hague rules on Timor-Leste material seized in ASIO raids

The Saturday Paper - March 8, 2014

When the doorbell rang about 9.30am at 5 Brockman Street, Narrabundah, in suburban Canberra, Chloe Preston was starting her day at work as a legal clerk. She opened the door of the home that doubles as a law office, and was confronted by a team of national intelligence agents, who began combing the building. They seized papers, an iPhone, a laptop and a USB.

The 15 or so agents, mostly from Australia's domestic spy agency, the Australian Security Intelligence Organisation, as well as some from the Australian Federal Police, did not say what they were seeking or why. They showed Preston a search warrant, which included large sections that were blacked out. In any case, she later admitted, she was too intimidated to read it and the agents refused to give her a copy, saying it would be a breach of national security.

But Bernard Collaery, the lawyer who employed Preston, and lived and worked at the house, knew exactly what the agents were looking for.

Collaery is representing Timor-Leste in its effort to invalidate a $40 billion oil and gas treaty with Australia signed in 2006. He has potentially explosive evidence from a former Australian spy, who allegedly admitted to extensive espionage by Australia as the two nations negotiated the division of an underwater oil and gas field.

As the December 3 search in Brockman Street proceeded – it lasted until about 4pm – a separate group of agents were swooping on the former spy, seizing his passport and preventing him from travelling to The Hague to testify at an arbitration case launched by Timor-Leste to overturn the treaty on the division of the fuel reserves.

Australia is accused of sending spies disguised as aid workers to plant bugs inside holes in the walls of government offices in Dili almost a decade ago, at a time when the small coastal city was awash with Australian troops, government officials and members of aid agencies.

This was just two years after the impoverished nation declared its statehood, in May 2002, following a battle led by Australian troops to secure independence from Indonesia. The espionage operation apparently allowed Australia to monitor discussions by Timorese officials, both in their cabinet room and in a negotiating room specially designed for the treaty talks.

Details of the spying were stored in Collaery's home office, along with reams of other material for the arbitration case in The Hague. As the agents conducting the ASIO search were no doubt aware, Collaery was in Europe for a hearing at the time.

But the seizing of data from Brockman Street in December resulted in a separate international dispute between Australia and Timor-Leste, which landed in the International Court of Justice. It led to a ruling this week that involved the somewhat unusual order to Attorney-General George Brandis, who oversees ASIO and issued the Brockman Street search warrant, to not inspect the seized documents and to keep them "under seal". The court also ruled that Australia must not "interfere in any way in communications" between Timor-Leste and its lawyers.

Brandis, who has undertaken to inform the court if he ever needs to read the documents, says he was pleased that Australia was not ordered to return the seized material. "These orders will, of course, be complied with," he says. "This is a good outcome for Australia."

Observers of the long-running dispute have pointed to the December operation as confirmation that Australia did indeed spy on Timor-Leste, a nation whose economic future largely depends on the revenues from the reserves beneath the Timor Sea. The elaborate spying operation was allegedly conducted by the Australian Secret Intelligence Service, Australia's foreign intelligence agency.

Collaery was in Europe this week for the ruling and told The Saturday Paper he didn't want to comment on the December search as it was now before the court. Prior to the latest hearings he was less reserved, describing the raids on him and the former spy as "crass" and an attempt to block evidence and "intimidate our witness".

The opposition has labelled Brandis "inept", suggesting the raids were poorly timed, putting undue attention on Australia's alleged espionage on the eve of the arbitration hearings. Brandis has denied it, telling Parliament in December the claim was "wild and injudicious".

"The search warrants were issued, on the advice and at the request of ASIO, to protect Australia's national security," he says.

Conflicts of interest?

The espionage in Dili is alleged to have been ordered in 2004 by the then head of ASIS, David Irvine. It was Irvine again, as head of ASIO, who asked Brandis to approve the December raids nine years later. But Irvine is far from the only figure to have overlapping roles in an unfolding saga that has proved embarrassing to Australia and raised concerns about the uses of its intelligence agencies.

It is believed that the former spy who blew the whistle, a director of technical operations at ASIS, had become angry that two of the people intimately involved in the treaty talks – Ashton Calvert, then head of the Department of Foreign Affairs and Trade, and Alexander Downer, then the foreign minister overseeing ASIS – both subsequently secured work for Woodside Petroleum, the Australian company leading the venture to exploit the reserves.

The late Calvert, a veteran diplomat, became a director of Woodside and Rio Tinto after retiring from the diplomatic corps in 2005. Downer told The Saturday Paper he only gave Woodside advice for several months during 2011 and 2012, and he strenuously denied the job was a payoff for his work in securing the treaty.

"This was years later – they [Woodside] wanted advice on East Timor's position," he says. "There was no conflict of interest. I knew about the issue because I was a minister. Did Woodside say to me during the negotiations, 'If you get this treaty up, we will give you a job in the future?' Of course they didn't."

Downer wouldn't comment on whether Australia spied on Timor-Leste, but says of the alleged whistleblower: "I don't know who he is. I don't know what his issues are. I don't care what he thinks... You didn't have to spy on East Timor to find out what their position is. This is all complete hogwash."

Greater Sunrise maritime treaty unfair

The oil and gas field treaty has been a long-running source of friction between the two nations. It included a 50-50 split of the revenues from the Greater Sunrise fields, which are closer to Timor-Leste. They would effectively belong wholly to Dili if a midway point between the nations were used as the maritime boundary, as is the more common practice in international law.

Clinton Fernandes, a University of NSW academic at the Australian Defence Force Academy, says the treaty was blatantly unfair and should be renegotiated.

"Australia has shared the revenues disproportionately. The Greater Sunrise fields are twice as close to Timor as Australia. It is not fair. How is Australia getting any of these resources? We should be getting none."

Fernandes was further critical of the actions of Australia's spy agencies. "This ASIS agent believed that the espionage services were not being used as they should have been used. The episode is undoing all the goodwill that the Australian Diggers did in 1999."

But the Howard government, which signed off on the treaty in 2006, always insisted the deal was a "generous" compromise. It argued that Australia would have received far more of the revenues under borders that it agreed with Indonesia, the previous governors of Timor-Leste.

Following long-simmering claims about Australia's espionage operations in Dili, Timor-Leste launched a case last April to have the treaty invalidated in the Permanent Court of Arbitration, in The Hague, claiming that the spying rendered the deal unlawful. The case will ultimately decide the fate of the $40 billion reserves – and the alleged spying by Australia could ultimately lead to the treaty being thrown out.

An expert on international law and the law of the sea, Donald Rothwell, of the Australian National University, says Australia is likely to challenge the jurisdiction of the court to hear the case. The government will argue that the dispute mechanism Timor-Leste is relying upon stems from an earlier 2002 treaty, which did not include Greater Sunrise.

"Whether that mechanism extends to the 2006 treaty and the way in which it may have been negotiated is a live issue that the tribunal will need to consider," Rothwell says. If the case proceeds, he says, Australia would have a hard time winning because there is a longstanding convention that countries must conduct treaty talks in good faith.

"If espionage is proven, that would be a strong argument to show that a treaty ought to be invalidated. Covert intelligence operations – such as those being suggested – would not be taken as a state conducting itself in good faith."

Nonetheless, Timor-Leste may find it harder to prove its case in The Hague if its star witness remains stuck in Canberra without a passport.

[This article was first published in the print edition of The Saturday Paper on March 8, 2014 as "Spies argue over Downer's 'hogwash'".]

Source: http://www.thesaturdaypaper.com.au/world/2014/03/08/the-hague-rules-timor-leste-material-seized-asio-raids/1394197200

Australia ordered to cease spying on East Timor by ICJ

Brisbane Times - March 4, 2014

Tom Allard – Australia has been ordered to cease spying on East Timor and its legal advisers, in a landmark decision by the International Court of Justice relating to a bitter dispute between the two countries over $40 billion of oil and gas reserves in the Timor Sea.

The court also ruled that the Australian government must seal documents and data seized in an ASIO raid in December. The ICJ is the United Nations' top court, and its decisions are binding on members.

The decision is a major setback for Attorney-General George Brandis, who authorised the raid on East Timor's Australian lawyer Bernard Collaery, where about a dozen agents swooped on his office and took reams of material, including legal documents, electronic files and a statement by a former Australian Secret Intelligence Service agent alleging an eavesdropping operation on the tiny half island nation by Australia.

East Timor suspects the ASIO raid last year was only part of a massive espionage campaign against it by Australia as the impoverished nation seeks to have the treaty between the two countries over the Timor Sea reserves declared invalid by an international arbitration tribunal in the Hague because it was not negotiated in good faith.

The arbitration case of East Timor, also known as Timor Leste, is underpinned by the testimony of the ex-ASIS operative, who alleges that East Timor's government offices were bugged during treaty negotiations. The former agent was also targetted by an ASIO raid in December and had his passport seized, preventing him from going to the Hague.

"Australia shall not interfere in any way in communications between Timor Leste and its legal advisers in connection with the pending arbitration under the Timor Sea Treaty of 20 May 2002 between Timor Leste and Australia; with any future bilateral negotiations concerning maritime delimitation; or with any other related procedure between the two states, including the present case before the court," ICJ president Peter Tomka said.

The ruling endorses a request by East Timor. It is a provisional measure until the case is concluded in the ICJ but is wide in scope, relating not only to the arbitration in the Hague and case before the ICJ, but also any other matter relating to the dispute over the Timor Sea reserves, which includes the huge Greater Sunrise deposit. The case before the ICJ is not expected to be concluded for at least 12 months.

In a statement, Senator Brandis said the court's orders would be complied with, although he did made no direct reference to the ruling prohibiting Australia spying on East Timor.

He noted that the ICJ had declined East Timor's request for the documents to be returned to it. "The Australian government is pleased with the decision," he said. "This is a good outcome for Australia."

It is the first time that the court has imposed restrictions on the spy agencies of one of the so-called "five eyes" intelligence community of the US, Britain, Canada, New Zealand and Australia and comes at a time about widespread international concern about over-reach by Western intelligence agencies.

The ruling was endorsed by 15 of the ICJ's panel of judges. The only dissenter was ad hoc judge Ian Callinan, the former Australian High Court judge appointed to the panel by Senator Brandis.

Among those who supported the finding were judges on the ICJ from the US, Britain and New Zealand. "It's a sad day when our country gets an order like this," Mr Collaery told Fairfax Media. "It's a sad day when Australia needs to be reminded of the proper standards of behaviour regarding litigation."

While East Timor did not get the documents returned to it, it was successful in getting the material sealed so no Australian official could view them.

Senator Brandis made numerous undertakings to the ICJ vowing that Australian officials involved in the arbitration would not have access to the material seized on the raids, but only until the provisional judgment was handed down. He even promised not to read the material himself, at least without first informing the court and giving further undertakings.

