Under cover of national security

In addition, unknown to the Timor Leste government at the time, the Greater Sunrise Field also had substantial deposits of helium, which ConocoPhilips was exploiting, by extracting and processing helium from the LNG coming into Darwin through a pipeline. 

On learning Alexander Downer was made a consultant to Woodside, Witness K made a report to the Inspector-General of Intelligence and Security (IGIS), an independent statutory office holder who reviews the six Australian intelligence bodies. He was granted official permission to consult with ASIS approved lawyer Bernard Collaery.

Soon after Witness K made the report to the IGIS, his employment was terminated by ASIS. Witness K spent a number of years fighting this decision through the Administrative Appeals Tribunal (AAT), being harassed, intimidated, and regularly questioned, over those years leading to self-isolation, withdrawal, and deep depression.

Witness K’s lawyer Bernard Collaery, who was also an advisor to the Timor Leste government, investigated the ASIS operation bugging the Timor Leste government offices. Collaery formed the opinion that the operation was a crime under Section 334 of the Commonwealth Criminal Code, conspiracy to defraudthe government of Timor Leste of oil and gas reserve rights.

The Timor Leste negotiator, Peter Galbraith, a former US ambassador to Croatia, was quoted as saying the bugging was not what you would expect to do to a friendly state, and not something one would do for commercial advantage.

Aggrieved over the incident, the Timor Leste government took the issue to the Permanent Court of Arbitration in The Hague to overturn the agreement that had previously been negotiated with the Australian government.

The court invited Witness K to give testimony in The Hague. However, Australian attorney general George Brandis cancelled Witness K’s passport to prevent him appearing before the court. The Australian Security Intelligence Organisation (ASIO), then raided the homes of Witness K and his lawyer and Timor Leste advisor, Bernard Collaery, taking away all documents and files relating to the Timor Leste case.

In Collaery’s case, ASIO waited until he had just left for The Hague to present the case, giving the Australian government a copy of the Timor Leste evidence and case.

In March 2018, a new treaty was signed between Australia and Timor Leste. This time round, Timor Leste had rights to 70 percent of the oil and gas reserves. However, with only one pipeline from the Greater Sunrise Fields to Darwin, Timor Leste has not been able to take advantage of the oil and gas reserves.

The matter of Witness K and Bernard Collaery was not prosecuted as then attorney general George Brandis was hesitant, not convinced of the public interest in doing so.  However, the new attorney general Christian Porter continued with the matter. Three months after the new agreement with Timor Leste, the Commonwealth Director of Public Prosecution brought charges upon Witness K and Collaery, under Section 39 of the Intelligence Services Act 2001, which criminalizes the communication of information acquired or prepared by any Australian security service in connection with analysis or field operations.

The timing of the prosecution puts a large question over the independence of the Commonwealth Director of Public Prosecution from the attorney general.

Even though the public was already aware of the major facts of the incident, the court was conducted in secret under the National Security and Information Act, 2004, which was intended to prosecute alleged terrorists, and not whistle-blowers. Many legal opinions question the need for a secret trial, because most facts are already known to the public, and not many aspects of the trial actually relate to national security.