Australia’s Timor-Leste intervention has a dark history — one perpetrators want to hide

Bernard Keane writes in Crikey

The failure to prosecute the alleged perpetrators of war crimes committed during Australia’s intervention in East Timor — and the recognition that there was an active culture of cover-up in the ADF — further strengthens the case for a proper inquiry into the intervention and its aftermath.

That week the ABC finally wrested from Defence a report from 2003 examining the “lessons learned” from the intervention, following an April Four Corners program that revealed that Australian officers had tortured East Timorese and never been prosecuted. The Lessons Learned document identified “the code of silence which permeates elite units in the ADF” and predicted — with eerie precision given what the Brereton Inquiry exposed in relation to the conduct of Australian troops in Afghanistan — “a culture in ADF Special Forces of not telling the truth in such matters”.

The culture of not telling the truth extends much more widely than the ADF in relation to the events around the intervention and Australia’s role in the establishment of Timor-Leste.

In June 1999, Defence Intelligence Organisation officer Mervyn Jenkins took his own life. Jenkins had been hounded by the Department of Foreign Affairs and Trade for sharing with US officials with whom he was liaising that the Howard government knew far more about Indonesia’s plans to mobilise East Timorese militia than it was publicly letting on (something that upset the pro-Jakarta lobby within DFAT). The mistreatment of Jenkins has never been independently investigated; documents conveniently disappeared and no one was held to account for his treatment.

Another intelligence official, Lance Collins, was harassed, raided and had his career ended by the Howard government after he questioned DIO reports and accused the DIO of turning off the intelligence link to Australian troops for 24 hours during the intervention. An investigator who cleared Collins was also harassed by the Howard government.

More famously, Witness K and Bernard Collaery were both harassed and prosecuted in relation to the revelation that Alexander Downer ordered the Australian Secret Intelligence Service to spy on the Timor-Leste cabinet to gain an advantage for (Woodside) Australian fossil fuel companies in negotiations over the Timor Gap.
But in addition to the punitive prosecution, the Coalition government under Attorneys-General Christian Porter and Michaelia Cash successfully sought to prevent Collaery from subpoenaing documents and witnesses that would shed light on the bugging decision within the Howard government.

There’s a clear pattern here: the defence, intelligence and foreign affairs establishment, and successive Coalition governments, have actively worked to cover up embarrassing information, hostile and possibly illegal actions against another, supposedly friendly, government and war crimes including torture in East Timor and Timor-Leste. And that cover up involved harassing and persecuting anyone who exposed misconduct — even harassing those who failed to persecute the latter.

The persecution of those who expose misconduct and war crimes, of course, is not limited to the East Timor intervention: David McBride continues to be prosecuted in relation to the revelation of war crimes committed in Afghanistan by Australian forces.

Plainly DFAT, intelligence and Defence officials, not to mention John Howard and Alexander Downer, would prefer that these matters remain buried and blocked by stifling national security laws.

But the continuing persecution of those who threaten to undermine the cover-up powerfully demonstrates exactly why the whole matter should be dragged into the sunlight, and those involved forced to account for their actions. Nothing short of a full judicial inquiry into the conduct and aftermath of the intervention in East Timor will do.

Bernard Keane is Crikey’s political editor. Before that he was Crikey’s Canberra press gallery correspondent, covering politics, national security and economics.

Justice David Mossop of the ACT Supreme Court brought proceedings against whistleblower Bernard Collaery to an end last Friday, following Attorney-General Mark Dreyfus’ correct and welcome no-billing of the case, but some unfinished business remains. Large volumes of it.

As a result of the prosecution — and attorneys-general Christian Porter’s and Michaelia Cash’s determination to try to prosecute Collaery in secret, use secret evidence against him, deny him the chance to defend himself, and otherwise delay and drag out a vexatious prosecution — a large volume of secret material has been compiled dealing with the conduct of the Howard government and the Australian Secret Intelligence Service (ASIS) in bugging the Timor-Leste cabinet.

This was all submitted by the Commonwealth to justify its attempt to conduct the prosecution in as much secrecy as possible. This material could now be used to expose the perpetrators of both the original bugging and its subsequent cover-up — the likes of John Howard, Alexander Downer, their advisers and senior officials of the time.

Now the Attorney-General’s Department (AGD) — which was responsible for the relentless assault on Collaery, quite separate from the actual prosecution by the Commonwealth Director of Public Prosecutions, which never properly commenced — wants that material back.

Perry Herzfeld SC, for the attorney-general, told Mossop last Friday that “there is a range of classified material which is currently being stored by the court … our preference is we should retrieve it from the court”.

Mossop seems inclined to return the material to the AGD, describing the “practicalities” of storing the material as “unattractive”.

Collaery’s team wants the material kept intact for the time being. At the very least, there’s the issue of Collaery’s costs to be resolved. There also remains the separate issue of why Witness K should stand convicted and why he still has not had his passport returned.

Beyond the resolution of the vexatious prosecution of Collaery, the material is a significant resource that would provide important material on one of Australia’s worst political scandals, one suggesting deep corruption at the highest levels of politics and the bureaucracy, and revealing how a fossil fuel company wielded influence at the very heart of our foreign policy.