The only circumstances where the material might be accessed, Australia told the court, was for "national security" matters, specifically bringing any prosecutions to court in Australia over the unauthorised disclosure of the classified information, presumably by the ex-ASIS agent. The ICJ decision means any prosecution of the former intelligence officer will almost certainly have to be delayed.

The ICJ found that Senator Brandis' undertaking did make a "significant contribution" to ensuring the material seized in the raids remained confidential.

However, "the court finds that there remains a risk of disclosure of this potentially highly prejudicial information", Judge Tomka said. "In spite of the written undertaking [by Senator Brandis] dated 21st January 2014, there is still an imminent risk of irreparable prejudice."

This was because the material "contains sensitive and confidential information [relating] to the pending arbitration and it may also include elements that are pertinent to any future maritime negotiations which may take place between the parties". The court made two further rulings as a result.

"Australia shall ensure that the content of the seized material is not in any way or at any time used by any person or persons to the disadvantage of Timor-Leste until the present case [before the ICJ] has been concluded," it said.

"It also decides... that Australia shall keep under seal the seized documents and electronic data and any copies thereof until further decision of the Court."

This ruling was endorsed by 12 members of the panel but opposed by four, including Mr Callinan and the three judges from the US, Britain and New Zealand.

Source: http://www.brisbanetimes.com.au/federal-politics/political-news/australia-ordered-to-cease-spying-on-east-timor-by-international-court-of-justice-20140304-hvfya.html

ICJ orders Australia to stop spying on East Timor

SBS News - March 4, 2014

Kate Lamb – The highest court at The Hague ruled on Monday that "Australia shall not interfere in anyway in communications between Timor-Leste and its advisors in connection with the pending Arbitration under the Timor Sea Treaty of 20 May 2002 between Timor-Leste and Australia..."

While Australia was not forced to return the documents seized in a raid by the Australian Security Intelligence Organization (ASIO) last December, the court did order for the material to be kept under protected seal.

Charles Scheiner, a researcher at the Dili-based NGO, La'o Hamutuk, says the decision is a clear win for Timor-Leste.

"All of the written decisions [except Callinan's] were unambiguous in saying that Australia's conduct was wrong," says Scheiner, referring to ad-hoc judge Ian Callinan, a former Australian High Court judge and the only dissenting voice on the ICJ panel of 15 judges.

Australian Attorney General George Brandis, who authorized the December 3 raid, appointed Callinan to the international panel.

According to Timor-Leste the material seized from the Canberra office of its lawyer, Bernard Collaery, contains documents, data and correspondence related to a separate legal battle for control over $40 billion in oil and gas reserves located in the Timor Sea.

Timor-Leste is calling for the treaty that divides the reserves equally between the two countries to be nullified following allegations Australia bugged the Timorese parliament so it could to listen in on the treaty negotiations.

A former Australian intelligence agent, who was also targeted in the ASIO raid, is the key whistleblower in the case.

The fact that ICJ agreed to consider the "urgent request" and issue a provisional ruling – reducing the chance Australia could use the seized material in the related arbitration case – is also a victory for Timor- Leste, says Mr. Scheiner.

The request was lodged on December 17 last year, just weeks after the ASIO raid. Timor-Leste claimed at the time the seizure of the material would jeopardize its case despite written assurances from Senator Brandis the material would not be available to any part of the Australian government for any purpose related to the Timor dispute.

This January Senator Brandis informed ASIO the material was "not to be communicated to any person for any purpose other than national security purposes". The ICJ acknowledged the written undertakings but said there was "still an imminent risk of irreparable prejudice".

Timor-Leste observer Edward Rees argues it would be naive to suggest the documents have not already been examined by Australian authorities, but it remains unclear what impact that could have on the legal dispute over the maritime treaty, and related division of oil and gas reserves.

"It is likely ASIO has already read the seized documents, if not why would they confiscate them in the first place?" asks Rees, who says it is a matter of conjecture as to whether they have been seen by other parts of the government.

"If not then I don't think it will have any bearing on the maritime boundary case other than serve to heighten awareness that Timor-Leste is likely being ripped off on the boundary issue," he says, "If yes, then clearly Timor-Leste will be at a disadvantage in the arbitration."

Critics say the 2006 Certain Maritime Arrangements in the Timor Sea, or CMATS, the agreement that divides the Greater Sunrise field between the two countries, was unfairly negotiated.

If international norms were employed to determine the maritime boundary, they argue, the $40 billion in oil and gas reserves would fall entirely within Timor-Leste territory.

"I think Timor-Leste's fundamental case for a maritime boundary based on equidistance remains very strong," says Mr Scheiner of the possible repercussions of Monday's ICJ decision, "and nothing Australia confiscated or overheard will change that."

Source: http://www.sbs.com.au/news/article/2014/03/04/icj-orders-australia-stop-spying-east-timor

Media & journalism

Parliament soft-pedals over East Timor's harsh draft media law

Cafe Pacific - March 19, 2014

Jose Belo, Timor-Leste's celebrated champion of investigative journalism and advocate for a free media, recently vowed he was prepared to go to jail rather than allow his fledgling independent nation to muzzle the press.

Belo, 42, publisher of the small yet probing Tempo Semanal online and print weekly, says he won't give up in the current struggle over the fate of the media.

He has been campaigning against a draconian draft media law over the past few months. "It's about the future of our country," he told Fairfax Media's Lindsay Murdoch.

But the news about a draft law that is feared could lead to censorship is not getting any better. Since Cafe Pacific broke this story in early February, the Timorese non-government organisation La'o Hamutuk has been monitoring developments closely – and making quality submissions.

In a subdued message to "concerned friends", it commented on the parliamentary Committee A report and the approval of the controversial law "in principle". This is what it had to say:

Parliament Committee A finalised its Report and Opinion on the law on 28 February, identifying many of its flaws and controversial topics. They read the 29-page report to the Parliamentary plenary session on 11 March. Two hours of debate followed, most of which concerned issues of personal concern to Members (such as being misquoted or defamed, and the right of political parties to own media).

Although the draft law is largely based on Indonesia's discredited Press Council, Secretary of State for Media Nelio Isaac agreed with MP Mandati that Timor-Leste doesn't want "Pancasila Democracy." At 5:30 that afternoon, the MPs approved the law in generality with 49 votes in favor, none opposed and no abstentions.

Because Committee A's report discusses general issues and controversies without proposing specific amendments, the bill is being sent back to the committee for article-by-article revision, after which the plenary will resume discussion on specifics. Concerns have been raised that this process, likely behind closed doors, will prevent the press and public from observing the substantive debate.

'Climate of real tranquility'

The committee A report said in an Orwellian executive summary:

For more than 10 years the Democratic Republic of Timor-Leste has enjoyed, in the opinion of many, a climate of real tranquility in terms of exercise of the fundamental freedoms of citizens, these freedoms provided for either in instruments of international regulation that Timor-Leste ratified or in the Constitution.

Media professionals, the owners of the media, citizen beneficiaries of the services provided by one or the other have lived in relative harmony, without frequent cases reported by the press of complaints from citizens or media professionals transgressing or abusing press freedom.

For more than 10 years, media professionals had access to sources of information, no one forced them to reveal their sources, reported the information they had access to and no one was prosecuted for exceeding the limits usually imposed on the exercise of freedom of expression.

In all that time, the country was informed regularly without any state agency having to intervene to deal with disputes that sometimes arise in the exercise of press freedom. No regulatory agency was created to oversee the activities of the media, but nothing restricted a lively and active media.

We realise now that the state has decided that it's time to regulate the media sector, establishing some rules of functioning, in order to be more rigorous in the information provided and to set minimum parameters that everyone must obey to regulate the sector. And so it is, above all, the establishment of criteria to access the profession of journalism.

What are the minimum requirements that a person must meet in order to pursue that profession? Should one reserve these functions just for Timorese citizens or should they be open to foreigners? Should they require a certain educational background?

But this also involves anticipating who may or may not create media. Can only nationals own them, or can foreigners also have media? Who is forbidden to create media? Can associations and foundations own media or just only persons organised as commercial companies?

But regulating media also disturbs a very sensitive sector because news dissemination could involve breaching rights protected by international legal instruments, as well as the Constitution and ordinary laws. It is the freedom to inform, to inform and to be informed must be exercised with limits.

On the other side, the activity of the mass media is carried out by profit-seeking companies. Hence the possibility that this activity, in the pursuit of profit, could harm other legally protected rights. Thus a press law has to provide for a set of situations of violation of citizens' rights by commercial media and a corresponding sanctions framework to deter potential offenders.

But, in this matter, the press law can opt for initially regulating conflicts outside the courts, where possible, with recourse to the courts as a last res ort when it is not possible to settle the dispute extrajudicially.

Beyond these matters, the press law has to envisage situations in which the published news is inaccurate, untrue or false, injuring the rights of third parties, who, of course, would like to clean up their image, see a correction or restore the truth the facts. Thus a press law must establish mechanisms for responding to false or inaccurate news.

And when a published response is illegitimately denied, the law must provide a compulsive or coercive mechanism requiring the media to ratify the mistake and restore the truth of the facts. And this is done with the courts. Finally, the state wishing to regulate the press must provide for an independent administrative authority with powers of regulation and supervision of the media to also serve as a dispute resolution forum before such disputes are taken to the courts. This bill will intend to give an answer to these questions, adjusted to Timorese reality.

Source: http://cafepacific.blogspot.co.nz/2014/03/parliament-soft-pedals-over-east-timors.html

East Timor eyes tighter media control

The Diplomat - March 6, 2014

Mong Palatino – To allegedly protect the rights of media practitioners, the government of East Timor is proposing a media law that is now being deliberated in the parliament. But journalists and human rights groups have thumbed down the bill, which they believe would institutionalize excessive regulation of the media sector.

The draft legislation was approved by the Council of Ministers last August but its content was not made public for six months.

The Council of Ministers claimed that the intent of the bill is to guarantee freedom of the press but at the same time it also seeks to make the press more responsible: "Its purpose is primarily to regulate the activity of professionals adequately prepared and ethically responsible, so that they can inform the public objectively and impartially and encourage active and enlightened citizenship by the population, thus contributing to a democratic society."

But several local media groups have pointed out that the proposed law contains several provisions that directly undermine free speech. For instance, they highlighted Article 7 of the measure which mandates the registration of journalists to be supervised by a Press Council.

For La'o Hamutuk, a local NGO, the creation of a press council is unnecessary: "As freedom of expression is already guaranteed by the Constitution, no Press Council is needed to regulate it. A Council of commercial media organizations and paid journalists can self-regulate their business, including with their Code of Ethics, but their processes cannot be imposed on everyone and should not involve the state, either through financial support or legal enforcement. Furthermore, no journalist should be required to join an organization in order to practice his or her Constitutional rights."

The group also questioned the provision which would narrow the definition of journalists to those working for corporate media. It insisted that the media landscape has already changed, which means citizen journalists must be recognized too by the government. It rejected the view that journalists who deserve protection are only those "controlled by for-profit media." It also urged the government to broaden the provision which assured the right to free expression of citizens by replacing the word "citizens" with "everyone."

