Tribunal Orders Open Hearings in Rex Patrick's Bid to Expose Australia's 2004 Timor-Leste Spy Operation

On Friday, the administrative review tribunal handed the former senator Rex Patrick a significant procedural win. It ordered the Australian government to hold the unclassified parts of a three-day hearing in late November in public. The hearing is part of Patrick's effort to find out whether any documents exist about an alleged 2004 operation in which Australian spies bugged Timor-Leste during sensitive oil and gas negotiations.

Patrick, a politician turned transparency advocate, began with a request for 2004 cabinet documents held by the National Archives of Australia. The government and the responsible agency, the Australian Secret Intelligence Service (Asis), maintain a Glomar response. They will neither confirm nor deny that the bugging took place, and neither confirm nor deny that any relevant documents exist. Asis argues that even acknowledging the records could damage national security and Australia's standing with other countries.

The case turned on how much of the hearing the public could see. Parts will stay closed so top-secret material can be argued. But lawyers for the archives went further, arguing that the open sections should also be shut in case someone accidentally said something they shouldn't. They proposed barring the media and public, who could read a transcript after Asis had reviewed it. The tribunal rejected that proposal.

At a preliminary hearing last Thursday, the deputy chief solicitor, Justin Davidson, said the stakes were very high and that the risk of an intelligence official revealing something they shouldn't could barely be mitigated. "I'm not, frankly, beyond making a mistake," he said. He added that unclassified details might be "interesting to the public" without being in the public interest. Two witnesses are due to testify when the case is heard in full: Ewan McMillan, an Asis deputy director general, and Michelle Chan, a deputy secretary at the Department of Foreign Affairs and Trade.

The tribunal's deputy president, Peter Britten-Jones, was unpersuaded. He found the officials "highly qualified and experienced" and wrote that the risk of inadvertent disclosure of certificated material is "negligible". Patrick told Guardian Australia the situation was a farce and called the scandal the "most open secret in the history of Australian spying". He compared it to an Austin Powers movie. "Only Asis and Dfat think the operation is still a secret," he said, adding that taxpayers were funding the silk, barristers and lawyers arguing the government's case.

The documents at issue concern Australia's strategy for settling how much of the Timor Sea it would control after Timor-Leste gained independence from Indonesia in 2002. The talks determined shared control of the Greater Sunrise gasfields, whose resources are estimated at more than $50bn. In 2021, Patrick took the archives to the tribunal over heavy redactions in a 2000 cabinet submission on negotiating strategy and a related minute. The released version showed cabinet feared Timor-Leste's independence could disrupt access to the reserves, because Australia's earlier 50/50 revenue split with Indonesia would be void.

The bugging itself allegedly took place in 2004, when Asis operatives planted listening devices in key Timor-Leste government offices to learn the country's bottom line, its tactics and the differing views among cabinet members. In 2006 Australia secured a 50/50 split of Greater Sunrise, which lies 450km north-west of Darwin and 150km south of Timor-Leste. The deal benefited a joint venture of multinationals led by Woodside.

The operation came to light after a former Asis officer known as Witness K approached the lawyer and former ACT attorney general Bernard Collaery in 2013. Collaery was also acting for Timor-Leste. The two tried to support Timor-Leste's challenge to the maritime boundary agreement at the permanent court of arbitration in The Hague. Collaery's office was then raided and Witness K's passport seized. Timor-Leste withdrew its espionage claims in 2017 as a "confidence-building measure", and a new maritime border was signed in 2018. Proceedings against Collaery were dropped in 2022.

In a 2019 affidavit for those proceedings, the Timor-Leste president, Jose Ramos-Horta, said full and open disclosure of what may or may not have occurred in 2004 would benefit the relationship between the two countries rather than harm it. The late-November testimony from the Asis and Dfat officials will show how much, if anything, surfaces in public view.