Australian spies, a multibillion-dollar energy prize, and a government fighting to keep a decades-old operation under wraps have collided once again. On Friday, transparency advocate and former senator Rex Patrick secured a critical win at the administrative review tribunal (ART), forcing the commonwealth to hold unclassified parts of an upcoming spy hearing in public.
The ruling cuts straight through the Australian government’s long-standing Glomar response. Canberra has stubbornly refused to either confirm or deny that intelligence operatives bugged Timor-Leste’s government offices back in 2004, or that any records of the operation even exist. That mission, launched shortly after Timor-Leste gained independence from Indonesia in 2002, aimed to secure the upper hand in sensitive negotiations over the Greater Sunrise gasfields.
High Stakes and Closed-Door Arguments
The administrative review tribunal battle stems from Patrick’s ongoing bid to force the National Archives of Australia to hand over cabinet documents from 2004. Government lawyers pushed hard to keep even the open portions of a three-day hearing scheduled for late November safely behind closed doors. They argued that the entire saga remains so sensitive that someone might accidentally let slip a national security secret.
Justin Davidson, the deputy chief solicitor representing the government, warned the tribunal that the stakes are “very high”. He argued that it would be nearly impossible to mitigate the risk of an intelligence official revealing something they shouldn’t, telling the room that even he was not beyond making a mistake.
The commonwealth went so far as to propose that journalists and the public be barred entirely from the open hearings, offering instead to release transcripts only after intelligence agencies meticulously reviewed and scrubbed them. Officials from the Australian Secret Intelligence Service (Asis) and the Department of Foreign Affairs and Trade (Dfat) are slated to take the stand when the full case is heard in late November.
ART deputy president Peter Britten-Jones firmly rejected the commonwealth’s arguments. In his ruling, he noted that officials were “highly qualified and experienced” enough to avoid letting national secrets slip in an open forum, concluding that the risk of an inadvertent disclosure is negligible.
Patrick told Guardian Australia the situation was a farce, arguing the bugging scandal is the “most open secret in the history of Australian spying”, adding, “It’d be funny if it wasn’t so serious, or if the taxpayer wasn’t paying for the silk, barristers and lawyers arguing the government’s case.”
A Decades-Long International Saga
The roots of this legal showdown stretch back years. In 2021, Patrick hauled the archives before the tribunal over heavy redactions in a cabinet submission from 2000. That document outlined Australia’s negotiating strategy for the Timor Sea maritime boundary and a related minute, concerning oil and gas reserves estimated to be worth more than $50bn.
When the tribunal forced the release of a less-redacted version, it revealed cabinet concerns that Timor-Leste’s independence could upend access to those reserves, effectively voiding a previous 50/50 revenue-sharing agreement with Indonesia. In 2004, Asis operatives planted listening devices inside key Timor-Leste government rooms to uncover Timor-Leste’s bottom line, its negotiating tactics and the competing views of cabinet members. By 2006, Australia locked in a 50/50 split of the Greater Sunrise fields, delivering a boon for a joint venture of multinational corporations led by Woodside.
The espionage operation only burst into public view years later when a former Asis officer known as Witness K approached Bernard Collaery, a lawyer and former ACT attorney general who was representing Timor-Leste, in 2013. The pair attempted to challenge the maritime boundary agreement at the permanent court of arbitration in The Hague, prompting swift retaliation from Canberra, including police raids on Collaery’s office and the seizure of Witness K’s passport.
Timor-Leste withdrew its Australian espionage claims in 2017 as a confidence-building measure, paving the way for a new maritime border treaty signed in 2018. During subsequent legal proceedings against Collaery—charges that the federal government ultimately dropped in 2022—Timor-Leste president Jose Ramos-Horta filed an affidavit stating that he believed the relationship between Timor-Leste and Australia would benefit from a full and open disclosure.
With the tribunal clearing the path for public testimony from Asis deputy director general Ewan McMillan and Dfat deputy secretary Michelle Chan in late November, the public may finally get a clearer look at the affair.