La'o Hamutuk is joined by the Journalists Association of Timor-Leste in criticizing the bill for being unconstitutional; in particular the bill allegedly violates Articles 40 and 41 of the Constitution which address the people's rights and freedom to seek, collect, choose, analyze and disseminate information.

"What we see in these laws is gives an impression that they intend to regulate the press rather than protect the rights of East Timorese journalists," the Journalists Association of Timor-Leste said.

This position was echoed by the International Federation of Journalists (IFJ) which already called for a review and even overhaul of the proposed legislation: "Any legislation that would limit the capacity of local and international journalists reporting on East Timor, also limits the public's right to know and is of great concern to the IFJ. We urge the government to ensure those reservations and perspectives are taken seriously and incorporated into the draft media law."

Responding to these criticisms, parliament leaders vowed to accept and incorporate the views expressed by various local media and human rights groups. Many hope that the final document will truly reflect the original aim of the measure which is about respecting and advancing the people's right to free speech.

Otherwise, it would be supremely ironic and tragic for East Timor to lose its independent media, after spending the past 500 years fighting repression, censorship and colonial rule.

Source: http://thediplomat.com/2014/03/east-timor-eyes-tighter-media-control/?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+the-diplomat+%28The+Diplomat+RSS%29

Timor journalists fight repressive new media laws

Sydney Morning Herald - March 5, 2014

Lindsay Murdoch – Jose Belo was shackled, hung upside down, electrocuted, beaten, burnt and jailed for three years in the mid-1990s because of his resistance to Indonesia's brutal occupation of East Timor.

Now the founder of a newspaper known for its hard-hitting investigative journalism and head of East Timor's journalists' union says he is prepared to go to jail again to fight what he sees as repressive new media laws before his now-independent country's parliament.

"The laws are dangerous. If they are passed I will oppose them and go to the jail. So too will other journalists here," he says. "The laws give excessive powers to a state-funded media council with the power to impose criminal penalties that will be used to control journalists."

Thirty-eight years after six Australian-based journalists were killed while attempting to reveal Indonesia's secret invasion of East Timor, the proposed laws will bar foreign journalists unless they receive government approval to report in the country. "Foreign correspondents who have played a key role in our struggle for independence will not be able to operate freely," Belo says.

Benjamin Ismail, head of the Asia Pacific desk of Reporters Without Borders, says such provisions are unacceptable because they endanger freedom of information and media independence, which are needed for a country to function democratically.

"They constitute a dangerous first step towards censorship and the gagging of news media by leaving the door open to abuse of power by the government and officials," he says.

The laws include a restrictive definition of a journalist that would exclude freelance journalists, independent journalists and student journalists.

Only individuals employed by a recognised media outlet and who must have served at least six months as an intern in a media organisation will be allowed to work as a journalist. Critics of the laws say this will prevent "citizen journalism" in social media such as Twitter and Facebook.

While the proposed laws claim in a draft preamble to ensure freedom of the media, La'o Hamutuk, a prominent non-government organisation in Dili, says they will limit people's freedom to receive and distribute information.

In a submission to a government committee reviewing the laws, La'o Hamutuk says they do not reflect East Timor's history of media being used to inform and direct the struggle for liberation.

"Timor-Leste (East Timor) has already gone for more than a decade without a media law and we have not had problems with media and information," La'o Hamutuk says. "During this time, Timorese people enjoyed their right to information and freedom of expression through various media, after nearly five hundred years of repression and censorship."

The government drafted the laws last year based loosely on media restrictions in Indonesia and Portugal, after state secretary for communications Nelio Isaac Sarmento was quoted in the East Timor media as saying there should be consequences for those practicing journalism without proper accreditation.

"The media law and code of ethics will be used for sanctioning those who violate the law," he was quoted as saying.

Toby Mendel, a Canadian running an organisation called the Centre for Law and Democracy who has studied East Timor's media, says the government is trying to pass restrictive laws, including establishing a press council that is not independent.

"On the other hand, many media outlets are very unprofessional and yet the media is very divided and is unable to establish its own self-regulatory system," he says. "The result is that the public are subjected to often unprofessional media behaviour and yet do not have any opportunity to make a complaint about this."

Nobel laureate Jose Ramos-Horta, a former president and prime minister, opposes the laws.

"Let a thousand flowers blossom, let a million criticisms of political elites and businesses fly around [rather] than have a single journalist be harassed or imprisoned because of a tendentious law aiming at curbing freedom of press," said Dr Ramos-Horta, who is now head of the United Nations mission in Guinea-Bissau.

Belo, 42, has often come under attack for crusading and investigative reporting in his Tempo Semanal newspaper but has never backed away from a fight, including with powerful figures in Dili.

His exposes in 2009 landed former justice minister Lucia Lobato a five-year jail sentence for corruption. "I will not give up on this. Nor will other journalists. It's not about us. It's about the future of our country," he says.

Fairfax Media has supported Tempo Semanal and East Timorese journalism through its workplace giving program More than Words.

Source: http://www.smh.com.au/world/timor-journalists-fight-repressive-new-media-laws-20140305-hvga2.html

East Timor's proposed media laws labelled 'dangerous' by journalists' union

ABC Radio Australia - March 4, 2014

East Timor's journalists' union has criticised the country's proposed media laws for being too restrictive on journalists.

A provision for a press council to decide who can be a journalist has attracted particular criticism. The government, however, says its draft press law will guarantee, protect and regulate journalistic activities in East Timor.

Journalist union president Jose Belo says there is concern government control will curtail press freedom.

"It's a very dangerous law," Mr Belo said. "It gives power to a media council to control the journalist and media in East Timor. "We hope that the government and the parliament listen to these concerns and change it."

The media law was drafted last August and is now before a parliamentary committee which is accepting submissions from professionals and community members.

East Timor Institute for Development Monitoring and Analysis (La'o Hamutuk) researcher, Charles Scheiner, believes the law could breach the country's constitution by limiting access to information for people or institutions deemed not to be journalists.

"This law would, by implication, say that only designated people, full time professional journalists for commercial media outlets who are certified by a body called the Press Council, only those people would have access," he said.

Mr Scheiner says the proposed changes do not address some of the issues the East Timor media face.

"The problems in the media are structural, largely, and passing a law saying you have to be on a list but not raising the salaries, not changing the economic dynamics of the newspapers where most of [the] money comes from paid public announcements by government, that is not going to be changed by a fact of law," he said.

Fears for press freedom

If the law is passed, a press council will be established to impose fines for breaches. Attacks on the freedom of the press, including by a public official, could also result in prison terms.

The council will be funded by the government but will be independent. Its powers extend to stipulating the educational standards necessary to be licensed as a journalist.

It defines and limits a journalist as someone employed by a media organisation, ignoring the contribution of freelancers and student publications, and excluding social media. Mr Scheiner says he is concerned the new measures will exclude international reporters.

"Given that the long history of foreign journalists who have even lost their lives, including the Balibo Five, but there are others, it's a denial of Timor Leste history," he said.

"And in a way a downgrading of the value of free journalism. I mean journalism was also used by the leaders of this country, the current leaders Jose Ramos-Horta and Xanana Gusmao among them advocating for independence from Portugal.

"Those type of things would not be permitted anymore because they're not full time professional journalists working for a commercial organisations and an approved by a government supported council."

The ABC has tried to contact government representatives for clarification, without success.

Source: http://www.radioaustralia.net.au/international/2014-03-04/east-timors-proposed-media-laws-labelled-dangerous-by-countrys-journalists-union/1274244

Health & education

MPs: Teacher appointment process corrupt

Dili Weekly - March 28, 2014

Ezequiel Freitas – National Parliament members have criticized the recruitment of volunteer teachers to permanent positions, a process they say is unfair and nepotistic.

Member of Parliament (MP) Antonio dos Santos said he was concerned as some former volunteer teachers offered permanent positions had been working as market vendors immediately prior to their permanent recruitment.

"Some (teachers) have just been selling goods or clothes in the market, but when the time comes to sign contracts, suddenly he or she has already appeared there. It means there's too much corruption," MP dos Santos, alias "55", said at the National Parliament.

The Fretilin MP said he often received complaints and phone calls from community members about the problem.

MP Aurora Ximenes said the male teachers often received permanent contracts at the expense of their more qualified female counterparts. "Women are not promoted to permanent positions though they have been teaching for seven or eight years," MP Ximenes said.

Education Minister Bendito Freitas said the 2014 State General Budget allocated $9,520 to the Ministry of Education to resolve the issue. "We can respond to the 420 volunteer teachers who have concluded contracts for a definitive career," Minister Freitas said.

Source: http://thediliweekly.com/en/news/news/12222-mps-teacher-appointment-process-corrupt

MP: Use of Indonesian in schools disadvantages students

Dili Weekly - March 6, 2014

Ezequiel Freitas – Member of National Parliament (MP) Paulino Monteiro said the use of Indonesian to teach, which is particularly prevalent in private higher education institutions, disadvantages students.

MP Monteiro said language was a huge obstacle to the teaching and learning process. Often students receive their primary education in Portuguese but are instructed only in Indonesian when they enter private higher education.

"We have written our official languages into the constitution but then use Indonesian to teach our students. It becomes a big hindrance, especially when they do their final thesis," MP Monteiro said at the National Parliament. The Democratic Party MP called onto the Ministry of Education (ME) to look into the issue.

MP Antonio Serpa Dadonus said primary and secondary students learn in Portuguese but are then forced to learn in Indonesian at university, which results in them receiving poor marks. "They can forget the Portuguese language and often get poor marks because they don't understand Indonesian," he said.

In response to the issue, the Minister of Education Bendito Freitas said his ministry planned to facilitate Portuguese language training for lecturers at private higher education institutions. "The ministry allocates the budget to facilitate training of Portuguese language to the lecturers in the private schools," he said.

Minister Freitas said it was necessary for the ministry to supervise the institutions as money from the state budget had been paid to the universities.

Source: http://thediliweekly.com/en/news/news/12132-mp-use-of-indonesian-in-schools-disadvantages-students

Cuban doctors contribute to national cancer program in East Timor

Radio Cadena Agramonte - March 4, 2014

Havana, Cuba – Cuban doctors in East Timor are drawing up a comprehensive strategy to fight Cancer based on the records on the disease collected by the medical brigade in that country and with the contribution of human resources trained in Cuba.

The announcement came in on Monday at a meeting between East Timor's health minister and several Cuban oncology advisors, the coordinator of the Cuban medical brigade, Rolando Montero and the island's ambassador to that country Luis Julian Laffite, according to an article posted on the website of the Cuban Foreign Ministry.

The meeting focused on the work of the oncologists since they arrived in Timor and their setting up of an oncology facility, which was requested by the Timorese party during a visit to Cuba by the president of that nation.

The Cuban specialists explained the minister about actions to implement a cancer prevention and treatment program bearing in mind the records collected in the country and the setting up of a comprehensive strategy to start working on that field.