A Commonwealth anti-corruption body, allowed to operate retrospectively, might find the material used against Collaery very interesting in an investigation of Howard government ministers, staffers and bureaucrats. Despite Mossop’s facile complaint about storage, the material must be retained for safekeeping by the ACT Supreme Court.

Mossop himself provided another piece of unfinished business. In May, when he overruled Collaery’s efforts to subpoena key intelligence and national security officials to show that ASIS has acted beyond its powers in bugging the Timor-Leste cabinet, he handed down a spectacularly awful decision effectively removing intelligence agencies from judicial oversight.

Mossop decided that the government-appointed and secret Inspector-General of Intelligence and Security was the only person who could examine whether agencies were acting within their powers.

As former senator Rex Patrick said at the time, “never have I seen a judicial officer suggest the responsibility of judicial oversight be abandoned because a member of the executive has a measure of oversight and can report breaches of the law to the prime minister”.

But Mossop’s rotten decision will remain as precedent unless it is overturned by a superior court, or by legislation, ready to ensnare a future whistleblower who reveals activity by an intelligence agency that is illegal or outside its remit.

While we’re on unfinished business, special mention should be made of shadow attorney-general Julian Leeser, vaulted from the backbench into a senior shadow ministry by the profound dearth of talent in the post-election Liberal Party.

Leeser responded to the no-billing by claiming it was evidence that Labor was soft on national security. “This action sends a dangerous message to those who would seek to do harm to Australia by dealing in government secrets and shows Labor can’t be trusted to manage our national security.”

So the official position of the opposition is that Collaery should still be on trial, preferably in secret, to cover up the embarrassment of John Howard and Alexander Downer. Leeser thus adds his name to the long and grubby list of Coalition figures who have wanted this sordid and shameful affair covered up.

It’s also profoundly offensive for Leeser to suggest that Bernard Collaery and Witness K ever sought to harm Australia’s national security by “dealing in secrets”. It was Howard and Downer and their spies who harmed Australia. Collaery and K are the heroes who helped reveal that. Like Porter and Cash, the L-plate shadow minister hasn’t got a hope in hell of ever serving his country in the way Collaery and K have.

Bernard Keane is Crikey’s political editor. Before that he was Crikey’s Canberra press gallery correspondent, covering politics, national security and economics.

Gosling viewed the settlement of the maritime border dispute between Australia and Timor-Leste in 2018 — after the Timorese initiated a case against Australia at the International Court of Justice — as a chance to reset relations. It’s an opportunity the government missed, he says.

“We had an opportunity to move on from the past after settling the maritime issue. It was a difficult period — we could have put it to bed. But the cover-up of previous incidents continues.”

Gosling has worked in Timor-Leste at the highest and most grassroots levels. After military service there, he produced the film A Debt of Honour detailing the experience of Australian soldiers in the INTERFET Timor-Leste mission and that of Australian commandoes operating under Japanese occupation there during WWII. During that time he met Collaery and popular leader Xanana Gusmao before returning as an ADF defence advisor to the new country’s military in 2005.

In between, he built schools, provided water to remote villages and helped deliver maternal health services — though, he says, he doesn’t want to overstate his work. He continues to try to help the country via seasonal worker programs, defence cooperation and his links with the Darwin Timorese diaspora. The K/Collaery case, he says, “has stirred up a lot of hurt for many Timorese and Australians alike”.

On the case itself, Gosling chooses his words carefully, declining to comment on the bugging or the circumstances in which Witness K revealed it. But the secrecy of the trial appals him.

“I understand the need for national security and the secrecy it involves, but it should be a last resort,” he said. “To what extent is this national security, and to what extent reputational protection by Porter?”

He points out the Law Council has reminded the government that open justice is a basic rule of Australian society and that secrecy “stacks the deck” against the defendants.

“When a law is unjust, free citizens have a right — in fact, a duty — to dissent, to protest, to organise, and to express their will at the ballot box. And if any of them are accused of breaking the law, they have the right to an open trial, which also exists to protect our legal system from becoming simply a politicised kangaroo court.

“The Washington Post’s motto is true on both sides of the Pacific,” Gosling warnings. “’Democracy dies in darkness’. We need to start rebuilding the ethical infrastructure of our nation.”

Labor MP Luke Gosling has called on Attorney-General Christian Porter to explain why his prosecution of Witness K and Bernard Collaery is in the public interest, and says the government has missed an opportunity to put its poor treatment of Timor-Leste in the past.

The Northern Territory MP has extensive links with the country after serving there while in the ADF and spending several years there running an NGO.

Earlier in the year, Gosling criticised Porter’s attempt to prosecute K and Collaery in a secret trial, but now says Porter must make up for his failure to explain why he is pursuing the two men.

“Porter is yet to provide a detailed explanation for his decision to prosecute Witness K and Collaery, to spell out why this action is in the public interest,” Gosling told Crikey. “If the government really cares about transparency and accountability, there’s a very easy place to start: just be upfront with Australians. They can handle it. So can our relationship with Timor Leste. The bonds between ordinary Australians and Timorese have never wavered.”

“In choosing to prosecute them, Porter decided in six months to do what his predecessor, George Brandis, chose not to do in his entire term. But the reasons for prosecuting these two Australians — the real reasons — are crucial details this government is being uncharacteristically silent about.”