The Timorese minister thanked the Cuban advisors for their visit and said that the fight on cancer will be a priority for his country's Health Ministry this year and he underscored the Cuban assistance to draw up a national strategy to control the disease, which will include primary health care of oncologic patients in their own homes. (ACN)

Source: http://www.cadenagramonte.cu/english/index.php/show/articles/17340:cuban-doctors-contribute-to-national-cancer-program-in-east-timor

Refugees & asylum seekers

Asylum seekers: Fear and uncertainty in Timor-leste

Rights Now - March 25, 2014

Sharna Jade Bremner – On 30 August 1999 an overwhelming majority of East Timorese voters rejected a continuation of Indonesian rule, with nearly 80 per cent choosing independence. The systematic violence that took place in the lead up to the vote, and exploded following the announcement of the results, saw over 250,000 East Timorese refugees flee across the border into West Timor, while countless more were internally displaced.

Those who fled voluntarily were escaping vicious beatings, shootings, machete attacks, decapitations, torture, sexual violence and mass killings, at the hands of pro-integration militias and Indonesian military and security forces. Others were forcibly deported by Indonesian military personnel and militias, threatened with violence and death, herded onto trucks and boats bound for West Timor in Indonesia.

Timor is no stranger to the so-called "push factors" affecting asylum seekers and refugees. The Office of the United Nations High Commissioner for Refugees (UNHCR) opened its operations in East Timor in May of 1999, just prior to the so-called "popular consultation" for independence. It closed its doors in January 2012, some ten years after the world's newest nation – and 191st member of the United Nations – Timor-Leste, was born, having overseen the return of over 220,000 refugees and the provision of aid to hundreds of thousands who were internally displaced.

Today, Timor-Leste has an asylum seeker problem of a different kind. Less than a year after the declaration of independence on 20 May 2002, the government of the Democratic Republic of Timor-Leste signed and ratified both the 1951 Convention Relating to the Status of Refugees and the 1967 Protocol Relating to the Status of Refugees. In doing so, the government gave its promise to provide assistance to, and hear the claims of, those who arrive on its shores seeking asylum.

For the fifteen or so asylum seekers languishing in Timor's capital, Dili, the government's signature on the Convention and Protocol is meaningless. It has afforded them no protections, no assistance, and worst of all, no status.

Asylum seekers have been arriving in Timor since the early 2000s, however the exact number that are still in the tiny half-island nation remains unclear. Fear and anxiety are rife in the asylum seeker community, and many people are reluctant to identify themselves in a way that may see them targeted by authorities.

I first met Thomas[1], an asylum seeker, in Dili in 2013. Quietly spoken, yet clearly passionate and intelligent, he explained the situation that he and others have found themselves in. Asylum seekers in Timor-Leste, he told me, live in a state of constant fear and uncertainty. The Timorese government have signified that they are not ready, or are perhaps unwilling, to receive or support any asylum seekers, according to those who have made attempts to claim asylum. Instead, they have been told to leave, or advised to head to Australia – a dangerous suggestion, and a direct contravention to Timor's obligations under the Convention.

Article 92 of the Democratic Republic of Timor-Leste's Immigration and Asylum Act (2003) stipulates that those who enter the country seeking asylum must submit their request within 72 hours of their arrival. This requirement that has been criticised by many civil society organisations and refugee advocates including Timor's prominent development monitoring organisation La'o Hamutuk, who notes that the timeframe is unreasonable, given Timor's infrastructure and communication difficulties. For those seeking asylum, Thomas tells me, there is little to no on-the-ground support for those who are newly arrived.

For Thomas and other asylum seekers in Timor-Leste, who have arrived from other countries in Asia, South America and Africa, the issue of personal safety is a key concern. There are few support mechanisms in place, and incidents of mistreatment are not uncommon. Asylum seekers are regularly intimidated by local authorities, and Thomas mentions an incident that took place in September 2013 as a notable example. A group of asylum seekers were set upon and beaten by members of the Batalhao de Ordem Publica (Public Order Battalion) or BOP, leaving one with a severely injured ankle and long-term bruising. The fear and intimidation faced by asylum seekers in Timor-Leste is further compounded by a lack of financial security. Without the proper visa, foreigners in Timor are unable to undertake paid employment, and the title of "foreigner" extends to those seeking asylum – regardless of the status of their claim. Asylum seekers receive a small allowance (around US$5 per day), provided by the UN's International Organization for Migration (IOM), however this is far from adequate to survive in Timor's dual economy. The legacy of highly-paid United Nations staff and foreign consultants has resulted in inflated food and accommodation prices, meaning that asylum seekers have been forced to sleep on Dili's beaches, according to Thomas. He tells me that medical assistance is out of the financial reach of most asylum seekers, many of whom are believed to be suffering from malnutrition as they are often unable to afford food.

The nature of the asylum seeker process in Timor-Leste has caused a great deal of psychological problems among the small group who are attempting to make claims, Thomas tells me. Some report of not being informed of the outcome of their claim for a significant amount of time following the decision, while others report having being denied any assistance or legal support at all. Most, Thomas says, would simply like to know if their claims for asylum are being, or able to be, processed at all. He fears for the mental wellbeing of those who are seemingly trapped in a constant state of uncertainty.

Public allegations of the Timorese government's abandonment of its obligations under the UNHCR Convention were again brought to light in July 2013, following the arrival of a boat carrying 95 asylum seekers and four crew arrived of the coast of the south-east district of Viqueque. The asylum seekers, mostly Rohingyas from Myanmar, claimed to have sought asylum upon arrival, but were told that their request would not be considered – allegations that were dismissed by Timor's Foreign Minister, Jose Luis Guterres. Aid groups in Timor-Leste, including the Red Cross, the IOM and a local human rights organisation, Asosiasaun HAK, confirmed that the group had been kept in isolation in Timor, but that aid organisations had been denied access.

Former President and Nobel Peace Prize laureate, Jose Ramos-Horta, has publicly criticised the treatment of asylum seekers by the current Timorese government, noting that Timorese people were once refugees themselves.

For Thomas and the other asylum seekers in Timor-Leste, Mr Ramos-Horta's words carry little meaning. There is no motivation among those in power to assist the asylum seekers, Thomas suggests. He believes that Timor's small asylum seeker population has been abandoned by the UNHCR, the IOM, and most importantly the government of Timor-Leste, who have intentionally disregarded their obligations under the 1951 Convention.

1. Name changed to protect identity for security purposes. At the request of the asylum seeker community in Timor-Leste, all information relayed by Thomas was done so anonymously.

[Sharna Jade Bremner is a PhD candidate in Anthropology and Development Studies at the University of Adelaide.]

Source: http://rightnow.org.au/topics/asylum-seekers/asylum-seekers-fear-and-uncertainty-in-timor-leste/

Criminal justice & prison system

SQR: Traditional justice should be used alongside formal methods

Dili Weekly - March 26, 2014

Venidora Oliveira – Quesadhip Ruak Center (SQR), in partnership with civil society groups and judicial institutions, has discussed how traditional justice can be incorporated into modern justice systems.

Quesadhip Ruak Center founder Isabel Ferreira said the objective of the discussion was to put together the ideas of Timorese and connect to the culture and traditional justice systems of the people of Timor-Leste.

"We sat together and discussed the justice model that we want, similar to some other places where people combine both the traditional justice and formal justice," she.

She said the Commission for Reception, Truth and Reconciliation (CAVR), through the directorate of the Communitarian Reconciliation Process, had applied traditional justice to cases of minor crimes committed in the community.

"These are crimes but can be resolved through the Communitarian Reconciliation Process if the suspect and victim agree to resolve it without taking it to court," Ferreira said.

The national NGOs involved in the discussion were the Judicial System Monitoring Program (JSMP), Hak Association and CAVR as well as public prosecution and court judges.

JSMP executive director Luis Oliveira Sampaio, who participated in the discussion, said traditional justice had been functioning but some people still had not received justice.

"The president wants to revive our practice of the existing traditional justice," said JSMP Director. He said traditional justice can be applied but its criteria and limitations should be clear.

Judge Duarte Tilman said the constitution permitted the revival of traditional justice. "We should implement it," Judge Tilman said.

Source: http://thediliweekly.com/en/news/news/12220-sqr-traditional-justice-should-be-used-alongside-formal-methods

Police & law enforcement

Indonesia's influence on police development in East Timor

ABC Radio Australia - March 26, 2014

East Timorese police, or PNTL was set up by the UN in 2000, following the referendum for independence from Indonesia.

Since then, the PNTL has received a diverse range of advice and training from many donor nations, including Australia. But it's Indonesia that's had the most influence, becoming a reference point for Timorese police.

Presenter: Sen Lam

Speaker: Gordon Peake, research fellow at the State, Society & Governance in Melanesia programme, Australian National University. Gordon Peake is also author of the book, Beloved Land: Stories, Struggles & Secrets from Timor Leste

Peake: If you take a look at even what the Indonesian police look like, their uniforms, their manner of carrying themselves, it's very similar to what the Timorese police look like. And that's not coincidental. But the relationship is much more profound. From 1975 to 1999, East Timor was occupied by Indonesia and many of the legacies and the ghosts of that occupation still linger on, in terms of practices and behaviours, and that's very apparent with the Timorese police.

Lam: And as foreign donors pull out, will Indonesia increasingly have a greater influence in the East Timorese force's development?

Peake: One of the great ironies about this, Sen, is that as you say, foreign forces pulled out, mostly in 2012. The UN left in 2012, and there's still a small but still quite important Australian police development programme and there're some small funding from other sources. But between 1999 and 2012, there would've been in the range of... I would say about 10-thousand police advisors that would've been in this very small country, working with about three-thousand-odd members of the Timorese police.

So East Timor was flooded by advisors during that period and one of the great ironies about Indonesia's influence is that this was achieved not by sending police advisors, not by sending expensive training programmes, but in a more subtle and cultural way. Many of the Timorese police were born before umm..., born after the Portuguese colonial period ended in 1975, and so they were brought up in an Indonesian milieu, very comfortable speaking Indonesian, very comfortable watching Indonesian TV, being surrounded by Indonesian culture, so it's that very comfort that they have with Indonesia that that makes the Indonesian influence so much more easy.

Of the way that advisors work is that they often work in English. They often work with sets of foreign concepts that the Timorese police may or may not understand. But the fact that there's this bond of language and shared culture makes it a lot easier for Indonesia to have a profound influence in Timor.

Lam: So if the PNTL is indeed influenced by Indonesia, what are some of the positives and what are some of the negatives?

Peake: On the positive side... one of the most remarkable things about East Timor's relationship with Indonesia, is just how strong, cordial and friendly it is. The two countries have a remarkable bond, given their pretty tumultuous histories. Er, not...

Lam: But this is of course since the democratisation of Indonesia...?

Peake: This is since the democratisation of Indonesia – that's an important point to make – but there's a 'forgive and forget' quality to the Timorese leadership. Because it's a small country inside a giant Indonesian archipelago, its room for manoeuvre is limited and I think they've made a fairly pragmatic decision. Having a large neighbour, no matter where you are in the world, forces small countries to act in a particular way, and East Timor is no exception.

Lam: And if the East Timor police were indeed to be emulating Indonesia's policing policies, what is of most concern (to you), as an outside observer?

Peake: I think in many ways, the Indonesian police have come a long way, as part of the democratisation process as well.

But certainly, there're certain trends that appear to be incipient in East Timor that are worth watching. The East Timor police have a huge outstanding disciplinary backlog. When I left in 2011, there was one case for every two-point-five officers. And certainly some of the behaviours of the East Timorese police seem to be fairly gung-ho, that they go about things.

There was an incident in Baucau district, where the second biggest town in East Timor is, where the East Timorese police had a shoot-out with a group. And when you look at the videos on Youtube, you think, "Is this the police that had been given countless hours of human rights training, countless hours of shooting training, countless hours of democratic behaviour training?" And it really makes you wonder how much of all this advice that had been given by ten-thousand-plus police advisors, how much of it really stuck?

Now, in 2006, about four or five years into the police building project in East Timor, the East Timor police pretty much collapsed. They revealed themselves to be little more than a collection of uniforms and an arsenal of weapons. And I think if you compare 2006, to 2014, the East Timorese police are certainly a much more robust organisation.

Lam: It's often said that a poorly paid force is a potentially-corrupt force. So what about wages? Is the East Timorese police paid adequately?

Peake: They're paid about the same level as the civil service, which in a country that is expensive, makes it hard to get by on. There does seem to be a culture of impunity within the Timorese police and I think that's probably of the greatest concern.

Lam: Would you say that the East Timorese police has some way to go, but that it is on the right path?

Peake: I think that's a very good way to put it. I think if you look at all police forces in the region, they would all have some way to go. And that's the reason why there's assistance that comes from various countries in order to make sure that they stay on the right path.

I think that a lot of the enthusiasm that were was, when the state of founded and when the police were developed, it's still there.

It's only a fourteen year old institution, and I think if you have enthusiasm, if you have commitment, then you can actually go quite far. Do I think there're trends that are uncomfortable in the Timorese police? Yes, I think there's an uncomfortable trend towards para-militarism. There seems to be no reason to have the huge amount of guns and macho uniforms and gear that they have.

And one would hope that the vision of the Timorese police, which is spelt out in their law of having community-oriented police, will be clear to everyone. It's clear in words, and let's hope that it's now clear in deeds.

Source: http://www.radioaustralia.net.au/international/radio/program/asia-pacific/indonesias-influence-on-police-development-in-east-timor/1285530

Border & security issues

Indonesia, Timor Leste border prone to drug smuggling

Antara News - March 1, 2014

Jakarta – The border between Indonesia's East Nusa Tenggara province and Timor Leste remains prone to drug smuggling, although the police have stepped up efforts to detain suspected individuals entering the area.

In particular, is the Mota Ain area in the district of Belu, which has been reported as vulnerable to international drug trafficking because of minimum availability of detecting equipment.

Police and intelligence officials have been directed to intensify early detection of drug distribution networks in the area, but the provinces geographical location allows open access of drugs via the sea, air and land transportation routes.

Therefore, Belu district police will continue to tighten control along the border area with Timor Leste against drug smuggling, because the neighbor country is suspected of being used by international drug rings to smuggle drugs across the border to Indonesia.

Belu district police chief Adj.Sr Comr Daniel Yudo Ruhoro stated that the police on duty at the border gate will make full use of available facilities to prevent illicit trade across the border.

"All equipment and resources we have will be fully utilized to fight against smuggling drugs into the country," Daniel stated in Atambua on Monday.

He added that the district police are preparing a list of additional facilities and infrastructure needed to support police duty in the border areas. The proposal for additional equipment will be made based on the list, he added.

He pointed out that the East Nusa Tenggara police continue to coordinate with the National Narcotics Agency (BNN) and the Police Headquarters in Jakarta in the fight against international drug rings.

In the border areas, the police cooperate with other elements including the military, the immigration and customs offices, he explained.

"Each element has personnel and necessary equipment to detect illegal activities including smuggle of drugs," he elaborated, adding that the police have also warned local people not to get involved in drug smuggling.

Indonesia shares border with Timor Leste in the districts of Belu, Timor Tengah Utara (TTU), and Kupang which makes these areas prone to drug smuggling, and thus, in need of special attention. The inter-island borders at the west end of the Flores Island can also become a central point for gaining access by a drug network.

Earlier in August 2012, four members of a Timor Leste dealer syndicate selling methamphetamine, known locally as "sabu-sabu," were arrested by the National Narcotics Agency (BNN) in Kupang. They were identified as SA, ES, MT, and HS, and were arrested while trying to ship sabu drugs from Dili, the capital of Timor-Leste, to Malaysia.

Local people have been asked to report any drug transaction or trafficking to the authorities to prevent the occurrence of cases similar to this.

The Belu district is actually in need of a regional anti-narcotic office to help prevent and combat drug circulation and smuggling in the area.

However, Belu District Head Joachim Lopez recently explained that to date, he still awaits an agreement from central government on the formation of the regional anti-narcotic office. "We are still waiting for an agreement from the central government," Lopez noted.

He added that the presence of the anti-narcotic office in Belu was necessary because the border area with Timor Leste was considered to have been a safe area for the distribution of drugs in East Nusa Tenggara in particular and Indonesia in general.

Lopez added that when the plan to set up the regional anti-narcotic office was proposed to the central government in the past, the chief of National Narcotics Agency (BNN) visited the border area in Belu to inspect the location but there has been follow-up since then.

"We proposed the formation of the local anti-narcotic office to the central government in 2011, but it has not been implemented even now," the Belu district head explained.

According to him, East Nusa Tenggara was known as a transit point for drug smuggling from other countries. "I hope the central government will support the regional administration by providing drug detection equipment, and setting up local anti-narcotic office," Lopez emphasized.

According to him, the border area has become a new transit point because of its many narrow, unmonitored roads that smugglers, bringing their drugs by boat, could use to transport the contraband overland.

He added that the drugs were usually smuggled by boat from Malaysia or overland from East Timor, through East Nusa Tenggara and on to Bali and Jakarta.

Lopez stated that the local authority has tried to crack down the drug circulation, but unmonitored entry points near the border with East Timor have overwhelmed the efforts.

Further, he pointed out that bordering with Timor Leste, the district of Belu needs adequate drug detection equipment and a local anti-narcotic office to drive out possible drug smugglers and dealers from the neighboring country.

He also called upon the local police to tighten security along the border area with Timor Leste, which has been suspected of being used by international drug rings across the border to East Nusa Tenggara.

Source: http://www.antaranews.com/en/news/92931/ri-timor-leste-border-prone-to-drug-smuggling

Foreign affairs & trade

Malaysia, Timor-Leste to elevate bilateral relations

Bernama - March 31, 2014

Putrajaya – Malaysia and Timor-Leste are set to elevate bilateral relations by expanding the current co-operation and exploring untapped potentials in strategic fields in the two countries.

Malaysia also pledged its unwavering support for the inclusion of Timor- Leste in the Asean regional grouping, a membership that Timor-Leste is looking forward to.

These developments were the outcome of the talks between Malaysian Prime Minister Datuk Seri Najib Tun Razak and Timor-Leste Prime Minister Xanana Gusmao at Najib's office at the Perdana Putra building here today in conjunction with Gusmao's three-day official visit to Malaysia.

Najib, in his remarks on the meeting at a joint press conference, said there was tremendous scope and potential for the two countries to expand bilateral co-operation in many fields.

The two leaders agreed on the importance of encouraging the business communities of both countries to increase investments and take advantage of the existing opportunities in Malaysia and Timor-Leste.

Najib said Timor-Leste had invited Malaysia to further explore potentials in the country's infrastructure, oil and gas, healthcare, mining, tourism and agricultural fields. He said Gusmao was keen to have the Malaysian private sector participate in the development of Timor-Leste.

A business forum to be attended by some 200 Malaysian companies would be held tomorrow in Kuala Lumpur to enable Malaysia's private sector to explore the potentials in Timor-Leste, he said. "Via this business forum, there will be greater interest in the potentials of investing in Timor- Leste," he said.

Najib also said that Malaysia Airport Holdings Bhd was pleased to look into the possibility of participating in the redevelopment of the Presidente Nicolau Lobato International Airport in Timor-Leste.

Najib said Timor-Leste had also invited national oil corporation Petronas to have a fresh perspective of the potential in oil and gas exploration and development in that country.

He said Malaysia and Timor-Leste were confident that good trade and investment potentials could be harnessed by both countries and nurtured in the coming years. Trade between Malaysia and Timor Leste stood at US$21.2 million (RM69.4 million) last year.

Najib also said that Malaysia and Timor-Leste agreed to forge closer co- operation in capacity-building.

"We offered many courses under the auspices of the Malaysian Technical Cooperation Programme and the Malaysian Defence Cooperation Programme. We will continue to offer the possibility of capacity-building in many fields under both programmes," he said.

Najib said Timor-Leste supported Malaysia's bid for a seat in the United Nations Security Council (UNSC). Malaysia had submitted its candidature for non-permanent membership of the UNSC for the 2015-2016 term. Malaysia is so far the sole candidate from the Asia-Pacific group vying for the seat. Najib said Malaysia supported Timor-Leste's application to be a member of Asean.

Gusmao, in thanking Najib and Malaysia for supporting its proposed inclusion into the regional grouping, said: "We will do our best and continue to look forward to when we can be an Asean member".

He also extended his congratulations to Najib over Malaysia's role as the mediator for the peace process in the southern Philippines, which culminated in the signing of the historical Comprehensive Agreement on the Bangsamoro (CAB) on March 28 in Manila.

Earlier, Najib and Gusmao witnessed the signing of memoranda of understanding on co-operative development and co-operation between Universiti Malaysia Sabah (UMS) and the National University of Timor-Leste.

Source: http://www.bernama.com/bernama/v7/newsindex.php?id=1026303

Brunei, Timor-Leste to boost cooperation

Xinhua - March 16, 2014

Bandar Seri Begawan – Brunei's Sultan Hassanal Bolkiah has said the three-day official visit by Timor-Leste's Prime Minister Xanana Gusmao to his country would pave the way for greater cooperation between both states, The Brunei Times reported on its website on Sunday.

"Brunei Darussalam looks forward to working with Timor Leste in the areas of education, tourism and energy for the benefit of our people and the region as a whole," His Majesty the Sultan said Saturday night when he was delivering his speech during an official dinner hosted in honor of Timor Leste Prime Minister Gusmao and his delegation.

The people of Timor Leste can rest assured that Brunei supports its dream to become the 11th member state of ASEAN, His Majesty the Sultan said. In addition, Prime Minister Gusmao's commitment to further strengthening bilateral relations was valued by His Majesty and the prospect of setting up a Timor Leste Embassy in Bandar Seri Begawan was welcomed.

On his part, Prime Minister Gusmao said "we feel welcome as friends and close neighbors and I am very pleased that this visit has strengthened the bonds of solidarity between our countries."

Prime Minister Gusmao arrived here Saturday afternoon for a three-day official visit, the first one to Brunei since Timor- Leste gained independence from Indonesia on May 20, 2002.

Diplomatic relations between the two countries were established in year 2002, and are described as warm and cordial. In 2002, His Royal Highness Prince Mohamed Bolkiah, the minister of foreign affairs and trade consented to attend the Celebration of the Independence Day of the Democratic Republic of Timor-Leste in Dili.

The most recent development in the further strengthening of ties between both countries is the agreement from both sides on the establishment of the Embassy of the Democratic Republic of Timor-Leste in Bandar Seri Begawan. Brunei Darussalam has also been offering scholarships for a certain number of students from the republic to further their studies in the Sultanate.

Source: http://www.shanghaidaily.com/article/article_xinhua.aspx?id=206920

Former Prime Minister of East Timor requests Cuban assistance

Radio Cadena Agramonte - March 1, 2014

Havana, Cuba – Mari Alkatiri, former Prime Minister of the Democratic Republic of East Timor, requested from Cuba on Friday in this capital professional and technical assistance in the construction of a special zone for the development of that Asian nation.

In his visit to the island, the general secretary of the Revolutionary Front for the Independence of East Timor (Fretilin) spoke with Cuban representatives of various economic sectors on a project being implemented in Oecusse, an enclave located in the province of Western Timor, in Indonesia.

"We want Cuba to participate with its professionals and technicians in the development of a zone that will contribute to improve the economic and social situation of the people of East Timor," pointed out Alkatiri.

He added that special measures will be implemented in Oecusse, aimed at encouraging the participation of foreign capital in the construction of an attractive urban area to retain suppliers of services and high tech enterprises, while neighboring areas will receive complete attention on the basis of a policy of community and rural development.

Prioritized sectors for investment in the enclave are agribusiness, renewable energy, and the development of infrastructure to guarantee services of telecommunications, health, education and roads, among others, said Alkatari.(ACN)

Source: Source: http://www.cadenagramonte.cu/english/index.php/show/articles/17309:former-prime-minister-of-east-timor-requests-cuban-technical-help

Analysis & opinion

Bugged: Espionage in East Timor

Right Now - March 24, 2014

Sayomi Ariyawansa – On 3 December 2013, Australian Security Intelligence Organisation (ASIO) officers entered premises owned by Bernard Collaery, the Australian lawyer representing East Timor in international arbitration proceedings regarding the sharing of resources in the Timor Sea. ASIO officers spent six hours seizing documents and data, and executed the search warrant at a time when Collaery was known to be outside Australia.

Australia has strongly asserted that the seizure of documents was unrelated to the arbitration proceedings. It is thought that the documents and data seized may disclose details of the activities of the Australian Security and Intelligence Service (ASIS)during the period when Australia and East Timor negotiated the 2006 Certain Maritime Arrangements in the Timor Sea Treaty (CMAT Treaty) on the exploitation of resources in the Timor Sea – a treaty largely considered advantageous to Australia, at the expense of East Timor.

One of East Timor's key claims in the arbitration proceedings is that ASIS bugged the offices of East Timorese cabinet members during CMAT Treaty negotiations in 2004 under the cover of Australia's aid program. One of their crucial witnesses is a former director of all technical operations at ASIS, who decided to blow the whistle on these activities. Australia disputes these allegations. Around the time of the execution of the search warrants at Collaery's business premises, the passport of the former ASIS officer was cancelled. He is no longer able to travel to The Hague to give his testimony.

All this raises the question: did Australia spy on East Timor to obtain a financial advantage in an essentially commercial negotiation with one of the poorest countries in the world? And if so – is that okay?

Speaking on ABC's Lateline, Collaery was unequivocal: "the director of [ASIS]... ordered a team into East Timor to conduct work which was well outside the proper functions of ASIS. Our Australian people don't expect their espionage service to be assisting revenue deliberations and commercial negotiations between partners."

Collaery's outrage is fair-minded, but is he correct? Surprisingly, the answer is not so clear-cut.

Setting aside his remark about the expectations of the Australian people, in one respect Collaery is wrong. Section 11 of the Intelligence Services Act 2001 sets out the limits of ASIS functions as follows: "The functions of the agencies are to be performed only in the interests of Australia's national security, Australia's foreign relations or Australia's national economic well-being and only to the extent that those matters are affected by the capabilities, intentions or activities of people or organisations outside Australia."

As ABC Fact Check states: "Given that ASIS has broad powers in relation to the collection of intelligence overseas, and one of its specific functions it to obtain intelligence in relation to Australia's economic well-being, it is unlikely that espionage in relation to negotiations over multi- billion dollar energy reserves would be outside the agency's proper powers."

While conducting espionage activities to obtain information relevant to Australia's economic well-being is a lawful purpose, the manner in which it is done may possibly be unlawful under Australian law. Details about the operation itself are required to address this point – details which, thanks to seizure of documents and data by ASIO and the cancellation of the passport of the former ASIS officer, may not be disclosed for some time, if ever.

Even after assuming the manner of conduct and purpose of ASIS activities in East Timor during negotiations were both lawful under domestic law, we still need to ask: should countries be allowed to conduct spying activities for financial purposes? What are the limits of legitimate intelligence gathering in the national interest?

There is no prohibition on spying in international law. Indeed, it appears it is widely acknowledged as an ordinary part of a state's intelligence activities. Dr Emily Crawford of Sydney University's Centre for International Law notes that there are no international treaties or laws preventing foreign spying, stating: "Espionage sits in the vanishing point of international law. It is a legal black hole."

It is unsurprising that international law offers little clarity in response to these questions. International law is created by states, and states are loath to restrict their own activities with respect to protecting their national interests.

The one international instrument that is tangentially helpful is the Vienna Convention on Diplomatic Relations 1961. Under Article 22, the premises of any diplomatic mission, such as an embassy, shall be inviolable and "[t]he receiving State is under a special duty to take all appropriate steps to protect the premises of the mission against any intrusion or damage and to prevent any disturbance of the mission or impairment of its dignity."

Although this convention is of limited use, as it only explicitly constrains behaviour with respect to diplomatic missions within a state's own borders and not activities undertaken overseas, it has been cited in the context of the revelations that the United States National Security Agency (NSA) spied on the diplomatic missions of the European Union in Washington and New York.

In the absence of international treaties or conventions, "custom", or state practice, is highly relevant – and, in this instance, the argument that "everyone is doing it" is a legitimate strike against the existence of any international prohibition on spying. That being said, the limits on the legitimate purposes of spying are an entirely different issue.

The President of Brazil, Dilma Rousseff, strongly admonished the United States for conducting espionage activities into the oil company Petrobras, saying that "if the facts are confirmed, it would be a clear the espionage was not for security or the fight against terrorism, but to respond to economic and strategic interests." Thus, in her view, while espionage activities may be justifiable for the purpose of security interests, it is inappropriate for the purposes of furthering economic interests.

Writing for Forbes magazine, Christopher Helman defended the actions of the United States on the basis that as a state-controlled company, the "NSA spying on Petrobras is no different from the NSA spying on the Brazilian government". For this reason, "[a] weakened Petrobras means a weakened Brazil, which means a less stable South America", concluding: "[s]houldn't this be directly in the NSA wheelhouse?" Although Helman is looking at a justification that is broader than direct national security interests, it appears implicit that geo-political considerations may justify espionage activities – again, something more than mere economic interests.

In a similar vein, albeit advocating a narrower view, President Obama said in response to the exposure of NSA's spying activities: "[W]hen it comes to intelligence gathering internationally, our focus is on counter terrorism, weapons of mass destruction, cyber security... core national interests of the United States".

In reality, economic interests are also core national interests for the United States, or indeed for any other country. No country can claim a true separation between the two. Despite this, it is clear that in the interests of global citizenship espionage activities need to be seen to have a purpose beyond the mercenary.

Where does that leave Australia and the alleged activities of ASIS during the negotiations of the CMAT Treaty?

Literature on ethics in international relations focuses largely on its amorality. The crux of the orthodox view on the ethics of interactions between state parties stems from the expectation that states cannot interact with each other within the same moral framework that governs interactions between individuals. Spying activities are absolutely verboten between individuals or between corporations, yet there is a tacit acknowledgement that these activities occur between states.

But the recent fracas surrounding the exposure of alleged Australian and United States spying activities clearly indicates that these actions are only accepted to the extent that these matters relate to national security and counterterrorism activities.

The allegation of Australian spying activities sits uneasily against the preamble to the CMAT Treaty, which states that its terms are agreed as between Australia and East Timor in a manner that is "fully committed to maintaining, renewing and further strengthening mutual respect, friendship and cooperation between Australia and Timor-Leste" and "mindful of the interests which Australia and Timor-Leste share as immediate neighbours and in a spirit of cooperation, friendship and goodwill".

If true, the allegations erode any sense of basic fairness and good faith negotiation – especially given the disparity in bargaining power between Australia and East Timor.

It may be said that the process of negotiations between Australia and East Timor were sufficiently connected to geo-political considerations in the sense put forward by Helman to justify espionage activities. However, the purpose of the CMAT Treaty is essentially commercial. Under the treaty, both Australia and East Timor must refrain from asserting or pursuing their maritime boundaries claims for 50 years, and must not commence any proceedings that would raise the delimitation of maritime boundaries in the Timor Sea. The CMAT Treaty is about how Australia and East Timor will share the gas and oil resources in the Timor Sea, and any revenue flowing therefrom. Under the CMAT Treaty, Australia is currently able to "share" resources with East Timor – resources to which Australia may not have any proper claim.

Australia's alleged belligerence in East Timor may have other consequences. The allegations that the espionage activities in East Timor were conducted under the cover of an Australian aid program are also particularly troubling. As Australian Greens leader Christine Milne has argued, the impact of this tactic could be vast, as "people working in Australian aid programs around the world will be under suspicion." Even on an amoral view of ethics in international relations, the conduct of the alleged spying activities in East Timor is difficult to justify.

While a certain level of espionage between states may be tolerated, particularly in the interests of national security, spying on the poorest country in Asia in peacetime for pure commercial gain goes too far. It reinforces the spectre of Australia as the bully of the Asia-Pacific.

[Sayomi Ariyawansa is a Melbourne lawyer. She has volunteered with the Asylum Seeker Resource Centre, interned in the New York office of Human Rights First and previously worked for the Victorian Department of Justice. She is currently on the committee for the Global Ideas Forum 2014.]

Source: http://rightnow.org.au/writing-cat/bugged-espionage-in-east-timor/

Timor's oil

Right Now - March 10, 2014

Tom Clarke – Since the discovery of vast oil deposits under the Timor Sea in the early 1970s, oil has been the ever-present third player in Australia's relationship with East Timor.

Prior to the Indonesian invasion of East Timor, Australia's ambassador to Indonesia Richard Woolcott infamously sent a cable back to his political masters in Canberra suggesting Australia's chances of securing a more lucrative deal over the Timor Sea resources would be better if Indonesia controlled East Timor. It read:

"This could be much more readily negotiated with Indonesia by closing the present gap than with Portugal or an independent Portuguese Timor."

This set the tone for the next 25 years of Australia's response to Indonesia's illegal occupation of East Timor which saw the death of over 200,000 Timorese men, women and children. Australia was all too eager to cosy up to the Suharto dictatorship for political and economic gain.

The 1989 Timor Gap Treaty confirmed this for the world to see. The treaty was signed by Australia's foreign minister at the time, Gareth Evans, and Indonesia's foreign minister, Ali Alatas, as they clinked champagne glasses in an aeroplane flying high above the Timor Sea. Two men divvying up resources that did not belong to either of the nations they represented. It was Timor's Oil.

Today, an independent East Timor enjoys 90% of the government revenue from one of the key fields in the Timor Sea, Bayu-Undan. However, the dispute over other significant deposits located nearby is still raging and some deposits, namely the Laminaria-Corallina fields, have nearly been depleted without Timor receiving a cent. The dispute is likely to continue in one form or another until permanent maritime boundaries are established between East Timor and Australia.

East Timor has never had permanent maritime boundaries. It wants permanent boundaries and, as a sovereign nation, it is entitled to have them. Australia however, has consistently refused to establish boundaries with East Timor. Instead it has jostled our tiny neighbour into a series of temporary resource sharing arrangements – all of which short-change East Timor out of billions of dollars in government revenues to which it is entitled.

To understand the complexities of the current dispute, it helps to step through the various milestones that led to the current state of play.

In 1972 Australia and Indonesia agreed on a seabed boundary. This was based on the now out-dated "continental shelf" argument and the boundary was a lot closer to Indonesia than Australia. Because Portugal, the then colonial ruler of Timor, did not participate in the negotiations, a gap was left in the boundary. This became know as "The Timor Gap".

Two months after Australia's ambassador sent the cable mentioned above, Indonesia invaded East Timor and Australia was hopeful the gap could simply be closed and Australia would secure all the riches that the Timor Sea had to offer.

However, Indonesia soon realised it had been "taken to the cleaners" to use the words of its Foreign Minister, Mochtar Kusumaatmadja, and when negotiations regarding the gap began in 1979 Indonesia knew its claim all the way out to the median line had legal merit.

Indeed, in 1982 the United Nation Convention on the Law of the Sea confirmed median line boundaries as the chosen solution for disputes when opposing coastlines are less than 400 nautical miles apart. Put simply, this means drawing a line half way between the countries.

After a decade of haggling, the Timor Gap Treaty was signed and various "zones of cooperation" were drawn up and Timor's oil was to be divvied up between Australia and Indonesia.

Australian politicians and the oil companies no doubt hoped that was the end of the matter. However, the bloodshed due to Indonesia's brutal occupation meant East Timor was never far from the news headlines for the next decade.

Although Australian politicians tried to play down Indonesia's routine atrocities in East Timor – for example when Foreign Minister Gareth Evens tried to dismiss the Santa Cruz Massacre as a mere "aberration" – the Timorese solidarity movement within Australia and around the world only gained momentum.

The chasm between Australia's foreign policy towards East Timor and the wishes of the Australian public finally began to narrow at the end of 1999 when Australia led the INTERFET peace-keeping force into Timor in response to the violence unleashed by Indonesia's unofficial scorched earth policy following the historic referendum for independence.

Many hoped that Australia's intervention would serve as a great redeeming act and herald a new era in which Australia wholeheartedly respected our newest and tiny neighbour.

It wasn't to be. Although Australia has delivered an impressive amount of humanitarian and military support to East Timor since 1999, the amount it has taken in government revenues from contested oil and gas fields during the same period of time is likely to be worth considerably more.

In March 2002, two months before East Timor's independence, Australia pre- emptively withdrew its recognition of maritime boundary jurisdiction of the International Court of Justice and the International Tribunal for the Law of the Sea. This was an extremely telling decision that signalled Australia had no intentions of playing nice when it came to the placement of maritime boundaries.

Its also makes a mockery of any attempts by the Australian Government to claim that its legal arguments reflects current international law. Turning your back on the independent umpire is not the action of a Government confident of the merits of its own legal position. On the very first day East Timor's independence, it signed with Australia the Timor Sea Treaty.

The "Joint Development Petroleum Development Area" that The Timor Sea Treaty created was based on the existing "zone of cooperation" defined by the Timor Gap Treaty. However the 50/50 split in government revenues was upped to 90% in East Timor's favour. Looked at in isolation, this seemed generous and provided a "feel good" news story for the Howard Government at the time.

The Timor Sea Treaty was expressly meant to be an interim arrangement. It would enable revenues from the Bayu-Undan field to start flowing into the coffers of the fledgling nation without committing it to any permanent boundaries that would need to be negotiated with its neighbours as is the standard process.

However, when East Timor tried to initiate that standard process later in the year by claiming a 200 nautical mile "exclusive economic zone" in all directions based on the principles outlined in the UN Convention on the Law of the Sea, Australia stonewalled requests to commence negotiations to establish permanent maritime boundaries.

Instead another temporary resource sharing agreement was signed, the Sunrise International Unitisation Agreement, which would allocate 82% of the government royalties from the Greater Sunrise field to Australia. This was despite the field being twice as close to East Timor as it is to Australia.

Revealing yet more hardnosed tactics, Australia refused to ratify the Timor Sea Treaty, signed the year before, until the new deal was signed. This would have delayed production of the Bayu-Undan field and held up the government revenues that East Timor was in desperate need of. East Timor had little choice but to sign the treaty. However, once the Timor Sea Treaty came into effect, Timor understandably did not ratify the Sunrise agreement and negotiations resumed.

The massive Greater Sunrise gas field is located approximately 140 kilometres from Timor and is estimated to be worth at least $40 billion in government revenues. It would most likely be owned entirely by East Timor if permanent maritime boundaries were established in accordance with international law.

During 2004 and 2005 negotiations slowly continued. By early 2005 the Timor Sea Justice Campaign was in full swing. Its grass roots campaigning with WWII and INTERFET veterans, church and student groups, aid organisations and a network of local council "friendship" groups had caught the attention of a businessman named Ian Melrose.

Melrose produced and paid for a series of hard-hitting television advertisements highlighting Australia's "theft" of East Timor's oil. This blend of local activism and prime-time national exposure was effective in mobilising vocal supporters of East Timor.

In January 2006, East Timor and Australia's foreign ministers, Alexander Downer and Jose Ramos-Horta, signed the Certain Maritime Arrangements in the Timor Sea Treaty (CMATS) which would spilt the government revenues 50/50. This increase from the previous plan involving a 18/72 percent split in Australia's favour came with a major condition: East Timor would shelve its claim for permanent maritime boundaries for the next 50 years.

Woodside Petroleum currently holds the license to develop the Greater Sunrise field. Woodside's first proposal was to pipe the gas more than 400 kilometres to Darwin for processing. However, this would deprive East Timor of the considerable "down stream" revenues associated with the processing of the gas and this option was vetoed by the Timorese Government who want a pipeline to go to Timor. Woodside's current proposal is to process the gas on a floating platform near the field. However, it may be some time yet before the field is developed.

In 2012 a former high-ranking Australian spy came forward with a startling confession. He claimed that he had led a mission to bug the East Timorese cabinet room under the guise of an Australian Aid project. The whistleblower is said to have come forward after learning that Alexander Downer had taken paid consulting work for Woodside Petroleum after leaving parliament.

At the end of 2012, East Timor tried to raise the matter with the Gillard Government but was snubbed by the PM and her Foreign Minister, Bob Carr. So in April 2013, East Timor commenced an arbitration process using a conflict resolution mechanism in the Timor Sea Treaty.

East Timor argues that Australia's alleged spying during the negotiations of the CMATS treaty gave Australia an unfair advantage and is evidence that Australia did not sign the treaty in good faith. As such, at the arbitration underway in The Hague, Timor is seeking to have the CMATS treaty nullified.

The potential scrapping of the CMATS treaty would see the end of the 50 year ban on Timor pursuing its claim for permanent maritime boundaries.

If permanent maritime boundaries were established in accordance with current international law, East Timor's probable exclusive economic zone would likely encompass all of the Greater Sunrise field as well as all of the joint development area that Timor currently shares with Australia.

Since the 1982 UN Convention on the Law of the Sea, international law has overwhelmingly favoured median line boundaries. Yet it is understood that Australia's preferred option is still to simply "close the gap".

Former Foreign Minister, Alexander Downer, has recently resumed peddling the myth that agreeing to a median line boundary with Timor would somehow "unravel" our borders with Indonesia. This is simply not true as Australia's borders with Indonesia are set in law and can only be changed with agreement from both nations. Maritime boundaries are set bi-laterally and East Timor will establish is boundaries with Indonesia separately.

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

Days before the arbitration about the spying allegations was to commence in The Hague, ASIO dramatically raided the offices of Timor's lawyers in Canberra who were preparing for the case and also seized the passport of the key witness whistleblower.

This prompted East Timor to launch legal action at the International Court of Justice to insist that Australia hand back the files it seized.

Australia's Attorney-General, George Brandis, assured the ICJ that he had made undertakings to ensure no one will read the seized files which would give Australia an advantage in Timor's challenge to the CMATS treaty. In early March, the ICJ issued a provision order confirming that Australia must keep the documents in sealed envelopes until the court has made a decision regarding the legality of the ASIO raids and whether the document will need to be returned.

Notably the ICJ also delivered a clear, binding legal order for Australia not to use national security as an alibi for commercial espionage and insisted that Australia cease inferring with East Timor's communications with its lawyers. Put bluntly – stop spying on Timor.

In light of all these recent developments, the Timor Sea Justice Campaign has been resurrected and our next campaign meeting in Melbourne will be held on 20 March (details can be found on our website). There are also currently active campaigners on this issue in Sydney, Darwin and Adelaide.

This issue is not one about charity or Australia – it's about justice. East Timor is simply asking for what it is legally entitled to.

The establishment of permanent maritime boundaries would obviously provide more economic certainty for both countries and for the companies seeking to exploit the oil and gas resources. But perhaps more importantly, it would bring some closure to the Timorese's long and determined struggle to become an independent and sovereign nation – complete with maritime boundaries.

History tells us that when enough Australians take note and get active, we can change our Government's policy towards East Timor. If you believe it is time for our Government to finally give East Timor a fair go in the Timor Sea, please get involved or support the Timor Sea Justice Campaign.

For more information, visit: www.timorseajustice.com

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

Source: http://rightnow.org.au/writing-cat/article/timors-oil/

The historical context of Australia's strategy in the Timor Sea

The View from LL2 - March 8, 2014

Susan – In 1974, with the prospect of an Indonesian annexation of Timor on the horizon, Australia faced an important question: would Australia receive more favorable access to the gas and oil fields in the Timor Sea if Timor had an (a) Portuguese government, (b) Indonesian government, or (c) independent government?

At the time, Australia believed the answer was (b): an Indonesian Timor would give Australia the best outcome when it came to negotiating a seabed boundary in the Timor Sea. In a 1974 Policy Planning Paper, the Australian government reasoned that, since Indonesia had already given Australia such a favorable result in a similar seabed boundary negotiation, Indonesia would likely give Australia a similarly favorable deal for the seabed territory offshore from Timor. As a result, Australia was cautious about entering into any final seabed boundary delineations with Portugal. The political situation was likely to change, and there would be advantages in waiting for a more favorable government to gain control of the island territory:

We should press ahead with negotiations with Portugal on the Portuguese Timor seabed boundary, but bear in mind that the Indonesians would probably be prepared to accept the same compromise as they did in the negotiations already completed on the seabed boundary between our two countries. Such a compromise would be more acceptable to us than the present Portuguese position. For precisely this reason however, we should be careful not to be seen as pushing for self-government or independence for Portuguese Timor or for it to become part of Indonesia, as this would probably be interpreted as evidence of our self-interest in the seabed boundary dispute rather than a genuine concern for the future of Portuguese Timor. We should continue to keep a careful check on the activities of Australian commercial firms in Portuguese Timor. (Policy Planning Paper, Canberra, May 3, 1974).

In other words, Australia should continue to engage in negotiations with Portugal to avoid the appearance of any impropriety, but it should take care that the negotiations did not actually culminate in an agreement. Although Australia's economic and foreign interests were best served by an Indonesian Timor, it was for precisely that reason that Australia wanted to avoid any appearance that it had any stake in Timor's outcome. If seen to support Indonesia's annexation of Timor, it would likely be viewed as doing so for self-serving commercial reasons. At the same time, neither did Australia wish to be seen as supporting a Portuguese Timor or an independent Timor, because doing so might have the effect of promoting either of those outcomes. Taking such a position (or appearing to take such a position) would also pose a risk of complicating its relationship with Indonesia.

There was also the risk that, at some future date, Timor would eventually achieve independence. Such an event would undermine the durability of any seabed boundary agreement that Australia had entered into, whether it was with Portugal or Indonesia. If Australia succeeded in negotiating a favorable seabed boundary in the Timor Sea, only to have Timor later gain independence after all, Australia would face significant pushback from the world community for having plundered a tiny nation's "only major asset" before that nation had the ability to protect itself:

If Portuguese Timor achieved independence and believed such a prior [seabed boundary] agreement was not in its interests, there might be strong criticism of Australia for making an agreement with Portugal over Timor's head to deprive Timor of what may be its only major asset – oil. If Australia thus became a focus of antagonism, we would almost certainly lose much of our capability to influence or assist newly independent government. On the other hand, if a boundary line negotiated now gained wide acceptance this would in turn allow petroleum exploration to proceed with more confidence than at present. Moreover, a newly independent government in Timor might not wish to upset relations with Australia by seeking to renegotiate an established boundary line albeit one negotiated by its former colonial rulers. (However, it could be unwise to rest too heavily on this assumption.) (Cablegram, September 26, 1974).

Australia was well aware that an Indonesian annexation of Timor would create the potential for future upheaval and revolution in East Timor. If and when that eventuality finally came to pass, Australia would have a much stronger position if it did not have any culpability for the original Indonesian take-over. So, although Australia "favoured association of Portuguese Timor with Indonesia," Australia had a significant long-term interest in avoiding any perception that it was "hand[ing] over" Timor to Indonesia. Instead, Australia wanted to maintain a public perception of being committed to "self-determination," and to avoid any appearance that Australia was assigning Timor to Indonesia without the consent of Timor and against Timor's own self-interest:

The second part of our policy flows from our commitment to self- determination. This stems from the Government's general philosophy – in the United Nations and elsewhere – but also from an assessment that to decide the future of Portuguese Timor against the will of its inhabitants might well lead to instability and trouble later on. Moreover, some Australians, with the example of Irian Jaya in mind, would be very sensitive to any appearance that decisions on Portuguese Timor's future were being taken without proper consultations with the people there. (Draft Submission, December 5, 1975).

Aside from more general (although still very significant) concerns about how Timor would affect Australia's relationship with Indonesia, the delineation of the seabed boundary – and consequently the division of control over the Timor Sea's petroleum – was Australia's sole policy interest in Timor itself. An example of this is shown in a 1974 memo concerning how to word a policy statement on the Timor situation. Australian officials wanted to minimize any perceived interest in Timor, but felt that they could not credibly deny having any interest in Timor. The following proposal was suggested:

Australia naturally has important particular interests in Portuguese Timor (for example, in oil exploration in the delineation of the continental shelf) but we have no ambition to achieve a special position there.

The euphemistic amendment of the "in oil exploration" to "in the delineation of the continental shelf" was accompanied by a note making it clear that the Timor Sea gas and oil fields – which Australia's access to would be determined by any seabed delineation – was in fact Australia's predominant concern in the island:

Timor was of little intrinsic interest to Australia. Our commercial and trade interests are minor. Our only substantial interest in bilateral relations is in delineation of the continental shelf. Our special interests stern from the problem of P[ortuguese] Timor as a factor in our relations with Indonesia. (Minute, September 20, 1974).

The May 3, 1974 planning paper, supra, further discussed Australia's interests in the Timor Sea oil resources, but that portion has been redacted and is not available for public review. The note concerning the redaction acknowledges, however, that Australia's concern was with the sovereignty over gas and oil fields in the Timor Sea, and how Australia's commercial activities in Timor were in conflict with UN resolutions on self-determination by Portuguese colonies:

Sections omitted [with the May 3, 1974 Paper] deal with Australia's limited commercial and aviation interests in Portuguese Timor and possible oil concessions in as yet undelineated areas of the Timor Sea. In 1973 UN resolutions called on governments to discourage participation in commercial enterprises contributing to Portugal's domination of its colonial territories or detrimental to the interests of their inhabitants. While it could be argued that Australian commercial activities were incompatible with support for those resolutions, the lack of 'significant political agitation' or Indonesian interest in the territory meant that its status was unlikely to become an issue at the UN in the short term.

In the end, Australia tacitly acquiesced to the Indonesian annexation, believing that the Timor Sea could be delineated in a way most favorable to Australia if Timor were under Indonesian control:

We are all aware of the Australian defence interest in the Portuguese Timor situation but I wonder whether the Department has ascertained the interest of the Minister or the Department of Minerals and Energy in the Timor situation. It would seem to me that this Department might well have an interest in closing the present gap in the agreed sea border and that this could be much more readily negotiated with Indonesia by closing the present gap than with Portugal or independent Portuguese Timor.

I know I am recommending a pragmatic rather than a principled stand but this is what national interest and foreign policy is all about, as even those countries with ideological bases for their foreign policies, like China and the Soviet Union, have acknowledged. (Letter from Richard Woolcott, Australian ambassador to Indonesia, August 17, 1975).

It's not that Australia was unmoved by the humanitarian concerns caused by Indonesia's invasion; Australian officials acknowledged that the Timorese people had been deprived of their right to self-determination, and expressed concern about that result. Ultimately, however, Australia decided on a path of acquiescence to the Indonesian annexation, and in January 1976, shortly after Indonesia had moved into Timor, Australia's Indonesian ambassador acknowledged that Australian's long-term national interest was best served by a "Kissingerian" approach to the Timor situation:

On the Timor issue... we face one of those broad foreign-policy decisions which face most countries at one time or another. The Government is confronted by a choice between a moral stance, based on condemnation of Indonesia for the invasion of East Timor and on the assertion of the inalienable right of the people of East Timor to the right of self- determination, on the one hand, and a pragmatic and realistic acceptance of the longer-term inevitabilities of the situation on the other hand.

It is a choice between what might be described as Wilsonian idealism or Kissingerian realism. The former is more proper and principled but the longer-term national interest may well be served by the latter. We do not think we can have it both ways. (Letter from Woolcott, January 5, 1976).

Although Australia chose to take what it saw as the path of realism, rather than idealism, it is unclear if Australia's long-term national interests were ultimately served by that decision. It's possible that Woolcott got it backwards; the 'realist' response may have instead served Australia's short-term interests, at the expense of longer-term advantages. With the benefit of hindsight, it is abundantly clear, at least, that an Indonesian Timor did not result in political stability. While it saved Australia from bearing the expenses and entanglements of supporting a newly independent neighbor in 1975, that outcome was only delayed, not avoided.

And the choices Australia made prior to the Indonesian annexation have resulted in significant prejudice to Australia's current position in the Timor Sea. Over the next 22 years, between 1976 and 2002, there would be three very important developments that would radically change the legal and political landscape (seascape...?) of Timorese maritime boundary delineation:

- First, international law of the sea would go through a period of extensive development and codification. One very significant change in this body of law would be the entry into force of the UN Convention on the Law of the Sea, in 1994. In general, these legal developments were not favorable to Australia's claims to sovereignty over much of the Timor Sea. Although the precise boundary between Australia and Timor-Leste remains undelineated to this day, if determined according to the provisions of UNCLOS and modern international practices of apportionment along median lines, Australia's jurisdiction would not include much of the petroleum in the Timor Sea that Australia had intended to develop.

- Second, Timor-Leste would eventually obtain independence after all, following a 1999 referendum. Because Timor-Leste did not consider itself bound by the unfavorable territorial treaties that had been negotiated by Indonesia on its behalf, Australia and the newly formed nation of Timor- Leste would need to re-negotiate how governmental control over the Timor Sea would be divided between them.

- And, third, Australian companies would go on to invest approximately $250 million in the Greater Sunrise gas fields, in anticipation of being able to exploit the natural gas reserves found there, the total amount of which is valued in the billions. As a result of this significant outlay, the corporations that made up the Greater Sunrise joint venture agreement would have an intense interest in preserving Australia's bureaucratic control over the gas fields, as well as in preserving favorable tax rates and ensuring the existence of a stable legal regime that would create a more favorable climate for further investment.

From Australia's perspective, these developments have not been in harmony with one another. Australia now faces significant (and well-funded) internal pressures from domestic corporations who have a strong interest in Australia maintaining control over the Timor Sea, and yet Australia's claims to sovereignty over this territory have grown increasingly inapposite to international law.

And, once again, Australia's response to this conflict has been to pursue a strategy that, while nominally "realist," runs a real risk of coming at the expense of its longer-term political, economic, and legal interests.

Source: http://viewfromll2.com/2014/03/08/the-historical-context-of-australias-political-and-legal-strategy-in-the-timor-sea/